Her Majesty the Queen - v. -, 2016 SKPC 103

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 103 Date: August 29, 2016 Information: 24456739 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kevin Richard McGill Appearing: M. Kujawa For the Crown R. Piché For the Accused JUDGMENT M.M. BANIAK , J [ 1 ] The accused, Kevin McGill, is charged as follows: 1) while his ability to operate a motor vehicle was impaired by alcohol, have the care or control of a motor vehicle, contrary to Section 253(1) (

a) and section 255(1) of the Criminal Code ; 2) having consumed alcohol in such quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did have care or control of a motor vehicle, contrary to s. 253(1) (

b) and s. 255(1) of the Criminal Code ; and

3) being at large on his recognizance entered into before a Justice or a Judge and being bound to comply with a condition of that recognizance, to wit: not possess or consume alcohol and not enter or be in any place in which the main purpose is the sale of alcohol, without lawful excuse failed to comply with that condition by having consumed alcohol, contrary to s. 145(3) of the Criminal Code . Evidence [ 2 ] The Crown’s first witness was Constable Gary Pepin, a seven year member of the RCMP.

On August 24, 2014, he was patrolling the community of Langham, SK. [ 3 ] On his way out of town he noticed a vehicle parked on a service road. After completing his patrol detail in the community, and while returning to the town of Langham, he noticed that the vehicle which he previously noticed as being parked on the service road was still there. It had its lights on. [ 4 ] According to Constable Pepin, “it hadn’t moved in approximately half an hour, so I pulled behind to make a vehicle stop.” (p. T-5) [ 5 ] The vehicle was running and the lights were on.

The driver was in the driver’s seat and sleeping: I just noticed he was sleeping so I made attempts to rouse him. I banged on the window, knocked on the window, and then I took my flashlight and used the metal part of my flashlight as well to bang on the window and I couldn’t rouse him. (p. T-6) [ 6 ] During the course of trying to arouse the accused, Constable Pepin noticed what appeared to be marihuana in the backseat. This caused him some concern and he decided to call for back up. He called Constable McMann, who at the time was in the community of Martensville.

He arrived approximately 15 minutes later, at 2:00 a.m. [ 7 ] The two constables again attempted to awaken the accused. They shook and rocked the car and continued to yell at him to wake up: So then the accused began to arouse, show some movement. He appeared very confused. Constable McMann hollered in the window. That seemed to be more effective. It almost looked like he wanted to go back to sleep. Kept hollering at him, asking him to - that it was the police, asking him to unlock the door.

So he reached for - the music was playing in the vehicle this - this entire time and he reached to unlock the door by adjusting the knobs on the stereo. That didn’t work and then finally he realized what he was doing and then he hit the door unlock button. (p. T-9) [ 8 ] Constable Pepin testified that once the door to the vehicle was opened there was a strong odour of beverage alcohol coming from the vehicle and also from the accused’s breath once he started speaking with him. He further observed that the accused had glassy eyes and was slurring his words.

When asked if there were other indicia of impairment, Constable Pepin offered the following: Okay.

So the grounds were the time of night, the vehicle parked on a - on a service road, running, headlights on, the individual passed out in the vehicle, very difficult to rouse, not responding to loud, audible banging on the window, metal to glass, slow movements, reaching - fumbling for the stereo controls when we asked him to unlock the vehicle, odd behaviour in the way in which he backed into me on a couple of occasions there with his hands behind his back, imagining - I - in his own mind, I can only assume, but imagining that he was under arrest and I - and then - yeah just slow deliberate walking as we went back to the police vehicle. (p.

T-11) [ 9 ] According to Constable Pepin, the accused was arrested at 2:20 a.m. Charter rights and warning were read off the standard issue RCMP card and were given at 2:29 hours. They left the roadside at 2:58 hours, and the breath demand was made - again off a standard issue RCMP card at 3:02 hours.

[ 10 ] During the voir dire , Constable Pepin testified that he read the rights to counsel to the accused at 2:29 a.m. The demand for a breath sample was not made until 3:02 a.m. When asked by defence why it would take forty-two minutes to read the breath demand, Constable Pepin answered: I simply forgot to do it when I was - when I arrested him. (p.

