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SIGNIFICANT CASES

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R. v. Canadian National Railway (Wabumun Lake) (2009 ABPC Nos. 060656030P1/080152564P1)

Dr. Larry Reynolds, Lead Counsel

This regulatory enforcement prosecution was the a result of an investigation by the Department of Fisheries and Oceans Canada and Environment Canada into the spill of hydrocarbons (petroleum) into Wabamun Lake, Alberta as a result of a large freight train derailment. The spill was the largest inland petroleum spill in Canadian history. The case involved a large amount of expert evidence relating to the effects of oils spills on freshwater fish species and migratory waterfowl. A conviction resulted in the largest penalty ever awarded under the Migratory Birds Convention Act, 1994. Of particular interest, a creative sentencing component of penalty included the innovative requirement that CN undertake environmental sensitivity mapping along all of its trackage in Alberta and British Columbia exposed to natural water bodies and to incorporate that information into future spill responses.

R. v. Champion Shipping A/S, Unreported Decision, Reasons for Sentence, Provincial Court of British Columbia, Victoria, Higinbotham, PCJ., January 25, 2013

John D. Cliffe, Q.C., Crown Counsel

The case was a prosecution of the accused for violations of the Canadian Environmental Protection Act, 1999 for unlawful ocean dumping as a result of the discharge of cargo hold washings from a ship owned and operated by the accused. It was complex for a number of reasons including that the vessel was transiting away from Canada in waters of the Exclusive Economic Zone of Canada and neither the vessel nor its owners had any connection to Canada. In addition, the case involved statutory interpretation of the provisions of the Canada Shipping Act, 2001 and its Regulations and the provisions of MARPOL. The case was brought to a successful conclusion when the accused entered a guilty plea in the Provincial Court of British Columbia and was fined.

R. v. City of Dawson, (2003), 50 C.E.L.R. (N.S.) 99 & (2004), 10 C.E.L.R. (3d) 197

John D. Cliffe, Q.C., Lead Crown Counsel

This case was prosecution of the accused in the Territorial Court of Yukon for violation of section 36(3) of the Fisheries Act in relation to the unlawful deposit of untreated sewage into the Yukon River. Over a period of many years the City promised Environment Canada it would upgrade its sewage treatment processes but failed to fulfill those promises. The City was charged and pleaded guilty. A lengthy contested sentence hearing followed, after which the Court acceded to the Crown’s submission that the City be ordered pursuant to section 79.2 (b) and (i) of the Fisheries Act to construct and operate a sewage treatment plant whose effluent must meet the provisions of the Fisheries Act. For a number of years after the order was made the City and the Government of Yukon were reluctant to comply with the order. That meant various applications to the Court and follow-up Court appearances, which culminated in compliance with the order, namely the construction and operation of a modern sewage treatment. The case is a precedent for sentencing municipal governments in environmental prosecutions and for the use of section 79.2 (b) and (i) of the Fisheries Act.

R. v. Emrah Bulatci

John D. Cliffe, Q.C., Lead Crown Counsel

This case was a prosecution of the accused for the first degree murder of an RCMP officer while on duty in Hay River, Northwest Territories. It was a jury trial that involved calling approximately 50 Crown witnesses, many of whom were self-admitted drug users, drug traffickers and criminals. It came to a successful conclusion when the jury rendered a guilty verdict and the accused was sentenced to life imprisonment with 25 year’s imprisonment before eligibility for parole. A conviction appeal by the accused to the Supreme Court of Canada was dismissed.

R. v. Guilbride et al

Cheryl Tobias, Q.C., Lead Counsel

Nine accused were charged with various charges relating to a conspiracy to import and traffic approximately 12 metric tonnes of cannabis resin. The R.C.M.P. had conducted an extensive international investigation with the aid of several other agencies. The trial was lengthy and complex; the Crown called over 100 witnesses, including numerous experts and civilians as well as police witnesses. The trial judge rendered 30 interim written rulings on various Charter of Rights and procedural issues. Ultimately, all nine accused were convicted on one or more of the charges against them. The B.C. Court of Appeal upheld their convictions.

Cheryl was lead counsel for the Crown at the trial in the B.C. Provincial Court.

