BarNotes | Winter 2018

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THE CANADIAN BAR ASSOCIATION • SASKATCHEWAN BRANCH

WINTER 2018

VOL. 33.1

The Right Honourable R. Wagner, CP, Chief Justice Supreme Court of Canada Mid-Winter Meeting Opening Plenary Speaker

MID-WINTER MEETING PROGRAM ENCLOSED — REGISTER NOW


The Canadian Bar Association Saskatchewan Branch

IN THIS ISSUE

305, 135-21st Street East Saskatoon SK S7K 0B4 www.cbasask.org

BARNOTES Editorial Board HANNAH ZIP Editor Knott den Hollander KATE CRISP Scharfstein Gibbings Walen & Fisher LLP TRISTAN CULHAM MLT Aikins LLP JARED EPP Robertson Stromberg LLP

BRANCH NEWS 3

Editor's Notes

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President's Report

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Enhancing Justice, The 2019 Mid-Winter Meeting

COMMENTARY 8

22

The Provincial Court's 40th Anniversary Banquet and Book Launch

PRO BONO SPOTLIGHT 25

Diversity Takes Planning

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Fertility Issues & Family Law - A Review of the SH v DH Decision

NORSASKLAW Wins 2018 National Pro Bono Award

AMJAD MURABIT Saskatchewan Human Rights Commission

MONTEEN DENT Executive Director CBA Saskatchewan

LAYOUT & DESIGN Katrina Forgrave Graphic Designer Copyright of the cover photo is held by the Supreme Court of Canada. BarNotes is a publication of CBA Saskatchewan which is published 3 times a year. This publication is intended for information purposes only and should not be applied to specific fact circumstances without the advice of counsel. CBA Saskatchewan represents more than 1,100 members and is dedicated to improving access to justice, reviewing legislation and advancing the administration of justice.

Saskatchewan Court of Appeal Creates Test for Quashing Appeals

Contact Monteen Dent, monteen@cbasask.org for information on advertising.

ITEMS OF INTEREST

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TONYA LAMBERT Student − College of Law

JAMES STREETON Wardell Gillis

Law Reform Commission of Saskatchewan's Tentative Proposals for a Land Changes Act

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FROM THE BENCH

LEAH HOWIE Law Reform Commission of Saskatchewan

Advertiser Index

27

Calendar of Events

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© CBA Saskatchewan 305,135 – 21st Street East Saskatoon, SK S7K 0B4 www.cbasask.org


EDITOR’S NOTES

EQUAL OPPOTUNITIES HANNAH ZIP || KNOTT DEN HOLLANDER

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have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities.” Nelson Mandela Winter is here. While that is not the most joyous news, it does mean that the CBA Mid-Winter Meeting (MWM) 2019 in Saskatoon is fast approaching and that we should all register and reap the benefits of 12.5 CPD credits and 10.5 ethics hours! It is noteworthy that Beth Bilson has written a timely article on diversity and the necessity of action to properly address the need for diversity in hiring practices, rather than paying lip service to the general idea that discrimination is bad and should be avoided. The development and implementation of plans and strategies to abolish inequity and systemic discrimination in the legal workplace is long overdue. This is one of many topics that will be addressed at the upcoming Mid-Winter Meeting, including the President’s Forum. See Jennifer Pereira’s Invitation to Attend (p.7) for full details on the MWM.

LETTERS TO THE EDITOR of Canada has drafted legislation to hrz.kddlaw@sasktel.net standardize results of criminal record checks across Canada to avoid discrimination based on the results of criminal record check when hiring an employee.

The free society in which all persons have the “equal opportunities” that Nelson Mandela describes above will not just magically appear. We must all take affirmative steps to abolish discriminatory practices in our profession and in our society.

This issue of BarNotes also includes other fascinating topics, such as the defence of intoxication in sexual assault cases and what a criminal record check actually reveals and the extent to which an employer can rely on the results as a part of the due diligence process in hiring. Did you know that the jurisdiction in which a criminal record check is completed will result in significantly different information being disclosed? Information such as past suicide attempts, being interviewed in the course of a criminal investigation, and other highly sensitive and possibly irrelevant information may be released on an inconsistent basis across Canada. The Uniform Law Conference

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E V I D E N C E FIND THE DIG ITAL TRU TH

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sasktel.com/digitalforensics

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BRANCH NEWS

PRESIDENT’S REPORT NICHOLAS CANN || MCKERCHER LLP

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must first express my sincere gratitude to Evatt Merchant, QC for his guidance and leadership during his 2017-2018 term as branch President.

At the national level, the streamlining put in place under the Rethink program continues under the stewardship of incoming national President, Ray Adlington. In August of 2018, I had the pleasure of meeting Mr. Adlington and the other provincial Branch Presidents in Ottawa for the incoming president's orientation. It was an excellent opportunity to discuss common issues and challenges our members are facing across Canada.

Gilliss, RechĂŠ McKeague and Charmaine Panko. Please do not hesitate to contact me or any of the other Board members with any questions, concerns, or suggestions.

