Western Weekly Reports

WESTERN WEEKLY REPORTS Reports of Cases Decided in the Courts of Western Canada and Certain Decisions of the Supreme Court of Canada 2016-VOLUME 5 (Cited [2016] 5 W.W.R.)

All cases of value from the courts of Western Canada and appeals therefrom to the Supreme Court of Canada

SELECTION EDITOR Walter J. Watson, B.A., LL.B. ASSOCIATE EDITORS (Alberta) E. Mirth, Q.C. (British Columbia) Darrell E. Burns, LL.B., LL.M. (Manitoba) E. Arthur Braid, Q.C. (Saskatchewan) Greg Fingas, B.A., LL.B.

EDITORIAL STAFF Cheryl L. McPherson, B.A.(HONS.) Audrey Wineberg, B.A.(HONS.), LL.B. Director, Primary Content Operations Product Development Manager Nicole Ross, B.A., LL.B. Julia Fischer, B.A.(HONS.), LL.B. Supervisor, Legal Writing Supervisor, Legal Writing Lisa Rao, B.SC., LL.B. Donna Dickson Senior Legal Writer Content Editor WESTERN WEEKLY REPORTS is published 48 times per year. Subscrip- Western Weekly Reports est publié 48 fois par année. L’abonnement est de tion rate $451.00 per bound volume including parts. Indexed: Carswell’s In- 451 $ par volume relié incluant les fascicules. Indexation: Index a` la docu- dex to Canadian Legal Literature. mentation juridique au Canada de Carswell.

Editorial Offices are also located at the following address: 430 rue St. Pierre, Le bureau de la rédaction est situé a` Montréal — 430, rue St. Pierre, Mon- Montréal, Québec, H2Y 2M5. tréal, Québec, H2Y 2M5.

NOTICE AND DISCLAIMER: All rights reserved. No part of this publica- MISE EN GARDE ET AVIS D’EXONERATION´ DE RESPON- tion may be reproduced, stored in a retrieval system, or transmitted, in any SABILITE´ : Tous droits réservés. Il est interdit de reproduire, mémoriser sur form or by any means, electronic, mechanical, photocopying, recording or un système d’extraction de données ou de transmettre, sous quelque forme ou otherwise, without the prior written consent of the publisher (Thomson par quelque moyen que ce soit, electronique´ ou mécanique, photocopie, enre- Reuters Canada, a division of Thomson Reuters Canada Limited). gistrement ou autre, tout ou partie de la présente publication, a` moins d’en avoir préalablement obtenu l’autorisation ecrite´ de l’éditeur, Thomson A licence, however, is hereby given by the publisher: Reuters Canada, une division de Thomson Reuters Canada Limitée. Cependant, l’éditeur concède, par le présent document, une licence :

(a) to a lawyer to make a copy of any part of this publication to give to a a) a` un avocat, pour reproduire quelque partie de cette publication pour judge or other presiding officer or to other parties in making legal submis- remettre a` un juge ou un autre officier-pr´esident ou aux autres parties dans sions in judicial proceedings; une instance judiciaire;

b) a` un juge ou un autre officier-président, pour produire quelque partie de (b) to a judge or other presiding officer to produce any part of this publication cette publication dans une instance judiciaire; ou in judicial proceedings; or c) a` quiconque, pour reproduire quelque partie de cette publication dans le cadre de délibérations parlementaires. (c) to anyone to reproduce any part of this publication for the purposes of parliamentary proceedings. « Instance judiciaire » comprend une instance devant une cour, un tribunal ou une personne ayant l’autorité de décider sur toute chose affectant les droits ou les responsabilitiés d’une personne. “Judicial proceedings” include proceedings before any court, tribunal or person having authority to decide any matter affecting a person’s legal rights or Ni Thomson Reuters Canada ni aucune des autres personnes ayant participé a` liabilities. la réalisation et a` la distribution de la présente publication ne fournissent quelque garantie que ce soit relativement a` l’exactitude ou au caractère actuel Thomson Reuters Canada and all persons involved in the preparation and sale de celle-ci. Il est entendu que la présente publication est offerte sous la ré- of this publication disclaim any warranty as to accuracy or currency of the serve expresse que ni Thomson Reuters Canada, ni le ou les auteurs de cette publication. This publication is provided on the understanding and basis that publication, ni aucune des autres personnes ayant participé a` son elaboration´ none of Thomson Reuters Canada, the author/s or other persons involved in n’assument quelque responsabilité que ce soit relativement a` l’exactitude ou the creation of this publication shall be responsible for the accuracy or cur- au caractère actuel de son contenu ou au résultat de toute action prise sur la rency of the contents, or for the results of any action taken on the basis of the foi de l’information qu’elle renferme, ou ne peuvent etreˆ tenus responsables information contained in this publication, or for any errors or omissions con- de toute erreur qui pourrait s’y etreˆ glissée ou de toute omission. tained herein. La participation d’une personne a` la présente publication ne peut en aucun cas etreˆ considérée comme constituant la formulation, par celle-ci, d’un avis No one involved in this publication is attempting herein to render legal, ac- juridique ou comptable ou de tout autre avis professionnel. Si vous avez counting, or other professional advice. If legal advice or other expert assis- besoin d’un avis juridique ou d’un autre avis professionnel, vous devez tance is required, the services of a competent professional should be sought. retenir les services d’un avocat ou d’un autre professionnel. Les analyses The analysis contained herein should in no way be construed as being either comprises dans les présentes ne doivent etreˆ interprétées d’aucune fa¸con official or unofficial policy of any governmental body. comme etant´ des politiques officielles ou non officielles de quelque organ- isme gouvernemental que ce soit.

8 The paper used in this publication meets the minimum requirements of 8 Le papier utilis´e dans cette publication satisfait aux exigences minimales American National Standard for Information Sciences — Permanence of Pa- de l’American National Standard for Information Sciences — Permanence of per for Printed Library Materials, ANSI Z39.48-1984. Paper for Printed Library Materials, ANSI Z39.48-1984.

ISSN 0049-7525 ISBN 978-0-7798-7041-7 Printed in Canada by Thomson Reuters

THOMSON REUTERS CANADA, A DIVISION OF THOMSON REUTERS CANADA LIMITED One Corporate Plaza Customer Relations 2075 Kennedy Road Toronto 1-416-609-3800 Toronto, Ontario Elsewhere in Canada/U.S. 1-800-387-5164 M1T 3V4 Fax 1-416-298-5082 www.carswell.com Contact www.carswell.com/email Weber v. Leclerc 211

[Indexed as: Weber v. Leclerc] Allan Kent Weber, Respondent (Claimant) and Anne Brigitte Leclerc, Appellant (Respondent) British Columbia Court of Appeal Docket: Vancouver CA42783 2015 BCCA 492 Groberman, A. MacKenzie, Goepel JJ.A. Heard: November 13, 2015 Judgment: November 30, 2015* Family law –––– Marriage — Nature of marriage — Common law marriage –––– Parties lived together from 2002 until 2011 or later with children from previous relationships — Parties purchased property together, had sexual relations, shared expenses as well as vacationed together, shared meals, and went out together as couple — In 2011, wife underwent full hip replacement surgery, and in 2012, was diagnosed with chronic obstructive pulmonary disease — During this time, husband admitted to seeking legal advice relating to family law as he was considering leaving relationship but intended to support and assist her with her disability — Wife’s application for declaration that parties did not live together in marriage-like relationship and were not spouses as defined by Family Law Act was dismissed — Wife appealed — Appeal dismissed — Finding that parties were in, and intended to be in, marriage-like relationship was open to trial judge and entitled to deference — Several factors supported idea that relationship was marriage-like, including cohabitation coupled with romantic and sexual relations and appearance that there was intention to remain together for indefinite period — Parties treated themselves and children as family unit and provided each other with emotional support — Weighing factors was for trial judge and she considered all of them and was entitled to conclude parties were in marriage-like relationship. Cases considered by Groberman J.A.: Austin v. Goerz (2007), 2007 BCCA 586, 2007 CarswellBC 2852, 36 E.T.R. (3d) 161, 74 B.C.L.R. (4th) 39, 287 D.L.R. (4th) 69, [2007] B.C.J. No. 2546, 249 B.C.A.C. 70, 414 W.A.C. 70 (B.C. C.A.) — considered G. (J.J.) v. A. (K.M.) (2009), 2009 BCSC 1056, 2009 CarswellBC 2081, 71 R.F.L. (6th) 349 (B.C. S.C.) — considered

* Leave to appeal refused at Leclerc v. Weber (2016), 2016 CarswellBC 1105, 2016 CarswellBC 1106 (S.C.C.). 212 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264, 1 R.F.L. (3d) 448, [1986] 5 W.W.R. 1, 1986 CarswellBC 137, [1986] B.C.J. No. 365 (B.C. C.A.) — considered Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376, 1980 CarswellOnt 274, [1980] O.J. No. 1904 (Ont. Dist. Ct.) — followed Takacs v. Gallo (1998), 1998 CarswellBC 546, 157 D.L.R. (4th) 623, 105 B.C.A.C. 115, 171 W.A.C. 115, 48 B.C.L.R. (3d) 265, [1998] 9 W.W.R. 235, [1998] B.C.J. No. 600 (B.C. C.A.) — considered Yakiwchuk v. Oaks (2003), 2003 SKQB 124, 2003 CarswellSask 223, [2003] S.J. No. 216 (Sask. Q.B.) — considered Statutes considered: Estate Administration Act, R.S.B.C. 1996, c. 122 s. 1 “common law spouse” — considered Family Compensation Act, R.S.B.C. 1996, c. 126 s. 1 “spouse” — considered Family Law Act, S.B.C. 2011, c. 25 Generally — referred to s. 3(1)(b)(i) — considered Family Relations Act, R.S.B.C. 1979, c. 121 s. 1 “spouse” — considered

APPEAL by wife from judgment reported at Weber v. LeClerc (2015), 2015 BCSC 650, 2015 CarswellBC 1079, 60 R.F.L. (7th) 132 (B.C. S.C.), finding that she and husband were spouses as defined by Family Law Act.

T.W. Pearkes, A. Fernandez, for Appellant K.E. Walman, for Respondent

Groberman J.A.:

1 The parties began cohabiting in 2002, and continued to live together until 2011 or later. While they agree in their descriptions of many aspects of the relationship, they do not agree on whether their relationship made them “spouses” for the purposes of the Family Law Act, S.B.C. 2011, c. 25 (the “FLA”). 2 In litigation under the Act, Ms. Leclerc sought a declaration, by way of summary trial, that the parties were not spouses under s. 3(b)(i) of the FLA: 3(1) A person is a spouse for the purposes of this Act if the person ... Weber v. Leclerc Groberman J.A. 213

(b) has lived with another person in a marriage-like relationship, and (i) has done so for a continuous period of at least 2 years .... 3 The summary trial judge found that the relationship of the parties was “marriage-like”, and declared them to have been spouses under the statute. The appellant challenges the declaration, arguing that the judge mis- applied the law and found facts without a proper foundation. The appellant also argues that the judge should not have determined the matter on a summary trial - an argument that is difficult to make, given that it was the appellant who brought the matter to court in that manner.

The Judgment Below 4 At the outset of her judgment, the judge stated that while there were some disputes on the evidence, she considered the uncontroverted evidence to be sufficient to allow her to make the determination. At para. 5 of her judgment, she listed the following facts as among those that were not disputed: • Mr. Weber has two sons, and Ms. Leclerc has one. The children resided with them (although Mr. Weber shared parenting responsibility with his ex-wife), before they left home as adults. • The boys were about the same age. Mr. Weber and Ms. Leclerc raised their separate children together. • They had family portraits including themselves and all three boys that were displayed in their home. • They shared a bedroom and had sexual relations throughout that period and were monogamous. • They had a family dog and a boat. • The parties had contact with extended family, particularly Mr. Weber’s family. They visited that family and exchanged Christ- mas gifts and received presents from them. • The parties purchased property together and shared expenses. The title of the home in which they lived is in Ms. Leclerc’s name, although Mr. Weber made a contribution to its purchase and shared mortgage payments, until the mortgage was paid off in 2008. 214 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

• The parties purchased other properties together and generated income from those properties according to Mr. Weber. This is not contradicted by Ms. Leclerc. • For the most part, the parties kept their finances separately. Ms. Leclerc assisted Mr. Weber by loaning him money from time to time. Mr. Weber repaid those loans. • The parties vacationed together, along with their sons. They collected memorabilia from those vacations and stored them with la- bels stating: “Weber Leclerc family”. • Mr. Weber and Ms. Leclerc shared meals together, although Mr. Weber was busy with his son’s hockey activities. • They both did the grocery shopping. • They spent their evenings together, although Mr. Weber would watch television and Ms. Leclerc would read in a separate room. • They went out together as a couple for dinner or to dinner parties with friends. • Mr. Weber and Ms. Leclerc did not discuss marriage, except perhaps on one occasion. Ms. Leclerc is opposed to marriage. 5 The judge also noted the following with respect to situations in which Ms. Leclerc encountered health problems: [8] Ms. Leclerc experienced health problems in 2011. In October 2011 she underwent a full hip replacement surgery in Vancouver. She says that despite knowing about this procedure well in advance, Mr. Weber booked a vacation in Mexico for himself and his friends during that time. She had to rely on her friends to help her. She says “Mr. Weber would not and could not care for me physically, financially or emotionally in times of trouble including sickness.” Mr. Weber says that he took the vacation after ensuring that Ms. Leclerc assured him that she did not require his presence during or after the hip surgery. [9] In early 2012 Ms. Leclerc was diagnosed with chronic obstructive pulmonary disease (COPD). Mr. Weber admits that at the time of the COPD diagnosis, he attempted to seek legal advice relating to family law. He was considering that he may leave the relationship but intended to support and assist her with her disability. 6 After referring to Austin v. Goerz, 2007 BCCA 586 (B.C. C.A.); Yakiwchuk v. Oaks, 2003 SKQB 124 (Sask. Q.B.); and G. (J.J.) v. A. Weber v. Leclerc Groberman J.A. 215

(K.M.), 2009 BCSC 1056 (B.C. S.C.), and outlining the parties’ posi- tions, the judge provided brief reasons for her conclusions: [25] The purported lack of support during her illnesses referred to by Ms. Leclerc is, in my view, telling of a marriage like relationship. Ms. Leclerc had expectations of Mr. Weber, arising from their relationship, that he would support her in all ways, including when she was sick. Mr. Weber says that he was encouraged by Ms. Leclerc to take his vacation with friends while she had her hip surgery. He says that his approaching a lawyers’ office after the COPD diagnosis does not mean that he thought the relationship was over. I am not com- menting on whether Mr. Weber provided that support - that will await a trial. The point is that Ms. Leclerc was disappointed that Mr. Weber did not meet her expectations. [26] It was after these diagnoses that the relationship between the parties began to unravel. I find that Ms. Leclerc’s descriptions of the relationship are a product of her disappointment in Mr. Weber’s lack of support when she was sick and that she has cynically revised the nature of their relationship as a result. [27] For example, her suggestion that she moved in with Mr. Weber solely for her son to benefit from sibling relationships is not believable. It may have been a by-product of the relationship, but she and Mr. Weber moved in because they were in love and they were sleep- ing together - like people who are married. It appears all of the children enjoyed the benefit. [28] Ms. Leclerc’s lack of belief in the institution of marriage is be- side the point. As is pointed out in Yakiwchuk, people may choose not to be married for a variety of reasons: “[t]heir motivation is often nothing more than wanting to ‘be together’”. This appears to have been the motivation here. [29] I find that Ms. Leclerc and Mr. Weber were “spouses” as defined in the FLA, from 2002. The parties dispute the date of separa- tion. I have not been asked to determine that and I therefore do not.

“Marriage-Like Relationship” 7 The parties have referred to three decisions of this Court that have addressed the scope of definitions of “spouse” similar to the one in the FLA: Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264 (B.C. C.A.); Takacs v. Gallo (1998), 157 D.L.R. (4th) 623 (B.C. C.A.); and Austin v. Goerz, 2007 BCCA 586 (B.C. C.A.). It is noteworthy that the cases span a considerable period of time - a significant factor in terms of an expression like “marriage-like relationship”. Social norms surrounding marriage 216 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

have changed considerably over the years, and it should not be surprising that, along with those changes, evaluations of what relationships are “marriage-like” have also evolved. 8 In Gostlin, the Court was called upon to interpret the definition of “spouse” in the Family Relations Act, R.S.B.C. 1979, c. 121 which included “a man or woman not married to each other, who lived together as husband and wife for a period of not less than 2 years”. The phrase “as husband and wife” is no longer used in British Columbia statutes, but I accept that it is the equivalent of “in a marriage-like relationship”. 9 In Gostlin, Lambert J.A., speaking for the Court at 267-8 said: The legislature has accommodated the diverse interests of different couples by use of the words “who lived together as husband and wife” in the definition of “spouse”. If a couple marry, then they are committed to the maintenance and support obligations of s. 57, no matter on what terms they live together. But if they do not marry, they are not committed to those obligations unless they live together for not less than two years, and unless they do so as husband and wife. In deciding whether a couple lived together as husband and wife, I would be guided by the scheme and intention of the Act itself. The purpose of the legislative scheme is to impose on an unmarried couple the same obligations under s. 57 as are voluntarily undertaken by a married couple. So I would ask whether the unmarried couple’s relationship was like the relationship of the married couple in that the unmarried couple have shown that they have voluntarily embraced the permanent support obligations of s. 57. If each partner had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disabled for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer of both of them would have been “Yes”, then they are living together as husband and wife. If the answer would have been “No”, then they may be living together, but not as husband and wife. Of course, in the particular circumstances of any case, the answer to that question may prove elusive. If that is so, then other, more objective indicators may show the way. Did the couple refer to themselves, when talking to their friends, as husband and wife, or as spouses, or in some equivalent way that recognized a long-term commitment? Did they share the legal rights to their living accommoda- tion? Did they share their property? Did they share their finances and their bank accounts? Did they share their vacations? In short, did Weber v. Leclerc Groberman J.A. 217

they share their lives? And, perhaps most important of all, did one of them surrender financial independence and become economically dependent on the other, in accordance with a mutual arrangement. All those questions, and no doubt others, may properly be considered as tending to show whether a couple who have lived together for more than two years have done so with the permanent mutual support commitment that, in the relevant sense of the Family Relations legislation, constitutes living together as husband and wife. 10 This discussion of the definition, though heavily relied upon by Ms. Leclerc, was entirely obiter, since the issue in Gostlin was not whether the parties were spouses — that much was conceded — but rather, whether the fact that they were unmarried should diminish the amount of a support award. 11 Gostlin is of considerable historic importance because it recognized the importance of giving meaning to phrases such as “as husband and wife” or “in a marriage-like relationship”. Prior to Gostlin, some courts had taken those phrases to be little more than euphemisms for “in a sexual relationship”. Gostlin established that, in order for a couple to be treated as spouses, they must do more than merely cohabit. The cohabitation must be in a relationship that is similar to typical married relationships. 12 That said, it is difficult from this vantage point, some 30 years after Gostlin, to fully understand the reasoning expressed in the passage that I have quoted. It is based on the idea that marriage is a relationship characterized by economic dependence or interdependence. Perhaps marriage was, or was perceived to be, such a relationship at that time. Today, though economic dependence or interdependence exists in many marriages, it would be difficult to characterize such dependency as being an essential characteristic of marriage. 13 It is, in any event, somewhat difficult to follow the reasoning of the obiter statements in Gostlin. If the legislature had intended to impose obligations on spouses only if the spouses themselves intended such obligations to be imposed, it could have simply allowed couples to enter into cohabitations agreements explicitly setting out their mutual obligations. Similarly, if the Act had been intended to apply only to relationships of economic dependence or interdependence, it could easily have said so, rather than using the far less precise phrase “living together as husband and wife”. 218 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

14 In Takacs, the issue was whether the girlfriend of the deceased came within the definition of “spouse” in the Family Compensation Act, R.S.B.C. 1996, c. 126 which, at the time, contained the following definition: “spouse” means (a) a husband or wife of the deceased, or (b) a person who lived with the deceased as the husband or wife of the deceased for a period of not less than 2 years ending no earlier than one year before the death of the deceased .... 15 The claimant and the deceased lived together on and off while they were students, but returned to live with their respective parents each summer. At times, they attended universities in different cities, and at other times, though attending school in the same city, they maintained separate residences. The majority of this court found the relationship not to be sufficient to constitute a marriage-like relationship. 16 In discussing Gostlin, the majority said: [53] The starting point in this province for the analysis required in cases of this kind is the judgment of this court in Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264, and in particular, the comments of Lam- bert J.A. at 267-8 .... I read those comments as focussing first on the intentions of the parties to live “as husband and wife”, or in a marriage-like relationship. Such an intention may or may not include financial dependence. The various “objective indicators” referred to in Gostlin were advanced as a means of divining those subjective intentions where the latter “prove elusive”. By the same token, of course, subjective or conscious intentions may be overtaken by conduct such that whilst a person living with another might not say he or she was living in a marriage-like relationship, the reality is that the relationship has become such. 17 While the majority in Takacs endorsed the idea that the parties’ intentions are important in determining whether they live in a “marriage-like relationship”, it clarified two important points. First, while Gostlin had suggested that economic dependence is a key element of a marriage-like relationship, the majority in Takacs explicitly recognized that the intention to live in a marriage-like relationship need not include an intention to be financially interdependent. Second, Takacs holds that the intention that is critical is not the intention to be bound by a statutory regime of mutual support, but rather the intention to enter into a relationship similar to marriage. In the context of Takacs, the court saw the issue as one of Weber v. Leclerc Groberman J.A. 219

whether the parties’ intentions in cohabiting were similar to those that might be expected in a relationship of marriage. The key question was whether the couple saw their relationship as one of indeterminate, lengthy duration. While the majority of this Court accepted that the couple saw eventual marriage as a possibility, it was of the view that they considered their existing relations to be transitory. 18 The Court considered the phrase “marriage-like relationship” much more thoroughly in Austin. In that case, the definition at issue was that of “common law spouse” in the Estate Administration Act, R.S.B.C. 1996, c. 122, the relevant portion of which reads: “common law spouse” means ... (b) a person who has lived and cohabited with another person in a marriage-like relationship ... for a period of at least 2 years immediately before the other person’s death .... 19 The evidence established that the defendant and the deceased had cohabited for six years, during which they lived as and presented themselves as a family. The two kept separate bank accounts, and were financially independent of one another. 20 This Court considered the legislative history of the use of the phrase “marriage-like relationship” in British Columbia statutes. It concluded that the phrase has a common meaning across the various statutes in which it is used. 21 With respect to the question of whether financial dependence or interdependence was a requirement of a marriage-like relationship, Frankel J.A., speaking for the Court, said: [55] While financial dependence may at one time have been considered an essential aspect of a marital relationship this is no longer so. Today marriage is viewed as a partnership between equals and there is no principled reason why marital-equivalent relationships should be viewed differently. [56] Mrs. Austin relies on Gostlin v. Kergin ... and Takacs v. Gallo .... While the need to examine the financial relationship between the parties is discussed in both, in neither do I find support for the proposition that a marital-equivalent relationship cannot exist absent some level of financial dependence. [57] Apposite is the more recent decision of the Supreme Court of Canada in M. v. H., [1999] 2 S.C.R. 3, which concerned that portion of the definition of “spouse” in the Family Law Act, R.S.O. 1990, c. 220 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

F. 3, conferring certain rights on either a man or woman who are not married to each other but who live together in a “conjugal relationship.” In discussing the requirements of conjugal (i.e., marriage-like) relationships, Cory J. indicated that while financial dependence is a factor it is but one of many to be considered: [59] Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shel- ter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying de- grees and not all are necessary for the relationship to be found to be conjugal. While it is true that there may not be any consensus as to the societal perception of same-sex couples, there is agreement that same-sex couples share many other “conjugal” characteristics. In order to come within the definition, neither opposite-sex couples nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”. [Emphasis added by Frankel J.A.] [58] It is understandable that the presence or absence of any particular factor cannot be determinative of whether a relationship is marriage-like. This is because equally there is no checklist of characteristics that will invariably be found in all marriages. In this regard I respectfully agree with the following from the judgment of Ryan- Froslie J. in Yakiwchuk v. Oaks, 2003 SKQB 124: [10] Spousal relationships are many and varied. Individu- als in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property - in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important - for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their “spouse” by holding Weber v. Leclerc Groberman J.A. 221

hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public dis- plays of affection. Some “spouses” do everything together - others do nothing together. Some “spouses” vacation together and some spend their holidays apart. Some “spouses” have children - others do not. It is this variation in the way human beings structure their relationships that make the determination of when a “spousal relationship” exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Rela- tionships outside marriage are much more difficult to ascertain. Rarely is there any type of “public” declaration of intent. Often people begin cohabiting with little fore- thought or planning. Their motivation is often nothing more than wanting to “be together”. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people “ease into” situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist. [Emphasis added by Frankel J.A.] 22 Austin establishes that the question of whether a cohabiting couple are in a “marriage-like relationship” is a question of mixed fact and law that requires a broad approach: [62] The chambers judge properly took a holistic approach in finding that Ms. Goerz and Mr. Austin “were in a committed, marriage-like relationship for all purposes.” She had regard to all aspects of their relationship, including that there was minimal sharing of expenses and no commingling of assets. Based on the evidence it was open to the chambers judge to reach the conclusion she did and there is no basis on which this Court can interfere: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33 at para. 22. 23 The parties’ intentions — particularly the expectation that the relationship will be of lengthy, indeterminate duration — may be of importance in determining whether a relationship is “marriage-like”. While the court will consider the evidence expressly describing the parties’ inten- 222 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

tions during the relationship, it will also test that evidence by considering whether the objective evidence is consonant with those intentions. 24 The question of whether a relationship is “marriage-like” will also typically depend on more than just their intentions. Objective evidence of the parties’ lifestyle and interactions will also provide direct guidance on the question of whether the relationship was “marriage-like”. 25 Ms. Leclerc argues that approaches like that taken in Molodowich v. Penttinen [1980 CarswellOnt 274 (Ont. Dist. Ct.)] are nothing more than “checklists”, and do not adequately analyse the nature of a relationship. While I agree that a checklist approach is not appropriate, it is my view that cases like Molodowich are helpful as indicators of the sorts of behaviour that society, at a given point in time, associates with a marital relationship.

Did the Judge Err in Finding a “Marriage-Like Relationship”? 26 The summary trial judge in this case cited Austin and considered the evidence carefully. The finding that the parties were in, and intended to be in, a marriage-like relationship was open to her, and is entitled to deference. 27 In attacking the finding, Ms. Leclerc emphasizes the lack of financial interdependence between her and Mr. Weber. While that was properly one factor in assessing whether their relationship was “marriage-like” the judge made no error in finding that it was not decisive. 28 Ms. Leclerc also emphasizes her evidence that she would never have considered marriage to Mr. Weber or anyone else. It seems to me that such evidence is of very limited importance. No one suggests that Ms. Leclerc was married to Mr. Weber, nor that they contemplated getting married. It was the quality of their existing relationship that was important in this case, not their intentions to transform it into a marriage. 29 Several factors support the idea that the relationship in this case was marriage-like. The cohabitation was coupled with romantic and sexual relations, and it appears that the couple’s intentions were to remain together for an indefinite, but relatively lengthy, period. There were significant social interactions between them, and those interactions closely re- sembled those typical of married couples. For many purposes, they treated themselves and their children as a family unit. The judge found an expectation on the part of the parties that they would, during the currency of their relations, provide one another with emotional support. Weber v. Leclerc Groberman J.A. 223

30 To be sure, there were other factors that suggested something other than a marriage-like relationship. The somewhat limited role each of the parties undertook in relation to the other’s children, for instance, is not typical of a marriage. The fact that the parties treated themselves as “single” for income tax purposes and for the purposes of other government programs was of some significance. Mr. Weber’s reactions to Ms. Leclerc’s health difficulties were not what one would expect in a healthy marriage. 31 The weighing of these various factors was for the judge. She considered all of them, and was entitled to conclude, as she did, that the relationship was marriage-like.

Other Alleged Errors 32 Ms. Leclerc takes issue with certain other parts of the judgment, which can be dealt with briefly. 33 First, she notes that the judge stated at para. 24 that it was “unnecessary to make any finding of credibility to determine the issue”, but then made such findings: [26] ... I find that Ms. Leclerc’s descriptions of the relationship are a product of her disappointment in Mr. Weber’s lack of support when she was sick and that she has cynically revised the nature of their relationship as a result. [27] For example, her suggestion that she moved in with Mr. Weber solely for her son to benefit from sibling relationships is not believable. It may have been a by-product of the relationship, but she and Mr. Weber moved in because they were in love and they were sleep- ing together - like people who are married. It appears all of the children enjoyed the benefit. 34 I agree that the judge’s statement that it was “unnecessary to make any finding of credibility” may not have been entirely accurate. That said, the judge was not precluded from making credibility findings on a summary trial, and the credibility findings that she made were open to her. 35 Ms. Leclerc also takes issue with the judge’s statement that “[t]he evidence that is not contradicted ... is sufficient for me to determine whether Mr. Weber and Ms. Leclerc are spouses”. She argues that the judge was required to consider all of the evidence, and not to base her findings only on uncontradicted evidence. 224 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

36 While the judge was, of course, required to consider all of the evidence, it was open to her to find that the uncontradicted evidence was sufficient to establish that the relationship was marriage-like. I do not agree that such a finding amounted to ignoring the other evidence. 37 Ms. Leclerc particularly objects to the judge’s findings at para. 26 and 27 of her judgment, which I have quoted above. She says that her evidence was not contradicted, and that, absent cross-examination, the judge ought not to have found it not to be credible. I do not agree. Ms. Leclerc’s contention that she entered into cohabitation with Mr. Weber primarily to allow her son to benefit from being around other children was simply not believable. The judge was entitled to weigh the statements against common sense and common human experience. 38 While the judge may have been unnecessarily critical in suggesting that Ms. Leclerc’s revisionist re-construction of the relationship was “cynical”, her finding that it lacked credibility was entirely justifiable. 39 Finally, Ms. Leclerc argues that the matter ought not to have been decided by way of summary trial. As I have indicated, this is a difficult argument for Ms. Leclerc to make, given that she chose to bring the matter before the court by way of summary trial. In any event, I see no basis on which it could be argued that the case should not have been decided on affidavit evidence. It was also open to the judge to find that the issue of whether the relationship was marriage-like was appropriately severed from other issues in the litigation.

Conclusion 40 In the result, I would dismiss the appeal.

MacKenzie J.A.:

I agree

Goepel J.A.:

I agree Appeal dismissed. Gulevich v. Miller 225

[Indexed as: Gulevich v. Miller] Martina Gulevich, Cory Gulevich and Her Majesty the Queen in the Right of Alberta as Represented by the Minister of Health and Wellness, Appellants (Plaintiffs) and Murray Howard Miller, Respondent (Defendant) Alberta Court of Appeal Docket: Edmonton 1403-0210-AC 2015 ABCA 411 Jack Watson, Patricia Rowbotham, Brian O’Ferrall JJ.A. Heard: September 3, 2015 Judgment: December 23, 2015* Civil practice and procedure –––– Service of originating process — Service ex juris of originating process — Application to set aside order, service or document –––– Plaintiff patient was resident in Ontario and suffered from headaches and vision changes — Patient had CT scan and defendant diagnostic radiologist reviewed scan and reported results as normal — Patient moved to Al- berta where her headaches returned and worsened — Patient was diagnosed with malignant brain tumour and underwent surgery followed by intensive cancer treatment — Patient, her husband and province of Alberta commenced action in Alberta alleging that defendant was negligent — Plaintiffs obtained order for service outside Alberta and defendant was served in Ontario — Defendant successfully applied to set aside service — Plaintiffs appealed — Appeal allowed — Alberta court had jurisdiction over action — Injury suffered by patient was not defendant’s breach of duty of care, injury occurred and cause of action crystallized when patient would have elected to have craniotomy, had she been diagnosed properly — This occurred in Alberta — There could be no presumptive jurisdiction when plaintiff had suffered injury, left jurisdiction and pain and inconvenience accumulated elsewhere — Determining place where tort was committed could still be informed by place most substantially affected by defendant’s activities or its consequences — Province most substantially affected by defendant’s activities and its consequences was Alberta — Defendant failed to rebut presumption that tort was committed in Alberta — Once Alberta court had jurisdiction over negligence action, it could also adjudicate breach of contract claim.

* Additional reasons at Gulevich v. Miller (2016), 2016 CarswellAlta 75, 2016 ABCA 17, [2016] 5 W.W.R. 249 (Alta. C.A.). 226 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

Conflict of laws –––– Torts — Miscellaneous –––– Plaintiff patient was resident in Ontario and suffered from headaches and vision changes — Patient had CT scan and defendant diagnostic radiologist reviewed scan and reported results as normal — Patient moved to Alberta where her headaches returned and worsened — Patient was diagnosed with malignant brain tumour and underwent surgery followed by intensive cancer treatment — Patient, her husband and province of Alberta commenced action in Alberta alleging that defendant was negligent — Plaintiffs obtained order for service outside Alberta and defendant was served in Ontario — Defendant successfully applied to set aside service — Plaintiffs appealed — Appeal allowed — Alberta court had jurisdiction over action — Injury suffered by patient was not defendant’s breach of duty of care — Injury occurred and cause of action crystallized when patient would have elected to have craniotomy, had she been diagnosed properly — This occurred in Al- berta — There could be no presumptive jurisdiction when plaintiff had suffered injury, left jurisdiction and pain and inconvenience accumulated elsewhere — Determining place where tort was committed could still be informed by place most substantially affected by defendant’s activities or its consequences — Province most substantially affected by defendant’s activities and its consequences was Alberta — Defendant failed to rebut presumption that tort was committed in Alberta — Once Alberta court had jurisdiction over negligence action, it could also adjudicate breach of contract claim. The plaintiff patient was resident in Ontario and suffered from headaches and vision changes. Her family physician requisitioned a CT scan of her head. The defendant, a diagnostic radiologist, reviewed the scan and reported the results as normal. The patient’s headaches improved and she sought no further treatment in Ontario. The plaintiff moved to Alberta where her headaches returned and worsened. Tests were conducted that revealed a frontal lobe mass. The patient was diagnosed with a malignant brain tumour and underwent surgery followed by ongoing, intensive cancer treatment. A radiation oncologist who reviewed the Ontario CT scan noted an abnormality and opined that the conduct of the defendant fell below the standard of care. The patient, her husband and the province of Alberta commenced an action in Alberta alleging that the defendant was negligent. The plaintiffs obtained an order for service outside Alberta and the defendant was served in Ontario. The defendant applied to set aside service. The chambers judge found that the tort was committed in Ontario and since the location of the tort was a presumptive connecting factor between forum and action, Ontario had jurisdiction. The chambers judge also concluded that the plaintiffs had not rebutted the presumptive jurisdiction of Ontario. The service of the statement of claim was set aside. The plaintiffs appealed. Held: The appeal was allowed. Gulevich v. Miller 227

Per Watson J.A. (Rowbotham J.A. concurring): The Alberta court had jurisdiction over the action. Contrary to the position taken by the defendant, the injury suffered by the patient was not the defendant’s breach of the duty of care. The injury occurred and the cause of action crystallized when the patient would have elected to have a craniotomy, had she been diagnosed properly. This occurred in Alberta. There could be no presumptive jurisdiction when a plaintiff had suffered an injury, left the jurisdiction and pain and inconvenience accumulated elsewhere. The court declined to adopt a bright-line rule that arbitrarily located the tort in the place where the negligent conduct occurred. Determining the place where the tort was committed could still be informed by the place most substantially affected by the defendant’s activities or its consequences. The province most substantially affected by the defendant’s activities and its consequences was Alberta. The consequences of the defendant’s negligent report were significant to patient’s health in Alberta and it was Alberta that incurred significant costs. The defendant failed to rebut presumption that the tort was committed in Alberta. Once the Alberta court had jurisdiction over the negligence action, it could also adjudicate the breach of contract claim. Per O’Ferrall J.A. (concurring in result): Alberta could take jurisdiction over the claim, however, this conclusion should be based on the fact that a real and substantial connection existed between Alberta and the facts upon which the claim was based. It would be erroneous to treat the issue of where the tort was committed as being determinative of jurisdiction when the situs of the tort was only a presumptively connecting factor, albeit an important one. Where the situs of the tort was unclear or where the tort could fairly be characterized as multi- jurisdictional it would be erroneous to put too much reliance on the situs of the tort in determining jurisdiction. In this case, situating the tort did not provide resolution of the jurisdiction issue. The court ought to have focused on the real and substantial connection between Alberta and the facts upon which the claim was based. Cases considered by Jack Watson, Patricia Rowbotham JJ.A.: Banro Corp. v. Editions´ Ecosoci´et´´ e Inc. (2012), 2012 SCC 18, 2012 Carswell- Ont 4270, 2012 CarswellOnt 4271, 343 D.L.R. (4th) 647, 91 C.C.L.T. (3d) 105, 18 C.P.C. (7th) 1, 429 N.R. 293, 291 O.A.C. 277, (sub nom. Editions´ Ecosoci´et´´ e Inc. v. Banro Corp.) [2012] 1 S.C.R. 636, [2012] S.C.J. No. 18 (S.C.C.) — followed Cartledge v. E. Jopling & Sons (1963), [1963] A.C. 758, [1963] 1 All E.R. 341, [1963] 2 W.L.R. 210 (U.K. H.L.) — followed Central Sun Mining Inc. v. Vector Engineering Inc. (2013), 2013 ONCA 601, 2013 CarswellOnt 13749, 24 C.L.R. (4th) 27, 117 O.R. (3d) 313, 310 O.A.C. 391, 46 C.P.C. (7th) 60, 4 C.C.L.T. (4th) 175 (Ont. C.A.) — referred to Clements (Litigation Guardian of) v. Clements (2012), 2012 SCC 32, 2012 Car- swellBC 1863, 2012 CarswellBC 1864, [2012] 7 W.W.R. 217, 31 B.C.L.R. 228 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

(5th) 1, 93 C.C.L.T. (3d) 1, 29 M.V.R. (6th) 1, 346 D.L.R. (4th) 577, (sub nom. Clements v. Clements) 431 N.R. 198, [2012] S.C.J. No. 32, (sub nom. Clements v. Clements) [2012] 2 S.C.R. 181, (sub nom. Clements v. Cle- ments) 331 B.C.A.C. 1, (sub nom. Clements v. Clements) 565 W.A.C. 1 (S.C.C.) — considered Cottrelle v. Gerrard (2003), 2003 CarswellOnt 4154, 178 O.A.C. 142, 233 D.L.R. (4th) 45, 20 C.C.L.T. (3d) 1, 67 O.R. (3d) 737, [2003] O.J. No. 4194 (Ont. C.A.) — considered Leonard v. Houle (1997), 36 O.R. (3d) 357, 154 D.L.R. (4th) 640, 105 O.A.C. 129, 1997 CarswellOnt 4123, 33 M.V.R. (3d) 210, 50 C.C.L.I. (2d) 196, 41 C.C.L.T. (2d) 182, [1997] O.J. No. 4563 (Ont. C.A.) — considered Moran v. Pyle National (Canada) Ltd. (1973), [1975] 1 S.C.R. 393, [1974] 2 W.W.R. 586, 43 D.L.R. (3d) 239, 1 N.R. 122, 1973 CarswellSask 132, 1973 CarswellSask 146, [1973] S.C.J. No. 149 (S.C.C.) — followed Morguard Investments Ltd. v. De Savoye (1990), 46 C.P.C. (2d) 1, 15 R.P.R. (2d) 1, 76 D.L.R. (4th) 256, 122 N.R. 81, [1991] 2 W.W.R. 217, 52 B.C.L.R. (2d) 160, [1990] 3 S.C.R. 1077, 1990 CarswellBC 283, 1990 CarswellBC 767, [1990] S.C.J. No. 135, EYB 1990-67027 (S.C.C.) — followed Peixeiro v. Haberman (1997), 1997 CarswellOnt 2928, 1997 CarswellOnt 2929, 151 D.L.R. (4th) 429, [1997] S.C.J. No. 31, 103 O.A.C. 161, 30 M.V.R. (3d) 41, [1997] 3 S.C.R. 549, 12 C.P.C. (4th) 255, 46 C.C.L.I. (2d) 147, 217 N.R. 371 (S.C.C.) — considered Phillips v. Phillips (2006), 2006 ABCA 19, 2006 CarswellAlta 46, 21 E.T.R. (3d) 194, 384 A.R. 34, 367 W.A.C. 34, [2006] A.J. No. 33 (Alta. C.A.) — referred to Van Breda v. Village Resorts Ltd. (2012), 2012 SCC 17, 2012 CarswellOnt 4268, 2012 CarswellOnt 4269, 343 D.L.R. (4th) 577, 91 C.C.L.T. (3d) 1, 17 C.P.C. (7th) 223, 10 R.F.L. (7th) 1, 429 N.R. 217, [2012] S.C.J. No. 17, [2012] A.C.S. No. 17, 291 O.A.C. 201, (sub nom. Club Resorts Ltd. v. Van Breda) [2012] 1 S.C.R. 572, (sub nom. Charron Estate v. Village Resorts Ltd.) 114 O.R. (3d) 79 (note) (S.C.C.) — followed

Cases considered by Brian O’Ferrall J.A.: Moran v. Pyle National (Canada) Ltd. (1973), [1975] 1 S.C.R. 393, [1974] 2 W.W.R. 586, 43 D.L.R. (3d) 239, 1 N.R. 122, 1973 CarswellSask 132, 1973 CarswellSask 146, [1973] S.C.J. No. 149 (S.C.C.) — followed Morguard Investments Ltd. v. De Savoye (1990), 46 C.P.C. (2d) 1, 15 R.P.R. (2d) 1, 76 D.L.R. (4th) 256, 122 N.R. 81, [1991] 2 W.W.R. 217, 52 B.C.L.R. (2d) 160, [1990] 3 S.C.R. 1077, 1990 CarswellBC 283, 1990 CarswellBC 767, [1990] S.C.J. No. 135, EYB 1990-67027 (S.C.C.) — followed Van Breda v. Village Resorts Ltd. (2012), 2012 SCC 17, 2012 CarswellOnt 4268, 2012 CarswellOnt 4269, 343 D.L.R. (4th) 577, 91 C.C.L.T. (3d) 1, 17 C.P.C. (7th) 223, 10 R.F.L. (7th) 1, 429 N.R. 217, [2012] S.C.J. No. 17, Gulevich v. Miller Jack Watson, Patricia Rowbotham JJ.A. 229

[2012] A.C.S. No. 17, 291 O.A.C. 201, (sub nom. Club Resorts Ltd. v. Van Breda) [2012] 1 S.C.R. 572, (sub nom. Charron Estate v. Village Resorts Ltd.) 114 O.R. (3d) 79 (note) (S.C.C.) — followed Rules considered by Jack Watson, Patricia Rowbotham JJ.A.: Alberta Rules of Court, Alta. Reg. 124/2010 R. 11.25(1) — considered R. 11.25(3) — considered R. 11.25(3)(d) — considered

Rules considered by Brian O’Ferrall J.A.: Alberta Rules of Court, Alta. Reg. 124/2010 Generally — referred to R. 11.25 — considered R. 11.25(1) — considered R. 11.25(3) — considered

APPEAL of judgment reported at Gulevich v. Miller (2014), 2014 ABQB 377, 2014 CarswellAlta 1038, 57 C.P.C. (7th) 116, 591 A.R. 27 (Alta. Q.B.), granting defendant’s application for order setting aside service of statement of claim as well as direction that Alberta court lacked jurisdiction to entertain action.

P. Tinkler, for Appellants L. Inglis, for Respondent

Jack Watson, Patricia Rowbotham JJ.A.: I. Introduction 1 This appeal raises the difficult issue of situating a tort in order to establish jurisdiction. Ms. Gulevich, her husband, and Her Majesty the Queen in Right of Alberta as represented by the Minister of Health and Wellness commenced an action in Alberta alleging, among other things, negligence on the part of the respondent physician who at the relevant time resided and practiced in Ontario. The appellants obtained an order for service outside Alberta (formerly, ex juris). When the respondent was served in Ontario, he applied to set aside service. The chambers judge granted the application. 2 We allow the appeal.

II. Background 3 In November 2007, Ms. Gulevich lived in Ontario. She suffered from headaches and vision changes. Her family physician referred her to a 230 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

neurologist who prescribed medication for the headaches. The family physician also requisitioned a CT scan of Ms. Gulevich’s head. She had the CT scan on November 16, 2007, and the following day the respondent, a diagnostic radiologist practising in Ontario, reviewed the scan results and reported the results as normal. On December 10, 2007, Ms. Gulevich consulted with her family physician who advised her that the CT scan result was normal. She told him that her headaches had improved. The family physician’s chart states that her condition was stable and apart from a concern about mononucleosis in the workplace, Ms. Gulevich reported that she was otherwise well. 4 Ms. Gulevich sought no further treatment in Ontario and in February 2008, moved to Fort McMurray, Alberta. When her headaches recurred in 2008, she consulted a family physician in Fort McMurray. Over the next few years her symptoms worsened, and ultimately her family physician requisitioned expedited MRI and CT scans. The tests were conducted in July 2011, and revealed a frontal lobe mass. Ms. Gulevich was flown to Edmonton that day. She was diagnosed with a malignant brain tumour and underwent surgery to remove the tumour. This was followed with ongoing, intensive cancer treatment in Edmonton. 5 A radiologist and a radiation oncologist retained by the appellants reviewed the November 16, 2007, CT scan. The radiologist noted an abnormality with a diameter of about 3 cm on the front portion of the lower part of the left frontal lobe. He said that it would have been readily iden- tifiable because of its size, its presence on multiple images and the relatively marked degree of darkness on the CT scan. He compared this to the MRI taken on July 5, 2011 which identified a mass in the same area which measured 6.5 cm, noting that the diameter of the mass had more than doubled. This corresponded to an increase in the tumour by more than a factor of eight times. He concluded that the large tumour clearly represented an enlargement of the tumour visible on the November 16, 2007 CT scan. He opined that the conduct of the respondent fell below the standard of care of a reasonable radiologist. 6 The radiation oncologist’s opinion included a discussion of the op- tions available to Ms. Gulevich if the tumour had been diagnosed in 2007. He said: If this patient’s tumour had been diagnosed when it still appeared to be low grade on imaging (non-enhancing), one option would have been to observe it. Another option would have been to recommend a craniotomy at the point at which Ms. Gulevich’s headaches became Gulevich v. Miller Jack Watson, Patricia Rowbotham JJ.A. 231

sufficiently troublesome or when there was progression, either in the low-grade tumour itself or in the form of dedifferentiation to high- grade disease. She would have had to consider the risks associated with the procedure and then decide whether and when to proceed with it. Surgery would have given the diagnosis and may well have resolved the headache problem. 7 He further opined that the dedifferentiation from a low-grade (non- malignant) to a high-grade (malignant) tumour would likely have occurred in late 2010 to 2011. He concluded that the “impact that the tumour was not diagnosed in 2007 became relatively modest until mid to late 2009 when the headaches began to become progressively worse. This would have been associated with a much stronger case for performing a craniotomy and, afterward, for considering treatment to follow.” Ms. Gulevich deposed that had she been properly diagnosed, she would have elected to have a craniotomy in 2008. 8 On June 6, 2013, the appellants commenced this action and served the respondent in Ontario. The Alberta Rules of Court, AR 124/2010 (with emphasis added) for service outside Alberta provide: 11.25(1) A commencement document may be served outside Alberta and in Canada only if (a) a real and substantial connection exists between Alberta and the facts on which a claim in the action is based, and (b) the commencement document discloses the facts in support and specifically refers to the grounds for service of the document outside Alberta and in Canada. [...] (3) Without limiting the circumstances in which a real and substantial connection may exist between Alberta and the facts on which a claim in an action is based, in the following circumstances a real and substantial connection is presumed to exist: ... (d) the claim relates to a tort committed in Alberta ... 9 The presumption in r 11.25(3) accords with the Supreme Court’s decision in Van Breda v. Village Resorts Ltd., 2012 SCC 17, [2012] 1 S.C.R. 572 (S.C.C.) at paras 82 and 90. There LeBel J proposed a non- exhaustive framework of four objective connecting factors between the subject matter of the litigation and the forum. The presence of these factors establishes presumptive, rebuttable jurisdiction in tort cases; only one applies on these facts: “the tort was committed in the province”. 232 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

III. Decision of the Chambers Judge: Gulevich v. Miller, 2014 ABQB 377 (Alta. Q.B.) 10 The chambers judge found that the tort was committed in Ontario and since the location of the tort is a presumptive connecting factor between forum and action, Ontario had jurisdiction. He rejected the appellants’ argument that the location of the tort was Alberta because Ms. Gulevich’s injuries occurred after she moved to Fort McMurray. He preferred to locate the tort in Ontario, which was the place where “the wrongful act, from which the damage flows, was clearly committed”: para 25. 11 The chambers judge also concluded that Ms. Gulevich had not rebutted the presumptive jurisdiction of Ontario because the misdiagnosis in Ontario did not amount to a “relatively minor” element of the multi-jurisdictional tort; rather, it was the “foundation of her claim” and the “incident causative to [her] damages”: para 27. 12 Accordingly, he set aside service of the statement of claim. Although he had concluded that the Alberta court had no jurisdiction, he commented that if he had been required to consider which of Ontario or Al- berta was the forum conveniens, he would have found that the dispute should be adjudicated in Alberta.

IV. Grounds of Appeal and Standard of Review 13 Two issues arise in this appeal. First, where was the initial injury occur: Ontario or Alberta? Second, if the negligent act occurred in Ontario and the initial injury occurred in Alberta, where was the tort committed? The first issue is a question of fact, reviewed for palpable and overriding error. The second question asks which province has a real and substantial connection to the claim. It is a question of law reviewed for correctness: Phillips v. Phillips, 2006 ABCA 19 (Alta. C.A.) at para 60, (2006), 384 A.R. 34 (Alta. C.A.).

V. Analysis 14 Our analysis is necessarily based upon allegations in the statement of claim and reports of expert physicians retained by the appellants. The respondent has not yet defended, nor have the opinions of the experts been tested in cross-examination or challenged by the opinions of other experts. Accordingly, when we speak of the “negligent” act of the respondent or a breach of contract, we do so hypothetically on the basis Gulevich v. Miller Jack Watson, Patricia Rowbotham JJ.A. 233

that the allegations will be proven or admitted, see generally Van Breda at para 72. 15 Rather than using the grounds of appeal as the basis for our analysis, we prefer to discuss the appeal using the framework from the Van Breda trilogy. That is: (a) did the plaintiffs establish the presumptive factor that, “the tort was committed in Alberta”; and, if so, (b) did the defendant adduce sufficient evidence to rebut the presumption?