T-21) He acknowledged that this in effect meant that at the time the accused stated that he did not wish to call a lawyer he had not yet been read a breath demand. [ 11 ] Constable Pepin testified that during the drive to Martensville detachment with the accused “. . . he did say to me that he had driven from the Langham bar and I took note of that and - and he said something to the effect that, “you - you know I was driving”, and then he caught himself and stopped that part of the conversation.” (p.

T-16) [ 12 ] During cross-examination of Constable Pepin on the voir dire , defence suggested that during the discussion or conversation at the detachment the accused denied driving that evening: Q This whole issue of how he drove - or that he drove that evening, that came up in your discussions back at the detachment as well, correct? A I believe so, but, yes. [ 13 ] Before defence counsel could develop this line of questioning further, Crown objected on the basis that an exculpatory statement can only be used by the Crown and not the defence.

The Crown relied on R v Simpson [1] for support of its position. [ 14 ] Defence argued that where there are both, exculpatory and inculpatory, statements then, based on the fairness doctrine, both should be admissible. Defence made reference to the Supreme Court’s decision in R v Rojas [2] as being on point. There were also debates between counsel whether what the accused may have said amounted to a statement or a spontaneous utterance and whether that affects admissibility.

I will address this point later. [ 15 ] Constable Pepi, at his own behest, advised the Court that his General Report was prepared some four to five weeks after the event, and not, as he previously testified, two days after the incident occurrence. [3] [ 16 ] Constable Pepin was asked if the accused was given another opportunity to call a lawyer once they arrived at the detachment. He answered that the accused was given an opportunity to call a lawyer, but that he declined to do so. [ 17 ] Defence did not call any evidence on the voir dire . [ 18 ] Time of arrival at Martensville was 3:23 a.m.

The observation period commenced at 3:31 a.m. The first sample was provided at 3:57 hours. The second sample was provided at 4:20 a.m. Both readings exceeded the legal limit. [ 19 ] A Certificate of a Qualified Technician was prepared and a true copy served on the accused at 5:45 a.m. [ 20 ] During cross-examination Constable Pepin stated that he did not attempt to move the vehicle therefore he was unable to say if it was operable or not. [ 21 ] He also was unable to say why the General Report took so long to prepare, or why the first observation period lasted 26 minutes rather than the customary 15 minutes.

[ 22 ] Defence had one witness, Dionne Masuskapoe. He testified that he is a 47 year old sheet metal worker, who, on the evening of August 24, 2014 was visiting his friend Leonard Henry who lived “just off 33 rd Street in Saskatoon”. [ 23 ] Mr. Henry asked Mr. Masuskapoe to go to Langham to pick up the accused, whom Mr. Masuskapoe knew casually, having met him through Mr. Henry. He left between 9:00 and 10:00 o’clock (it was already dark). Mr. Masuskapoe found the accused in the Langham pub - he was sitting by himself. [ 24 ] They immediately left the pub. Mr.

Masuskapoe got behind the wheel while the accused got into the backseat and laid down. Shortly after leaving the pub, the car Mr. Masuskapoe was driving started acting up. The motor was running but the car would not move. He was stranded on the service road within the town limits. According to him: I had no choice but to walk to town. Kevin was in the backseat. I put heat on, locked the door; car was running, it was a cold evening. I told him I was going to go. He just mumbled. [ 25 ] During cross-examination, Mr.

Masuskapoe was asked a few questions regarding his recollection of the weather on the day in question, as well as the weather on more recent dates. I quote: Q What was the weather like on May 1, 2016? A Nice, about - 12 Q On May 15, 2016? A Can’t recall Q On June 1, 2016? A Sunny, warm Q June 13, 2016? A Warm Q June 16, 2016? A Stormy Q April 30, 2016? A Cold [ 26 ] With respect to his interaction with the accused Mr. Masuskapoe testified that the accused was “drunk and crashing”. When he left the car to hitchhike back to Saskatoon the accused was passed out in the backseat. The car wasn’t moving. Mr.

