Sharon Fox

1.         Darla Marie McWilliams  is charged that on or about August 17, 2015, at or near Regina, she did without reasonable excuse, fail or refuse to comply with a demand made to her  by a peace officer pursuant to section 254(2) of the Criminal Code, to provide a sample of her breath to enable analysis to be made by means of an Approved Screening Device contrary to section 254(5) of the Criminal Code.

 


2.         The defence takes the position that the Approved Screening Device (ASD) demand was not made forthwith.   As a result the defence maintains there was no obligation on Ms. McWilliams  to comply with an unlawful ASD demand and hence there is no basis for a refusal charge.  The defence also submits that since the ASD demand was not lawful then:

 

 (1) the detention of Ms. McWilliams, necessary to obtain the breath sample, was arbitrary and violates section 9 of the Charter of Rights and Freedoms (Charter): and

 

(2) Ms. McWilliam’s rights under section 10(b) of the Charter are not suspended during the period of her detention and attempts to obtain samples of her breath without informing Ms. McWilliams of, and implementing, the right to counsel violates section 10(b) of the Charter. 

3.         Finally submits that the police detained Ms. McWilliams and violated her rights under section 10(a) of the Charter.

 

4.         As a result, the defence takes the position that any refusal evidence should not be admitted into evidence at trial.

 

5.         At the onset of the trial, the Court entered into a voir dire in order to determine whether the refusal evidence should be entered into evidence.  There were four witnesses: Kendall Abstreiter, Constables Eric Justason,  Chris Ramponi  and Curtis Warner.  At the conclusion of the Charter voir dire counsel for the Crown and for Ms. McWilliams  indicated no further evidence would be called at the trial, regardless of my ruling on the Charter issues.  Counsel also agreed that any admissible evidence from the voir dire could be applied to the trial.

 

6.         In this case I determined that the Crown did not prove the lawfulness of the Approved Screening Device.  Ms. McWilliams was not obliged to comply with an unlawful demand.   During the Charter voir dire I have determined that there was a breach of the accused’s section 9 and 10 (a) and (b) Charter rights.  I embarked upon the section 24(2) analysis set out by the Supreme Court of Canada in R v Grant, 2009 SCC 32, [2009] SCJ No 32, and found that refusal evidence should not be admitted into evidence at the trial.  As a result I found the accused not guilty of the offence before the Court.

Business associations --- Specific matters of corporate organization — Shareholders — Shareholders' remedies — Relief from oppression — Orders for relief — Interim orders

Four groups of shareholders, headed by H, W, N, and E, each owned 25 per cent of eight operating companies, seven of which operated hotels while eighth operated restaurant and bar — H and W investigated when they stopped receiving financial information and payments — H and W alleged N, E, and corporations associated with them received interest-free loans and management fees from companies without authorization — H and W brought application against N, E, companies, and corporations for relief from oppression, and various interim relief was obtained on consent — Application adjourned on terms — Trial of issues was ordered to deal with extent of oppression and range of remedies, with status quo being maintained until then — Some behaviour, such as interest-free loans, amounted to, at very least, unfair disregard of interests represented by H and W — Furthermore, building hotel that operated in competition with hotels owned by companies was clearly course of conduct that unfairly prejudiced interests represented by H and W — Issue of compensation for interest-free loans required trial of issue — It was less clear whether other impugned acts constituted oppression, including as result of evidence about reasonable expectations being contradictory — Appointment of replacement manager on interim basis was risky option, particularly when many allegations had not been proven.

Criminal law --- Offences — Sexual assault — General offence — Sentencing — Adult offenders — Juvenile complainant where breach of trust

Accused committed series of sexual assaults on his daughter over period of three years, when she was between 14 and 16 years of age — Accused fondled his daughter's breasts and vagina, penetrated daughter digitally and masturbated after assaults — Accused was sentenced to three years' imprisonment — Accused appealed his conviction on basis that trial judge erred in law by admitting into evidence diary that he had kept on cruise with complainant, and Crown appealed three-year sentence on basis that it should be increased to five years' imprisonment — Conviction appeal dismissed; sentence appeal allowed — Penile penetration was not essential or necessary feature of major sexual assault — It was neither wise or necessary to establish formal and specific starting point sentence for sexual offences against children — Trial judge made errors of principle in sentencing decision — Assault of complainant was crime of violence and failure to see it in those terms led trial judge to misappreciate significance of what accused had done — Trial judge misinterpreted case law to stand for much more than it did in scheme of principles underpinning Saskatchewan sentencing law and apparently understood it as meaning that starting point sentence for major sexual assault against child is three years — Gravity of offence committed by accused was very high and accused took disturbing steps to record and document his sexual interest in his daughter — Accused had high level of personal responsibility for offence in issue and nothing to blunt his level of responsibility — Fact that victim of sexual assault was child was to be considered aggravating factor in sentencing and fact that offender is parent was even more serious — Fit sentence was four-year prison term.

Held: The conviction appeal was dismissed; the sentence appeal was allowed.