A. Did the appellants satisfy the presumptive factor: “the tort was committed in Alberta”? 16 The chambers judge found that the injury occurred in Ontario because from the moment of the respondent’s negligent reading of the CT scan, Ms. Gulevich was denied medical services appropriate to her condition. The respondent asserts that this conclusion is entitled to deference.

i. General Principles 17 It is important not to lose sight of very general principles: the burdens of proof and elements of the tort of negligence.

a. Onus 18 It is the plaintiff’s onus to establish that a presumptive connecting factor to the plaintiff’s chosen jurisdiction exists and the defendant’s onus to rebut the presumption: Van Breda and its companion case, Banro Corp. v. Editions´ Ecosoci´et´´ e Inc., 2012 SCC 18, [2012] 1 S.C.R. 636 (S.C.C.). In those cases the plaintiff sued in its preferred jurisdiction and the defendants applied for a declaration that the plaintiff’s preferred jurisdiction lacked a “real and substantial connection”. If successful, “the court might presume, absent indications to the contrary, that the claim is properly before it under the conflicts rules and that it is acting within the limits of its constitutional jurisdiction”: Van Breda at para 80. Said another way, the “party arguing that the court should assume jurisdiction has the burden of identifying a presumptive connecting factor that links the subject matter of the litigation to the forum”: Van Breda at para 100. 19 The appellants pleaded “the claim relates to a tort committed in Al- berta” which requires them to discharge the burden. If successful, “the burden of rebutting [the presumption that Alberta is the proper forum] rests on the party challenging the assumption of jurisdiction”, here the respondent doctor: Van Breda at para 99. The defendant can rebut the presumption by showing that the “presumptive factor does not point to 234 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

any real relationship between the subject matter of the litigation and the forum or points only to a weak relationship between them.”: para 95. 20 Although the chambers judge misapprehended the onus, nothing turns on that given our conclusions.

b. Elements of a Medical Malpractice Action 21 As the respondent states, a medical malpractice action has four elements: the doctor owed the patient a duty of care; the applicable standard of care was breached; the patient suffered an injury or loss; and the doctor’s conduct was the actual and legal cause of the injury or loss. 22 In cases of delayed diagnosis, the last factor, causation, is analyzed using the “but for” test: Cottrelle v. Gerrard (2003), 178 O.A.C. 142 (Ont. C.A.) at para 25, (2003), 233 D.L.R. (4th) 45 (Ont. C.A.), leave to appeal to SCC dismissed. However, the issue in Cottrelle was liability which depended on proving causation, i.e., whether the plaintiff had proven on the balance of probabilities that the defendant doctor’s delayed diagnosis caused or contributed to the injury: Cottrelle at paras 13-14. That is not the issue before this court; we are concerned with establishing jurisdiction. 23 In negligence, the word “tort” is capable of two meanings: breach of a legal duty of care (referring to the first and second elements in para 8) and a cause of action (referring to all four of the elements). For the purposes of this appeal we prefer the latter, broader interpretation; a plaintiff “sues because he has been hurt [and] the duty owed is a duty not to in- jure”: by Moran v. Pyle National (Canada) Ltd. (1973), [1975] 1 S.C.R. 393 (S.C.C.) at 402, (1973), 43 D.L.R. (3d) 239 (S.C.C.) per Dickson J. Similarly, an action in negligence requires “an injury”, that is, “the loss for which the plaintiff claims compensation”: Clements (Litigation Guardian of) v. Clements, [2012] 2 S.C.R. 181 (S.C.C.) at para 12, 2012 SCC 32 (S.C.C.) (the third element of para 8). A patient cannot succeed in a negligence action against a physician “without proving that he or she has suffered a material injury, also called ‘loss’ or ‘damage’.”: Ellen I. Picard and Gerald B. Robertson, Legal Liability of Doctors and Hospi- tals in Canada, 4th ed (Toronto: Thomson Carswell, 2007) at 257.

c. What is the “injury” and where did it occur? 24 The respondent’s position is that but for the breach of the duty of care the tumour wo uld have been properly monitored and appropriate steps taken to address any worsening of the symptoms. Gulevich v. Miller Jack Watson, Patricia Rowbotham JJ.A. 235

25 Contrary to the submissions of the respondent, the “injury” suffered by Ms. Gulevich was not the respondent’s breach of the duty of care. No possibility of legal action existed at this point; no compensable injury had yet occurred. 26 In our view, the question that needs to be answered in order to establish whether “the tort was committed in Alberta” is what would have happened had the CT scan been read properly? That question is answered by the radiation oncologist. He opined that with a proper diagnosis of the low-grade tumour in November 2007, the appropriate course would have been continuous monitoring of the tumour’s growth and a craniotomy when the headaches became sufficiently troublesome or when tumour progression was detected. It was not until mid- to late-2008 — after Ms. Gulevich had moved to Alberta — that she began complaining of worsening headaches. Had the physicians been aware of the low-grade tumour, a craniotomy would have been recommended. Ms. Gulevich deposed that had she been diagnosed properly, she would have elected to have a craniotomy in late 2008. In our view of the case, this was when the injury occurred and the cause of action crystallized. But for the negligent CT scan report, Ms. Gulevich would have elected to have surgery in 2008 before the tumour dedifferentiated into a malignant, high-grade tumour. 27 This occurred in Alberta. 28 How do we locate the tort for the purposes of establishing jurisdiction when breach of the duty of care occurred in Ontario and the injury manifested in Alberta? The respondent’s position is that Van Breda requires that the tort be located according to the place of the defendant’s negligent act. He contends that even if the injury was sustained in Alberta, applying the reasoning of LeBel J in Van Breda, the tort cannot be situated in Alberta.

ii. The Van Breda Trilogy and the Cases that Preceded It 29 What is meant by the presumptive factor, “the tort was committed in the province”? In order to answer that question, the jurisprudential history that led to the trilogy must first be understood. As explained in Mo- ran, there were two competing theories for determining jurisdiction in tort actions: Place of Acting or “Place of the Breach” Approach The theory has the effect of dividing a tort into its constituent elements, the tort of negligence being divided into (1) a duty of care; (2) 236 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

breach of that duty, and (3) damage, and each of these metaphysical fragments is given a geographic ascription. The jurisdiction in which the careless act is alleged to have occurred is, however, held to be determinative, to the exclusion of the jurisdiction in which the hurt was suffered. Place of Harm or “Damage Sustained” Approach The second theory is “that it is necessary and sufficient that the last ingredient of the cause of action [damage], the event which com- pletes the cause of action and brings it into being, has occurred within the jurisdiction”, irrespective of its importance. [Emphasis Added.] In Moran, Dickson J concluded that “in determining where a tort has been committed, it is unnecessary, and unwise, to have resort to any arbitrary set of rules”. 30 La Forest J cited Moran for the proposition that “it is simply anachronistic to uphold a ... a single situs for torts ... for the proper exercise of jurisdiction.”: Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077 (S.C.C.) at 1109. 31 Determining the location of the tort was not an issue in Van Breda because there the injuries from the two accidents occurred in Cuba and, in any event, the Ontario courts took jurisdiction on the basis of a breach of contract. Accordingly, the location of the tort was not examined in detail. 32 However, location of the tort was very much in issue in the companion case, Editions´ Ecosociété´ . The defendants (authors, researchers and editors who worked and resided in Quebec, and Editions´ Ecosociét´´ e, a publishing corporation based in Quebec) published nearly 5,000 copies of an allegedly defamatory book of which 93 copies were distributed in bookstores and libraries in Ontario. The plaintiff filed its statement of claim in Ontario and the defendants applied for a stay, submitting that there was no real and substantial connection between the tort and On- tario. The Supreme Court concluded that the place of crystallization of the tort (publication in Ontario) meant the tort was committed in Ontario. 33 The following paragraphs, from Van Breda and Editions´ Ecosociété´ are instructive (with emphasis): Van Breda [88] The situs of the tort is clearly an appropriate connecting factor, as can be seen from [various legislative provisions] and the jurispru- Gulevich v. Miller Jack Watson, Patricia Rowbotham JJ.A. 237

dence of this Court since Tolofson. The difficulty lies in locating the situs. ... [89] The use of damage sustained as a connecting factor may raise difficult issues. For torts like defamation, sustaining damage com- pletes the commission of the tort and often tends to locate the tort in the jurisdiction where the damage is sustained. In other cases, the situation is less clear. The problem with accepting unreservedly that if damage is sustained at a particular place, the claim presumptively falls within the jurisdiction of the courts of the place, is that this risks sweeping into that jurisdiction claims that have only a limited relationship with the forum. An injury may happen in one place, but the pain and inconvenience resulting from it might be felt in another country and later in a third one. As a result, presumptive effect cannot be accorded to this connecting factor. [...] [96] ... [W]here the presumptive connecting factor is the commission of a tort in the province, rebutting the presumption of jurisdiction would appear to be difficult, although it may be possible to do so in a case involving a multi-jurisdictional tort where only a relatively mi- nor element of the tort has occurred in the province. [97] ... [I]t is arguable that the presumptive connecting factor points to a weak relationship between the forum and the subject matter of the litigation and that it would accordingly not be reasonable to expect that the defendant would be called to answer proceedings in that jurisdiction. In such circumstances, the real and substantial connection test would not be satisfied and the court would lack jurisdiction to hear the dispute. Editions´ Ecosoci´et´e´ [3] The tort of defamation presents an interesting challenge for the principles underlying the assumption of jurisdiction. At common law, the tort of defamation crystallizes upon publication of the libellous material.... The tort of defamation will thus crystallize in all jurisdic- tions where the book is available. .... Is it sufficient, however, that the defamatory book be available in a jurisdiction for a court to assume jurisdiction over a defamation claim involving that book? ... [4] ... The assumption of jurisdiction is justified under the real and substantial connection test where there exist appropriate objective factors connecting the plaintiff’s claim to his or her chosen forum. [...] 238 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

[37] ... When the analytical framework identified in Club Resorts is applied, it is clear that there is a real and substantial connection between Banro’s claim and Ontario. [38] Here, the alleged tort of defamation occurred in Ontario. [The book] was distributed in Ontario. ... evidence adduced by Banro ... establishes that 15 copies ... were circulated in Ontario libraries and one copy was checked out. In addition, Banro adduced evidence establishing that its reputation in Ontario is vital to conducting business.... [39] As discussed in Club Resorts, the commission of a tort in On- tario is a recognized presumptive connecting factor that prima facie entitles the Ontario court to assume jurisdiction over this dispute. For the reasons discussed above, [Editions´ Ecosoci´et´e´ et al] have not shown that only a minor element of the tort of defamation occurred in Ontario. As a result, they have not displaced the presumption of jurisdiction that arises in this case. [Emphasis Added] 34 In summary, having affirmed that the place where the tort was committed was a presumptive connecting factor, LeBel J acknowledged there might be cases when difficulties exist in identifying that location: para 89 of Van Breda. In that passage, he recognized the problems associated with using “damage sustained” as a presumptive connecting factor for jurisdictional purposes. The respondent submits that this leads to the conclusion that “the tort is committed in the province” where the duty of care is breached. 35 We do not read LeBel J as establishing a bright-line rule. Our interpretation is consistent with LeBel J’s holding that fostering stability and predictability in private international law requires that the inquiry “should turn primarily on the identification of objective factors that might link a legal situation or the subject matter of the litigation to the court that is seized of it.”: para 75. He repeated at para 82: “[j]urisdiction must ... be established primarily on the basis of objective factors that connect the legal situation or the subject matter of the litigation with the forum.” He also clarified that general principles should not be confused with the objective factual connections that are necessary to ground jurisdiction: para 84. 36 Two interpretations of Van Breda are possible. 37 The first suggests that “damage sustained” approach is unequivocally rejected and the place of the defendant’s negligent conduct always locates a tort. In effect, this interpretation adopts the “place of acting/place Gulevich v. Miller Jack Watson, Patricia Rowbotham JJ.A. 239

of breach” theory expressly rejected in Moran and Morguard as too arbitrary. The conundrum posed by this interpretation is that an action in negligence requires “an injury”, that is, “the loss for which the plaintiff claims compensation”: Clements at para 12. Similarly, in Editions´ Ecosoci´et´e´ the tort was situated where the tort crystalized, i.e., where the damage was sustained. It is not clear why this principle should not apply to negligence torts. 38 Ms. Gulevich could not have sued while still in Ontario because at that time there was no “injury” for which she could be compensated. Nor was any treatment advisable at that stage. Her injury occurred in 2008, after she had moved to Alberta. The difficulty is best illustrated by Cartledge v. E. Jopling & Sons, [1963] A.C. 758 (U.K. H.L.), a case about pneumoconiosis which occurs when “minute particles which enter the lung tissue causes some microscopic injury and permanent scarring, but a reasonable application of the de minimis rule postpones the first damage for legal purposes to the point at which the accumulated scarring is sufficient to diminish appreciably the elasticity of the lungs and de- prive them of much of their reserve capacity; that point is not likely to be reached for several years, and may not be reached for many years, but when it is reached there is the damage completing the cause of action”. At page 771, Lord Reid held: “it is now too late for the courts to question or modify the rules that a cause of action accrues as soon as a wrongful act has caused personal injury beyond what can be regarded as negligible”. Lord Pearce said the “cause of action accrued when it reached a stage, whether known or unknown, at which a judge could properly give damages for the harm that had been done”: at 781. This dicta was approved in Peixeiro v. Haberman, [1997] 3 S.C.R. 549, 151 D.L.R. (4th) 429 (S.C.C.), a limitations case. The Supreme Court said that: “[o]nce the plaintiff knows that some damage has occurred and has identified the tortfeasor ..., the cause of action has accrued. Neither the extent of damage nor the type of damage need be known”: para 18. 39 A second interpretation is that “damage sustained” refers only to the “pain and inconvenience” (i.e., damage that continues to accumulate), not to “injury”. That is, if the plaintiff moves from the jurisdiction where the “injury” or harm caused by the negligent conduct, and suffers pain and inconvenience there, this cannot be a presumptive factor connecting that jurisdiction. Said differently, when viewed this way, it can be argued that LeBel J never intended to exclude the place where the injury occurred as a place to locate the tort; he simply meant to clarify that a plaintiff’s resulting pain or inconvenience consequent on the negligent 240 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

conduct and the initial injury was an insufficient basis for assuming jurisdiction. This interpretation is consistent with other Supreme Court authority, including Moran, Morguard and Editions´ Ecosociété´ . 40 A further ambiguity arises because of the examples given by LeBel J as to how a defendant might negate a presumptive connecting factor. He posited that rebutting the jurisdiction would be difficult but “possible to do so in a case involving a multi-jurisdictional tort where only a relatively minor element of the tort has occurred in the province:” Van Breda at para 96 with emphasis added. The chambers judge rejected the contention that the negligent act was a “minor” element. 41 This seems to suggest that some torts can be parsed into constituent elements, with the location of the “major” elements being used to situate the tort. This begs the question of how to characterize the constituent elements of a tort into “minor” and “major” elements for jurisdictional purposes. The approach used in Cartledge v. E. Jopling & Sons appears to provide a possible answer: the failure to diagnosis is a wrong but if, at that time, the harm is de minimus or negligible, then it is a minor element. Said another way, it only once the cause of action crystallizes that an injury warranting a remedy accrues. 42 In summary, we interpret the comments of LeBel J as meaning that there can be no presumptive jurisdiction when a plaintiff has suffered an injury, left the jurisdiction and pain and inconvenience accumulates elsewhere. However, we do not read the passage as suggesting that the place where the injury (the compensable harm) occurred can have no real and substantial connection to the action. LeBel J used the word “injury” as distinct from “pain and inconvenience”. The use of the word “injury” juxtaposed with the words “pain and inconvenience resulting” from the injury implies a distinction between the initial injury, and mere lingering or continuing damage. LeBel J was concerned that giving jurisdiction to a place where a plaintiff sustains pain and inconvenience creates uncer- tainty and opens the door to forums taking jurisdiction over tort actions that have little connection to the matter beyond the location of the plaintiff. 43 Accordingly, we decline to adopt a bright-line rule that arbitrarily locates the tort in the place where the negligent conduct occurred. “Crystal- lization” of the tort is what led in Editions´ Ecosociété´ to locate the tort in Ontario. Applying that to the facts of this appeal, when Ms Gulevich’s headaches increased and the prudent course of action would have been a Gulevich v. Miller Jack Watson, Patricia Rowbotham JJ.A. 241

craniotomy (all of which occurred in 2008), the tort crystallized. That injury is what locates this tort in Alberta.

iii. Reconciling the Van Breda trilogy with Moran 44 The appellants argue that Moran was not overruled by the Van Breda trilogy and still governs the location of a tort for jurisdictional purposes. It is true that Van Breda did not explicitly overturn Moran and credited it as introducing the concept of “real and substantial connection” into Ca- nadian law. In our view, if Moran is understood as grounding jurisdiction over a tort in the place most “substantially affected by the defendant’s activities or its consequences”, then it is reconcilable with jurisdiction in the Van Breda trilogy. 45 Moran explicitly rejected the arbitrary place of acting and place of damage theories and preferred not to use one of the tort’s constituent elements to dictate situs. Van Breda clarified that the mere presence of a plaintiff in a forum or the continued accumulation of harm in a forum is insufficient to ground jurisdiction. 46 In our view, determining the place where the tort was committed can still be informed by the test in Moran: the place most substantially affected by the defendant’s activities or its consequences. 47 This is borne out in cases that dealt with other torts. In the context of the tort of negligent misrepresentation, courts have made clear that the situs of the tort is the place where the misrepresentation or misinforma- tion is received and relied on or acted upon: Central Sun Mining Inc. v. Vector Engineering Inc., 2013 ONCA 601, 117 O.R. (3d) 313 (Ont. C.A.). 48 In Leonard v. Houle (1997), 36 O.R. (3d) 357, 105 O.A.C. 129 (Ont. C.A.), the court explained: While there may be situations where the issue of where the tort takes place will raise ‘thorny issues’, but and perhaps also raise issues of public policy, this is not such a case. It seems clear to me that the wrong occurred in the Province of Quebec because the injury occurred there. The plaintiffs are not suing because the Ottawa police breached their duty ... [or] failed to adequately warn .... They are suing because Leonard was injured in the resulting car accident in the Province of Quebec. The activity which took place in the Province of Ontario, even if found to constitute a breach of duty ..., does not amount to an actionable wrong. There is no actionable wrong without the injury. 242 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

iv. Support for the contextual test in secondary sources 49 Support for a contextual test for determining a tort’s situs is found in secondary sources. PM North & JJ Fawcett, Cheshire and North Private International Law, 11th ed (London: Butterworths, 1987) at 538-544 rejected the fixed rules of the place of acting and place of harm for determining jurisdiction over a tort because it may not always be possible to localize a defendant’s conduct or the ensuing harm to one location: p 539-540. The authors interpreted Moran as adopting a jurisdictional test for torts in the place “substantially affected by the defendant’s activities or its consequences and whose law is likely to have been in the reasonable contemplation of the parties”: p 540. The authors suggest that the “basis upon which the locus of the tort is determined varies from tort to tort”: p 541. 50 Janet Walker, ed, Castel & Walker Canadian Conflict of Laws, 6th ed (Markham, Ont: LexisNexis, 2006) (loose-leaf revision 45:9) ch 11.12 at 11-55-56 similarly espouse a flexible, tort-specific test for determining situs: Where a wrongful act occurs in one place and harm is suffered in another, it is unnecessary and unwise in determining where the tort has occurred to have to resort to any arbitrary or inflexible rules such as those suggested by the place of acting and the place of harm theories. Rather, it may be appropriate to regard the tort as having occurred in any place that was substantially affected by the defendant’s activities or its consequences and the law of which is likely to have been in the reasonable contemplation of the parties.

v. Other Considerations 51 It is important not to lose sight of the fact that this case occurred entirely in Canada. Although said in the context of the enforcement of extra-territorial judgments, the comments of La Forest J in Morguard have relevance here. He cautioned that the principles associated with foreign conflict of laws considerations are of lesser import within the Canadian federation. The integrating character of our constitutional arrangements as they apply to interprovincial mobility is such that some writers have suggested that a “full faith and credit” clause must be read into the Con- stitution and that the federal Parliament is, under the “Peace, Order and Good Government” clause, empowered to legislate respecting the recognition and enforcement of judgments throughout Canada; see, for example, Black, op. cit., and Hogg, op. cit. The present case Gulevich v. Miller Jack Watson, Patricia Rowbotham JJ.A. 243

was not, however, argued on that basis, and I need not go that far. For present purposes, it is sufficient to say that, in my view, the application of the underlying principles of comity and private international law must be adapted to the situations where they are applied, and that in a federation this implies a fuller and more generous acceptance of the judgments of the courts of other constituent units of the federation. In short, the rules of comity or private international law as they apply between the provinces must be shaped to conform to the federal structure of the Constitution.

vi. Conclusion 52 Applying the Van Breda trilogy and the guidance from Moran we conclude that the province most substantially affected by the respondent’s activities and its consequences is Alberta. Although the CT scan report was rendered in Ontario, it accompanied Ms. Gulevich to Alberta. Ms. Gulevich left Ontario with no medical complaint other than a question about mononucleosis in the workplace. But she brought with her to Alberta the negligent report of her medical condition. The consequences of the negligent act were that the Alberta physicians who attended upon Ms. Gulevich initially relied upon the respondent’s report. As a result, Ms. Gulevich continued to receive treatment inappropriate to her condition and her symptoms worsened. When the correct diagnosis was finally received, she underwent intensive brain surgery and cancer treatment in Alberta. The consequences of the respondent’s negligent report were significant to Ms. Gulevich’s health in Alberta. And while we do not wish to be interpreted as saying that the amount of harm affects the location of the tort, it is the appellant Province of Alberta that has also incurred significant cost while the Province of Ontario did not. 53 On these facts we conclude that the tort was committed in Alberta.

C. Rebutting the Presumption that the Tort was Committed in Alberta 54 Did the respondent rebut the presumption that the tort was committed in Alberta? We have addressed the respondent’s primary argument about its interpretation that Van Breda unequivocally rejected the “damage sustained” approach and held that a tort was “committed” in the jurisdiction where the negligent act took place. The respondent’s secondary arguments concerned Cottrelle and causation but as we noted earlier, we are not concerned in this appeal with whether the appellants have proven liability, i.e., causation; the issue here is jurisdiction. We have taken a 244 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

different view than that advanced by the respondent and therefore those arguments are not sufficient to rebut the presumption.

D. The Contract Claim 55 The statement of claim also pleaded a breach of contract. The respondent emphasizes that the formation of the doctor-patient relationship occurred in Ontario and its putative breach also occurred there. The appellants recognize that they could not ask the Alberta court to take jurisdiction on the basis of the contract claim alone. However, once the Alberta court has jurisdiction over the negligence action, it can also adjudicate the contract claims. 56 In Van Breda, the Court held: [99] ... it is possible for a case to sound both in contract and in tort or to invoke more than one tort. Would a court be limited to hearing the specific part of the case that can be directly connected with the jurisdiction? Such a rule would breach the principles of fairness and efficiency on which the assumption of jurisdiction is based. The purpose of the conflicts rules is to establish whether a real and substantial connection exists between the forum, the subject matter of the litigation and the defendant. If such a connection exists in respect of a factual and legal situation, the court must assume jurisdiction over all aspects of the case. The plaintiff should not be obliged to litigate a tort claim in Manitoba and a related claim for restitution in Nova Scotia. That would be incompatible with any notion of fairness and efficiency.

VI. Conclusion 57 The Alberta court has jurisdiction over this action. We allow the appeal and reinstate the order for service outside Alberta.

Brian O’Ferrall J.A.:

58 I concur in the result. Alberta can take jurisdiction over this claim. 59 However, I would have preferred to base that conclusion simply on the fact that a real and substantial connection exists between Alberta and the facts upon which the claim is based as contemplated by Rule 11.25(1) of the Alberta Rules of Court, AR 124/2010;122/2012, governing the service of documents outside of Alberta. That is, I would have preferred not to base our decision that Alberta has jurisdiction because the claim relates to a tort committed in Alberta. In my view, it would be Gulevich v. Miller Brian O’Ferrall J.A. 245

erroneous to treat the issue of where the tort was committed as being determinative of jurisdiction when the situs of the tort is only a presumptively connecting factor, albeit an important one. Also, where the situs of the tort is unclear or where the tort might fairly be characterized as a “multi-jurisdictional tort”, it would be erroneous to put too much reliance on the situs of the tort in determining jurisdiction. 60 Under our Rules of Court, the pre-condition for assuming jurisdiction is the existence of a real and substantial connection between the province and the plaintiff’s (appellant’s) claim. That is the test prescribed in section 11.25 of the Rules for serving a statement of claim outside Alberta. Furthermore, Rule 11.25(3) expressly provides that the presumptions set forth therein ought not to limit the circumstances in which a real and substantial connection may be found. The relevant parts of the Rule read as follows: 11.25(1) A commencement document may be served outside Alberta and in Canada only if (a) a real and substantial connection exists between Alberta and the facts on which a claim in the action is based, and (b) the commencement document discloses the facts in support and specifically refers to the grounds for service of the document outside Alberta and in Canada. ... (3) Without limiting the circumstances in which a real and substantial connection may exist between Alberta and the facts on which a claim in an action is based, in the following circumstances a real and substantial connection is presumed to exist: (a) the claim relates to land in Alberta; (b) the claim relates to a contract or alleged contract made, performed or breached in Alberta; (c) the claim is governed by the law of Alberta; (d) the claim relates to a tort committed in Alberta; (e) the claim relates to the enforcement of a security against property other than land by the sale, possession or recovery of the property in Alberta; (f) the claim relates to an injunction in which a person is to do or to refrain from doing something in Alberta; (g) the defendant is resident in Alberta; (h) the claim relates to the administration of an estate and the deceased died while ordinarily resident in Alberta; 246 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

(i) the defendant, although outside Alberta, is a necessary or proper party to the action brought against another person who was served in Alberta; (j) the claim is brought against a trustee in relation to the carrying out of a trust in any of the following circumstances: (i) the trust assets include immovable or movable property in Alberta and the relief claimed is only as to that property; (ii) the trustee is ordinarily resident in Alberta; (iii) the administration of the trust is principally carried on in Alberta; (iv) by the express terms of a trust document, the trust is governed by the law of Alberta; (k) the action relates to a breach of an equitable duty in Alberta. [Emphasis Added] 61 In order to determine whether a real and substantial connection between Alberta and the facts on which the claim is based exists, the Rules of Court establish certain presumptive connecting factors which, if they exist, prima facie entitle an Alberta court to assume jurisdiction over the claim. The Supreme Court established similar presumptively connecting factors in Van Breda v. Village Resorts Ltd., 2012 SCC 17 (S.C.C.) at para 82, [2012] 1 S.C.R. 572 (S.C.C.) [Club Resorts]. However, the Al- berta Rules of Court make it clear that the absence of a presumptive connecting factor does not necessarily mean there is no real and substantial connection between the jurisdiction and the facts upon which the claim is based because the presumptive factors are expressly not the only factors indicating a real and substantial connection. 62 The Supreme Court stated in Club Resorts that if no recognized presumptive factor applies, a court should not assume jurisdiction: para 83; but I see that statement as one of those comments which Justice LeBel, speaking for the Court, said would be subject to the provisions of specific statutes and rules of procedure: para 68. Here we have a specific rule of procedure, Rule 11.25(3), which does not prevent the court from taking jurisdiction in the absence of a presumptive connecting factor if there is a real and substantial connection between Alberta and the facts upon which the claim is based. 63 In Club Resorts, the Supreme Court also stated that the presumption of jurisdiction that arises when a recognized connecting factor applies is not irrebutable: para 81. That is, where the presumption is rebutted, juris- Gulevich v. Miller Brian O’Ferrall J.A. 247

diction ought not to be taken despite the presence of the presumptive connecting factor. The logical corollary of that is that there will be circumstances where there is no presumptive connecting factor and yet jurisdiction is properly taken. 64 The facts upon which the claim before us is based have not been proven; but what was pleaded was that, in Alberta, the plaintiff had to undergo a major craniotomy (the surgical removal of part of the skull to expose the brain), as well as surgery to remove a tumor on her brain which a radiologist in Ontario is alleged to have negligently failed to recognize. 65 The plaintiff alleges that as a consequence of the defendant’s failure to diagnose her brain tumor, she suffered all sorts of debilitating medical conditions both prior to and after the craniotomy and removal of the brain tumor which had gone from being benign to malignant after she left Ontario to take up residence in Fort McMurray, Alberta. 66 The connection between Alberta and the facts upon which the claim is based is not weak or hypothetical. There are “objective factors that connect the legal situation or the subject matter of the litigation with the forum”: Club Resorts at para 82. The plaintiff resides in Alberta, having moved to Fort McMurray permanently within months of the alleged misdiagnosis in Ontario. While the presence of the plaintiff in the jurisdiction is not a presumptive connecting factor, it is nevertheless a connecting factor. And there are other connecting factors. It was in Alberta where the once benign brain tumor became malignant. The negligence, if there be negligence, was discovered in Alberta. It was in Alberta where the plaintiff’s injuries manifested themselves and where her damages were suffered. It was in Alberta where the injury was repaired and the damages ameliorated. It was in Alberta that the brain tumor was ultimately removed at considerable cost to the plaintiff and to the Alberta healthcare system which is also a plaintiff in the action, claiming compensation for the cost of health services provided to Ms. Gulevich. 67 Of course, there is also a real and substantial connection between On- tario and the facts upon which the claim is based. The defendant resides in Ontario. The residence of the defendant is a strong presumptive factor, although somewhat diminished in this case by the fact that the defendant’s defence will be conducted by a national medical liability insurer with specialized counsel and qualified experts throughout Canada. Also the negligent act, if it be negligent, manifested itself in a representation in the form of a medical opinion given to a person who the doctor might 248 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

reasonably have foreseen could move to another province. I see this case as being analogous to a negligent misrepresentation case where the representation is made elsewhere but the party relying on it to his or her detri- ment is in Alberta where the damages are suffered. 68 The reality is that there is no single situs for many torts. As Justice LaForest in Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, 76 D.L.R. (4th) 256 (S.C.C.) stated at page 1109, “it is simply anachronistic to uphold a ... single situs for torts or contracts for the proper exercise of jurisdiction.” Justice LaForest may have been echoing a similar sentiment expressed earlier by Justice Dickson in Moran v. Pyle National (Canada) Ltd. (1973), [1975] 1 S.C.R. 393 (S.C.C.) at 408, (1973), 43 D.L.R. (3d) 239 (S.C.C.), namely that “in determining where a tort has been committed, it is unnecessary and unwise, to have resort to any arbitrary set of rules.” And as Justice LeBel stated in Club Resorts, satisfying the real and substantial connections test does not require that “the connections with the province [taking jurisdiction] must be the strongest ones possible or that they must all point in the same direction”: para 34. 69 In my view, situating the tort does not provide resolution of the jurisdictional question in this case. Instead the court ought to focus on whether or not the plaintiff has established a real and substantial connection between Alberta and the facts upon which her claim is based. As- suming jurisdiction is established, the court may then be asked to turn its mind to whether there is another forum which is in a better position to fairly and efficiently dispose of the litigation. The chambers judge in this case found that should he be wrong about jurisdiction, the forum conveniens for this action was Alberta. However, that is a finding which, in my view, can be revisited as the legal and evidentiary issues, as well as the balance of convenience, become more clear. 70 But on the issue of jurisdiction, I am satisfied, on the basis of the record put before us that the chambers judge would have found jurisdiction had he perceived the law to be as I have posited it to be. And so I would allow the appeal. Appeal allowed. Gulevich v. Miller 249

ADDITIONAL REASONS to judgment reported at Gulevich v. Miller (2015), 2015 ABCA 411, 2015 CarswellAlta 2348, 393 D.L.R. (4th) 304, [2016] 5 W.W.R. 225, 80 C.P.C. (7th) 227, 28 Alta. L.R. (6th) 217, 609 A.R. 329, 656 W.A.C. 329 (Alta. C.A.), allowing appeal of judgment granting defendant’s application for order setting aside service of statement of claim as well as direction that Alberta court lacked jurisdiction to entertain action.

P. Tinkler, for Appellants

* A corrigendum issued by the court on March 14, 2016 has been incorporated herein. 250 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

L. Inglis, for Respondent

Per curiam:

1 Subsequent to issuing our reasons at 2015 ABCA 411, counsel dis- agreed on the terms of the Formal Judgment. The appellant’s proposed judgment includes a stipulation regarding an alternative application advanced by the respondent in the Court of Queen’s Bench. The alternative application sought a declaration that the Court of Queen’s Bench was forum non conveniens. 2 The chambers judge stated that if he were in error as to his conclusion that the Court of Queen’s Bench did not have jurisdiction simpliciter, he would have found Alberta to be the forum conveniens. His comments were obiter. 3 This Court reversed the chambers judge on the issue of jurisdiction simpliciter, finding that the Court of Queen’s Bench of Alberta has jurisdiction over the dispute. The issue of forum conveniens was not raised in this Court and we did not address it, except for an obiter comment in the concurring judgment. 4 Accordingly, it would be open to the Court of Queen’s Bench to consider the question of forum conveniens afresh as the decision of the chambers judge on that point was neither affirmed nor rejected by this Court. It follows that we approve the form of Formal Judgment proposed by the respondent. As to these submissions of counsel there will be no costs. Order accordingly. R. v. McMillan 251

[Indexed as: R. v. McMillan] Her Majesty the Queen, Appellant and Bryce William McMillan, (Accused) Respondent and The Attorney General of Canada, Intervener Manitoba Court of Appeal Docket: AR 13-30-08068 2016 MBCA 12 Richard J. Chartier C.J.M., Marc M. Monnin, William J. Burnett JJ.A. Heard: October 26, 2015 Judgment: January 28, 2016 Criminal law –––– Sentencing — Principles — Multiple factors considered –––– Accused armed himself with rifle and walked to home of complainant, who had publicly humiliated him — Accused discharged six shells — Accused was convicted of intentionally discharging firearm into house while being reckless as to whether someone was inside — Accused was sentenced to one-year period of imprisonment — Accused appealed — Appeal allowed — Accused sentenced to four years’ imprisonment, less credit of 100 days for time spent in pre-sentence custody, but remaining custodial portion of sentence was stayed — Sentencing judge failed to give sufficient weight to principles of general deterrence and denunciation — Society expected home to be place of “repose”, and punishment did not fit crime — One-year sentence for repeatedly firing gun into home was wholly unfit. Criminal law –––– Sentencing — Principles — Mitigating factors –––– Ac- cused armed himself with rifle and walked to home of complainant, who had publicly humiliated him — Accused discharged six shells — Accused was convicted of intentionally discharging firearm into house while being reckless as to whether someone was inside — Accused was sentenced to one-year period of imprisonment — Accused appealed — Appeal allowed — Accused sentenced to four years’ imprisonment, less credit of 100 days for time spent in pre-sentence custody, but remaining custodial portion of sentence was stayed — Sentencing judge greatly overemphasized effect of bullying as mitigating factor and by doing so, he underemphasized accused high degree or moral blameworthiness — Accused actions were not sudden or spontaneous “lashing out” to act of bullying — Accused act of violence was completely disproportionate to any reasonable and measured response to bullying he suffered. 252 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

Criminal law –––– Offences — Causing bodily harm and endangering person — Causing bodily harm with intent — Sentencing –––– Accused armed himself with rifle and walked to home of complainant, who had publicly humiliated him — Accused discharged six shells — Accused was convicted of intentionally discharging firearm into house while being reckless as to whether someone was inside — Accused was sentenced to one-year period of imprisonment — Accused appealed — Appeal allowed — Accused sentenced to four years’ imprisonment, less credit of 100 days for time spent in pre-sentence custody, but remaining custodial portion of sentence was stayed — Accused pleaded guilty, was young and remorseful, had no previous record of violence, and had been victim of bullying — However, accused was on probation at time of this incident, and his conduct was retaliatory, premeditated and disproportionate to wrong he suffered from bullying. The accused armed himself with a rifle and walked to the home of the complainant, who had publicly humiliated him. The accused discharged six shells. The accused was convicted of intentionally discharging a firearm into a house while being reckless as to whether someone was inside. The accused was sentenced to a one-year period of imprisonment. The accused appealed. Held: The appeal was allowed. Per Chartier C.J.M. (Burnett J.A. concurring): The accused was sentenced to four years’ imprisonment, less credit of 100 days for time spent in pre-sentence custody, but the remaining custodial portion of the sentence was stayed. The sentencing judge failed to give sufficient weight to the principles of general deterrence and denunciation. Society expected a home to be a place of “repose”, and the punishment did not fit the crime. A one-year sentence for repeatedly firing a gun into a home was wholly unfit. The sentencing judge greatly overemphasized the effect of bullying as a mitigating factor and, by doing so, he underemphasized the accused’s high degree or moral blameworthiness. The accused’s actions were not sudden or spontaneous. The accused’s act of violence was completely disproportionate to any reasonable and measured response to the bullying he suffered. The accused pleaded guilty, was young and remorseful, had no previous record of violence, and had been a victim of bullying. However, the accused was on probation at the time of this incident, and his conduct was retaliatory, premeditated and disproportionate to the wrong he suffered from bullying. Per Monnin J.A. (concurring in the result): The sentencing judge did not err in recognizing the significant effect of the bullying and in using it as a mitigating factor to be considered in assessing the accused’s moral blameworthiness. The sentencing judge was in a better position to appreciate the extent to which the R. v. McMillan 253 continuous harassment of the accused created a situation where he “snapped”. However, the sentencing judge erred in the setting of the sentence. Cases considered by Richard J. Chartier C.J.M.: Eccles v. Bourque (1974), 27 C.R.N.S. 325, [1975] 2 S.C.R. 739, [1975] 1 W.W.R. 609, 50 D.L.R. (3d) 753, 3 N.R. 259, 19 C.C.C. (2d) 129, 1974 CarswellBC 354, 1974 CarswellBC 414, [1974] S.C.J. No. 123 (S.C.C.) — considered R. v. Anderson (2014), 2014 SCC 41, 2014 CSC 41, 2014 CarswellNfld 166, 2014 CarswellNfld 167, [2014] S.C.J. No. 41, 60 M.V.R. (6th) 1, 11 C.R. (7th) 1, 458 N.R. 1, 373 D.L.R. (4th) 577, 1088 A.P.R. 289, 350 Nfld. & P.E.I.R. 289, 311 C.C.C. (3d) 1, [2014] 3 C.N.L.R. 267, 310 C.R.R. (2d) 197, [2014] 2 S.C.R. 167 (S.C.C.) — followed R. v. Dufour (2015), 2015 ONCA 426, 2015 CarswellOnt 8791, [2015] O.J. No. 3087, 21 C.R. (7th) 184, 326 C.C.C. (3d) 52, 336 O.A.C. 52 (Ont. C.A.) — referred to R. v. E. (H.) (2015), 2015 ONCA 531, 2015 CarswellOnt 10624, 336 O.A.C. 363 (Ont. C.A.) — referred to R. v. Ghadban (2015), 2015 ONCA 760, 2015 CarswellOnt 17057, [2015] O.J. No. 5824 (Ont. C.A.) — referred to R. v. Gladue (1999), [1999] S.C.J. No. 19, 1999 CarswellBC 778, 1999 Car- swellBC 779, 133 C.C.C. (3d) 385, 171 D.L.R. (4th) 385, [1999] 2 C.N.L.R. 252, 23 C.R. (5th) 197, 238 N.R. 1, [1999] 1 S.C.R. 688, 121 B.C.A.C. 161, 198 W.A.C. 161, [1999] A.C.S. No. 19 (S.C.C.) — followed R. v. Irvine (2008), 2008 MBCA 34, 2008 CarswellMan 112, [2008] 6 W.W.R. 438, 231 C.C.C. (3d) 69, 225 Man. R. (2d) 281, 419 W.A.C. 281, [2008] M.J. No. 79 (Man. C.A.) — considered R. v. Kennedy (2016), 2016 MBCA 5, 2016 CarswellMan 3, [2016] M.J. No. 6 (Man. C.A.) — referred to R. v. Lyta (2013), 2013 NUCA 10, 2013 CarswellNun 31, [2013] Nu.J. No. 29, 301 C.C.C. (3d) 486, 561 A.R. 146, 594 W.A.C. 146 (Nun. C.A.) — followed R. v. M. (C.A.) (1996), 46 C.R. (4th) 269, 194 N.R. 321, 105 C.C.C. (3d) 327, 73 B.C.A.C. 81, 120 W.A.C. 81, [1996] 1 S.C.R. 500, 1996 CarswellBC 1000, 1996 CarswellBC 1000F, [1996] S.C.J. No. 28, EYB 1996-67066 (S.C.C.) — followed R. v. Morrisey (2000), 2000 SCC 39, 2000 CarswellNS 255, 2000 CarswellNS 256, [2000] S.C.J. No. 39, 36 C.R. (5th) 85, 148 C.C.C. (3d) 1, 191 D.L.R. (4th) 86, 259 N.R. 95, 77 C.R.R. (2d) 259, [2000] 2 S.C.R. 90, 187 N.S.R. (2d) 1, 585 A.P.R. 1, REJB 2000-20235 (S.C.C.) — referred to R. v. Nur (2013), 2013 ONCA 677, 2013 CarswellOnt 15898, [2013] O.J. No. 5120, 5 C.R. (7th) 292, 117 O.R. (3d) 401, 311 O.A.C. 244, 303 C.C.C. (3d) 474, 296 C.R.R. (2d) 21 (Ont. C.A.) — referred to 254 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

R. v. Nur (2015), 2015 SCC 15, 2015 CSC 15, 2015 CarswellOnt 5038, 2015 CarswellOnt 5039, [2015] S.C.J. No. 15, [2015] A.C.S. No. 15, 469 N.R. 1, 18 C.R. (7th) 227, 322 C.C.C. (3d) 149, 385 D.L.R. (4th) 1, 332 O.A.C. 208, [2015] 1 S.C.R. 773, 332 C.R.R. (2d) 128 (S.C.C.) — considered R. v. Owen (2015), 2015 ONCA 462, 2015 CarswellOnt 9333, [2015] O.J. No. 3299, 336 O.A.C. 95 (Ont. C.A.) — referred to R. v. Proulx (2000), 2000 SCC 5, 2000 CarswellMan 32, 2000 CarswellMan 33, [2000] S.C.J. No. 6, 140 C.C.C. (3d) 449, 30 C.R. (5th) 1, 182 D.L.R. (4th) 1, 249 N.R. 201, [2000] 4 W.W.R. 21, 49 M.V.R. (3d) 163, [2000] 1 S.C.R. 61, 142 Man. R. (2d) 161, 212 W.A.C. 161, [2000] A.C.S. No. 6 (S.C.C.) — followed R. v. Schertzer (2015), 2015 ONCA 259, 2015 CarswellOnt 5579, [2015] O.J. No. 2014, 20 C.R. (7th) 187, 333 O.A.C. 308, 325 C.C.C. (3d) 202, 333 C.R.R. (2d) 97 (Ont. C.A.) — referred to R. v. Shi (2015), 2015 ONCA 646, 2015 CarswellOnt 14335, [2015] O.J. No. 4921 (Ont. C.A.) — referred to R. v. Veysey (2006), 2006 NBCA 55, 2006 CarswellNB 265, 2006 CarswellNB 266, 211 C.C.C. (3d) 558, 787 A.P.R. 290, 303 N.B.R. (2d) 290, [2006] N.B.J. No. 365, [2006] N.B.J. No. 203 (N.B. C.A.) — followed Statutes considered by Richard J. Chartier C.J.M.: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 1 — considered s. 12 — considered Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 95 — considered s. 109(2) — considered s. 244.2 [en. en. 2009, c. 22, s. 8] — considered s. 244.2(1)(a) [en. 2009, c. 22, s. 8] — referred to s. 244.2(3)(b) — considered s. 491 — considered s. 718.1 [en. R.S.C. 1985, c. 27 (1st Supp.), s. 156] — referred to

Statutes considered by Marc M. Monnin J.A.: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 7 — considered s. 12 — referred to R. v. McMillan Richard J. Chartier C.J.M. 255

Criminal Code, R.S.C. 1985, c. C-46 s. 718(d) — considered

APPEAL by accused from judgment reported at R. v. McMillan (2013), 2013 MBQB 229, 2013 CarswellMan 556, [2013] M.J. No. 324, [2014] 1 W.W.R. 556, 297 Man. R. (2d) 185, 295 C.R.R. (2d) 39 (Man. Q.B.), imposing sentence on conviction for intentionally discharging firearm into house while being reckless as to whether someone was inside.

M.A. Conner, for Appellant R.D. Harrison, B.M.P. Moen, for Respondent S.M. Telles-Langdon, A.M. Menticoglou, for Intervener

Richard J. Chartier C.J.M.: Introduction 1 This is a sentence appeal. The accused appeared before the sentencing judge for having repeatedly fired a gun into a home. Despite correctly acknowledging in his reasons that the accused’s actions amounted to “a crime of extreme violence” (at para 16), the sentencing judge imposed a one-year period of imprisonment. That sentence sends the wrong mes- sage. Canadian neighbourhoods are not war zones. The public expects that the sentence will reflect society’s denunciation and condemnation for such conduct and that it will serve as a general deterrent to prevent others from acting so recklessly in the future. 2 The accused pled guilty to one count of intentionally discharging a firearm into a house while being reckless as to whether someone was inside (see section 244.2(1)(a) of the Criminal Code (the Code)). Section 244.2(3)(b) provides for a four-year mandatory minimum sentence. Given the Crown was content with recommending the mandated minimum and that counsel for the accused was not challenging it, the accused knew the sentence he was likely facing. 3 The sentencing judge was not comfortable with the four-year recommendation. He was of the view that their submissions were being driven by the mandatory four-year minimum provision rather than the fundamental principle of proportionality that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender (see section 718.1 of the Code). 4 The sentencing judge advised the Crown that he was “giving you notice [of a constitutional question] right now” and put the matter over to allow counsel for both the accused and the Crown to present submissions 256 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

as to whether section 244.2 of the Code was contrary to the Canadian Charter of Rights and Freedoms (the Charter). Ultimately, the sentencing judge concluded that the four-year minimum sentence violated section 12 of the Charter and imposed a one-year term of imprisonment followed by two years of supervised probation. 5 The Crown appeals the sentence arguing, first, that the sentence is wholly unfit, and second, that section 244.2 does not violate section 12 of the Charter. It further submits that, if this Court agrees that the sentence imposed was demonstrably unfit, it would be unnecessary to engage the Charter issue on this appeal. The accused’s argument is under- standably focussed exclusively on the Charter issue because he cannot argue in law that a one-year sentence is fit when it falls under the mandated four-year sentencing floor. The Attorney General of Canada inter- vened in this matter because of the constitutional challenge to a section of the Code. 6 For the reasons that follow, I conclude that the sentencing judge committed several errors in principle and that these errors led him to impose a wholly unfit sentence.

The Facts 7 A little background is necessary. Approximately two years before this shooting incident, the accused, while a youth, broke into a home in this usually quiet southwestern Manitoba town and stole a pair of girl’s pant- ies. A year later, he pled guilty to this break, enter and theft. After his guilty plea, the accused became the subject of ongoing harassment by certain individuals in the small community. For example, graffiti identifying the accused by name and calling him a “panty thief” appeared on the town’s Post Office on more than one occasion. 8 I now return to the incident before us. In the middle of the night, the 19-year-old accused was driving home from a party and saw the graffiti, which had been there for an extended period of time. The accused believed that a person (T.M.) was responsible for this graffiti. He decided it was time to retaliate. The accused walked through town, armed with a loaded .22 calibre rifle, to T.M.’s home. He had 18 live rounds with him. He proceeded to fire six times at the house, stopping only because his rifle jammed. Four of the bullets went through the front window of the house, narrowly missing T.M. and another person who were lying on a couch just below the window. A third person was asleep elsewhere in the R. v. McMillan Richard J. Chartier C.J.M. 257

house. The accused then left the scene and threw the rifle into the bush. It was still loaded with six shells in the magazine.

Issues 9 The Crown raises the following two grounds of appeal: 1) Is the sentence imposed by the sentencing judge demonstrably unfit or the result of an error in principle? 2) Does the four-year minimum sentence required by section 244.2(3)(b) violate section 12 of the Charter and, if so, is the in- fringement demonstrably justified in a free and democratic society, pursuant to section 1 of the Charter? 10 The Crown submits that the one-year jail sentence is demonstrably unfit because it falls outside any acceptable range of sentences and is the result of several errors in principle. It argues that the sentencing judge erred: 1) by failing to give sufficient weight to denunciation and general deterrence; 2) by overemphasizing bullying as a mitigating factor and underemphasizing the accused’s high degree of moral blameworthiness; and 3) by equating strict bail conditions to pre-sentence custody and giving credit for same. 11 The Crown further submits that, if we agree that the sentence imposed was demonstrably unfit, it would be unnecessary to engage the Charter issue on this appeal.

Analysis Failing to Give Sufficient Weight to Denunciation and General Deterrence 12 The jurisprudence clearly establishes that firearm-related offences are serious crimes (see R. v. Nur, 2015 SCC 15 (S.C.C.) at para 6, [2015] 1 S.C.R. 773 (S.C.C.)) and that for these type of offences, denunciation and general deterrence are the most important sentencing considerations (see R. v. Morrisey, 2000 SCC 39 (S.C.C.) at para 54, [2000] 2 S.C.R. 90 (S.C.C.); and R. v. Kennedy, 2016 MBCA 5 (Man. C.A.) at para 60). When denunciation and general deterrence are the paramount sentencing objectives, the focus is more on an offender’s conduct than any circumstances particular to that offender. Put another way, while factors per- 258 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

sonal to the accused remain relevant, they necessarily take on a lesser role (see R. v. Nur, 2013 ONCA 677 (Ont. C.A.) at para 107, (2013), 311 O.A.C. 244 (Ont. C.A.) ). 13 In R. v. M. (C.A.), [1996] 1 S.C.R. 500 (S.C.C.), the Supreme Court of Canada explained what a denunciatory sentence seeks to accomplish (at para 81): The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender’s conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. As Lord Justice Law- ton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: “society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass”. [emphasis original] 14 Despite acknowledging the importance of the principles of general deterrence and denunciation at the beginning of his reasons, I conclude that the sentencing judge greatly underemphasized these principles. Two reasons underlie my conclusion. First, the sentence does not reflect the fact that the accused encroached on one of our society’s high communal values: that one’s home is one’s castle. As was explained by Dickson J (as he then was) in Eccles v. Bourque (1974), [1975] 2 S.C.R. 739 (S.C.C.) (at pp 742-43): For these principles, we go back to vintage common law, to 1604, and Semayne’s Case [77 ER 194], in which the principle, so firmly entrenched in our jurisprudence, that every man’s house is his castle, was expressed in these words: “That the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose...”. [emphasis added] 15 This common law principle is firmly entrenched in our jurisprudence (see Eccles at p 743). Society expects a home to be a place of “repose”, a place of rest and peace as well as a place of security, free from crime. When offenders breach that sanctity they must be punished accordingly. In my view, the one-year sentence imposed in this case simply does not communicate society’s condemnation or reflect society’s abhorrence of this type of transgression. Simply put, the punishment does not fit the crime. R. v. McMillan Richard J. Chartier C.J.M. 259

16 Second, I find support for my conclusion that the sentencing judge greatly underemphasized denunciation and general deterrence, by looking at the sentence itself. A one-year sentence for repeatedly firing a gun into a home is wholly unfit. Obviously, it is not possible, because of the four-year mandatory minimum, to find a section 244.2 sentence compa- rable to the one-year sentence imposed. However, it is worth noting that the accused was unable to point to one case where such a lenient sentence was ever imposed for a similar youthful and remorseful first-time offender committing a similar, or somewhat less serious, firearm offence. Looking at two recent cases involving similar offenders committing similar or less serious firearm offences, it becomes clear that the one-year sentence imposed on the accused was demonstrably unfit. 17 In Nur , the Supreme Court of Canada, as well as the five-member Ontario Court of Appeal, did not disturb the original 40-month sentence imposed on the 19-year-old first offender for a section 95 charge of possessing a loaded prohibited handgun. Clearly, the offence to which the accused pled guilty in the case at hand (intentional discharging a firearm into a dwelling house which carries a range of sentences of four to four- teen years) was more serious than in the Nur case (possessing a loaded firearm which used to carry a range of sentences of three to ten years). If a 40-month sentence for a less serious offence was within an appropriate range of fit sentences, it is easy to conclude that a 12-month sentence for a more serious offence committed by a similar offender is demonstrably unfit. 18 The second case is R. v. Lyta, 2013 NUCA 10, 561 A.R. 146 (Nun. C.A.). That case is particularly relevant because the circumstances are remarkably similar to the case at hand. In Lyta , the accused was also a young adult with a minor record who had fired several shots into the duplex homes of two RCMP officers. Seven rounds struck the homes, but no one was injured. Like here, the accused did not intend to harm anyone. The sentencing judge imposed a four-year sentence. On appeal, the majority substituted a sentence of five years. The dissenting judge would have given seven. While in Lyta , I recognize that there was an aggravating element that was absent in the case at bar (that he had targeted the home of police officers), the Court did, in the end, impose a 60-month sentence despite dealing with a youthful offender who was in a fragile mental state and where Gladue considerations were at play (R. v. Gladue, [1999] 1 S.C.R. 688 (S.C.C.)). 260 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

19 For these reasons, I have no trouble in concluding that the sentencing judge failed to give sufficient weight to the two most important sentencing principles when dealing with firearm offences: denunciation and deterrence.