R. v. Kapp et a,l 2004 BCSC 95 8; 2006 BCCA 277

Cheryl Tobias, Q.C., Lead Counsel

A large number of commercial fishers engaged in illegal fishing to protest against a licence to aboriginal bands which permitted them to fish salmon for a 24 hour period at the mouth of the Fraser River and to sell their catch. These licences were issued to enhance aboriginal participation in the commercial fishery, as part of the federal government’s Aboriginal Fisheries Strategy. The protesters argued that they had suffered racial discrimination because they were not permitted to fish during that 24 hour period, so that their equality rights under s.15(1) of the Charter of Rights were infringed.

The trial judge agreed, and acquitted the commercial fishers. Chief Justice Brenner (as he then was) of the B.C. Supreme Court overturned the acquittals. The B.C. Court of Appeal and the Supreme Court of Canada also held that the commercial fishers were not entitled to be acquitted.

Cheryl was lead counsel for the Crown at the B.C. Supreme Court and B.C. Court of Appeal.

Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 56

Cheryl Tobias, Q.C., Lead Counsel

The Lax Kw’alaams, whose ancestral lands lie on the northwest coast of B.C., claimed the right to harvest all species of fish within their traditional waters for commercial sale. They also asserted that the Crown has a fiduciary duty to facilitate their ability to fish for sale flowing from promises made in the process of allocating reserves in the 1870’s and 1880’s.

Aside from the scale and importance of the commercial fishing claim, this case was also a significant legal precedent. Previous aboriginal rights cases heard by the Supreme Court of Canada generally arose as prosecutions for fishing and other regulatory offences. In this case, the Court directed how aboriginal rights claimants bringing civil actions must structure and frame their claim. The Court also refined the test for establishing aboriginal rights (that it originally set out in Van der Peet) in commercial fishing cases.

Cheryl was lead counsel for Canada in the Supreme Court of Canada.

R. v. Lefebvre, (1991) 1 W.W.R. 336 (Alta. Q.B.); (1993) 3 W.W.R. 436 (Alta. C.A.)

Dr. Larry Reynolds, Co-Counsel

This was a trial and series of appeals on behalf of the Attorney General of Alberta, Department of Constitutional and Energy Law, with respect to the constitutionality of Alberta legislation which did not comply with bilingual legislative requirements found in s. 110 of the Northwest Territories Act (R.S.C. 1886, c.50, as amended by S.C. 1891, c. 22, s. 18). The Court of Queen’s Bench of Alberta found that section 110 was not entrenched and was repealed by the Languages Act (S.A. 1988, c. L-7.5) and therefore Alberta legislation is validly enacted. However, the Court also issued a declaratory order that the Languages Act should be amended to provide Albertans with the right to plead their case and make written submissions in the French language and to file documents in the Court of Queen’s Bench in the French language. Following an appeal and cross-appeal the Alberta Court of Appeal found that section 110 of the North West Territories Act is not a “constitutional law” in the sense that it cannot be amended by the legislative body to which it applies. It was enacted by the Federal Parliament and could be amended by it because nothing in the Constitution Act, 1867 deprived it of the power to do so. The Court of Appeal also vacated the declaratory order that the Languages Act should be amended to provide Albertans with the right to plead their case and make written submissions in the French language and to file documents in the Court of Queen’s Bench of Alberta in the French language.

McVey v. United States of America, (1992) 3 S.C.R. 475

Cheryl Tobias, Q.C., Junior Counsel

McVey is one of the leading cases in the law of extradition. The Supreme Court of Canada established that when a foreign state seeks to extradite someone from Canada to stand trial, it must determine that the person’s conduct must also be a crime in Canada, but it doesn’t matter if the Canadian crime has a different name to the one used by the foreign state.

The facts of the McVey case are fascinating. McVey was charged with conspiracy to export hightechnology equipment to the U.S.S.R. and with having made false statements to the U.S. Department of Commerce and the U.S. Customs Service to effect such export (File No. 21331). He was also indicted for knowingly and intentionally devising and participating in a scheme to defraud a computer corporation of its right to the exclusive use of its property regarding the design and operation of one of its computers (File No. 21751).