Please contact me with ideas, questions or concerns about CBA activities! n.cann@mckercher.ca (306) 565-6526

One of those challenges relates to diversity and inclusivity within our profession. To that end, the Law Society of Saskatchewan and CBA Saskatchewan jointly presented "The Benefits of Diversity" on October 23 in Saskatoon and in Regina on October 24, 2018. The topics discussed included Saskatchewan's changing demographics, inclusion, and the business case for diversity in an organization. An upcoming opportunity for continuing the dialogue on this topic will be at the 2019 Mid-Winter Meeting in Saskatoon on January 31 and February 1, 2019. Along with the other outstanding components of the program being put together by the dedicated Planning Committee, Angela Chaisson will be presenting at the President's Forum and offering thoughts on the challenges in our profession and a collective call to action regarding diversity, #metoo, and the retention of female lawyers. I would certainly encourage all members of the Saskatchewan legal profession, whether CBA members or not, to reflect on what positive impact they might be able to have on these issues. I am looking forward to an exciting and challenging year as President, along with the other members of your Board: Loreley Berra, Chris Weitzel, Kathryn

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BRANCH NEWS

ENHANCING JUSTICE, THE 2019 MID-WINTER MEETING JENNIFER D. PEREIRA || ROBERTSON STROMBERG LLP

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nhancing Justice” the CBA Mid-Winter Meeting For Solicitors: education on corporate divorce, tips is set for January 31 and February 1, 2019 at the and traps for dealing with CRA disputes and a case law update relating to the duty to consult are on offer. Delta Bessborough Hotel in Saskatoon.

Here are some of the highlights… • Chief Justice R. Wagner of the Supreme Court of Canada will be addressing meeting delegates at our opening plenary; • Chief Justice M. Popescul will provide advice on practicing before the Court of Queen’s Bench; • Justice M.T. Megaw and Bill Johnson QC will discuss civility after the Law Society of Upper Canada v. Groia decision; • At the Annual "Breakfast with the Minister", the Minister of Justice and Attorney General for Saskatchewan, Don Morgan QC, will speak on matters of interest to the Profession; • Angela Chiason, lawyer and frequent media commentator, will provide thoughts on being a feminist lawyer and #MeToo’s impact on the legal profession; • Chief Commissioner of the Saskatchewan Human Rights Commission, Judge David Arnot, will discuss systematic discrimination in our province; and • Howard Sapers, Independent Advisor on Corrections Reform, will close our Meeting by presenting a case study on the use of imprisonment as punishment, with ethical and practical considerations.

For Criminal Lawyers: look forward to presentations on the Gladue Project, Marijuana DUIs and a co-presentation with a family law practitioner on the use of surreptitiously obtained evidence. For Family Law Lawyers: In addition to the session on improperly obtained evidence, you can expect advice on cross-examination of business valuators and an overview of family law ADR in other jurisdictions. Other Great sessions: don’t miss out on a review of recent arbitral and case law decisions relating to disciplining employees for off duty conduct, a Prompt Payment legislation update and an overview of the law and procedure relating to challenging a will. Please check out the brochure for the entire educational program. The Law Society of Saskatchewan has approved the educational program for credit of 12.5 CPD hours, including 10.5 ethics hours. The Mid-Winter Meeting is not all business! Join us for Barristers and Bluegrass 2 ½: A Very CBA Sequel on Thursday, January 31, 2019. The party takes place at The Woods Ale House with live music by the Barrelmen, delicious appetizers and drinks.

Finally, I would like to acknowledge the support of our sponsors and exhibitors and, especially, the hard work of the CBA Saskatchewan Branch staff, Monteen Dent. I also want to extend my appreciation to our For all lawyers: a review of with advice exceptional committee members – Naheed Bardai, to law firms on how to avoid common mistakes when Troy Baril, Reché McKeague, Michelle Ouellette QC, hiring a lawyer laterally, Inclusivity Training from Anna Singer and Chris Veeman for all of their efforts. OUT Saskatoon, an update from CREATE Justice We look forward to seeing you at the 2019 Midmade up of an impressive panel from the University Winter Meeting in Saskatoon! of Saskatchewan and a session relating to mental health and addiction issues in the practice of law. WINTER 2018 7


COMMENTARY

LAW REFORM COMMISSION OF SASKATCHEWAN’S TENTATIVE PROPOSALS FOR A LAND CHARGES ACT PROFESSOR RON C.C. CUMING || UNIVERSITY OF SASKATCHEWAN

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n mid-September, the Law Reform Commission of Saskatchewan published (“the report”) (https:// lawreformcommission.sk.ca/Land-Charges-ActConsultation-Report-1.pdf). The report contains and provisions of a proposed commentaries for the purposes of consultation. Each is followed by part of the proposed a series of questions designed to facilitate responses. Overview There were several factors that induced the Commission to undertake an examination of existing Saskatchewan mortgage and agreement for sale law and practice. • Saskatchewan mortgage and agreement for sale law has not been examined in detail for over 120 years. It contains features that are anachronistic in modern context. The Land Charges Act is designed to modernize Saskatchewan real property security law. • A “mortgage” is defined in The Land Titles Act, 2000 as a “charge” but the terminology and procedures applicable are based on former law under which a mortgage was a transfer of ownership from an owner to a mortgagee. The Land Charges Act is designed to provide a code of real property security law based conceptually and terminologically on the law of charges. • Current law is an uncoordinated collections of principles and rules including common law principles, equitable principles that either modify the common law or function independently of it, seven disparate provincial statutes, some of which contain ad hoc measures designed to deal with particular social or economic issues existing at the time the legislation was passed, and Queen’s Bench Court Rules that provide for enforcement of mortgages using

