ARCTIC OBITER

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16 | <strong>ARCTIC</strong> <strong>OBITER</strong> NWT DECISION DIGEST by Maureen McGuire, Appellate Counsel, Alberta Justice COURT OF APPEAL CIVIL PROCEDURE - APPLICATION TO STRIKE REPLY – AMENDMENT OF STATEMENT OF CLAIM Bell Mobility v Anderson 2012 NWTCA 4 (CanLII) | February 14, 2012 Presiding: Justice J.E. Côté Justice C. Hunt Justice F.F. Slatter For the Appellants: R.J.C. Deane, B.W. Dixon For the Respondents: K.M. Landy, S.S. Marr The respondents are plaintiffs in a class action against the appellant, Bell Mobility. Their statement of claim alleged that Bell was unjustly enriched as a result of charging for 911 services not provided. In its statement of defence, Bell responded that it had incurred expenses setting up the physical potential for 911 services. The plaintiffs then filed a reply, stating that the 911 fees vastly exceeded those expenses. Bell brought an application to strike the reply on the basis that it was raising a new claim. The application was dismissed (2011 NWTSC 40) on the basis that unjust enrichment remained the cause of action. Bell appealed. Appeal allowed – While both the statement of claim and reply speak of unjust enrichment, the two claims are different and intended as alternatives. While amendment may be a remedy to striking out, amendement was not permitted here as the new claim in the reply disclosed no reasonable cause of action. CRIMINAL LAW – EVIDENCE – CONFESSIONS – CHARTER OF RIGHTS AND FREEDOMS - RIGHT TO COUNSEL – EXCLUSION OF EVIDENCE R v KWJ 2012 NWTCA 3 (CanLII) | February 15, 2012 Presiding: Justice P.W.L. Martin Justice P.A. Rowbotham Justice B.K. O’Ferrall For the Appellant: M. Lecorre, For the Respondent: B. Berish, QC The respondent was arrested and read his rights before being transported to the nearest RCMP station. At the station he was provided a list of lawyers, but said he didn’t know any of them so the list was of no use to him. He asked to call his wife and was told by police he could call her later. He then briefly spoke with a Legal Aid lawyer by phone. He was then was interviewed and gave an inculpatory statement. The trial judge found a violation of the right to counsel and excluded the statement, leading to an acquittal. The Crown appealed. Appeal allowed – The trial judge’s finding that the police ought to have known the accused wanted to call his wife in order to obtain her assistance to contact counsel was unreasonable. Unless a detainee explains why he wishes to contact a third party, neither the police, nor the court, should assume the underlying purpose is to facilitate access to counsel. Even if there was a THE DECISIONS IN THIS DIGEST ARE LINKED TO THE ARCHIVED DECISIONS ON CANLII. ALTERNATIVELY, THESE DECISIONS ARE FREELY AVAILABLE AT THE GNWT DEPARTMENT OF JUSTICE WEBSITE: http://www.justice.gov.nt.ca/ Charter violation, the trial judge erred in excluding the statement on the basis of a “Collins-Stillman approach”. The trial judge’s application of the incorrect legal test for the exclusion of evidence warranted a new trial. CIVIL PROCEDURE – DISMISSAL FOR WANT OF PROSECUTION – CONSIDERATION OF SETTLEMENT DISCUSSIONS Kell v Senych (Estate) 2012 NWTCA 5 (CanLII) | March 8, 2012 Presiding: Justice Fruman Justice R.S. Veale Justice K.G. Ritter For the Appellant: self-represented For the Respondent (Senych): E. Keenan Bengts For the Respondent (NWTHC): S. Toner The appellant commenced an action in March 1996, claiming she had been unlawfully ejected from her residence in 1995. She filed an amended statement of claim in July 1998. Statements of defence were filed by the respondents in 1998. Correspondence regarding settlement was exchanged between January and June 1999. The appellant rejected an offer in May 2002. In June 2003, the respondents applied to dismiss the claim for want of prosecution. The application was granted. Appeal dismissed – The chambers judge applied the three part test: 1) has there been any inordinate delay? 2) is the delay inexcusable? 3) is the defendant likely to be seriously prejudiced by the delay? There was no evidence to explain why it took so long to realize that further settlement discussions were fruitless, or to suggest that anyone had an expectation at any time that