Cheryl was involved in this case from the beginning, shortly after McVey was arrested by Cst. Dan Fudge of the RCMP in Teslin, YT, in 1987 while on a fishing trip. As junior counsel to P. W. Halprin, she assisted in the arguments at several habeas corpus applications and led much of the evidence at the lengthy extradition hearings before the B.C. Supreme Court. She also was involved in the arguments before the BC Court of Appeal. Her appearance before the Supreme Court of Canada as junior counsel to S.David Frankel Q.C. (now S.David Frankel J.A. of the B.C. Court of Appeal) was her first in that court.

R. v. Mentuck, 2001 SCC 76; R. v. O.N.E. 2001 SCC 77

Cheryl Tobias, Q.C., Lead Counsel

Mentuck was charged with second degree murder. The police had obtained crucial evidence by an undercover operation in which Mentuck was invited to join a fictitious criminal organization and, as part of his involvement with that organization was encouraged to be honest about his involvement in the murder. O.N.E., a juvenile, was also charged with second degree murder, and targeted by a similar undercover operation.

The issue before the Supreme Court of Canada was whether a ban on publication of the identities of the undercover officers and the techniques used in the undercover operation was justified under the Charter of Rights. At stake were the effect of the ban on the efficacy of police operations, the right of the public to freedom of expression, and the right of the accused to a public trial. The Court set out the test for establishing when a publication in the interests of the administration of justice would be justified.

Cheryl was lead counsel for the Attorney General of Canada in both cases at the Supreme Court of Canada.

Missing Women Inquiry

Cheryl Tobias, Q.C., Lead Counsel

The Missing Women Inquiry, conducted by Commissioner Wally Oppal, Q.C., was established by the B.C. Government in September, 2010, to inquire into the investigations between January, 1997 and February, 2002 into the disappearances of a large number of women from the Downtown Eastside. Commissioner Oppal was also required to examine the decision to stay charges against Robert Pickton in relation to an alleged attack in 1997 on a woman from the Downtown Eastside, and to recommend changes to the conduct of missing women investigations and multiple homicide investigations and to homicide investigations conducted by more than one police agency.

The Inquiry attracted much public controversy. Ninety-three days of hearings took place between October, 2011, and June, 2012. Eighty-six witnesses testified, including numerous police officers, members of the victims’ families, professionals and others active in the Downtown Eastside and various experts. An enormous body of information was provided to assist the Commission, including well over 100,000 documents provided by the Canadian Government.

Cheryl led the legal team that represented the Canadian Government (the principal Canadian agency involved was the R.C.M.P.).

R. v. Northwest Territories Power Corporation, 2011 NWTTC 03

John D. Cliffe, Q.C., Crown Counsel

This complex case was as a prosecution of the accused in the Territorial Court of the Northwest Territories for violation of section 36(3) of the Fisheries Act in relation to an unlawful deposit of sediment as a result of a breach of a water reservoir owned and operated by the accused. The accused pleaded guilty after lengthy plea negotiations. A lengthy contested sentencing hearing lasting several days ensued at issue at which was the extent of the environmental damage caused by the offence and the penalty that should be imposed. In a detailed decision the Court reviewed the relevant legal principles of sentencing in environmental cases and imposed a significant penalty.

Nunavut Surface Rights Tribunal

Dr. Larry Reynolds, In-House Counsel

The Nunavut Surface Rights Tribunal is a co-management body pursuant to the Nunavut Land Claims Agreement. The jurisdiction of the Tribunal includes Applications for Access to both Inuit-owned and Non-Inuit owned land as well as claims for compensation associated with loss of harvesting opportunities associated with access to land in the Nunavut Territory. Establishment of the Tribunal included negotiations with the Government of Canada (Department of Indian Affairs and Northern Development (DIAND) and Nunavut Tunngavik Inc. (NTI)) of the terms of the Nunavut Water and Surface Rights Tribunal Act in the context of the Nunavut Land Claims Agreement, the development of the Tribunal’s By-Laws and Rules of Process and Procedure, the training of Tribunal Members in the conduct of hearings and day-to-day business of the Tribunal. The Tribunal business is conducted in a cross-cultural setting in a variety of Nunavut communities with full translation/interpretation to accommodate English, French and Inuktitut speaking members of the public and Tribunal.