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archaic procedures and terminology. The Land Charges Act is designed to provide clear, consistent statutory guidance respecting a wide range of matters endemic to real property security transactions thereby enhancing understanding and legal predictability for parties to these transactions and other persons affected by them. • For the most part, existing law employs a “one size fits all” approach. Current law requires all enforcement proceedings be administered in a very “hands-on” way by the Queen’s Bench Court whether the mortgagor or purchaser is an individual or a corporation and whether the mortgaged property is a home or is used for commercial purposes. This results in inappropriate application of debtor protection measures and unnecessary use of scarce court resources. The Land Charges Act is designed to recognize the contextual differences between charges on commercial property and charges on homes, and to provide structures appropriate to the types of transactions involved. • In some situations, current law contains features that impose inefficiency that is not necessary for the protection of defaulting mortgagors or buyers under agreements for sale. The Land Charges Act has been designed to be an appropriate balance between protection of the interests of defaulting chargors (mortgagors and purchasers) and efficient enforcement of the rights of chargees (mortgagees and vendors).

Some Specific Features of the The : (1) treats agreements for sale of land as charge agreements for enforcement purposes (s. 4); (2) provides for the separation of charges on land from income from the land. Each


COMMENTARY

is an interest that will be subject to its own registration and priority rules (s. 9 and Part XI); (3) codifies concepts of equity applicable to real property security law, including novation, (s. 17), consolidation (s. 21); tacking (s. 32) marshalling and apportionment (s. 33); (4) clarifies in the context of charges on residential property the law applicable to due-on-sale clauses (s. 16) and efficacy of acceleration clauses (s. 14), and, in all contexts, pre-payment rights (s. 15), compulsory transfer in lieu of discharge (s. 29) and “tacking of future advances (s. 32); (5) permits sale of charged commercial property by the chargee but subject to court overview invoked by affected persons (Part 7); (6) provides a statutory structure designed to facilitate voluntary surrender of charged property (as a substitute for foreclosure) (Part 8); (7) preserves the protection of through less complex and prolix proceedings (Part 9); (8) provides enforcement procedures that more accurately reflect relationships between chargors and chargees (Parts 7 and 10); (9) permits timed limited recovery of deficiencies where purchase-money transactions (s. 19) and non-purchase money transactions (s. 22) are involved; (10) extend accommodation to guarantors (family members) the protection against deficiency liability given to chargors (ss. 19 and 22); (11) provide a statutory structure for enforcement of equitable or statutory non-consensual liens (e.g., unpaid seller’s equitable lien) (Part 12);

(12) gives the Queen’s Bench Court broad supervisor powers which, for the most part, are available when invoked by a person affected by enforcement proceedings (Part 13). Interface with other Statutes The has been designed to function within the priority structure of . However, the Commission’s report contains recommendations for the repeal of provisions of that expressly apply to “mortgages”. Should the become law, the following legislation would be repealed: , RSS 1978, c L-3. RSS 1978 c. A-7 , SS 2000, L-5.1, clauses 2(1) (p.1)(iii), 2(1)(cc), 2(1)(dd), 2(1)(ee), ss. 27(2)-(4), 124, 125, 126, 127(1)-(3), 129, 131, 131.1, 132, 133, 135, 136, 137, 139, 160.2, and 187(1)(s). RSS 1978, c. L-16, sections 2, 3, 5, 6, 7, 8, 10, 11, 12, 13 and 16. , 1998, SS 1998, c. Q-1.01, sections 57, 61 and 62. RSS 1989, c. D-31, Section 8. Consultation The Commission welcomes and values input from the bar on all of its projects. and a Word document containing only the consultation questions have been posted on the Commission’s website (https:// lawreformcommission.sk.ca/). Comments on the report should be sent before February 15, 2019 to: Email: director@lawreformcommission.sk.ca Fax: (306) 966-5900 Mail: Law Reform Commission of Saskatchewan University of Saskatchewan Room 184, College of Law 15 Campus Drive Saskatoon, SK S7N 5A6

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COMMENTARY

DIVERSITY TAKES PLANNING BETH BILSON, QC || OFFICE OF THE UNIVERSITY SECRETARY

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he mid-1970s saw a flowering of human rights legislation across the land. Though this legislation varied from jurisdiction to jurisdiction in terms of administrative arrangements, prohibited grounds of discrimination and scope of application, it appears to have had one common feature – a touching faith in the idea that if discrimination was declared to be a bad thing, the citizens of Canada would make good faith efforts to eliminate it from their workplaces, schools and businesses.

first generation anti-discrimination legislation, many in the profession assume that good will or our own unaided sense of fairness is a sufficient basis for addressing inequity. We do not feel as though we discriminate, and we think that will carry us through.