Masuskapoe, for his part, was sober. [ 27 ] When it was suggested to Mr. Masuskapoe that the owner of the car - a certain Desiree Napope - drove the car out of the compound, he answered that he was not aware of that. Position of the Parties [ 28 ] Defence argued that the accused could not be in care and control of an inoperable vehicle. Dionne Masuskapoe’s evidence was that the vehicle was inoperable. Defence further argued that Masuskapoe’s evidence was “completely credible”. [ 29 ] Further, defence posed the question of whether the presumption remains notwithstanding the fact that the vehicle was

inoperable, and answered by stating that even though typically the presumption is rebutted by the accused’s testimony, it could also be rebutted by circumstantial evidence. [ 30 ] Here, the absence of any evidence of the accused driving, coupled with the defence evidence presented, is sufficient to rebut the presumption on a balance of probabilities. [ 31 ] Defence also pointed to the unaccounted for delays: 54 minutes from time of arrest for demand as well as the 26 minutes which elapsed during the first observation period rather than the customary 15 minutes, and argued that if the delay cannot be explained then the Crown cannot rely on the presumption. [ 32 ] With respect to the count of impaired, defence submits that there is no evidence of driving or that the accused was impaired.

His manner of talking and walking was not indicative or even suggestive of being impaired. [ 33 ] Count #3 was admitted as having been proven. [ 34 ] Crown argued that the accused was impaired. When the police found him he was passed out. This was confirmed by the testimony of his friend. When he was finally aroused he was confused and smelled of alcohol. His motor skills were poor - he walked slowly and deliberately. [ 35 ] With respect to the operability of the vehicle, the Crown argued that the accused did not testify, and the evidence of Mr. Masuskapoe should be rejected in its entirety. Rejection of Mr.

Masuskapoe’s testimony, coupled with the accused’s admission of driving and being found passed out behind the wheel of a running vehicle proves beyond a reasonable doubt the care and control charge. Analysis [ 36 ] Section 253(1)(

a) reads as follows: Everyone commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (

a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug . . . [ 37 ] Section 258(1)(

a) reads as follows: Where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or railway equipment, the accused shall be deemed to have the care or control of the vehicle, vessel, aircraft or railway equipment as the case may be, unless the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment as the case may be. [ 38 ] At the outset, I wish to deal with two matters that are important to my analysis. [ 39 ] Firstly, the testimony of Dionne Masuskapoe.

I found his testimony to be problematic. I believe he tried to be of help to the accused and tailored his testimony accordingly.

[ 40 ] His evidence with respect to recollection of the weather or various dates was pedestrian and haphazard. There was absolutely no foundation for it. He did not even attempt to reflect or think before answering. He said what popped into his head. [ 41 ] His testimony as to what he decided to do once the car stopped moving is also very suspect. He stated that he had no choice but to hitchhike to Saskatoon. No evidence that he tried to call his friend Leonard and tell him that the car broke down. No evidence that he tried to call the police or a tow truck.

The decision to hitchhike to Saskatoon in the middle of the night makes no sense - he was within Langham town limits. [ 42 ] Moreover, why would he leave a very intoxicated person in the vehicle, turn the heat full blast (he said it was cold) in August, with the engine running and the lights on and parked on a service road, without alerting someone of the presence of the vehicle and the accused in it? [ 43 ] He testified that he went to Langham after the accused called around 9 o’clock. Right after arriving at the Langham pub he picked up the accused and they proceeded to go back to Saskatoon.

When the car failed he hitchhiked back to Saskatoon arriving in the city around 12:00 or 12:30. [ 44 ] Constables Pepin and Mann finally succeeded in arousing the accused around 2:00 a.m. This means that the car would have been running for three to four hours with the lights on and the heat going full blast. [ 45 ] Considering all of Mr. Masuskapoe’s testimony, and analysing it contextually, the only conclusion I can arrive at is that it is not credible.