Per Richards C.J.S. (Herauf, Whitmore, and Ryan-Froslie JJ.A. concurring): The diary was properly admitted into evidence. The diary contents, insofar as they described the accused's sexual touching of the complainant, engaged the similar fact rule. There was a high level of interconnectedness between the similar facts and the actus reus of offence. The similar facts occurred during the cruise which was immediately following the end date of the time period described in the indictment. The similar facts closely paralleled those comprising the charged conduct, and the contact described in the diary was consistent with the offending behaviour described by the complainant during the time span covered by the indictment. The events described in the diary were highly likely to have occurred because those contents were in the accused's own words, written in his own hand and put down effectively contemporaneously with the occurrence of his conduct. Reading the diary as a whole, there could be no doubt that the entries referred to sexual activity of some sort and it was entirely reasonable to read them as recording the fact that the accused had been touching the complainant's vaginal area. The balance clearly favoured admitting the evidence contained in the diary and the diary was properly admitted into evidence.

Penile penetration was not an essential or necessary feature of major sexual assault. It was neither wise or necessary to establish a formal and specific starting point sentence for sexual offences against children. The trial judge made errors of principle in his sentencing decision. The assault of the complainant was a crime of violence and the failure to see it in those terms led the trial judge to misappreciate the significance of what the accused had done. The trial judge misinterpreted case law to stand for much more than it did in the scheme of principles underpinning Saskatchewan sentencing law and apparently understood it as meaning that the starting point sentence for major sexual assault against a child is three years. The gravity of the offence committed by the accused was very high and the accused took disturbing steps to record and document his sexual interest in his daughter. The accused had a high level of personal responsibility for the offence in issue and nothing to blunt his level of responsibility. The fact that the victim of sexual assault was a child was to be considered an aggravating factor in sentencing and the fact that the offender is a parent was even more serious. A fit sentence was a four-year prison term.

The sexual abuse of a child was an act of violence. The crime committed by the accused also involved violence in the relevant sense of that term and the trial judge should have made a firearms prohibition order. A ten-year term was appropriate in respect of a firearms prohibition against the accused.

Per Jackson J.A. (dissenting in part): Although the actions of the accused were revulsive and base, the courts are not entitled to punish the act alone. The courts must impose a sentence on this accused for the commission of this crime committed in these circumstances. In cases such as this one, where there was no suggestion of risk to the public of re-offence, it was particularly important to bear that principle in mind. The trial judge's reasons did not disclose any error that had any impact on the sentence, nor was the sentence demonstrably unfit. The trial judge was fully alive to all of the issues of the case before him including the important context of sex abuse within a family. Deference was thus required to his decision. The accused had no record, was not considered a danger to the public, and was permitted to remain in the community for three and one-half years while awaiting trial and for some months between his conviction and sentence. The trial judge was an observer and a direct participant in the process of sentencing. Having heard the witnesses and watched the accused over the course of the trial, he imposed a three-year sentence. It was correct for the court to express a general view as to the corruptive and horrendous nature of child sexual abuse, but the court should not make these statements and then increase the sentence under appeal. Firstly, it was Parliament's task to determine the punishment for an offence. Secondly, Parliament granted appellate courts the jurisdiction to review the fitness of a sentence, but the Supreme Court of Canada has stressed that appellate courts are required to defer to sentencing decisions, except in certain circumstances. The appellate court does not repeat the sentencing exercise afresh. The trial court's assessment of proportionality is reviewed for reasonableness and entitled to deference. Third, emphasizing the gravity of an offence will lead to an upward shifting of sentencing ranges which will have a cascading effect of making it harder to give effect in future cases to the principle of restraint. The trial judge's analysis of s. 109 of the Criminal Code was an error, but not an uncommon one. The trial judge's reasons could not be read as saying that he believed the offences were not serious, major sexual assaults, and the trial judge was fully aware of the nature of what the accused had done to his daughter and that he was sentencing the accused for serious, major sexual assaults. There was no immediate correlation between making a statement denouncing a crime and imposing a lengthy penitentiary term. The increased penalty in this case was not justified on the basis of the protection of the public. The appeal from the conviction should be dismissed and, apart from the imposition of the firearms order, the appeal from the sentence should be dismissed.

Criminal law --- Sentencing by offence — Offences against the person and reputation — Criminal negligence causing bodily harm — In operation of motor vehicle

Accused called friend and said he was looking for his girlfriend — Friend said she was out of town — Accused called friend shortly afterwards and told him girlfriend was in vehicle he was following — In reality, girlfriend was not in vehicle — Accused followed vehicle and driving his half ton truck at speed in excess of 100 kilometres per hour he pushed it into ditch — Driver was knocked unconscious and he regained consciousness shortly after his passenger freed him — Accused did not stop to check on two complainants — Accused told his friend to check on two occupants and he did so — Accused was 30 years old — Accused was father of 10-year old boy — Accused spent time with his son and he paid child support — Accused was not involved in intimate relationship — Accused had history of emotional and behavioural issues — Accused was convicted of two counts of criminal negligence causing bodily harm and one count each of failing to stop at scene of accident and breach of probation — Accused had lengthy record of provincial driving offences and significant criminal record — Accused sentenced to 24 months' imprisonment for criminal negligence charges, four months' consecutive for failing to stop and six months' concurrent for breach of probation — Accused also had to pay $700 in restitution to driver for deductible he had to pay — Primary sentencing objectives were denunciation and general deterrence — Accused's use of truck to repeatedly target vehicle occupied by complainants was particularly significant in relation to gravity of offence and accused's degree of responsibility — Accused's driving and criminal records demonstrated his disrespect for laws related to driving — Accused also had no driver's licence when he committed offences.

