Case Mail v. 18 no. 13 The Law Society of Saskatchewan Library's online newsletter highlighting recent case digests from all levels of Saskatchewan Court. Published on the 1st and 15th of every month. Volume 18, No. 13 July 1, 2016 Subject Index Arbitration – Appeal – R. v. Peyachew, 2016 SKCA 21 Leave to Appeal Ottenbreit Caldwell Ryan-Froslie, February 16, 2016 (CA16021) Civil Procedure – Affidavits – Cross Examination Criminal Law – Robbery with Violence – Sentencing Civil Procedure – Appeal Criminal Law – Unlawful Confinement – Sentencing Civil Procedure – Costs The appellant pled guilty to unlawful confinement, contrary to s. 279(2) Civil Procedure – Limitation of the Criminal Code, and robbery with violence, contrary to s. 344(1)(b) Period – Discoverability of the Code. He appealed his sentence of five years imprisonment less Principle 151 days credit for time served in remand on the grounds that the Criminal Law – Approved sentence was excessive. The sentencing judge had erred: 1) in Screening Device – determining the gravity of the offences; 2) in failing to give adequate Forthwith consideration to the appellant’s Aboriginal heritage; and 3) in failing to Criminal Law – Child take into account the appellant’s mental health. The appellant had Pornography – Accessing grabbed the assistant manager by the throat and forced her, nine other Criminal Law – Judicial bank employees and a customer into an office. The appellant revealed Interim Release Pending to the hostages that the only weapon that he had was his fists. He Appeal forced an employee to give him $1,700 from a till. As the appellant left Criminal Law – Long-term the bank, he saw RCMP officers waiting outside. He grabbed the Offender – Sentencing manager, put her in a chokehold and used her body to shield him from Criminal Law – Motor the police, and then pushed her to the ground when the officers entered Vehicle Offences – Driving the bank. In a warned statement, the appellant advised that he had with Blood Alcohol Exceeding .08 smoked marijuana before the robbery and had robbed the bank so that he could pay some outstanding fines. The appellant, a 32-year-old Criminal Law – Motor Vehicle Offences – Aboriginal man from the Red Pheasant First Nation, had a criminal Impaired Driving – Care record of 15 convictions for minor property offences. He claimed that and Control – Conviction – he had not been affected by racism or poverty, but he acknowledged Appeal the difficulty his mother had in supporting her six children after her file:///lsssbs/kchiu/webLS/CaseMail/CM%2018-13.htm[28/06/2016 10:40:20 AM] Case Mail v. 18 no. 13 Criminal Law – Motor husband committed suicide. The appellant suffered from mental illness Vehicle Offences – apparently caused by his use of marijuana. The pre-sentence report Impaired Driving – Refusal to Provide Breath Sample indicated that the appellant had shown no insight into his offending behaviour and rated him as a high risk to re-offend but noted he would Criminal Law – Peace Bond profit from programming available in a penitentiary. The psychological Criminal Law – Robbery profile of the appellant showed that he was cognitively impaired and with Violence – Sentencing this condition was exacerbated by substance abuse. The psychologist’s Criminal Law – Sentencing opinion was that if the appellant did suffer from hallucinations, they – Aboriginal Offender were likely tied to his substance abuse. The psychiatrist’s report Criminal Law – Sentencing confirmed the psychologist’s and found no evidence of psychosis or – Assault formal thought disorder. Criminal Law – Young HELD: The appeal was dismissed. With respect to the grounds of the Offender – Sentencing appeal, the court found that the sentencing judge had not erred in: 1) Family Law – Child Support his assessment of the gravity of the offences. The judge found as – Adult Student aggravating factors that the appellant had planned the offences to some degree and that the unlawful confinement offences had had a Family Law – Child Support – Variation significant negative psychological impact on the bank employees and customers. Further, the appellant physically assaulted two women in Landlord and Tenant – Appeal – Residential the course of the robbery; 2) the way in which he considered the Gladue Tenancies Act – Security factors as mitigating in crafting the sentence. The pre-sentence, Deposit psychological and psychiatric reports gave no indication that the Landlord and Tenant – appellant’s moral dysfunction was tied to his Aboriginal background; Farm Lease – Crop Share and 3) finding that the appellant was fully responsible for his actions or Agreement that his ability to appreciate or understand his actions was in any way Municipal Law – Appeal – compromised by his use of marijuana. Property Taxes – Assessment © The Law Society of Saskatchewan Libraries Back to top Municipal Law – Tax Assessment – Leave