ARCTIC OBITER

ARCTIC OBITER
MARCH 2010 V OLUME XIV, ISSUE 3
New FLSC Agreement
opens doors for Quebec

2 | ARCTIC OBITER
THE LAW SOCIETY
OF THE NORTHWEST TERRITORIES
Main Floor
5004 – 50 th Avenue
P.O. Box 1298
Yellowknife, NT
X1A 2N9
TEL: (867) 873-3828
FAX: (867) 873-6344
info@lawsociety.nt.ca
www.lawsociety.nt.ca
PRESIDENT
Shirley Walsh
VICE-PRESIDENT
Michael Hansen
SECRETARY
Erin Delaney
TREASURER
Sheila MacPherson
LAY MEMBER
Maureen Crotty Williams
INSIDE
3 Law Society President’s Message
4 Executive Director’s Message
5 Membership News
8 NWT Decision Digest
11 NWT Legislative News
12 Supreme Court of Canada Update
13 Notices
P.O. Box 1985
Yellowknife, NT
X1A 2P5
TEL: (867) 669-7739
FAX: (867) 873-6344
cbanwt@lawsociety.nt.ca
www.cba.org/NorthWest
EXECUTIVE DIRECTOR
Linda Whitford
linda.whitford@lawsociety.nt.ca
ADMINISTRATION &
MEMBERSHIP INQUIRIES
Amy LeBlanc
amy.leblanc@lawsociety.nt.ca
EDUCATION &
COMMUNICATIONS
Ben Russo
ben.russo@lawsociety.nt.ca
PRESIDENT
Janice K. Walsh
VICE PRESIDENT
Elaine Keenan Bengts
SECRETARY / TREASURER
Malinda Kellett
PAST PRESIDENT
Sheldon Toner
ELECTED VOTING MEMBER
Betty Lou McIlmoyle
NON-VOTING MEMBER
Sheila MacPherson
Arctic Obiter is a joint publication of the Law Society of
the Northwest Territories and the Northwest Territories
Branch of the Canadian Bar Association. It is published
on a monthly basis to keep lawyers practicing in the
NWT informed of news, announcements, programs and
activities. Comments, articles and photos for
consideration can be submitted to Ben Russo. Past and
current issues are available on the Law Society website.
14 Upcoming Events
15 Resources
FROM THE EDITOR
Yet another busy month has passed us by. The regular
chaos this office sees in March was enhanced by the
exciting opportunity to promote the Northwest Territories
in other jurisdictions.
Exciting indeed. On April 16th, the Law Society and the
Government of the Northwest Territories are jointly
hosting a reception at Canada’s Northern House in Vancouver. This Olympic
building is closing, but not before a final party for all lawyers in the area. If
you’re in Vancouver, make a point to stop by that evening - see page 9 for
details.
As part of the preparations, the Law Society has come up with a promotional
booklet as a companion to the DVD the Government released in 2007. If you
would like copies of this 20-page overview of the legal profession in the North,
we’d be happy to ship some your way. It will also be available online shortly
(watch the weekly bulletins).
Keep an eye out for future events. This is just the start.
Cheers,
- Ben

MARCH 2010 | 3
PRESIDENT’S MESSAGE
FLSC Semi-Annual Meeting
March 18th to the 20th was the Federation of Law
Societies semi annual meeting. This year it was held in
Toronto and I attended with Linda Whitford, Erin
Delaney and Lou Sebert. The day and a half of meetings
were packed with information, compelling speakers and
extremely interesting topics which are
important to our profession and those we
serve.
Among the topics which were discussed
was how the regulation of our profession
should and will change as our profession
becomes more global and more services
are developed which take over many
areas of today’s general lawyer’s practice.
Services such as title insurance are
carving away at the types of real estate
transactions a lawyer will handle. In
some jurisdictions in Canada, refinances
are handled completely by banks and
title insurers without the involvement of
Shirley A. Walsh
a lawyer. Paralegals are handling more and more files
which were once solely the purview of lawyers, and in
Ontario paralegals are now governed by the Law Society
of Upper Canada. And increasingly, global, primarily
low-cost but competent lawyers in foreign countries are
performing routine legal tasks for local (Canadian) clients
at massive cost savings. The trend seems to be that these
types of changes are increasing (although they will likely
take longer to get to the Northwest Territories than to
Toronto or Vancouver), and we need to be prepared to
address the practice and regulatory amendments that will
accompany the changes.
A large portion of the Friday afternoon meetings was
taken up by the discussion of the future harm exception
to confidentiality in the proposed national code of
conduct. I sat on a panel with Sheila Greene, a member of
the executive for Newfoundland and Labrador, and
Gérald R. Tremblay of the Barreau du Québec and we
were given two scenarios where we had to decide
whether to break confidentiality based on our existing
codes of conduct. We had three different answers for
each scenario because our codes are not the same – in fact,
there are very striking differences
nationally. A new uniform rule is
desired, however the difficulty is where to
draw the line on what constitutes a
justifiable reason to report information
obtained from a client. Future crime?
Imminent bodily harm to an individual?
Is there a threshold of possible financial
loss to an innocent third party that could
trigger a future harm exception (i.e. a
Bernie Madoff type situation) and is that a
sliding scale? It was a very interesting
discussion with no clear resolution and
more work is being done to determine the
best wording for this public safety that
will also protect the fundamental legal and
civil right of solicitor-client confidentiality.
Saturday’s presentations were extremely interesting with
presenters from the International Bar Association, the
Canadian Bar Association, the Department of Justice
Canada and others regarding their experiences with
assisting developing Bars in countries such as
Afghanistan, Pakistan, Russia and China. The
presentations highlighted the need in countries where the
rule of law is still being developed and how we can help
very easily and in ways that don’t involve traveling to
those jurisdictions.
These few paragraphs cannot do justice to the amount of
interesting information that was presented during the
conference. If anyone would like more information, or a
copy of any of the materials which we obtained, please
contact me or the law society office.