Criminal law --- Sentencing by offence — Offences against the person and reputation — Failing to stop at scene of accident

Accused called friend and said he was looking for his girlfriend — Friend said she was out of town — Accused called friend shortly afterwards and told him girlfriend was in vehicle he was following — In reality, girlfriend was not in vehicle — Accused followed vehicle and driving his half ton truck at speed in excess of 100 kilometres per hour he pushed it into ditch — Driver was knocked unconscious and he regained consciousness shortly after his passenger freed him — Accused did not stop to check on two complainants — Accused told his friend to check on two occupants and he did so — Accused was 30 years old — Accused was father of 10-year old boy — Accused spent time with his son and he paid child support — Accused was not involved in intimate relationship — Accused had history of emotional and behavioural issues — Accused was convicted of two counts of criminal negligence causing bodily harm and one count each of failing to stop at scene of accident and breach of probation — Accused had lengthy record of provincial driving offences and significant criminal record — Accused sentenced to 24 months' imprisonment for criminal negligence charges, four months' consecutive for failing to stop and six months' concurrent for breach of probation — Accused also had to pay $700 in restitution to driver for deductible he had to pay — Primary sentencing objectives were denunciation and general deterrence — Accused's use of truck to repeatedly target vehicle occupied by complainants was particularly significant in relation to gravity of offence and accused's degree of responsibility — Accused's driving and criminal records demonstrated his disrespect for laws related to driving — Accused also had no driver's licence when he committed offences.

Criminal law --- Sentencing by offence — Offences against the administration of law and justice — Disobedience — Disobeying court order

Accused called friend and said he was looking for his girlfriend — Friend said she was out of town — Accused called friend shortly afterwards and told him girlfriend was in vehicle he was following — In reality, girlfriend was not in vehicle — Accused followed vehicle and driving his half ton truck at speed in excess of 100 kilometres per hour he pushed it into ditch — Driver was knocked unconscious and he regained consciousness shortly after his passenger freed him — Accused did not stop to check on two complainants — Accused told his friend to check on two occupants and he did so — Accused was 30 years old — Accused was father of 10-year old boy — Accused spent time with his son and he paid child support — Accused was not involved in intimate relationship — Accused had history of emotional and behavioural issues — Accused was convicted of two counts of criminal negligence causing bodily harm and one count each of failing to stop at scene of accident and breach of probation — Accused had lengthy record of provincial driving offences and significant criminal record — Accused sentenced to 24 months' imprisonment for criminal negligence charges, four months' consecutive for failing to stop and six months' concurrent for breach of probation — Accused also had to pay $700 in restitution to driver for deductible he had to pay — Primary sentencing objectives were denunciation and general deterrence — Accused's use of truck to repeatedly target vehicle occupied by complainants was particularly significant in relation to gravity of offence and accused's degree of responsibility — Accused's driving and criminal records demonstrated his disrespect for laws related to driving — Accused also had no driver's licence when he committed offences.

Criminal law --- Sentencing procedure and principles — Types of sentence — Restitution

Accused called friend and said he was looking for his girlfriend — Friend said she was out of town — Accused called friend shortly afterwards and told him girlfriend was in vehicle he was following — In reality, girlfriend was not in vehicle — Accused followed vehicle and driving his half ton truck at speed in excess of 100 kilometres per hour he pushed it into ditch — Driver was knocked unconscious and he regained consciousness shortly after his passenger freed him — Accused did not stop to check on two complainants — Accused told his friend to check on two occupants and he did so — Accused was 30 years old — Accused was father of 10-year old boy — Accused spent time with his son and he paid child support — Accused was not involved in intimate relationship — Accused had history of emotional and behavioural issues — Accused was convicted of two counts of criminal negligence causing bodily harm and one count each of failing to stop at scene of accident and breach of probation — Accused had lengthy record of provincial driving offences and significant criminal record — Accused sentenced to 24 months' imprisonment for criminal negligence charges, four months' consecutive for failing to stop and six months' concurrent for breach of probation — Accused also had to pay $700 in restitution to driver for deductible he had to pay — Primary sentencing objectives were denunciation and general deterrence — Accused's use of truck to repeatedly target vehicle occupied by complainants was particularly significant in relation to gravity of offence and accused's degree of responsibility — Accused's driving and criminal records demonstrated his disrespect for laws related to driving — Accused also had no driver's licence when he committed offences.