I do not accept it. [ 46 ] The other matter I want to address is the so called statement or spontaneous utterance made by the accused to Constable Paquin in the police cruiser admitting driving, and later at the detachment denying driving. I do not make the distinction that one was an utterance and the other a statement.

The nature of the words and the context in which they were spoken - the absence of any formal questioning by the police officer - makes it impossible to make a distinction. [ 47 ] Secondly, as already stated above, the Crown took the position that only the inculpatory words should be admitted but not the exculpatory, while defence argued that both should be admitted. [ 48 ] The Crown relied on the Supreme Court decision in R v Simpson [4] to support its position, while defence relied on R v Rojas . [5] [ 49 ] In Simpson , the Court dealt with the issue of an out of court statement to a person in authority, which statement was exculpatory.

This, the Court held, should not be admitted s it would have the effect of putting the accused’s defence before a jury without being put on oath and being subject to cross-examination. [ 50 ] In the Rojas case the Supreme Court held that a “mixed statement”, in other words a statement by the accused which contains both inculpatory and exculpatory elements, and whether such a statement should be put to the jury, “may vary considerably from case to case, depending on the precise content of the instruction and its context”. [ 51 ] The Court went on to state: The second ground of appeal raises the question whether, when faced with statements by an accused containing both inculpatory and exculpatory elements, a trial judge may, or should, instruct a jury that the incriminating parts are likely to be true “Otherwise why say them?”, whereas excuses for one’s behaviour do not necessarily carry the same weight.

This ‘mixed statement’ instruction originates

from the decision of the English Court of Appeal in R v Duncan (1981) 73 Cr. App. R. 359, and, for this reason, is often referred to as“the Duncan instruction”. As I will explain, I conclude that it is dangerous to instruct a jury in the manner which suggests thatinculpatory statements should be given more weight than exculpatory statements and consequently, that it is best to avoid instructing thejury in this manner. (para 4) [52] Implicit in Rojas and Duncan is that both the exculpatory as well as the inculpatory parts of the out of court statement shouldbe put before the jury.

Where they diverge is that Duncan held that it was appropriate for the trial judge to instruct the jury that theincriminating parts of the statement are likely to be true whereas the exculpatory parts do not have the same weight; Rojas was in effectdeparting from that position - it held that it would be dangerous to instruct a jury to give more weight to inculpatory statements than toexculpatory ones. [53] The Court went on to state the rationale for the ratio in the Simpson case (para 35): Exculpatory out-of-court statements by an accused are also subject to the exclusionary rule against hearsay.

Where the accused testifies,such statements are generally inadmissible they are viewed as self-serving and lacking in probative value. Where the accused does nottestify, there is an additional rationale for excluding such statements. [54] McIntyre J explained it in R v Simpson (para 24): As a general rule, the statement of an accused person made outside court - subject to a finding of voluntariness where the statement ismade to one in authority - are receivable in evidence against him but not for him.

This rule is based on the sound preposition that anaccused person should not be free to make an unsworn statement and compel its admission into evidence through other witnesses andthus put his defence before the jury without being subject to cross-examination. [55] However, Charron J (in Rojas) went on to say that the Simpson rule does not apply when both, inculpatory and exculpatorystatements are in issue: Of course, the general rule that excludes out-of-court exculpatory statements is not without exceptions. One such exception is relevanthere - the mixed statement exception.

Just as in England, it has long been established that where the Crown seeks to tender an accused’sout-of-court statement which contains both inculpatory and exculpatory parts, it must tender the entire statement, and the exculpatoryportions are substantively admissible in favour of the accused: R v Hughes (SCC), [1942] SCR 517 at p 521. Fairness tothe accused is the obvious rationale for the mixed statement exception.

The exception is also based on the more pragmatic considerationthat it is often difficult to determine which parts of a statement are inculpatory and which parts are exculpatory [para 37]. [56] Charron J also held that this approach does not unduly favour the accused as the “judge is entitled to comment adversely onthe quality of the exculpatory parts of a mixed statement which has not been tested by cross-examination” (para 38). [57] Therefore, whether we characterize the words spoken by the accused in this case as being statements or spontaneousutterances makes little difference. They can both be considered.