4 | ARCTIC OBITER
THE DIRECTOR’S CHAIR
Mobility Agreement is a Top Priority for the North
On the 19th of March, 2010, the Presidents of the Law
Societies of Canada gathered in the Convocation Room at the
Law Society of Upper Canada and signed the Quebec
Mobility Agreement [QMA]. A press release from the
Federation of Law Societies quotes from President John
Campion’s remarks on the occasion:
“What was begun in 2002 with the signing of
the National Mobility Agreement among the
common law provinces is now completed, with
an agreement by the law societies in common
law jurisdictions to open their doors to members
of the Barreau du Québec”.
For those unfamiliar with the QMA, it
extends the scope of the National Mobility
Agreement (NMA) by facilitating reciprocal
permanent mobility between the common
law jurisdictions and the civil law
jurisdiction in Québec. The QMA
establishes the framework for recognition of
members of the Barreau du Quebec as
“Canadian Legal Advisors” in Canadian
Linda G. Whitford
common law jurisdictions. Law Societies across Canada will
now adopt the appropriate rules to give effect to the
Agreement, a process that is already underway in a number
of jurisdictions. Lawyers from the Canadian common law
jurisdictions have been eligible for equivalent membership in
the Barreau du Québec as Canadian Legal Advisors since
June 2008.
Specifically, a person granted membership in the Barreau as
a Canadian Legal Advisor may
a) give legal advice and consultations on legal matters
involving the law of the Canadian province or territory
where he or she is legally authorized to practise law or
involving matters under federal jurisdiction;
b) prepare and draw up a notice, motion, proceeding or
other similar document intended for use in a case before the
courts, but only with respect to matters under federal
jurisdiction;
c) give legal advice and consultations on legal matters
involving public international law; and
d) plead or act before any tribunal, but only with respect to
matters under federal jurisdiction.
The QMA provides for the creation of the
Canadian Legal Advisor in common law
jurisdictions and its continuation by the
Barreau. The agreement provides that
signatory jurisdictions will use their best
efforts to obtain any legislative
amendments necessary for the
establishment of the Canadian Legal
Advisor category of membership and will
also make necessary changes to their rules
and regulations so as to facilitate a
reciprocal arrangement.
An initiative is underway to extend similar
mobility rights to members of the Chambre
des Notaires du Quebec, the regulatory body
for the 3,500 notaries in the province.
With the signing of the Territorial Mobility Agreement in
2006, reciprocal permanent mobility was expanded to the
three northern territories. This agreement is set to expire on
January 1, 2012. Discussions are now taking place on all
levels – local, territorial, and national - on the future of the
TMA.
As noted in the early discussions that facilitated the TMA,
the three territories find themselves in a unique situation,
particularly in the Northwest Territories and Nunavut where
a significant number of our active members are non-resident
(i.e. their primary practice of law is in another jurisdiction,
but they are authorized to practice law here on either a full
or restricted basis).
As of March 5, 2010, 66% of our practicing membership was
(CONTINUED ON PAGE 5)

MARCH 2010 | 5
MEMBERSHIP
NEW MEMBERS
ARLENE K. BLAKE
SINCLAIR LAW OFFICE - CALGARY, AB
Arlene is a graduate of the University
of Calgary Faculty of Law (2005) and
was called to the NWT bar in 2010.
Arlene brings experience in the area of
estate probate, adult guardianship,
and general wills/estates practice.
Arlene will provide services in the
a r e a s o f a r b i t r a t i o n /
administrative law (civil
disputes, immigration, E.I.,
C.P.P., W.C.B, landlord/
tenant),
employment/labour
law, and commercial leasing.
DAVID G. MYROL
MCLENNAN ROSS - EDMONTON, AB
A partner at McLennan Ross, David’s
practice is focused primarily on
W. Bryce Cabott
Occupational Health &
Safety. He currently sits as
Chair of their in-house OHS
Practice Group and is part of
the University of Alberta’s
Faculty of Extension OHS
Diploma Program.
He now
practices as a Regulatory Defence
Lawyer.
W. BRYCE CABOTT
CABOTT & CABOTT - VANCOUVER, BC
Bryce has been a lawyer in
Vancouver for over 15 years
r e p r e s e n t i n g
f o r m e r
residential school students
throughout Western and
Northern Canada, and he has
been cited by the Law Society of
British Columbia as specializing in the
field of Indian Residential School
Survivors.
David G. Myrol
PUBLIC SECTOR LAWYERS
ANGIE PAQUIN
PPSC - YELLOWKNIFE, NT
BLAIR MACPHERSON
PPSC - YELLOWKNIFE, NT
MEMBERSHIP STATS
Active Residents: 129
Active Non-Residents: 237
Inactive Members: 85
Total Membership: 451
(Restricted Members: 75)
SPOTLIGHT ON YOU
Members want to meet you. Tell your
story and shake hands with the North.
Email us today!
(CONTINUED FROM PAGE 4)
non-resident. The majority of those are resident in Alberta.
Since January 2005 there have been 184 new calls to the Bar,
of which only 51 listed the NWT as their home address. The
net gain of resident members since then is is 3, a rise from
127 in December 2004 to 130 in December 2009.
In contemplating the future of the Territorial Mobility
Agreement, we have no choice but to explore this unique
situation again and give serious consideration to our ability
to continue as a self-regulated profession with reduced
resources; as well as the cost to the resident bar to maintain
services with reduced membership numbers.
In closing, I hope that those of you in the Vancouver area
will join us for a reception at Northern House on April 16th
between 5 and 8 pm. This will be your last opportunity to
view this popular Olympic venue, but more importantly to
meet some of your colleagues from the Northwest Territories
and learn about the practice of law in this jurisdiction. Ben
has tucked the invite somewhere in the pages of this edition
of the Obiter.
And I could not resist... The sun came up today at 6:42 and
will set tonight at 20:40, giving us 13 hours, 58 minutes of
sun – 6 minutes longer than yesterday. I have stored the
spikes for the winter and am happily pounding the bare
pavement once again. On Easter Sunday the Northwestel
Ski Loppet, our last Ski Club event of the season, was held.
It will not be long before the die-hards haul out the golf
clubs while the rest of us take our bikes out of storage and
head outdoors.
Until next month – be safe, be well, be happy!