R. v. Paquette, (1990) 2 S.C.R. 1103 (S.C.C.)

Dr. Larry Reynolds, Co-Counsel

This was a trial and series of appeals by the Attorney General of Alberta, Department of Constitutional and Energy Law, which culminated in an appeal to the Supreme Court of Canada pertaining to the language of proceedings in Alberta courts. The Supreme Court of Canada held that section 110 of the Northwest Territories Act (R.S.C. 1886, c. 50, as amended by S.C. 1891, c. 22, s. 18) is in force in Alberta in relation to proceedings commenced under federal legislation which are criminal in nature or which involve penal consequences. However, section 110 in the context of a criminal proceeding does not require that the courts understand an accused in his official language without the assistance of an interpreter or simultaneous translation, and further does not require that the courts and Crown attorneys use the accused’s official language at all stages in a criminal prosecution.

R. v. Scott Pederson & Vincente Hernandez, Unreported Decision, Reasons for Sentence, Supreme Court of British Columbia, Victoria, Power, J., July 27, 2011

John D. Cliffe Q.C., Lead Crown Counsel

This case was a prosecution of both accused in the Supreme Court of British Columbia for possession of 1,000 kg of cocaine worth between $26-$70 million for the purpose of trafficking which arose as a result of the accused sailing a vessel carrying the cocaine from Panama to Port Hardy on Vancouver Island. It was a complex 2 ½-month-long jury trial that involved the calling of approximately 30 Crown witnesses. In addition, a number of pre-trial motions by the accused had to be argued. A guilty verdict was rendered by the jury against both accused and for which the accused each received a sentence of 16 years’ imprisonment. A forfeiture order of the sail boat and its contents was also made.

R. v. Peterson, (2013 BC Prov. Ct. No. 35577)

Dr. Larry Reynolds, Lead Counsel

This regulatory enforcement prosecution was made on behalf of the Department of Fisheries and Oceans Canada relating to the disturbance and harassment of Northern Resident Killer Whales in the Strait of Georgia, British Columbia. The case resulted in the first conviction in Canada involving a marine mammal under the Species at Risk Act. The case also established a penalty precedent for the protection of Killer Whales in Canada.

Qikiqtani Inuit Association v. Attorney General of Canada (Minister of Indian Affairs and Northern Development and Nanisivik Mines Ltd.), (1998) F.C.J. No. 1417 (F.C.T.D.).

Dr. Larry Reynolds, Lead Counsel

The Qikiqtani Inuit Association (QIA) represents Inuit beneficiaries of the Nunavut Land Claims Agreement residing in the Baffin region of Nunavut. In response to a decision by the Nunavut Water Board issuing a water licence to Nanisivik Mines Limited for its lead zinc mine in the Nanisivik/Arctic Bay region of Nunavut, QIA made an application in the Federal Court of Canada for judicial review of the Board’s decision. The case, which was the first judicial review to be held by the Federal Court in the Nunavut Territory, involved consideration of the jurisdiction of the Nunavut Water Board with respect to the regulation of tailings deposits and domestic sewage deposited into nearby watercourses. The case was of particular significance for its interpretation of the Nunavut Land Claims Agreement with respect to process and procedures to be employed by administrative tribunals in Nunavut, giving due regard to Inuit culture, customs and knowledge.

R. v. Sharpe, 2001 SCC 2

Cheryl Tobias, Q.C., Lead Counsel

The question before the Supreme Court of Canada was whether limitation of freedom of expression by the prohibition in s. 163.1 of the Criminal Code of possession of child pornography could be justified under s.1 of the Charter of Rights. The Court ruled that it could in some situations, and read into the law an exclusion of the two problematic applications of s.163.1. The Court’s decision was also precedential in relation to various aspects of the analysis of justification of infringements of Charter rights. The case attracted a great deal of media attention.

Cheryl was lead counsel for the Attorney General of Canada in the Supreme Court of Canada.