Overemphasizing Bullying as a Mitigating Factor and Underemphasizing the Accused’s High Degree of Moral Blameworthiness 20 Bullying is a form of intimidation and abuse. There can be no deny- ing that the accused was the victim of bullying and that the bullying was the motivating factor for his crime. But again, when denunciation and general deterrence are the paramount sentencing considerations, the primary focus is on the offender’s conduct (repeatedly discharging a firearm into a home), not the particular circumstances of the offender (victim of bullying). While personal factors remain relevant, they are to be given less weight. In the case at hand, a fair reading of the reasons shows that the sentencing judge’s attention was focussed more on the accused’s personal factors than on the offending conduct. 21 The sentencing judge wrote that “lashing out” (at para 46) may be one of the ways a victim reacts to bullying. He also noted that “to ignore the bullying to which the accused has been subjected is to ignore the central underlying cause of this crime” (ibid). Further he said, “This crime is an ill conceived reaction to years of bullying and public humilia- tion at the hands [of] T.M. and others in the community” (at para 49). During submissions, the sentencing judge opined “now we’re going to victimize the victim once again and they’re asking us to do it in the name of justice.” 22 The uncontested fact before the sentencing judge was that the accused’s crime was motivated by, and in retaliation for, the bullying he suffered. An accused’s motive to commit the crime can, depending on the circumstances, be a mitigating, aggravating or neutral factor. See Clayton C. Ruby, Gerald J. Chan & Nader R. Hasan, Sentencing, 8th ed (Markham: LexisNexis, 2012) at para 5.49, where examples of crimes motivated by personal factors of a temporary nature (and generally viewed as mitigating) are set out. On the other hand, as the authors also point out, the more serious the crime, the less such a factor will serve to mitigate the sentence. This is in line with the Nur decision from the On- tario Court of Appeal that, while factors personal to an offender remain relevant, they necessarily take on a lesser role when dealing with serious R. v. McMillan Richard J. Chartier C.J.M. 261

crimes where denunciation and general deterrence are the paramount sentencing principles (see para 107). 23 In my view, the sentencing judge greatly overemphasized the effect of bullying as a mitigating factor and, by doing so, he underemphasized the accused’s high degree of moral blameworthiness. While the accused’s victimization resulting from the bullying was a relevant consideration, it had little if any mitigating value in the circumstances for the two reasons that follow. 24 First, the accused’s actions were not a sudden or spontaneous “lashing out” (at para 46) to an act of bullying. The graffiti had been in place for a while, and there is nothing to suggest that T.M. had had any contact with the accused in the days prior to the shooting. The accused admitted by his words and by his conduct that his actions were not committed on the spur of the moment. They were highly premeditated. In the middle of the night, just prior to the shooting, he had told a friend that he was “going to go do his business”. Twenty minutes later he told this same friend he had “done his business.” What transpired during those 20 minutes is that, after obtaining a loaded rifle and 18 live rounds, he walked through town to his target’s home. He then proceeded to open fire on the home, only stopping because the rifle jammed. His actions were anything but impulsive. 25 Second, and more importantly, the accused’s act of extreme premeditated violence is completely disproportionate to any reasonable and measured response to the bullying he suffered. The accused’s conduct could have inflicted life-threatening injuries had one of the bullets hit one of the occupants of the home. It was not a proportionate response to the harm he had experienced. 26 As a result, I am of the view that the accused’s motive has little, if any, mitigating value because of the premeditated and very serious nature of the crime he committed.

Equating Strict Bail Conditions to Pre-Sentence Custody and Giving Credit for Same 27 Throughout his reasons, the sentencing judge states that the time spent while out on bail entitles him to a credit against his sentence. For example, he found that the accused deserved some “meaningful credit” (at para 40) for the 18-month period he was out on bail. Later, he states that the accused “will receive no credit for the 18 months of house arrest” (at para 62). He then remarks that the time spent on bail “is indistin- 262 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

guishable from a conditional sentence order and punitive in nature” (at para 60). Finally, he says that “the four year sentence coupled with the 18 months of house arrest the accused has already served, constitutes a punishment” (at para 62). 28 Equating pre-trial bail with pre-sentence custody is directly contrary to our decision in R. v. Irvine, 2008 MBCA 34, 225 Man. R. (2d) 281 (Man. C.A.), and must be disabused. As we explained, “if any allowance is to be made for pre-trial bail, it will be because the sentencing judge considers it to be a mitigating factor” (at para 24). As has been stated many times, bail is not jail. Unlike pre-sentence custody, there is no enti- tlement to a credit for time spent on bail. However, if there is evidence that stringent bail conditions resulted in a significant hardship, a judge can take it into account when determining the sentence. 29 In the case at hand, the evidence of any significant hardship suffered by the accused was lacking. There was, however, evidence showing that while he was out on bail, he obtained permission to work full time, to attend family gatherings and to access programming including counselling and anger management. In the circumstances, the sentencing judge would also have been wrong had he considered the accused’s time on bail as a mitigating factor because there was no evidence that stringent bail conditions resulted in a significant hardship to the accused. 30 As a result of the errors relating to the three issues raised by the Crown, deference is no longer owed to the sentence imposed and this Court may proceed to sentence afresh.

The Fit and Appropriate Sentence 31 When determining the fit and appropriate sentence, the sentencing judge must weigh the different mitigating and aggravating factors and consider the various principles of sentencing according to the circumstances surrounding the offence and the particular circumstances of the offender. As already stated, the paramount principles of sentencing for firearm offences are denunciation and deterrence. In such cases, the focus is on the offending conduct. While the sentencing judge should not ignore the factors personal to an offender, they necessarily take on a lesser role. 32 The mitigating factors are that the accused pled guilty to the offence; was young and remorseful; had no previous record of violence; and had been the victim of bullying. The aggravating factors are that the accused’s course of conduct was a retaliatory and premeditated act of ex- R. v. McMillan Richard J. Chartier C.J.M. 263

treme violence which was completely disproportionate to the wrong he suffered from the bullying. He fired six times into a home and only stopped when his rifle jammed. Since four of the six bullets went through the front window of the home, it can be inferred that he was aiming for that particular location. He fired repeatedly in a home while being reckless as to whether someone was inside. By firing through the window, he ensured the bullets would enter into the home. He was not firing at the garage or the roof of the home. He took aim at the front window. Lastly, and not the least of the aggravating factors, is the fact that the accused was on probation at the time of this incident. 33 After considering the two recent decisions of Nur (40 months) and Lyta (60 months), I am of the view that an appropriate and fit sentence would be a period of incarceration of 48 months less the 67 days he has spent in pre-sentence custody which I shall credit to him on a 1.5:1 basis, or 100 days. I would also maintain the weapons prohibition order imposed by the sentencing judge under section 109(2) of the Code and order forfeiture of the firearm pursuant to section 491 of the Code. 34 In light of the fact that I have determined that the fit and appropriate sentence in the circumstances does not fall below the mandated minimum sentencing floor, I am of the view that it is not necessary to engage the Charter issue on this appeal, other than to say that I am not endorsing the sentencing judge’s section 12 reasoning.

The Request to Not Reincarcerate the Accused 35 The accused asks this Court that he not be reincarcerated in light of the particular circumstances of this case. The Crown disagrees. The intervener, the Attorney General of Canada, takes no position on the accused’s request, but submits that the proper means of doing so would be by staying the remaining custodial portion of the sentence as was done in R. v. Proulx, 2000 SCC 5 (S.C.C.) at para 132, [2000] 1 S.C.R. 61 (S.C.C.); and more recently in R. v. Anderson, 2014 SCC 41 (S.C.C.) at para 65, [2014] 2 S.C.R. 167 (S.C.C.). I note that the remaining custodial portion of the sentence is 33 months (48 months, less 12 months already served, less 3 months of pre-sentence custody credit). 36 The question of whether to reincarcerate has been the source of much appellate consideration recently, particularly in the Ontario Court of Ap- peal which has dealt with this issue six times in the last year. See R. v. Shi, 2015 ONCA 646 (Ont. C.A.) ; R. v. E. (H.), 2015 ONCA 531 (Ont. C.A.) ; R. v. Owen, 2015 ONCA 462, 336 O.A.C. 95 (Ont. C.A.); R. v. 264 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

Dufour, 2015 ONCA 426, 336 O.A.C. 52 (Ont. C.A.) ; R. v. Schertzer, 2015 ONCA 259, 333 O.A.C. 308 (Ont. C.A.) ; and R. v. Ghadban, 2015 ONCA 760 (Ont. C.A.) . Suffice it to say that a non-exhaustive list of factors to consider on the issue of whether to stay the remaining custodial portion of the sentence on a successful Crown appeal against sentence were conveniently set out by the New Brunswick Court of Appeal in R. v. Veysey, 2006 NBCA 55, 303 N.B.R. (2d) 290 (N.B. C.A.) (at para 32): (1) the seriousness of the offences for which the offender was convicted; (2) the elapsed time since the offender gained his or her free- dom and the date the appellate court hears and decides the sentence appeal; (3) whether any delay is attributable to one of the parties; and (4) the impact of reincarceration on the rehabilitation of the offender. As can be seen by these factors, the analysis as to whether the accused should not be reincarcerated is fact-sensitive in nature. 37 The first factor relates to whether the seriousness of the offence should require the accused to serve the balance of the sentence. The accused recognizes that the offence is a serious one and that the length of the sentence remaining to be served is not insignificant. The accused correctly concedes that this would tend to justify that he be reincarcerated. However, he argues that the rest of the considerations more than counter that important first factor. 38 Counsel for the accused points out: • that the accused was sentenced to a 12-month period of incarceration on October 2, 2013, and that he has served his entire jail term, being released because of earned remission on June 2, 2014, after serving eight months or two-thirds of the sentence; • that he spent over two months in jail in pre-sentence custody; • that approximately four and one-half years has elapsed since the incident occurred (September 5, 2011) and that he has complied with all of the conditions of his bail and supervised probation during that time; • that over the four and one-half-year time period he has not reof- fended in any way; • that the principal reason for any delay in bringing this matter to final disposition was to consider section 12 mandatory minimum Charter arguments; • that he has maintained a positive law-abiding lifestyle and that he has been fully employed when not in custody; R. v. McMillan Richard J. Chartier C.J.M. 265

• that he has successfully completed a number of counselling programs since the incident; • that the Crown has been unable to raise any concerns regarding his positive progress towards rehabilitation; and • that sending the youthful first offender who expressed remorse, (who was 19 years of age at the time of the incident and who is now 24 years old) back to jail would negatively impact on his successful rehabilitation. 39 I also note that the accused stands before us having spent two periods of custody in the provincial jail system in relation to this offence. The first time was a two-month period of pre-sentence custody (without any enhanced credit). The second period was the eight months he spent in custody when he was serving his 12-month jail sentence. The 12-month period of jail was reduced to eight months because of his earned remission. Under the provincial system, prisoners have the right to be released after two-thirds of their sentence by way of earned remission if they obey prison rules and participate in available programs while incarcerated. Under the federal penitentiary system, the accused would be eligible for day parole after 10 months (six months before eligibility for full parole) and full parole after 16 months (one-third of the 48 month sentence). 40 While no one can predict the future, recent past conduct is generally a good indicator of future behaviour. The accused’s good behaviour while locked up in the provincial jail system allowed him to earn a reduction in his jail time and be released after eight months of custody. With the two months of pre-sentence custody he spent a total of 10 months’ custody in the provincial system. Had the accused spent this time under the federal system, his good behaviour would have earned him the right to either day parole after 10 months or full parole after 16 months. 41 This is not an easy case. I recognize that this is a serious offence and that the need for denunciation and general deterrence would normally require that the accused be reincarcerated. However, when I balance all of the relevant factors, I am of the view, in the totality of the circumstances, that the remaining custodial portion of the sentence should be stayed. The principal factors that have offset the first factor are: the time elapsed since the sentence was first imposed; that sending the youthful first offender back to jail would negatively impact on his successful rehabilitation; the fact that the original jail sentence has already been served; that he has been successfully completing his period of supervised probation since his release on June 2, 2014; and had a 48-month sentence been 266 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

imposed at the outset, he would already be out on day parole as a result of the time he has now served and be but six months away from full parole when the pre-sentence custody is added. 42 I would grant leave to appeal, allow the appeal and substitute the one- year sentence with a sentence of four years’ imprisonment, less credit at the rate of 1.5:1 for the 67 days of pre-sentence custody (1.5 ? 67 days = 100 days of credit). I would also maintain the weapons prohibition order imposed by the sentencing judge under section 109(2) of the Code and order forfeiture of the firearm pursuant to section 491 of the Code. Fi- nally, I would stay the remaining custodial portion of the sentence.

William J. Burnett J.A.:

I agree:

Marc M. Monnin J.A. (concurring in the result):

43 I have had the benefit of reading the reasons for decision on this sentence appeal. I concur with my colleagues in the result as it pertains to the issue of the accused’s reincarceration. In my view, to do so would serve no purpose and would have a negative impact on the accused’s successful rehabilitation. 44 As my colleagues, I am also of the view that the sentencing judge erred in his assessment of what would be a fit and proper sentence, but unlike them, in one aspect only. I agree that the time spent by the accused on bail, while a mitigating factor, would not allow the sentencing judge to use it to reduce the sentence to the extent that he did given that there was no evidence of a significant hardship. 45 However, I do not agree that the sentencing judge erred in his recognition of the significant effect of the bullying of this accused and his use of it as a mitigating factor to be considered in assessing his moral blameworthiness. The sentencing judge, an experienced rural-based judge, was in a better position to appreciate the extent to which the continuous harassment of this accused in his small community created a situation where he “snapped”. The sentencing judge was clear in condemning the actions taken by the accused and appreciating the serious violence that it en- tailed. We should defer to his assessment of the role it played in the accused’s conduct as well as how it should be used to craft an appropriate and fit sentence. To require a spontaneous lashing out in order to consider bullying as a mitigating factor is to require an immediacy which is R. v. McMillan Marc M. Monnin J.A. 267

not warranted and may be inconsistent with its role in influencing the accused’s conduct. The sentencing judge was entitled to consider the negative effect of bullying on this particular accused in order to assess the fitness of the sentence. 46 That said, I am of the view that the sentencing judge erred in the setting of the sentence. My view is that the appropriate range for this offence, absent the mandatory minimum, would be in the two-year range as acknowledged by Crown counsel at the sentencing hearing. In the circumstances of this particular accused, taking into consideration his belief that no one was home (a fact which he failed to verify, hence his reck- lessness), and therefore, the lack of intent to do actual harm, as well as the other factors considered by the sentencing judge, would lead me to assess a sentence in that range. However, given that consideration, the mandatory minimum sentencing is no longer grossly disproportionate to a fit and proper sentence for the accused. Therefore, the section 12 Char- ter argument falls by the wayside. 47 This is not to say that in another case, other arguments could not be raised as to the constitutional validity of the four-year minimum using hypothetical situations such as this one canvassed during argument. As well, a section 7 Charter argument based upon the overbreadth of the wording of the section might also be considered. Those arguments are for another day given the outcome of this case. 48 I only raise one further point. It would appear to me that the sentencing judge reached the sentence that he did in part to buttress the section 12 Charter analysis in which he engaged. It was his considered view that sentencing this accused to a four-year term was inconsistent with the re- habilitative aspects of sentencing principles. My colleagues have strongly argued that given the nature of the offence, that consideration holds considerably less weight in this case. 49 While I agree that the jurisprudence favours placing emphasis on denunciation and deterrence with respect to these types of offences, that does not mean that rehabilitation cannot play a significant part in assessing a fit and proper sentence. To do so would be contrary to section 718(d) of the Code and in certain circumstances, may well lead to giving deterrence higher priority than it should. The sentencing judge properly considered that the stated purpose of the amendments to the Code at issue in this case, as confirmed in argument before us, was to address a particularly notorious drive-by shooting in downtown Toronto and the stated intention of the government of the day to curtail drive-by shoot- 268 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

ings in gang-related situations. The imposition of a four-year sentence on a bullied youth in rural Manitoba does little, in my view, to send a mes- sage of deterrence to gang members in large urban centers. 50 The sentencing judge was driven to perform his analysis in order to achieve the result which he thought was fair and just in the circumstances. This exemplifies the concern raised by many as to the rigidity of mandatory minimum sentences. While Parliament certainly has the authority to pass such legislation, it creates situations, such as this one, where the fitness of a sentence in respect of a particular offender may not be the final result. Appeal allowed. R. v. Toutsaint 269

[Indexed as: R. v. Toutsaint] Her Majesty the Queen, Appellant and Joey Toutsaint, Respondent Saskatchewan Court of Appeal Docket: CACR2519 2015 SKCA 117 Richards C.J.S., Caldwell, Whitmore JJ.A. Heard: October 29, 2015 Judgment: November 17, 2015 Criminal law –––– Dangerous offenders — Grounds for preventative detention — Persistent criminal behaviour –––– Accused was convicted of robbery, uttering threats, assaulting peace officer, obstruction and breach of recognizance — Accused was of Aboriginal family and had experienced tragic upbringing with significant loss and upheaval, and had no family support — Crown brought application to declare accused danger offender — Application was granted; accused was declared dangerous offender and given determinate sentence of three years’ and five year supervision order — Accused was at high risk to re-offend in future based on his youth, prior history of violent offences, relationship instability, lack of employment history, his untreated alcohol abuse problems, lack of insight and tendency to blame others and his personality disorder — Trial judge found there was possibility of eventual control of risk of accused re-offending but would require completion of programming — Crown appealed — Appeal allowed; sentence varied so accused was ordered detained for indeterminate period — Trial judge committed errors of law and ignored evidence in reaching his conclusion under s. 753(4.1) of Criminal Code that there was reasonable expectation lesser measure than indeterminate sentence would adequately protect public — Trial judge erred by imposing determinate sentence in circumstances of case — Trial judge failed to follow law and erred by misapprehending or ignoring evidence before him — Trial judge made contradictory findings about reasonable possibility of accused’s eventual control in community which could not be reconciled by ignoring one finding — Trial judge’s finding under s. 753(4.1) and determinate sentence he imposed in consequence thereof had to be set aside on law and on evidence before court — Focus of inquiry under s. 753(4.1) has to be nature and quality of accused’s propensity for committing violent crimes in future, not proportionality of sentence to the relative severity of violent crimes committed in past — Evidence clearly showed that accused remained at high risk to reoffend violently given expert evidence and his lengthy and serious criminal history, lack of family support and his dis- 270 WESTERN WEEKLY REPORTS [2016] 5 W.W.R. interest in, and lack of cooperation with programming to address his issues which established criteria for dangerous offender designation under ss. 753(1)(a)(i) and (ii). Criminal law –––– Dangerous offenders — Indeterminate sentence –––– Ac- cused was convicted of robbery, uttering threats, assaulting peace officer, obstruction and breach of recognizance — Accused was of Aboriginal family and had experienced tragic upbringing with significant loss and upheaval, and had no family support — Crown brought application to declare accused danger offender — Application was granted; accused was declared dangerous offender and given determinate sentence of three years’ and five year supervision order — Accused was at high risk to re-offend in future based on his youth, prior history of violent offences, relationship instability, lack of employment history, his untreated alcohol abuse problems, lack of insight and tendency to blame others and his personality disorder — Trial judge found there was possibility of eventual control of risk of accused re-offending but would require completion of programming — Crown appealed — Appeal allowed; sentence varied so accused was ordered detained for indeterminate period — Trial judge committed errors of law and ignored evidence in reaching his conclusion under s. 753(4.1) of Criminal Code that there was reasonable expectation lesser measure than indeterminate sentence would adequately protect public — Trial judge erred by imposing determinate sentence in circumstances of case — Trial judge failed to follow law and erred by misapprehending or ignoring evidence before him — Trial judge made contradictory findings about reasonable possibility of accused’s eventual control in community which could not be reconciled by ignoring one finding — Trial judge’s finding under s. 753(4.1) and determinate sentence he imposed in consequence thereof had to be set aside on law and on evidence before court — Indeterminate sentence of imprisonment is default sentence for dangerous offender — Focus of inquiry under s. 753(4.1) has to be nature and quality of accused’s propensity for committing violent crimes in future, not proportionality of sentence to the relative severity of violent crimes committed in past — Evidence clearly showed that accused remained at high risk to reoffend violently given expert evidence and his lengthy and serious criminal history, lack of family support and his disinterest in, and lack of cooperation with programming to address his issues which established criteria for dangerous offender designation under ss. 753(1)(a)(i) and (ii). Cases considered by Caldwell J.A.: R. v. Bunn (2014), 2014 SKCA 112, 2014 CarswellSask 684, [2014] S.J. No. 620, (sub nom. R. v. G.N.B.) 446 Sask. R. 184, (sub nom. R. v. G.N.B.) 621 W.A.C. 184 (Sask. C.A.) — considered R. v. Casemore (2011), 2011 SKCA 14, 2011 CarswellSask 79, [2011] S.J. No. 71, 366 Sask. R. 149, 506 W.A.C. 149 (Sask. C.A.) — considered R. v. Toutsaint 271

R. v. Currie (1997), 1997 CarswellOnt 1487, 211 N.R. 321, 115 C.C.C. (3d) 205, 7 C.R. (5th) 74, 100 O.A.C. 161, 146 D.L.R. (4th) 688, [1997] 2 S.C.R. 260, 1997 CarswellOnt 1488, [1997] S.C.J. No. 10 (S.C.C.) — referred to R. v. Daniels (2011), 2011 SKCA 67, 2011 CarswellSask 513, [2011] 8 W.W.R. 605, [2011] S.J. No. 340, 271 C.C.C. (3d) 339, 375 Sask. R. 1, 525 W.A.C. 1 (Sask. C.A.) — referred to R. v. Goforth (2007), 2007 SKCA 144, 2007 CarswellSask 719, [2007] S.J. No. 643, 302 Sask. R. 265, 411 W.A.C. 265 (Sask. C.A.) — considered R. v. Johnson (2003), 2003 SCC 46, 2003 CarswellBC 2354, 2003 CarswellBC 2355, 177 C.C.C. (3d) 97, 230 D.L.R. (4th) 296, 13 C.R. (6th) 205, 308 N.R. 333, [2003] S.C.J. No. 45, 19 B.C.L.R. (4th) 243, 186 B.C.A.C. 161, 306 W.A.C. 161, [2004] 2 W.W.R. 393, [2003] 2 S.C.R. 357, REJB 2003-47808 (S.C.C.) — considered R. v. Lyons (1987), 80 N.R. 161, [1987] 2 S.C.R. 309, 44 D.L.R. (4th) 193, 82 N.S.R. (2d) 271, 37 C.C.C. (3d) 1, 61 C.R. (3d) 1, 32 C.R.R. 41, 207 A.P.R. 271, 1987 CarswellNS 41, 1987 CarswellNS 342, [1987] S.C.J. No. 62, EYB 1987-67386 (S.C.C.) — considered R. v. Merasty (2011), 2011 SKPC 109, 2011 CarswellSask 505, [2011] S.J. No. 439, [2012] 1 W.W.R. 527, (sub nom. R. v. M. (J.T.)) 379 Sask. R. 211 (Sask. Prov. Ct.) — considered R. v. Ominayak (2012), 2012 ABCA 337, 2012 CarswellAlta 1951, [2012] A.J. No. 1163, 539 A.R. 88, 561 W.A.C. 88, 84 Alta. L.R. (5th) 89 (Alta. C.A.) — referred to R. v. Osborne (2014), 2014 MBCA 73, 2014 CarswellMan 343, [2014] M.J. No. 216, [2014] 10 W.W.R. 262, 306 Man. R. (2d) 276, 604 W.A.C. 276, 314 C.C.C. (3d) 57 (Man. C.A.) — referred to R. v. S. (D.J.) (2015), 2015 BCCA 111, 2015 CarswellBC 668, 370 B.C.A.C. 57, 635 W.A.C. 57 (B.C. C.A.) — referred to R. v. Steele (2014), 2014 SCC 61, 2014 CSC 61, 2014 CarswellMan 589, 2014 CarswellMan 590, [2014] S.C.J. No. 61, [2014] 11 W.W.R. 427, 14 C.R. (7th) 1, 463 N.R. 125, 378 D.L.R. (4th) 296, 316 C.C.C. (3d) 315, [2014] 3 S.C.R. 138, 310 Man. R. (2d) 236, 618 W.A.C. 236 (S.C.C.) — considered Statutes considered: Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to Pt. XXIII — referred to Pt. XXIV — referred to s. 753(1) — considered s. 753(1)(a)(i) — considered s. 753(1)(a)(ii) — considered s. 753(4) — considered s. 753(4.1) [en. 1997, c. 17, s. 4] — considered s. 753.1(1)(c) [en. 1997, c. 17, s. 4] — considered 272 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

s. 759(3)(a) — referred to s. 810.2 [en. 1997, c. 17, s. 9(1)] — considered

APPEAL by Crown of sentencing judgment reported at R. v. Toutsaint (2014), 2014 SKPC 172, 2014 CarswellSask 654, [2014] S.J. No. 592, 455 Sask. R. 117 (Sask. Prov. Ct.).

W. Dean Sinclair, Q.C., for Appellant Bruce K. Campbell, for Respondent

Caldwell J.A.: I. Introduction 1 The Crown appeals against a determinate sentence of three years imprisonment and subsequent five-year long-term supervision order imposed on Joey John Toutsaint following his designation as a dangerous offender pursuant to ss. 753(1)(a)(i) and (ii) of the Criminal Code (see R. v. Toutsaint, 2014 SKPC 172, 455 Sask. R. 117 (Sask. Prov. Ct.)). The Crown says the sentencing judge committed errors of law and ignored the evidence in reaching his conclusion under s. 753(4.1) that there is a reasonable expectation a lesser measure than an indeterminate sentence will adequately protect the public against the commission by Mr. Tout- saint of murder or a serious personal injury offence [SPIO]. For the reasons that follow, I would allow the appeal and, pursuant to s. 759(3)(a) of the Criminal Code, impose a sentence of detention in a penitentiary for an indeterminate period.

II. Background 2 The predicate SPIO is robbery. Briefly, in July 2009, Mr. Toutsaint, then aged 22, robbed an individual of $20, threatening to gut him with a knife. When the police arrived, Mr. Toutsaint gave a false name, physically resisted his arrest and assaulted the arresting officer. By that time, Mr. Toutsaint had amassed a record of 57 criminal convictions. He has since been convicted of 17 additional criminal offences. 3 Following his conviction on the predicate offence, the Crown applied for a dangerous offender designation under s. 753(1) of the Criminal Code. In the course of his reasons for decision on that application, the sentencing judge — who had not presided over the trial — comprehen- sively reviewed Mr. Toutsaint’s criminal history leading up to and including the predicate offence (at paras. 12-37) and his history of offending and other behaviour while incarcerated (at paras. 38-60). There is no R. v. Toutsaint Caldwell J.A. 273 reason to revisit this information as the Crown accepts the sentencing judge’s recounting of it is accurate; however, the following synopsis of Mr. Toutsaint’s involvement with the criminal justice system is useful: (a) Although not yet 30 years old, Mr. Toutsaint has nearly 30 convictions for violent, sexual, threatening or weapons-related offences on his record, eight of which arose after he committed the predicate offence. (b) Mr. Toutsaint has spent most of his adult life in prison and the majority of that time has been spent in segregation, whether on a voluntary or involuntary basis; he consistently refuses to leave segregation, seemingly because he would then have to take programming. (c) Mr. Toutsaint has never completed any programming geared to- ward his rehabilitation because he either refuses to participate or purposely sabotages his own participation; to paraphrase his probation officer, Mr. Toutsaint is not engaged to do anything to better himself; and his parole officer testified Mr. Toutsaint is unmo- tivated, has no interest in any programming that could reduce his risk factors and prefers segregation to any other proposal. (d) Mr. Toutsaint is either stubbornly uncooperative or threateningly disruptive with his healthcare providers; he does not comply with treatment directions; and he has sold or given away medications prescribed to him. (e) Mr. Toutsaint has denounced Aboriginal Elders as “pieces of shit and ... liars” and refuses to avail himself of their assistance or advice. (f) He has little to no family support and no one has ever visited or called him in prison. (g) More than once, Mr. Toutsaint’s fellow inmates have acted preventively to disarm him — for their own protection — when he has fashioned or acquired a shank while residing with the general prison population. (h) Due to his intractable, violent behaviour, Correctional Services Canada has considered transferring Mr. Toutsaint to the special handling unit at Ste-Anne- des-Plaines Institution in Qu´ebec, which is reserved for the most unmanageable offenders in the federal corrections system. 274 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

(i) The National Parole Board has held Mr. Toutsaint to the warrant expiry date of more than one sentence. (j) When he has been released from custody at warrant expiry, Mr. Toutsaint has been subjected to orders under s. 810.2 of the Crimi- nal Code in the interests of public safety. (k) Mr. Toutsaint’s criminal record evinces unrestrained contumacy; when released into the community, he violates or breaches his bail, probation or s. 810.2 orders, usually within weeks. 4 As to the nature and quality of his risk of reoffending, in the expert assessments of the psychologist and psychiatrist who testified before the sentencing judge, Mr. Toutsaint is and remains at high risk to reoffend violently. 5 Dr. Roger W. Holden, a clinical psychologist appointed by the court, interviewed Mr. Toutsaint in October of 2010 and 2013. In his assessment (summarized at paras. 62-68 of the sentencing judge’s reasons), Mr. Toutsaint does not suffer from any major mental illness but likely suffers from fetal alcohol spectrum disorder; he has little or no insight into his violent behaviour; he either denies responsibility or blames his victims for his violence; his release plan is not feasible; he is highly impulsive, reactive and explosive; he is a high risk to reoffend violently and sexually; and he is entirely unresponsive to treatment. As the sentencing judge put it (at para. 67), Dr. Holden concluded in 2010 that “unless treated successfully, Mr. Toutsaint will continue to reoffend violently”. 6 On the basis of his later 2013 interview, Dr. Holden reported Mr. Toutsaint had no interest in programming, treatment or in working with Elders and he said this was the chief obstacle to reducing Mr. Toutsaint’s risk. He was concerned Mr. Toutsaint had decided to eschew all family support upon release. He described Mr. Toutsaint as “highly dominant and overly aggressive” and said Mr. Toutsaint had little sympathy or pa- tience for anyone who stands in his way. Dr. Holden concluded Mr. Toutsaint’s violent and threatening conduct while incarcerated was “quite purposive” — it was about getting what he wanted. He assessed Mr. Toutsaint’s prognosis as poor and said Mr. Toutsaint’s exhibited preference for segregation prevented him from participating in any treatment. While Dr. Holden was not at all confident Mr. Toutsaint would participate in programming, he was confident that, until Mr. Toutsaint did so, he would remain a high-risk violent offender. Even if he were released, Dr. Holden opined Mr. Toutsaint would have to be released into R. v. Toutsaint Caldwell J.A. 275

a highly-structured and supportive community program and would have to commit to sobriety and a crime-free lifestyle. 7 Mr. Toutsaint retained Dr. Mansfield Mela, a forensic psychiatrist, to assess him and prepare a report for the sentencing judge. In Dr. Mela’s opinion (summarized at paras. 71-72 of the sentencing judge’s reasons), Mr. Toutsaint is at high risk to reoffend violently and will likely reoffend unless he participates in programming. He thought Mr. Toutsaint’s risk of reoffending might improve if he participated in and benefited from high-intensity anger management and violence prevention programming alongside continued access to anti-depressants, trauma therapy, drug therapy and substance abuse treatment. But, most notably, Dr. Mela reported that Mr. Toutsaint had told Dr. Mela that he would not participate in such programming. And, while Dr. Mela thought there had been some improvement in Mr. Toutsaint’s behaviour by October 2013, it is clear from Dr. Mela’s testimony that he formed this opinion on the basis of the less-than-truthful information provided by Mr. Toutsaint. On the basis of these representations, Dr. Mela also largely misconstrued the nature of Mr. Toutsaint’s imprisonment from 2011 to 2013 at the Edmonton maximum security facility; not understanding Mr. Toutsaint had spent almost the entirety of his time in the Edmonton Institution in segregation. Dr. Mela was also unaware Mr. Toutsaint had threatened to kill the chairper- son of the segregation review board and a corrections officer in July 2013. Additionally, while Dr. Mela expressed some hope upon learning Mr. Toutsaint was taking anti-depressants, three weeks after Dr. Mela had interviewed him, Mr. Toutsaint sabotaged his own treatment by sell- ing his medication to other inmates. 8 Even assuming Mr. Toutsaint were receptive to programming, received the programming he needs and benefited from it, Drs. Holden and Mela both observed the need for significant positive community support under an intensely-structured, gradual release into the community; whereas, the evidence before the sentencing judge was that Mr. Toutsaint has almost no family support and there is no programming of the highly- intensive nature required to address Mr. Toutsaint’s risk available in his home community of Black Lake, Saskatchewan, and there was no evidence of such programming or any support system being available in To- ronto, Ontario, where Mr. Toutsaint had alternatively proposed he be released. For this reason, the sentencing judge pointedly described Mr. Toutsaint’s ill-conceived release plans as “unrealistic”. 276 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

9 As the sentencing judge correctly concluded, the evidence adduced at Mr. Toutsaint’s dangerous offender hearing had very clearly established that he meets the criteria set out under ss. 753(1)(a)(i) and (ii) for a dangerous offender designation. And, Mr. Toutsaint does not challenge this designation or the determinate sentence he received in consequence thereof. But, the Crown challenges the analysis, factual findings and legal conclusions of the sentencing judge as they relate to his decision to impose a determinate sentence on Mr. Toutsaint. I turn now to address the Crown’s allegations of error in this regard.

III. Analysis 10 The Crown alleges the sentencing judge committed several errors of law when he decided to impose a determinate sentence in the circumstances of this case. In general terms, I find the Crown has established the sentencing judge did not follow the law and furthermore erred in law by either misapprehending or ignoring the evidence before him. I will explain my findings. 11 To begin, Part XXIV of the Criminal Code, which contains the Dan- gerous Offenders and Long-term Offenders provisions, restricts a court’s discretion when sentencing a dangerous offender in these terms: 753(4) If the court finds an offender to be a dangerous offender, it shall: (a) impose a sentence of detention in a penitentiary for an indeterminate period; (b) impose a sentence for the offence for which the offender has been convicted — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or (c) impose a sentence for the offence for which the offender has been convicted. (4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph 4(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. 12 Notably, Parliament enacted amendments to Part XXIV in 2008 that removed a court’s discretion to designate an offender as a long-term offender — rather than as a dangerous offender — even though the of- R. v. Toutsaint Caldwell J.A. 277

fender had met the criteria for a dangerous offender designation. Herauf J.A. made this clear in his reasons in R. v. Bunn, 2014 SKCA 112 (Sask. C.A.) at paras 31-38, (2014), 446 Sask. R. 184 (Sask. C.A.) (see also R. v. Steele, 2014 SCC 61 (S.C.C.) at para 31, [2014] 3 S.C.R. 138 (S.C.C.)). And, since the predicate offence here occurred in 2009, the amended provisions of Part XXIV set the bounds of the sentencing judge’s discretion in this case. 13 Nonetheless, having found Mr. Toutsaint met the criteria for a dangerous offender designation, the sentencing judge still sought to determine whether Mr. Toutsaint instead might meet the criteria for a long- term offender designation, invoking R. v. Casemore, 2011 SKCA 14, 366 Sask. R. 149 (Sask. C.A.) and R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357 (S.C.C.). By doing so, the sentencing judge committed an error of law by relying on repealed provisions of the Criminal Code and case law setting out a process rendered nugatory by the 2008 amendments. 14 While he concedes the error, Mr. Toutsaint submits we should ignore it. He says what matters is the sentencing judge went on to properly analyse the matter on the basis of the current, applicable law. Setting aside — for the moment — the Crown’s allegations of error in respect of that analysis, I am hard pressed to ignore the sentencing judge’s finding under the analysis formerly called for by Part XXIV — i.e., that Mr. Toutsaint did not meet the criteria for a long- term offender designation. I say this because that finding was predicated on the sentencing judge’s conclusion that the evidence disclosed no reasonable possibility of eventual control of the substantial risk that Mr. Toutsaint will reoffend in the community (see s. 753.1(1)(c) and R. v. Goforth, 2007 SKCA 144, 302 Sask. R. 265 (Sask. C.A.)). 15 To be clear as to what this means, the sentencing judge properly cited R. v. Goforth (at para. 54) for the proposition that a reasonable possibility of eventual control of the risk of reoffending in the community “must involve something more than hope or empty conjecture”. Furthermore, when he evaluated the relevant psychological evidence in the light of this explanation from R. v. Goforth, the sentencing judge said this: [106] With respect, Dr. Holden’s conclusion that Mr. Toutsaint at the time of that examination met the criteria for Long-term Offender status was based on a misconstruction of the legal standard. The possibility of eventual risk control must be reasonable, and the standard of reasonableness in law invariably requires that a premise be objectively demonstrable through evidence. The possibility that the ac- 278 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

cused is treatable, pointed to by Dr. Holden in his reports of both 2010 and 2013, is not demonstrable on the facts he found: it is speculative. Dr. Holden believes that in order for the risk posed by Mr. Toutsaint to be managed, Mr. Toutsaint would have to engage with programming while incarcerated, be released into a highly structured and supportive community program, and commit himself to sobriety and a crime free lifestyle. As Mr. Toutsaint has not taken any steps to demonstrate his commitment to fulfilling any of these conditions, the possibility of eventually controlling his risk cannot be objectively demonstrated. [107] Similarly, Dr. Mela expresses the “guarded hope” that the risk Mr. Toutsaint poses could be controlled through intensive multi-pro- nged programming and a highly structured and supported gradual re- release into the community. Dr. Mela also offered the opinion that Mr. Toutsaint fit the criteria for Long-term Offender status. How- ever, the cautious optimism expressed by Dr. Mela is contingent upon suitable programming being both available to and embraced by the accused. As noted, the past and present behaviour of Mr. Tout- saint makes this possibility highly speculative at best. Without a realistic plan for Mr. Toutsaint’s reintegration, and considering the extent to which Mr. Toutsaint has resisted programming in the past, the designation of Long-Term Offender is not appropriate. (R v Toutsaint; Emphasis added) 16 Although by law these findings were not called for, they are nevertheless quite difficult to ignore because they are so entirely at odds with the sentencing judge’s later finding: [114] I am satisfied by the vast amount of evidence adduced during the hearing of this application that there is a “reasonable expectation” that a lesser measure [than an indeterminate sentence] will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. (R v Toutsaint; Emphasis added) 17 These two sets of findings are contradictory by reason of the nature of the legal standards upon which they are based. That is to say, s. 753(4.1) sets out a narrower standard — i.e., whether there is a reasonable expectation — than the standard set out under s. 753.1(1)(c)—i.e., whether there is a reasonable possibility — of controlling the risk posed by a dangerous offender. See R. v. Bunn, at paras. 34-38; R. v. S. (D.J.), 2015 BCCA 111 (B.C. C.A.) at para 30; R. v. Osborne, 2014 MBCA 73 (Man. C.A.) at paras 72-73, [2014] 10 W.W.R. 262 (Man. C.A.); and R. v. Ominayak, 2012 ABCA 337, 539 A.R. 88 (Alta. C.A.) at paras 52-53. R. v. Toutsaint Caldwell J.A. 279

Labach P.C.J. (as he then was) helpfully explained the difference between or overlap of the two standards in R. v. Merasty, 2011 SKPC 109, [2012] 1 W.W.R. 527 (Sask. Prov. Ct.): [113] Under the previous legislative regime, an offender who qualified as a dangerous offender always met the first two qualifications to be a long-term offender [i.e., ss. 753.1(1)(a) and (b)]. (See: R v. Lemaigre, supra, at para. 14). The only real consideration as to whether an offender was entitled to be sentenced to the lesser punishment afforded a long-term offender was whether there was a “reasonable possibility of eventual control of the offender’s risk in the community” [i.e., s. 753.1(1)(c)]. Thus, there is some correlation between this phrase and the test set forth in section 753(4.1). [114] Both of these phrases really involve an assessment of the offender’s risk to the public. They ask a judge to consider if the offender’s risk in the community can be lowered to an acceptable level by a lesser punishment. The only difference is under the old regime the question was one of “reasonable possibility” whereas under the new amendments the test is one of “reasonable expectation”. The difference in wording, while subtle, is significant. A “reasonable possibility” connotes a belief that something may happen while a “reasonable expectation” speaks to a belief that something will happen. The [standard] for finding a reasonable expectation then is somewhat higher but the factors to consider under both tests would essentially be the same. And, therefore, a finding by a court that the evidence does not satisfy the broader test under s. 753.1(1)(c) necessarily precludes satisfaction of the narrower test under s. 753(4.1). In this way, the sentencing judge’s reasons contain a contradiction that cannot be reconciled by simply ignoring his finding under s. 753.1(1)(c); one of his findings must fall to appellate review as it must have been borne of a reversible error of law. 18 In that regard, I conclude the sentencing judge’s finding under s. 753(4.1) — and the determinate sentence he imposed in consequence thereof — must be set aside on the law and on the evidence before the Court. I will first explain the legal significance of the contradiction in the sentencing judge’s findings. I will then address the factual grounds that lead to the conclusion that there was no evidence before the sentencing judge upon which he could have concluded a lesser measure than a sentence of detention in a penitentiary for an indeterminate period could reasonably be expected to adequately protect the public from the commission by Mr. Toutsaint of murder or an SPIO. 280 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

19 I begin by observing the sentencing regime under Part XXIV departs from the usual sentencing regime, which is found under Part XXIII, in many ways. One of which is that a sentence of imprisonment for an indeterminate period is presumed to be a fit sentence for a dangerous offender. In R. v. Bunn (at para. 36), Herauf J.A. confirmed that an indeterminate sentence of imprisonment is the default sentence for a dangerous offender. This is abundantly clear from the language of s. 753(4.1) of the Criminal Code, for it is only when a court is satisfied by the evidence that some lesser measure can be reasonably expected to adequately protect the public that the court has the discretion to depart from the default sentence. 20 Therefore, once a court has designated an offender as a dangerous offender, the only question the court has to ask itself is whether there is a reasonable expectation a lesser measure would adequately protect the public from the commission by that offender of murder or an SPIO. Of course, if the court concludes a lesser measure is appropriate it has an obligation to explain why that is so. 21 Put into context, the sentencing judge incorrectly sought to determine whether an indeterminate sentence of imprisonment was a fit sentence for Mr. Toutsaint, and this led him to ask the wrong questions. For example, he asked whether Mr. Toutsaint belonged in a category with “the most dangerous violent offenders and sexual predators who have shown repeatedly a complete inability to control their impulses” (at para. 108). He asked whether the relative gravity of just three of the SPIOs Mr. Toutsaint had committed outside prison were “such as to justify an indeterminate sentence” (at para. 115). He asked whether any of the SPIOs Mr. Toutsaint had committed had resulted in a serious personal injury (at para. 115) — thereby minimising Mr. Toutsaint’s offending history by improperly distinguishing between a serious personal injury offence and an offence that results in a serious personal injury (see R. v. Steele). 22 In general terms, the sentencing judge’s inquiries all largely overlook the fact the principle of proportionality is already built into Part XXIV of the Criminal Code by way of the prerequisite commission of an SPIO, which acts as “a gatekeeper to ensure that the sentence is not disproportionate to the offence” (see R. v. Currie, [1997] 2 S.C.R. 260 (S.C.C.) at para 31; see also R. v. Lyons, [1987] 2 S.C.R. 309 (S.C.C.), at 338, R. v. Steele at para. 35 and R. v. Goforth at para. 44), and the requirements of R. v. Toutsaint Caldwell J.A. 281

s. 753(1) of the Criminal Code. In R. v. Steele, Wagner J. described Part XXIV in these terms: [41] This statutory framework enables courts to properly sentence dangerous offenders who have committed SPIOs “without having to wait for them to strike out in a particularly egregious way” (Currie, at para. 26). For our purposes, the jurisprudence confirms that the words “use or attempted use of violence” must be read in their gram- matical and ordinary sense, having regard to their statutory context. Neither the purpose of the SPIO requirement nor that of Part XXIV warrants reading in a qualitative minimum level of violence. 23 As the foregoing description from R. v. Steele points out, the reason why the sentencing judge’s inquiries are misplaced is because they are inconsistent with the dominant purpose of Part XXIV of the Criminal Code: [29] The primary rationale for both indeterminate detention and long- term supervision under Part XXIV is public protection. Both sentences advance the “dominant purpose” of preventive detention identified by Dickson J. in Hatchwell v. The Queen, [1976] 1 S.C.R. 39, at p. 43, namely “to protect the public when the past conduct of the criminal demonstrates a propensity for crimes of violence against the person, and there is a real and present danger to life or limb”. When the constitutionality of the dangerous offender provisions came before this Court in R. v. Lyons, [1987] 2 S.C.R. 309, La Forest J., wrote at p. 329, “[Part XXIV] merely enables the court to accommodate its sentence to the common sense reality that the present condition of the offender is such that he or she is not inhibited by normal standards of behavioural restraint so that future violent acts can quite confidently be expected of that person” (emphasis in original). Lamer C.J. subsequently explained this rationale as follows in Currie, at para. 26: “Parliament has thus created a standard of preventive detention that measures an accused’s present condition according to past behaviour and patterns of conduct.” See also R. v. Sipos, [2014] 2 S.C.R. 423, at para. 19. (R v Steele) 24 Put simply, inquiry into the relative seriousness or gravity of the predicate offence or of any other SPIO committed by a dangerous offender may lend to an assessment of the risk posed by an offender and whether it can be managed (see R. v. Daniels, 2011 SKCA 67 (Sask. C.A.) at para 61, (2011), 271 C.C.C. (3d) 339 (Sask. C.A.)), but the focus of the inquiry called for by s. 753(4.1) is properly the nature and quality of the offender’s propensity for committing violent crimes in the future, 282 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

not the proportionality of the sentence to the relative severity of violent crimes committed in the past. 25 On this basis, I find the sentencing judge committed clear errors of law in the exercise of his discretion under s. 753(4.1) by conducting an inquiry into factors irrelevant to the determination called for by that subsection. For this reason, I would set aside the sentencing judge’s determination under s. 753(4.1) that there is a reasonable expectation that a lesser measure than a sentence of detention in a penitentiary for an indeterminate period would adequately protect the public from the commission by Mr. Toutsaint of murder or an SPIO. 26 This means I must conduct the analysis called for under s. 753(4.1) afresh. But, this does not mean all of the sentencing judge’s evidentiary findings must be set aside. While the Crown can point to a number of problems with the findings of fact made by the sentencing judge, only one bears comment; because, it illustrates — from an evidentiary basis — the inevitable conclusion under s. 753(4.1) that the sentencing judge erred in imposing a determinate sentence in this case. 27 Recall that the sentencing judge began his reasons by determining a dangerous offender designation was appropriate for Mr. Toutsaint pursuant to ss. 753(1)(a)(i) and (ii) of the Criminal Code. This means he found beyond a reasonable doubt that Mr. Toutsaint constitutes a threat to the life, safety or physical or mental well-being of other persons. More particularly, a dangerous offender designation under s. 753(1)(a)(i) results from a finding of “a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons”. 28 When it came to quantifying this threat or likelihood based on the evidence of the two experts who had assessed Mr. Toutsaint, the sentencing judge ostensibly found (albeit under the analysis formerly called for under Part XXIV) that there was nothing more than a “speculative” proposition, a “guarded hope” or a “highly-speculative [possibility] at best” of eventually controlling the substantial risk of violently reoffending posed by Mr. Toutsaint in the community. These findings are amply supported by the evidence. 29 However, when the sentencing judge turned to s. 753(4.1) and asked (erroneously) whether an indeterminate period of imprisonment was a fit sentence in the circumstances, he wholly recast the same expert evidence, saying “both experts agree that there is a reasonable amount of hope, given his age and antecedents” (at para. 115). This characterisation is not supported by the evidence as neither of two expert’s reports or R. v. Toutsaint Caldwell J.A. 283

testimony — even in the most favourable light — may be taken to endorse that conclusion. 30 Finally, the sentencing judge plainly concluded there was no reasonable possibility of controlling the risk posed by Mr. Toutsaint “[w]ithout a realistic plan for Mr. Toutsaint’s reintegration” (at para. 107). He then later concluded Mr. Toutsaint’s release plan was “unrealistic at this time” (at para. 137). These conclusions are undoubtedly supported by the evidence. Both experts agreed Mr. Toutsaint required highly-intensive programming to reduce his risk to a manageable level before release into the community under a highly-structured long-term supervision order. But, notwithstanding this, the sentencing judge ended his decision on these terms: [137] His release plan is unrealistic at this time. To be released in Toronto and to then find a job to support himself is not realistic given his lack of education and lack of community and family support. Similarly a release plan to reside in Black Lake, his community of origin, would also seem to be unrealistic given that his family connections there are tenuous and the overall lack of the programming that he will need to survive. That programming would however be available in Prince Albert. [138] But simply because he has no family members left to help him transition does not seem to me to be an adequate reason to lock up this young aboriginal offender for the rest of his life. Through no real fault of his own, his path in life was laid down many years ago with the death of his primary caregiver, his grandfather, and the subsequent and most tragic death of his mother. [139] He deserves another chance. This too was misplaced on the law. In R. v. Lyons at p. 329, La Forest J. held that preventive detention under Part XXIV “represents a judgment that the relative importance of the objectives of rehabilitation, deterrence and retribution are greatly attenuated in the circumstances of the individual case, and that of prevention, correspondingly increased” (see also R. v. Steele at para. 35). And, bluntly, there was just no evidence before the sentencing judge capable of supporting his finding that a lesser measure than indeterminate imprisonment could adequately protect the public from the very real risk to the life, safety and physical or mental well- being of other persons that Mr. Toutsaint poses. 284 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

IV. Conclusion 31 For these reasons, I would allow the Crown’s appeal, set aside the three-year determinate sentence and five-year long-term supervision order and, pursuant to s. 759(3)(a) of the Criminal Code, impose upon Mr. Toutsaint a sentence of detention in a penitentiary for an indeterminate period. As no appeal was taken from the ancillary, DNA and firearms orders, they remain in place.

Richards C.J.S.:

I concur.