Criminal law --- Charter of Rights and Freedoms — Arbitrary detention or imprisonment [s. 9]

Police stopped accused in middle of night after they saw him driving with his day time running lights — At 1:17 am officer asked accused to come to patrol car and demand was made to him at 1:20 am to provide breath sample in approved screening device (ASD) — At 1:22 am accused provided sample and he failed test — He was arrested at 1:23 am and he provided two breath samples at police station — Accused was charged with driving with blood alcohol level above legal limit — Accused claimed that his rights under Canadian Charter of Rights and Freedoms were violated — Voir dire was held to determine admissibility of evidence — Evidence admitted — Initial detention of accused lasted for one minute and during that time officer received accused's driver licence and asked accused how much he had to drink and officer and accused had discussion about accused's headlights — Second detention of accused occurred at 1:17 am — Having formed reasonable suspicion that accused had alcohol in his body officer should have immediately demanded that accused accompany him to patrol car for purpose of providing ASD sample — Officer did not make ASD demand of accused until several minutes later when he was searched and seated in patrol car — Officer did not make ASD demand forthwith — Accused's rights under s. 9 of Charter were violated from time he was instructed to go to patrol car until time he was seated in car and was asked to provide ASD sample — Time interval was two minutes and 49 seconds — Fail result on ASD and certificate of qualified technician was admitted, for its admission would not bring administration of justice into disrepute.

Criminal law --- Offences — Driving/care and control with excessive alcohol — Proof by certificate of analysis of bodily substances — Admissibility of certificate — Miscellaneous

Police stopped accused in middle of night after they saw him driving with his day time running lights — At 1:17 am officer asked accused to come to patrol car and demand was made to him at 1:20 am to provide breath sample in approved screening device (ASD) — At 1:22 am accused provided sample and he failed test — He was arrested at 1:23 am and he provided two breath samples at police station — Accused was charged with driving with blood alcohol level above legal limit — Accused claimed that his rights under Canadian Charter of Rights and Freedoms were violated — Voir dire was held to determine admissibility of evidence — Evidence admitted — Initial detention of accused lasted for one minute and during that time officer received accused's driver licence and asked accused how much he had to drink and officer and accused had discussion about accused's headlights — Second detention of accused occurred at 1:17 am — Having formed reasonable suspicion that accused had alcohol in his body officer should have immediately demanded that accused accompany him to patrol car for purpose of providing ASD sample — Officer did not make ASD demand of accused until several minutes later when he was searched and seated in patrol car — Officer did not make ASD demand forthwith — Accused's rights under s. 9 of Charter were violated from time he was instructed to go to patrol car until time he was seated in car and was asked to provide ASD sample — Time interval was two minutes and 49 seconds — Fail result on ASD and certificate of qualified technician was admitted, for its admission would not bring administration of justice into disrepute.

Criminal law --- Offences — Assault — Assault with weapon or causing bodily harm — Elements

It was alleged accused assaulted complainant — Accused admitted assaulting complainant but denied her allegations regarding use of knife — Evidence indicated assault was prolonged having occurred in bedroom followed by push in hallway and into kitchen — Assault involved accused hitting complainant about her head, pulling her hair and pushing her against kitchen table — Accused was charged with assault causing bodily harm — Accused convicted — Accused admitted to assaulting complainant and evidence was presented that injuries suffered by her more than trifling or transient — There was evidence of bruises being present 11 days after incident — Bruises were large and multi-coloured.

   Mr. Perry Thomson Sr. is charged that on September 5, 2018 at Carry the Kettle First Nation he left multiple firearms unlocked and improperly stored contrary to s. 86(2) of the Criminal Code. The evidence in this case was presented in a blended voir dire/trial, so I must deal with all defences raised, including those relating to potential Charter breaches. The principle issue in this case is whether the police entry and search of Mr. Thomson's residence and the subsequent seizure of 31 firearms, all without obtaining judicial authorization, violated Mr. Thomson's rights under s. 8 of the Charter and whether the evidence of firearms should be excluded under s. 24(2) of the Charter. If the evidence is not excluded, I need to determine whether the elements of the offence have been proven beyond a reasonable doubt.

Criminal law --- Appeals — Appeal from conviction or acquittal — Grounds — Error of law

Accused, and co-accused, were arrested as result of their alleged involvement in various drug trafficking offences — Information was sworn in 2013, and case was scheduled to go to trial in 2017, but before trial date, accused brought successful s. 11(b) of Canadian Charter of Rights and Freedoms application — Trial judge found that there were three blocks of time that applied to delay, which concerned first wave of disclosure, when accused's second lawyer received disclosure and different preliminary inquiry dates — Further issues of delay took place when counsel for co-accused withdrew — Trial judge found that net delay was 48 months and 20 days which was above 30-month Jordan ceiling, and stayed proceedings — Crown brought appeal — Appeal dismissed — Trial judge erred by failing to consider delay flowing from withdrawal of counsel for co-accused to be exceptional circumstance of "discrete event" and 419 days should be deducted from net delay — Once discrete event delay was subtracted from net delay, then remaining delay was 35 months, which was still above ceiling prescribed in Jordan — Regarding complexity, Crown must do more than simply point to factors that it said added to complexity of case and, in this case, Crown failed in this justification.