to Appeal Statutes – Interpretation – Beer v. Saskatchewan (Ministry of Highways and Infrastructure), 2016 Builders’ Lien Act, Section 56(4) SKCA 24 Statutes – Interpretation – Richards Jackson Ryan-Froslie, February 22, 2016 (CA16024) Coroner’s Act, 1999, Section 37 Civil Procedure – Appeal Wills and Estates – Estate Landlord and Tenant – Appeal – Court of Appeal Act, Section 7(3), Administration – Section 20(3) Accounting Landlord and Tenant – Appeal – Landlord and Tenant Act, Section 55 Wills and Estates – Proof of Will in Solemn Form The appellants appealed a decision of the Court of Queen’s Bench pursuant to s. 55 of The Landlord and Tenant Act (LTA). The appeal Cases by Name was dismissed by the Court of Appeal. The appellants then filed a notice of appeal seeking the chambers decision be reviewed by a panel 622705 Saskatchewan Ltd. v. Smuda of three judges. The appellants relied on s. 55 of the LTA and s. 20(3) of The Court of Appeal Act, 2000 (CAA). Bachman v. Sheidt HELD: The appeal was dismissed. The court had no jurisdiction to Beer v. Saskatchewan conduct the review sought. Section 55 of the LTA provides for appeals (Ministry of Highways and to a judge in chambers but not then to a panel of judges. Also, s. 20(3) of Infrastructure) file:///lsssbs/kchiu/webLS/CaseMail/CM%2018-13.htm[28/06/2016 10:40:20 AM] Case Mail v. 18 no. 13 the CAA only provides for appeals incidental to an appeal or a matter Canadian Association of pending in the court, it does not create a free-standing right of appeal. Elizabeth Fry Societies v. Chief Coroner (Office of) Further, the court determined that s. 7(3) of the CAA limits the applicability of s. 20(3) because the right of an appeal is established in s. Capitol Steel Corp. v. 55 of the LTA. Graham Construction and Engineering © The Law Society of Saskatchewan Libraries Back to top Crombie Property Holdings Ltd. v. Saskatoon (City) Drouin v. Jones Dundee Realty R. v. Atchison, 2016 SKCA 27 Management Corp. v. Saskatoon (City) Jackson, February 24, 2016 (CA16027) Gelsinger v. Gelsinger Criminal Law – Judicial Interim Release Pending Appeal Harvard Property Criminal Law – Sexual Offences – Inviting Touching – Person Under 14 Management Inc. v. Criminal Law – Sexual Offences – Touching – Person Under 14 Saskatoon (City) Lohse v. Lake Alma (Rural The accused sought an order that he be released from custody pending Municipality No. 8) the resolution of his appeal pursuant to s. 679 of the Criminal Code. The P.J.D. Holdings (1989) Ltd. accused was convicted of two charges of touching the same person v. Kasa Construction Ltd. under the age of 14, contrary to s. 151 of the Criminal Code, and with R. v. Atchison inviting the same person to touch his body for a sexual purpose, contrary to s. 152 of the Criminal Code. He was sentenced to five years R. v. Bannerman incarceration and filed a notice of appeal and his application for judicial R. v. Hain release on the day of sentencing. The accused had no prior criminal record and was employed as an aircraft maintenance engineer and as a R. v. Hudec pilot. The accused did not breach his conditions on judicial interim R. v. MacKinnon release or between conviction and sentence. The accused filed an R. v. Macnab undertaking with his affidavit indicating that he had moved out of the family home to a different city where he would remain until the appeal R. v. Obey was heard. He did not have any contact with the complainant and he R. v. Peyachew surrendered his passport. The accused argued that his detention was R. v. Pratchett not necessary in the public interest. The charges were dated and he, therefore, argued that there was no compelling reason requiring him to R. v. R. (C.F.) start serving such a significant sentence before the reasons for the R. v. S. (D.J.H.) judgment were tested. R. v. Tornberg HELD: The court ordered the accused’s release after finding he established the requirements of s. 679(3): 1) the Crown conceded that Reiter v. Powell the appeal was not frivolous; 2) the Crown also conceded that the accused would surrender himself into custody as required; and 3) Rutledge v. Ahenakew crimes like those the accused was convicted of committing raise special Tagseth v. Tagseth public interest concerns. The court considered the factors in the Tochor v. Rudensky accused’s favour: his good behaviour while on release and on strict conditions; his lack of record; no concerns regarding the accused being Toth v. Konanz Estate a present danger to the public or that he would not present himself as Disclaimer required; the dated nature of the charges; the terms the accused All submissions to suggested he abide by; and the strength of the grounds of appeal. The Saskatchewan courts must conform to the Citation court concluded, after balancing and weighing all of the relevant Guide for the file:///lsssbs/kchiu/webLS/CaseMail/CM%2018-13.htm[28/06/2016 10:40:20 AM] Case Mail v.