Good will is not enough, however. It is difficult for any of us to be aware of, never mind adjust, our tendency to seek out clones of ourselves to make our environment as comfortable and comprehensible as possible. The development of strategies to It turned out to be more complicated increase diversity in our law firms, than that, of course. One need only our corporations, our government look at the tortuous path followed We do not departments and our law schools is not by governments, employers and exactly a science, but it does require feel as though worker organizations to define and we discriminate, a plan. Our favoured techniques of implement standards for achieving pay eyeballing, guesstimating and waiting and we think equity to appreciate that rooting out till next year have not proven effective at it will carry us discrimination is a complex and longeliminating the barriers faced by groups through. lasting project. I have expressed in these who have suffered historic disadvantage pages on earlier occasions my personal in our profession, whether the formal disappointment that we still seem to ones restricting admission by race or be talking about the same kinds of discriminatory gender, or the more insidious, supposedly neutral, practices and habits I assumed would be in the judgments about merit or “fit.” dustbin of history by the time my children were of age – don’t get me started. We need to be more systematic in developing plans for diversity and inclusion in our legal Examination of the situation in the Canadian legal organizations. This kind of planning requires profession for equity groups – women, Indigenous the same kind of time, focus and dedication that people, visible minorities, disabled lawyers, LGBTQ+ we devote to marketing plans or financial plans. lawyers – reveals that there are still inequities in Luckily, there are many resources available to assist hiring, in advancement, in compensation, in work with this work. The national Equity Committee assignment. Most legal employers have not dealt of the CBA, for example, has developed a number adequately with these inequities, and it seems fair to of resources and tool kits for law firms and other say that at least some legal employers have not really organizations wishing to move forward with the thought seriously about them. Like the drafters of objective of increasing diversity and ensuring an 10 BARNOTES


COMMENTARY

inclusive climate. A number of these resources can be found at the following link: https://www.cba.org/Publications-Resources/ Practice-Tools/Measuring-Diversity-(1)/ Resources/Resources/Measuring-DiversityAdditional-Resources Although it is true that anti-discrimination legislation is based on the notion that every person deserves an equal chance to achieve their personal aspirations without facing arbitrary obstruction, the imperative to do better at setting and meeting goals for diversity and inclusion is not just about the personal success of individuals. It is about bringing a wider variety of perspectives to bear on the examination of complex legal problems, about reflecting our communities more accurately, about reaching out to constituencies that have been underserved. You have all my good wishes as you set to work on your diversity plan. Remember, it won’t do itself.

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SUMMER 2017 11


FEATURE COMMENTARY

SEXUAL ASSAULT AND THE DEFENCE OF EXTREME INTOXICATION BROOKE JOHNSON || MCDOUGALL GAULEY LLP

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n automaton walks into a bar…. No, this is not the beginning of a bad joke but instead the re-emergence of a defence to sexual assault.

There has been a great deal of public discourse regarding sexual assault. From the #MeToo movement to the more recent Kavanaugh hearings, the subject of sexual assault has been at the forefront of the public’s collective mind for a number of months. While the topic has been trending in the media, the law surrounding sexual assault had remained unchanged for years, until the August 2018 decision of R v McCaw, 2018 ONSC 3464 (“McCaw”).

The McCaw decision speaks to the defence of voluntary intoxication as it pertains to the offence of sexual assault. Cameron McCaw (the “Accused”) was charged with sexual assault and brought an application seeking an order from the court affirming that section 33.1 of the Criminal Code is of no force and effect pursuant to section 52(1) of the Constitution Act, or, in the alternative, declaring that section 33.1 is invalid and of no force and effect, as being inconsistent with sections 7 and 11(d) of the Charter and not justified under section 1. Section 33.1 of the Criminal Code removes the availability of a defence of voluntary self-intoxication for offences involving assault or other interferences with bodily integrity.

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The Accused had consumed several intoxicating substances, including the date rape drug, prior to performing the alleged sexual acts. The Accused wished to argue that he was in a state of extreme intoxication, akin to automatism, to cast doubt on the voluntariness of his actions. The defence of automatism via self-induced extreme intoxication was sought to be relied upon, however the operation of section 33.1 of the Criminal Code made this defence unavailable. It was ultimately determined that the prohibition on advancing the extreme intoxication defence as outlined in section 33.1 is unconstitutional. Justice Spies made an order allowing the defence application and affirming that s. 33.1 of the Criminal Code is of no force and effect pursuant to s. 52(1) of the Constitution Act. Further, pursuant to s. 52.1 of the Constitution Act, Justice Spies declared s. 33.1 of no force and effect, as it is inconsistent with sections 7 and 11(d) of the Charter and is not saved by section 1. As such, the Accused was permitted to advance the defence of extreme intoxication. It is important to note that advancing this defence does not come without significant risks. Aside from the tremendously high level of intoxication necessary to invoke the defence, once advanced, identity, sexual contact, and the absence of consent are all admitted.


FEATURE COMMENTARY

The media has grabbed this decision by the… horns… and sensationalized it, causing much ire amongst the general public. The media reports of the McCaw decision have misstated the law and oversimplified the conclusion (see: The Global News headline, “Ontario court ruling clears the way for intoxication to be used as a defence in sexual assault cases”). Public outrage can result in unnecessary responses from parliament; if the public assumes that consuming a few drinks results in an available defense to sexual assault, some may feel emboldened to consume a dirty martini or two and sexually assault somebody. This is certainly not what the court in McCaw decided or intended. As such, it is important that discussions surrounding McCaw are accurate. The McCaw decision does not state that mere intoxication or drunkenness is a defence; the intoxication must be to a level where there is a complete disconnect between the mind and the body. For example, if someone set out to get drunk and commit a crime, the defence would not apply. If an individual is able to undertake actions while intoxicated that exhibits a connection between the mind and body, the defence would be precluded. Furthermore, the onus is on the accused to prove that level of intoxication on a balance of probabilities. Notably, McCaw is not a pioneering or radical decision. Since its enactment, the constitutionality of section 33.1 has been challenged nine times. All nine courts found it to be unconstitutional. As such, there appears to be a judicial consensus that section 33.1 has constitutional frailties. From the 16th century until 1994, voluntary intoxication was a defence to specific intent offences. The general rule was that intoxication was not a defence to general intent offences. The fact that an individual intentionally became intoxicated satisfied the intent requirement, or mens rea, of general intent offences. In 1994, the Supreme Court of Canada decision of R v Daviault, [1994] 3 SCR 63, outlined that in cases of