Criminal law --- Offences against the person and reputation — Sexual assault — Sexual assault with weapon

Three accused were charged under joint indictment alleging they committed offences of sexual assault with weapon, trafficking in persons, procuring, unlawful confinement, sexual assault and assault — Charges related to incident which took place at hotel, all relating to same complainant — Accused C was convicted of sexual assault with weapon, unlawful confinement, and assault — Accused C contended that trial judge failed to act on concerns about reliability of complainant's evidence and failed to give adequate reasons for finding him guilty — Accused appealed — Appeal dismissed — Trial judge understood credibility and reliability were core issues, understood difference between two, found complainant credible, had concern with reliability of some of complainant's evidence, and found complainant's evidence sufficiently reliable to convict on some offences but not others — There was no merit to allegation of failure to analyse reliability of complainant's evidence — Trial judge did not fail to consider inconsistencies — Trial judge judge's reasons were sufficient because they were responsive to live issues at trial and key arguments made by accused based on inconsistencies — There was no difficulty in understanding why trial judge accepted and relied on complainant's evidence to convict on offences that occurred at hotel but still hold reasonable doubt about later-in-time charges.

Criminal law --- Sentencing by offence — Offences against the person and reputation — Sexual assault — Sexual assault with weapon — Adult offenders

Three accused (C, R, and K) were charged under joint indictment for incident which took place at hotel, all relating to same complainant — Accused were convicted of some of offences and received following concurrent sentences (before remand credit) — C: 60 months (sexual assault with weapon); 30 months (unlawful confinement); 60 days (assault) — R: 48 months (sexual assault); 30 months (unlawful confinement); 60 days (assault) — K: 60 months (sexual assault with weapon); 48 months (sexual assault); 30 months (unlawful confinement) — Crown appealed sentences — Appeals dismissed, except to extent that K's 20-year sex-offender-registry order extended to lifetime order — There was no merit to argument that trial judge erred by failing to appreciate that each accused was legally responsible for every offence and ought to have been sentenced as though principals or parties— Criminal Code s. 21(2) issue was not put to trial judge, and individual could not be sentenced for offence of which he was not convicted — Evidence did not rise to level of rendering human trafficking and procurement aggravating factor in sentencing hearing because elements of those offences were not established beyond reasonable doubt — C and R's sentences were at low end of range, but were not unreasonable departure from principle of proportionality — K's sentence was not inconsiderable term for first conviction for sexual assault and limited criminal record; gravity of offences was not overlooked.

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Arslan v. Sekerbank T.A.S.2018 SKCA 77, 2018 CarswellSask 440Saskatchewan Court of AppealSaskatchewanSeptember 24, 2018 (Approx. 21 pages)

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2018 SKCA 77

Saskatchewan Court of Appeal

Arslan v. Sekerbank T.A.S.

2018 CarswellSask 440, 2018 SKCA 77, 301 A.C.W.S. (3d) 735, 38 C.P.C. (8th) 311

Hüseyin Arslan and Murad Al-Katib (Appellants / Defendants) And Sekerbank T.A.S. (Respondent / Plaintiff)

Richards C.J.S., Herauf, Ryan-Froslie JJ.A.

Heard: February 6, 2018

Judgment: September 24, 2018

Docket: CACV3104

Proceedings: affirming Sekerbank T.A.S. v. Arslan (2017), 2017 CarswellSask 366, 2017 SKQB 205, B.A. Barrington-Foote J. (Sask. Q.B.)

Counsel: Deron Kuski, Q.C., James Rose, for Appellant, Murad Al-Katib

Kevin Mellor, Sharon Fox, for Appellant, Hüseyin Arslan

Peter Bergbusch, for Respondent

Subject: Civil Practice and Procedure; Property

Related Abridgment Classificationsclick here

Civil practice and procedure

VII Limitation of actions

VII.1 Principles

VII.1.c Practice and procedure

VII.1.c.ii Adding or substituting parties

VII.1.c.ii.B Miscellaneous

Civil practice and procedure

XV Preservation of property rights pending litigation

XV.2 Interim preservation of property

Headnoteclick here

Civil practice and procedure --- Preservation of property rights pending litigation — Interim preservation of property