R. v. Syncrude Canada Ltd. 2010 ABPC 229

Dr. Larry Reynolds, Oversight Counsel

This case was a prosecution on behalf of Environment Canada (Canadian Wildlife Service) relating to the death of approximately 1600 migratory waterfowl in an oilsands tailings pond near Ft. McMurray, Alberta. This case is significant for its voluminous expert scientific evidence relating to migratory birds, including the effects of chemicals upon avian health and methods for discouraging bird landings in toxic areas. A lengthy (9 week) trial received media attention across the globe and resulted in convictions entered against Syncrude Canada Ltd. under s. 5.1 of the Migratory Birds Convention Act (S.C. 1994, c. 22). The petroleum giant was sentenced to a multi-million dollar penalty.

R. v. Eli Ulayuk, 2006 NWTSC 10

John D. Cliffe, Lead Crown Counsel

This high profile case was a prosecution of the accused for first degree murder of a parole officer while she was working in Yellowknife, Northwest Territories. It involved the calling of approximately 25 Crown witnesses in the course of a Preliminary Inquiry in the Territorial Court of the Northwest Territories during which the Crown called the same evidence as if the Preliminary Inquiry was a trial. The case was brought to a successful conclusion after detailed plea discussions and consultation with members of the victim’s family with the accused entering a guilty plea in the Supreme Court of the Northwest Territories to a charge of second degree murder with a joint sentence submission by counsel, which was accepted by the Court, for which the accused received a sentence of life imprisonment with 25 years’ imprisonment before eligibility for parole, which sentence would have been the same as if the accused was convicted of first degree murder.

R. v. Van der Peet, (1996) 2 S.C.R. 507; R. v. NTC Smokehouse, (1996) 2 S.C.R. 672; R. v. Gladstone, (1996) 2 S.C.R. 723

Cheryl Tobias, Q.C., Junior Counsel

These are landmark aboriginal law cases. Ms. Van der Peet had been charged with selling salmon caught under the authority of an Indian food fish licence; her defence was that she had an aboriginal right to sell fish. The Court of Canada heard her appeal from her conviction together with NTC Smokehouse and Gladstone, also cases in which the accused relied on aboriginal rights to sell fish. In these cases, the Supreme Court of Canada first set out the test to establish the existence of an aboriginal right that is protected by s.35 of the Constitution Act, 1982.

Cheryl had her first speaking role in the Supreme Court of Canada in these cases, as junior counsel to S. David Frankel, Q.C. (now S. David Frankel J.A. of the BC Court of Appeal).

R. v. Western Stevedoring Ltd., Unreported Decision, Reasons for Sentence, Provincial Court of British Columbia, North Vancouver, Rodgers, PCJ., January 30, 2012

John D. Cliffe, Q.C., Lead Crown Counsel

This case was a prosecution of the accused for violation of the Canada Labour Code as a result of a workplace fatality. It involved detailed plea discussions and consultation with members of the victim’s family and resulted in a successful conclusion when the accused entered a guilty plea in the Provincial Court of British Columbia. The case is a precedent for the application of the corporate probation provisions contained in s. 732.1(3.1) of the Criminal Code.

World Wildlife Fund v. Government of Canada (Department of Indian and Northern Affairs) and Broken Hills Propriety (BHP) (1996 FCTD)

Dr. Larry Reynolds, Lead Counsel

Diamond exploration in the Northwest Territories resulted in applications for approval of a number of diamond mine operations in the Territory. The first of these involved an application by Broken Hills Propriety (BHP) for approval by the Federal Government (Minister of Environment and Minister of Indian and Northern Affairs) for a series of diamond mines operated by BHP in the Lac des Gras region located northeast of Yellowknife. Following lengthy hearings across the Territory, the World Wildlife Fund (Canada) brought an application in the Federal Court of Canada for judicial review of recommendations of a Federal Environmental Assessment and Review Office (FEARO) (now CEAA) Review Panel regarding the application. Significant environmental issues included the de-watering of 12 lakes, impacts upon northern ecology and socio-economic effects on aboriginal communities in the region (Treaty 8 Dene, Treaty 11 Dogrib, Dene Nation and the Inuit of the Nunavut Settlement Area). The judicial review application was settled out of court, and resulted in the creation of an independent monitoring agency, revisions to policies of the Canadian Environmental Assessment Agency with respect to the consideration of “cumulative effects” in environmental assessments in northern Canada, and ‘clarification’ of the Government’s commitment to specified protected areas in the Territory.

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