Whitmore J.A.:

I concur. Appeal allowed; sentence varied. R. v. Kennedy 285

[Indexed as: R. v. Kennedy] Her Majesty the Queen, Appellant and Allan Austin Kennedy, (Accused) Respondent Manitoba Court of Appeal Docket: AR 15-30-08331 2016 MBCA 5 Barbara M. Hamilton, Holly C. Beard, Marc M. Monnin JJ.A. Heard: September 4, 2015 Judgment: January 4, 2016 Criminal law –––– Offences — Firearms and other weapons — Possession offences — Possession of prohibited weapon — Miscellaneous –––– During authorized searches of accused’s trailer, police found various firearms, including old British Bulldog revolver — Accused was charged with multiple firearms offences — Trial judge convicted accused on some offences, but acquitted him of count relating to British Bulldog revolver, namely, that he possessed prohibited firearm without registration or licence, contrary to s. 91(1) of Criminal Code — Trial judge applied s. 84(3) of Code and acquitted on basis that revolver was antique as defined in s. 84(1) of Code — Trial judge found that expert witnesses were unable to determine whether revolver was manufactured before or after 1898, so Crown did not prove all elements beyond reasonable doubt — Crown appealed acquittal — Appeal allowed; accused convicted — Trial judge erred in law because he only considered evidence concerning year of manufacture — Trial judge failed to turn his mind to requirement that, in order to fall within definition of antique firearm, firearm cannot be designed, or re-designed, to discharge rim-fire or centre-fire ammunition — Unchallenged evidence of expert was that British Bulldog revolver fired centre-fire ammunition, so it did not fall within definition of antique firearm. Criminal law –––– Defences — Res judicata — Same fact situation — Kienapple principle –––– During authorized searches of accused’s trailer, police found various firearms, including prohibited Armalite rifle — Accused was charged with multiple firearms offences — Accused pleaded guilty to unauthorized possession of Armalite rifle, contrary to s. 91(1) of Criminal Code (“count 14”) — Trial judge convicted accused of, inter alia, storing Armalite rifle contrary to regulations pursuant to s. 86(2) of Code (“count 13”), and of unauthorized possession of Armalite rifle with readily accessible ammunition, contrary to s. 95(1) of Code (“count 15”) — Trial judge stayed convictions of counts 13 and 15 on basis of Kienapple principle — Crown appealed stays of convictions — Appeal allowed — Trial judge erred in law when he stayed conviction 286 WESTERN WEEKLY REPORTS [2016] 5 W.W.R. under count 13 as there was no legal or factual nexus between it and counts 14 and 15 — Count 13 was for offence of contravening applicable storage regulations and had nothing in common, other than same firearm, with unauthorized possession offences set out in counts 14 and 15 — Trial judge erred in law when he stayed count 15, rather than count 14 — Offence under s. 95(1) of Code was more serious than offence under s. 91(1) of Code and had additional element — While trial judge correctly articulated that Kienapple principle required that less serious charge be stayed and conviction entered on more serious offence, he entered stay on count 15, which was more serious offence, because accused pleaded guilty to count 14 — No distinction was to be made between guilty plea and conviction for purposes of applying Kienapple principle — Convictions were entered for counts 13 and 15, while stay of conviction was entered for count 14. Criminal law –––– Offences — Firearms and other weapons — Possession offences — Possession of prohibited or restricted firearm with ammunition — Sentencing –––– During authorized searches of accused’s trailer, police found various firearms and charged him with multiple firearms offences — Ac- cused pleaded guilty to one count of unauthorized possession of prohibited firearm contrary to s. 91(1) of Criminal Code (“count 14”) and was acquitted on another count under same section (“count 7”) — Trial judge convicted accused of other offences but stayed convictions of possession of prohibited firearm with readily accessible ammunition contrary to s. 95(1) of Code (“count 15”) and storage of firearm contrary to regulations contrary to s. 86(2) of Code (“count 13”) — Trial judge sentenced accused to 18 months’ incarceration, to be served in community, for count 14, and lesser concurrent sentences for other offences — Crown sought leave to appeal sentence — Leave granted; appeal allowed — Given Crown’s success on conviction appeal, sentences must be imposed on counts 7, 13 and 15 — Accused was sentenced to three years on count 15, which was most serious offence, and other sentences were to be served concurrent to it — Facts that accused was to be sentenced as first offender, he did not threaten anyone and did not use firearm in criminal activity were important, but did not detract from fundamental seriousness of offence — Accused was not entitled to continue to serve his sentence in community — Accused was given one-to-one credit for 295 days served of his conditional sentence, so accused was to serve 26 months on count 15 — Accused was sentenced to nine months on count 7, which was adjusted to one day after taking into account time served — Accused was sentenced to five months on count 13, to reflect danger associated with prohibited rifle, which was adjusted to one day after taking into account time served. Cases considered by Barbara M. Hamilton J.A.: R. c. Ulysse (2015), EYB 2015-258160, 2015 QCCQ 10576, 2015 CarswellQue 10418 (C.Q.) — referred to R. v. Kennedy 287

R. v. Abdullahi (2015), 2015 ONCA 549, 2015 CarswellOnt 11243, [2015] O.J. No. 3944 (Ont. C.A.) — followed R. v. Aubichon (2015), 2015 ABCA 242, 2015 CarswellAlta 1288, [2015] A.J. No. 789 (Alta. C.A.) — followed R. v. Beals (2015), 2015 ONSC 2911, 2015 CarswellOnt 6748, [2015] O.J. No. 2306 (Ont. S.C.J.) — referred to R. v. Brereton (2015), 2015 BCSC 1553, 2015 CarswellBC 2567, [2015] B.C.J. No. 1931 (B.C. S.C.) — referred to R. v. Bullock (2015), 2015 ONSC 4243, 2015 CarswellOnt 10038, [2015] O.J. No. 3456 (Ont. S.C.J.) — referred to R. v. Cairns (2007), 2007 BCCA 572, 2007 CarswellBC 2817, 227 C.C.C. (3d) 149, 54 C.R. (6th) 56, 248 B.C.A.C. 287, 412 W.A.C. 287, [2007] B.C.J. No. 2513 (B.C. C.A.) — referred to R. v. Danvers (2005), 2005 CarswellOnt 3808, 201 O.A.C. 138, (sub nom. R. v. D. (Q.)) 199 C.C.C. (3d) 490, [2005] O.J. No. 3532 (Ont. C.A.) — referred to R. v. Doyle (2015), 2015 CarswellOnt 14344, 2015 ONCJ 492, [2015] O.J. No. 4782, 23 C.R. (7th) 325 (Ont. C.J.) — referred to R. v. Dufour (2015), 2015 ONCA 426, 2015 CarswellOnt 8791, [2015] O.J. No. 3087, 21 C.R. (7th) 184, 326 C.C.C. (3d) 52, 336 O.A.C. 52 (Ont. C.A.) — followed R. v. Fice (2005), 2005 SCC 32, 2005 CarswellOnt 1983, 2005 CarswellOnt 1984, 28 C.R. (6th) 201, 196 C.C.C. (3d) 97, 252 D.L.R. (4th) 575, [2005] S.C.J. No. 30, 333 N.R. 243, EYB 2005-90620, [2005] 1 S.C.R. 742 (S.C.C.) — referred to R. v. Green (2015), EYB 2015-256857, 2015 QCCQ 8377, 2015 CarswellQue 9023 (C.Q.) — referred to R. v. Hasselwander (1993), 20 C.R. (4th) 277, 81 C.C.C. (3d) 471, 152 N.R. 247, 62 O.A.C. 285, 14 O.R. (3d) 800 (note), 1993 CarswellOnt 979, [1993] 2 S.C.R. 398, [1993] S.C.J. No. 57, 1993 CarswellOnt 87, EYB 1993-67499 (S.C.C.) — referred to R. v. Holt (2015), 2015 BCCA 302, 2015 CarswellBC 1958, [2015] B.C.J. No. 1482, 326 C.C.C. (3d) 524, 374 B.C.A.C. 155, 642 W.A.C. 155 (B.C. C.A.) — followed R. v. Kienapple (1974), [1975] 1 S.C.R. 729, 26 C.R.N.S. 1, 15 C.C.C. (2d) 524, 44 D.L.R. (3d) 351, 1 N.R. 322, 1974 CarswellOnt 8, 1974 CarswellOnt 238F, [1974] S.C.J. No. 76 (S.C.C.) — followed R. v. Lawes (2007), 2007 CarswellOnt 56, [2007] O.J. No. 50, 2007 ONCA 10 (Ont. C.A.) — referred to R. v. Loyer (1978), [1978] 2 S.C.R. 631, 3 C.R. (3d) 105, 40 C.C.C. (2d) 291, 85 D.L.R. (3d) 101, 21 N.R. 181, 1978 CarswellQue 7, 1978 CarswellQue 119, [1978] S.C.J. No. 23 (S.C.C.) — referred to 288 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

R. v. MacDonald (2009), 2009 MBCA 36, 2009 CarswellMan 116, 236 Man. R. (2d) 239, 448 W.A.C. 239, [2009] 6 W.W.R. 616, [2009] M.J. No. 96 (Man. C.A.) — referred to R. v. Marshall (2015), 2015 ONCA 692, 2015 CarswellOnt 15578, [2015] O.J. No. 5348, 340 O.A.C. 201 (Ont. C.A.) — followed R. v. McKinnon (2015), 2015 BCSC 1116, 2015 CarswellBC 1805, [2015] B.C.J. No. 1370 (B.C. S.C.) — referred to R. v. Morin (1992), 16 C.R. (4th) 291, [1992] 3 S.C.R. 286, 142 N.R. 141, 76 C.C.C. (3d) 193, 131 A.R. 81, 25 W.A.C. 81, 41 M.V.R. (2d) 161, 1992 CarswellAlta 472, 1992 CarswellAlta 276, EYB 1992-66875, [1992] S.C.J. No. 7 (S.C.C.) — referred to R. v. Muir (2015), 2015 ONSC 3119, 2015 CarswellOnt 8298, [2015] O.J. No. 2853 (Ont. S.C.J.) — referred to R. v. Nur (2013), 2013 ONCA 677, 2013 CarswellOnt 15898, [2013] O.J. No. 5120, 5 C.R. (7th) 292, 117 O.R. (3d) 401, 311 O.A.C. 244, 303 C.C.C. (3d) 474, 296 C.R.R. (2d) 21 (Ont. C.A.) — followed R. v. Nur (2015), 2015 SCC 15, 2015 CSC 15, 2015 CarswellOnt 5038, 2015 CarswellOnt 5039, [2015] S.C.J. No. 15, [2015] A.C.S. No. 15, 469 N.R. 1, 18 C.R. (7th) 227, 322 C.C.C. (3d) 149, 385 D.L.R. (4th) 1, 332 O.A.C. 208, [2015] 1 S.C.R. 773, 332 C.R.R. (2d) 128 (S.C.C.) — followed R. v. P. (D.W.) (1989), [1989] 2 S.C.R. 3, [1989] 5 W.W.R. 97, 97 N.R. 209, 59 Man. R. (2d) 1, 49 C.C.C. (3d) 417, 70 C.R. (3d) 315, 1989 CarswellMan 172, 1989 CarswellMan 331, EYB 1989-67169 (S.C.C.) — referred to R. v. Rocheleau (2013), 2013 ONCA 679, 2013 CarswellOnt 15484, [2013] O.J. No. 5137, 5 C.R. (7th) 397, 311 O.A.C. 295 (Ont. C.A.) — followed R. v. Rutledge (2015), 2015 ONSC 6625, 2015 CarswellOnt 16319, [2015] O.J. No. 5568 (Ont. S.C.J.) — referred to R. v. Sadikov (2015), 2015 ONSC 4447, 2015 CarswellOnt 10427, [2015] O.J. No. 3665 (Ont. S.C.J.) — referred to R. v. Smickle (2013), 2013 ONCA 678, 2013 CarswellOnt 15936, [2013] O.J. No. 5070, 5 C.R. (7th) 359, 311 O.A.C. 288, 304 C.C.C. (3d) 371, 297 C.R.R. (2d) 49 (Ont. C.A.) — considered R. v. Violette (2009), 2009 BCSC 1025, 2009 CarswellBC 2602, [2009] B.C.J. No. 1940 (B.C. S.C.) — referred to R. v. Wiwchar (2015), 2015 BCSC 1702, 2015 CarswellBC 2689, [2015] B.C.J. No. 2019 (B.C. S.C.) — referred to Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 12 — considered Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 84(1) “antique firearm” — considered R. v. Kennedy Barbara M. Hamilton J.A. 289

s. 84(3) — considered s. 86(1) — considered s. 86(2) — considered s. 90 — considered s. 91(1) — considered s. 91(2) — considered s. 95 — considered s. 95(1) — considered s. 109 — considered s. 109(2) — considered s. 686(3) — considered s. 742.1 [en. 1992, c. 11, s. 16] — referred to s. 811 — considered

APPEALS by Crown from conviction and sentence for firearms offences.

C.R. Savage, for Appellant A.A. Kennedy, for himself

Barbara M. Hamilton J.A.:

1 The Crown appeals an acquittal, and two stays of conviction pursuant to the Kienapple principle, arising from a trial by judge alone on a multi- count indictment for firearms offences (R. v. Kienapple (1974), [1975] 1 S.C.R. 729 (S.C.C.)). The Crown also seeks leave to appeal the conditional sentence imposed by the trial judge. The sentence appeal calls for a consideration of the recent decision of the Supreme Court of Canada in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 (S.C.C.), which declared that the minimum three-year sentence for an offence under section 95(1) of the Criminal Code (the Code) was unconstitutional. 2 The trial judge acquitted the respondent (the accused) of count 7, which charged him with possessing a prohibited firearm (the British Bulldog revolver) without a registration or licence, contrary to section 91(1) of the Code. The trial judge found that the British Bulldog revolver was an antique firearm for the purposes of section 84(3) of the Code. 3 The accused pled guilty to count 14 for the unauthorized possession of an AR-180 Armalite assault rifle (the Armalite rifle), which is a prohibited firearm, contrary to section 91(1) of the Code. The trial judge convicted the accused of counts 13 and 15, which also concerned the Armalite rifle. Count 13 was for storing a prohibited firearm not rendered inoperable nor stored in a secure container, contrary to section 86(2) of 290 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

the Code. Count 15 was for unauthorized possession of a prohibited weapon with readily accessible ammunition, contrary to section 95(1) of the Code. The trial judge stayed counts 13 and 15 pursuant to the Kienapple principle. 4 I would allow the appeals of the acquittal and the stays, enter convictions on counts 7, 13 and 15 and stay count 14. I would grant leave to appeal and allow the Crown’s sentence appeal. This is one of those clear cases where this Court should impose the sentences on the convictions entered by this Court, rather than send the matter of sentence back to the trial judge.

The Accused Proceeded Without Legal Counsel 5 The accused had legal counsel prior to his trial, but not at the trial. The trial judge cautioned the accused about proceeding without legal counsel and explained to him, among other things, that he risked going to jail if convicted of “most, if not all” of the counts in the indictment. The trial judge specifically pointed out that a conviction for an offence under section 95(1) was subject to a minimum sentence of three years. The accused chose to proceed without counsel. He did not testify. He called two witnesses. 6 The accused did not have legal counsel for the appeal. At the appeal hearing, the panel cautioned the accused that a successful appeal by the Crown could result in a sentence to be served in jail. The accused declined the panel’s offer of an adjournment for him to obtain legal counsel for the appeal. Although the panel explained to him that he could not give evidence at the appeal hearing, most of his submissions were challenges to the evidence called at the trial. In regard to the sentence appeal, he argued that there was little inherent danger associated with his possession of firearms and ammunition.

Background Facts 7 In June 2010, the police arrested the accused outside his house trailer for breaching a court-ordered condition that he not have contact with his neighbour. They did a routine pat-down search for officer safety incidental to arrest and found two loaded handguns in the pockets of the accused’s pants. The cocking mechanisms of the handguns were pulled back on both guns and were in a “ready to fire position”. The handguns were very old. Testing confirmed that they were functional, although one fired intermittently. R. v. Kennedy Barbara M. Hamilton J.A. 291

8 During two authorized searches of the accused’s trailer, the police found the following 8 firearms (3 of which were loaded), 12 magazines and 200 rounds of ammunition: • Remington Model 31 non-restricted shotgun with safety off and two shells in the magazine tube located along the door of the trailer; • Clement Arms .32 calibre British Bulldog prohibited handgun (that is, the British Bulldog revolver) with five rounds in the cylin- der located in the bedroom at the head of the bed; • Colt 45 model 1911 restricted handgun with a round loaded in the chamber and six rounds in the magazine located in the bedroom; • 200 rounds of .223 ammunition and 12 magazines located in the bedroom; • Colt .45 model 1911 restricted handgun located in a black bag in front of a book shelf and a magazine containing live rounds inserted into the handgun; • .243 calibre “Elwood Epps” non-restricted rifle, Remington Model 1908 non-restricted shotgun and a Remington Model 1908 non-restricted shotgun all located in an unlocked metal chest in the trailer; • .223 calibre prohibited AR-180 Armalite long gun (that is, the Armalite rifle) located in the headboard of a bed. 9 The 200 rounds of ammunition and 12 magazines were compatible with the Armalite rifle, which is a derivative of a military gun, and has no sporting use. 10 The indictment sets out the following counts: • one count breach recognizance (section 811 of the Code) - count 1; • two counts possess prohibited or restricted firearm with readily accessible ammunition (section 95(1)) - counts 2 and 15; • one count carrying a concealed weapon (section 90) - count 3; • seven counts store firearm contrary to the regulations (section 86(2)) - counts 4, 5, 6, 10, 11, 12, 13; • two counts unauthorized possession of a prohibited firearm (section 91(1)) - counts 7 and 14; • one count unauthorized possession of a prohibited device (section 91(2)) - count 8; 292 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

• one count careless storage of a firearm (section 86(1)) - count 9. 11 In addition to count 14, the accused pled guilty to count 8 which related to his possession of the 12 magazines that were compatible with the Armalite rifle. 12 The trial judge acquitted the accused of counts 2 and 7 because he found that the prohibited firearms in question were antiques for the purposes of section 84(3) of the Code. He convicted the accused of the remaining counts and then stayed the convictions under counts 13 and 15 pursuant to the .Kienapple principle. 13 The trial judge gave his reasons for judgment on December 29, 2014, and ordered a pre-sentence report. On March 26, 2015, the trial judge sentenced the accused. 14 At the time of his arrest, the accused was 54 years old. He had a dated, unrelated criminal record. The sentencing proceeded on the basis that he was a first offender. Several years prior to his arrest, firearms had been stolen during a break-in of the accused’s trailer. 15 At the sentencing, the Crown sought a global sentence of four to five years. The trial judge sentenced the accused to 18 months’ incarceration on count 14 and to lesser, concurrent sentences on the remaining convictions. He ordered that the sentences be served in the community. The trial judge imposed a five-year weapons prohibition and made a mandatory order of forfeiture of the weapons and ammunition related to the convictions. 16 On April 14, 2015, the Supreme Court of Canada released Nur.

The Conviction Appeal Acquittal of Count 7 17 The trial judge acquitted the accused of count 7, namely: THAT he ... did possess a prohibited firearm, to wit a British Bulldog Revolver, without being the holder of a registration certificate for the firearm, contrary to ... Section 91(1). 18 The trial judge applied section 84(3) of the Code, the pertinent parts of which read as follows: Certain weapons deemed not to be firearms 84(3) For the purposes of sections 91 ... of this Act and the provisions of the Firearms Act, the following weapons are deemed not to be firearms: R. v. Kennedy Barbara M. Hamilton J.A. 293

(a) any antique firearm; [emphasis added] 19 Section 84(1) of the Code defines “antique firearm” as follows: (a) any firearm manufactured before 1898 that was not designed to discharge rim-fire or centre-fire ammunition and that has not been redesigned to discharge such ammunition, or (b) any firearm that is prescribed to be an antique firearm. 20 The trial judge acquitted the accused of count 7: The expert witnesses called on behalf of the Crown were unable to determine whether this particular firearm was manufactured before or after 1898. I find that the Crown has failed to prove all of the elements under count 7 beyond a reasonable doubt. 21 I agree with the Crown that the trial judge erred in law because he only considered the evidence concerning the year of manufacture. He failed to turn his mind to the requirement that, in order to fall within the definition of antique firearm, a firearm cannot be designed, or re-designed, to discharge rim-fire or centre-fire ammunition. The unchallenged evidence of the expert called by the Crown was that the British Bulldog revolver fires centre-fire ammunition. Therefore, for that reason alone, the British Bulldog revolver did not fall within the definition of antique firearm. 22 In my view, this is one of those clear cases where the legal effect of the uncontroverted evidence was a verdict of guilty beyond a reasonable doubt. See R. v. Morin, [1992] 3 S.C.R. 286 (S.C.C.). Accordingly, I would enter a conviction on count 7.

Stays of Counts 13 and 15 23 This ground of appeal raises the question of law of whether the trial judge properly applied the Kienapple principle when he stayed counts 13 and 15. The standard of review is correctness. 24 Counts 13, 14 and 15 deal with the same prohibited firearm, the Armalite rifle. The trial judge convicted the accused of storing the Armalite rifle contrary to the regulations pursuant to section 86(2) of the Code (count 13). The accused pled guilty to the unauthorized possession of the Armalite rifle, contrary to section 91(1) of the Code (count 14). The trial judge convicted the accused of the unauthorized possession of the Armalite rifle, together with readily accessible ammunition capable of being discharged in that firearm, contrary to section 95(1) of the Code (count 15). 294 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

25 As explained in R. v. Rocheleau, 2013 ONCA 679 (Ont. C.A.) at para 24, (2013), 311 O.A.C. 295 (Ont. C.A.), the Kienapple principle: [P]rovides that where the same transaction gives rise to two or more convictions on offences with substantially the same elements, the accused should be convicted only of the most serious offence: Kienap- ple; and R. v. R.K. (2005), 198 C.C.C. (3d) 232 (Ont. C.A.), at para. 28. The Kienapple principle is designed to protect against undue exercise by the Crown of its power to prosecute and punish: R.K., at para. 29. It applies where there is both a factual and legal nexus between the offences: R. v. Prince, [1986] 2 S.C.R. 480. The requisite factual nexus between the offences is established if the charges arise out of the same transaction, whereas the legal nexus is established if the offences constitute a single criminal wrong: R.K., at para. 32. [emphasis added] 26 The trial judge referred to the Kienapple principle: When the same transaction gives rise to two or more offences with substantially the same elements and an accused is found guilty of more than one of those offences, that accused should be convicted of only the more serious of the offences. In applying the Kienapple principle the law is well established that convictions of the more serious offences should be entered and stays entered on the lesser offences. However since [the accused] pled guilty to count 14 prior to the commencement of the trial, the Crown did not have to prove his guilt on that count. In that counts 13 and 15 involve the same transaction as count 14, in these circumstances I am of the view that counts 13 and 15 should be stayed. [emphasis added] 27 While counts 13, 14 and 15 all concern the Armalite rifle, count 13 does not involve the “same transaction”, as stated by the trial judge. Count 13 is for the offence of contravening the applicable storage regulations. Other than the fact that the same prohibited firearm is involved in the three counts, count 13 has nothing in common with the unauthorized possession offences set out in counts 14 and 15. The elements of the count 13 offence are different from the elements of the count 14 and 15 offences. In other words, there is no legal or factual nexus between count 13 and counts 14 and 15. The trial judge erred in law when he stayed the conviction under count 13. 28 He also erred in law when he stayed count 15, rather than count 14. “All the elements of s. 91(1) are encompassed in s. 95” (see R. v. Cairns, 2007 BCCA 572 (B.C. C.A.) at para 32, (2007), 248 B.C.A.C. 287 (B.C. R. v. Kennedy Barbara M. Hamilton J.A. 295

C.A.)). At the time these offences occurred, section 91(1) and section 95(1) of the Code read as follows: Unauthorized possession of firearm 91(1) Subject to subsections (4) and (5), every person commits an offence who possesses a firearm, without being the holder of (a) a licence under which the person may possess it; and (b) a registration certificate for the firearm. Possession of prohibited or restricted firearm with ammunition 95(1) Subject to subsection (3), every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, unless the person is the holder of (a) an authorization or a licence under which the person may possess the firearm in that place; and (b) the registration certificate for the firearm. 29 An offence under section 95(1) is more serious than an offence under section 91(1). Section 95(1) has the additional element of having a loaded prohibited weapon or one with readily accessible ammunition that is capable of being discharged in the firearm. The relative seriousness of the offences is also demonstrated by the fact that the maximum sentence set for a section 95(1) offence is ten years and for a section 91(1) offence, it is five years. 30 While the trial judge correctly articulated that the Kienapple principle requires that the less serious charge be stayed and the conviction entered on the more serious offence, he entered a stay on count 15, which was the more serious offence. He did so because the accused pled guilty to count 14. I agree with the Crown that no distinction is to be made between a guilty plea and a conviction for the purposes of applying the Kienapple principle. See R. v. Loyer, [1978] 2 S.C.R. 631 (S.C.C.), in which Dickson J (as he then was), explained (at p 635): The Kienapple doctrine cannot apply to bar a conviction of the more serious offence of which (as here) the accused would otherwise, on the evidence, be found guilty simply by offering a plea of guilty to the less serious offence and having the plea accepted. 31 For these reasons, I would set aside the stays of conviction on counts 13 and 15, enter a stay of conviction on count 14 and enter convictions on counts 13 and 15. See R. v. P. (D.W.), [1989] 2 S.C.R. 3 (S.C.C.). 296 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

The Sentence Appeal 32 Given the Crown’s success on the conviction appeal, sentences must be imposed on counts 7, 13 and 15. In my view, this Court should pass the sentences that are warranted in law. See section 686(3) of the Code. I see no reason to remit the matter of sentencing back to the trial judge. The panel has all the relevant facts as contained in the record from the trial and sentencing. It also has the guidance provided by Nur and subsequent jurisprudence. When considering the sentence to be imposed on these counts, I will address the Crown’s submissions with respect to the trial judge’s reasons for sentence.

Reasons for Sentence 33 The trial judge rejected the Crown’s description of the accused’s ar- ray of firearms, ammunition and other weaponry (knives, swords and cross bows) as an “arsenal”. He described the accused as “a collector of weaponry which included firearms that were both antique and current, knives, swords, crossbows and such” who did not store his “collectables” in an “organized fashion”. He stated: There was nothing organized about the interior of the mobile home. Contents were piled haphazardly such that the police had to move piles of matter just to move about the trailer. It would not be inappropriate to describe [the accused] as a hoarder. 34 The trial judge noted that the accused lacked an unlawful purpose for possessing the firearms and that the offences reflected his failure to comply with “new gun law legislation”: There is no suggestion whatever that [the accused] possessed the firearms etcetera for any unlawful purpose... . According to [the accused], whose evidence I accepted on this point, all of his firearms at one time had been properly registered. With the passing of new gun law legislation certain categories were changed, as a result of which he failed to register certain firearms. As a collector [the accused] was required to keep abreast of the changes and legislation. He bears responsibility for not having done so. The same comment applies with respect to the storage of firearms and ammunition. It is important to note that there were no threats made using firearms, there were no crimes committed using firearms and there was no discharge of any weapon. 35 He was of the view that the cases relied on by the Crown (R. v. Dan- vers (2005), 201 O.A.C. 138 (Ont. C.A.); R. v. Lawes, 2007 ONCA 10 (Ont. C.A.); R. v. Hasselwander, [1993] 2 S.C.R. 398 (S.C.C.); and R. v. R. v. Kennedy Barbara M. Hamilton J.A. 297

Violette, 2009 BCSC 1025 (B.C. S.C.) ), were “so different as to render inapplicable the principles that deterrence and denunciation are paramount” (emphasis added). However, he stated that he was “not suggesting ... that the offences of which [the accused] has been convicted are not serious.” 36 The trial judge referred to numerous excerpts from the pre-sentence report, which concluded that the accused was a low risk to reoffend. He found no aggravating circumstances and concluded that the main mitigating factor was the five years that the accused spent on recognizance, with no evidence of breaches. He described the five years as “an inordinately long period of time.” 37 The trial judge sentenced the accused to the following concurrent sentences of incarceration, to be served in the community: • count 14: 18 months • count 3: 15 months • count 8: 9 months • counts 4, 5, 6, 9, 10, 11 and 12: 3 months • count 1: 7 days 38 He ordered that the accused complete 150 hours of community service work. He did not impose house arrest or a curfew.

The Nur Decision 39 The Supreme Court of Canada declared that the minimum sentence of three years for a first offence under section 95(1) was unconstitutional because the imposition of the three-year minimum sentence would be grossly disproportionate in reasonably foreseeable cases. This appeal is not about the constitutionality of section 95(1). Nonetheless, Nur is instructive for what the Supreme Court wrote about the inherent danger of firearms and the seriousness of most offences that are captured by section 95(1). 40 McLachlin CJC, writing for the majority, adopted the analytical approach of Doherty JA in R. v. Nur, 2013 ONCA 677, 311 O.A.C. 244 (Ont. C.A.) (Nur ONCA). She wrote (at paras 82-83): Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At one end of the range, as Doherty J.A. observed, “stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool 298 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

of his or her criminal trade... . [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public”: para. 51. At this end of the range — indeed for the vast majority of offences — a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years’ imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code. Given the minimal blameworthiness of the offender in this situation and the absence of any harm or real risk of harm flowing from the conduct (i.e. having the gun in one residence as opposed to another), a three-year sentence would be grossly disproportionate. Similar examples can be envisaged. A person inherits a firearm and before she can apprise herself of the licence requirements commits an offence. A spouse finds herself in possession of her husband’s firearm and breaches the regulation. We need not focus on a particular hypothetical. The bottom line is that s. 95(1) foreseeably catches licensing offences which involve little or no moral fault and little or no danger to the public. [emphasis added] 41 In the course of her judgment, McLachlin CJC explained that “Gun- related crime poses grave danger to Canadians” (at para 1) and that “Firearm-related offences are serious crimes” (at para 6). 42 Mr. Nur was a nineteen-year-old high school student who had no criminal record and strong family support. He ran from the police who were called to investigate a complaint of threatening conduct outside a local community centre. He threw a loaded handgun to the ground during the chase. The handgun was capable of firing 24 rounds. The evidence did not show that Mr. Nur was involved in the threatening behaviour. He pled guilty to possessing a loaded prohibited firearm contrary to section 95(1). The sentencing judge concluded that a 40-month sentence was a fit sentence. With a double credit for pre-sentence custody of 20 months, he received a sentence of one day in custody plus two years’ probation. 43 Mr. Nur had served his sentence before the release of Nur ONCA. Both the Ontario Court of Appeal and Supreme Court of Canada upheld the sentence imposed with little scrutiny. The Supreme Court noted that, R. v. Kennedy Barbara M. Hamilton J.A. 299

“It remains appropriate for judges to continue to impose weighty sentences in other circumstances, such as those in the cases at bar” (at para 120). (For the purposes of this appeal, I refer only to Mr. Nur, as the co-accused (Charles) received a sentence of seven years, given, among other things, his criminal record.)

The Crown’s Position 44 Even before the question of sentencing for counts 7, 13 and 15 is taken into account, the Crown asserts that the sentence imposed by the trial judge is unfit. The Crown argues that the trial judge erred in principle by dismissing the importance of deterrence and denunciation because the accused had not used or acquired the firearms to commit other offences. This reasoning, says the Crown, ignored the significant risk of danger posed by the multitude of firearm possession offences, particularly given the volume and nature of the firearms and ammunition possessed by the accused. 45 The Crown points to the comments of Doherty JA in Nur ONCA (at para 206): Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation. [emphasis added] 46 As for count 15, the Crown’s position is that a sentence of three years for this section 95(1) offence is a fit sentence, given the seriousness of the offence and the direction provided by the Supreme Court in Nur . It argues that the seriousness of the circumstances of this offence must be assessed in the context of the other offences. Furthermore, it says that none of the offences can be characterized as regulatory offences that fall at the low end of the offence range. 47 The Crown also relies on R. v. Smickle, 2013 ONCA 678, 311 O.A.C. 288 (Ont. C.A.), a companion decision to Nur ONCA, with the following facts: a young man had brief possession of a loaded handgun in an apartment setting for the purpose of taking a picture with it; he had no criminal intent in respect of the gun and no reason to believe the conduct put anybody in harm’s way. The Court held that this conduct “falls squarely at the ‘true crime’ end of the s. 95 spectrum ... described in Nur [ONCA]” that “posed a serious and immediate risk to others” (at para 30) and that a 300 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

sentence approaching two years less a day would have been appropriate absent the mandatory minimum sentence. The Crown asserts that the facts here are more egregious. 48 The Crown takes no issue with the concurrent sentencing approach of the trial judge and acknowledges that the accused must be given some consideration for the time he has already served pursuant to the conditional sentence imposed by the trial judge. It also says that a conviction on count 15 will call for a mandatory weapons prohibition under section 109 and seeks the minimum duration of 10 years.

Analysis and Decision 49 As explained, this Court must now impose fit sentences for the offences set out in counts 7, 13 and 15. 50 Because count 15 is an offence under section 95(1), it is the most serious offence committed by the accused and must be the focus of the sentence appeal. The other sentences will be concurrent to it. 51 The accused unlawfully possessed the Armalite rifle, which is an assault rifle. It is a prohibited firearm under the Code. It was found in the headboard of the accused’s bed. Two hundred rounds of readily accessible ammunition capable of being discharged by the Armalite rifle were close by. 52 Having regard to the offence range described in Nur, the accused was not “the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored” (Nur at para 82). As a result, his offence was not one of minimal moral blameworthiness. On the other hand, he cannot be likened to the criminal who carries a firearm “in public places as a tool of his ... criminal trade” (ibid.), which is at the far end of the true crime range. Rather, the accused is more akin to the person in the middle of the offence range “whose conduct is less serious and poses less danger” than the criminal carrying a firearm (ibid.). 53 Case law subsequent to Nur provides important guidance with respect to sentencing. It includes five appellate decisions: R. v. Dufour, 2015 ONCA 426, 336 O.A.C. 52 (Ont. C.A.); R. v. Holt, 2015 BCCA 302, 374 B.C.A.C. 155 (B.C. C.A.); R. v. Aubichon, 2015 ABCA 242 (Alta. C.A.); R. v. Abdullahi, 2015 ONCA 549 (Ont. C.A.); and R. v. Marshall, 2015 ONCA 692 (Ont. C.A.). The sentences for the section 95 offences in those cases were: three years in Dufour for a “true crime” associated with a break and enter committed by a drug addict; 30 months in Holt for R. v. Kennedy Barbara M. Hamilton J.A. 301

possession of a loaded restricted handgun carried in a backpack committed by an older first offender; three years in Aubichon as part of a global sentence of seven and one-half years for a drug trafficker with an extensive record; four years in Abdullahi; and three and one-half years in Mar- shall for possession of a loaded prohibited handgun found in a bag during a search of an apartment as part of a drug investigation. 54 Even though the factual circumstances are different, Holt is the most helpful of these appellate decisions because Mr. Holt was an older first offender who possessed a loaded restricted firearm, but did not use it in the commission of a crime or in conjunction with threatening conduct. As described by Newbury JA (writing for the Court) (at paras 3-4): Mr. Holt was apprehended ... for a driving infraction by the Burnaby RCMP. He was driving his truck and had a female passenger with him. They had both spent the evening consuming alcohol and smok- ing crack cocaine. The officer who had stopped them arrested Mr. Holt for possession of drugs and carried out a search of the truck incidental to the arrest. He found a backpack containing a loaded .22 calibre revolver and a box containing 43 cartridges capable of being discharged in the gun. At the time of sentencing, Mr. Holt was 66 years old and unem- ployed. He had no criminal record. He considers himself retired and lives on CPP payments and social assistance. He lives in a 20-year old motorhome and at the time of the offences was a “heavy” drug user. He claims to have overcome his drug addiction since that time, although according to the pre-sentence report, he still continues to use illegal drugs occasionally. 55 The sentencing judge in Holt, after ruling that the mandatory minimum sentence for section 95 offences violated section 12 of the Charter, imposed a sentence of 18 months. However, the Court of Appeal accepted the Crown’s invitation to re-align British Columbia’s gun crime sentences with those in other parts of the country (particularly Ontario) and sentenced Mr. Holt to 30 months, less time served. Newbury JA stated (at paras 17-19): The defence in the case at bar also contended that a sentence of 18 months was not insignificant and would be sufficient to send a mes- sage of denunciation and deterrence to Mr. Holt, and that such a sentence lay within the range, once the “inflationary floor” that existed from 2008 until the decision in Nur is removed. With respect, I am unable to accept the defence’s arguments. In my view, the possession of a loaded firearm does pose a serious threat, 302 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

and a growing one, to communities across Canada. There is no reason why British Columbia courts should take this threat less seriously than other Canadian courts now do. ... In my view, the fact a 40-month sentence was upheld almost without challenge in the Nur appeals, the comments of courts in other recent appellate decisions, but most especially the proliferation of guns in the Lower Mainland generally, indicate that a re-alignment of the “range” is in order in British Columbia. I would say that Mr. Holt falls at the bottom end of the “criminal” range, and that a sentence of close to three years is called for. I am also persuaded that the sentence of 18 months’ imprisonment was unfit given the seriousness of the offence. 56 The following are post-Nur sentences imposed for section 95 offences by lower courts: three years in R. v. Beals, 2015 ONSC 2911 (Ont. S.C.J.), released May 4, 2015; three years pursuant to a joint recommendation in R. v. Muir, 2015 ONSC 3119 (Ont. S.C.J.); five years in R. v. McKinnon, 2015 BCSC 1116 (B.C. S.C.); four years in R. v. Bullock, 2015 ONSC 4243 (Ont. S.C.J.); 39 months in R. v. Sadikov, 2015 ONSC 4447 (Ont. S.C.J.); 26 months in R. v. Brereton, 2015 BCSC 1553 (B.C. S.C.); 22 months in R. v. Doyle, 2015 ONCJ 492 (Ont. C.J.); 24 months in R. v. Green, 2015 QCCQ 8377 (C.Q.); 10 years’ global sentence in R. v. Wiwchar, 2015 BCSC 1702 (B.C. S.C.); 12 months in R. v. Rutledge, 2015 ONSC 6625 (Ont. S.C.J.); and 18 months’ incarceration followed by 12 months’ supervised probation in R. c. Ulysse, 2015 QCCQ 10576 (C.Q.). 57 These cases can be distinguished for various reasons from this case. Some involved a multiplicity of offences, youthful offenders and offenders with criminal records. The important observation is that these cases emphasize that deterrence and denunciation were the predominant sentencing principles for a section 95 offence, where significant jail terms were imposed. This is consistent with the observation of Doherty JA in Nur ONCA, in regard to Mr. Nur’s sentence, that “even absent the mandatory minimum, and having regard to [Mr. Nur]’s age and his first offender status, a significant jail term was still necessary in the circumstances of this case” (at para 6). I note that in Rutledge, the sentencing judge was sympathetic to the circumstances of the offender, who was a farmer “mired in weapons convictions that arose, indirectly and in part, from allowing his grown son ... and stepson ... to conduct their illegal R. v. Kennedy Barbara M. Hamilton J.A. 303

activities out of his farmhouse” (at para 1). He treated him as a first offender and imposed a sentence of 12 months’ incarceration. 58 Given all of this, I am of the view that a sentence of three years is a fit sentence for the section 95(1) offence contained in count 15. The facts that the accused is to be sentenced as a first offender, he did not threaten anyone with the Armalite rifle and did not use it in any criminal activity are important considerations. However, they do not detract from the fundamental seriousness of the offence. As explained in Nur, “Restricted or prohibited firearms must be stored unloaded, with a secure locking device and in a locked container or in a vault, safe or room that has been constructed or modified for the secure storage of firearms” (at para 9). 59 The section 95(1) offence, viewed in the context of the other offences, demonstrates the accused’s alarming disregard for the law, the result of which posed a serious risk to the public. The evidence discloses that the accused previously had guns stolen in an earlier break-in. This alone should have alerted him to the danger posed by such a cavalier attitude towards the storage and possession of firearms and ammunition. Perhaps even more alarmingly, he was found to have two loaded handguns in the pockets of his pants at the time of his arrest outside his home, one of which was a prohibited firearm. 60 I agree with the Crown that the trial judge erred in principle by dismissing the importance of deterrence and denunciation in these circumstances. These principles are to be given significant weight when sentencing an offender for firearms offences, unless the offences involve minimal moral blameworthiness, which is not the case here. This is so whether or not an offender uses or acquires firearms to commit other offences. 61 I have difficulty with the trial judge’s description of the accused as “a collector”. A list of the accused’s firearms and ammunition demonstrates that, by describing the accused as a collector, he glossed over the significant risk of danger to others created by the accused. Several of the firearms were prohibited, not just restricted. He had six loaded guns, two of which were concealed in his pant pockets, and four found in his trailer. Furthermore, he had the military-style Armalite rifle, one of the prohibited firearms, in the headboard of his bed with 200 rounds of ammunition close by. 62 In Nur, the Supreme Court stated that its constitutional ruling “does not prevent judges from imposing exemplary sentences that emphasize 304 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

deterrence and denunciation in appropriate circumstances” (at para 5). In my view, these are appropriate circumstances to do so. 63 A sentence of two years or more cannot be served in the community. See section 742.1 of the Code. Therefore, my conclusion that a sentence of three years is the fit sentence for count 15 means that the accused is not entitled to continue to serve his sentence in the community. See R. v. Fice, 2005 SCC 32, [2005] 1 S.C.R. 742 (S.C.C.). As acknowledged by the Crown, he is entitled to some credit for the time he has served to date. The accused was sentenced on March 26, 2015. He has effectively served 10 months (295 days) of his conditional sentence. I would give him full credit on a 1:1 basis for that time. See R. v. MacDonald, 2009 MBCA 36 (Man. C.A.) at paras 30-31, (2009), 236 Man. R. (2d) 239 (Man. C.A.). Therefore, I would sentence him on count 15 to 26 months to be served concurrently with the other sentences. I would not alter the other sentences imposed by the trial judge. 64 Finally, with respect to the conviction on count 7, I am of the view that a sentence of nine months is a fit sentence, as it reflects the sentence imposed for the same offence under count 8. With respect to count 13, the trial judge sentenced the accused to three months on the other counts of unsafe storage. For count 13, I am of the view that a fit sentence would be five months, to reflect the danger associated with the prohibited Armalite rifle. These sentences must also be adjusted for time already served. Therefore, on a go-forward basis, I would sentence the accused to one day on count 7 and one day on count 13. All sentences are concurrent to count 15.

Conclusion 65 I would allow the Crown’s appeal of the acquittal of count 7 and the stays of counts 13 and 15. I would enter convictions on counts 7, 13 and 15 and stay count 14. 66 I would grant leave to appeal sentence. A fit sentence for count 15 is three years. A fit sentence for count 7 is nine months. A fit sentence for count 13 is five months. Given the accused has served 295 days of his sentence, I would sentence the accused on count 15 to 26 months, on count 7 to one day and on count 13 to one day. I would order all sentences be served concurrently to count 15. 67 As required by section 109(2) of the Code, I would make the mandatory ten-year firearms and weapons prohibition order and the mandatory life prohibition order for “any prohibited firearm, restricted R. v. Kennedy Marc M. Monnin J.A. 305 firearm, prohibited weapon, prohibited device and prohibited ammunition”.

Holly C. Beard J.A.:

I agree:

Marc M. Monnin J.A.:

I agree: Appeals allowed. 306 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

[Indexed as: R. v. Garnier] Her Majesty the Queen and Chantel Lynn Garnier, Accused Alberta Provincial Court Docket: Edmonton 130653678P1 2015 ABPC 195 D.M. Groves Prov. J. Heard: August 27, 2015 Judgment: October 5, 2015 Criminal law –––– Pre-trial procedure — Pleas — Guilty plea — Duties of court — Permitting withdrawal of plea –––– Accused was charged with one count of possession of methamphetamine for purpose of trafficking, two counts of possession of identity documents, three counts of possession of property obtained by crime and two counts of theft under — With assistance of counsel S she pleaded guilty to one count of possession of methamphetamine for purpose of trafficking, two counts of possession of identity documents and one count of theft under — When she entered her pleas she signed six page document in which she waived her rights in order to qualify for Drug Treatment Court (DTC) — Crown later revoked consent for delayed sentencing and gave notice to terminate accused from DTC program — Matter was scheduled for sentencing but before that happened accused discharged S, retained counsel and brought this application — Accused was prepared to be sentenced offences other than possession for purposes of trafficking — Her extensive and related criminal record of 24 convictions commenced in 2005 — Application dismissed — S was experienced criminal defence counsel — Accused’s plea was entered in open court and it was deemed to be voluntary since contrary was not shown by accused — Accused provided no affidavit to support her application and she chose not to testify — Plea was informed and unequivocal and she signed waiver that clearly acknowledged that she gave up her right to trial — Accused also failed to prove that S was ineffective. Cases considered by D.M. Groves Prov. J.: R. v. Alexandruk (2011), 2011 ABQB 475, 2011 CarswellAlta 1297, [2011] A.J. No. 836, 55 Alta. L.R. (5th) 348, 520 A.R. 124 (Alta. Q.B.) — followed R. v. B. (G.D.) (2000), 2000 SCC 22, 2000 CarswellAlta 348, 2000 CarswellAlta 349, 143 C.C.C. (3d) 289, [2000] S.C.J. No. 22, 32 C.R. (5th) 207, 184 D.L.R. (4th) 577, [2000] 1 S.C.R. 520, 253 N.R. 201, [2000] 8 W.W.R. 193, 81 Alta. L.R. (3d) 1, 261 A.R. 1, 224 W.A.C. 1 (S.C.C.) — followed R. v. Barai (2014), 2014 ONSC 4689, 2014 CarswellOnt 11924, [2014] O.J. No. 4028 (Ont. S.C.J.) — considered R. v. Garnier 307

R. v. Baylis (2015), 2015 ONCA 477, 2015 CarswellOnt 9644, [2015] O.J. No. 3416, 326 C.C.C. (3d) 18 (Ont. C.A.) — referred to R. v. Bhangal (2014), 2014 ONSC 6364, 2014 CarswellOnt 15448, [2014] O.J. No. 5227 (Ont. S.C.J.) — referred to R. v. C. (L.A.J.) (2005), 2005 ABPC 151, 2005 CarswellAlta 859, 382 A.R. 390, [2005] A.J. No. 770 (Alta. Prov. Ct.) — referred to R. v. Clayton (2014), 2014 ABCA 27, 2014 CarswellAlta 68, [2014] A.J. No. 46 (Alta. C.A.) — followed R. v. Djekic (2000), 2000 CarswellOnt 2891, 35 C.R. (5th) 346, 147 C.C.C. (3d) 572, 135 O.A.C. 220, [2000] O.J. No. 3041 (Ont. C.A.) — considered R. v. Downes (2012), 2012 ONCJ 45, 2012 CarswellOnt 1473, [2012] O.J. No. 414 (Ont. C.J.) — referred to R. v. Easterbrook (2005), 2005 CarswellOnt 1505, [2005] O.J. No. 1486 (Ont. C.A.) — referred to R. v. Eastmond (2001), 2001 CarswellOnt 3911, [2001] O.J. No. 4353 (Ont. C.A.) — referred to R. v. Eizenga (2011), 2011 ONCA 113, 2011 CarswellOnt 697, [2011] O.J. No. 524, 273 O.A.C. 98, 270 C.C.C. (3d) 168 (Ont. C.A.) — referred to R. v. Fiske (2014), 2014 SKQB 152, 2014 CarswellSask 357, [2014] S.J. No. 324, 447 Sask. R. 41 (Sask. Q.B.) — considered R. v. G. (G.) (2006), 2006 CarswellOnt 2122, 208 O.A.C. 348, [2006] O.J. No. 1427 (Ont. C.A.) — considered R. v. Hoang (2003), 2003 ABCA 251, 2003 CarswellAlta 1796, 182 C.C.C. (3d) 69, 339 A.R. 291, 312 W.A.C. 291, [2003] A.J. No. 1555, 25 Alta. L.R. (4th) 206, [2004] 7 W.W.R. 663 (Alta. C.A.) — followed R. v. Hughes (1987), 76 A.R. 294, 1987 CarswellAlta 384, [1987] A.J. No. 204 (Alta. C.A.) — referred to R. v. Hunt (2004), 2004 ABCA 88, 2004 CarswellAlta 221, 346 A.R. 45, 320 W.A.C. 45, [2004] A.J. No. 196 (Alta. C.A.) — referred to R. v. J. (J.J.) (1998), 126 Man. R. (2d) 295, 167 W.A.C. 295, 1998 CarswellMan 360, [1998] M.J. No. 235 (Man. C.A.) — considered R. v. Jacobs (2014), 2014 ABCA 172, 2014 CarswellAlta 828, [2014] A.J. No. 544, 312 C.C.C. (3d) 45, 577 A.R. 3, 613 W.A.C. 3 (Alta. C.A.) — considered R. v. Joanisse (1995), 44 C.R. (4th) 364, 85 O.A.C. 186, 102 C.C.C. (3d) 35, 1995 CarswellOnt 960, [1995] O.J. No. 2883 (Ont. C.A.) — considered R. v. Kuzmack (No. 2) (1955), 22 C.R. 357, 17 W.W.R. 54, 1955 CarswellAlta 66, 113 C.C.C. 286, [1955] A.J. No. 43 (Alta. C.A.) — referred to R. v. Laffin (2009), 2009 NSCA 19, 2009 CarswellNS 78, 275 N.S.R. (2d) 244, 877 A.P.R. 244, [2009] N.S.J. No. 66, 185 C.R.R. (2d) 87 (N.S. C.A.) — referred to R. v. McCollum (2008), 2008 NSCA 36, 2008 CarswellNS 188, 264 N.S.R. (2d) 273, 847 A.P.R. 273 (N.S. C.A.) — referred to 308 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

R. v. McLaughlin (2013), 2013 NBCA 28, 2013 CarswellNB 194, 2013 Car- swellNB 195, [2013] N.B.J. No. 121, [2013] A.N.B. No. 121, 1045 A.P.R. 358, 403 N.B.R. (2d) 358 (N.B. C.A.) — followed R. v. Moser (2002), 2002 CarswellOnt 487, 163 C.C.C. (3d) 286, [2002] O.J. No. 552, [2002] O.T.C. 119 (Ont. S.C.J.) — referred to R. v. Noskiye (1996), 181 A.R. 105, 116 W.A.C. 105, 1996 CarswellAlta 135, [1996] A.J. No. 141 (Alta. C.A.) — referred to R. v. Rajaeefard (1996), 46 C.R. (4th) 111, 104 C.C.C. (3d) 225, 87 O.A.C. 356, 27 O.R. (3d) 323, 1996 CarswellOnt 73, [1996] O.J. No. 108 (Ont. C.A.) — considered R. v. Raynor (2014), 2014 ABQB 449, 2014 CarswellAlta 1340, [2014] A.J. No. 847, 591 A.R. 95 (Alta. Q.B.) — referred to R. v. Redlick (1996), 75 B.C.A.C. 241, 123 W.A.C. 241, 1996 CarswellBC 2078, [1996] B.C.J. No. 2289 (B.C. C.A. [In Chambers]) — followed R. v. Roy (2007), 2007 NBCA 75, 2007 CarswellNB 535, 2007 CarswellNB 536, [2007] N.B.J. No. 411 (N.B. C.A.) — considered R. v. Sterling (2007), 2007 SKPC 66, 2007 CarswellSask 280, 300 Sask. R. 22 (Sask. Prov. Ct.) — considered R. v. Sutton (2012), 2012 NLCA 35, 2012 CarswellNfld 198, [2012] N.J. No. 204, 1004 A.P.R. 214, 323 Nfld. & P.E.I.R. 214 (N.L. C.A.) — referred to R. v. T. (J.G.) (2003), 2003 BCCA 1, 2003 CarswellBC 2, [2003] B.C.J. No. 1, 178 B.C.A.C. 29, 292 W.A.C. 29 (B.C. C.A.) — referred to R. v. T. (R.) (1992), 17 C.R. (4th) 247, 10 O.R. (3d) 514, 58 O.A.C. 81, 1992 CarswellOnt 117, [1992] O.J. No. 1914 (Ont. C.A.) — considered R. v. Wetmore (2003), 2003 ABQB 350, 2003 CarswellAlta 571, [2003] A.J. No. 485, 338 A.R. 144, [2004] 7 W.W.R. 527, 27 Alta. L.R. (4th) 305 (Alta. Q.B.) — referred to R. v. Williams (2012), 2012 BCCA 314, 2012 CarswellBC 2185, [2012] B.C.J. No. 1522, 324 B.C.A.C. 166, 551 W.A.C. 166 (B.C. C.A.) — followed Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 11(b) — considered Controlled Drugs and Substances Act, S.C. 1996, c. 19 Generally — referred to s. 4(1) — considered s. 5(1) — considered s. 5(2) — considered Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 56.1 [en. 2009, c. 28, s. 1] — considered s. 145(3) — considered s. 334(b) — considered R. v. Garnier D.M. Groves Prov. J. 309

s. 344(b) — referred to s. 355(b) — considered s. 606 — considered s. 606(1.1) [en. 2002, c. 13, s. 49(1)] — considered s. 606(1.1)(b) [en. 2002, c. 13, s. 49(1)] — referred to s. 606(1.2) [en. 2002, c. 13, s. 49(1)] — referred to s. 657.3 [en. 1997, c. 18, s. 80] — considered s. 720(2) — considered s. 742.6 [en. 1995, c. 22, s. ] — considered

APPLICATION by accused to strike guilty plea.

