ARCTIC OBITER

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22 | <strong>ARCTIC</strong> <strong>OBITER</strong> The appeal would fail even if an extension was granted. TERRITORIAL COURT CRIMINAL LAW – CHARTER OF RIGHTS AND FREEDOMS – INVESTIGATIVE DETENTION – RIGHT TO COUNSEL – EXCLUSION OF EVIDENCE R v Carter 2012 NWTTC 3 (CanLII) | March 1, 2012 Presiding: Judge G. Malakoe For the Crown: M. Johnson For the Accused: R. Gregory A police officer attended a single vehicle accident and the accused identified himself as the driver. Nothing about the accused’s behaviour indicated impairment, except that his voice was raspy and there was some slurring in his words. The officer put the accused in the back of the police vehicle, indicating that he was investigating “an impaired”. Through questioning the officer determined the accused had been operating a motor vehicle and within the past three hours had consumed alcohol. The officer then made an ASD demand and the accused blew a “fail”. The officer then gave a breath demand, advised the accused he was detained for impaired operation of a motor vehicle, and read him his right to counsel. Application to exclude the breath samples dismissed - The accused was detained when seated in the back of the police vehicle. The information then obtained was significant, and as a result of the answers from the accused, the officer felt he had grounds for the ASD demand. The Crown conceded this was a s.10(b) violation but argued the evidence should not be excluded. Although the police conduct was serious, it was not deliberate. The officer believed he was not detaining the accused. The fact that the officer communicated the right to silence to the accused and the fact that the detention was brief and for purposes of obtaining grounds for the ASD demand lessened the impact of the of the breach. Over 80 is a serious offence and it is accepted t h a t r o a d s i d e s c r e e n i n g a n d breathalyzers are the main tools in the investigation and proof of these types of offences. The accused has not established the admission of the statements, and consequently the breath tests would bring the administration of justice into disrepute. CRIMINAL LAW – DEFENCES – SELF- DEFENCE R v Eyakfwo 2012 NWTTC 4 (CanLII) | March 15, 2012 Presiding: Judge B.E. Schmaltz For the Crown: M. Lecorre For the Accused: J. Bran The accused struck the victim in the face with a crowbar, wounding him. The only issue at trial was the applicability of self-defence. The accused testified that there had been a series of conflicts between him and the victim that evening. The accused picked up a crowbar because he was afraid the victim might be waiting for him around a corner. The accused was then carrying the crowbar as he was walking in the dark, and when he went around a corner he saw the victim kneeling down with his arms extended towards the accused. The accused testified he thought the victim was going to “take me down”, “attack me”, “hurt me”, and so he swung the crowbar at the victim, hitting him in the jaw. Accused convicted of aggravated assault - While the accused was scared of the victim at some point that evening, and may have even been scared of the victim at the point that he hit him with the crowbar, the self-defence provisions of the Criminal Code did not apply because there was intent to cause grievous bodily harm and the accused could not have reasonably believed he was going to be killed or seriously hurt. The accused’s response was completely disproportionate to the situation. Maureen McGuire is an Appellate Counsel with Alberta Justice. She is a member of the Bar in the NWT, Ontario, and Alberta. Any comments or questions regarding case digests would be welcomed at her email address, Maureen.McGuire@gov.ab.ca. CBA-BC INVITES NORTHERN MEMBERS TO JOIN SECTIONS The British Columbia Branch of the CBA welcomes CBA members in the Northwest Territories to their Sections. Information on the 72 available sections, including the Women Lawyers Forum, is available on the CBA-BC website: cba.org/bc
MARCH/APRIL 2012 | 23 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. APPEALS ADMINISTRATIVE LAW: DISCIPLINE; CHARTER & JUDICIAL REVIEW Doré v. Barreau du Québec (Jan. 13, 2010) (33594) 2012 SCC 12 (CanLII) | March 22, 2012 A lawyer who wrote an intemperate and critical letter to a judge (himself reprimanded by the Canadian Judicial Council) was suspended for 21 days, and the Code of Ethics upheld as constitutional. ADMINISTRATIVE LAW: ROLE OF TRIBUNALS V. ROLE OF COURTS; STANDARD OF REVIEW; LANGUAGE RIGHTS; SCHOOL FUNDING Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) (N.S.C.A., Feb. 11, 2010, heard on Oct. 19, 2011) (33651) 2012 SCC 10 (CanLII) | March 16, 2012 When a Human Rights Commission appoints a board of inquiry, a reviewing court should intervene only if there is no reasonable basis in law or evidence to support the decision, and their discretionary decision should be r e v i e w e d o n a s t a n d a r d o f reasonableness. CHARTER: FREEDOM OF CONSCIENCE AND RELIGION S.L. v. Commission scolaire des Chênes (Que. C.A., Feb. 24, 2010) (33678) 2012 SCC 7 (CanLII) | February 17, 2012 A mandatory Ethics and Religious Culture course in Quebec schools is not a breach of freedom of conscience and religion. CIVIL PROCEDURE: FORUM SELECTION CLAUSES Momentous.ca Corp. v. Canadian American Association of Professional Baseball Ltd. (Ont. C.A., Oct. 29, 2010) (33999) 2012 SCC 9 (CanLII) | March 15, 2012 When another forum (arbitration panel, tribunal, other court) has exclusive jurisdiction to deal with a claim, a motion can be brought (here, Ontario) to dismiss (granted, upheld on appeal). CRIMINAL LAW: LONG-TERM SUPERVISION ORDERS; LONG- TERM OFFENDERS; ABORIGINAL OFFENDERS R. v. Ipeelee (Ont. C.A., Dec. 15, 2009) (33650) R. v. Ladue (B.C.C.A., Mar. 8, 2011) (34245) 2012 SCC 13 (CanLII) | March 23, 2012 Courts must take into account an aboriginal offender’s background for sentencing purposes, and counsel have a duty to bring that individualized information forward unless expressly waived. CRIMINAL LAW: WARRANTLESS WIRETAPS R. v. Tse (B.C.S.C., Feb. 22, 2008) (33751) 2012 SCC 16 (CanLII) | April 13, 2012 Section 184.4 of the Criminal Code was declared unconstitutional, primarily because of lack of accountability. Judgment suspended for 1 year for Parliament to act. CONSUMER PROTECTION IN QUEBEC: “HONEY, WE JUST WON A VACUUM CLEANER (AND PUNITIVE DAMAGES)” Richard v. Time Inc. (Que. C.A., December 10, 2009) (33554) 2012 SCC 8 (CanLII) | February 28, 2012 A mass mail-out contravened Quebec’s p r o h i b i t e d b u s i n e s s p r a c t i c e s legislation, resulting in $1,000 compensatory damages and $15,000 punitives. TAX: RESIDENCY OF TRUSTS (FOR TAX PURPOSES) Fundy Settlement v. Canada (Fed. C.A., Nov. 17, 2010) (34056, 34057) 2012 SCC 14 (CanLII) | April 12, 2012 A trust is resident where its real business is carried on, which is where the central management and control of
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