6 | ARCTIC OBITER
Canadian law societies sign new mobility agreement
Canada’s law societies have taken
another major step in the
implementation of national mobility
for members of the legal profession
with the formal signing of the
l a n d m a r k Q u e b e c M o b i l i t y
Agreement (QMA).
“What was begun in 2002 with the
signing of the National Mobility
Agreement among the common law
provinces is now completed, with an
agreement by the law societies in
common law jurisdictions to open
their doors to members of the Barreau
du Québec” John Campion, the
President of the Federation of Law
Societies of Canada, said during the
signing ceremony.
The Quebec Mobility Agreement
extends the scope of the National
Mobility Agreement (NMA) by
facilitating reciprocal permanent
mobility between the common law
jurisdictions and the
civil law jurisdiction
in Québec. The
Quebec
Mobility
A g r e e m e n t
establishes
framework
r e c o g n i t i o n
the
for
o f
members of the
Barreau du Quebec
as “Canadian Legal
A d v i s o r s ”
Canadian
law
i n
common
jurisdictions.
Lawyers from the
Canadian common law jurisdictions
have been eligible for equivalent
membership in the Barreau du
Québec as Canadian Legal Advisors
since June 2008.
Each law society in common law
Canada will now adopt the
appropriate rules to give effect to the
Agreement, a process that is already
PENS ARE READY: Presidents Shirley Walsh (NT), Susanne M. Boucher (NU) and Susan B.
Dennehy (YT) pause for a moment before signing the Quebec Mobility Agreement in Toronto
underway in a number of
jurisdictions.
The Federation President also
announced that an initiative was
underway to extend similar mobility
rights to members of the Chambre
des notaires du Quebec, the
regulatory body for the 3,500 notaries
in the province.
A PRESEDENTIAL EVENT: The Presidents of the law societies and governing bodies of Canada after signing the Quebec Mobility
Agreement - [TOP, FROM LEFT] G. Glen Ridgeway, QC (BC), Eileen Libby, QC (SK), David Ames, QC (NB), Rodney A. Jerke, QC (AB), John
A. Campion (FLSC), Pierre Chagnon (QC), W.A. Derry Millar (ON), Susanne M. Boucher (NU), Susan B. Dennehy (YT). [BOTTOM, FROM
LEFT] Shirley Walsh (NT), Jeff Hirsch (MB), Kim M. McNeill (PE), Irene S. Muzychka (NL), J. Ronald Creighton, QC (NS).
With the regulation of the legal
profession in Canada a matter of
provincial jurisdiction, Mr. Campion
noted, implementing initiatives at the
national level such as enhanced
mobility for the profession is no easy
task. “Each initiative must take into
c o n s i d e r a t i o n t h e u n i q u e
requirements of each jurisdiction. The
success of the mobility initiatives
shows how all law societies in
Canada have worked together in the
public interest. In this case, it
represents more options for the
(CONTINUED ON PAGE 7)

MARCH 2010 | 7
(CONTINUED FROM PAGE 6)
consumer in accessing the legal
system.”
The law societies began their mobility
initiative in 2002 with the signing of
the National Mobility Agreement. The
agreement - signed by the Barreau du
Québec and the law societies in each
common law province - recognized
that the existence of different legal
systems in Quebec and the rest of the
country would necessitate a different
approach to mobility between the
Barreau and the common law
jurisdictions. The signatories also
recognized that the requirement for
the Barreau to comply with
regulations applicable to all
professions in Quebec would delay
implementation of the NMA by the
Barreau.
With the signing of the Territorial
Mobility Agreement in 2006,
reciprocal permanent mobility was
expanded to the three northern
territories.
The ceremony for the signing of the
Quebec Mobility Agreement was held
at Osgoode Hall in Toronto on March
19, 2010.
[FROM LEFT TO RIGHT] Legislative Counsel Ian Rennie, Court Officer Tara Bower, instructor Donald Legal (College Universitaire de
Saint-Boniface), Legal Translator Emma St-Amour and Legal Editor Catherine Pellerin.
Voici les conquérants de la langue de la
profession
La Programme National de Formation
en Terminologie Juridique - a day of
French legal terminology training -
took place in Yellowknife on March
11.
O r g a n i z e d b y t h e C o l l e g e
Universitaire de Saint Boniface in
centres across Canada, the program
was developed to meet the needs of
judges, lawyers, court officers,
translators and others who are
exposed to French language legal
proceedings in common law
jurisdictions. Different terminology is
used in different places, and this
program works to teach standardised
French terminology for "English law"
concepts.
In Yellowknife, this day-long
program is offered twice a year and is
free for participants.
Competition was fierce during the end
-of-day Expression Cachee (Word
Search) challenge. To the left, the
proud gold-medal winning team,
including resident member Ian
Rennie, show off their medals.
News
Events
Publications
Forms
www.lawsociety.nt.ca
It’s all online.

