John D. Cliffe, K.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.

John D. Cliffe, K.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.

John D. Cliffe, K.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.

Cheryl Tobias, K.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.

Cheryl Tobias, K.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.

Cheryl Tobias, K.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.

Cheryl Tobias, K.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.

Cheryl Tobias, K.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.

Cheryl Tobias, K.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.).

John D. Cliffe, K.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.

John D. Cliffe K.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.

Cheryl Tobias, K.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.

John D. Cliffe, K.C., 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.

Cheryl Tobias, K.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).

John D. Cliffe, K.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.