Defendant A guaranteed loans owing to plaintiff in Republic of Turkey and sometime later A transferred shares of Canadian corporation into trust of which defendant A-K was sole trustee — Turkish debtors defaulted on their loans and plaintiff brought proceedings against A in Turkey to prove and enforce guarantees — In reliance of Turkish litigation, plaintiff obtained preservation order under Enforcement of Money Judgments Act restraining defendants from disposing of shares held in trust — Plaintiff commenced action in Saskatchewan alleging that transfer of shares into trust had been fraudulent conveyance — Consent order was made prohibiting defendants from disposing of some 850,000 shares transferred by A into trust — Defendants brought application for order terminating or varying preservation order because plaintiff had not prosecuted its fraudulent conveyance action without delay or alternatively for order reducing number of shares subject to preservation order — Chambers judge declined to terminate preservation order or to reduce number of shares to which it applied — Defendants appealed — Appeal dismissed — Chambers judge made no reviewable error in denying relief sought by defendants — Chambers judge did not base his decision on misconceived notion that plaintiff could not have done anything to second action forward until Turkish litigation had concluded — Chambers judge based his decision on notion that conduct and positions of defendants in proceedings had led plaintiff to understand it was appropriate to keep second action in holding pattern — Decision of Chambers judge turned on idea that, even if there had been no formal consensus among parties about holding back on prosecution of second action, plaintiff had reasonably or justifiably believed otherwise — Chambers judge made no error of any ultimate consequence in deciding not to vary number of shares subject to consent order.

Civil practice and procedure --- Limitation of actions — Principles — Practice and procedure — Adding or substituting parties — Miscellaneous

Defendant A guaranteed loans owing to plaintiff in Republic of Turkey and sometime later A transferred shares of Canadian corporation into trust of which defendant A-K was sole trustee — Turkish debtors defaulted on their loans and plaintiff brought proceedings against A in Turkey to prove and enforce guarantees — In reliance of Turkish litigation, plaintiff obtained preservation order under Enforcement of Money Judgments Act restraining defendants from disposing of shares held in trust — Plaintiff commenced action in Saskatchewan alleging that transfer of shares into trust had been fraudulent conveyance — Consent order was made prohibiting defendants from disposing of some 850,000 shares transferred by A into trust — Defendants brought application for order terminating or varying preservation order because plaintiff had not prosecuted its fraudulent conveyance action without delay or alternatively for order reducing number of shares subject to preservation order — At same time, plaintiff and another Turkish bank with claims against A applied to have other Turkish bank added as plaintiff in fraudulent conveyance action — Chambers judge ordered that other Turkish bank be added as plaintiff — Defendants appealed — Appeal dismissed — Chambers judge made no reviewable error in adding other Turkish bank as plaintiff — Chambers judge proceeded on presumption that claim was out of time — It was open to Chambers judge to find that other bank's claim arose out of same transaction or occurrence as plaintiff's claim — No reviewable error was seen in Chamber judge's conclusion that as per s. 20(a) of Limitation Act, other bank asserted claim arising out of same transaction or occurrence as plaintiff's claim — It was difficult to see how delay in adding other bank as plaintiff could cause prejudice — Defendants had not established any basis on which issue could be taken with decision to add other bank as plaintiff in second action.

Contracts --- Rectification or reformation — Prerequisites — Common intention

Creditor was wholesale distributor of petroleum products that extended credit to debtor — Principal and employee of debtor signed personal guarantee, but they were erroneously described as "Borrower" — Principal and employee purportedly believed they were providing guarantee for personal purchases by employee — Debtor failed to pay amount owing when demanded — Creditor brought action against debtor for payment of amount owing and against principal and employee for rectification and enforcement of guarantee — Action allowed in part — Liability of debtor was conceded, but legal requirements for rectification were not met — It could not be concluded that any agreement was reached and properly reflected in guarantee as completed and signed — Representative of creditor, principal, and employee did not appear to have any clear understanding or comprehension of what was required of guarantee — Representative had not known how to complete guarantee — Failure to properly complete guarantee could not support conclusion that there was meeting of minds or mutual and true agreement reached between creditor, principal, and employee with respect to what was intended by guarantee.

Criminal law --- Charter of Rights and Freedoms — Arrest or detention [s. 10] — Right to counsel [s. 10(b)] — Right to retain and instruct counsel without delay

Accused was charged with driving with excessive alcohol — Trial judge found that accused's right to counsel under s. 10(b) of Canadian Charter of Rights and Freedoms had not been breached and convicted accused — Accused appealed — Appeal judge found that accused's right to counsel had been breached and that certificate of analysis pertaining to breath sample should have been excluded — Without certificate there was no evidence of accused's blood alcohol level and acquittal was entered — Crown appealed — Appeal allowed; conviction restored — Appeal judge erred in finding police officer who had complied with informational component of his duties must go on to inquire whether detainee wished to exercise his or her right to counsel — Police officer's obligation to impart knowledge of right and facilitate its exercise if asserted was not synonymous with obligation to ascertain whether detainee wished to exercise such right — Judicial authority was clear that, following fulfilment of his or her informational duty, police officer had no further obligation unless and until detainee asserted right to counsel — Supreme Court of Canada and number of courts of appeal considered situations where detainee was not asked if they wished to call lawyer and such courts had consistently found failure to pose such question did not result in breach of detainee's s. 10(b) Charter right — Appeal judge erred in concluding detainee must unequivocally waive his or her right to counsel before police can elicit evidence from him or her.