extreme intoxication where an individual becomes an automaton it was recognized that level of intoxication could be a defence to general intent offences. It was determined that in light of the Charter, section 7 and section 11(d) are violated in the case of an accused who reaches the extreme level of intoxication wherein one is unable to form any intent and the majority of the court concluded that the breach of those rights could not be saved by section 1. Nine months later, Parliament enacted legislation specifically limiting the defence of extreme intoxication, akin to automatism, in sexual assault cases by enacting section 33.1 of the Criminal Code due to the public outcry that followed the Daviault decision. Parliament left the extreme intoxication defence for general intent offences that Daviault created intact but restricted the Daviault decision by limiting the defence and excluding assault offences. Our Constitution says that before we punish an accused, both a guilty act and a guilty mind must be present. The automaton state is no different from cases where there is not an operating mind. It is widely agreed that there is significant public interest in ensuring people are not able to immunize themselves from criminal liability by simply getting drunk. However, McCaw found that section 1 of the Charter did not apply as the defence is so limited. Despite the interesting nuances to section 33.1 of the Criminal Code and its application in cases of sexual assault, whether or not 33.1 remains will have virtually no impact on sexual assault cases. Empirical studies around the world on this defence do not exhibit any significant effect on the number of acquittals arising from evidence of severe intoxication in sexual assault cases. Nonetheless, the availability of the defence of extreme intoxication to the offence of sexual assault makes sense, particularly in the presence of vitiated consent by way of intoxication. Further, the availability of this defence is important to the discussion of sexual assault as a whole.

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FEATURE COMMENTARY

SO WE HIRED AN AXE MURDERER: WHAT CRIMINAL RECORD CHECKS CAN AND CAN'T DO FOR YOUR ORGANIZATION JANA M. LINNER || MLT Aikins LLP (with assistance from MATTHEW BARNES 1)

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t's an employer's nightmare: an employee you hired—who unbeknownst to you has a history of committing fraud, preying on vulnerable people, or just generally has little restraint when it comes to breaking the law - has predictably returned to their old ways and stolen personal information or finances from a client or staff member potentially exposing your business to significant liability. Given this all too real possibility, it is unsurprising that many employers are considering whether the use of police record checks should become part of their standard employee screening process. Any risk-averse employer ought to be concerned with the potential criminal past of their employees; especially when that employee will have access to sensitive personal information or will work with vulnerable persons. Depending on the nature of the company's business and the requirements of the position offered, these checks can be a valuable part of an employer's due diligence when hiring. Therefore, it is vital that organizations and employers be aware of what information will and will not be disclosed in a standard criminal record check. They must also be conscious of how using certain information disclosed in a criminal background check to make a hiring decision can potentially run afoul of human rights legislation.

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Recently, there has been a call for legislation standardizing how police departments conduct criminal record checks as well as limiting the disclosure of certain "non-conviction" information. The Uniform Law Conference of Canada has suggested draft uniform legislation be prepared to standardize the types of criminal record checks provided in Canada and limit the information provided. This draft uniform legislation is to be based on the Ontario legislation, which came into force on November 1, 2018. Ontario's will apply to employers hoping to determine the suitability of a prospective employee based on a criminal background check. The Act divides police record checks into three categories: criminal record check, criminal record and judicial matters check, and a vulnerable sector check. Pursuant to this new legislation, in Ontario, the following information will no longer be made available in a criminal record check: • Any summary conviction that occurred more than five years prior to the record request; • Any offence where the individual was found guilty and received an absolute discharge that occurred more than 1 year prior to the record request;


FEATURE COMMENTARY

• Any offence where the individual received a conditional discharge that occurred more than 3 years prior to the record request;

person.3 The following factors are to be considered when determining whether a person's conviction is related to their prospective employment4:

• A basic criminal record check will not disclose any offence with an outstanding charge or warrant to arrest the individual;

• Does the behavior for which the charge was laid, if repeated, pose any threat to the employer's ability to carry on its business safely and efficiently?