8 | ARCTIC OBITER
NWT DECISION DIGEST
SUPREME COURT OF
THE NORTHWEST
TERRITORIES
CIVIL
Tan v. Minister of Health and Social
Services
2010 NWTSC 12
Presiding: Justice D. M. Cooper
For the Applicant: M. Kellett
For the Respondent: S. Toner
Judicial review of the Minister of Health
and Social Services' decision to not
register the applicant as a psychologist.
T h e s t a n d a r d o f r e v i e w i s
reasonableness except for statutory
interpretation where it is correctness.
The issue of procedural fairness centred
on what were or should have been the
Applicant's legitimate expectations.
The Applicant could not be registered
as a psychologist in British Columbia
because she had not completed an
internship.
The learned Justice agreed with the
Respondents' position that the
Applicant read and interpreted the
relevant provisions of the Psychologists
Act and decided to take a 'back door'
approach to becoming a registered
psychologist in British Columbia by
becoming registered in the Northwest
Territories and then using the Mutual
Recognition Agreement, a component of
the Agreement on Internal Trade, to
become registered in British Columbia.
The Minister had jurisdiction to deny
the application. There was no breach of
procedural fairness. The application for
judicial review was dismissed.
CASES CITED
923087 N.W.T. Ltd. v. Anderson Mills Ltd.,
[1997] N.W.T.R. 212 (S.C.)
Arctic Environmental v. Northern Mgmt. &
Komaromi et al, 2000 NWTSC 53
A-G v. Lockwood [no citation given]
A.G. v. Prince Ernest Augustus of Hanover,
[1057] A.C. 436 (H.L.)
Baker v. Minister of Citizenship and
Immigration, [1999] 2 S.C.R. 817
Bargen v. Northwest Territories (Medical Board
of Inquiry, [2009] N.W.T.J. No. 8
Bell Express Vu Limited Partnership v. Rex,
[2002] S.C.J. No. 43
Burge v. Newfoundland Board of Examiners in
Psychologist, [2005] N.J. No. 224
Dunsmuir v. New Brunswick [2008] S.C.J. 9
Gallant v. Prince Edward Island Psychologists
Registration Board, [2006] P.E.I.J. No. 11
McBratney v. McBratney, [1919] 3 W.W.R. 1000
[no citation given]
Pushpanathan v. Canada, 1998 CanLii 778
(S.C.C.)
Sussex Peerage, "a decision of the House of Lords
in 1844" [no citation given]
LEGISLATION CITED
College of Psychologists of British Columbia,
Bylaws (Revised November 7, 2008, clause 43)
Health Professions Act, Psychologists
Regulation, B.C. Reg. 289/2008
Psychologists Act, R.S.N.W.T. 1988, c. P-11 as
amended
OTHER CITES
Cross: Statutory Interpretation, Butterworths,
2nd ed., 1987 [sic]
FAMILY LAW
Giroux v. Panilo
2010 NWTSC 14
Presiding: Justice D. M. Cooper
For the Applicant: D.P. Large, Q.C.
Respondent: n/a
Application for increased child support
and s. 7 expenses, and retroactivity.
Application granted, with retroactivity
to May 1, 2007.
CASES CITED
DBS v. SBS [2006] S.C.J. No. 37
Eliuk v. Grymaloski, [2008] N.W.T.T.C. 13
Wright v. Gully, [2008] N.W.T.T.C. 8
CRIMINAL LAW
R. v. Simon
2010 NWTSC 07
BAN ON PUBLICATION OF COMPLAINANT/WITNESS
Presiding: Justice D. M. Cooper
For the Crown: T. Nguyen
For the Accused: T. Boyd
The accused pleaded guilty to six
charges: (1) sexual assault, shortly after
his release from custody(2) endangering
the life of a person - his grandfather -
(aggravated assault), (3) failing to
comply with the terms of a probation
order (X 2) by having contact with a
victim, and by approaching within 10
meters of the residence of a victim; (4)
assault by threatening with a weapon;
and (5) having in his possession a knife,
contrary to s. 88 of the Criminal Code.
The Crown sought a jail sentence of
between 8 and 10 years; defence sought
a sentence of two years less a day.
Aggravating factors: the victim of the
sexual assault was especially
vulnerable, suffering from an obvious
brain injury. Semen from the victim
was analyzed and found to contain the
DNA of the accused. Despite being
bound by a probation order to stay
away from his grandfather, the accused
attended at his residence and beat him
unconscious, using a metal chair. The
victim was medivaced to Edmonton,
where he died some two months later.
At the time of the beating, the accused's
grandfather had a number of serious
chronic medical conditions, After
leaving the scene, the accused
encountered another person and
threatened that person with a knife.
A pre-sentence report was prepared.
The accused has a lengthy criminal
record. His mother was an alcoholic
and stabbed to death when the accused