Criminal law --- Charter of Rights and Freedoms — Arrest or detention [s. 10] — Right to counsel [s. 10(b)] — Right to retain and instruct counsel without delay

Accused was arrested for impaired driving — Arresting officer informed accused of his right to counsel but did not ask if he wanted to speak to lawyer — Accused's blood alcohol level was over twice legal limit — Trial judge found that accused was properly informed of and understood his right to counsel, but was never asked whether he wished to call lawyer and had not declined his right to call lawyer — Trial judge nonetheless concluded that accused's right under s. 10(b) of Canadian Charter of Rights and Freedoms had not been infringed — Accused was convicted of driving with excessive alcohol — Appeal by accused allowed — Officer was obliged to ascertain whether accused wished to consult counsel as that knowledge would inform officer's next step — Immediacy of detainee's ability to exercise right to counsel plays central role in purpose of s. 10(b) — Trial judge's reasoning was too narrowly focused on issue of whether compliance with informational duty requires state authority to ask detainee if he wishes to contact lawyer — Requirement of immediacy obliges state authority to ascertain detainee's wishes about retaining counsel in as timely way as possible — Other than informing accused of his right to counsel, officer took no steps to ascertain whether he wished to invoke that right — Trial judge's analysis incorrectly focused on whether act of asking detainee about exercising right to counsel was part of informational duty — Issue was contextual — Once officer had complied with duty to inform accused of his right to counsel, he was obliged to ascertain whether accused wished to exercise that right — Failure to ascertain accused's wishes as to whether he wished to contact lawyer breached his s. 10(b) Charter rights — Certificate was excluded and verdict of acquittal was entered.

Accused was convicted of assault causing bodily harm to domestic partner of approximately seven years — Accused was acquitted of assault with weapon — Sentencing hearing held — Accused was sentenced to incarceration for five months; after release, he was to serve 24 months of probation — Court could not disregard accused's previous domestic assault upon former partner — Domestic assault, like impaired driving, was regrettably common scourge — Accused's violence against partners attracted strong measure of denunciation and deterrence — He had shown that notwithstanding measures of punishment and rehabilitation arising from prior sentence, he had not yet realize that jealously and dissatisfaction with partner do not justify violence.

Criminal law --- Narcotic and drug control — Administration and enforcement — Forfeiture — Offence-related property

Accused charged on 16 Informations with total of 42 charges for drug and other offences — Charges, some of which were serious, were numerous and involved repeated behaviour with respect to possession of cannabis — Quantity of money was seized from accused's house totalling $58,349.90 — Counsel for accused withdrew as lawyer due to inability to pay retainer — Accused released from custody following initial charges and was living in home — Title to house registered in accused's name was subject to mortgage and other encumbrances in form of writ of execution and family law support order — Exact nature of these other encumbrances was not clearly set forth in materials but from affidavit accused was in arrears of child support obligation some $40,000 — Mortgage on home was in arrears and bank had commenced foreclosure proceedings — Accused had significant equity in house, perhaps as much as $150,000 — Accused brought application to have seized funds released from management order to pay legal and living expenses pursuant to s. 462.34(4)(c)(i) and (ii) of Criminal Code — Application allowed in part — Forty thousand ordered released to be used exclusively for legal expenses of accused — There should be no payment from seized funds for living expenses of accused — No order would be made to allow reimbursement of family members for payments made — There was no statutory requirement in Code constraining such release of funds to only those cases where Legal Aid was not available to take on defence of accused — If unsuccessful in application, accused would not be having counsel represent him — There were novel, complex points of law to be argued with respect to medical marijuana licence and Canadian Charter of Rights and Freedoms arguments involving searches and other matters — Potential encumbrance holders in cash did not yet hold interest in that property — Court declined to order either of encumbrance holders should be provided with notice of these proceedings — Reasonable living expenses did not equate to preservation of equity in privately owned home — As accused could have chosen other lawyers, payment for travel time sought by accused's counsel was not subject to payment — Reasonable amount for legal fees would be based on maximum of $200 per hour for 160 hours — This provided level of recompense in excess of Legal Aid tariff but below what solicitor would normally have charged for services.

Accused was given approved screening device (ASD) demand — Accused made one attempt to blow, which was not sufficient to produce reading — Accused refused to make any further attempts, though officers gave him at least two more opportunities to blow — Accused was charged with refusing to provide breath sample — Trial was held — Accused convicted — Accused, after being given valid demand which he understood, intentionally failed to comply with demand made by officer — There was little evidence that accused's language barrier prevented him from understanding what was required of him — Accused did not have reasonable excuse.