• No court order made under the Act or court order regarding a withdrawn charge; • A basic criminal record check, as well as a criminal record and judicial matters check, will not reveal any charge against an individual that resulted in a finding of not criminally responsible on account of a mental disorder; • Any information relating to any charge that was dismissed, withdrawn, stayed, or resulted in a stay of proceedings or acquittal. Unless a vulnerable sector record check is requested and the criteria for exceptional disclosure are met. Currently, Saskatchewan has no similar legislation and each individual police department determines what information to release to the applicant. For an employer in Saskatchewan, the adoption of legislation similar to the Ontario could drastically limit the amount and extent of information currently received in a criminal record check. Unless an employer is aware of these potential changes, they may over-rely on these checks and assume they allow them to manage risk and protect their clients and staff. In some jurisdictions outside of Saskatchewan, the treatment of past criminal convictions under human rights legislation is also significantly different. , for example, Under "record of offences" is listed as a prohibited ground of employment discrimination.2 As well, under , a person may not refuse employment on the basis of a criminal conviction that is unrelated to the employment of that

• What were the circumstances of the charge and the particulars of the offense involved; e.g. how old was the individual when the events in question occurred, were there any extenuating circumstances? • How much time has elapsed between the charge and the employment decision? What has the individual done during that period of time? Have they shown any tendencies to repeat the kind of behavior for which they were charged? Have they shown a firm retention to rehabilitate? Saskatchewan's Code has no equivalent requirement. However, this does not necessarily mean Saskatchewan employers are permitted to discriminate on the basis of a criminal record. Under , prohibited ground includes "disability," which includes, for example, any "mental disorder".5 If a criminal record check were to disclose any information relating to the mental health of a prospective employee—such as a finding of unfitness to stand trial, or a finding of not criminally responsible on account of mental disorder—an employer would have to be careful to consider its potential human rights obligations in the circumstances. Because of this risk, employers should consider refraining from asking prospective employees for a criminal record check unless the nature of the company's business or the position requirements make it reasonably necessary. If a criminal record check is utilized, at a minimum, employers should be prepared to justify why a criminal record check

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FEATURE COMMENTARY

guidelines. These guidelines should be public and available to all applicants.

is a reasonable requirement of the position before requesting it.

In summary, best practices for employers when Overall, criminal record checks can play an important part of the due diligence process when hiring. requesting a criminal record check include: However, employers should not rely solely on a • Only request a Criminal record check if it is a criminal record check and should, at a minimum, reasonable requirement of the job; fully understand the potential limitations and pitfalls when they are part of the hiring process. • Although the need for a criminal record check should be identified in the job posting, the request should be made after the organization has offered Matthew Barnes is currently clerking with the Saskatchewan Court of Appeal. the position and the prospective employee is Human Rights Code, RSO 1990, c H 19. informed the job offer is conditional on the Human Rights Code, RSBC 1996, c 210. Woodward Stores (BC) Ltd v McCartney (1983), 145 DLR (3d) 193 (Sup Ct); adopted in: Ashton outcome of a criminal record check; v IDM Youth Services and another (No.2), 2018 BCHRT 110 at para 37. 1 2 3 4

• Organizations that do require criminal record checks should develop clear, detailed, written

The Saskatchewan Human Rights Code, 2018, SS 2018, c S-24.2.

5

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WINTER 2018 17


COMMENTARY

FERTILITY ISSUES & FAMILY LAW – A REVIEW OF THE SH v DH DECISION TOMILOLA ADEBIYI || SASKATCHEWAN HUMAN RIGHTS COMMISSION

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hould a single frozen embryo be treated as property under family law? And if so, how should it be divided? The Honourable Justice Mr. Robert G.S. Del Frate of the Ontario Superior Court answered both questions in the precedentsetting case of , 2018 ONSC 4506. The Court determined it was the intention of the parties to treat the embryo as property at the time of its purchase. It was also their intention to respect the wishes of the ex-wife (“the Respondent”) in any future dispute. As a result, the Court awarded the single frozen embryo to the Respondent but ordered her to reimburse her ex-husband (“the Applicant”) for his contribution towards the purchase of same. The couple had purchased donated eggs and sperm from MyEggBank, an American company based out of Georgia, on February 1, 2012 for a total cost of $11,500.00 USD. Neither party had a biological connection to the embryo. Four embryos were created – two were unviable and subsequently destroyed. The two viable embryos were shipped to the ISIS Regional Fertility Clinic in Mississauga, Ontario where one of the embryos was successfully implanted in the Respondent, resulting in the couple’s only son. Shortly after the birth, the couple separated and went through an acrimonious divorce. The Respondent expressed her intention to be implanted with the second viable embryo at the time of the divorce action. The Applicant strongly objected. He preferred to donate the frozen embryo. The Respondent brought a motion seeking an order naming her as owner of the remaining single frozen

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embryo and allowing the ISIS Regional Facility Center to implant the frozen embryo in her. At the time of the purchase, the couple signed several agreements. Three contracts were of particular significance: the ISIS Regional Fertility Center contract (“the Ontario Contract”), and two contracts with the Biology Associates (“the Georgia Contracts”). Under the Ontario Contract, the clinic agreed to respect “the patient’s wishes” in the event of a divorce; “the patient” was defined as the Respondent. This contract specified that the frozen embryos should be treated as property. Conversely, the Georgia Contracts stated, in the event of a divorce, separation or marriage dissolution, the legal ownership of any stored embryo(s) must be determined in a property settlement and released only as directed by a court of competent jurisdiction. In both contracts, the couple selected “Embryo Donation” if there was a change in their decision to implant the embryo, or an inability to agree on disposition in the future. According to Justice Del Frate, the parties clearly intended for the frozen embryos to be treated as property at the time they entered into the contracts. The main issue was how to divide the embryo under the . The situation was unusual because neither party had a biological connection to the embryo. Justice Del Frate determined, because both parties were named on the contracts and there was a clear intention that the property would be jointly owned regardless of their unequal financial contributions, there was sufficient proof that the spouses intended to own the property as joint tenants.