MARCH 2010 | 9
was a young teenager. He was then
shunted among residences, and claims
to have been sexually abused by his
grandfather and held his grandfather
responsible for his mother's death. He
became addicted at a young age to
alcohol and solvents, including propane
and gasoline. He has been unemployed
for most of his life and has a severe
problem with anger. He has 39
previous convictions dating from 1994,
in every year except for two years when
he was incarcerated for most of the
time. His criminal record includes
numerous property offences, assault,
resisting arrest, sexual assault, offences
against the administration of justice,
assault with a weapon, and assault
causing bodily harm. It is possible the
accused as some cognitive impairment,
(CONTINUED ON PAGE 10)

10 | ARCTIC OBITER
and may be suffering from FAS and
FAE.
The only mitigating factors are his
guilty plea and the fact he gave a partly
inculpatory statement to police.
Sentence: Two and a half years in jail
for the sexual assault; three and one-half
years imprisonment for the aggravated
assault; six months concurrent on the
breach of probation by having contact;
one month concurrent on the breach of
probation by being within 10 meters of
the residence; six months consecutive
for the assault on the third victim; one
month concurrent for possessing the
weapon. Credited with 20 months time
served, so the sentence effectively totals
six and a half years, leaving 58 months
to serve. Recommended that the
sentence be served at the River Ridge
facility. DNA orders and an order
under the Sex Offender Information
Registration Act. Lifetime firearms
prohibition. Waived the victim of crime
surcharge.
CASES CITED
R v. Mitchell, 2005 NLTD 80 (CanLII)
R v. Harris, 2004 MBPC 4738 (CanLII
R. v. Rusk, 2006 ABPC 365 (CanLII)
R v. Major, (1996) 48 C.R. 296
R. v. Raddi, 2001 NWTSC 50
+21 more
R v. Omilgoituk
2010 NWTSC 08
Presiding: Justice D. M. Cooper
For the Crown: J. Walsh
For the Accused: T. Boyd
Accused charged with two counts of
having endangered the lives of his twin
children, and one count of assault
against his spouse by uttering threats.
The twin children were born in June of
2008; in October, the female baby was
admitted to hospital with pneumonia
and found to have four fractured ribs
and a fractured ulna. The male baby
was examined and found to be suffering
from four fractures of his ribs and
corner fractures to both femurs. The
injuries had been inflicted over a period
of weeks, and were life threatening.
The mother had been repeatedly
assaulted by the accused during her
pregnancy, and testified to his assaults
of the children. The accused gave an
inculpatory warned statement.
A pre-sentence report was prepared.
The accused is 27 years old, with a
grade 10 education. He had a very
difficult childhood and was beaten by
his alcoholic father. He was adopted at
a young age and by 8 years of age was
consuming alcohol and abusing
solvents. At the time of the offences he
was smoking marijuana in large
quantities. He had a youth criminal
record, but no adult record. The presentence
report was not favourable,
indicating that the accused was highly
manipulative and his remorse was
likely more that he had been caught
than sincere remorse about the effects of
his actions on his spouse and children.
"It is truly difficult to comprehend how
someone who has brought infant
children into the world can be so
callous, selfish, and immoral as to
deliberately injure them to the point
that their lives were in jeopardy and go
so far as to place one of them in a
refrigerator." (at p. 10, line 12).
There are three categories of offenders
in child abuse cases: (1) the application
of force with the expectation of causing
injury or indifference to it; (2) the
application of force where the parent
was immature and unskilled and acting
out of emotional upset, frustration, or
temper and did not fully appreciate that
serious injuries might result; and (3)
diminished responsibility through
mental disorder where the abnormal
mental condition of the accused
requires that his treatment be given
priority over the principles of general
and individual deterrence. "[The fact
that] he is not the most serious offender
… is most likely more the result of good
luck than any restraint on his part." (at
page 13, line 6).
Sentence: On count 1, 30 months in jail,
an additional 30 months concurrent on
count 2, and 6 months on count 3.
Credit of 20 months for pre-trial
custody; DNA order, mandatory
firearms prohibition for ten years. No
victim of crime surcharge.
CASES CITED
R. v. Evans [1996] A.J. No. 233 (Alta Prov. Ct.)
R. v. Weiler, [1991] P.E.I.J. No. 80 (P.E.I. S.C.)
R. v. T.J.V., [2000] N.W.T.J. No. 51 (N.W.T. S.C.)
R. v. Klotz, [2004] B.C.J. No. 3033 (B.C.S.C.)
R. v. M.J.S. [2006] A.J. No. 928 (Alta. C.A.)
R. v. A.N.C. [2006] CanLII 26163 (Ont. S.C.)
R. v. M.A.F., [2007] N.B.Q.B. 407 (N.B.Q.B.)
R. v. MacDonald, [2009] M.J. No. 96 (Man.C.A.)
R v. Dahlberg
2010 NWTSC 13
Presiding: Justice J. Z. Vertes
For the Crown: S. Smallwood
For the Accused: T. Boyd
The accused was charged with two
counts, aggravated assault and assault
causing bodily harm. The victim is the
accused's son who was five and a half
months old at the time of the incident.
The learned Justice found the accused
guilty of aggravated assault on the facts,
and entered a judicial stay on the
second count. Sentencing adjourned.