MARCH/APRIL 2012 | 17 settlement was imminent or likely. There was no error in the chambers judge’s decision. CRIMINAL PROCEDURE – JURY SELECTION – CHALLENGE FOR CAUSE PROCEDURE – INTERCEPTION OF PRIVATE COMMUNICATIONS – BAD CHARACTER EVIDENCE R v Bulatci 2012 NWTCA 6 (CanLII) | April 13, 2012 Presiding: Justice J.E. Côté Justice C. Hunt Justice F.F. Slatter For the Appellant: C.B. Davison For the Respondent: C. Greenwood, G. Boyd The appellant was convicted of first degree murder of a RCMP constable. A challenge for cause based on pretrial publicity was permitted and each potential juror was asked five or six questions. The fifth question asked if the potential juror had formed any opinion about the guilt or innocence of the accused. If the answer was yes, the potential juror was asked if he or she could set that opinion aside and decide the case based on the evidence. response was limited to yes or no. The At trial, the Crown adduced evidence of communications between the appellant and his family in a secure visiting room at the correctional centre. The wiretap authorization did not specify a detention facility in the places where interceptions could be intercepted. The trial judge held the interception was authorized by the “used or resorted to” provision, and in any event the interceptions should not be excluded under s. 24(2) of the Charter even if there was a breach. The Crown tendered interceptions of the appellant encouraging others to engage in witness tampering. The Crown conceded the evidence was not probative of intent for murder, but argued it was relevant to assessing the credibility of the appellant, who had indicated he would testify at trial. The trial judge ruled the statements admissible, and gave a robust charge to the jury on the use that could be made of the evidence. Appeal dismissed – The trial judge has wide discretion to supervise a challenge for cause process and his ruling was reasonable. A residual “used or resorted to” provision in a wiretap authorization is valid. While it is desirable to specifically mention in the authorization any places interception is intended, the failure to specifically list all locations a target may reasonably and probably resort does not make those interceptions unauthorized. The mischief to be guarded against is permitting the police to intercept communications randomly, without reasonable and probable grounds, and without prior judicial screening. The trial judge did not err in admitting the conversations. The credibility of the appellant at trial was critical. Evidence about the character and trustworthiness of the appellant was therefore of importance to the jury, and the evidence of witness tampering was admissible on The Canadian Legal Information Institute Making Canadian law accessible for free on the internet. www.canlii.org the issue of credibility. An accused cannot expect to be able to testify and not have any negative aspects of his character brought up. It was not an error for the trial judge to rule the probative value of this evidence outweighed its prejudicial effect. Hunt JA (concurring): The interception of communications in the detention facility breached s. 8 of the Charter, but the evidence was admissible under s. 24 (2). SUPREME COURT EVIDENCE – HEARSAY EXCEPTIONS – RES GESTAE – PRINCIPLED EXCEPTION R v Courouble 2012 NWTSC 8 (CanLII) | January 12, 2012 Presiding: Justice L. Charbonneau For the Crown: A. Godfrey, B. MacPherson For the Accused: T. Boyd In a sexual assault trial, the Crown sought to adduce evidence of an utterance made by the complainant and overheard by her son. The son had been sleeping and awoke to hear a smacking noise and his mother saying “Stop. You are not doing that.” Upon hearing that, the son went to the living room and found the accused on top of his mother. The complainant had testified that she was intoxicated and had no memory of anything prior to her son pulling the accused off of her. Application granted – The utterance was alleged to have been made at the time of the incident, at a time where the complainant would not have even known that it might be overheard. It was also made close to the time that she was struck. This makes it as
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