J. Martin, for Crown A. Attia, for Accused

D.M. Groves Prov. J.: I. Introduction 1 On June 6, 2013 Ms. Garnier was arrested for a theft that she committed at the Home Depot on May 21, 2013. The Loss Prevention Officer recognized Ms. Garnier when she returned to the Home Depot on June 6, 2013. The police were called, Ms. Garnier was arrested, and upon conducting a search incidental to arrest Ms. Garnier was found with 2 pack- ages of methamphetamine in her purse, one package weighed 55.5 grams and the second package weighed .6 grams. She also had .2 grams of methamphetamine hidden on her person. In her wallet police found two drivers’ licenses in different names. Ms. Garnier was charged with eight offences: possession of methamphetamine for the purpose of trafficking contrary to s. 5(2) Controlled Drugs and Substances Act (CDSA); two counts of possession of identity documents contrary to s. 56.1 Criminal Code (C.C.); three counts of possession of property obtained by crime contrary to s. 355(b) C.C.; and two counts of theft under contrary to s. 334(b) C.C. 2 On November 26, 2014, with the assistance of counsel, (hereinafter referred to as Mr. S), Ms. Garnier pled guilty to count #1 — s. 5(2) CDSA; count #2 — s. 56.1 C.C.; count #3 — s. 56.1 C.C.; and count #7 — s. 334(b) C.C. Pursuant to s. 720(2) C.C. Ms. Garnier’s sentence was delayed so that she could participate in the Edmonton Drug Treat- ment Court (“DTC”) program. 3 On April 22, 2015 Ms. Garnier was terminated from DTC for lack of compliance and the matter was adjourned for sentencing. 310 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

4 The matter was before the Court for sentencing on May 27, 2015. On this date, Ms. Garnier advised that she had discharged Mr. S and had retained new counsel. The matter was further adjourned to June 3rd, June 17th, July 6th and finally to August 27th, 2015.

II. Defence Application 5 On August 27th, 2015 Defence counsel made an application to strike Ms. Garnier’s guilty plea only on Count #1 — possession of methamphetamine for the purpose of trafficking contrary to s. 5(2) CDSA. Ms. Garnier was prepared to be sentenced on the remaining offences. 6 Defence counsel puts forth three arguments in support of this application: 1. Ms. Garnier’s plea was not voluntary. 2. Ms. Garnier’s decision to enter a guilty plea was not an informed decision. Defence advances two arguments in support of this proposition: i. Ms. Garnier was not provided full disclosure. ii. The Crown had not provided Ms. Garnier with an expert report that would support the offence that the drugs found in her purse were possessed for the purpose of trafficking. 3. And finally, when Ms. Garnier entered her plea, she never admitted the essential elements of the offence of trafficking, therefore her plea was not unequivocal. 7 The premise of Defence counsel’s assertions that Ms. Garnier’s plea was not informed or unequivocal is based on an ineffectiveness of counsel claim.

II. Evidence 8 In support of this application, the Court was provided with the following evidence: A. An Affidavit from Mr. S; B. Sworn testimony of Mr. S; C. The criminal record of Ms. Garnier provided under Tab 1 of Ex- hibit H-1; R. v. Garnier D.M. Groves Prov. J. 311

D. An Edmonton Drug Treatment and Restoration Court Track 2 Waiver included under Tab 2 of Exhibit H-2 signed by Ms. Gar- nier (also entered as S-1 on the court file); E. The late disclosed DVD (Exhibit H-4); F. A letter from the Crown’s office to Mr. S dated July 28th, 2014 advising that Ms. Garnier was eligible to apply for DTC (Exhibit H-5). G. In addition, this Court reviewed the Information and court endorsements along with the transcripts of the court proceedings from October 15, 2014 and November 26, 2014. 9 Ms. Garnier’s criminal record commenced in 2005 and includes the following convictions: six s. 145(3) C.C. convictions; three conditional sentence order breaches contrary to s. 742.6 C.C.; nine property related convictions; three convictions for possessing drug contrary to s. 4(1) CDSA; and three trafficking convictions contrary to s. 5(1) CDSA. On Ms. Garnier’s two most recent convictions for trafficking she received a two year jail sentence to be served concurrent to one another. In relation to her first in time conviction for trafficking Ms. Garnier received a 23 month conditional sentence order which sentence was ultimately collapsed. 10 When Ms. Garnier entered her pleas on November 26, 2014 she signed the Edmonton DTC Track 2 Waiver. The Waiver is a 6 page document. Of relevance to this application are pages 1 and 2, which are reproduced below: EDMONTON DRUG TREATMENT AND COMMUNITY RESTO- RATION COURT WAIVER — TRACK 2 The ‘Track 2’ program is designed for offenders who are charged with trafficking and/or possession for the purpose of trafficking of a controlled drug or substance pursuant to the CDSA and any Criminal Code offences (usually property — related offences and communication for the purpose of prostitution) where the underlying reason for the offences(s) is the offender’s addiction to drugs/controlled substances. The offender will also have a demonstrable dependence on cocaine, heroin, methamphetamine or other opiates. Upon successful completion of a drug treatment program, Track 2 participants are candidates for a non-custodial sentence. I, CHANTEL LYNN GARNIER, understand that I am charged with: Information #130653678P1 312 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

5(2) CDSA 56.1 x 2 355(B) CC x 3 3349(b) (sic) x 2 I have read the reports to Crown counsel containing a summary of the evidence against me. I have spoken to a lawyer about the charges including whether there are any defences to the charge or any weaknesses in the evidence against me. I do not want a trial. I will give up my right to plead not guilty. I choose to take part in a drug treatment program approved by the court and remain under the supervision of the court (the “Program” hereafter referred to). I understand to be considered for acceptance into the Program I must: • waive my right to be tried within a reasonable time, as per my right under section 11(b) of the Canadian Charter of Rights and Freedoms, until my application is approved and the 60 day grace period has expired, or until my application is denied • plead guilty to the offence(s) • give information about my background • give my history of drug use • voluntarily undergo random drug testing (urinalysis and/or blood or saliva) • participate in an intensive treatment program I understand that at any time within the first 60 day “grace” period I can leave the Program if I choose. My guilty plea will be struck and I will be referred back to the regular court system. ... 11 In order to advance her arguments Ms. Garnier confirmed to this Court that she was waiving any solicitor-client privilege between herself and Mr. S. 12 Ms. Garnier did not submit an Affidavit in support of her application, nor did she provide viva voce testimony at the hearing. 13 The evidence received from previous counsel, Mr. S, was the following: a. Ms. Garnier initially advised him that she had no knowledge of the drugs in her purse. Mr. S testified that: “...she had initially provided an explanation of how they [the drugs] got there, which, if believed — and I say “if R. v. Garnier D.M. Groves Prov. J. 313

believed” — could provide a defence. I can also advise the Court I also provided her early on my opinion as to how meritorious that argument would be, and that in my own opinion that it had — did not have a great success at trial. At the end of the day, after that consultation, she advised me she wanted to get into drug court, she wanted to deal with it, and as such I moved forward from that point.” [Emphasis added] b. Ms. Garnier never admitted that she had knowledge of the drugs nor did she profess her innocence. c. Mr. S testified that he followed his standard practice regarding s. 606(1.1) C.C. Mr. S described his practice as instructing Ms. Garnier her pleas needed to be voluntary, that she would be giving up her right to a trial, there would be consequences inside and outside of the courtroom as the result of her plea. He advised her that any positive defences that she might have to the offences would be given up by her plea and that the issue of sentencing would ultimately be up to the judge. Mr. S also testified that he canvassed with Ms. Garnier the DTC waiver and the requirements of DTC program and DTC protocols. 14 When asked how Mr. S could have admitted to the facts read in by the Crown if Ms. Garnier had told him she had no knowledge of the drugs, Mr. S testified that after the Crown read in the facts and prior to admitting to them on the record, he looked at Ms. Garnier who affirmed those facts by nodding her head.

III. Background A. Prior to Plea 15 Ms. Garnier was charged on June 6, 2013. On June 14, 2013 Mr. S appeared with Ms. Garnier and was endorsed as counsel of record. 16 On September 18, 2013 Ms. Garnier appeared in court with Mr. S. The endorsement indicates that Ms. Garnier was applying for Drug Treatment Court. The matter was further adjourned to September 20, Oc- tober 18, and November 8, 2013. 17 On November 8, 2013, Ms. Garnier with the assistance of Mr. S elected to be tried by a Provincial Court Judge, and a two day trial was scheduled commencing October 23, 2014. 314 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

18 There is no evidence to indicate when Ms. Garnier submitted her application for DTC, but on July 28, 2014 the Crown sent Mr. S a letter advising that Ms. Garnier was assessed as an eligible candidate for the DTC program. Ms. Garnier’s matter was brought forward from the trial date of October 23, 2014 to appear in the regularly scheduled sitting of DTC on August 27, 2014. 19 From August 27 to October 15, 2014 Ms. Garnier appeared weekly in DTC. The court endorsements indicate that she was on the “DTC waitlist”. 20 As of October 15, 2014 Ms. Garnier was approved for the DTC program. She was advised on this date that the team was working on a treatment plan and it was anticipated that they would be ready to accept her into the program in the near future. When Ms. Garnier was informed of this progress she advised the Court that she was also awaiting further disclosure of a DVD. 21 This Court voiced its surprise with Ms. Garnier’s request for further disclosure at such a late date in the proceedings and subsequent to being approved for DTC. Nonetheless, as the October 15, 2014 transcript reveals, her request to adjourn for receipt of the DVD was granted. The final exchange on October 15 was as follows: THE COURT: So, Ms. Garnier, you are still eligible for Drug Treat- ment Court. It may be that you are delayed, but ... THE ACCUSED: Yeah, I just don’t want to go into anything blindly, and I think that it is only fair for me to see my disclosure, right, before anything. THE COURT: Sure. THE ACCUSED: Thank you. [Emphasis added]. 22 The matter of the pending trial date was discussed on October 15, 2014. Crown and Defence both agreed that the DVD disclosure would not be available in time to proceed with the October 23rd trial and as such the trial date was vacated. Mr. S advised at this time that Ms. Garnier was still interested in participating in the DTC program. 23 The matter was adjourned into DTC for October 22, subsequently to October 29, November 5, November 12, November 19, and November 26th, 2014. As such, Ms. Garnier’s matter was adjourned for an additional 6 weeks in order for her to receive the requested DVD disclosure. R. v. Garnier D.M. Groves Prov. J. 315

24 This Court was advised by the Crown that the DVD disclosure was completed on October 28, 2014. Defence counsel did not dispute this fact.

B. Entering the Plea 25 On November 26, 2014 Ms. Garnier appeared in Court with Mr. S and the following exchange took place: [MR. S]: At this time Ms. Garnier offers pleas of guilty to Counts 1, 2, 3 and 7. 606(1.1) has been canvassed, all answers in the affirmative. I am satisfied she meets the criteria of those sections. THE COURT: Thank you. Particulars MR. HILL: On May 21st of 2013 at 2059 hours, Ms. Garnier stole a Dyson vacuum valued at $200 from the Home Depot in Edmonton, Alberta. A short time later returned to the store, selected a Moen faucet for $400. She proceeded to a self- checkout, presented a receipt for a different Moen faucet that was previously purchased by another female observed with the accused. This incident was investigated on May 25th. Po- lice were notified May 27th. The accused had yet to be identified or arrested. On June 6th at 9:12 p.m. the loss prevention officer observed the accused inside the store and called police. The loss prevention officer recognized the accused from — after reviewing the surveillance video of the theft. The police arrived at 9:18 and took the accused into custody without incident. While conducting a search incidental to a lawful arrest located two operator licences belonging to Katrina Carrols (phonetic) and Leanne Galisto (phonetic) in the accused’s pocket — or, in her wallet, rather, sorry. In the accused’s purse police found a Ziploc bag containing approximately 55 1/2 grams of methamphetamine and a small baggie containing 0.6 grams of methamphetamine. She was found to have $340 in her wallet and the bills were arranged by denomination, also $60 in her purse for a total of $400 in Canadian currency, also a small baggie containing approximately 0.2 grams of methamphetamine on her person. A total estimated street value of the drugs was between $3,378 and $4,504. Her iPhone cell phone was ringing persistently. Police were unable to answer it and the battery subsequently died. Are those facts admitted? 316 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

[MR. S]: The facts are admitted, Ma’am. MR. HILL: Thank you. [MR. S]: With respect to the funds that were in the purse she — that of course is not a charge that is before the Court. She — she is emphatic that that money had nothing to do with the drugs that were in her purse. But she is — THE COURT: Madam clerk, can I see that Information again? I just want to check something. MR. HILL: Your Honour, if I could — THE COURT: Yes MR. HILL: — tender as Exhibit 1 on sentencing the waiver for the Drug Treatment Court signed by the accused after having — [MR. S]: I can advise the Court that I read it to her and she signed it. THE COURT: All right. [MR. S]: She had no questions. THE COURT: She understands the waiver? No questions? THE ACCUSED: Yes. THE COURT: You understand the waiver? THE ACCUSED: Yeah. THE COURT: Thank you. [Emphasis added]. 26 Ms. Garnier signed the Edmonton Drug Treatment Court Track 2 Waiver which was entered as Exhibit S1.

C. Post-plea 27 Between November 26, 2014 and April 22nd, 2015 Ms. Garnier appeared in court every Wednesday afternoon that DTC was sitting. 28 On April 22nd, 2015 the Crown revoked its consent for delayed sentencing and gave notice to terminate Ms. Garnier from the DTC program. No issue has been taken regarding Ms. Garnier’s termination. 29 The matter was adjourned to May 27, 2015 for sentencing. On May 27th, the Court was advised that Ms. Garnier had discharged her counsel, Mr. S, and new counsel had been retained. 30 On August 27, 2015 Defence counsel applied to strike Ms. Garnier’s guilty plea on the s. 5(2) CDSA offence. R. v. Garnier D.M. Groves Prov. J. 317

IV. Issues A. Who bears the burden on an application to strike a guilty plea? B. What is that burden? C. Should Ms. Garnier’s guilty plea on the s. 5(2) CDSA offence be struck? a. Was Ms. Garnier’s plea voluntary? b. Was Ms. Garnier’s plea informed? c. Was Ms. Garnier’s plea unequivocal? D. How does an ineffectiveness of counsel claim affect Ms. Garnier’s application to strike her guilty plea?

V. The Law A. Criminal Code 31 The statutory provisions governing the entering of a guilty plea are found in s. 606 C.C. 32 Although advisable, the accused does not personally need to enter the guilty plea. Defence counsel may enter the plea of guilty on behalf of the accused and admit the material facts as related to the court by Crown counsel: R. v. Kuzmack (No. 2), [1955] A.J. No. 43 (Alta. C.A.) at para. 16 (Kuzmack); R. v. T. (J.G.), 2003 BCCA 1 (B.C. C.A.) at para. 19 (T. (J.G.)); E.G. Ewaschuk, Criminal Pleadings and Practice in Canada, loose-leaf, 2d ed. vol. 1 (Toronto: Canada Law Book, 2013) at para. 14:2160 (Ewaschuk); and Clayton C. Ruby, Gerald J. Chan and Nader R. Hasan, Sentencing, 8th ed. (Markham, Ontario: LexisNexis, 2012) at p. 67, §3.32 (Sentencing). 33 Subsections 606(1.1) C.C. sets out what a court must consider when determining whether to accept a guilty plea. Section 606(1.1) C.C. states: (1.1) A court may accept a plea of guilty only if it is satisfied that the accused (a) is making the plea voluntarily; and (b) understands (i) that the plea is an admission of the essential elements of the offence, (ii) the nature and consequences of the plea, and (iii) that the court is not bound by any agreement made between the accused and the prosecutor. 318 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

34 Where the accused is represented by counsel, particularly experienced criminal defence counsel, a trial judge is generally not under an obligation to conduct a section 606 C.C. inquiry to determine whether the accused understands that the plea is an admission of the essential elements of the offence, as well as the nature and consequences of a plea of guilty to a particular charge: R. v. T. (J.G.) at paras. 19 and 20. 35 Discussing the extent of a judge’s duty to conduct a section 606 inquiry, the Alberta Court of Appeal in R. v. Hoang, 2003 ABCA 251 (Alta. C.A.) (Hoang) explained: The duty...does not require the judge to make inquiry in every case. As the majority of the Supreme Court of Canada held in Brosseau and Adgey, where the accused is represented by counsel and tenders a plea of guilty, the trial judge before accepting it is not bound, as a matter of law, to interrogate the accused. Where the accused has had the benefit of advice from experienced criminal defence counsel and an opportunity to consider that advice, the court is entitled to presume the accused’s plea was validly made. Hoang at para. 23 36 Even where an accused is not represented by counsel at the time the pleas were entered, a guilty plea will not be struck because the Court failed to conduct a thorough s. 606(1.1) C.C. inquiry, unless there was reason to doubt the validity of the plea (s. 606(1.2) C.C. and R. v. T. (R.), [1992] O.J. No. 1914 (Ont. C.A.) at para. 43 (R. v. T. (R.)).

B. General Principles 37 For a guilty plea to be valid, it must be voluntary, informed and unequivocal. See: R. v. Noskiye, [1996] A.J. No. 141 (Alta. C.A.) at para. 5 (Noskiye); Hoang at para. 29; R. v. Clayton, 2014 ABCA 27 (Alta. C.A.) at para. 11 (Clayton); and R. v. Bhangal, 2014 ONSC 6364 (Ont. S.C.J.) at para. 19 (Bhangal). 38 The New Brunswick Court of Appeal in R. v. McLaughlin, 2013 NBCA 28 (N.B. C.A.) (McLaughlin) held that an applicant seeking to set aside his or her guilty plea must be able to demonstrate that: (i) He was unaware of the allegations made against him in the charge; (ii) He was unaware of the effect and potential consequences of his plea; (iii) The plea was not made voluntarily; and (iv) The plea was equivocal in nature. R. v. Garnier D.M. Groves Prov. J. 319

McLaughlin at para. 10 39 As suggested by the Court of Appeal in R. v. Shaw, 2015 ABCA 25 (Alta. C.A.) at para. 11 (Shaw), “[a] guilty plea should only be vacated in exceptional circumstances”.

1. Voluntariness of the Guilty Plea 40 A guilty plea must be voluntary, meaning that the plea is made by the accused in a conscious, volitional manner for reasons which the accused deemed appropriate. The accused cannot have been forced, coerced, pressured, tricked, induced or persuaded by the oppressive conduct of another person into making the guilty plea. See: R. v. Downes, 2012 ONCJ 45 (Ont. C.J.) at para. 11 (Downes); Clayton at para. 11 and R. v. Moser, [2002] O.J. No. 552 (Ont. S.C.J.) at para. 33 (Moser). 41 “A guilty plea in open court is presumed to be voluntary unless the contrary is shown”. R. v. T. (R.) at para. 16. 42 In assessing whether the guilty plea was voluntary, the Court may consider the following questions: (1) was the accused represented by experienced counsel; (2) was the accused apprised of his position in law; (3) did the accused have a defence; (4) was the plea given in circumstances that amounted to pressure on him to do so; and (5) what was the experience of the accused with the criminal justice system? See: R. v. Sutton, 2012 NLCA 35 (N.L. C.A.) at para. 16 (Sutton). 43 In R. v. Djekic, [2000] O.J. No. 3041 (Ont. C.A.), the Court of Appeal set aside a guilty plea after finding the presiding judge had put significant pressure on the accused to make a decision whether she was going to plead guilty that day or risk being arrested on new charges if she did not. There was no question that the accused was distraught, she was concerned about the immediate needs of her child and what would happen if she were arrested, the potential for a penitentiary sentence if she did not accept a plea, as well as the fact that she had not attended court on that day prepared to consider the full disposition of her charge. 44 R. v. Rajaeefard, [1996] O.J. No. 108 (Ont. C.A.) involved a guilty plea being struck when a law student appeared and requested an adjournment on the day of trial for an accused who had only recently attended the Student Legal Services office. The student advised the court they had 320 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

not received disclosure and were not in a position to conduct a trial on behalf of the accused. The court adjourned proceedings and took the student and Crown counsel in the back hallway for an off-the-record discussion. The judge denied the student’s request that the accused be allowed to be present at the discussion. The judge then proceeded to advise the student that no adjournment would be granted and that if the accused pled guilty he would be imposing a suspended sentence and probation, but if the accused was convicted after a trial, he would impose a period of incarceration. The student advised the accused of the court’s off-the- record comments. Upon being advised of what had transpired with the judge, the accused who had intended to plead not guilty entered a guilty plea. The Court of Appeal found the trial judge improperly pressured the appellant to plead guilty, and therefore, the appellant’s plea was not freely and voluntarily given.

2. Informed Guilty Plea 45 The validity of a guilty plea depends on the notion that the accused was informed when making the plea (Moser at para. 34). An informed plea is a plea entered by an accused who is aware of the nature of the allegations made against him, the effect of his plea, and the consequences of the plea (Bhangal at para. 20). Prior experience with the justice system may weigh as a factor in determining whether the accused knows how the court process works and how the pleas are entered (Moser at para. 35). 46 In considering whether to strike a guilty plea the judge should decide whether a reasonable and properly informed person put in the same situation would have pled guilty if they knew the relevant essentials (Ewas- chuk CED at 14:2016). 47 In R. v. J. (J.J.), [1998] M.J. No. 235 (Man. C.A.), the Court of Ap- peal allowed the appellant’s application to withdraw his guilty plea. In arriving at their decision the Court of Appeal took into consideration the testimony of the appellant at the hearing wherein the appellant had consistently maintained he had no memory of the shooting for which he was charged; along with statements received in evidence from two jailhouse informants purporting that another inmate had confessed to this shooting. R. v. Garnier D.M. Groves Prov. J. 321

3. Unequivocal 48 A plea is considered to be ‘equivocal’ if it was unintended, confusing, qualified, modified or uncertain in terms of the admission of the elements of the offence (Bhangal at para. 20). 49 In R. v. Roy, [2007] N.B.J. No. 411 (N.B. C.A.), the accused sought leave to appeal from three convictions of possession for the purpose of trafficking. After entering pleas of guilty to the charges, the accused told the sentencing judge that the drugs were for his own use. The Court of Appeal found the sentencing judge should have rejected the guilty pleas. The appeal was allowed and a new trial ordered.

C. Ineffectiveness of Counsel 50 The fact that an accused was “represented by counsel” prior to and at the time of entering the guilty plea is a “significant factor” militating against an application to set aside a guilty plea: R. v. McCollum, 2008 NSCA 36 (N.S. C.A.) at para. 10. This is because where a guilty plea is entered by an accused represented by counsel, and in particular experienced criminal defence counsel, there is a strong presumption that the guilty plea is valid: R. v. Eastmond, [2001] O.J. No. 4353 (Ont. C.A.) at para. 6; Hoang at para. 23; R. v. Eizenga, 2011 ONCA 113 (Ont. C.A.) at paras. 4 and 45; R. v. Laffin, 2009 NSCA 19 (N.S. C.A.), at 44; Downes at para. 13; R. v. Raynor, 2014 ABQB 449 (Alta. Q.B.) at para. 41 (Ray- nor); and Moser at para. 37. 51 The general approach to a claim of counsel ineffectiveness was considered by the Supreme Court of Canada in R. v. B. (G.D.), 2000 SCC 22 (S.C.C.) (B. (G.D.)). The Supreme Court advised: The approach to an ineffectiveness claim is explained in Strickland v. Washington, 466 U.S. 688 (1984), per O’Connor J. The reasons contain a performance component and a prejudice component. For an appeal to succeed, it must be established, first, that counsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted. Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment. ... 322 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel’s performance or professional conduct. The latter is left to the profession’s self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow (Strickland, supra, at p. 697). B. (G.D.) at paras. 26, 27 and 29 Also see R. v. Baylis, 2015 ONCA 477 (Ont. C.A.) at paras. 61 and 62 52 In R. v. G. (G.), [2006] O.J. No. 1427 (Ont. C.A.) (G.(G.)), the accused unsuccessfully sought to strike his guilty pleas claiming he did not commit the acts relied on by the Crown, that his trial counsel was incompetent, and that his pleas were involuntary. The Ontario Court of Appeal, relying upon the above-noted sentiments in B. (G.D.), explained the test for demonstrating the incompetence of counsel, suggesting it includes two components: a performance component, involving an assessment of counsel’s conduct on a reasonableness standard; and a prejudice component, requiring an appellant to establish that counsel’s conduct occasioned a miscarriage of justice: see R. v. B. (G.D.) [2000] 1 S.C.R. 520 (S.C.C.). G. (G.) at para. 4 53 More recently in R. v. Barai, 2014 ONSC 4689 (Ont. S.C.J.) (Barai), Justice Daley recommended that a three-stage approach be adopted by Courts when scrutinizing claims of ineffective representation by counsel. The Court suggested that in order to succeed in a claim of ineffective assistance of trial counsel, an appellant must establish: “(i) the facts on which the claim of incompetence is based; (ii) that the representation provided by trial counsel was incompetent - the performance component of the test; and (iii) that the incompetent representation resulted in a miscarriage of justice - the prejudice component of the test: R. v. B. (M.), 2009 ONCA 524 (Ont. C.A.), at para 8, [2009] O.J. No. 2653 (Ont. C.A.); see also: R. v. Taylor, 2012 ONSC 2920 (Ont. S.C.J.) at para 14, [2012] O.J. No. 2326 (Ont. S.C.J.).” Barai at para. 34 R. v. Garnier D.M. Groves Prov. J. 323

54 In considering the three-stage assessment, Justice Daley began with an inquiry into the prejudice component of an ineffective assistance of counsel claim. “If the appellant cannot demonstrate prejudice from the alleged ineffective assistance of counsel, it is unnecessary to address the competence of counsel at the time the guilty pleas were taken” (para. 35). 55 According to Justice Daley: Prejudice can be established if the appellant can show that there is a reasonable probability that but for the alleged incompetence, the result of the proceeding would have been different. A reasonable probability in this context is a probability that is sufficiently strong to undermine the appellate court’s confidence in the validity of the verdict. As was stated by Doherty J.A. in R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.), at p 64: “A reasonable probability is established when the reviewing court is satisfied that because of counsel’s incompetence, the verdict cannot be taken as a reliable assessment of the appellant’s culpability.” See also: R. v. B. (M.) 2009 ONCA 524 (Ont. C.A.) at para 10. [Emphasis added] Barai at para. 36 56 Justice Daley continued: “The standard to consider in relation to the performance component of the test is one of reasonableness. Hindsight has no place in this assessment: R. v. B. (G.D.), 2000 SCC 22 (S.C.C.) at para 27, R. v. B. (G.D.), [2000] 1 S.C.R. 520 (S.C.C.)” (Barai at para. 37). 57 In Barai, counsel acknowledged he did not conduct a plea inquiry with the appellant in accordance with s. 606 C.C. by diligently reviewing each relevant subsection. Notwithstanding, Justice Daley concluded, based on counsel’s testimony, that he made proper inquiries and observations to be satisfied that the appellant was making voluntary pleas and that he understood the factors contained in s. 606 (1.1)(b) C.C. 58 Further, Justice Daley was satisfied that the appellant’s counsel “did properly and adequately consider with him any possible defences available with respect to the charges ...” (para. 43). 59 Other ineffectiveness of counsel cases are so fact specific to be of limited utility. 60 R. v. Fiske, 2014 SKQB 152 (Sask. Q.B.) involved an applicant who was not present when his counsel changed his not guilty plea to guilty during a telephone conversation with a Provincial Court Judge. During the sentencing hearing, the applicant denied the facts that were alleged 324 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

which denial the appellate court found constituted “more evidence that the elements covered by s. 606(1.1) had not, probably, been complied with by counsel” (para. 15). The application for expungement of the guilty plea was allowed and a trial ordered. 61 In R. v. Sterling, 2007 SKPC 66 (Sask. Prov. Ct.) the Court set aside the accused’s guilty plea, putting significant weight on the testimony of the accused.

D. Burden of Proof 62 A guilty plea is presumed to be voluntary: T. (J.G.) at para. 17. 63 The onus is on the accused to show on a balance of probabilities that the guilty plea was invalid: R. v. Easterbrook, [2005] O.J. No. 1486 (Ont. C.A.) para. 5 (Easterbrook) or that maintaining the guilty plea would result in a miscarriage of justice: R. v. Hughes, [1987] A.J. No. 204 (Alta. C.A.) at para. 10 (Hughes); Clayton at para. 30; and Hoang at para. 28. 64 Upon reviewing Alberta cases involving an application by the accused to strike his/her guilty plea, it was found that the Court was provided with either an affidavit sworn by the accused/applicant or the accused testified at the hearing of the application. See: Hoang at para. 9; R. v. Hunt, 2004 ABCA 88 (Alta. C.A.) at para. 10 (Hunt); R. v. Noskiye at para. 4; Raynor at para. 25; R. v. C. (L.A.J.), 2005 ABPC 151 (Alta. Prov. Ct.) at para. 9 (R. v. C. (L.A.J.)); and R. v. Wetmore, 2003 ABQB 350 (Alta. Q.B.) at para. 34 (Wetmore). 65 In those cases where the applicant did not swear an affidavit or testify, the Court concluded that the applicant failed to meet the aforemen- tioned onus. For example, in Clayton, the applicant contended that his convictions should be set aside because the trial judge coerced or threatened him, and he was led to believe that if he pled guilty a joint submission for a lighter sentence would be put before the Court. The Alberta Court of Appeal noted that the applicant offered no affidavit evidence describing the circumstances or contents of the threat or coercive action he was alleging, and therefore there was “absolutely no evidence to support this allegation” (para. 21). In relation to the joint submission argument, again no affidavit was provided. Instead the Court noted that the applicant only offered “his own lips during argument” (para. 28). In the view of the Court of Appeal, this was insufficient to satisfy the accused’s contention that he entered his guilty pleas on the belief that the Crown would ask that he receive a lighter sentence than that which was actually imposed. R. v. Garnier D.M. Groves Prov. J. 325

66 In R. v. Alexandruk, 2011 ABQB 475 (Alta. Q.B.) (Alexandruk), Jus- tice Shelley pointed out that none of the applicant’s submissions were under oath, either by way of affidavit or viva voce testimony. As a result, “the Crown would not have had the opportunity to cross-examine him on his version of events” (para. 19). Justice Shelley ultimately concluded the applicant had not met the burden of proving that his guilty plea was invalid or that there was otherwise a miscarriage of justice in the proceedings below. 67 In R. v. Williams, 2012 BCCA 314 (B.C. C.A.) (Williams) the British Columbia Court of Appeal provided guidance as to what materials and evidence should be submitted by the applicant on an application to set aside a guilty plea. In dismissing the application to strike, the Court criti- cized the self-represented applicant for not supporting his application with an affidavit and instead attempting to rely solely on the transcript of the court proceedings when the guilty plea was entered (paras. 51 and 55). 68 In R. v. Redlick, [1996] B.C.J. No. 2289 (B.C. C.A. [In Cham- bers]) (Redlick), the British Columbia Court of Appeal said that an application to set aside a guilty plea must be supported by affidavit evidence establishing there has been a miscarriage of justice. The Court specified that where the appellant has been represented by counsel at trial “he ought to file both his own affidavit and that of his [former] lawyer” (para. 12). In addition, the appellant must also file a transcript of the proceedings of the taking of the guilty plea, submissions of counsel, and the reasons for sentence. 69 Therefore, to satisfy the onus that the accused’s guilty plea was invalid, generally the accused must provide evidence by way of affidavit or viva voce testimony attesting to the circumstances and his or her state of mind at the time that the guilty plea was made.

VII. Analysis 70 Ms. Garnier, through her counsel Mr. S, entered guilty pleas and admitted to the facts alleged by the Crown. Such practice is common and allowable (Kuzmack at para. 16; R. v. T. (J.G.) at para. 19; Ewaschuk at para. 14:2160; Sentencing, 8th ed. at p. 67, 3.32). 71 Since Ms. Garnier was represented by Mr. S, experienced criminal defence counsel, there is no obligation for the Court to conduct a thorough s. 606(1.1) C.C. analysis. The failure of the Court to conduct a thor- 326 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

ough s. 606(1.1) C.C. inquiry does not affect the validity of the plea (see s. 606(1.2) C.C. and R. v. T. (R.) at para. 43). 72 Ms. Garnier’s plea was entered in open court, therefore, the plea is deemed to be voluntary unless the contrary is shown (R. v. T. (J.G.), at paras. 16 and 19). 73 As stated by the Court in Shaw “[a] guilty plea should only be vacated in exceptional circumstances” (para. 11). 74 Ms. Garnier bears the burden on an application to strike her guilty plea (Hughes at para.10; Clayton at para. 30; Hoang at para. 28); and that burden is on a balance of probabilities (Easterbrook at para. 5). 75 Ms. Garnier provided no affidavit in support of her application, and despite being provided an opportunity to testify, she chose not to. 76 Following the reasons set out in Clayton, Alexandruk, Williams and Redlick, Ms. Garnier’s decision to provide this Court with no evidence is fatal to her application. (See also: Hoang, Hunt, Noskiye, Raynor, R. v. C. (L.A.J.), and Wetmore). Relying solely on the sworn evidence of Mr. S is insufficient (Redlick para. 12). 77 Even if the Court could accept, which it cannot, that the oral arguments and written submissions of counsel were admissible evidence, the Court would still find that Ms. Garnier’s application to strike her guilty plea fails. 78 For a guilty plea to be valid, it must be voluntary, informed and unequivocal. See Noskiye at paras. 5 and 8; Hoang at para. 29; Clayton at para. 11; Bhangal at para. 19. 79 In assessing the validity of the guilty plea, this Court can take into consideration Ms. Garnier’s experience with the criminal justice system (Sutton at para. 16; Moser at para. 35). 80 Ms. Garnier is no stranger to the criminal justice system. Ms. Garnier has a total of 24 criminal convictions, including 3 convictions for possessing drugs, and 3 convictions for trafficking in drugs.

A. Voluntariness of the Guilty Plea 81 Counsel argued that Ms. Garnier’s plea was not voluntary because she felt pressured into entering her pleas to secure a placement in DTC. Counsel argued that this pressure arose because the Court, on October 15, 2014, voiced its concern with Ms. Garnier’s disclosure request 16 months into the proceedings, and after Ms. Garnier had been informed she was an acceptable candidate for the DTC program. R. v. Garnier D.M. Groves Prov. J. 327

82 This argument is meritless. 83 Ms. Garnier requested that her pleas be delayed to allow her the opportunity to receive and review the DVD disclosure. The request was granted and the matter was adjourned for 6 weeks for that purpose. 84 Further, on October 15th, 2014, when Ms. Garnier advised the Court that she wished to receive this disclosure, the Court stated: THE COURT: So, Ms. Garnier, you are still eligible for Drug Treatment Court. It may be that you are delayed, but ... THE ACCUSED: Yeah, I just don’t want to go into anything blindly, and I think that it is only fair for me to see my disclosure, right, before anything. THE COURT: Sure. [Emphasis added]. 85 In addition, Ms. Garnier is asking this Court to find that her plea to only the s. 5(2) CDSA offence was proffered under pressure, thereby ren- dering it involuntary. However, on the same day, in relation to the same Information, with all facts read in at the same time, Ms. Garnier pled guilty to three further offences to which she is not seeking to have her pleas struck. In so doing, Ms. Garnier is accepting the guilty pleas for these further offences were entered in a conscious, volitional manner for reasons which she deemed appropriate. How can it be that Ms. Garnier felt pressured into involuntarily entering a guilty plea to the CDSA offence, while at the same time acting voluntarily and without undue influ- ence when she entered guilty pleas to the other three offences? 86 Ms. Garnier has not established that she was pressured into entering a guilty plea on the s. 5(2) CDSA offence. This Court finds that there is nothing in the circumstances to indicate that Ms. Garnier’s plea was not voluntary.

B. Informed Guilty Plea 87 Ms. Garnier argues that her plea was not an informed plea because a DVD comprising video surveillance from Home Depot on May 21, 2013 was disclosed late. It is difficult to know what to make of this argument for several reasons. 88 First, the DVD related to the shoplifting charge. Ms. Garnier does not seek to strike the plea to that charge. Apart from providing information relating to the grounds to arrest Ms. Garnier, the DVD does not relate to 328 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

the s. 5(2) CDSA offence - the offence for which she asks the Court to strike her plea. 89 Second, on October 15, 2014, Ms. Garnier voiced her concern about receiving the DVD before entering her plea. The matters were adjourned for her to obtain this disclosure. The Crown indicated that the DVD was disclosed on October 28, 2014. Ms. Garnier’s plea was not entered until November 26, 2014. 90 The information before the Court is that she had the disclosure she sought well before she entered her plea. There is no reason to believe that she and her counsel did not have the opportunity to review the information provided by the DVD before her plea was entered. 91 Ms. Garnier also says that her plea was not an informed plea because she was not provided with an expert report relating to the s. 5(2) CDSA charge. 92 Frequently, as part of its proof of the s. 5(2) CDSA offence, the Crown provides an opinion from an expert (often a police officer) addressing various indicia of trafficking. Where such an expert is to be called at trial, under s. 657.3 C.C. the Crown is obliged to provide notice to defence that it will be calling such a witness and to provide a copy of the witness’s report, if any. 93 Given that Ms. Garnier elected to plead guilty, any further Crown trial preparation was rendered unnecessary. 94 To the extent that it is suggested that the Crown would not have been able to lead evidence to establish the s. 5(2) CDSA offence, such a suggestion is speculative at best. 95 Most significantly, in pleading guilty, Ms. Garnier gave up her right to a trial. She signed a waiver expressly acknowledging this: “I have read the reports to Crown Counsel containing a summary of the evidence against me. I have spoken to a lawyer about the charges including whether there are any defences to the charge or any weaknesses in the evidence against me. I do not want a trial. I will give up my right to plead not guilty.” (Exhibit S-1, page 1). [Emphasis added]. 96 Ms. Garnier has not established that her plea was uninformed. R. v. Garnier D.M. Groves Prov. J. 329

C. Unequivocal Guilty Plea 97 Defence counsel argued that when Ms. Garnier entered her plea, she never admitted the essential elements of the trafficking offence, therefore her plea was not unequivocal. 98 This issue was already addressed. Refer to paras. 70 - 72 above. 99 Additionally, on November 26, 2014 Ms. Garnier was present before the Court when she offered her guilty pleas and stood mute when the facts were alleged. But for qualifying, through Mr. S, that the money found in her purse was not associated to the drugs found in the same purse, Ms. Garnier did not dispute the facts alleged. This qualification alone supports the fact that Ms. Garnier was acknowledging that she possessed the drugs for trafficking, but the money was not proceeds from the sale of drugs.

D. Ineffective Assistance of Counsel 100 Defence counsel suggested that Mr. S’s conduct amounted to counsel ineffectiveness, which he argued, should support the guilty plea being struck. Defence counsel focused on the late disclosed DVD as problem- atic and the fact that the Crown had not supplied Ms. Garnier with an expert report to support the proposition that the drugs were possessed for the purpose of trafficking. Defence counsel relied on the fact that R. v. Jacobs, 2014 ABCA 172 (Alta. C.A.) had already been decided, imply- ing the Crown would have difficulty proving this offence. Combining these issues with the improper recitation of s. 606(1.1) C.C. by Mr. S, Defence counsel suggests the guilty plea should be set aside. 101 For a claim of counsel ineffectiveness to succeed, Ms. Garnier must establish that Mr. S’s acts or omissions constituted incompetence (referred to as the performance component of the test) and that a miscarriage of justice resulted. Miscarriage of justice has been referred to as the prejudice component of the test (R. v. B. (G.D.) at para. 26; Barai at para. 34). 102 Incompetence is based on a reasonableness standard without the benefit of hindsight. Ms. Garnier bears the burden to prove that Mr. S’s acts or omissions were not the result of reasonable professional judgment (R. v. B. (G.D.) at para. 27; Barai at para. 37). 103 In proceedings involving an ineffective assistance of counsel claim, it has been suggested that the proper procedure is to begin with an inquiry into the prejudice component first. “If the appellant cannot demonstrate 330 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

prejudice from the alleged ineffective assistance of counsel, it is unnecessary to address the competence of counsel at the time the guilty pleas were taken” (B. (G.D.) at para. 29; Barai at para. 35). 104 Following the Court in Barai, Ms. Garnier needs to prove there is reasonable probability, which probability need be sufficiently strong, to undermine the court’s confidence in the validity of her guilty plea (para. 36). As stated by Doherty, J.A. in R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.) at p. 64: “A reasonable probability is established when the reviewing court is satisfied that because of counsel’s incompetence, the verdict cannot be taken as a reliable assessment of the appellant’s culpability.” 105 As set out in McLaughlin, Ms. Garnier would need to demonstrate that: 1) she was unaware of the allegations made against her in the charge; 2) she was unaware of the effect and potential consequences of her plea; 3) her plea was not voluntary; and 4) her plea was equivocal in nature. 106 Mr. S testified that prior to admitting to the facts read in by Crown counsel he looked at Ms. Garnier who acknowledged the facts by nodding her head. This Court finds it unnecessary to decide on the credibility or reliability of such testimony. 107 Similar to the Court in Barai, notwithstanding that Mr. S had not canvassed s. 606(1.1) C.C. by specifically addressing each question outlined in that provision, this Court finds that Mr. S had sufficient information to be satisfied that Ms. Garnier was making voluntary pleas and that she understood the factors as contained in s. 606 (1.1) C.C. The Court arrives at its decision based on the following: Mr. S’s testimony wherein he in- forms the Court of his initial conversation with Ms. Garnier including his professional opinion regarding Ms. Garnier’s potential defence; Ms. Gar- nier’s comments in court on October 15, 2014, when, in the presence of Mr. S, Ms. Garnier commented: “I just don’t want to go into anything blindly”; and finally, being mindful of Ms. Garnier’s experience with the criminal justice system, Ms. Garnier’s willingness to stand mute and allow Mr. S, to admit the facts read in by the Crown. 108 While this Court agrees that Mr. S’s recitation of s. 606(1.1) C.C. was lacking, the Court nonetheless finds that Ms. Garnier was fully aware of the proceedings and her pleas were unequivocal. R. v. Garnier D.M. Groves Prov. J. 331

109 In addition, Ms. Garnier signed a formal waiver acknowledging that she had read a summary of the evidence against her, had consulted with a lawyer, and that she was agreeing to waive any potential defences or any weaknesses in the case against her. 110 Further, Ms. Garnier had the ability at any time within the first 60 days of entering DTC, regardless of reason, to withdraw her guilty plea and be referred back to the regular court system (see Exhibit S-1, page 2). Ms. Garnier chose not to exercise this option. 111 Nothing in the transcripts reviewed by this Court suggests that Ms. Garnier’s intention was to do anything other than consciously and voli- tionally admit fully her guilt for the offence of trafficking and to admit the circumstances of the offence as read out by Crown counsel. The Court therefore finds there is nothing in the circumstances that would suggest Ms. Garnier’s plea was not voluntary, informed and unequivocal.

VIII. Conclusion 112 Ms. Garnier’s application to strike her guilty plea is denied. Application dismissed. 332 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

[Indexed as: Burnaby (City) v. Trans Mountain Pipeline ULC] City of Burnaby, Applicant and Trans Mountain Pipeline ULC, Respondent and The National Energy Board, Respondent British Columbia Supreme Court Docket: Vancouver S146911 2015 BCSC 2140 Macintosh J. Heard: October 19-21, 2015 Judgment: November 5, 2015* Constitutional law –––– Procedure in constitutional challenges — Jurisdic- tion of courts — General principles –––– T was corporation incorporated under laws of Alberta, and was proponent of expansion project which was intended to replace existing pipeline system — Pipeline moved crude oil and petroleum products from Alberta to British Columbia, Washington, and other points — Pipeline had right of way in city, and expansion project called for work on existing right of way in city — Pipeline was interprovincial undertaking as contemplated in s. 91 ¶ 29 read with s. 92 ¶ 10(a) of Constitution Act, 1867 and operated under jurisdiction of National Energy Board (Board), acting under Na- tional Energy Board Act — City opposed expansion project and enacted by-laws which it argued gave it powers over expansion project — By-laws made T’s preliminary work on expansion project difficult or impossible — City unsuccessfully attempted to secure injunction based on T’s activities in 2014 and Board ruled against city on constitutional matters — City applied for declaration that Board did not have constitutional jurisdiction to issue order that limited city in enforcement of its by-laws — Application dismissed — Jurisdiction to answer constitutional questions was declined — Court should be reluctant to decline to answer constitutional questions asked of it, particularly when applicant is municipality in province asking for guidance as to its legal capacity to enforce validly-enacted by-laws — However, ends of justice were better met leaving constitutional questions alone in present case — Board had jurisdiction to address constitutional questions which were before it in order to decide that T could perform engineering studies in face of city’s attempted enforcement of its bylaws — City was unsuccessful when it sought leave to appeal of Board’s ruling

* A corrigendum issued by the court on December 1, 2015 has been incorporated herein. Burnaby (City) v. Trans Mountain Pipeline ULC 333

to Federal Court of Appeal — This meant that Board’s Ruling 40 stood — Su- preme Court of British Columbia lacked jurisdiction to supervise Board — If Supreme Court of British Columbia addressed constitutional questions and came to opposite result of that reached by Board on essentially same questions, result would be unworkable — If city had obtained leave in Federal Court of Appeal to appeal Board Ruling 40 and then had succeeded on merits of appeal, it would not have proceeded to Supreme Court of British Columbia on present application as it would not have wanted to risk receiving contrary result — City was making present application because it had been unsuccessful elsewhere and it constituted abuse of process for city to be seeking in present application what relief it failed to obtain at Board and at Federal Court of Appeal. Cases considered by Macintosh J.: Alltrans Express Ltd. v. British Columbia (Workers’ Compensation Board) (1988), 21 C.C.E.L. 228, 85 N.R. 241, 15 Q.A.C. 161, (sub nom. Alltrans Express Ltd. v. British Columbia (Workers’ Compensation Bd., B.C.)) [1988] 4 W.W.R. 385, [1988] 1 S.C.R. 897, (sub nom. Alltrans Express Ltd. v. British Columbia (Workers’ Compensation Bd.)) 28 B.C.L.R. (2d) 312, 51 D.L.R. (4th) 253, 1988 CarswellBC 757, 1988 CarswellBC 785, EYB 1988- 67011, [1988] S.C.J. No. 38 (S.C.C.) — considered Bell Canada c. Québec (Commission de la santé & de la sécurité du travail) (1988), 21 C.C.E.L. 1, (sub nom. Bell Can. v. Québec (Comm. de la santé & de la sécurité du travail)) [1988] 1 S.C.R. 749, 51 D.L.R. (4th) 161, (sub nom. Bell Can. v. Québec (Comm. de la santé & de la sécurité du travail)) 85 N.R. 295, 15 Q.A.C. 217, 1988 CarswellQue 100, 1988 CarswellQue 136, EYB 1988-67852, [1988] S.C.J. No. 41 (S.C.C.) — referred to British Columbia (Workers’ Compensation Board) v. British Columbia (Human Rights Tribunal) (2011), 2011 SCC 52, 2011 CarswellBC 2702, 2011 Car- swellBC 2703, 25 Admin. L.R. (5th) 173, 337 D.L.R. (4th) 413, [2011] 12 W.W.R. 1, 23 B.C.L.R. (5th) 1, 421 N.R. 338, 95 C.C.E.L. (3d) 169, (sub nom. B.C. (W.C.B.) v. Figiola) 2012 C.L.L.C. 230-001, (sub nom. British Columbia (Workers’ Compensation Board) v. Figliola) [2011] 3 S.C.R. 422, 311 B.C.A.C. 1, 529 W.A.C. 1, [2011] S.C.J. No. 52, [2011] A.C.S. No. 52, (sub nom. British Columbia (Workers’ Compensation Board) v. Figliola) 73 C.H.R.R. D/1 (S.C.C.) — followed Burnaby (City) v. Trans Mountain Pipeline ULC (2014), 2014 BCSC 1820, 2014 CarswellBC 2857, 27 M.P.L.R. (5th) 337, 67 B.C.L.R. (5th) 345 (B.C. S.C.) — referred to Burnaby (City) v. Trans Mountain Pipeline ULC (2014), 2014 BCCA 465, 2014 CarswellBC 3502, 31 M.P.L.R. (5th) 225, 67 B.C.L.R. (5th) 358, [2015] 5 W.W.R. 747, 364 B.C.A.C. 63, 625 W.A.C. 63 (B.C. C.A.) — referred to Burnaby (City) v. Trans Mountain Pipeline ULC (2015), 2015 BCCA 78, 2015 CarswellBC 515, 34 M.P.L.R. (5th) 200, 370 B.C.A.C. 51, 635 W.A.C. 51 (B.C. C.A.) — referred to 334 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

Burrardview Neighbourhood Assn. v. Vancouver (City) (2007), 2007 SCC 23, 2007 CarswellBC 1194, 2007 CarswellBC 1195, [2007] 6 W.W.R. 197, 34 M.P.L.R. (4th) 1, 66 B.C.L.R. (4th) 203, [2007] S.C.J. No. 23, 362 N.R. 208, 281 D.L.R. (4th) 54, 241 B.C.A.C. 1, 399 W.A.C. 1, (sub nom. British Columbia (Attorney General) v. Lafarge Canada Inc.) [2007] 2 S.C.R. 86 (S.C.C.) — considered Campbell-Bennett Ltd. v. Comstock Midwestern Ltd. (1954), [1954] S.C.R. 207, [1954] 3 D.L.R. 481, 1954 CarswellBC 167 (S.C.C.) — considered Canadian Western Bank v. Alberta (2007), 2007 SCC 22, 2007 CarswellAlta 702, 2007 CarswellAlta 703, 49 C.C.L.I. (4th) 1, [2007] S.C.J. No. 22, [2007] 8 W.W.R. 1, 362 N.R. 111, 75 Alta. L.R. (4th) 1, 281 D.L.R. (4th) 125, [2007] I.L.R. I-4622, 409 A.R. 207, 402 W.A.C. 207, [2007] 2 S.C.R. 3 (S.C.C.) — referred to Cie des chemins de fer nationaux du Canada c. Courtois (1988), 21 C.C.E.L. 260, (sub nom. Canadian National Railway v. Courtois) 85 N.R. 260, (sub nom. Canadian National Railway v. Courtois) [1988] 1 S.C.R. 868, 15 Q.A.C. 181, 51 D.L.R. (4th) 271, 1988 CarswellQue 137, 1988 CarswellQue 101, EYB 1988-67853, [1988] S.C.J. No. 37 (S.C.C.) — referred to Construction Montcalm Inc. v. Quebec (Minimum Wage Commission) (1978), 93 D.L.R. (3d) 641, [1979] 1 S.C.R. 754, 25 N.R. 1, 79 C.L.L.C. 14,190, 1978 CarswellQue 146, 1978 CarswellQue 146F (S.C.C.) — considered Cuddy Chicks Ltd. v. Ontario (Labour Relations Board) (1991), 91 C.L.L.C. 14,024, 3 O.R. (3d) 128 (note), 50 Admin. L.R. 44, 122 N.R. 361, 81 D.L.R. (4th) 121, [1991] O.L.R.B. Rep. 790, 47 O.A.C. 271, 4 C.R.R. (2d) 1, [1991] 2 S.C.R. 5, 1991 CarswellOnt 976, [1991] S.C.J. No. 42, 1991 CarswellOnt 3004, EYB 1991-67701, 3 O.R. (3d) 128 (S.C.C.) — referred to Laferrière c. Québec (Juge de la Cour du Québec) (2010), 2010 SCC 39, 2010 CarswellQue 10212, 2010 CarswellQue 10213, 75 M.P.L.R. (4th) 113, (sub nom. Laferrière v. Québec (Procureur Général)) 324 D.L.R. (4th) 692, (sub nom. Quebec (Attorney General) v. Canadian Owners and Pilots Associa- tion) 407 N.R. 102, (sub nom. Québec (Procureur général) c. C.O.P.A.) [2010] 2 S.C.R. 536, [2010] S.C.J. No. 39 (S.C.C.) — referred to Lavers v. British Columbia (Minister of Finance) (1985), 62 B.C.L.R. 327, 16 C.R.R. 17, [1985] 2 C.T.C. 19, 18 D.L.R. (4th) 477, 85 D.T.C. 5218, 1985 CarswellBC 802 (B.C. S.C.) — considered Lavers v. British Columbia (Minister of Finance) (1989), 41 B.C.L.R. (2d) 307, [1990] 1 C.T.C. 265, 64 D.L.R. (4th) 193, 74 C.R. (3d) 21, 90 D.T.C. 6017, 1989 CarswellBC 681, [1989] B.C.J. No. 2239 (B.C. C.A.) — referred to Moulton Contracting Ltd. v. British Columbia (2013), 2013 SCC 26, 2013 Car- swellBC 1158, 2013 CarswellBC 1159, 357 D.L.R. (4th) 236, 43 B.C.L.R. (5th) 1, [2013] 7 W.W.R. 1, 443 N.R. 303, (sub nom. Behn v. Moulton Contracting Ltd.) [2013] 3 C.N.L.R. 125, 333 B.C.A.C. 34, 571 W.A.C. 34, Burnaby (City) v. Trans Mountain Pipeline ULC 335

(sub nom. Behn v. Moulton Contracting Ltd.) [2013] 2 S.C.R. 227, [2011] S.C.C.A. No. 360 (S.C.C.) — followed Qu´ebec (Commission du salaire minimum) c. Bell Telephone Co. of Canada Ltd. (1966), [1966] S.C.R. 767, 59 D.L.R. (2d) 145, 66 C.L.L.C. 14,154, 1966 CarswellQue 42 (S.C.C.) — followed Westcoast Energy Inc. v. Canada (National Energy Board) (1998), 156 D.L.R. (4th) 456, 1998 CarswellNat 266, 1998 CarswellNat 267, 223 N.R. 241, [1998] 1 S.C.R. 322, 3 Admin. L.R. (3d) 163, [1998] S.C.J. No. 27 (S.C.C.) — followed Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to Community Charter, S.B.C. 2003, c. 26 s. 274 — considered Constitution Act, 1867, (U.K.), 30 & 31 Vict., c. 3, reprinted R.S.C. 1985, App. II, No. 5 Generally — referred to s. 91 ¶ 29 — considered s. 92 ¶ 8 — considered s. 92 ¶ 10(a) — considered s. 92 ¶ 13 — considered s. 92 ¶ 16 — considered National Energy Board Act, R.S.C. 1985, c. N-7 Generally — referred to Pt. III — referred to Pt. IX — referred to s. 2 “pipeline” — considered s. 8 — considered s. 11 — considered s. 12 — considered s. 13 — considered s. 13(b) — considered s. 17 — considered s. 22 — considered s. 23 — considered ss. 31-40 — referred to s. 52 — considered s. 73 — considered s. 73(a) — considered 336 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

s. 75 — considered

APPLICATION by city for declaration that National Energy Board did not have constitutional jurisdiction to issue order that limited city in enforcement of its by-laws.