MARCH 2010 | 11
NWT LEGISLATIVE NEWS
by Mark Aitken, Director of Legislation Division, GNWT Justice
NOTE: THE NWT LEGISLATIVE NEWS IS
NOT A COMPREHENSIVE REPORT OF
LEGISLATIVE ENACTMENTS. ONLY
ITEMS CONSIDERED TO BE OF
INTEREST TO THE BAR ARE LISTED.
EMPLOYMENT STANDARDS ACT
The Employment Standards Regulations,
were amended by regulations made
on February 25, 2010 and registered as
R-012-2010, to increase the minimum
wage from $8.25 to $9.00 per hour
effective April 1, 2010, and to provide
for a further increase to $10.00 per
hour effective April 1, 2011.
EXEMPTIONS ACT
Bill 10, entitled the Exemptions Act and
replacing the existing Exemptions Act,
received Assent on February 26,
2010. The categories of property that
are exempt from seizure under a writ
of execution are updated and
expanded to include types of property
essential for subsistence of the debtor
and his or her dependants.
Transitional matters are provided for,
and the Public Service Garnishee Act is
consequentially amended. The new
Act has not yet been brought into
force.
MEDICAL PROFESSION ACT
Bill 3, entitled the Medical Profession
Act and replacing the existing Medical
Profession Act, received Assent on
February 26, 2010.
The new Act,
which modernizes the processes for
the registration and discipline of
medical practitioners in the
Northwest Territories, provides for
transitional matters and makes
consequential amendments to the
Ophthalmic Medical Assistants Act and
the Pharmacy Act, comes into force on
April 6, 2010 by virtue of a
commencement order registered as SI-
001-2010 on March 22, 2010. Note also
that new Medical Profession Regulations
replacing the Medical Profession
Regulations, R.R.N.W.T. 1990, c.M-5, ,
were made on March 22, 2010 and
registered as R-021-2010. The new
regulations also come into force on
April 6, 2010.
PUBLIC TRUSTEE ACT
The Public Trustee Fees Regulations,
were amended by regulations made
on February 22, 2010 and registered as
R-010-2010, to establish fees payable
to the Public Trustee in respect of
services relating to the administration
of the affairs of a person under a
power of attorney.
SUMMARY CONVICTIONS
PROCEDURES ACT
Bill 7, amending the Summary
Conviction Procedures Act, received
Assent and came into force on
February 26, 2010.
The amendments
provide that a justice may enter a
conviction and impose the specified
penalty where a person who has been
summonsed to appear before the
justice by way of ticket fails to either
pay the specified penalty or to appear
as summonsed.
The maximum fine
for failing to appear before a justice as
required is increased, and formalities
relating to informations are
clarified. Minor amendments are also
made to ensure consistency of
terminology.
Note also that related
regulations amending the Plea of
Guilty Form in the Summary
Conviction Procedures Regulations, also
coming into force on February 26,
2010, were made on on February 26,
2010 and registered as R-015-2010.
WORKERS’ COMPENSATION ACT
Bill 11, amending the Workers’
Compensation Act, received Assent and
came into force on February 26,
2010. The amendments broaden the
presumption that certain types of
diseases are out of a fire fighter's
employment, and adjust the
requirements limiting the maximum
period of service on the Governance
Council.
IT’S ALL ONLINE!
Find Certified Bills, Consolidations of
Acts, Regulations and Court Rules, and
the Northwest Territories Gazette at the
GNWT website:
http://www.justice.gov.nt.ca/
Legislation/SearchLeg&Reg.shtml