COMMENTARY

Justice Del Frate relied on the parties’ agreements and intentions at the time of purchase to facilitate an equitable division of the embryo. The Georgia Contracts vested authority to the Court with respect to interpretation of the contracts and, ultimately, to making a decision on legal ownership of the stored embryo. Justice Del Frate enforced the terms of the Ontario Contract and held that the wishes of the Respondent should be respected. Justice Del Frate ordered the Respondent to reimburse the Applicant for his interest in the embryo, as he had contributed financially to the purchase of same. Justice Del Frate considered case law1 and an article written by Deborah L. Forman, in arriving at this decision. He disregarded provisions of the , S.C. 2004, which prohibit the purchase and sale of gametes and embryos. Neither party made an argument in this regard, and one wonders whether doing so may have altered Justice Del Frate’s decision. It is also interesting to note that some of the Applicant’s arguments were considered irrelevant to the issue at hand, including that he paid the entire purchase price

of the embryo so it was his property and any interest claimed by the Respondent was held in trust for him as set out in the He further argued that the Respondent could not afford to have a second child as she could barely provide for their son. Justice Del Frate found these arguments irrelevant: “Individuals have the right to make decisions of fundamental importance affecting their private lives, such as having (or not having) children, without unwarranted interference.” is the first case to deal with embryos biologically unrelated to either party involved in the dispute. This case raises some difficult questions for family law practitioners: What happens where one or both of the parties have a biological connection with the frozen embryo? Can it still be treated as property and divided accordingly? How will that be achieved? Time and likely additional case law on this issue will tell. 1 2

J.C.M. V. A.N.A., 2012 BCSC 584; C.C. V. A.W., 2005 ABQB 290, 50 Alta. L.R. (4th) 61. (2011) 24 J. Am. Acad. Matrim. Law 57

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WINTER 2018 19


COMMENTARY

SASKATCHEWAN COURT OF APPEAL CREATES TEST FOR QUASHING APPEALS CAROLINE J. SMITH || MCKERCHER LLP

T

he Saskatchewan Court of Appeal recently established a test for quashing unmeritorious appeals, in .

Under Rule 46.1(1) of The Court of Appeal Rules, respondents may apply to quash an appeal on the grounds that: (a) it discloses no right of appeal; (b) it is frivolous or vexatious; (c) it is manifestly without merit; or (d) it is otherwise an abuse of the process of the court. Applications under section 46.1(1) must be decided by a panel of three justices.2

3. Applications to quash appeals for lack of merit are not “a substitute for hearing appeals on their merits,” and may not be appropriate if the Court of Appeal is required to review evidence in order to determine the merit of the appeal. APPLICATION OF THE TEST IN THIS CASE The test established by the Court of Appeal sets a high bar, as demonstrated by the fact that the Court of Appeal did not quash Mr. Jardine’s appeal despite having noted that the appeal was “not strong[.]” Mr. Jardine, a self-represented litigant, sought to appeal the summary dismissal of his claim. His grounds of appeal were:

is the Court of Appeal’s first decision setting out criteria to be used in applications under Rule 46.1(1)(c) to quash appeals for lack of merit.

1. The chambers judge erred in finding the defendant’s oral evidence credible;

THE TEST FOR QUASHING APPEALS After reviewing the ways in which other appeal courts across Canada approach applications to quash appeals for lack of merit, the Court of Appeal listed three factors it will consider on such applications:

3. The chambers judge erred in failing to consider a part of the claim that had been summarily dismissed in an earlier decision Mr. Jardine had not appealed.

1. An appeal should only be quashed for lack of merit, “where it is entirely clear the appeal is destined to fail and where, conversely, there is no possibility that any ground of appeal might succeed.” 2. Appeals should only be quashed for lack of merit in “exceptional” circumstances.

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2. The chambers judge was prejudiced; and

The Court of Appeal found that grounds 2 and 3 were clearly without merit. However, the Court of Appeal could not conclude without reviewing evidence that ground 1 was doomed to fail — even though the Court of Appeal acknowledged that it would “be difficult for Mr. Jardine to prevail on this ground” because it would be required to give “significant” deference to the credibility assessment of the chambers judge. The Court of Appeal therefore dismissed the application to quash Mr. Jardine’s appeal.


COMMENTARY

CONTRAST WITH SUMMARY JUDGMENT AND APPLICATIONS TO STRIKE is notable, not only because it sets the test for quashing unmeritorious appeals, but also because it distinguishes such applications from applications for summary judgment. In recent years, courts in Saskatchewan have been implementing the “culture shift” mandated by the Supreme Court of Canada in , using summary judgment to avoid trials by weeding out unmeritorious claims and defences wherever the Court of Appeal possible. In contrast, in signalled that applications to quash appeals for lack of merit should not be used to avoid appeal hearings in the way that summary judgment applications are used to avoid trials.