Gregory J. McDade, Q.C., Michelle L. Bradley, for Applicant William C. Kaplan, Q.C., Maureen E. Killoran, Q.C., Matthew P. Good, for Re- spondent, Trans Mountain Pipeline ULC Paul Johnston, for Respondent, National Energy Board

Macintosh J. (orally): Introduction 1 Trans Mountain Pipeline ULC is the general partner of Trans Moun- tain Pipeline LP. I shall refer to both, collectively, as Trans Mountain. Trans Mountain is a corporation incorporated under the laws of Alberta. It is extra-provincially registered as a corporation in British Columbia. 2 Trans Mountain is the proponent of what is called the Trans Mountain Expansion Project (the “Expansion Project”). The Expansion Project is intended to expand the existing Trans Mountain Pipeline system (“Pipe- line”). At present, the Pipeline moves crude oil and petroleum products from Sherwood Park, Alberta, to terminals and refineries in central Brit- ish Columbia, the Lower Mainland, Puget Sound in the State of Wash- ington, and other points. The Pipeline is 1,147 kilometres long. It has a capacity of approximately 300,000 barrels per day. 3 The Expansion Project calls for the completion of the twinning of the Pipeline along approximately 1,000 kilometres of its present route. It also calls for installing or modifying pump stations and storage tanks. 4 The existing Pipeline has a right of way in Burnaby leading to facilities on the shoreline of Burrard Inlet. The Expansion Project calls for work on the existing Trans Mountain right of way in Burnaby, or in new locations in Burnaby, or both. 5 As a matter of Canadian constitutional law, the Pipeline is an interprovincial undertaking as contemplated in s. 91(29) read with s. 92(10)(a) of the Constitution Act, 1867. The Pipeline is situated, constructed and operated under the exclusive jurisdiction of the National En- ergy Board (“NEB” or “Board”), acting pursuant to the provisions of the National Energy Board Act, R.S.C. 1985, c. N-7 (“NEB Act” or “Act”), a federal statute. Burnaby (City) v. Trans Mountain Pipeline ULC Macintosh J. 337

6 Burnaby and Trans Mountain are at an impasse. Burnaby opposes the Expansion Project, certainly insofar as it affects Burnaby. Burnaby is one of approximately 400 intervenors at the hearings the NEB is holding for the Expansion Project. 7 Burnaby has lawfully enacted bylaws, including in particular Burnaby Parks Regulation Bylaw 1979 (Parks Bylaw) and Burnaby Street and Traffic Bylaw 1961 (Traffic Bylaw), which it says give it powers over the Expansion Project. In essence, Burnaby asserts that it can control through these bylaws the routing of the Expansion Project in Burnaby and the engineering studies needed to determine the route. Burnaby appears from the filed evidence to be using the bylaws to make Trans Mountain’s preliminary work on the Expansion Project difficult, if not impossible, to undertake. 8 Trans Mountain submits that the routing of an interprovincial pipeline, including engineering feasibility studies necessary for determining a pipeline’s route, are within the exclusive jurisdiction of Parliament acting through the NEB Act and the NEB. 9 In the result, there is in this hearing a contest between the applicability of valid provincial law in the form of Burnaby’s bylaws and valid federal law as found in the NEB Act and the NEB’s resulting jurisdiction over interprovincial pipelines.

The Issues 10 Burnaby and Trans Mountain are on common ground that this Court in this application has the jurisdiction to address the constitutional questions placed before it. I will state those questions below. (Counsel for the NEB appeared on the application, but advised that the Board is taking no position.) 11 Trans Mountain submits that this Court should decline to answer the constitutional questions. Trans Mountain’s point is that the NEB has already answered the questions for this dispute and Burnaby lost in its application to the Federal Court of Appeal to appeal the NEB’s orders. As part of its submission, Trans Mountain submits that it is an abuse of process for Burnaby to be here on this application, and that it is unworkable for this Court to make its constitutional pronouncements in the matter when the NEB has done so with the Federal Court of Appeal having denied leave. There is an obvious risk of inconsistent answers between those coming from this Court’s analysis and what the NEB has determined. 338 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

12 As to what the constitutional questions are, in its notice of application filed July 31, 2015, Burnaby seeks: “A declaration that the National En- ergy Board does not have the constitutional jurisdiction to issue an order to the City of Burnaby that directs or limits the City of Burnaby in the enforcement of its bylaws.” 13 Counsel for Burnaby added, however, in his oral submissions, that I should also “rule on the ultimate question”, which he explained as being the constitutional questions between the parties more generally. I was directed to the two notices of constitutional question filed respectively by Trans Mountain on July 22, 2015, and by Burnaby on August 6, 2015. 14 Trans Mountain framed the constitutional questions as follows: [1] Burnaby’s municipal bylaws are constitutionally inoperative to the extent that they conflict with actions taken under the authority of s. 73 of the National Energy Board Act; or [2] Burnaby’s municipal bylaws are constitutionally inapplicable to actions taken under s. 73 of the National Energy Board Act, in respect of a federally-regulated and inter-provincial undertaking, by operation of the doctrine of interjurisdictional immunity. 15 Burnaby’s expression of the constitutional questions reads: [3] [T]he NEB Act, and in particular s. 73(a) thereof, on its true construction does not apply to override municipal bylaws and does not authorize the contravention of municipal bylaws, including Burnaby’s bylaws, or provide the authority to direct or limit a municipality in the enforcement of its validly enacted bylaws. [4] In the alternative, to the extent that the NEB Act, and in particular s. 73(a) thereof, purports to authorize the contravention of, or to override, limit, direct or regulate the enforcement of municipal bylaws concerning land use planning for protection of the local environment and local traffic it purports to be in respect of “municipal institutions in the province”, “property and civil rights in the province” or “matters of a merely local or private nature in the province” and intrudes upon the core of provincial jurisdiction contrary to s. 92(8), s. 92(13) or s. 92(16) of the Constitution Act, 1867. The NEB Act or any relevant part thereof is therefore ultra vires of the Parlia- ment of Canada and is of no force and effect in respect of Burnaby’s enforcement of its bylaws. [5] Further, or in the further alternative, the NEB Act or any relevant part thereof is constitutionally inapplicable to a municipality, Burnaby, in the enforcement of its bylaws concerning land use planning for protection of the local environment and local traffic. Burnaby (City) v. Trans Mountain Pipeline ULC Macintosh J. 339

(Parenthetically, I note that constitutional questions 1 and 2 above were labelled (b) and (c) by Trans Mountain, and questions 3, 4, and 5 above were labelled (a), (b) and (c) by Burnaby, and I have renumbered them as questions 1-5 simply for convenience.) 16 I will be answering the constitutional questions as framed above, namely the declaration sought by Burnaby in its notice of application, and then questions 1-5 above from the two notices of constitutional question the parties filed. In total, therefore, there are six constitutional questions, being the requested declaration and the five numbered questions. There is substantial overlap in the six questions, but I do not want to distill them into one or two questions because the six questions are in the form in which they were received by the Attorneys General when they made their decisions not to participate in this hearing. 17 At this stage in these reasons, I have not concluded whether my answers to the six questions will be dicta only, because I have not at this stage determined whether I should accede to Trans Mountain’s submission that this Court should decline jurisdiction over the constitutional issues. (I address whether to decline jurisdiction beginning at paragraph 38 below.) 18 In summary, therefore, as to what the issues are, the threshold issue is whether this Court should decline jurisdiction over the constitutional questions. The other issue is the answer to those questions.

Procedural History and a Brief Summary of the NEB Act 19 Before turning to the issues directly, it is relevant to see the procedural history of the dispute to this stage. 20 On December 16, 2013, Trans Mountain applied to the NEB for a Certificate of Public Convenience and Necessity (“CPCN”) for the Ex- pansion Project. A CPCN is required before a project under NEB jurisdiction will be authorized. For a large project generating wide public interest, such as Trans Mountain’s Expansion Project, it is a long and complicated process from the time of an application for a CPCN to its eventual issuance, if that comes to pass. 21 A review of the Act makes plain the extent of the NEB’s control over such applications from beginning to end. Section 2 of the Act defines “pipeline” broadly so as to include all facets of the Expansion Project. Section 8 confers rule-making powers on the Board to regulate its process. (Part IX of the Act gives the Board the power to make regulations, with federal cabinet approval, for imposing monetary penalties and ob- 340 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

taining related policing powers for matters within its jurisdiction.) Sec- tion 11 makes the NEB a court of record and gives it the same powers, rights and privileges in the exercise of its jurisdiction as are vested in a superior court of record. Section 12 gives the NEB exclusive jurisdiction to inquire into and determine any matter of compliance with the Act and, for the purposes of the Act, gives to the Board full jurisdiction to hear and determine all matters, whether of law or fact. Section 13 permits the Board to make mandatory and prohibitory orders for any person to do or refrain from doing anything required or prohibited under the Act. Section 17 says that any order of the NEB can be filed with the Federal Court or the superior court of a province to be enforced as a court order. Section 22 authorizes appeals, with leave, from the NEB to the Federal Court of Appeal. Section 23 provides that every decision or order of the Board is final and conclusive, except as provided in the Act. 22 Later in the Act is found Part III, beginning at s. 29, and entitled, “Construction and Operation of Pipelines”. Of particular relevance for this dispute are ss. 31-40, addressing the NEB’s jurisdiction over the location of pipelines. CPCNs, mentioned earlier, are addressed in s. 52 and following. Federal cabinet approval is a condition of a CPCN being issued for a pipeline. 23 In the dispute to this point, s. 73 of the Act has been interpreted by the NEB, as will be seen below. Section 73 confers certain powers on a CPCN applicant such as Trans Mountain to carry out route location studies, among other things. 24 In April of 2014, the NEB issued a hearing order to establish the several pre-hearing and hearing steps for the Expansion Project CPCN application. Burnaby became an intervenor early in the process. Trans Moun- tain soon learned of public opposition in Burnaby to Trans Mountain using its existing right of way for the intended works. In June 2014, it therefore selected a new route as its preferred route, which requires tun- nelling in Burnaby Mountain. On July 15, 2014, the NEB issued a procedural direction to take into account the alternative Burnaby Mountain route. Trans Mountain was to perform necessary engineering studies for that route by December 1, 2014, which Trans Mountain did. However, Burnaby, pursuant to what it saw as its lawful powers under its bylaws, attempted to thwart or frustrate Trans Mountain in conducting the engineering studies. That micro conflict has generated most of the litigation to date in this dispute, but the constitutional impasse associated with the Expansion Project is ongoing. Burnaby (City) v. Trans Mountain Pipeline ULC Macintosh J. 341

25 In the summer of 2014, when Trans Mountain was meeting resistance from Burnaby, it sought and obtained from the NEB an interpretation of s. 73(a) of the Act. Section 73(a) provides: 73. A company may, for the purposes of its undertaking, subject to this Act and to any Special Act applicable to it, (a) enter into and on any Crown land without previous licence therefor, or into or on the land of any person, lying in the intended route of its pipeline, and make surveys, examinations or other necessary arrangements on the land for fixing the site of the pipeline, and set out and ascertain such parts of the land as are necessary and proper for the pipeline; I note parenthetically that s. 75 of the Act obligates the applicant company to minimize damage and fully compensate those harmed when the company exercises any rights under the Act. 26 On August 19, 2014, the NEB issued Ruling 28. The ruling interpreted s. 73(a) of the Act. The Ruling said: A plain reading of the language used in paragraph 73(a) provides Trans Mountain with the power to enter any Crown (federal or provincial) or privately owned land which lies in the intended route of its pipeline to make surveys and examinations. There is no requirement in paragraph 73(a) for companies to reach agreement with land- owners, the Crown, or otherwise, before exercising the right to access land. The provision does not restrict the powers conferred on companies to enter into and on lands that were part of an original application. In order to make a recommendation under section 52 of the NEB Act, the Board requires companies to provide detailed information about engineering, environmental, geotechnical, archaeological, and other matters. As the Board noted previously in the Dawn Gateway Pipeline process, it would not be logical that the Board be required to recommend approval or denial of a project without all the necessary information before it. This would not be in the public interest. The Board is of the view that a company’s power under paragraph 73(a) to “make surveys, examinations or other necessary arrangements on the land for fixing the site of the pipeline” should not be read restrictively as long as what is done is necessary for fixing the routing of the pipeline and submitting necessary information to the Board. To interpret the survey power as Burnaby has submitted to allow only “superficial access” would not provide the Board with the information it needs and would go against the intent of the legislation. 342 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

The powers provided to a company in paragraph 73(a) are not unlim- ited, as is made clear in section 75. A company must do as little damage as possible and make full compensation as provided under the NEB Act for any damage sustained. In summary, the Board is of the view that Trans Mountain has the power stated by Parliament in paragraph 73(a) of the NEB Act. Spe- cifically, Trans Mountain has the power to enter into and on Burnaby land without Burnaby’s agreement in the manner outlined in Trans Mountain’s 25 July 2014 request. Trans Mountain does not require a Board order for temporary access, nor has it requested a Board order. 27 Burnaby did not seek to appeal Ruling 28. After the ruling, Trans Mountain went onto Burnaby Mountain to start the necessary engineering studies. Burnaby employees served Trans Mountain workers with notices of Burnaby bylaw violations. 28 I say as an aside that the damage Trans Mountain ended up causing on Burnaby Mountain to perform the engineering studies appears to me, from the filed evidence, to have been minimal, and it is now being fully remediated. I will not take space here to set out the opposing views as to what, if any, damage there was. That is not central to the issues before me. 29 The dispute landed in this Court before Brown J. on September 11, 2014. Burnaby sought an interlocutory injunction under s. 274 of the Community Charter, S.B.C. 2003, c. 26, to enjoin Trans Mountain from violating Burnaby’s bylaws as a result of the engineering work it was carrying out on Burnaby Mountain. Brown J. dismissed the application on September 17, 2014, with reasons dated September 26, 2014, as found at 2014 BCSC 1820 (B.C. S.C.). Brown J. found at paragraph 16 of her reasons that the matter was properly before the NEB and that Burnaby could appeal any adverse finding there to the Federal Court and seek an injunction in that Court. I note that the NEB process by that stage had moved past Ruling 28. Ruling 32 came down on September 25 and I will address Ruling 32 below. 30 Before leaving Brown J.’s reasons, I note several findings she made which remain relevant and with which I respectfully agree. At paragraph 31 of her reasons, she characterized the dispute as one between competing public interests as opposed to one primarily between Trans Mountain and Burnaby. Linked to that, at paragraph 32, she observed that Trans Mountain was not flouting Burnaby’s bylaws, but was instead operating lawfully within the regime of the NEB. At paragraph 39, she noted that the NEB has the jurisdiction to fully address constitutional issues rele- Burnaby (City) v. Trans Mountain Pipeline ULC Macintosh J. 343

vant to the exercise of its authority. That allows the NEB to determine if Burnaby’s bylaws are operative, a point she spoke of further at paragraph 50 of her reasons. 31 As noted above, on September 25, 2015, eight days after Brown J.’s decision, the NEB issued Ruling 32. Trans Mountain had applied to the NEB pursuant to ss. 12, 13, and 73(a) of the Act for an order against Burnaby, to give Trans Mountain adequate temporary access to Burnaby lands in order to carry out the engineering studies for the Burnaby Moun- tain route. In Ruling 32, the NEB decided, correctly in my respectful view, that the requested order required the NEB to address a question of constitutional law. The NEB noted that no constitutional question had been filed. It therefore dismissed Trans Mountain’s application, without prejudice to Trans Mountain, until a constitutional question was formu- lated and served. 32 Trans Mountain filed a constitutional question the next day, Septem- ber 26. 33 That led to Ruling 40 by the NEB on October 23, 2014. Ruling 40 is the NEB’s constitutional analysis of the same dispute which is before this Court on this application. The NEB found in favour of Trans Moun- tain. The NEB summarized its Ruling 40 at the top of page 2 of the ruling: The Board has decided that: 1) the Board has jurisdiction to determine that specific Burnaby bylaws are inoperative or inapplicable to the extent they conflict with or impair the exercise of Trans Mountain’s powers under paragraph 73(a) of the NEB Act; 2) the doctrine of federal paramountcy, or alternatively, interjurisdictional immunity renders the Impugned Bylaws inapplicable or inoperative for the purposes of Trans Moun- tain’s exercise of its powers under paragraph 73(a) of the NEB Act; 3) the Board has authority under subsection 13(b) of the NEB Act to issue an order against Burnaby; and 4) the facts necessitate the granting of such an order, and an order is attached. 34 I will address Ruling 40 in more detail later in these reasons. At this stage, I add only that Burnaby sought leave to appeal the ruling to the Federal Court of Appeal, and on December 12, 2014, that Court denied leave without giving reasons. 344 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

35 On the judicial front in this province’s courts, Burnaby applied to the Court of Appeal seeking leave to appeal Brown J.’s order dismissing Burnaby’s injunction application. Neilson J.A. in chambers denied leave on November 27, 2014, as reported at 2014 BCCA 465 (B.C. C.A.). When the matter was argued before Neilson J.A. on November 19, 2014, the parties were awaiting the Federal Court of Appeal’s decision on Burnaby’s leave application from Ruling 40. Neilson J.A., at paragraphs 29-40 of her reasons, concluded that in the face of Ruling 40 and the related leave application, Burnaby pursuing the appeal of Brown J.’s order amounted to a collateral attack and an abuse of process. She denied leave to appeal Brown J.’s order. 36 Burnaby pressed on and asked a three-member division of the Court of Appeal to vary the order of Neilson J.A. As reported at 2015 BCCA 78 (B.C. C.A.), the Court of Appeal dismissed the application to vary on February 13, 2015. By then, it will be recalled, the Federal Court of Ap- peal had denied Burnaby leave to appeal Ruling 40. The issue in the Court of Appeal by February 2015 was mootness because Trans Moun- tain had by then completed the engineering work on Burnaby Mountain which had given rise to the injunction application before Brown J. The application was dismissed on the mootness ground, but the Court added that it remained open for Burnaby to proceed in this Court on the application for a declaration based on the constitutional issue. 37 To summarize where matters stand, Burnaby’s efforts to secure an injunction based on Trans Mountain’s activities in 2014 are at an end, with no injunction having been granted. The NEB has ruled against Burnaby on the constitutional matters. The Federal Court of Appeal’s denial of leave means that the NEB’s Ruling 40 is the final word to this point on the constitutional matters.

Should this Court decline to hear the constitutional questions? 38 The constitutional questions are properly before this Court in the sense that this Court has the jurisdiction to address them. That is not in dispute. Trans Mountain, however, as noted above, asks this Court to decline exercising its power to answer the constitutional questions. 39 If this were a constitutional reference, there would be no discretion in this Court to decline answering the questions asked of it. But this is not a reference, and I did not understand Burnaby to argue that the Court lacks the discretion to decline answering the questions. Instead, Burnaby directed its submissions to why this Court should take hold of the matter Burnaby (City) v. Trans Mountain Pipeline ULC Macintosh J. 345

and answer the questions. In summary, both sides acknowledge the Court’s power on this application to answer the constitutional questions, with Trans Mountain asking the Court to decline doing so and Burnaby asking it not to decline. 40 As a general proposition, this Court should be reluctant, in my view, to decline addressing constitutional questions asked of it. Perhaps that is particularly so when the applicant is a municipality in the province, asking for guidance as to its legal capacity to enforce its validly-enacted bylaws. 41 Despite that reluctance, however, I believe this is a rare case where the ends of justice are better met by this Court leaving the constitutional questions alone. I therefore decline jurisdiction. 42 The NEB had the jurisdiction to address the constitutional questions which were before it in order to decide that Trans Mountain could perform the engineering studies in the face of Burnaby’s attempted enforcement of its bylaws: see Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5 (S.C.C.). 43 Burnaby was unsuccessful when it sought leave to appeal the NEB’s ruling to the Federal Court of Appeal. That does not mean that the Fed- eral Court has addressed the constitutional issues. It does mean, however, that the NEB’s Ruling 40 stands. This Court, of course, lacks the jurisdiction to supervise the NEB; only the Federal Court has that power. 44 If this Court addresses the constitutional questions, and comes to the opposite result of that reached by the NEB on essentially the same questions, what is the result? Does Trans Mountain brandish the NEB ruling and Burnaby pull this Court’s ruling out of its pocket when they confront one another on Burnaby Mountain? The result would be unworkable and likely chaotic. 45 I noted earlier that when a three-member division of our Court of Ap- peal refused to vary Neilson J.A.’s order (see paragraphs 35-36 above), the Court said that it remained open for Burnaby to proceed with this application addressing the constitutional issues. However, I do not read the Court of Appeal there as having intended to foreclose this Court on hearing this application from considering whether it should decline jurisdiction. 46 Two decisions of the Supreme Court of Canada relied upon by Trans Mountain provide guidance here in their consideration of the doctrine of abuse of process. 346 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

47 In British Columbia (Workers’ Compensation Board) v. British Columbia (Human Rights Tribunal), [2011] 3 S.C.R. 422 (S.C.C.) 52, Abella J., writing for five judges, spoke as follows at paragraphs 31-35: [31] And finally, we come to the doctrine of abuse of process, which too has as its goal the protection of the fairness and integrity of the administration of justice by preventing needless multiplicity of proceedings, as was explained by Arbour J. in Toronto (City). The case involved a recreation instructor who was convicted of sexually assaulting a boy under his supervision and was fired after his conviction. He grieved the dismissal. The arbitrator decided that the conviction was admissible evidence but not binding on him. As a result, he concluded that the instructor had been dismissed without cause. [32] Arbour J. found that the arbitrator was wrong not to give full effect to the criminal conviction even though neither res judicata nor the rule against collateral attack strictly applied. Because the effect of the arbitrator’s decision was to relitigate the conviction for sexual assault, the proceeding amounted to a “blatant abuse of process” (para. 56). [33] Even where res judicata is not strictly available, Arbour J. concluded, the doctrine of abuse of process can be triggered where allowing the litigation to proceed would violate principles such as “judicial economy, consistency, finality and the integrity of the administration of justice” (para. 37). She stressed the goals of avoiding inconsistency and wasting judicial and private resources: [Even] if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality. [para. 51] (See also R. v. Mahalingan, [2008] 3 S.C.R. 316, at para. 106, per Charron J.) [34] At their heart, the foregoing doctrines exist to prevent unfairness by preventing “abuse of the decision-making process” (Danyluk, at para. 20; see also Garland, at para. 72, and Toronto (City), at para. Burnaby (City) v. Trans Mountain Pipeline ULC Macintosh J. 347

37). Their common underlying principles can be summarized as follows: • It is in the interests of the public and the parties that the finality of a decision can be relied on (Danyluk, at para. 18; Boucher, at para. 35). • Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings (Toronto (City), at paras. 38 and 51). • The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature (Boucher, at para. 35; Danyluk, at para. 74). • Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision (TeleZone, at para. 61; Boucher, at para. 35; Garland, at para. 72). • Avoiding unnecessary relitigation avoids an unnecessary ex- penditure of resources (Toronto (City), at paras. 37 and 51). [35] These are the principles which underlie s. 27(1)(f). Singly and together, they are a rebuke to the theory that access to justice means serial access to multiple forums, or that more adjudication necessarily means more justice. 48 That Court again addressed the doctrine of abuse of process in Moulton Contracting Ltd. v. British Columbia, [2013] 2 S.C.R. 227 (S.C.C.). LeBel J. wrote for the Court. At paragraphs 39-41, he said: In Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, Arbour J. wrote for the majority of this Court that the doctrine of abuse of process has its roots in a judge’s inherent and residual discretion to prevent abuse of the court’s process: para. 35; see also P. M. Perell, “A Survey of Abuse of Process”, in T. L. Archibald and R. S. Echlin, eds., Annual Review of Civil Litigation 2007 (2007), 243. Abuse of process was described in R. v. Power, [1994] 1 S.C.R. 601, at p. 616, as the bringing of proceedings that are “unfair to the point that they are contrary to the interest of justice”, and in R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667, as “oppressive treatment”. In addition to proceedings that are oppressive or vexatious and that violate the prin- 348 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

ciples of justice, McLachlin J. (as she then was) said in her dissent in R. v. Scott, [1990] 3 S.C.R. 979, at p. 1007, that the doctrine of abuse of process evokes the “public interest in a fair and just trial process and the proper administration of justice”. Arbour J. observed in C.U.P.E. that the doctrine is not limited to criminal law, but applies in a variety of legal contexts: para. 36. The doctrine of abuse of process is characterized by its flexibility. Unlike the concepts of res judicata and issue estoppel, abuse of process is unencumbered by specific requirements. In Canam Enter- prises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), Goudge J.A., who was dissenting, but whose reasons this Court subsequently approved ([2002] 3 S.C.R. 307, stated at paras. 55-56 that the doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 [(C.A.)], at p. 358 ... One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. See Solomon v. Smith, supra. It is on that basis that Nordheimer J. found that this third party claim ought to be terminated as an abuse of process. [Emphasis in the original.] As can be seen from the case law, the administration of justice and fairness are at the heart of the doctrine of abuse of process. In Canam Enterprises and in C.U.P.E., the doctrine was used to preclude relitigation of an issue in circumstances in which the requirements for issue estoppel were not met. ... 49 Presumably, if Burnaby had obtained leave in the Federal Court of Appeal to appeal NEB Ruling 40, and then had succeeded on the merits of the appeal, it would not have proceeded in this Court on this application. It would not have wanted to risk receiving a contrary and inconsistent result from this Court. Burnaby is here because it was unsuccessful elsewhere. In my view, it is an abuse of process, as that phrase is used in Burnaby (City) v. Trans Mountain Pipeline ULC Macintosh J. 349

this setting, for Burnaby to be seeking here the relief it failed to obtain at the NEB and in the Federal Court of Appeal. 50 It is for those reasons that I decline to address the constitutional questions. 51 On this issue, Burnaby relied upon the decision by McEachern C.J.S.C., as he then was, in Lavers v. British Columbia (Minister of Fi- nance) (1985), 18 D.L.R. (4th) 477 (B.C. S.C.); affirmed (1989), 64 D.L.R. (4th) 193 (B.C. C.A.). In Re Lavers, both Courts concluded that this Court had coordinate jurisdiction with the Trial Division of the Fed- eral Court in Charter matters. I do not read Re Lavers, however, as addressing the situation where another tribunal, in that case the Trial Divi- sion of the Federal Court, had already addressed the issues on the merits, let alone come to the opposite conclusion from the one the applicant was seeking in this Court. 52 A higher court might conclude that I have erred in declining jurisdiction. For that reason, I turn now to examining and answering the constitutional questions.

The Constitutional Questions 53 The declaration Burnaby seeks, and the five constitutional questions in the notices of constitutional question filed by Trans Mountain and Burnaby, are quoted above in these reasons at paragraphs 12-15. I will first set out my reasoning associated with answering the questions and conclude with my answers. 54 To begin, I respectfully adopt the reasoning and conclusions found in NEB Ruling 40. Above, at paragraph 33 of these reasons, I quoted the four conclusions stated by the NEB at the beginning of Ruling 40. I quote here from a portion of page 8 in Ruling 40: The Supreme Court of Canada has also confirmed that tribunals with the authority to determine questions of law can adjudicate division of powers cases relating to their own jurisdiction. It would be illogical to conclude, merely from the silence of the case law on the specific issue before the Board, that a tribunal can decide some division of powers issues, but not others. Burnaby provided no authority to support such a proposition. As set out in Cuddy Chicks, if a tribunal has jurisdiction over the subject matter, parties and remedy, it may treat an impugned provision as invalid “for the purpose of the matter before it”. Here the Board has jurisdiction over the subject matter, which is an applica- 350 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

tion for interprovincial pipeline and specifically, an application to order Corridor Study Access to the Subject Lands in relation to a proposed pipeline route. The Board has jurisdiction over the parties as it concerns Project routing and access to complete surveys. All aspects of this issue relate directly to the Board’s own jurisdiction. The Board also has jurisdiction over the remedy, although as stated in Cuddy Chicks, the remedy is “limited in its applicability to the matter in which it arises.” The Board cannot issue a formal declaration of invalidity, inapplicability or inoperability, or grant any general relief as against municipal bylaws in general, and has not done so here. The Board does not accept the submission of Burnaby that this matter must only be heard by a provincial superior court. Neither does the Board accept Burnaby’s argument that the Board has no jurisdiction to effect any remedy. It is worth noting that Justice Brown, in the BC Supreme Court Ruling, found that, “The matter is properly before the NEB”, and that the NEB would be able to provide a remedy. 15 To hold otherwise would have the likely result of applications and proceedings before the Board being dealt with in a less than expeditious manner and leave the Board’s processes open to abuse and delay. 55 The NEB addressed the doctrines of paramountcy, beginning at page 11 of Ruling 40, and interjurisdictional immunity, beginning at page 13. Both analyses, in my view, are clear and brief, as well as being right. I will address both of those doctrines in my own analysis below, and will not quote here what the NEB said about them. The Board found under each doctrine that it had the power to authorize the Trans Mountain engineering studies on Burnaby Mountain and that Burnaby was without lawful authority to interfere. 56 Later in Ruling 40, the Board addressed its power to make orders against Burnaby if that was needed for enabling Trans Mountain to perform the engineering studies. It said at pages 16 and 17 of the Ruling: If justified by a particular fact situation, the Board has the authority to issue an order to allow the NEB Act’s statutory scheme to be carried out. That includes issuing an order under subsection 13(b) of the NEB Act that forbids the doing of any act, matter or thing that is contrary to the NEB Act or the Board’s direction. In this instance, where Trans Mountain has not had Corridor Study Access to the Subject Lands in order to obtain necessary technical information, the Board has the authority to issue an order to restrain actions that are blocking access. Blocking Corridor Study Access to complete surveys is contrary to the purpose of the NEB Act, includ- Burnaby (City) v. Trans Mountain Pipeline ULC Macintosh J. 351

ing paragraph 73(a) and it is also contrary to the Board’s direction in Ruling No. 28. The Board has already found above that the Im- pugned Bylaws are inoperable or inapplicable to the extent that they impede Trans Mountain’s 73(a) powers to fully access the Subject Lands to complete the proposed surveys and examinations. In deciding that the Board has authority to issue an order against Burnaby based on subsection 13(b) of the NEB Act, the Board took into consideration Driedger’s principles of statutory interpretation cited earlier. In doing so the Board reached the following conclusions: • A company’s powers under paragraph 73(a) include the ability to enter both “Crown land” and the land of any person to make surveys, examinations or other arrangements. Since paragraph 73(a) covers both Crown and private land, it would not be logical under section 13 that the Board could not make an Order against a municipality that was preventing one of the purposes of the NEB Act from being carried out. Given the wording of subsection 13(b) of the NEB Act and the in- clusion of paragraph 73(a), in the Board’s view, Parliament intended that the Board have authority over both the subject matter (which is about temporary access to complete survey work for a federal undertaking) and the remedy. • The argument about whether a municipality is included in the definition of a “person” under section 13 is largely irrelevant here because the Board is issuing an Order under subsection 13(b), which does not refer to “person” and does not restrict who the Board can issue an order against. • In any event, the definition of “person” in the Interpretation Act is not exhaustive and it would not be logical that Burnaby could be an intervenor as a “person” under section 55.2 of the NEB Act but not be a “person” under section 13. As already determined under Question 1 above, subsection 12(2) of the NEB Act provides the Board with full authority to determine constitutional questions, including those involving division of powers issues as is the case here. Given subjection 12(2), the Board can issue an order against Burnaby that to a limited extent forbids Burnaby from interfering and obstructing Trans Mountain from exercising its powers under paragraph 73(a) of the NEB Act. • As concluded under Question 2 above, the Impugned Bylaws impair and obstruct a core competence of Parliament. The decision and order of the Board is limited to the interplay be- 352 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

tween the Impugned Bylaws and Trans Mountain’s powers under paragraph 73(a) as well as the Board’s requirement that it receive the necessary technical information. The Board is not preventing Burnaby from general enforcement of its bylaws. 57 Finally, in addressing Ruling 40, I quote from page 18 of the Ruling, containing the NEB’s reasoning for issuing the orders it did against Burnaby: Having considered all the evidence filed by parties, in the Board’s view, Burnaby is attempting to use the Impugned Bylaws to block Corridor Study Access by Trans Mountain to prepare necessary information needed by the Board to make a recommendation about a federal undertaking, and to complete its environmental assessment. While Burnaby is well within its rights to oppose a proposed interprovincial pipeline expansion, in this case it is attempting to use the Impugned Bylaws to block the Board’s information requirements. The Board rejects Burnaby’s argument that the Board has not mandated the information to be collected or the location of the studies. Ruling No. 28 stated that Trans Mountain specifically “has the power to enter into and on Burnaby land without Burnaby’s agreement in the manner outlined in Trans Mountain’s 25 July 2014 request.” That request included attachments providing details of Trans Mountain’s methods and the location of the survey work to be performed. The geophysical and geotechnical studies necessitate boring into the ground. This work needs to be safely done and will therefore require a minimal number of trees to be removed with remediation where possible. The Board finds that minimal damage will occur. There will also be some vegetation clearing in preparation for drilling into the ground. A broad range of activities will need to be performed in order to complete the Board’s information requirements. As detailed earlier, the Board’s 15 July 2014 letter to Trans Mountain required the Corridor Studies to be completed before the Board could make its recommendation about the Project (which includes the Preferred Cor- ridor) to Governor in Council. The survey work has therefore already been mandated by the Board. 58 My own constitutional analysis is as follows. 59 Sections 91(29) and 92(10)(a) of the Constitution Act, 1867 address interprovincial undertakings, including interprovincial pipelines. 60 In the result, power over interprovincial pipelines rests with Parlia- ment. The NEB Act is comprehensive legislation enacted to implement that power. Burnaby (City) v. Trans Mountain Pipeline ULC Macintosh J. 353

61 National railways are another example of interprovincial undertakings regulated by Parliament through federal legislation. In the field of aeronautics, the Constitution Act, 1867 again assigns the regulatory power to Parliament exclusively. 62 In all those instances, pipelines, railways and airports, it is not the case that validly-enacted provincial laws, in this case municipal bylaws, somehow cease to be valid enactments when they come up against the federal undertaking. Indeed, courts seek to give effect to validly-enacted provincial laws in those situations when they can. However, a test has emerged over many years that says, in essence, provincial laws must give way and be rendered inoperative when they interfere with the core func- tioning of the federal undertaking. The test of intrusiveness on the federal undertaking has been expressed many different ways in the cases. Phrases such as “sterilizing the undertaking” or “interfering with its core operation” have been employed. It must always come down to an assessment, case by case, of what the impact would be of the provincial law on the federal undertaking. 63 In this case, Trans Mountain was trying to perform engineering work on Burnaby Mountain to determine if a pipeline could go there. It would be impossible for Trans Mountain to apply to the NEB for approval of the Burnaby Mountain route, and impossible for the NEB to approve it, without Trans Mountain first obtaining the engineering data. Obtaining the data was centrally linked to positioning the Pipeline. 64 Burnaby’s two bylaws, one addressing traffic and the other parks, purported to give Burnaby the power to effectively stop both excavation work on the existing Trans Mountain right of way and engineering feasibility work for the Trans Mountain proposed Burnaby Mountain route. 65 At the core of federal power over pipelines is determining where pipelines are located. The Trans Mountain work in issue here was vitally important for locating the Pipeline safely. It would be unworkable to take away from the NEB the power to order the engineering feasibility work by giving to a provincial entity a veto power over whether and how such work could take place. Burnaby must forego the application of its bylaws when they impede or block the work, integral as it is to positioning the Pipeline. 66 There are, as noted earlier in these reasons, approximately 400 intervenors at the NEB hearing regarding the Expansion Project. I expect, but do not know, that some of the other intervenors may be municipalities. It is reasonable to expect that many of the intervenors have property inter- 354 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

ests they wish to protect. Section 73(a) of the NEB Act, quoted above at paragraph 25 of these reasons, recognizes those interests and therefore gives pipeline applicants powers to enter lands for studies of the kind Trans Mountain carried out on Burnaby Mountain. 67 If the NEB did not have the power to overrule the interests of NEB intervenors as to the location of pipelines, and the related preparatory studies, virtually no pipeline could ever be built. Given the political, economic, cultural and other competing interests now associated with pipelines, that is why I expect the final say as to whether an interprovincial pipeline is approved now rests with the federal cabinet. 68 The Supreme Court of Canada has addressed in numerous cases the line between exclusive federal power and competing provincial power when it comes to the attempted regulation of pipelines, railways and airports. I am aware of no authority that has allowed a provincial entity to have power over the routing of a pipeline, a railway or an airport runway. Each time the issue arises, or at least in most instances, including this one, the provincial entity, Burnaby in this case, is able to say that its laws are validly enacted and of general application. But that is not the test. The test instead is whether the application of the provincial law precludes the practical operation of the federal undertaking in its core function. Burnaby’s bylaws cannot survive that test. They give Burnaby the power to stop Trans Mountain from working on its right of way and from determining whether the Burnaby Mountain Pipeline route is safe and otherwise viable. 69 It is necessary to look at only a few of the Supreme Court of Can- ada’s decisions addressing the tension when the workings of an interprovincial undertaking are subjected to attempted provincial regulation. 70 In Campbell-Bennett Ltd. v. Comstock Midwestern Ltd., [1954] S.C.R. 207 (S.C.C.), the Court was considering the same pipeline which is the subject of this application. The Court held that Trans Mountain, as a company incorporated for the purpose of transporting oil by means of interprovincial and international pipelines, is a work or undertaking within the exclusive jurisdiction of Parliament. As such, it was not subject to a lien under the provisions of provincial mechanics’ lien legislation, since the effect of applying such legislation would be to permit the sale of the undertaking piecemeal, and nullify the purpose for which it was incorporated. 71 In Qu´ebec (Commission du salaire minimum) c. Bell Telephone Co. of Canada Ltd., [1966] S.C.R. 767 (S.C.C.), the Court held the Quebec Burnaby (City) v. Trans Mountain Pipeline ULC Macintosh J. 355

minimum wage legislation to be inapplicable to the employees of a federal undertaking covered by s. 92(10)(a) of what is now the Constitution Act, 1867. I quote from the judgment of the Court, delivered by Martland J., at p. 772: In my opinion all matters which are a vital part of the operation of an interprovincial undertaking as a going concern are matters which are subject to the exclusive legislative control of the federal parliament within s. 91(29). It was not disputed in argument that the regulation of the rates to be paid by the respondent’s customers is a matter for federal legislation. In the Winner case, supra, the regulation of those places at which passengers of an interprovincial bus line might be picked up or to which they might be carried was held not to be subject to provincial control. Similarly, I feel that the regulation and control of the scale of wages to be paid by an interprovincial undertaking, such as that of the respondent, is a matter for exclusive federal control. 72 In Construction Montcalm Inc. v. Quebec (Minimum Wage Commis- sion) (1978), [1979] 1 S.C.R. 754 (S.C.C.), the Court drew the distinction between locating an airport runway (under exclusively federal power) and minimum wage protection by a provincial regulator over provincially-certified workers in a provincially-certified and incorporated construction company building the runway. The provincially-certified construction company tried to avoid the application of the provincial minimum wage protection. The majority would not accept that. Beetz J., in writing for seven judges, said at pp. 770-771: The construction of an airport is not in every respect an integral part of aeronautics. Much depends on what is meant by the word “construction”. To decide whether to build an airport and where to build it involves aspects of airport construction which undoubtedly constitute matters of exclusive federal concern: the Johannesson case. This is why decisions of this type are not subject to municipal regulation or permission: the Johannesson case; City of Toronto v. Bell Telephone Co.; the result in Ottawa v. Shore and Horwitz Construction Co. can also be justified on this ground. Similarly, the design of a future airport, its dimensions, the materials to be incorporated into the various buildings, runways and structures, and other similar specifications are, from a legislative point of view and apart from contract, matters of exclusive federal concern... [Emphasis added.] 73 In 1988, the Court addressed the question in three cases heard together: Bell Canada c. Québec (Commission de la santé & de la sécurité 356 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

du travail), [1988] 1 S.C.R. 749 (S.C.C.); Cie des chemins de fer nationaux du Canada c. Courtois, [1988] 1 S.C.R. 868 (S.C.C.); and Alltrans Express Ltd. v. British Columbia (Workers’ Compensation Board), [1988] 1 S.C.R. 897 (S.C.C.). The three decisions addressed the extent to which provincial legislation could have application to an interprovincial undertaking. In Alltrans, by way of example, the Court held that provincial health and safety legislation is inoperative for the employees of an interprovincial trucking operation. The following quotation is from the headnote in Bell Canada c. Québec (Commission de la santé & de la sécurité du travail), at pp 750-751 of the Supreme Court Report, under the title, “Inapplicability of Provincial Legislation”: The Act, characterized as above, cannot be applied to the federal undertakings mentioned in s. 91(29) and s. 92(10)a., b. and c. of the Constitution Act, 1867, without regulating essential parts of those undertakings and without making the Act, as a consequence of such an application, a statute dealing with matters that fall within the classes of subject mentioned in those subsections. For federal undertakings, working conditions and labour relations are matters falling within the classes of subject mentioned in s. 91(29) of the Constitution Act, 1867, and consequently are within the exclusive jurisdiction of Par- liament. It follows that this primary and exclusive jurisdiction precludes the application to those undertakings of provincial statutes relating to labour relations and working conditions, since such matters are an essential part of the very management and operation of such undertakings, as with any commercial or industrial undertaking. This is one facet of a more general rule — that of the exclusivity of competent jurisdiction — against making works, things or persons under the special and exclusive jurisdiction of Parliament subject to provincial legislation, when such application would bear on the specifically federal nature of the jurisdiction to which such works, things or persons are subject. Since these matters are within the exclusive authority of Parliament, it is not necessary to consider whether there is a conflict between the federal and provincial legislation. 74 Finally, I cite Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322 (S.C.C.). There the Court held that an up- stream gathering line and a gas processing plant, both in British Colum- bia, were integral to an interprovincial pipeline so as to be under the exclusive jurisdiction of the National Energy Board and not the provincial regulator. I quote the following from the headnote: Undertakings may come within federal jurisdiction in one of two ways: (1) if they constitute a single federal work or undertaking, or Burnaby (City) v. Trans Mountain Pipeline ULC Macintosh J. 357

(2) if they do not, if they are integral to the core federal transportation or communication facility. Westcoast’s gathering pipelines, processing plants and mainline transmission pipeline, of which the proposed Fort St. John and Grizzly Valley facilities would form part, constitute a single federal transportation undertaking within the exclusive jurisdiction of Parliament under s. 92(10)(a) of the Constitu- tion Act, 1867. Since the first test was met, it was not necessary to consider whether the proposed facilities would be essential, vital and integral to the mainline transmission pipeline under the second test. 75 All of the decisions cited above, and numerous others, make clear, in my view, that Burnaby’s bylaws can have no application so as to impede or block the location of the Pipeline or the studies needed to determine its location. Burnaby submitted that what it called the macro location, or the general location, of a pipeline may be exclusively a federal matter, but the micro location, or specific location, of it permitted the application of provincial legislation. I say, with respect, that such a distinction would be unworkable. Where a pipeline is located, down to the centimetre, is as much a federal question as which provinces it crosses. There can be no analytical or practical distinction on the basis of how precise the question of location becomes. 76 Burnaby stressed cooperative federalism, a doctrine which appears to receive increasingly broad support as Canada matures, and the workings of provinces and the central government increasingly intersect. However, when examining interprovincial undertakings at the stage of determining where such undertakings will be located, one legal regime needs to prevail over the other where there is a conflict. Our law makes clear that it is the federal regime which is paramount in those instances, where to allow otherwise would unduly impair the undertaking. 77 That is all that is meant by paramountcy in the constitutional analysis. Where valid provincial laws conflict with valid federal laws in addressing interprovincial undertakings, paramountcy dictates that the federal legal regime will govern. The provincial law remains valid, but becomes inoperative where its application would frustrate the federal undertaking. The paramountcy doctrine is addressed in many cases. In the context of a federal port operating in Vancouver, it was considered in Burrardview Neighbourhood Assn. v. Vancouver (City), [2007] 2 S.C.R. 86 (S.C.C.). 78 Closely related to paramountcy is the doctrine of interjurisdictional immunity. The law recognizes a protected core of exclusive federal jurisdiction. The doctrine of interjurisdictional immunity prevents provincial laws from improperly trenching on that protected core, even in the ab- 358 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

sence of conflicting federal legislation: see Laferrière c. Québec (Juge de la Cour du Québec), [2010] 2 S.C.R. 536 (S.C.C.) at paragraphs 26-27. 79 The test for interjurisdictional immunity has two parts: first, it must be determined whether the provincial law trenches on the protected core of a federal competence; and second, it must be determined whether the effect of the provincial law on the exercise of the protected federal power is sufficiently serious to invoke the doctrine. The test to be applied is whether the provincial law impairs the core competence of a matter or vital aspect of an undertaking whose activities fall within the exclusive jurisdiction of the federal government: see Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3 (S.C.C.) at paragraph 48. 80 The core of a federal power is the authority that is essential to enable Parliament to achieve the purpose for which the exclusive legislative jurisdiction was conferred: see Canadian Western Bank, supra, at paragraph 77. 81 In my view, it is clear under both doctrines, paramountcy and interjurisdictional immunity, that Burnaby is precluded from seeking to apply its bylaws so as to impede or block any steps Trans Mountain must take in order to safely prepare and locate the Expansion Project. 82 Finally, I return to Burnaby’s declaration and the five constitutional questions quoted above at paragraphs 12-15. 83 Addressing the declaration first, the NEB has the constitutional power to direct or limit Burnaby in the enforcement of its bylaws when the bylaws interfere with or block the NEB in its regulation of the Trans Moun- tain Pipeline and the Expansion Project. 84 Question 1 is answered in the affirmative. Burnaby’s bylaws are constitutionally inoperative to the extent that they conflict with actions taken under the authority of s. 73 of the NEB Act. 85 Question 2 is answered in the affirmative. Burnaby’s bylaws are constitutionally inapplicable to actions taken under s. 73 of the NEB Act in respect of a federally-regulated, interprovincial undertaking, by operation of the doctrine of interjurisdictional immunity. 86 Regarding question 3, the NEB Act, and in particular s. 73(a), apply to override municipal bylaws, and authorize the contravention of municipal bylaws, including Burnaby’s bylaws, and provide the authority to direct or limit a municipality in the enforcement of its validly-enacted bylaws. Burnaby (City) v. Trans Mountain Pipeline ULC Macintosh J. 359

87 Regarding question 4, the NEB Act is not ultra vires the Parliament, and has force and effect in respect of Burnaby’s enforcement of its bylaws. 88 Regarding question 5, the NEB Act is constitutionally applicable to the municipality of Burnaby in the enforcement of its bylaws concerning land use planning, protection of the local environment and regulation of local traffic, where the bylaws impede or block the NEB acting within its jurisdiction, and companies operating pursuant to its direction. 89 Burnaby’s application is dismissed with costs to Trans Mountain. 90 I thank counsel for their capable and helpful submissions. Application dismissed. 360 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

[Indexed as: R. v. White] Her Majesty the Queen, Crown and Ryan James White, Accused Alberta Court of Queen’s Bench Docket: Edmonton 120103692Q3 2015 ABQB 601 Robert A. Graesser J. Heard: September 23, 2015 Judgment: September 24, 2015 Evidence –––– Character — Similar fact evidence — Striking similarity –––– Accused was charged with 11 counts involving three female complainants of robbing and choking — Identity and whether events happened as alleged or at all were in issue, as one complainant initially identified someone other than accused in photo lineup — Crown sought to argue similar fact evidence (SFE) relating to collusion and pattern of conduct — Defence opposed use of SFE to buttress complainants’ credibility — Voir dire was held to determine whether SFE should be argued at trial — SFE could be argued on issues of actus reus and identity in relation to two complainants’ evidence but not remaining complainant’s — Crown was not limited in use of SFE to rebut allegations of fabrication, collusion or tainting — SFE could be used to buttress complainant’s credibility, but not if that was only purpose — SFE was clearly admissible on issues surrounding actus reus, identity and negating defences — From cross-examination, it could be anticipated that defence would argue that nothing untoward happened to complainants, that complainants colluded to make complaints up and implicate accused, and that at least one complainant was not credible because of criminal records and drugs — No limitations should be placed on Crown relating to negating or rebutting suggestions of fabrication, collusion and tainting but neither should issue of collusion be removed from jury as there was at least air of reality to collusion argument — Doubts as to identification of accused may be lessened by SFE — Based on defence’s cross-examination, it would likely argue there was no actus reus, which was live, possibly valid issue in question for SFE to be admissible — Some prejudicial effect already occurred because jury heard evidence of similar events attributed to accused — Prejudice to accused if SFE was permitted on issues of identity and actus reus related to trial fairness, not risk of conviction — Risk of moral prejudice loomed due to risk jury might be more inclined to accept that accused did things to other complainants if it accepted evidence that he did to her things he was alleged to have done — Evi- dence of complainant who did not identify accused as assailant and testified that R. v. White 361 person who choked and robbed her was not even in photo lineup should be viewed on its own and not used to implicate accused in relation to counts involving credible complainants. Evidence –––– Character — Similar fact evidence — To rebut defence –––– Accused was charged with 11 counts involving three female complainants of robbing and choking — Identity and whether events happened as alleged or at all were in issue, as one complainant initially identified someone other than accused in photo lineup — Crown sought to argue similar fact evidence (SFE) relating to collusion and pattern of conduct — Defence opposed use of SFE to buttress complainants’ credibility — Voir dire was held to determine whether SFE should be argued at trial — SFE could be argued on issues of actus reus and identity in relation to two complainants’ evidence but not remaining complainant’s — Crown was not limited in use of SFE to rebut allegations of fabrication, collusion or tainting — SFE could be used to buttress complainant’s credibility, but not if that was only purpose — SFE was clearly admissible on issues surrounding actus reus, identity and negating defences — From cross-examination, it could be anticipated that defence would argue that nothing untoward happened to complainants, that complainants colluded to make complaints up and implicate accused, and that at least one complainant was not credible because of criminal records and drugs — No limitations should be placed on Crown relating to negating or rebutting suggestions of fabrication, collusion and tainting but neither should issue of collusion be removed from jury as there was at least air of reality to collusion argument — Doubts as to identification of accused may be lessened by SFE — Based on defence’s cross-examination, it would likely argue there was no actus reus, which was live, possibly valid issue in question for SFE to be admissible — Some prejudicial effect already occurred because jury heard evidence of similar events attributed to accused — Prejudice to accused if SFE was permitted on issues of identity and actus reus related to trial fairness, not risk of conviction — Risk of moral prejudice loomed due to risk jury might be more inclined to accept that accused did things to other complainants if it accepted evidence that he did to her things he was alleged to have done — Evi- dence of complainant who did not identify accused as assailant and testified that person who choked and robbed her was not even in photo lineup should be viewed on its own and not used to implicate accused in relation to counts involving credible complainants. Evidence –––– Character — Similar fact evidence — To establish identity –––– Accused was charged with 11 counts involving three female complainants of robbing and choking — Identity and whether events happened as alleged or at all were in issue, as one complainant initially identified someone other than accused in photo lineup — Crown sought to argue similar fact evidence (SFE) relating to collusion and pattern of conduct — Defence opposed use of SFE to buttress complainants’ credibility — Voir dire was held to determine whether 362 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

SFE should be argued at trial — SFE could be argued on issues of actus reus and identity in relation to two complainants’ evidence but not remaining complainant’s — Crown was not limited in use of SFE to rebut allegations of fabrication, collusion or tainting — SFE could be used to buttress complainant’s credibility, but not if that was only purpose — SFE was clearly admissible on issues surrounding actus reus, identity and negating defences — From cross-examination, it could be anticipated that defence would argue that nothing untoward happened to complainants, that complainants colluded to make complaints up and implicate accused, and that at least one complainant was not credible because of criminal records and drugs — No limitations should be placed on Crown relating to negating or rebutting suggestions of fabrication, collusion and tainting but neither should issue of collusion be removed from jury as there was at least air of reality to collusion argument — Doubts as to identification of accused may be lessened by SFE — Based on defence’s cross-examination, it would likely argue there was no actus reus, which was live, possibly valid issue in question for SFE to be admissible — Some prejudicial effect already occurred because jury heard evidence of similar events attributed to accused — Prejudice to accused if SFE was permitted on issues of identity and actus reus related to trial fairness, not risk of conviction — Risk of moral prejudice loomed due to risk jury might be more inclined to accept that accused did things to other complainants if it accepted evidence that he did to her things he was alleged to have done — Evi- dence of complainant who did not identify accused as assailant and testified that person who choked and robbed her was not even in photo lineup should be viewed on its own and not used to implicate accused in relation to counts involving credible complainants. Cases considered by Robert A. Graesser J.: R. v. Arp (1998), 1998 CarswellBC 2545, 1998 CarswellBC 2546, 232 N.R. 317, 20 C.R. (5th) 1, 166 D.L.R. (4th) 296, 129 C.C.C. (3d) 321, 114 B.C.A.C. 1, 186 W.A.C. 1, [1998] S.C.J. No. 82, [1998] 3 S.C.R. 339, 58 B.C.L.R. (3d) 18, [1999] 5 W.W.R. 545 (S.C.C.) — considered R. v. B. (C.R.) (1990), [1990] 3 W.W.R. 385, 109 A.R. 81, 73 Alta. L.R. (2d) 1, 55 C.C.C. (3d) 1, 76 C.R. (3d) 1, [1990] 1 S.C.R. 717, 107 N.R. 241, 1990 CarswellAlta 35, 1990 CarswellAlta 650, [1990] S.C.J. No. 31, EYB 1990- 66931 (S.C.C.) — considered R. v. B. (R.) (2014), 2014 ONSC 1664 (Ont. S.C.J.) — considered R. v. Blake (2003), 2003 CarswellOnt 4795, 179 O.A.C. 137, 181 C.C.C. (3d) 169, 68 O.R. (3d) 75, [2003] O.J. No. 4589 (Ont. C.A.) — considered R. v. Dennis (2009), 2009 NSPC 80, 2009 CarswellNS 888, [2009] N.S.J. No. 677, 960 A.P.R. 17, 304 N.S.R. (2d) 17 (N.S. Prov. Ct.) — considered R. v. Handy (2002), 2002 SCC 56, 2002 CarswellOnt 1968, 2002 CarswellOnt 1969, 1 C.R. (6th) 203, 164 C.C.C. (3d) 481, 213 D.L.R. (4th) 385, 290 N.R. 1, 160 O.A.C. 201, 61 O.R. (3d) 415 (note), [2002] S.C.J. No. 57, [2002] 2 S.C.R. 908, REJB 2002-32127 (S.C.C.) — followed R. v. White Robert A. Graesser J. 363

R. v. Poon (2012), 2012 SKCA 76, 2012 CarswellSask 506, [2012] S.J. No. 482, [2013] 1 W.W.R. 22, 552 W.A.C. 89, 399 Sask. R. 89 (Sask. C.A.) — followed R. v. Simpson (2015), 2015 SCC 40, 2015 CSC 40, EYB 2015-254940, 2015 CarswellQue 6617, 2015 CarswellQue 6618, [2015] S.C.J. No. 40, [2015] A.C.S. No. 40, 21 C.R. (7th) 225 (S.C.C.) — followed R. v. Titmus (2004), 2004 BCCA 633, 2004 CarswellBC 2887, 191 C.C.C. (3d) 468, (sub nom. R. v. T. (R.)) 205 B.C.A.C. 231, (sub nom. R. v. T. (R.)) 337 W.A.C. 231, 27 C.R. (6th) 77 (B.C. C.A.) — considered

VOIR DIRE to determine whether similar fact evidence can be argued.