However, having regard to the brevity and overall lack of detail andprecision with respect to the time and place of the driving I am of the view that they are of limited evidentiary value. [58] With respect to count #1 of the Information, the Crown would have to prove beyond a reasonable doubt that the accused’sability to drive was impaired. We need proof of driving and of impairment. The Criminal Code does not set out or prescribe any specific or special test for determining impairment.

The Supreme Court in R v Stellato[6] held that if any evidence of impairment; fromslight to great, is established that the offence is made out. This, however, does not mean that some affect on a person’s functional abilitydue to the consumption of alcohol or drug will automatically impair his ability to drive.

[59] In the absence of compelling evidence establishing driving and impairment the offence charged pursuant to count #1 of theInformation is not proven. I find that there is no such evidence. Even if the accused drove, it is not clear when he did so and whether hisability to do so was impaired. Care or Control [60] There are three ways that a person can be found to have care or control of a motor vehicle. The first two are found in s. 253,which states that this offence is committed if a person’s ability to operate a vehicle is impaired by alcohol or a drug (or a combination ofboth); or, if a person’s blood alcohol level exceeds 80 milligrams of alcohol in 100 millilitres of blood. [61]

Section 258 of the Criminal Code allows for a third way to prove care or control by creating a presumption that where anaccused occupies the driver’s seat he is presumed to have care or control of the vehicle (s. 258(1)(a)). [62] This presumption can only be rebutted if the accused is successful in establishing, on a balance of probabilities, that he did notoccupy the driver’s seat for the purpose of setting the vehicle in motion. (R v Whyte, (SCC), [1988] 2 SCR 3) [63] The Supreme Court set out the essential element of care or control in R v Boudreault.[7] [64] In Boudreault the Supreme Court stated that the intention to drive the vehicle is not relevant or pertinent to the charge of careor control, but did describe the essential elements of care or control within the meaning of s. 253(1) as follows:

a) an intentional course of conduct associated with a motor vehicle;

b) by a person whose ability to drive is impaired, or whose alcohol level exceeds the legal limit, and

c) in the circumstances that create realistic risk of danger to persons or property (para 33). [65] Since the Supreme Court’s ruling in R v Foro[8], it is accepted that “an intentional course of conduct associated with thevehicle” does not require the Crown to prove that the accused had intention to drive. [66] Three years later, the Supreme Court in R v Toews[9], held that an intentional course of conduct associated with the vehicleincludes “some act or series of acts involving the use of the car, its fittings or equipment. . . whereby the vehicle may unintentionally beset in motion”. [67] In this case, the accused was found behind the wheel of a running vehicle.

In the absence of any explanation, the intentionalcourse of conduct element if the offence is satisfied. [68] The second element, namely impairment “by a person whose ability to drive is impaired, or whose blood alcohol levelexceeds the legal limit” is proven. [69] The third element, “in circumstances that create a realistic risk of danger to persons or property” will be proven if the Crownestablishes that the risk of danger must be ‘realistic’ not just theoretically possible, but the risk need not be probable, serious or

substantial ( Boudreault , para 34 ). [ 70 ] The Supreme Court in Boudreault and our Court of Appeal in R v Poncelet [10] have held that a realistic risk of danger is a low threshold. It need not be substantial, serious or even probable, as long as it is not negligible.

Further, absent any evidence to the contrary, provided by an accused who is given an opportunity to adduce evidence that the inherent risk was not a realistic risk based on the facts or circumstances of the case, a conviction will normally ensue ( Boudreault para 13 ). [ 71 ] The “realistic risk of danger” is not dependent on the accused’s intent to drive. Referencing this point, Fish J. in Boudreault stated: [41] A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger.

Accordingly, an intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control.

On the other hand, an accused who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion — without intending at that moment to do so — may nevertheless present a realistic risk of danger. [42] In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways.