Police received report about vehicle bearing two different licence plates and when accused returned to vehicle, police searched it and found bag containing 25.3 grams of methamphetamine under front passenger seat — Accused's passenger G possessed paraphernalia related to drug trafficking and initially testified that methamphetamine was for her personal use, but later said they would "get rid of some of it" — Accused was convicted of possession of methamphetamine for purpose of trafficking — Trial judge found beyond reasonable doubt that G intended to traffic some of methamphetamine, and that it was not reasonably possible that accused was unaware that G was trafficking some of drugs they jointly possessed — Accused appealed conviction on ground, inter alia, that trial judge erred by failing to make necessary findings of fact as to mental element required for offence of possession for purpose of trafficking — Appeal allowed — Trial judge found only that accused knew at least some of drugs were "very likely" going to be sold — Mens rea for offence of possession for purpose of trafficking includes intention to traffic — Trial judge necessarily found that accused was in possession of methamphetamine; he did not find that accused intended to sell it — Test for mens rea was not met — Trial judge erred in law by convicting accused of possession for purpose of trafficking without making necessary findings of fact as to mental element required for offence — Error could not be cured under s. 686(1)(b)(iii) of Criminal Code, as it could not be said that accused would have been convicted in any event — Court was not in position to consider whether conviction could or should be entered against accused on basis that he aided or abetted G — New trial ordered.

Provincial Court Judge made order detaining accused in custody pending trial — Provincial Court Judge concluded that accused had not discharged onus placed upon him, and more particularly had not persuaded her that he would appear in court to deal with charges — Accused brought application for review of order — Application granted — Accused released from custody pending trial of matter on his recognizance and subject to specified conditions — Sufficient material change in circumstances had occurred from time of show cause hearing until present date — Circumstances surrounding certain Quebec charges, as explained in accused's affidavit, were persuasive — Properly explained, they did not portend of inclination to flee jurisdiction — Accused's release plan coupled with strict release conditions, particularly electronic monitoring, established that his continued detention was unnecessary to ensure his attendance at court.

Accused faced 10 charges, 7 of which were joint charges with co-accused who was accused's common law partner — Charges stemmed from police investigation into suspected drug trafficking — Accused and co-accused were alleged to have conspired with 4 other individuals — Accused was charged in June 2013 — Trial was scheduled to start in June 2017 — First issues of delay related to late disclosure, given to defence counsel — Further issues of delay took place when counsel for co-accused withdrew — Both Crown and accused blamed delay on other side — After preliminary inquiry was rescheduled, issues as to disclosure on thumb drives were dealt with — Defence counsel claimed that late return of disclosure did not allow them to proceed with inquiry — Adjournment of inquiry was granted, to May 2016 — Inquiry proceeded in May 2016, with trial being originally set for February 2017 — Trial was then rescheduled at Crown's request — Accused claimed that delay of 48 months was unreasonable, and violated his s. 11(b) Charter of Rights and Freedoms rights — Accused applied for stay of proceedings under s.24(2) of Charter — Application granted — Delay was 18 months longer than established 30-month ceiling — Crown was not properly sensitive to accused's s.11(b) rights — Crown could have applied to sever accused's case from co-accused, in interests of proceeding reasonably quickly — Crown's conduct would have been considered complacent, under framework in place at outset of these proceedings — Change of defence counsel was counted partially as defence delay, in amount of two months — Crown could have been more proactive in dealing with issue of changing counsel, which would have made difference of about one month — No other delay was attributable to defence — Complexity of matter did not justify delay well over presumptive ceiling.

Parties entered into contact where defendant agreed to provide 816 metric tonnes of durum to plaintiff in exchange for payment based on schedule that formed part of contract — Weather conditions significantly delayed harvest, and quality of duram was poor — Defendant had some duram cleaned to increase grade, but grade of duram would incur deep discount under schedule — Plaintiff gave defendant two options of delivering grain or buying it out of contract under terms of forbearance agreement, but defendant sold duram to another purchaser for higher price than plaintiff would have paid under discount schedule in contract — Plaintiff brought action seeking damages for breach of contract — Action allowed — Plaintiff expected to have 816 metric tonnes of durum in its possession and to pay specific price for that durum — Plaintiff had to replace 816 metric tonnes of durum by purchasing same quantity in market — Difference in price between what plaintiff would have paid under contract with defendant and what it paid to replace 816 metric tonnes represented damages — Average price plaintiff paid to replace duram accurately reflected damages calculation — Damages did not consist of $140,920 offered in forbearance agreement as defendant did not accept terms of that agreement, so damages were now calculated on basis of actual purchase contracts as opposed to estimate — Plaintiff was awarded damages of $158,850.72.

Accused's trial for sexual assault with weapon and uttering threat to cause death commenced when accused was not in courtroom — Crown counsel successfully applied to amend Information to change dates of offence — Crown counsel entered supplementary occurance report into record; exhibit entered by consent contained text messages between complainant's mother and officer in which mother discussed her child's molestation from years prior — Accused's legal counsel then indicated he needed accused; trial was adjourned and did not continue until accused was present — Accused appealed conviction — Appeal dismissed — Crown acknowledged that trial judge breached s. 650(1) of Criminal Code of Canada by beginning trial without accused — However, court could cure breach pursuant to s. 686(1)(b)(iv) of Code since breach was inadvertent and did not prejudice appellant — Changing date of offence on Information did not prejudice accused — Entry of exhibit did not affect accused's right to fair trial since accused was not named in report and information contained in exhibit was repeated in open court in accused's presence when complainant's mother testified — She was cross-examined by accused's legal counsel and admission of exhibit did not affect accused's ability to make full answer in defence nor did it affect verdict.