Avril Inglis, for Crown Brian Beresh, Ian Ross, for Accused

Robert A. Graesser J.: Introduction 1 This is my decision on a voir dire to determine whether the Crown will be allowed to argue similar fact evidence issues relating to the trial testimony of the three complainants, RH, TK and SH in the Crown’s case against the accused, Ryan James White. Mr. White is being tried before a jury at Edmonton, Alberta. The trial commenced on September 4, 2015. Jury addresses are scheduled for September 24 and I expect to charge the jury on September 25, 2015. 2 In Voir Dire Number 1, I directed a process for conducting voir dires relating to the evidence of a proposed similar fact witness, KV as well as for taking voir dire evidence and arguing similar fact issues relating to the evidence of the three complainants. 3 Following a voir dire relating solely to KV, I refused the Crown’s application to have her testify as a similar fact witness (Voir Dire Num- ber 2) 4 As the trial unfolded, there was no separate voir dire evidence taken with respect to any of the three complainants. They were examined in chief and cross-examined before the jury without either Crown or defence seeking to adduce evidence for the voir dire in the absence of the jury. 5 The defence argues that the Crown should not be permitted to argue similar fact issues before the jury. 364 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

6 The cases relevant to this issue have been referenced in my decision on Voir Dire Number 2, together with additional cases referenced in this decision.

Background 7 Mr. White is charged under an 11 count indictment that between De- cember 2010 and 2011 he committed a number of offences against three complainants. 8 Identity and whether the events happened as alleged or at all are in issue. 9 The Crown seeks to argue similar fact issues relating to collusion and a pattern of conduct. The defence argues that any argument about a “pattern of conduct” is in reality about credibility which is not properly the subject of similar fact evidence.

Legal Analysis 10 The Crown relies heavily on R. v. Titmus, 2004 BCCA 633 (B.C. C.A.) and R. v. B. (C.R.), [1990] 1 S.C.R. 717 (S.C.C.). The defence relies particularly on McWilliams’ Canadian Criminal Evidence (Hill, et al) and in particular the passages at 10:40.20.10.10 starting at 10-49. 11 In Titmus, the accused was charged with four counts of sexual offences involving two different complainants. The offences were alleged to have occurred in the shower in the accused’s home. The trial judge had held that the similar fact evidence “enhanced the credibility of both complainants, diminished the credibility of the accused’s denial and (with other evidence she accepted) established the actus reus of the “shower incidents” beyond a reasonable doubt. 12 There were also issues of collusion or tainting in that case. 13 The analysis by the British Columbia Court of Appeal in Titmus included the following comments about similar fact evidence and credibility issues as well as issues concerning the actus reus of the offences charged: [37] The Crown tendered the similar fact evidence as relevant to the actus reus of the offences (para. 98) and the trial judge treated the evidence of both complainants concerning the shower incidents as admissible on that issue (para. 105). In the case of each complainant, the only evidence of the acts alleged against the appellant came from their own testimony. So the credibility of each complainant was central to the Crown’s case, and the similar fact evidence was therefore R. v. White Robert A. Graesser J. 365

relevant to their credibility, as well as to the actus reus of the offences alleged. [38] The trial judge held that the similar fact evidence enhanced the credibility of both complainants and tipped the scales beyond a balance of probability in establishing the actus reus of the shower incidents (paras. 140-141). I see no error by the trial judge in her identification of the issues to which the similar fact evidence was relevant. [39] As in this case, where it is the conduct element of the actus reus and not the accused’s identity that is in issue, “similar fact evidence may be admitted to prove that the accused committed the offence or offences in question”: R v Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 48, see also R v P,, [1991] All E.R. 337 cited at para. 44 of Arp, supra, and R v Handy, supra, at paras. 78, 118-120. For sexual assault cases in particular, Madam Justice McLachlin (as she then was) said that where identity is not an issue, the credibility of a complainant is an issue in which similar fact evidence might be received: B(CR), supra at paras. 38-41. In Handy, supra, while warning against the admissibility of similar fact evidence on the issue of credibility because of the risk that the evidence might go only to the appellant’s general disposition or propensity, Mr. Justice Binnie said that where the similar fact evidence is relevant to an element of the actus reus, the fact that it is also relevant to the complainants’ credibility will not render the evidence inadmissible. [40] In the case at bar the issue of both complainants’ credibility was inextricably tied to proof of the actus reus. In my view, in admitting the similar fact evidence as relevant to both credibility and to the actus reus, the trial judge made no error of law. 14 In R. v. B. (C.R.), the accused was charged with sexually assaulting his daughter. The similar fact evidence sought to be adduced by the Crown was the accused’s prior sexual conduct with a step-daughter who lived with him before the daughter moved in. The trial judge permitted that evidence. 15 The Supreme Court concluded: Did the trial judge err in admitting the evidence of M.H.S? In the reasons for his ruling, he stated the correct test. He clearly proceeded on the assumption that the evidence was prima facie inadmissible, going on to note that its reception “depend[s] upon the probative effect of [the] evidence balanced against the prejudice caused the accused by its admission, whatever the purpose of its admission.” How- ever, he erred in later stating that the appropriate test for the probative effect of the evidence was “whether the similarities are suf- 366 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

ficient to show that the accused had common characteristics in the methods he used in the sexual acts with [the two girls] and that it is likely that they are one and the same man.” While the trial judge’s concern with the degree of similarity between the two stories was proper, he appears to have viewed the similar fact evidence as going to the identity of the perpetrator, which was not in issue. As Hether- ington J.A., writing for the majority of the Court of Appeal, pointed out, “the admissibility of the evidence of M.H.S. depended on whether its probative value with respect to the credibility of A.L.B. [the alleged victim] outweighed its prejudicial effect” (p. 37). (Emphasis added.) I find it difficult to conclude that this error warrants concluding that the trial judge proceeded on the wrong basis. Immediately before this statement, the trial judge set out the proper test for the reception of similar fact evidence and referred to the appropriate authorities. His reasons for convicting show that he was not at all concerned with identity, and regarded the central issue of the case to be whether the complainant should be believed. The fact that a trial judge misstates himself at one point should not vitiate his ruling if the preponderance of what was said shows that the proper test was applied and if the decision can be justified on the evidence. The question is whether, in the context of the ruling as a whole and all the circumstances, the error was material. In this case, I cannot conclude that it was material. The difficulty may have arisen in this case from the failure of the trial judge to spell out the issue to which the similar fact evidence was relevant. It seems to me that the better practice in cases involving highly prejudicial similar fact evidence is for the judge to clearly indicate the issue to which the evidence is relevant. This is particularly the case if there is a jury. However, notwithstanding the trial judge’s failure to follow this practice in the case at bar, I am satisfied on reading the whole of his reasons that he clearly appreciated that the similar fact evidence in question was relevant only to the issue of whether the complainant should be believed. If the trial judge’s erroneous reference to the issue of identity in outlining the test for similar fact evidence was not material, then that error does not undermine the validity of his decision. In these circumstances the view taken by this Court in Morris and affirmed in subsequent cases applies in this case, namely, that deference must be paid to the trial judge’s conclusion on where the balance between prejudice and probative value lies with respect to a particular piece of similar fact evidence. R. v. White Robert A. Graesser J. 367

It is well established that similar fact evidence may be useful in providing corroboration in cases where identity or mens rea is not in issue. Andrews and Hirst, op. cit., para. 15.27 write: 15.27 A third important use of similar fact evidence is to provide corroboration, particularly in cases involving sexual offences or offences against children, where the law either requires corroboration or requires the judge to warn the jury of the dangers of convicting in its absence. In many such cases there may be no possibility of mistaken identification, nor, if the witness is to be believed, any doubt as to the criminality of the acts committed. The only doubt will then be whether the complainant is indeed telling the truth. As noted earlier, the probative value of similar fact evidence must be assessed in the context of other evidence in the case. In cases such as the present, which pit the word of the child alleged to have been sexually assaulted against the word of the accused, similar fact evidence may be useful on the central issue of credibility. Against that background, I turn to the similarities between the evidence of the complainant and the similar fact evidence of M.H.S. The main similarity is that in each case the accused, shortly after establishing a father-daughter relationship with the victim, is alleged to have engaged her in a sexual relationship. Additionally, the trial judge detailed similarities relating to the place and manner in which the relations occurred in the two situations. The age of the girls was different; one was sexually mature, the other only a child when the acts began. One girl was a blood relation, the other was not. While many of the acts were the same, there is no suggestion of urination with M.H.S. And there is a considerable lapse of time between the two alleged relationships. That said, it cannot be concluded that the evidence necessarily fails the test indicated by the authorities to which I earlier referred. The fact that in each case the accused established a father-daughter relationship with the girl before the sexual violations began might be argued to go to showing, if not a system or design, a pattern of similar behaviour suggesting that the complainant’s story is true. The question then is whether the probative value of the evidence outweighs its prejudicial effect. While I may have found this case to have been a borderline case of admissibility if I had been the trial judge, I am not prepared to interfere with the conclusion of the trial judge, who was 368 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

charged with the task of weighing the probative value of the evidence against its prejudicial effect in the context of the case as a whole. I would dismiss the appeal and affirm the conviction. (at paras 67-76) 16 From these two cases and the cases referenced in them, it seems arguable that similar fact evidence may be used in appropriate cases to buttress the credibility of a complainant. B. (C.R.) recognizes that similar fact evidence may be used to establish the actus reus, where one of the issues is whether the acts complained of happened as alleged or at all. 17 That in reality sounds a lot like buttressing the credibility of a witness. 18 B. (C.R.) was decided by the Supreme Court before R. v. Arp [1998 CarswellBC 2545 (S.C.C.)] and R. v. Handy [2002 CarswellOnt 1968 (S.C.C.)]. Titmus was decided after Arp and Handy, and considers both of those cases. 19 Titmus has been considered in a number of cases. R. v. Dennis, 2009 NSPC 80 (N.S. Prov. Ct.) is one such case. 20 In that case, the court considered similar fact evidence on a voir dire, and contains some useful comments on what constitutes admissible similar fact evidence and the uses is may be put to, as well as some cautions: [52] “Unique trademark” and “series of significant similarities” are both simply descriptions of when the degree of similarity objectively establishes the improbability of coincidence. Enough significant similarities each far from unique on its own, can eliminate coincidence just as effectively as one striking similarity. [53] From R v ARP supra at p. 341: “... where the evidence shows a distinct pattern to the acts in question, the possibility that the accused would repeatedly be implicated in strikingly similar offences purely as a matter of coincidence is greatly reduced.” [54] R v Trochym, 2007 SCC 6 (CanLII), 216 C.C.C. (3d) 225, states: Evidence of similar behaviour on one previous occasion is usually not sufficiently probative to outweigh the potential prejudicial effect of admission to prove identity. [55] However, R v Titmus, 2004 BCCA 633 (CanLII), 191 C.C.C. (3d) 468, states: Where it is the conduct element of the actus reus and not the defendant’s identity that is in issue, evidence of simi- R. v. White Robert A. Graesser J. 369

lar acts may be admitted to prove the defendant committed the offence charged. [56] As well, R v Kowall, 1996 CanLII 411 (ON CA), 108 C.C.C. (3d) 481, states: There were sufficient similarities in the modus operendi to allow similar fact evidence to be admitted. It was used only to corroborate the complainant’s testimony. [57] And R v Chan, 2004 SCC 57 (CanLII), 188 C.C.C. (3d) 14, states: The use of one incident as evidence of others is permitted only where the similarities are so striking as to preclude coincidence. 21 The decision relied heavily on B. (C.R.): [62] Justice McLaughlin held in R v B(CR), 2003 CanLII 32894 (ON CA), 171 C.C.C. (3d) 159 that similar fact evidence may be useful in providing corroboration in cases where identity or mens rea is not in issue. If it does not show a “system or design” it can show a pattern of behaviour suggesting that the testimony outlining the alleged charge, and in this particular case possession for the purpose of trafficking, is true. [63] R v B(CR) also states: Distinction must be made between evidence of general character and modus operendi (MO). The law seeks to forbid a process of reasoning that would condemn the accused because of his character. However, a highly indi- vidualized modus operendi is tantamount to evidence that the accused left his/her calling card. 22 In R. v. B. (R.), 2014 ONSC 1664 (Ont. S.C.J.), the court noted: [13] It is has been determined that if admitted, similar act evidence can be used for a wide variety of purposes. [14] It has been held that similar act evidence is admissible to show a specific propensity to engage in sexual misconduct with certain types of complainants in certain types of situations: see R v RT, 2004 BCCA 633 (CanLII), [2004] B.C.J. No. 2563, R v RB, 2005 CanLII 30693 (ON CA), [2005] O.J. No. 3575 (C.A.) at para. 11, and R v JAH, 1998 CanLII 14990 (BC CA), 124 C.C.C. (3d) 221, [1998] B.C.J. No. 725 (C.A.), at para. 18. 370 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

[15] A useful summary of the purpose for which similar act evidence can be admitted is found in R v REL, 2013 ONSC 6292 (CanLII), [2013] O.J. No. 5683, where, at para. 42, Quigley J. had this to say: It is well established that the evidence may be admitted for the purpose of showing the existence of such a common pattern of behavior (See R. v. M.B., [2008] O.J. No. 2358 (S.C.J.) at para. 39) or to demonstrate a specific propensity on the part of the accused, such as to use his status as a member of a family and the opportunity that may give him to molest underage family members in their own homes (see R. v. Finelli, [2008] O.J. No. 2242 (S.C.J.) at para. 27). As well, however, similar fact evidence may also be used to bolster the credibility of a complainant witness, particularly in a case like this of historical sexual assaults allegedly perpetrated decades earlier (see R. v Gelesz, [2002] O.J. No. 3883 (C.A.) at para. 2). [16] This latter issue was also the subject matter of consideration by the Supreme Court of Canada in R v B(CR), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, 55 C.C.C. (3d) 1. In that case, it was alleged that the accused had engaged in sexual misconduct with his biologi- cal daughter when she was between the ages of 11 and 13. Crown sought to introduce evidence that the accused had past sexual relations with the 15 year old daughter of his common-law wife. In considering the use of similar act evidence with respect to corroboration and findings of credibility in cases of this nature, McLachlin J. stated at para. 41: As noted earlier, the probative value of similar fact evidence must be assessed in the context of other evidence in the case. In cases such as the present, which pit the word of the child alleged to have been sexually assaulted against the word of the accused, similar fact evidence may be useful on the central issue of credibility. 23 In R. v. Poon, 2012 SKCA 76 (Sask. C.A.), the accused faced 6 counts of sexually assaulting 6 patients. Similar fact was argued at the completion of the Crown’s case. The ruling following argument is instructive: [69] At the conclusion of argument, Malone J. ruled as follows: THE COURT: Ms. Guiboche and Mr. Fox, I’ve given this some considerable thought since we first met some time ago, so I think I’ll just deal with the matter now. Ms. Guiboche, I’m not prepared to allow similar fact evidence in this particular case. I R. v. White Robert A. Graesser J. 371

have a reference to a quote from a B.C. case, R v Titmus, (2004), 27 Criminal Reports, 6th, at 77. And the Judge in that case, it’s a British Columbia Court of Appeal, in that case it said: “In any case it is for the judge to determine whether the probative value of the similar fact evidence outweighs its prejudicial value. If the Crown can prove its case using other evidence the probative value will not outweigh the prejudicial effect. The danger in admitting similar fact evidence in a jury trial is that the jury may feel that the accused is a bad person who deserves to be punished for his bad acts. This is referred to as moral prejudice — which Ms. Guiboche referred to in her judgment, in her argument — “The jury may also become confused by the number of incidents and distracted from their task of deciding each count separately. This is referred to as reasoning prejudice.” R v Shearing [2002] (sic) 2002 SCC 58 (CanLII), 3 S.C.R. 33: “If the probative value of the evidence outweighs these potential prejudices, the similar facts may be admissible.” In my view, the prejudicial value far outweighs the probative value. Another consideration I’ve touched upon earlier is the danger of confusing the jury. Mr. Fox is quite correct. As a matter of law I have to charge them that they must deal with each count separately, and just because they might reach a decision on one count it does not necessarily follow that they must reach the same decision on the next count. I have draft charges for where similar fact evidence is put before the jury. In looking at them I’m not satisfied in my own mind that even with the most tactful language I could use that there isn’t a danger of simply confusing the jury at the end of the day. For these reasons I am de- nying the motion. Thank you very much. (Transcript, June 18, 2010 at pp. 127-28). 24 The Court of Appeal noted in its decision upholding the trial judge’s ruling: [75] The similar fact evidence was proffered at trial for these purposes: (i) “to rebut the defence of mistake or accident”; and (ii) “to 372 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

corroborate the evidence of the complainants as to the actus reus of the offences of assault” (see: Transcript, June 18, 2010, p. 109). In this Court, Crown counsel submitted that the evidence was relevant for these purposes: (i) to rebut Dr. Poon’s claims that he accidentally touched some of the complainants; (ii) to prove that the complainants did not misperceive the facts as Dr. Poon claimed they had; and (iii) to prove that Dr. Poon imported a sexual component into his professional relationships with the complainants (see: Crown factum from acquittal, para. 91). Arguably the first two are the same, but the third is clearly not. In this Court, it is only fair that the question of admissibility be considered in relation to the purposes for which Crown counsel at trial proffered the similar fact evidence. 25 In that case, the Saskatchewan Court of Appeal did not interfere with the trial judge’s ruling, based largely on principles of deference. 26 I do not refer to these cases as an exhaustive survey of post-Handy law, but rather to demonstrate the interpretations that have been given to B. (C.R.) by Titmus and cases following or at least referring to Titmus. 27 It is obvious from other decisions, as well as the commentary in Mc- Williams to which I will refer shortly that there are contrary views of the scope of B. (C.R.) as it relates to the use of similar fact evidence for credibility purposes. 28 Where does this leave me? 29 I am satisfied that the principles relating to similar fact evidence apply equally to cases involving multiple complainants and similar fact arguments concerning their evidence as they do to cases involving single complainants and similar fact witnesses. 30 As pointed out by the defence, McWilliams deals with B. (C.R.) at 10- 49: To Support Credibility Credibility at large is not an appropriate issue in question. The Crown may not produce similar act evidence simply to enhance the complainant’s credibility. https://nextcanada.westlaw.com/Docu- ment/If6170040574e02dce0440021280d79ee/View/FullText.html? originationContext=previousnextsection&contextData= (sc.Document)&transitionType=StatuteNavigator&needToInjectTerms =False-crsw_fn_abxmcwilliam-10_40f110 There nonetheless remains a special problem of admitting similar act evidence to bolster the complainant’s credibility that requires careful consideration. Pre-Handy, McLachlin J. (as she then was) wrote an open-ended dic- tum in R v B(CR) https://nextcanada.westlaw.com/Document/ R. v. White Robert A. Graesser J. 373

If6170040574e02dce0440021280d79ee/View/FullText.html?origina- tionContext=previousnextsection&contextData= (sc.Document)&transitionType=StatuteNavigator&needToInjectTerms =False-crsw_fn_abxmcwilliam-10_40f111 allowing similar act evidence to support the credibility of a sexual assault complainant who was a child witness. McLachlin J. held: The fact that in each case the accused established a father- daughter relationship with the girl before sexual violations began might be argued to go to showing, if not a system or a design, a pattern of similar behaviour suggesting that the complainant’s story is true. At face value, McLachlin J. did not set a very high standard for admitting similar act evidence tendered to support credibility. In an extra-judicial paper, Justice Rosenberg argued that prosecutors used B(CR) as an “easy and unprincipled way of gaining admission of the similar fact evidence”. Justice Rosenberg further argued that B(CR) “left unexplained... why this evidence that shows neither a system or design suggests that the complainant’s story is true”. Prior to Handy, some appellate authority did seek to place limits on the relaxed B(CR) standard. In R v Rulli for example, Finlayson J.A. held: In cases where the purpose of the similar fact evidence is solely or primarily to enhance the credibility of an adult complainant, we should be hesitant to depart from the common law’s traditional rejection of evidence that illustrates that the accused is the sort of person who is likely to have committed these offences. Handy resolved the issue by placing clear limits on the admissibility of similar act evidence tendered to support credibility. Credibility per se is too broad a gateway in defining the issue in question and may tend to obscure the proper assessment of the probative value of the issue in question. The burden of persuasion is greater and the test for admissibility is higher. Courts must explain not only the purpose for the admission of the evidence; they must also explain how and why the evidence is probative of the credibility issue in the context of the trial. To do so requires an accurate and precisely defined issue. In Handy, Binnie J. held: The Crown says the issue generally is “the credibility of the complainant” and more specifically “that the accused has a strong disposition to do the very act alleged in the charges against him”, but this requires some refinement. Care must be taken not to allow too broad a gateway for 374 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

the admission of propensity evidence or, as it is sometimes put, to allow it to bear too much of the burden of the Crown’s case (Sopinka, Lederman and Bryant, supra, at Section 11.26). Credibility is an issue that pervades most trials, and at its broadest may amount to a decision on guilt or innocence. Anything that blackens the character of an accused may, as a by- product, enhance the credibility of a complainant. Identification of credibility as the “issue in question” may, unless circumscribed, risk the admission of evidence of nothing more than general disposition (“bad personhood”). ... The issue broadly framed is credibility, but more accurately and precisely framed, the “issue in question” in this trial was the consent component of the actus reus and in relation to that issue the respondent’s alleged propensity to refuse to take no for an answer. The post-Handy decision R v Blake further illustrates the pitfalls of framing the issue as credibility. In Blake, the accused was charged with sexual assault. The trial judge allowed discreditable conduct evidence of two witnesses who claimed the accused had touched them inappropriately when they were children. On appeal, the majority of the court held that the trial judge erred by framing the issue too widely, when she framed it, “at least in part, as credibility”. Framing the issue too broadly clouded the judge’s reasoning process on probative value. It further obscured the degree of connection required to make the discreditable conduct evidence admissible. Although Handy warned against using credibility writ large as the issue to which similar act evidence may be directed, Binnie J. also recognized that sexual assault offences against children and adoles- cents raise unique credibility challenges to the admissibility analysis. Similar act evidence may be valuable in these cases to ensure that the testimony of the complainant is not: unfairly discounted when opposed to that of ostensibly upstanding adults. The denial of the adult, misleadingly persuasive on first impression, would melt under the history of so many prior incidents as to defy innocent explanation. By anchoring the similar act evidence to a specific element of the offence, such as the mens rea or actus reus, we can minimize the risk that the credibility of the witness/complainant will be enhanced simply by reference to the accused’s discreditable conduct. Connectivity, temporal or factual, remains the key consideration. That is, the trial judge must properly consider whether the evidence sought to be in- troduced is sufficiently similar or contains a sufficient degree of con- R. v. White Robert A. Graesser J. 375

nection to the charged incident, in order to decide whether the probative value of the evidence outweighs its prejudicial effect. The Ontario Court of Appeal has provided further guidance on how to frame the issue when similar act evidence relates to the credibility of child complainants in two sexual assault cases. In each case the court tied credibility to a specific element of the offence. In R v C(T), a speech therapist was charged with gross indecency, indecent assault and sexual assault against six complainants who received speech therapy from him when they were children. The evidence of the six complainants was admissible as similar act evidence across counts. The issue was “whether the actus reus of the offence occurred in each case, which turned on the credibility and reliability of the evidence of the complainants on that issue, as opposed to their general honesty”. In R v B(R), the accused ran a foster home, and was charged with numerous sexual offences against boys under his care. The court held that the similar act evidence went to the question of whether the sexual assaults had occurred, and that the actus reus “in turn depended on the credibility of the complainants’ evidence about the assaults”. 31 In previous sections, McWilliams talks about the use of similar fact evidence to prove the mens rea or to rebut defences raised by the accused: To Prove the Mens Rea or Rebut a Defence Similar act and other discreditable conduct evidence may be tendered to show the mental state of the accused, be it knowledge or intent. Such evidence has been admitted: • to establish the dishonesty element of fraud by proof of a scheme or design; • to prove knowledge that goods were stolen; • to prove the intent that overt acts were done to further a conspiracy; • to establish a pattern of sexual behaviour, a component of which was the accused’s complete indifference as to whether the complainant was consenting or not; • to establish that the accused knew or was recklessly inadver- tent to the fact that his conduct would cause the complainant to be fearful of him. 376 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

Evidence of similar acts or other discreditable conduct may also be tendered to rebut a defence advanced by the accused. Such evidence has been admitted: • to rebut the defence of innocent possession of goods; • to rebut the defence of innocent association and demonstrate the system of violent control the accused exercised; • to rebut the defence of accident on a charge of murder; • to rebut a defence of innocent explanation on a charge of murder arising from shaken baby syndrome; • to rebut a doctor’s defence of accidental or innocent touching on multiple charges of sexual misconduct with patients; • to rebut the accused’s defence that he would not intentionally shoot someone when other people were in the house; • to rebut the defence of consent or belief in consent in a sexual assault case. (at 10-47) 32 McWilliams also talks about the use of similar fact evidence to prove the actus reus: To Prove the Actus Reus Similar act and other discreditable conduct evidence may be used to prove the actus reus of the offence — that is, to prove that a crime occurred. Use of similar act evidence to prove the actus reus generally requires “a persuasive degree of connection between the similar fact evidence and the offence charged”. Such evidence has been admitted: • to establish that touching for a sexual purpose occurred despite the accused’s denial that the acts occurred; • to establish that an assault occurred; • to establish that a historic sexual assault occurred; • to establish that a murder occurred; • to establish one aspect of the actus reus on a murder charge: specifically, to establish that an alleged sexual assault or attempted sexual assault took place immediately before the killing; • to establish that a sexual assault occurred during a medical examination; • to establish that the accused was in a position of trust under s. 153 of the Criminal Code; • To establish a pattern of similar behaviour. R. v. White Robert A. Graesser J. 377

As discussed below, where the issue in question is the actus reus, a conclusion on whether the alleged crime occurred might be impacted by the credibility of the complainant(s). In such cases, because the issues of actus reus and credibility are somewhat intertwined, the similar act evidence may be properly probative of credibility. (at 10-48) 33 McWilliams also notes that similar fact evidence may be used to prove identity: To Prove Identity It has been observed that in a “large proportion” of cases where similar act evidence is tendered, it is directed to the issue of identity. The general principles for similar act evidence apply in these cases but the assessment is often more rigorous. In Arp, the Supreme Court of Canada provided “extremely formalized suggestions” for analyzing the probative value of similar act evidence directed to identity. Directly below, we provide an in-depth discussion of the general principles informing the probative value of similar act evidence. Given the frequency in which similar act evidence is tendered on this issue of identity, we then provide additional detailed discussion on the special case of using similar act evidence to prove identity at paragraph 10:40.20.30, “The Special Case of Using Similar Act Evi- dence to Prove Identity”. (at 10-51) 34 I note that in R. v. Blake [2003 CarswellOnt 4795 (Ont. C.A.)], 2003 CanLII 13682 the majority considered credibility issues and similar fact evidence and stated at paras 49 and 54: [49] As already noted, in my respectful view, reviewed with the benefit of the Handy analytic framework, the cumulative effect of five aspects of the trial judge’s reasoning led her to set the threshold for admissibility of the discreditable conduct evidence too low: (i) she framed the issue in question too widely, allowing too broad “a gateway” for the admission of discreditable conduct evidence; (ii) she did not identify the degree of connection to the alleged offence required to make the discreditable conduct evidence admissible; (iii) in assessing the cogency of the discreditable conduct evidence, she relied primarily on generic similarities between it and the evidence of the complainant; 378 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

(iv) in assessing the cogency of the discreditable conduct evidence, she did not identify the features of proposed evidence that distinguished it from the evidence of the complainant; and (v) she failed to recognize the significant moral prejudice arising from the generic quality of the similarities she identified. [54] One of the purposes of identifying the issue in question is to assist in determining the degree of connection necessary to make the discreditable conduct evidence admissible. In this case, the trial judge did not discretely identify the standard that she used. However, as I will explain more fully below, in admitting the discreditable conduct evidence the trial judge relied primarily on generic similarities to the complainant’s evidence and did not consider the distinguishing features in the evidence. In my view, characterizing the issue in question, at least in part, as credibility played a significant role in the trial judge’s determination that the proposed evidence was sufficiently similar to the complainant’s evidence to warrant its admission. 35 The majority overturned the conviction and ordered a new trial. 36 Abella JA (as she then was) stated in dissent: [19] On one hand, it may be argued that the trial judge framed the issue too broadly in identifying it as the complainant’s credibility. In Handy, at paras. 115-16, Binnie J. cautioned against framing the “issue in question” merely in terms of credibility. It is useful to reproduce his comments on this point: Care must be taken not to allow too broad a gateway for the admission of propensity evidence or, as it is sometimes put, to allow it to bear too much of the burden of the Crown’s case [citation omitted]. Credibility is an issue that pervades most trials, and at its broadest may amount to a decision on guilt or innocence. Anything that blackens the character of an accused may, as a by-product, enhance the credibility of a complainant. Identification of credibility as the “issue in question” may, unless circumscribed, risk the admission of evidence of nothing more than general disposition. [20] In this case, the trial judge did not frame the issue merely in terms of credibility, but circumscribed it in terms of the conflicting testimony with respect to whether the sexual abuse of T.D. occurred at all. It was proper for the trial judge to describe the issue in terms of “whether the incident alleged by T.D. occurred”. 37 She would have dismissed the appeal. R. v. White Robert A. Graesser J. 379

Conclusions 38 From this I conclude that buttressing the credibility of the complainant is of itself is not sufficient to allow similar fact evidence to be admitted. 39 Where similar fact may prove the actus reus, establish identity or negate a defence, even though credibility is relevant to those determina- tions, may be permitted in appropriate cases. 40 I do not interpret Titmus as opening the door on credibility as a valid, stand-alone “issue in question”. While that may be inferable from B. (C.R.), I am persuaded by McWilliams’ text and the quote from Handy at paras 115, 116 and 120 that credibility by itself is not a valid reason to admit similar fact evidence. 41 That being said, it is clear that similar fact evidence may be admissible on issues surrounding: 1. The actus reus 2. Identity and 3. Negating defences

Analysis 42 Here, is there a legitimate actus reus issue, or has the Crown essentially characterized credibility as actus reus? 43 The Crown is in the difficult position of arguing first. Ms Inglis can only make an educated guess on what will be argued by the defence. 44 It seems clear from cross-examination that the defence will argue: 1. Nothing untoward happened to any of these complainants; 2. The complainants have colluded to make these complaints up and implicate Mr. White; 3. Alternatively, the complainants or some of them have identified the wrong man; and 4. The complainants or some of them are not worthy of being believed because of criminal records and drug use which affect truthfulness and reliability.

Collusion 45 Collusion has featured strongly in cross-examination of virtually all of the Crown’s witnesses. It has been suggested to each of the complain- 380 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

ants in cross-examination that what they testified to did not happen and they are only making complaints to help CB or each other. 46 As a first point, I do not see that there should be any limitations placed on the Crown relating to negating or rebutting suggestions of collusion. Indeed, as discussed in argument, in this area, the Crown will more likely emphasize the differences in the complainants’ testimony rather than the similarities. I do not see how arguing the similarities in the complainants’ evidence as to what happened to them negates collusion or tainting. 47 Ironically, it will likely be the defence pointing out the similarities or some of the similarities to support their arguments surrounding fabrication, collusion and tainting. 48 So I do not see that similar fact evidence needs to be argued by the Crown in relation to collusion, fabrication or tainting. That being said, I do not think that the Crown should be under any artificial limitations on its ability to refute or rebut allegations of fabrication, collusion and tainting.

Identity 49 As for identity, it is clear that identity remains in issue. SH was cross- examined extensively on identity and her alleged mis-identification of someone other than Mr. White in the photo lineup. Any doubts in her identification of Mr. White may be lessened or removed by similar fact and the identification of Mr. White by others. 50 I realize this was not articulated by Ms. Inglis in these terms, but from my review of the evidence and the likely arguments, any challenges to identity of one complainant may be aided by similar fact and identity of Mr. White by other complainants. This is a legitimate “issue in question” for similar fact evidence.

Actus Reus 51 As for actus reus, it is clear from the defence’s cross-examination that the defence will likely take the position that the events described by the three complainants did not occur. While this is the area that likely has the greatest overlap with credibility, actus reus is a live issue and may be a valid issue in question for similar fact evidence to be admissible. R. v. White Robert A. Graesser J. 381

Probative Value Versus Prejudicial Effect 52 That really leads to the analysis of probative value versus prejudicial effect. In this regard, I would observe that some of the prejudicial effect has already occurred because the jury has heard the evidence of similar events attributed to Mr. White. The choice for me here is to permit the jury to make use of the evidence of one complainant for clearly described purposes or to instruct them that they cannot do so and they must consider the evidence of each complainant or of the charges involving each complainant in a silo. That is standard jury charge wording where similar fact evidence is not permitted. I am challenged by the likely effectiveness of such wording. 53 That being said, if there is prejudice, the only way it can be overcome or mitigated against is by a clear charge forbidding the use of one complainant’s evidence in relation to counts not involving that complainant. 54 What is the prejudice to Mr. White if similar fact evidence is permitted on the issues of identity and actus reus? Prejudice is not the risk of conviction; the issue relates to trial fairness. Certainly the risk of moral prejudice looms. If the jury were to accept the evidence of one of the complainants beyond a reasonable doubt that the things she said happened to her and they were done by Mr. White, there is certainly a risk that they might be more inclined to accept that he had done the same things to the other complainants even though their evidence may not be as strong or compelling. That will probably be the case in almost all cases where similar fact evidence is permitted. 55 I am not convinced that there is anything beyond the general spectre of moral prejudice, to make the risks greater or insurmountable. With respect to reasoning prejudice, I am not convinced that the reasoning prejudice here (distraction) is likely to be greater in trying to disabuse themselves of similar facts they have heard in evidence because of jury instruction than focusing on the defences: identity and fabrication. 56 From that perspective, and there being nothing that “leaps out” by way of specific or special prejudice, the probative value of the arguable “calling card” outweighs the prejudicial effect. 57 There are of course other reasons to exclude similar fact evidence. Collusion looms large in this trial. I am satisfied from the evidence of each of the complainants that there is an air of reality to collusion, having regard to the connections between the complainants and their connection to CB. The evidence of opportunity does not translate to an air of reality, but there was evidence, particularly from TK and SH, that they and CB 382 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

had met and discussed going to the police and recognized similarities with their “bad date” from what was described as CB’s or TK’s bad date. There is less evidence concerning RH, but there are connections among the complainants. 58 That being said, from a threshold perspective, I am also satisfied that the Crown has met the burden on it on a balance of probabilities to rebut collusion or tainting. Each of the complainants denied being influenced by the others, other than to go ahead with their own complaints. There is no hard evidence of collusion, tainting or indeed fabrication. As I mentioned in argument, there is smoke, but I saw no fire and collusion was specifically denied. Each of the complainants gave credible evidence on that point. I need only consider it on the balance of probabilities. 59 However, I decline to remove the issue of fabrication or collusion from the jury. There is in my view at least an air of reality to the argument. Mr. Beresh should be entitled to argue the frailties of the complainants’ evidence including the credibility of their denials of collusion or fabrication.

Evidentiary Base 60 I am mindful of R. v. Simpson, 2015 SCC 40 (S.C.C.). I do not read that case as prohibiting arguments based on answers to questions where there is no adoption of the truth of the question by the witness or independent evidence going to the truth of the question. The issue in Simpson was whether there was evidence that the trier of fact could rely on. Hav- ing found that the connections between or among the complainants and the communications or meetings they actually had given rise to an air of reality, I see nothing improper in allowing defence counsel to attempt to make the most of those connections and communications in an attempt to raise doubt.

Threshold Reliability 61 I am more concerned with threshold reliability. I relied on my assessment of KV’s evidence as one of my reasons to disallow her testimony as a similar fact witness. She had significant credibility issues. She did not identify Mr. White as her assailant and indeed testified that the person who choked and robbed her was not included in the photo lineup. 62 I do not have threshold credibility issues (as to truthfulness or reliability) with AH and TK. That is certainly not to say that they should be R. v. White Robert A. Graesser J. 383

believed. That will be up to the jury. They were cooperative and gave clear evidence as to identity. The same cannot be said of SH. 63 She was a very difficult witness in many aspects. Her identification of Mr. White is not as clear as with RH and TK as she initially selected the photo of someone other than Mr. White as being the person who choked and robbed her on two separate occasions. 64 It is my view that SH’s evidence should be viewed on its own. Noth- ing of her evidence should be used to implicate Mr. White in relation to the counts involving RH and TK. Their evidence may be argued as supporting her evidence of identity and actus reas, but it would be too prejudicial to Mr. White to allow her evidence to be used in relation to either of the other complainants.

Summary 65 Similar fact may be argued in relation to the evidence of TK and AH in relation to the issues of actus reus and identity. Similar fact may not be argued in relation to any of the evidence of SH. The Crown is not limited in its ability to rebut allegations of fabrication, collusion or tainting. 66 I am indebted to counsel for their focused and able arguments on these points. Similar fact evidence argument allowed. 384 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

[Indexed as: Funk v. Blue Cross Life Insurance Co. of Canada] Peter Funk, plaintiff and Blue Cross Life Insurance Company of Canada and Granny’s Poultry Cooperative (Manitoba) Ltd., defendants Manitoba Court of Queen’s Bench Docket: Winnipeg Centre CI 10-01-69291 2015 MBQB 184 Dewar J. Judgment: November 20, 2015 Insurance –––– Principles of interpretation and construction — Miscellane- ous –––– Plaintiff was truck driver for poultry processor — Employees were covered by group insurance plan which took effect after one year of employment — Employee suffered heart attack within days of completing one year of employment — Insurer ultimately refused benefits — Plaintiff brought action against employer and insurer for coverage — Action dismissed — Policy excluded employees who had not worked requisite period of time, and employee was not eligible for coverage — Policy was not ambiguous — In context of group insurance plan, fact that employee paid into plan but did not receive benefits did not create obligation on defendants to provide coverage — Twelve- month term in contract referred to calendar, not lunar months. Time –––– Divisions of time — Month –––– Lunar month. Cases considered by Dewar J.: Aab v. Jablonski (2001), 2001 MBQB 146, 2001 CarswellMan 246, 157 Man. R. (2d) 114, [2001] M.J. No. 244 (Man. Q.B.) — considered Anguish v. Maritime Life Assurance Co. (1987), 51 Alta. L.R. (2d) 376, [1987] 4 W.W.R. 261, [1987] I.L.R. 1-2226, 24 C.C.L.I. 194, 77 A.R. 189, 1987 CarswellAlta 92 (Alta. C.A.) — considered Bruner v. Moore (1903), [1903] 1 Ch. 305 (Eng. Ch. Div.) — considered Campbell v. Canada Life Assurance Co. (1990), 45 C.C.L.I. 73, 65 Man. R. (2d) 95, [1990] I.L.R. 1-2632, 1990 CarswellMan 87, [1990] M.J. No. 231 (Man. C.A.) — considered Consolidated-Bathurst Export Ltd. c. Mutual Boiler & Machinery Insurance Co. (1979), [1980] 1 S.C.R. 888, 112 D.L.R. (3d) 49, 32 N.R. 488, [1980] I.L.R. 1-1176, 1979 CarswellQue 157, 1979 CarswellQue 157F, REJB 1979- 109268, [1979] S.C.J. No. 133 (S.C.C.) — considered Funk v. Blue Cross Life Insurance Co. of Canada 385

Davies v. Zurich Life Insurance Co. of Canada (1981), [1982] I.L.R. 1-1471, 39 N.R. 457, (sub nom. Zurich Life Insurance Co. of Canada v. Davies) [1981] 2 S.C.R. 670, 130 D.L.R. (3d) 748, 1981 CarswellOnt 630, 1981 Carswell- Ont 630F (S.C.C.) — considered Dodds v. Walker (1981), [1981] 2 All E.R. 609 (U.K. H.L.) — followed Doe d. Hazen v. Hazen (1854), 8 N.B.R. 87, 1854 CarswellNB 19 (N.B. S.C.) — considered Jones v. Trans America Life Insurance Co. of Canada (1996), 38 Alta. L.R. (3d) 91, 35 C.C.L.I. (2d) 1, [1996] 6 W.W.R. 372, 181 A.R. 273, 116 W.A.C. 273, (sub nom. Trans America Life Insurance Co. of Canada v. Jones) [1996] I.L.R. I-3327, 1996 CarswellAlta 236 (Alta. C.A.) — considered London Life Insurance Co. v. Baker (1987), 34 D.L.R. (4th) 340, [1987] I.L.R. 1-2164, 77 N.S.R. (2d) 3, 191 A.P.R. 3, 24 C.C.L.I. 38, 1987 CarswellNS 99, [1987] N.S.J. No. 38 (N.S. C.A.) — considered Monroe v. Mews (1937), [1937] O.R. 452, [1937] 2 D.L.R. 539, 1937 Carswell- Ont 20, [1937] O.J. No. 283 (Ont. C.A.) — considered Murray v. Delta Copper Co. (1923), [1923] 2 W.W.R. 275, [1923] 3 D.L.R. 118, 1923 CarswellAlta 118 (Alta. C.A.) — considered Nudell v. Williams (1865), 15 U.C.C.P. 348, 1865 CarswellOnt 184, [1865] O.J. No. 176 (U.C. C.P.) — considered Pense v. Northern Life Assurance Co. (1907), 15 O.L.R. 131, 10 O.W.R. 826, 1907 CarswellOnt 285, [1907] O.J. No. 34 (Ont. C.A.) — considered Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada (2010), 2010 SCC 33, 2010 CarswellBC 2501, 2010 CarswellBC 2502, 92 C.L.R. (3d) 1, [2010] 10 W.W.R. 573, 9 B.C.L.R. (5th) 1, 89 C.C.L.I. (4th) 161, 73 B.L.R. (4th) 163, 323 D.L.R. (4th) 513, [2010] S.C.J. No. 33, (sub nom. Progressive Homes Ltd. v. Lombard General Insurance Co.) [2010] I.L.R. I- 5051, [2010] 2 S.C.R. 245, 406 N.R. 182, 293 B.C.A.C. 1, 496 W.A.C. 1 (S.C.C.) — followed Verbong v. Great-West Life Assurance Co. (2003), 2003 MBQB 39, 2003 Car- swellMan 59, 171 Man. R. (2d) 161, [2003] M.J. No. 63 (Man. Q.B.) — considered Statutes considered: Interpretation Act, R.S.M. 1987, c. I80 Generally — referred to s. 67 “month” — considered Rules considered: Queen’s Bench Rules, Man. Reg. 553/88 R. 3.01 — referred to

ACTION by plaintiff for coverage under disability policy. 386 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

Grant M. Driedger, Mathieu Lafreniere, for Plaintiff Candace A. Grammond, David E. Silver, for Defendants

Dewar J.: Introduction 1 The plaintiff sues the defendant under a group disability insurance policy. 2 Commencing late on August 10, 2008, the plaintiff began to work for Granny’s Poultry Cooperative (Manitoba) Ltd. (“Granny’s”) as a truck driver. Granny’s is a poultry processor, and the plaintiff’s job was to transport poultry from producer farms to the Granny’s plant. 3 One of the benefits offered by Granny’s to its employees was a group health plan, including disability insurance. In order to do so, Granny’s entered into a written agreement with the defendant Blue Cross Life In- surance Company of Canada (“Blue Cross”) pursuant to which Blue Cross underwrote and agreed to provide insurance coverage on the terms set out therein. The agreement between Blue Cross and Granny’s (also called the “Policy”) provided different kinds of coverage. Three kinds of coverage are particularly relevant to this case, namely “Weekly Indem- nity” benefits, “Long Term Disability” benefits, and “Basic Critical Con- ditions” benefits. 4 Under the Weekly Indemnity benefits coverage, Blue Cross agreed to pay qualifying employees a percentage of their weekly income to a specified maximum if they became disabled over a period commencing zero to five days after disability began for 15 weeks (or 105 days). Under the Long Term Disability benefits coverage, Blue Cross agreed to pay qualifying employees a percentage of their monthly earnings so long as the employee remained disabled within the terms of the Policy for the period commencing the end of the Weekly Indemnity benefits period until they reached 65 years of age. Under the Basic Critical Conditions benefits coverage, Blue Cross agreed to pay a qualifying employee a specified lump sum if the employee provided satisfactory proof that the employee had suffered one of the specified afflictions. 5 In order to qualify for these coverages, one of the provisions in the Policy mandated a “Plan Waiting Period”. Blue Cross in this case main- tains that an employee must have 12 calendar months of active permanent employment with Granny’s before that employee is entitled to participate in this plan. The plaintiff contends that the Plan Waiting Period in this case is something less than 12 calendar months. Funk v. Blue Cross Life Insurance Co. of Canada Dewar J. 387

6 On August 8, 2009, two days before the expiration of the Plan Wait- ing Period as defined by Blue Cross, the plaintiff suffered a heart attack which resulted in his being unable to carry on as a truck driver for Granny’s. Blue Cross has taken the position that there is no coverage for the plaintiff, since the Policy was not in effect for the plaintiff on August 8, 2009. If there is coverage, Blue Cross has also argued that the plaintiff is no longer disabled within the meaning of the Policy. Furthermore, if there is coverage, Blue Cross has taken the position that the plaintiff has not sustained an affliction covered by the Basic Critical Conditions benefit provisions. 7 The plaintiff argues for reasons that I will set out later, that Blue Cross is misinterpreting or has by its conduct abridged the Plan Waiting Period, and if successful, argues that the plaintiff is disabled within the meaning of the group insurance contract, and that his heart attack qualifies for a lump sum payment under the Basic Critical Conditions benefit provisions. The plaintiff also argues that if there is disability coverage, he is entitled to be paid at a higher amount than Blue Cross calculates. 8 I might add that, bowing to some pressure put upon it by Granny’s, Blue Cross did pay the plaintiff the Weekly Indemnity benefits under the Policy, but on a gratuitous basis only, and without prejudice to its position that there was no legal obligation to pay those benefits, nor any other benefits outlined in the Policy. 9 Therefore, there are four questions that have been placed before me: a) Was the plaintiff entitled to coverage under the Policy as at Au- gust 8, 2009? b) If yes to (a), is the plaintiff totally disabled from working “any occupation”? c) If yes to (a), from which level of earnings should the disability benefits be calculated? and d) If yes to (a), did the plaintiff meet the criteria for a Basic Critical Condition payment of $50,000.00 based upon the definition in the Policy?