12 | ARCTIC OBITER
S.C.C. UPDATE
HERE IS A SUMMARY OF ALL APPEALS AND ALL LEAVES TO APPEAL (ONES GRANTED – SO YOU KNOW
WHAT AREAS OF LAW THE S.C.C. WILL SOON BE DEALING WITH IN CASE ANY MAY BE AN AREA OF
LAW YOU’RE LITIGATING/ADVISING/MANAGING). FOR LEAVES, I’VE SPECIFICALLY ADDED IN BOTH
THE DATE THE S.C.C. GRANTED LEAVE AND THE DATE OF THE C.A. JUDGMENT BELOW, IN CASE YOU
WANT TO TRACK AND CHECK OUT THE C.A. JUDGMENT.
APPEAL JUDGMENTS
CRIMINAL LAW: EXCLUSION OF
EVIDENCE
R. v. Beaulieu (Que. C.A., April 27, 2009) (33181)
2010 SCC 07 (LexUM) | February 25, 2010
RCMP officers obtained a warrant
authorizing them to intercept the
accused's private communications, and
while installing listening devices in his
car, found a hidden compartment
containing a leather case with a loaded
firearm. The evidence was included. As
Justice Charron wrote (at p. 5) “…a
*loaded+ gun is reliable evidence”.
CRIMINAL LAW: S.24 (1);
SENTENCING; STATUTORY
MINIMUMS
R. v. Nasogaluak (Alta. C.A., November 14, 2007)
(32423)
2010 SCC 06 (LexUM) | February 19, 2010
The S.C.C. held:
where state misconduct relates to the
offence or the offender, the
sentencing judge may properly take
relevant facts into account in crafting
a fit sentence, without having to
resort to s. 24(1)
state misconduct which does not
amount to a Charter breach but which
impacts the offender may also be a
relevant factor in crafting a fit
sentence
where state misconduct does not
relate to the offence or the offender,
however, the accused must seek his
or her remedy in another forum
a sentence reduction outside
statutory limits does not generally
constitute an "appropriate" remedy
within the meaning of s. 24(1)
the possibility is not foreclosed that
in some exceptional cases, a sentence
reduction outside statutory limits
may be the sole effective remedy for
some particularly egregious form of
misconduct by state agents.
CRIMINAL LAW: CHILD PORN;
SEARCH WARRANT
R. v. Morelli (Sask. C.A., May 15, 2008) (32741)
2010 SCC 08 (LexUM) | March 19, 2010
A search warrant based on information
originating with a computer technician
(and also containing information
obtained by police about child
pornography generally) who arrived
unannounced at an accused’s house to
install a high-speed internet connection
is contrary to s. 8 or the Charter. The
accused lived with his wife and two
children, aged 3 and 7, but was alone
that particular day with his younger
daughter. When the technician opened
the accused's web browser, he noticed
several links to both adult and child
pornography sites in the taskbar's
"favourites" list, including two that were
labelled "Lolita Porn" and "Lolita XXX".
He also saw a pornographic image, but
he could not remember afterwards if it
was on the browser's home page or on
the computer desktop. In the room, he
noticed home videos and, on a tripod, a
webcam that was connected to a
videotape recorder and pointed at the
toys and at the child. Unable to finish
his work on that day, the technician
returned the following morning and
noted that everything had been "cleaned
up": the child's toys had been placed in a
box, the videotapes could no longer be
seen, the webcam was pointed at the
computer user's chair and the computer
hard drive had been "formatted”.
Convicted at trial, convicted by C.A.,
acquitted by the S.C.C.
TORTS 101
Fullowka v. Pinkerton's of Canada Ltd. (NWT C.A.,
May 22, 2008) (32735)
2010 SCC 05 (LexUM) | February 18, 2010
During a strike at a mine, the mine
owner decided to continue operating the
mine with replacement workers. The
strike degenerated into violence, there
were attacks on private security guards
who were unable to control the
situation, and the mine owner turned to
Pinkertons for security services who had
at one point 52 guards on site. Mr.
Warren evaded security, entered the
mine, and while underground, planted
an explosive device which killed nine
miners. Mr. O’Neill was among the first
on the scene and discovered
dismembered bodies, including a close
friend. The S.C.C. held:
the security firm and government
owed a duty of care, but had not
breached that duty

MARCH 2010 | 13
NOTICES
The Supreme Court of the Northwest Territories
Court of Appeal of the Northwest Territories
SCHEDULING NOTICE
TO MEMBERS OF THE BAR
PLEASE TAKE NOTICE THAT THE NEXT SUPREME COURT
GENERAL CRIMINAL LIST WILL BE CALLED ON:
Wednesday, May 19 th 2010 at 14:00 hrs
NOTE:
AT YELLOWKNIFE NT
IN COURTROOM #1
1. All Counsel (Crown & Defence) with pending matters are to attend the
Calling of the List, either personally or by agent.
2. For those pending matters in which the Accused person has elected trial
by Judge and Jury, counsel (both Crown & Defence) are to advise the
presiding Judge at the time of, or prior to, the Calling of the List whether
the matter will indeed be proceeding as a contested Jury Trial and, if so,
the estimated duration of the Jury Trial.
3. For those with Summary Conviction Appeals, please be reminded of
Rule 117 of the Criminal Rules of the NWT.
NOTICE TO MEMBERS OF THE BAR
PLEASE TAKE NOTICE THAT THE LIST OF CASES PENDING AND THE
GENERAL APPEAL LIST WILL BE CALLED BY A JUDGE IN CHAMBERS ON
Wednesday, May 19th, 2010 at 1500 hrs
at Yellowknife NT
IN COURTROOM #1
for the Court of Appeal Assize commencing
June 15th, 2010
COUNSEL ARE REMINDED OF THE FOLLOWING NEW FILING
DEADLINES FOR APPEALS FILED AFTER MARCH 1, 2006:
CIVIL APPEALS and CRIMINAL APPEALS
a) Appeal books must be filed not later than 12 weeks from the date on
which the notice of appeal was filed.
b) Appellant’s Factums must be filed within 60 days of filing of the appeal
book or within 7 months of the notice of appeal whichever date is
earliest.
c) Respondent’s factum must be filed within 30 days of being served the
appellant’s factum.
d) Only those appeals that have been perfected as at May 19th, 2010 will
be set for hearing at the June 15th, 2010 assize.
the trial judge's findings of liability
against the union cannot be
sustained
the claims of Mr. O'Neil should have
been dismissed
Pinkerton's and the government did
owe a duty of care to the murdered
miners to take reasonable steps to
prevent Mr. Warren's intentional
wrongful act, but did not breach that
duty.
LEAVES TO APPEAL
GRANTED
ABORIGINAL LAW: MÉTIS
Her Majesty the Queen in Right of Alberta (Minister
of Aboriginal Affairs and Northern Development) and
the Registrar, Métis Settlements Land Registry v.
Barbara Cunningham, et al. (Alta. C.A., June 26,
2009) (33340) March 11, 2010
Is the Alberta Métis Settlements Act
unconstitutional by prohibiting
individuals with Indian status obtaining
Métis settlement membership.
CRIMINAL LAW: DELAY
John Schertzer, Steven Correia, Joseph Miched,
Nebojsa Maodus and Raymond Pollard v. Her
Majesty the Queen (Ont. C.A., October 28, 2009)
(33519) March 11, 2010
Members of the Toronto Police Force
were charged in January 2004 with a
series of offences, including attempt to
obstruct justice.
On consent of the
parties, the suggested target trial date
was January 2008.
By the end of
December 2007, it became clear the pretrial
motions would not be completed in
time to start the trial on that date, and
the trial was rescheduled.
Is this a
constitutionally impermissible delay.
Eugene Meehan, Q.C., is a Litigation Partner
at Lang Michener, Ottawa. His primary area
of work is with the Supreme Court of Canada,
mainly assisting other lawyers in taking cases
(both Leave to Appeal and Appeal). He also
does Public Law generally. For previous
summaries, and to keep up-to-date with all
SCC appeals and leave to appeals, contact
Eugene at emeehan@langmichener.ca.