First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property. [ 72 ] Since Boudreault also held that the existence of a realistic risk of danger is a question of fact, it is necessary to examine the existing factors which assist in the analysis of “realistic risk of danger”. [ 73 ] The Ontario Court of Appeal in R v Smits [11] , which was decided shortly before Boudreault , enumerated a list of factors which are relevant and should be considered in any analysis of “realistic danger”: (

a) The level of impairment, which is relevant to the likelihood of exercising bad judgment and the time it would take for the accused to become fit to drive; (

b) Whether the keys were in the ignition or readily available to be placed in the ignition; (

c) Whether the vehicle was running; (

d) The location of the vehicle; (

e) Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination; (

f) The accused’s disposition and attitude; (

g) Whether the accused drove the vehicle to the location where it was found; (

h) Whether the accused started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes other

than driving; (

i) Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit; (

j) Whether the accused had a stated intention to resume driving; (

k) Whether the accused was seated in the driver’s seat regardless of the applicability of the presumption; (

l) Whether the accused was wearing his or her seatbelt; (

m) Whether the accused failed to take advantage of alternate means of leaving the scene; (

n) Whether the accused had a cell phone with which to make other arrangements and failed to do so. The above list was approved by the Supreme Court at para 50 of Boudreault . [ 74 ] In this case, the accused was sitting in the driver’s seat of a car whose engine was running. The lights were on, and it was parked on a service road within the town limits of Langham, late at night. Clearly he had not reached his desired destination. Without knowing his state of mind, I could only speculate as to what he was doing on the service road; what his reason for parking there was, and what his future plan of action was.

I cannot speculate. [ 75 ] Defence argued that the presumption can be rebutted not just by the accused’s testimony, but also by circumstantial evidence.

I need not decide this point since there is no circumstantial evidence of sufficient weight to even consider. [ 76 ] Defence also suggests that if the Crown cannot explain the delays - the forty-two (42) minutes from time of arrest to the time of demand and the twenty-six (26) minute first observation period - then it could not rely on the presumption. [ 77 ] The evidence from Constable Pepin was that he forgot to make the demand on the accused after he initially read him his rights and warnings and that he reminded himself of this omission on the way to the detachment in Martensville.

At that point he pulled over and proceeded to make the formal demand. The accused was again advised of his rights to counsel upon arrival at the detachment. [ 78 ] Constable Pepin, in my view, acted in good faith vis-à-vis the accused and this delay is explained.

The twenty-six minutes spent in the observation room prior to the provision of the first sample is not unduly long and failure to explain it is not fatal to the Crown’s case. [ 79 ] Defence further argued that an inoperable vehicle would defeat not only the “actual” or de facto care and control, but also rebuts the presumption imposed on the accused. [ 80 ] In light of my finding with respect to Mr. Masuskapoe’s testimony, there is no clear evidence that the vehicle was inoperable. But even if there was evidence that the vehicle was inoperable, that does not automatically rebut the presumption.

Fish J. in Boudreault (para 14 ) stated that “ a stationary or inoperable vehicle may endanger persons or property”. Again, the issue will be determined by the facts. An inoperable vehicle parked on a street or road, at night, with its lights on, may pose a greater hazard than a functional vehicle parked on an off road approach or even a parking lot - location, placement and visibility are important factors to consider.

[81] Having found that all the essential elements of care or control have been proven beyond a reasonable doubt, I find the accusedguilty of count #2. A finding of guilt on count #3 follows. ________________________ M. Baniak, J [1] (SCC), [1988] 1 SCR 3 [2] 2008 SCC 56 , [2008] 3 SCR 111 [3] Actually it was a little over 6 weeks (occurrence date April 24; report written on October 7 = 44 days) [4] Supra [5] Supra [6] (1993), (ON CA), 78 CCC (3d) 380 (Ont CA), aff’d (SCC), [1994] 2 SCR 478 [7] 2012 SCC 56 [8] (SCC), [1982] 1 SCR 231 [9] (SCC), [1985] 2 SCR 119 at para 10 [10] 2014 SKCA 30 [11] 2012 ONCA 524