Analysis A. Was the plaintiff entitled to coverage under the Policy as at August 8, 2009? 10 To support its position, Blue Cross points to certain provisions contained in the Policy. 388 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

11 The first such provision is found at section 3.1(17) which is as follows: Plan Waiting Period: The Plan Waiting Period is the period of continuous active permanent employment that must be completed by Employees in order to be eligible for coverage under this policy. The plan waiting period is shown in the Benefit Summary. The Plan Waiting Period can be waived for any Employee at the written request of the Policyholder and only with the approval of the Company. [emphasis added] 12 In the Policy, “Company” means Blue Cross, and “Policyholder” means Granny’s. 13 In the Benefit Summary of the Policy, the “Plan Waiting Period” is defined as: 12 months of active permanent employment for all Employees; coverage is effective the first day following this period. 14 Under the heading “Employee Eligibility”, found in the Benefit Sum- mary of the Policy, there is wording that says: An Employee will become eligible for insurance at the expiration of the plan waiting period. All Employee applications should be completed and submitted to Blue Cross within 31 days of the start of this eligibility. [emphasis added] 15 Blue Cross simply says that if the first day of the plaintiff’s employment with Granny’s was August 11, 2008, the Plan Waiting Period would end the day prior to August 11, 2009, namely, August 10, 2009. The plaintiff suffered his heart attack on August 8, 2009, a few days before the expiration of the Plan Waiting Period. Therefore, he had no coverage. 16 The plaintiff raises a number of arguments against such a position. a) He argues that the Policy should be viewed in the context of certain facts: i. Commencing August 7, 2009, the plaintiff paid premiums for the insurance. Payment was made by deduction from his pay. The wages that he received on August 7, 2009 were attributable to the work that he did between July 19 to Au- gust 1, 2009. A further premium was deducted from his August 21 pay, which covered the period of work from Au- Funk v. Blue Cross Life Insurance Co. of Canada Dewar J. 389

gust 2 to August 15, 2009. The plaintiff essentially argues that since he was paying premiums before his heart attack, he must have been covered at the time that he experienced his heart attack. ii. The system arranged between Blue Cross and Granny’s contemplated premium payments to Blue Cross at the beginning of every month in advance. In calculating the Plan Waiting Period, the plaintiff argues that the Policy with regard to the plaintiff should become effective 12 months from August 1, 2008, since he started work mid-month. This, according to the plaintiff, at least creates an ambiguity which should be resolved in favour of the plaintiff. iii. The plaintiff further argues that the ambiguity is exacer- bated by the inconsistent use of “12 months” in the Policy. At section 5E.1(5)(d), Blue Cross uses the term “365 days”. Similarly, at clause 5H.3, Blue Cross again uses the words 365 days. Then, on the Benefit Summary page relating to Weekly Indemnity insurance, Blue Cross uses the term “52 weeks” to describe the same period of time. And, the plaintiff points to paragraphs 3.7(5) and (6) where Blue Cross uses the term “one-year”. The plaintiff argues that this opens the door to finding an interpretation which ought to be construed in favour of the plaintiff — if it was clear that the calculation was intended to commence mid-month, the Policy would have used “52 weeks”, or “365 days”. b) Alternatively, the plaintiff puts forward the proposition that there is a common law presumption that a month means a “lunar month”, a period of 28 days, which if utilized in this case would result in a waiting period of 336 days which ends on July 13, 2009, well before the plaintiff’s heart attack. 17 Therefore, the plaintiff submits that the Plan Waiting Period ended July 13, 2009 (if lunar months are used), July 31, 2009 (if one counts 12 months from August 1, 2008), or August 7, 2009 (the first day that a payroll deduction for premiums was made). If any of those dates were used, the plaintiff would have been covered when he suffered his heart attack. 18 Although various cases were cited to me with guidelines for interpret- ing insurance contracts, I prefer the following methodology as described 390 WESTERN WEEKLY REPORTS [2016] 5 W.W.R. by Rothstein J. in Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, [2010] 2 S.C.R. 245 (S.C.C.): B. General Principles of Insurance Policy Interpretation 21 Principles of insurance policy interpretation have been canvassed by this Court many times and I do not intend to give a comprehensive review here (see, e.g., Co-operators Life Insurance Co. v. Gib- bens, 2009 SCC 59, [2009] 3 S.C.R. 605, at paras. 20-28; Jesuit Fa- thers, at paras. 27-30; Scalera, at paras. 67-71; Brissette Estate v. Westbury Life Insurance Co., [1992] 3 S.C.R. 87, at pp. 92-93; Con- solidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery In- surance Co., [1980] 1 S.C.R. 888, at pp. 899-902). However, a brief review of the relevant principles may be a useful introduction to the interpretation of the CGL policies that follow. 22 The primary interpretive principle is that when the language of the policy is unambiguous, the court should give effect to clear language, reading the contract as a whole (Scalera, at para. 71). 23 Where the language of the insurance policy is ambiguous, the courts rely on general rules of contract construction (Consolidated- Bathurst, at pp. 900-902). For example, courts should prefer interpretations that are consistent with the reasonable expectations of the parties (Gibbens, at para. 26; Scalera, at para. 71; Consolidated-Bath- urst, at p. 901), so long as such an interpretation can be supported by the text of the policy. Courts should avoid interpretations that would give rise to an unrealistic result or that would not have been in the contemplation of the parties at the time the policy was concluded (Scalera, at para. 71; Consolidated-Bathurst, at p. 901). Courts should also strive to ensure that similar insurance policies are construed consistently (Gibbens, at para. 27). These rules of construction are applied to resolve ambiguity. They do not operate to create ambiguity where there is none in the first place. 24 When these rules of construction fail to resolve the ambiguity, courts will construe the policy contra proferentem — against the insurer (Gibbens, at para. 25; Scalera, at para. 70; Consolidated-Bath- urst, at pp. 899-901). One corollary of the contra proferentem rule is that coverage provisions are interpreted broadly, and exclusion clauses narrowly (Jesuit Fathers, at para. 28). [emphasis added] Funk v. Blue Cross Life Insurance Co. of Canada Dewar J. 391

19 In other words, one must look first to the whole of the contract to determine whether there is any ambiguity. In this case, is there any ambiguity in the words: Plan Waiting Period: ... 12 months of active permanent employment for all Employees; coverage is effective the first day following this period. 20 I do not see anything ambiguous in this phraseology, when read in the context of the agreement as a whole. In my view, 12 months of active permanent employment is very easy to understand - it will end on the day before the 12 month anniversary of the first day of employment. 21 In this case, the plaintiff started on the evening of August 10, 2008. The records of his employment registered by Granny’s with Blue Cross used August 11, 2008 as his first day of employment. This, to me, makes sense since the end of the first day of work occurred on August 11. He had only completed his first day on August 11, and it is logical that he would complete 12 months at the end of August 10, 2009. Coverage would then begin the day following, or August 11, 2009. However, even if I am wrong and his date of commencement of employment should have been when he reported to work on August 10, 2008, for the purposes of this case, that difference is academic, since the plaintiff’s heart attack occurred on August 8, 2009. 22 I was given a series of cases by counsel for Blue Cross which dealt with how courts calculate a period when it is described in months. I was presumably given these authorities to demonstrate common usage of the term “months”. One needs to be careful in reviewing authorities involving different circumstances or different wording because those differences drive different results. For example, in the case of Dodds v. Walker, [1981] 2 All E.R. 609 (U.K. H.L.), the House of Lords considered a statute that required a court application by a tenant to be made “not less than two nor more than four months after the giving of the landlord’s notice.” Where notice was received on September 30, 1978, the period in which an application could be made was held to expire on Jan- uary 30, 1979. At p. 610, Lord Diplock wrote that: ... when the relevant period is a month or a specified number of months after the giving of a notice the general rule is that the period ends on the corresponding date in the appropriate subsequent month, ie the day of that month that bears the same number as the day of the earlier month on which the notice was given. 392 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

23 If one applied that logic to the case at bar, assuming a start date of August 11, 2008, “12 months” would end on August 11, 2009. However, I have concluded that assuming a start date of August 11, 2008, 12 months would end on August 10, 2009. That is because we are dealing with a different situation than existed in the Dodds case. In that case there was a triggering event, namely, the service of the landlord’s notice, and the law in such circumstances excluded the day on which the event occurred from the calculation. In the case at bar, the first day of work would be included because the eligibility period was based on the length of time that a person was employed, and it would therefore make sense to credit the employee with his first day of employment. Nonetheless, the Dodds case is important because it recognizes that the time does not start running at the beginning of a month in which the contemplated happen- ing occurs, which is what is being argued by the plaintiff in this case. The Dodds case is good authority for saying that where a period expressed in months begins mid-month, the end of the stated number of months will also occur mid-month. 24 Similarly, in the case of Murray v. Delta Copper Co., [1923] 3 D.L.R. 118, [1923] C.C.S. No. 130 (Alta. C.A.) (QL), where a litigant was ordered to post security for costs within two months and where the order was dated September 15, the period expired November 15. There too, the date that the order was granted was not factored in the calculation. 25 In the case of Monroe v. Mews, [1937] O.R. 452, [1937] O.J. No. 283 (Ont. C.A.) (QL), the court considered an option to purchase an interest in mining claims given in an agreement dated May 8, 1936 where the option was open “for a period of six months from the date hereof” (para. 3). The court concluded that the option expired on November 8, 1936, but without saying so, appears to have disregarded the day on which the agreement was signed. 26 Finally, in the case of Aab v. Jablonski, 2001 MBQB 146, 157 Man. R. (2d) 114 (Man. Q.B.), Kennedy J. concluded that the time for serving a statement of claim elapsed on August 21, 1995 when it had issued on February 21, 1995. This decision was based on a court rule that required service of the statement of claim to be made “within six months after it is issued.” It should be remembered that the court rules also contain a provision that where there is a reference to a number of days between two events, they shall be counted by excluding the day on which the first event happens and including the day on which the second event happens (currently Rule 3.01). Funk v. Blue Cross Life Insurance Co. of Canada Dewar J. 393

27 I mention these cases simply to illustrate that common usage suggests that if a period of time expressed in months begins mid-month, the period ends mid-month. Therefore, in the case at bar, since I have concluded that the period began on August 11, 2008, “12 months” would end on August 10, 2009. As I have said, unlike the cases cited to me, in this case the first day is counted in the calculation. 28 In my view, the language is not ambiguous and a search into other surrounding evidence is unnecessary. 29 However, the plaintiff has argued that it is proper to look at the contract in the context of the surrounding circumstances, and if that is done, the phraseology respecting the Plan Waiting Period is ambiguous. Both parties led evidence (much of it in an agreed book of documents) as to how the health program was administered, what information was shared between Blue Cross and Granny’s and the plaintiff, and how and when premiums were paid to Blue Cross by Granny’s. No objection was taken to any of this evidence and I have considered it. In my view, if the object of the exercise is to ascertain the intention of the contracting parties, the way in which they acted before any loss occurs is helpful in determining their intention. 30 Authorities suggest that if the court determines that the wording is ambiguous, it may then review other evidence from which it might dis- cern the intention of the parties. The courts rely on general rules of contract construction. One recognized approach is to examine the circumstances surrounding the creation of the contract in order to see if both competing interpretations make sense. Only if the ambiguity remains after that exercise is the court free to adopt the contra proferentem doctrine. 31 Does a review of the circumstances under which this contract was made support an argument that the contract is ambiguous? 32 The plaintiff emphasizes that the arrangements existing between Blue Cross and Granny’s involved an obligation on the part of Granny’s to pay premiums on the first day of every month for coverage that was provided during that month. Therefore, that suggests that the first of the month is a major factor and that in the calculation of “12 months”, the first of each month should be used. For example, the plaintiff argues that notwithstanding that he did not begin his employment until August 11, 2008 (or conceivably August 10, 2008 in the evening), the appropriate calculation of 12 months should start with August 1, 2008, and would therefore end on July 31, 2009. 394 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

33 I do not accept that the billing arrangement that existed between Granny’s and Blue Cross changes the proposition to which I have earlier referred, namely, that where a period expressed in months commences mid-month, the calculation begins and ends mid-month. There is, to me, no compelling reason to effectively backdate the commencement of the plaintiff’s employment. Under the terms of the Policy, an employee receives an initial windfall in that in light of the billing arrangements that exist, an employee who becomes eligible to be covered receives coverage on his mid-month eligibility date, but Blue Cross receives no premium from that employee for that month. The first premium from that employee which is received by Blue Cross occurs on the first day of the month following the employee’s eligibility. Even factoring into the assessment the fact that if an employee is terminated mid-month, no rebate is given for the portion of the month after his termination, there is no compelling reason why these specific arrangements should change the general rule that where a period of time expressed in months occurs mid- month, it should be calculated from the mid-month commencement date to its mid-month termination date. There is nothing in these arrangements which support the plaintiff’s contention that “12 months” should be calculated from August 1, 2008. 34 Further, if the surrounding facts as to how the policy was being administered including the collecting of premiums require consideration, all of the surrounding facts then enter the mix, rather than simply selected ones. For example: a) The Blue Cross employee booklet contains this language: i. At page 2, “You are eligible to enroll for benefits if you are a permanent employee actively working at least 24 hours per week and have completed the waiting period.” ii. At page 1, “Waiting Period” is defined as “12 months; coverage is effective the 1st day following this period.” b) When the plaintiff was hired, he received a letter of August 11, 2008, which contained this language: You will be eligible to participate in our employee benefits program after you have completed twelve (12) months of employment. Funk v. Blue Cross Life Insurance Co. of Canada Dewar J. 395

c) In a further information form acknowledgement signed by the plaintiff at some point following August 11, 2008 but well before his heart attack, he acknowledged the following: I further certify that I understand that after completion of twelve (12) months-waiting period, I will enroll in a Com- pany Insurance Plan. d) In a letter of July 31, 2009 addressed to the plaintiff, Granny’s wrote: Congratulations on your 12 months of employment at Granny’s Poultry Co-operative (Manitoba) Ltd. You are eligible to participate in our employee benefits program through Manitoba Blue Cross effective August 11th. Attached is a booklet explaining the benefits you are entitled to. [emphasis added] 35 As between Granny’s and Blue Cross, the documentation from Granny’s which accompanied payment of premiums to Blue Cross shows that the plaintiff only started to become recognized for payment purposes effective September 1, 2009, notwithstanding, as indicated above, Blue Cross has recognized that the plaintiff was entitled to coverage effective August 11, 2009, even though he was not charged any premium for the balance of that month. 36 What then is the effect of Granny’s deducting premiums from the plaintiff prior to the plaintiff’s attack? The plaintiff says that the policy provisions respecting the waiting period are either ambiguous (if one looks at the fact that he had already started paying premiums at the time of his heart attack), or he submits that there should be an implied condition in the Policy which backdates the coverage to when he first started to pay his premiums, in this case August 7, 2009. 37 Even the fact that the plaintiff had already commenced paying premiums for the insurance before his heart attack does not change my view. It must not be forgotten that this was group insurance, not an individual policy of disability insurance. The parties who created the policy are Blue Cross and Granny’s. Employees sign on to a group policy after it has been made. Although it is true that the plaintiff began to pay his premiums to Granny’s commencing August 7, 2009, the arrangements under which this insurance was to be administered were between Blue Cross and Granny’s. Those arrangements contemplated a payment by Granny’s to Blue Cross for all of the employees covered by the Policy in advance on the first day of each month. It should not matter to Blue 396 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

Cross whether the premiums are funded ultimately by the employer or by the employee or by both. Although there were agreed premiums for each member of the group, the arrangements that existed between Blue Cross and Granny’s did not stipulate when each member needed to pay Granny’s, and essentially gave to Granny’s the right to determine how much, if any, and when each employee would pay Granny’s for the plan benefits. 38 Under the Policy, Granny’s agreed to pay the premium for all of its employees at the first of every month. That means, Granny’s had the discretion to require its employees to pay Granny’s in advance of Granny’s making its payment to Blue Cross, or after. The fact in this case that Granny’s commenced the payroll deduction for the group benefit plan as early as August 7, 2009 was a function of how Granny’s chose to have its employee reimburse it for its obligations under the Policy rather than it was a requirement of Blue Cross. All that Blue Cross required was payment by September 1. (Perhaps ironically, Blue Cross did not receive the September premium payment from Granny’s until September 25, 2009, and although academic for this case, employees of Granny’s were still covered for the first 25 days of that month.) 39 The plaintiff has provided me with a series of cases which he argues demonstrate that courts will hold insurers liable if loss occurs when premiums or partial premiums are paid. Those cases are Davies v. Zurich Life Insurance Co. of Canada, [1981] 2 S.C.R. 670 (S.C.C.), Jones v. Trans America Life Insurance Co. of Canada (1996), 181 A.R. 273 (Alta. C.A.), and Anguish v. Maritime Life Assurance Co. (1987), 77 A.R. 189 (Alta. C.A.). 40 Of the three cases cited, the Davies case is the closest to the proposition for which they have been advanced. In that case, a man had signed a document entitled “Conditional Insurance Agreement” and paid a partial premium. It was anticipated that proof of insurability was to be supplied. The claimant died before proof of insurability was supplied. The issue in the case was whether the submission of proof of insurability was a condition precedent for coverage, or whether coverage began on the receipt of the partial premium payment and signing of the Conditional Insurance Agreement and would terminate in the event no proof of insurability was submitted. The court decided in favour of the insured. However, that case was decided on the basis that the Conditional Insurance Agreement was ambiguous. Nowhere did that insuring agreement say expressly that coverage was dependent on prior proof of insurability. In the case before me, Funk v. Blue Cross Life Insurance Co. of Canada Dewar J. 397

the language is clear - there is a waiting period before coverage begins and it extends for 12 months. In the Davies case, the fact that a part payment of premium was made does not form a large part in the reasoning of the court, and accordingly, is of little value in this case. I might also add that the Davies case involved a personal policy of insurance, not a group plan where employees come and go, but the plan continues. 41 As to the Jones and Anguish cases, they involve circumstances where premiums were due but not paid, and a death occurred prior to the expiration of a grace period for payment or prior to conduct on the part of the insurer that demonstrated clearly that the insurer was electing to terminate the policy for nonpayment of premiums. Those cases deal with a situation where an employee fails to make payments after coverage has begun, and have no application to the case at bar which deals with the situation in which a disability arises during a defined plan waiting period after premiums are paid by an employee to his employer but at a time when premiums are neither owed nor paid to the insurer at the time of the disabling event. 42 The plaintiff argued that there was an agency relationship that existed between Blue Cross and Granny’s such that the actions of Granny’s in requiring a premium payment at an early date or failing to return the September payment should somehow invite liability upon Blue Cross. He points to the case of London Life Insurance Co. v. Baker (1987), 77 N.S.R. (2d) 3 (N.S. C.A.), where an employer who had incorrectly advised an employee that he was covered during the period of a layoff so long as he continued to pay premiums was held to be acting as an agent of the insurer at the time that the representation was made. 43 As to the London Life Insurance Co. case, I do not consider it binding upon me. Firstly, the court there took pains to say that each case will be determined on its own set of facts (para. 48). Importantly, section 1.7 of the agreement between Blue Cross and Granny’s says: The Policyholder or any participating employer shall not be considered to be the agent of the Company for any purpose under this policy. 44 This was a clear statement of the relationship that existed between Granny’s and Blue Cross, and negates any suggestion that there was some kind of an agency relationship created because of the manner in which Granny’s handled collecting and reimbursing premiums. No such clause was present in the insuring agreement considered in the London Life Insurance Co. case. 398 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

45 Perhaps even more fundamental is that there was no oral representation made to the plaintiff by the employer in this case as there had been in the London Life Insurance Co. case. All that the plaintiff can point to here is that premium deductions were made prior to the expiration of the Plan Waiting Period. As I have indicated earlier, in my view, the payroll deduction was simply the mechanism utilized by the employer to collect the money that it was obligated to pay to Blue Cross. There was no representation to which anyone points which says that the collection of the premiums was to trigger the commencement of coverage. 46 Indeed, the evidence suggests the contrary. There was a letter written by Granny’s to the plaintiff in July 2009 which specifically indicated that coverage would begin on August 11. The plaintiff did not remember whether he saw this letter. I conclude that he probably did see it. It is addressed to him and marked “freight in”. He testified that he would often pick up business notices addressed to him from a box in the freight room out of which he reported for work. There is no suggestion by anyone that he was not at work during this time. The plaintiff acknowledged that he possibly picked it up. I conclude that he probably picked it up. Whether he read it or not I cannot say, although it would have been his responsibility to read it. If he did, he would clearly have recognized, as I suspect he already knew, that his coverage was not going to begin until August 11, 2009. 47 It was argued that the plaintiff never received reimbursement for the premium payment made on August 7, 2009. The evidence indicates that Blue Cross repaid Granny’s by letter of December 23, 2010 the sum of $67.57 which was the plaintiff’s premium for the month of September, 2009 (paid in August 2009). The plaintiff says that he never ultimately received that amount, but that is a matter between him and Granny’s. Blue Cross made the reimbursement to the payor under its Policy, and that is Granny’s. Blue Cross should not be held liable because Granny’s did not pass that reimbursement along to the plaintiff. 48 The plaintiff has also raised the notion that the word “months” in the Policy refers to “lunar months”, and not to “calendar months”. He argues that at common law, a month referred to a “lunar month”, or a period of 28 days, as distinct from the notion of calendar months. He argues that if his first day of work was August 11, 2008, 12 lunar months (or 336 days) would expire around July 13, 2009, well before his heart attack. Funk v. Blue Cross Life Insurance Co. of Canada Dewar J. 399

49 The plaintiff supports his argument with the case of Bruner v. Moore, [1903] 1 Ch. 305 (Eng. Ch. Div.), which includes the following passages, at p. 379: ... The first question arises on the option, which is given for value, and is therefore not revocable. Are the six months given for its exercise lunar or calendar months? Although in the Ecclesiastical Courts “months” mean calendar months - Peterborough (Bishop) v. Catesby [1606], and per Knight-Bruce, V.C., in Bluck v. Rackham [1846] - it is well settled that at common law “months” denote lunar months; so much so that when it has been desired to make an alteration recourse has had to be had to statute or statutory rules - for example, as to the construction of Acts of Parliament by the Interpretation Act, 1889, which replaced Lord Brougham’s Act (13 & 14 Vict. c. 21) as to bills of exchange by the Bills of Exchange Act, 1882, s. 14, and as to documents which are part of any legal procedure under the Rules of Court by Order LXIV. rule 1. It is, therefore, a question of construction in each case, to which the ordinary rules of construction apply - namely, that words must bear their ordinary primary meaning unless the context of the instrument read as a whole, or surrounding contem- poraneous circumstances, shew that the secondary meaning expresses the real intention of the parties, or unless the words are used in connection with some place, trade, or the like, in which they have acquired the secondary meaning as their customary meaning, quoad hoc. ... That is, in my opinion, the meaning of the judgment in Simp- son v. Margetson, where Lord Denman says, “It is clear that the construction of a written contract, subject to the exceptions mentioned below, is for the Judge. It is also clear that ‘months’ denote at law ‘lunar months,’ unless there is admissible evidence of an intention in the parties using the word to denote ‘calendar months.’ If the context shews that calendar months were intended, the Judge may adopt that construction; Lang v. Gale [1813], Reg. v. Chawton. If the surrounding circumstances, at the time the instrument was made, shew that the parties intended to use the word, not in its primary or strict sense, but in some secondary meaning, the Judge may construe it from such circumstances, according to the intention of the parties; Goldshede v. Swan [1847], Walker v. Hunter [1845], Bacon’s Maxims, Reg. 10, and the examples there given, Mallan v. May [1844], and Beckford v. Crutwell [1832]. If there is evidence that the word was used in a sense peculiar to a trade, business or place, the jury must say whether the parties used it in that peculiar sense; Smith v. Wilson [1832], Grant v. Maddox [1846], Jolly v. Young [1794]. If the meaning of a word depends upon the usage of the place where any thing under the 400 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

instrument is to be done, evidence of such usage must be left to the jury; Robertson v. Jackson [1845], Bourne v. Gatliff [1844]. [footnotes omitted] 50 He also cited Nudell v. Williams (1865), 15 U.C.C.P. 348, [1865] O.J. No. 176 (U.C. C.P.) (QL) and Doe d. Hazen v. Hazen (1854), 8 N.B.R. 87, 1854 CarswellNB 19 (N.B. S.C.) where Canadian courts, albeit of some antiquity, used the concept of “lunar months”. 51 The problem here is that no case was cited to me that says that the old common law notion of “month” being a “lunar month” has been conclu- sively overruled and buried. I have been referred to The Interpretation Act, C.C.S.M. c. I80, where at s. 67: “month” means a calendar month; 52 However, that Act was passed to assist in the interpretation of statutes and regulations passed by the Legislature or by the executive branch of government, and does not expressly say that it governs the interpretation of insurance or commercial contracts. 53 Notwithstanding, the concept of lunar months appears to me to currently be outside mainstream use, and I daresay has been for at least the past 20 years. In my opinion, if a party to a contract wishes to rely upon such an outdated concept, there should be some onus on them to demonstrate that the parties intended such usage. 54 I see no such evidence here. Indeed, the Policy appears to contem- plate the use of calendar months. For example, the demarcation line between disability based on “own occupation” and “any occupation” is 24 months - easily translated to two years if “months” is a “calendar month”. The question must be asked why the parties would use 24 months if they did not mean calendar months. Furthermore, it would be in the interest of the claimant that 24 months referred to calendar months, since if it meant lunar months, a claimant would be denied the advantage of such a clause for a full two calendar years. 55 Additionally, when one looks at the clause 3.1(5) which defines earnings for benefit calculations, 4.333 weeks per month and 12 months per year are used, which corresponds to calendar months rather than lunar months. It seems inconsistent for the parties to use a calendar month for the earnings calculation and yet not for the calculation of the Plan Wait- ing Period. 56 Even if these comparisons to other portions of the contract are not persuasive, the best that could be said is that the use of the word Funk v. Blue Cross Life Insurance Co. of Canada Dewar J. 401

“months” would be ambiguous and resort could be made to extrinsic evidence. I see no reason why the intentions of the parties could not be drawn from the way in which the parties acted prior to the loss. By parties, I mean especially Blue Cross and Granny’s, since they are the parties who made the agreement. The plaintiff signed on to the Policy at a later time, and although some consideration should be given to what an employee in a group plan might believe from the information given to him, a group insurance plan in reality results from an agreement between the employer and the insurer. There is no doubt that both Granny’s and Blue Cross considered the word “months” to mean calendar months. As indicated above, Granny’s letter of August 11, 2008 to the plaintiff referred to his eligibility after he had completed “12 months of employment.” To tell an employee such a thing believing that he would understand it to mean “12 lunar months” is simply untenable. However, if there was any doubt, the intention was made clear in the letter of July 31, 2009 from Granny’s to the plaintiff indicating that the plaintiff would become eligible on August 11, 2009 (which was based on their usage of August 11, 2008 as his first day of employment). Furthermore, Blue Cross’s Application for Group Benefits form showed a start date of Au- gust 11, 2008 entered by Granny’s employees, and an effective coverage date of August 11, 2009 entered by Blue Cross. The billing and premium payment date arrangements between Granny’s and Blue Cross contemplated calendar months. 57 When all of the evidence is looked at, the only logical conclusion is that the parties understood the word “months” to mean calendar months, not “lunar months” as argued, after the fact, by the plaintiff. 58 A court should not try and strain the language in an agreement to try and solve an unfortunate situation which has been experienced by a plaintiff. In Consolidated-Bathurst Export Ltd. c. Mutual Boiler & Machinery Insurance Co. (1979), [1980] 1 S.C.R. 888 (S.C.C.), at para. 25, the majority decision written by Estey J. cautioned against so doing by citing these words of Meredith J.A. in Pense v. Northern Life Assurance Co. (1907), 15 O.L.R. 131, [1907] O.J. No. 34 (Ont. C.A.) (QL): 23 There is no just reason for applying any different rule of construction to a contract of insurance from that of a contract of any other kind; and there can be no sort of excuse for casting a doubt upon the meaning of such a contract with a view to solving it against the insurer, however much the claim against him may play upon the chords of sympathy, or touch a natural bias. In such a contract, just as in all 402 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

other contracts, effect must be given to the intention of the parties, to be gathered from the words they have used. A plaintiff must make out from the terms of the contract a right to recover; a defendant must likewise make out any defence based upon the agreement. The onus of proof, if I may use such a term in reference to the interpretation of a writing, is, upon each party respectively, precisely the same. We are all, doubtless, insured, and none insurers, and so, doubtless, all more or less affected by the natural bias arising from such a position; and so ought to beware lest that, bias be not counteracted by a full apprehension of its existence. [emphasis added] 59 By virtue of the evidence before me, there does not seem to be any ambiguity in the language of the agreement entered into between Granny’s and Blue Cross nor did I hear the plaintiff in his evidence indicate that he was under any misapprehension. At best, he simply said that he did not pay much attention to it. The argument now being made on his behalf appears to me to be straining to find a doubt about the meaning of a Policy which clearly says that the Plan Waiting Period is at least 12 months from the start of the employment, something which all concerned, by their respective conducts, seemed to recognize. 60 While recognizing the unfortunate consequences, I conclude that at the time that the plaintiff sustained his heart attack, he was not covered under the Policy because the Plan Waiting Period had not yet expired. 61 Given this conclusion, it is unnecessary to address the remaining questions. If there is no coverage, the other questions become academic. Nonetheless, I propose to do so in order to provide my thoughts in the event that a court of higher authority may not share my conclusion on the first question.

B. Is the plaintiff totally disabled from working any occupation? 62 Once an employee becomes eligible, the Policy contains a scheme of disability coverage which contemplates an “Elimination Period” (which corresponds to the period in which the employee qualifies for Weekly Indemnity payments), followed by 24 months where total disability is defined in reference to the employee’s “own occupation” at the time the disability arose, followed by a period to age 65 in which total disability is defined in reference to the ability of an employee to work at “any occupation”. 63 There is no issue in this case that had there been coverage, the plaintiff would have qualified for both the Weekly Indemnity benefits and the Funk v. Blue Cross Life Insurance Co. of Canada Dewar J. 403

24 months of “own occupation” disability benefits. After his heart attack, the plaintiff was unable to qualify for a Class 1 driver’s licence, which was a prerequisite for the job which he had performed at Granny’s. 64 However, the issue arises whether the plaintiff qualifies as disabled for the period following the Elimination Period, and the “own occupation” period. According to the Policy, Total Disability means: (a) The complete and continuous inability of the insured Employee to perform the regular duties of his own occupation as a result of illness or injury, during the Elimination Period and for the following 24 months; and (b) Thereafter, “Total Disability” means a state of continuous inca- pacity, resulting from illness or injury, which wholly prevents the insured Employee from performing the regular duties of any occupation for which he: (i) would earn 60% or more of his Pre-Disability Earnings; and (ii) is reasonably qualified, or may so become, by training, education or experience. Regular duties are defined as those work related activities which are considered essential to the insured Employee’s performance of the occupation and which proportionately take the majority of time to complete. The availability of such occupations, jobs or work will not be considered while assessing the insured Employee’s disability. The loss of a professional or occupational license or certification does not, in itself, constitute disability. 65 The Policy then contains an obligation on the part of Blue Cross to pay disability benefits as follows: 5E.2 Disability Benefit If an Employee, while insured for this benefit, becomes totally disabled as defined in Policy Provision 5E.1, Definitions, then subject to the terms and conditions of this benefit, the Company will pay the insured Employee a Long Term Disability benefit for which he was insured on the date of disability during the Benefit Period while he remains so disabled. 66 The plaintiff submits that on the evidence, he has been totally disabled within the meaning of the Policy since the commencement of the 404 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

“any occupation” period until now. Blue Cross submits that the plaintiff is no longer totally disabled and is able to work at other occupations. 67 Since his heart attack on August 8, 2009, the plaintiff has not returned to his job at Granny’s, or indeed to any job. The evidence before me in respect of his ability to work comes from the plaintiff himself, from Dr. Ilchyna (the plaintiff’s treating family physician), correspondence from Dr. Lyle Stronger (the plaintiff’s treating cardiologist) miscellaneous hospital records, and from Ms Margaret Martens (the plaintiff’s sister). 68 The period of time with which we are concerned starts on November 21, 2011, being the date of commencement of the “any occupation” disability definition and continues until today. 69 On November 21, 2011, the plaintiff was 56 years of age. Today he is 60 years of age. 70 There is no doubt that the plaintiff is disabled to such an extent that he is unable to perform the job which he held at Granny’s. The question, however, is whether his disability prevents him from performing the regular duties of any occupation for which he would earn 60% or more of his pre-disability earnings, and for which he is reasonably qualified, or may so become by training, education or experience. 71 The 60% threshold is not a factor in this case. That percentage applied to his basic wage corresponds to the minimum wage in Manitoba. Any full-time job which might be available to the plaintiff would by operation of law pay 60% or more of the plaintiff’s pre-disability earnings. 72 The plaintiff’s disability arises from his heart attack. The heart attack caused permanent damage to his left ventricle. An “ejection fraction” is a measure of the amount of blood which is pumped from the heart by a heartbeat. A normal ejection fraction is 60% or higher. Following his heart attack, the ejection fraction for the plaintiff was around 28%. The plaintiff’s family physician, Dr. Ilchyna testified that the plaintiff essentially has poor heart function. Approximately 14 months following his heart attack, an internal defibrillator device was inserted into the plaintiff’s body, the purpose of which was to administer a shock to the heart if the device senses a severe irregularity in heart rhythm. 73 The plaintiff testified that since his heart attack, he has been unable to do many things which he did earlier. His major complaint is that he has no stamina - that he gets tired easily, he suffers from shortness of breath when taxed, and he is unable to exercise or involve himself in physical activity for longer than five to ten minutes. He says as a result of his Funk v. Blue Cross Life Insurance Co. of Canada Dewar J. 405

inactivity, he has lost his fitness level and has gained some weight. He says that this lack of energy and fatigue after a few minutes prevents him from working. He indicates that any of his endeavours must be performed at “his own pace,” something which he says would be foreign to a normal work situation where efficiency is the normal objective. 74 The symptoms of his need to sit down and rest were confirmed by his sister, Ms Martens, who testified that the plaintiff becomes exhausted after working a few hours in the yard, that he no longer engages in any sporting activities such as snowmobiling and water skiing, and that even when shopping, he goes at a slow pace and needs to rest after a couple of hours. Ms Martens observed that the plaintiff appears unable to stay on task for eight hours per day. She says that the plaintiff needs his breaks. 75 Dr. Ilchyna confirmed from his observations that due to the plaintiff’s injured heart, the plaintiff’s fitness level dropped significantly after his heart attack and has been declining gradually ever since. He opined that 15 to 20 minutes of an exercise would tire the plaintiff out, and he could not work an eight hour day since he would be tired after 15 minutes if he had to engage in any heavy lifting or going up and down stairs. However, he did testify that he felt that the plaintiff could certainly stand and move about a room for periods of time without discomfort. He also testified that he felt the plaintiff could sit at a desk for six to eight hours per day. Dr. Ilchyna’s medical report filed as an exhibit contains the following language: His exercise tolerance is limited due to his impaired cardiac function. He suffers from shortness of breath and fatigue with exertion. He is therefore not able to do any work that would require him to exert himself beyond a very light level of exertion. ... 76 However, Dr. Ilchyna does acknowledge that “he would be able to do sedentary work,” but in his report he said that: ... he is not trained to do any such work. At 60 years of age, it is not reasonable to expect that he would be re-trained to do sedentary work, or that someone would be willing to hire him with the idea of retraining him. 77 On cross-examination, he admitted that his comments respecting training or the willingness of an employer to retrain the plaintiff was not medical opinion, and he further acknowledged he had no expertise in human resources or occupational training. 406 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

78 A court’s approach to assessing an “any occupation” disability issue was considered by MacInnes J. in Verbong v. Great-West Life Assurance Co., 2003 MBQB 39, 171 Man. R. (2d) 161 (Man. Q.B.): 11 In Campbell v. Canada Life Assurance Co. (1990), 45 C.C.L.I. 73, a decision of the Manitoba Court of Appeal, leave to appeal to the Supreme Court of Canada refused December 13, 1990, Helper J.A. for the court wrote at p. 77: There is no question that the onus rests upon the plaintiff to establish that the defendant is in breach of his contract of insurance by its failure since March of 1986 to pay disability payments. In order to satisfy that onus, the plaintiff must establish that he comes within the provisions of the contract. She went on to endorse the conclusions of Bourk J. in Malkin v. Crown Life Insurance Co. (1989), 38 C.C.L.I. 117, a decision of the British Columbia Supreme Court, that the ultimate onus rests upon the plaintiff to prove the disability, but the evidentiary onus shifts after a prima facie case is established by the plaintiff. 12 In short, if the plaintiff establishes prima facie that she is disabled within the “any occupation” provisions of the “totally disabled” definition under the plan, then MTS must establish there is some occupation for which the plaintiff is reasonably suited by reason of her education, training or experience, and which would provide her with income of at least 60% of her pre-disability salary as adjusted. In this case, the time for determination of these issues is the time when the plaintiff’s benefits were terminated or to put it another way, when the defendants allegedly breached the contract. 79 In short, the plaintiff must present evidence which if left to stand on its own would prove on a balance of probabilities that the plaintiff met the definition of “total disability”. In so doing, the plaintiff would need to demonstrate both subjectively and objectively that the plaintiff was unable to work at any position. The insurer could then attempt to rebut the evidence of the plaintiff by pointing to certain occupations which could accommodate the plaintiff’s abilities. The onus of proof remains on the plaintiff to satisfy the trier of fact on a balance of probabilities that the plaintiff was unable to perform any of the occupations suggested by the insurer. 80 The Campbell v. Canada Life Assurance Co. case ((1990), 45 C.C.L.I. 73, 65 Man. R. (2d) 95 (Man. C.A.)), which was cited by MacInnes J., relaxes the assessment of whether a claimant falls within Funk v. Blue Cross Life Insurance Co. of Canada Dewar J. 407

the “any occupation” definition of disability with an approach that is more holistic than literal. Although the wording of the policy in that case was different from the wording in the case before me, Helper J.A. recognized that concentrating on the words “any occupation” would invariably lead to a finding of disability since the most menial jobs would generally fit that definition. Helper J.A. concluded that it should not be the law that every claimant under an “any occupation” disability policy must be obliged to perform menial occupations. Therefore, there is a need to tem- per reliance on those words by putting the suggested occupations in the context of the background, experience and abilities of the claimant. Helper J.A. said, at para. 11: If he is healthy enough to take up an occupation for which his background reasonably suits him, he is deemed not to be disabled. [emphasis added] 81 And later, at para. 13: The test is not whether it is a job within his capability, but whether it is one for which he is reasonably fitted by what he has done before. 82 This case, therefore, requires a two-step analysis. The plaintiff must first show a prima facie case that he is unable to perform the regular duties of any occupation for which he would earn 60% or more of his pre-disability earnings, and is reasonably qualified, or may so become, by training, education, or experience. Once that occurs, there is an evidentiary onus on Blue Cross to demonstrate the existence of occupations which would be appropriate for the particular plaintiff. 83 The plaintiff attempts to make his prima facie case through his own testimony, through the testimony of his sister, Ms Martens, and through the evidence of his family physician, Dr. Ilchyna. The thrust of the plaintiff’s evidence is that he no longer has the stamina to perform the work which he formerly did. He tires easily. Stress is not good for him. There is no doubt that he suffers from a heart which does not function normally and it will never get better. Subjectively, he feels that he could do no work. 84 I am satisfied that the plaintiff has established a prima facie case. He has proven his subjective physical limitations which have been objectively corroborated by his sister and Dr. Ilchyna. It is true that Dr. Ilchyna indicated that the plaintiff could do sedentary work. I initially considered that this acknowledgement prohibited the plaintiff from establishing a prima face case, but upon further consideration, have compared the situation to the situation accepted by Helper J.A. in the Campbell 408 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

case. There, the court acknowledged that the plaintiff was not disabled from performing “light” occupations (para. 7), yet there appeared to be no evidence what those light occupations involved, or evidence that the plaintiff in that case could perform those occupations. The court must have concluded that notwithstanding the plaintiff’s ability to engage in “light occupations” there was still enough to establish a prima facie case because judgment ultimately was given for the plaintiff. In the case at bar, we have the same situation. We have a plaintiff who can perform unspecified sedentary occupations. The existence of the ability of the plaintiff in the Campbell case to perform unspecified light occupations was seen as no impediment to the establishment of a prima facie case. If so there, then so here. He has established his prima facie case. 85 Blue Cross attempted to meet its onus by calling Ms Lindsay Wood- ard a disability case manager in the employ of Blue Cross. She testified that Blue Cross uses a third-party computer program to assist it in ascer- taining occupations in which a particular claimant might work. She testified that she placed a series of inputs into the computer program which in turn outputted back to her a number of occupations resulting from the inputted criteria. She then manually reduced the number of suggested occupations to 14, namely: • Broadcast Technician • Construction Estimator • Construction Inspector • Construction Manager • Customer Service Clerk in Insurance, Telephone, Utility and similar companies • Data Entry Clerk • Electrical and Electronics Engineering Technologist • Foreman, Truck Drivers • Insurance Agent and Broker • Insurance Clerk • Power Systems Operator • Property Administrator • Transportation Manager, Freight Traffic • Transportation Route and Crew Schedule Funk v. Blue Cross Life Insurance Co. of Canada Dewar J. 409

86 She concluded that the plaintiff was qualified, or could become qualified by training, education or experience for each of these 14 occupations, which, were I to accept her conclusion, would lead me to decide that the plaintiff was not totally disabled within the meaning of the Policy. 87 However, I am not prepared to give any weight to her evidence. Firstly, the challenge of showing “any occupation” essentially requires evidence from people in the suggested occupations, or an independent expert who can, by reason of the expert’s knowledge, training, and experience attest to the various occupations and the requirements and duties associated with those occupations. With the assistance of the computer- generated lists, Ms Woolard essentially was put forward to express an opinion. However, she is not independent. Her livelihood depends upon remaining an employee of Blue Cross, and any opinion which she expressed would necessarily be of little value because of that relationship. As a matter of principle, rather than any particular criticism of Ms Woo- lard’s bona fides, I am unable to act upon her conclusion. 88 Furthermore, she testified that she relied heavily on the computer program to provide her with the range of possible occupations. No evidence was led from anyone in respect of the computer program in order to permit the court to assess its reliability. Simply because a computer program exists and certain inputs are placed into the computer program does not automatically mean that the outputs prepared by the program are accurate. This program may be a useful tool for an insurer in dealing with a disability claimant, but once the matter becomes headed for a courtroom, the insurer will need to prove that the program actually works, or prove the details of the suggested occupations by other evidence, or perhaps both. 89 I suspect that in this case, the lack of good evidence from Blue Cross on the “any occupation” issue was a function of the tardiness of Blue Cross in addressing the issue. Because of its decision to deny coverage, there was no interaction with the plaintiff following the claim rejection about whether the plaintiff could work at any other occupations. Custom- arily, if a claimant is disabled under the “own occupation” portion of the coverage, one would expect some discussion between the insurer and the insured before the “own occupation” period expires with a view to assessing the application of the “any occupation” definition to the insured’s capabilities. Sometimes this interaction will result in further independent medical examinations, or trial work efforts, or retraining. In this case, 410 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

that does not appear to have occurred. Early on, the parties became locked into a fight on whether there was coverage. If there was no coverage, then the insurer could feel itself at liberty to refrain from involving itself at finding any other occupations for the insured, or otherwise en- couraging the insured to take further training. The court record shows that when this case was initially defended by Blue Cross, it did so only on the question of coverage. But for a general denial, there was no specific mention of the “any occupation” issue. The initial statement of defence was filed on January 20, 2011. In the summer of 2015, the statement of defence was re-amended to specifically speak to the “any occupation” issue. The evidence called by Blue Cross to deal with the issue appears to have been developed late in the day and its value suffered as a result. 90 In short, Blue Cross has presented little in the way of reliable evidence to rebut the prima facie case of the plaintiff on the issue. Had there been coverage, on the evidence before me, I would have concluded that following the 24 month “own occupation” period, the plaintiff was, and continues to be, totally disabled within the meaning of the Policy.

C. If yes to sub (a), from which level of earnings should the disability benefits be calculated? 91 The factual difference between the parties which prompts this question arises from the fact that the plaintiff worked significant overtime. In the year 2009, leading up to his heart attack, he earned $29,311.78 in seven months which translates to $4,187.40 in monthly earnings. At 60%, the plaintiff claims that he should be entitled to receive $2,512.44 per month, less other agreed deductions such as CPP disability. 92 Blue Cross argues that Granny’s submitted the plaintiff’s earnings as $17.38 per hour based upon a 40 hour week which equates to an annual salary of $36,150.40 per year or $3,012.53 per month. At 60%, Blue Cross claims that the plaintiff would be entitled to receive $1,808.00 per month before the other agreed deductions. 93 Therefore, the plaintiff claims that if there is coverage and he meets the disability criteria in the Policy, he is entitled to $704.44 more per month than Blue Cross is prepared to pay. Funk v. Blue Cross Life Insurance Co. of Canada Dewar J. 411

94 The plaintiff first points to the “Colour of Caring” booklet which he would have received from Blue Cross or his employer prior to his enroll- ment in the plan. At page 14 of the booklet, he points to these words: Base benefits are based on 60% of monthly earnings to a maximum benefit of $4,500 per month. 95 The plaintiff then points to the Benefit Summary portion of the Policy which reads: Base Benefit: 60% of monthly earnings 96 The plaintiff then submits that strong consideration should be given to section 1.1 of the Policy which contains these words: In the event of a discrepancy between the Benefit Summary portion of this policy and the main portion of this policy, the provisions of the Benefit Summary shall govern. 97 This becomes important to the plaintiff’s submission because Earn- ings is a defined term in section 3.1(5) of the main portion of the Policy, namely: Earnings: Earnings shall mean the insured Employee’s regular Earn- ings from his employer including regularly scheduled overtime Earn- ings and bonuses but excluding sporadic bonuses, sporadic over time Earnings or dividends. Earnings with respect to insured Employees who earn all or part of their remuneration on a commission or similar basis shall mean the insured Employee’s actual Earnings in the pre- ceding two calendar years based on their T4 slips. This amount will be pro-rated if less than two years’ Earnings are available. The Earn- ings of hourly-rated, insured Employees shall be based on their regular number of hours worked per week. Insured Employees’ Earnings for benefit calculation purposes shall be determined on the basis of 4.333 weeks per month and 12 months per year. With respect to the determination of benefits, Earnings or salary shall be the lesser of (a) the above amount or (b) the Earnings last reported to the Company and used in the calculation of the premium payable. [emphasis added] 98 The Company argues that it is not necessary to even consider whether the plaintiff’s overtime was sporadic or not since Granny’s did not report overtime to Blue Cross. The only amount reported to Blue Cross, upon which the premium was based, was the plaintiff’s base salary. 99 The plaintiff argues that on the basis of section 1.1 of the Policy, there is a discrepancy between the Benefit Summary and the main portion of the Policy and therefore, the Benefit Summary prevails. That 412 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

would mean that his calculation of the disability payment should be accepted, which would factor in the plaintiff’s overtime remuneration. 100 The short answer is that there is no discrepancy. The Benefit Sum- mary uses the words “monthly earnings”. The main portion of the Policy defines the word “earnings”. The two may be read together. Where the Benefit Summary talks about “monthly earnings”, in my view it would be natural for any reader to see whether the words “monthly earnings” or “earnings” were defined anywhere in the main portion of the Policy. Al- though “monthly earnings” is not defined, the word “earnings” is, and included within that definition is a limitation which restricts the amount payable to the amount reported by Granny’s upon which Blue Cross relied to set the premiums. 101 The fact that the Colour of Caring booklet uses the term “monthly earnings” without definition is not fatal to the position of Blue Cross because there is the following phrase in that booklet: In the event of any difference between the terms in the book and those of the Group Agreement, the terms of the Group Agreement shall prevail. 102 The position advanced by Blue Cross on this issue is, in my respectful view, the correct position.

D. If yes to sub (a), did the plaintiff meet the criteria for a Basic Critical Condition payment of $50,000 based upon the definition in the Policy? 103 One of the benefits contained within the Policy was a Basic Critical Conditions benefit. Paragraph 5H.3 of the Policy reads as follows: If, while coverage is in force, the Insured Employee ... meets the definition of critical condition as defined in Policy Provision 5H.2, Cov- ered Conditions, then subject to the terms and provisions of the policy, the Company will pay the insured Employee the amount of coverage in force provided satisfactory medical proof is received within 365 days following the expiration of the Waiting Period as shown in the Benefit Summary. 104 One of the conditions defined in Policy Provision 5H.2, Covered Conditions, is defined as follows: Severe Heart Attack: A heart attack, based on symptoms and diagnostic investigations, resulting in a permanent functional classification of at least a CCSC Class IV as evidenced by: Funk v. Blue Cross Life Insurance Co. of Canada Dewar J. 413

a) a reduced ejection fraction (<40%) on echocardiogram or nu- clear study with a large or multiple wall motion defects and reduced function as evidenced by stress testing as indicated above, or b) severe left ventricular dysfunction and/or left ventricular an- eurysm, reduced ejection fraction (<40%) and left main or three vessel disease (>70% narrowing) as seen on the coro- nary angiogram. 105 When Christine Prociuk, the Blue Cross manager of case management services, gave her evidence, she indicated that the definition of Se- vere Heart Attack was a two-part definition, namely: a) Whether the plaintiff had sustained a heart attack with a permanent functional classification of at least a CCSC Class IV; and b) Whether the plaintiff exhibited the symptoms described in subparagraph (a) or (b) of the balance of the definition. 106 Ms Prociuk was asked on cross-examination for the Blue Cross position on whether the plaintiff had satisfied the requirements of subparagraph (a) and after taking a recess to consider the issue answered that he had. No further questioning then was followed up by Mr. Driedger on any of the medical reports to which Ms Prociuk had pointed earlier in her testimony. 107 The reason why no further questions were asked arises from the position taken by the plaintiff in respect of the definition. The plaintiff argues that there is no two-part test within the definition. Rather, what exists is a statement respecting a CCSC Class IV classification which is defined by the symptoms found in subparagraphs (a) or (b). If Blue Cross was prepared to acknowledge that the plaintiff fit the criteria of subparagraph (a), then it is argued that the plaintiff is deemed for the purpose of this paragraph to have qualified for a CCSC Class IV classification, notwithstanding all of the other verbiage contained in the medical reports referred to by Blue Cross which point to other criteria necessary for a CCSC Class IV classification. 108 Whether this result was intended or not by Ms Prociuk, the fact is that speaking on behalf of the company, she acknowledged that the plaintiff satisfied the requirements of subparagraph (a). A reasonable reading of the Policy is that it is not a two-step test. The words “CCSC Class IV as evidenced by:” followed by subparagraphs (a) or (b) suggests that the CCSC Class IV classification for the purpose of the Policy is defined by 414 WESTERN WEEKLY REPORTS [2016] 5 W.W.R.

either (a) or (b). I agree that with the admission that was made, it is unnecessary to wade into the numerous medical reports on the issue. 109 Accordingly, had the Policy been in effect on August 8, 2009, I conclude, based upon the way the evidence unfolded, that the plaintiff would have been entitled to receive a Basic Critical Conditions benefit. How- ever, since I have concluded that the Policy was not in effect until Au- gust 11, 2009, the plaintiff would be unable to claim such a benefit because of section 5H.6 which reads as follows: A pre-existing condition means any condition for which, during the 24 months immediately prior to the effective date of the Basic Criti- cal Conditions coverage, the insured Employee ... has been prescribed medication or has received medical treatment, consultation, care or services by a Physician, including diagnostic measures for any symptom or medical problem which leads to a diagnosis of, or treatment for, a critical condition is defined in Policy Provision 5H.2, Covered Conditions. 110 The Policy became effective on August 11, 2009. The plaintiff received treatment for his heart attack on August 8, 9 and 10, 2009. Al- though only for a matter of days, the plaintiff had a pre-existing heart condition at the time that the Policy became effective which disentitled him to claim the Basic Critical Condition benefit. Had the Policy been in effect on August 8, the plaintiff would have qualified for that benefit.

Conclusion 111 Based upon the foregoing, the answers to the four questions put to me are as follows: a) Was the plaintiff entitled to coverage under the Policy as at Au- gust 8, 2009? Answer: No. b) If yes to (a), is the plaintiff totally disabled from working any occupation? Answer: Yes. c) If yes to (a), from which level of earnings should the disability benefits be calculated? Answer: $3,012.53 per month. d) If yes to (a), did the plaintiff meet the criteria for a Basic Critical Condition payment of $50,000.00 based upon the definition in the Policy? Funk v. Blue Cross Life Insurance Co. of Canada Dewar J. 415

Answer: Yes. 112 Costs may be spoken to. Action allowed.