Instead, it appears that the Court of Appeal will treat applications to quash appeals for lack of merit more like applications to strike pleadings for disclosing no reasonable claim or defence, where the judge is not permitted to consider evidence, and pleadings are struck only if it is clear and obvious that the claim or defence will fail. CONCLUSION Saskatchewan litigators should be aware that they have the option to apply to quash unmeritorious appeals. However, such applications should be made sparingly, and only where there is an obvious — and obviously fatal — defect in the appeal. Jardine v Hyggen, 2018 SKCA 38. 1269917 Alberta Ltd v FMI Developments Ltd, 2011 SKCA 94, 375 Sask R 175 at para 26. 3 Hryniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87. 1 2

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FROM THE BENCH

THE PROVINCIAL COURT'S 40TH ANNIVERSARY BANQUET AND BOOK LAUNCH

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JUDGE PAT REIS || PROVINCIAL COURT OF SASKATCHEWAN

t was a special time for the Provincial Court of Saskatchewan on October 18th in Saskatoon, when we celebrated our 40th anniversary with a banquet and book launch. A special thank you goes to our author, Amy Jo Ehman, for telling our story in her wonderful new book, “The Evolution of the Provincial Court of Saskatchewan,” and for reading from it at our celebration. Also, thank you to Chief Justice Robert Richards of our Saskatchewan Court of Appeal, as well.

In closing, congratulations to Chief Judge James Plemel, Associate Chief Judge Murray Hinds, Judge Clifford Toth and Judge Inez Cardinal of our Court for their participation, which made our celebration all the more memorable. It was nice to see many of our retired judges, their partners, other guests and our present and former articling students, who are doing so well. Thank you all for coming and joining us in celebrating our 40th anniversary. Congratulations to our Court of Appeal on their celebration of the Court’s centenary and the launch of their book, “The Court of Appeal for Saskatchewan: THE FIRST HUNDRED YEARS” by David Mittelstadt on October 25th in Saskatoon. This book will become an important part of Saskatchewan’s legal history. A special debt of gratitude is owed to Associate Chief Judge Murray Hinds and Judge Clifford Toth for their efforts in making our book possible. Finally, thank you to Amy Jo Ehman for her contribution to an important part of Saskatchewan’s legal historical landscape. Rather than speaking at length about the book, I’ve included copies of its cover pages, introduction, and one picture of many, which will give you the desired taste.

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FROM THE BENCH

WINTER 2018 23


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PRO BONO SPOTLIGHT

NORSASKLAW WINS 2018 NATIONAL PRO BONO AWARD PIERRE E. HAWKINS || PRO BONO LAW SASKATCHEWAN

P

ro Bono Law Saskatchewan is pleased to congratulate North Battleford’s Norsasklaw as the recipient of the 2018 National Pro Bono Award in the law firm category. Every year, only one award is granted to each of a program, a law firm, and an individual who demonstrates an outstanding dedication to pro bono legal work and community service. Benedict Feist represented his colleagues in accepting the award at the 7th National Pro Bono Conference in Vancouver on October 4th.

Clinic, its lawyers also volunteer their time with PBLS panel programs. In these programs, lawyers volunteer to take a more involved role in a client’s legal matter, up to and including representing the client in court. Panel programs are key to providing service to those in need, as many PBLS clients find themselves involved in complicated legal matters or are otherwise unable to self-represent. This is particularly the case with the vulnerable communities that PBLS programs serve.

Norsasklaw forms the backbone of PBLS’ North Battleford Free Legal Clinic. Its lawyers Benedict Feist, Robert Feist, and firm head Richard Gibbons truly embody the ethos of the pro bono movement. All heavily involved in their community, these lawyers represent the type of leadership needed to close the access to justice gap and provide help to those desperately in need.

The lawyers of Norsasklaw do not confine their community service to PBLS programs. Richard Gibbons is a stalwart of local boards, having served on boards including the Battlefords Interval House, a local women’s shelter. Robert Feist sits on the boards of Battlefords’ Habitat for Humanity and My First Home Inc., a non-profit dedicated to providing affordable housing to those in need.

Not only does Norsasklaw volunteer significant lawyer time to the North Battleford Free Legal

Benedict Feist sits on the board of the John Howard Society of Saskatchewan and acts as Vice-President of the Battlefords Immigration Resource Centre board of directors. Benedict has recently dedicated his time to the project of designating as a municipal heritage site a cemetery connected to the Battleford Industrial School, a local residential school. In supporting this cause, Benedict and Norsasklaw show their dedication to their community, to the heritage of North Battleford, and to the national cause of reconciliation with indigenous peoples. Service runs in the culture of Norsasklaw. Its lawyers and staff show a commitment to their community that stands as a credit to the legal profession. PBLS is delighted to see the work of Norsasklaw be recognized as such by its peers at the national level.

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823 50th Street East Saskatoon, SK S7K 3Y5

P.O. Box 1504 Saskatoon, SK S7K 3R3

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CALENDAR OF EVENTS December 15, 2018

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January 23

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January 31

Council Meeting (Saskatoon)

Jan 31 & Feb 1

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February 11

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April 13

Law Day Mock Trial (Saskatoon)

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CBA Saskatchewan Branch Section year begins September 2018 and continues until Spring 2019. Register FREE for Sections now at cbasask.org. Also visit cbapd.org and learn about great webinars, conferences and documents relevant to your areas of practice and interest which you can access as part of your CBA membership.

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T:7.5” S:7.25”

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© 2018 Mercedes-Benz Canada Inc. 28 BARNOTES

T:10”

S:9.75”

Case Closed.


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