14 | ARCTIC OBITER
NOTE: REGISTRATION FEES MAY APPLY.
ARBITRATION 101:
FAMILY STATUS
APRIL 13, 2010 | 12:00 pm
Champagne Room, Yellowknife
The scope of “Family Status” as an
enumerated ground of discrimination
is yet to be clearly defined in the NWT
and in many other Canadian
jurisdictions. Join Alberta Arbitrator
Allen Ponak for a presentation on this
emerging ground of discrimination,
with a special focus on the aspect of
parental obligations.
MENTAL HEALTH ISSUES AND
THE CRIMINAL JUSTICE SYSTEM
APRIL 14, 2010 | 12:00 pm
Champagne Room, Yellowknife
In criminal law, a "guilty" or "not
guilty" plea or verdict is not always
achievable. In the pursuit of a fair
trial, it is often vital to assess the
mental competency and abilities of the
UPCOMING EVENTS
purpetrator and, in some cases, the
victim.
Join the Hon. Judge Christine Gagnon
of the Territorial Court as she
discusses the essentials all criminal
lawyers should know when
considering the mental stability and
well-being of all those involved. Judge
Gagnon will address particularities
that arise when dealing with an
accused with potential mental
illnesses, including assessments to
determine fitness to stand trial or be
held criminally responsible, and the
associated ethical challenges for
lawyers.
DEALING WITH DIFFICULT
CLIENTS
APRIL 21, 2010 | 12:00 pm
Location TBA
Check the weekly bulletin or online
calendar for more details.
MEETINGS
PUBLIC SECTOR LAWYERS
FORUM
APRIL 8, 2010 - 12:00pm
Law Society Boardroom
FAMILY LAW SECTION
APRIL 9, 2010 - 12:00pm
Law Society Boardroom
LEGAL ETHICS & PRACTICE
COMMITTEE
APRIL 20, 2010 - 12:00pm
Law Society Boardroom
STAY CURRENT
Find events on the Law Society website:
www.lawsociety.nt.ca/
membership/calendar.html

MARCH 2010 | 15
RESOURCES
The Law Society
of the NWT and
the
B r a n c h
Law Firm Lessons of the Great
Recession
The Rise of Client Collaboration
A Little Something in Writing to
Remember It By
Find it all here:
www.cba.org/PracticeLink
CBA—NWT
h a v e
partnered with Human Solutions to offer
our members free, private and
confidential professional counseling and
consultation for the resolution of personal
issues or work related difficulties.
This service is available 24 hours a day, 7
days a week. Call any time.
1-800-663-1142
WHAT’S NEW ON
CBA PRACTICELINK
Practice Advisors
The Practice Advisors from the
Law Society of Alberta are
available to discuss legal, ethical and
practice concerns, and personal matters
such as stress and addiction. Members
are invited to contact the Practice
Advisors at any time:
Ross McLeod (Edmonton)
Tel:
780-412-2301 or
1-800-661-2135
Fax: 780-424-1620
ross.mcleod@lawsocietyalberta.com
Nancy Carruthers (Calgary)
Tel:
403-229-4714 or
1-866-440-4640
Fax: 403-228-1728
nancy.carruthers@lawsocietyalberta.com
The Canadian Legal Information Institute
Making Canadian law accessible for
free on the internet.
www.canlii.org
Mentor Program
Members from Northwest
Territories and Nunavut are
invited to call the office of the Practice
Advisor and ask for the Mentor Program.
Please be advised that not all of the
mentors may be totally familiar with NT
statutes and practice. There is no cost.
1-888-272-8839
The Legal Profession
Assistance Conference (LPAC) of the
Canadian Bar Assocation is dedicated to
helping lawyers, judges, law students and
their families with personal, emotional,
health and lifestyle issues through a
network of Lawyer Assistance Programs,
a national 24-hour helpline and Provincial
Programs. If you need assistance, please
call the helpline or visit their website.
1-800-667-5722
www.lpac.ca

THE LAWYER REFERRAL SERVICE
A SIMPLE, FREE WAY
TO CONNECT YOU WITH THE PUBLIC
The Lawyer Referral Service pairs the public with
lawyers, improving the public’s access to proper legal
advice and representation and access to justice.
Call it free advertising. Call it a public service.
Whatever you call it, it works.
With an average of 5 requests a day, the Service
proves people are looking for legal advice.
Add your name to the Lawyer Referral Service today.
Help yourself and the public.
IT’S AS EASY AS 1, 2, 3!
Visit lawsociety.nt.ca today.
This Service is available to the public via web and telephone. The complete list of lawyers who have volunteered for the Service is available on the Law
Society website (www.lawsociety.nt.ca) and is organized by practice area. By telephone, callers with access to the internet are first referred to the complete
list online, and then referred to three lawyers chosen randomly from the same lists. There is no fee for the public or for lawyers to use this Service.