accountability

New Brunswick is focusing its efforts by creating specialized courts for particular offences that take into consideration the background of the offender(s). This is a good thing. In Moncton, New Brunswick we have a Court dedicated to domestic violence offences. The Court has a dedicated Judge, Prosecutor, Social Worker and is resourced to ensure that the facts of each case are given particular consideration before imposing a traditional custodial sentence. Often, offenders that are found guilty, are given strict sentencing provisions which may include mandatory anger management treatment and no contact order provisions which prevent the offender from re- offending. The uniqueness of this Court from others is that the Judge ensures accountability and strict adherence to its Order(s) by instructing the offender to reappear for an update on the counselling he/she receives. The purpose of this is to ensure compliance with the sentence imposed on the individual.

In Saint John our Province has a Mental Health Court. This Court deals with the sensitive issues surrounding criminal offences and mental illness. It's an extremely successful Court and the Judges hearing these cases have their hands full. In some cases, people who suffer from mental illness commit crimes they may or may not be culpable for. This Court allows for the accused to demonstrate to the Judge that their actions may have been attributed to their illness. In the event that they are the Court may take into consideration the illness of the accused an impose the sentence it sees fit.

My Department is looking at the need for a Provincial Drug Treatment Court. It was a platform commitment that we intend on fulfilling. I believe it's needed here in this Province as it has been proven successful in other Provinces in eliminating over populating prisons for minor drug related offences. Take for example an individual who is addicted to Oxycontin that breaks into a department store and sells the "hot" television to purchase drugs. Should this person be sent to prison where little treatment for their drug addiction exists? What if they have the opportunity to complete mandatory rehabilitation treatment and if successful avoids receiving a criminal conviction and record? Now don't get me wrong here. If you're a drug dealer and your caught distributing illegal narcotics then it's unlikely you're going to a Drug Treatment Court. These "specialized" courts are designed to promote rehabilitation to first time offenders if they can demonstrate successful completion of the imposed counselling and mandatory treatment.

We can use more of these Courts that specialize in people that offer specialized staff, resources and treatment.

Posted by T.J. Burke at 8:02 PM 4 comments

Thursday, March 20, 2008

Throw the Book at him! No - I mean literally.

"... it's simply wrong to always order [kids] to stop that fighting. There are times when one child is simply defending his rights and damned well should be fighting."

Erma Louise Bombeck


The wrongfully convicted. It's an horrible travesty for any person who must experience prosecution by the State for a crime they did not commit. Thus far, we have seen remarkable examples of cases where such injustice has occurred causing the Federal Government to amend the Criminal Code of Canada by enacting special sections that provide for an application to be made to the Federal Minister of Justice/Attorney General to remedy a possible wrongful conviction.

Some of the more infamous cases that stand out in recent memory are James Driskell, who was found guilty of the 1990 murder of Perry Harder. Paroled in 2003, Driskell was acquitted after DNA samples were shown not belonging to the victim that were allegedly matched to hair samples in his vehicle. David Milgaard was sentenced in 1970 to life imprisonment for the 1969 murder of Saskatoon nursing aide Gail Miller. After 23 years in prison, The Supreme Court of Canada set aside his conviction in 1992. Donald Marshall was sentenced to life imprisonment for the murder of Sandy Seale. After spending 11 years in prison the Nova Scotia Court of Appeal acquitted him in 1983.

A wrongful conviction does not always mean the accused is innocent of the crime. It can simply mean the accused did not receive a fair trial due to an improper characterization of evidence, unreliable testimony, problems with Crown disclosure, police misconduct or wrongful identity. Take the Steven Truscott case for example.

Prior to Canada's abolition of death row, Truscott was sentenced to death at the age of 14 for allegedly murdering a classmate. In 1969 he was granted parole. On August 28, 2007 after overturning his conviction and ultimately entering an acquittal, the Ontario Court of Appeal declared his case "a miscarriage of justice." However, the High Court Justices stated emphatically that the court was "not satisfied that the appellant has been able to demonstrate his factual innocence."

It's an interesting Justice system we have. Some people think it's horrible and failing society while others see it as a fundamental tool to democracy. I am a firm believer in the latter. Without law, there is no order and without order there is no justifiable democratic society.

Posted by T.J. Burke at 10:42 PM 3 comments

Monday, March 17, 2008

The Thick Skinned Politician

In political life you're expected to have thick skin. So the saying goes: if you dish it out you better be able to take it! Fair ball.

I sincerely believe that most people put their names forward for public office with the best interests of their Community, Province or Country in mind. Unfortunately, some fall into the grasp of personal greed, profit and corruption. The large majority of politicians serve with dignity and do great things for their respective riding's. Some sit on their rear-ends, collect a pay cheque and do nothing. Generally, people tend to give politicians an ear full when tough decisions have to be made. This became clear after last Friday's announcement concerning Education Minister Kelly Lamrock's plan for universal french language training in New Brunswick. Wow! The reaction has been enormous.

Personally, I have had quite a few angry parents calling me at home, on my cell, at my office and emailing. They say things like idiotic, moronic and a few choice words that I won't repeat on this site. What boggles my mind is the manner in which people call and feel they can express themselves. I don't mind a hot debate but it should be informed. I don't mind people expressing themselves but it should be dignified. A good friend of mine was with me this weekend when a lady stopped me in a public store and began yelling at me over this decision and how Government destroyed her child's future. After letting her vent we carried on with our business. My friend says to me - can you imagine if someone came up to me and carried on like that because they didn't like the business decision my company made?

I think his point was that this rarely happens in the private sector and if it does few people call up the CEO and lace them with personal insults and threats of non-renewal (when I say this I am not thinking of the Irvings - that's for you Charles). It's an interesting point when you think about it. Apparently, when you get elected it allows the public, at any time, regardless of who is with you (kids, wife, mother) it doesn't matter, to berate you over their beliefs or opinions while you sit there with a smile on your face.

Hmm. Strange job. I wonder how often it happens in the private sector? How many people would simply smile and listen while someone feels it's time to give them hell in front of their family for whatever reason. Most people are decent enough not to act in this manner but there are quite a few that aren't. Anyhow, I enjoy it.

Another saying should be added to the thick skinned politician repetoire, one that Stuart Jamieson told me years ago - you wanted the job, your ran for the job, you got the job, now do the damn job!

Thanks -

T.J.

Posted by T.J. Burke at 8:54 PM 20 comments

Saturday, March 15, 2008

W.H. Goodwin

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Home > New Brunswick > Court of Appeal of New Brunswick > 2008 NBCA 14 (CanLII)

Harris and H.A.R. Construction Limited v. W.H. Goodwin & Co. Ltd. and Goodwin, 2008 NBCA 14 (CanLII)

Print:	PDF Format
Date:	2008-02-14
Docket:	43/07/CA
URL:	http://www.canlii.org/en/nb/nbca/doc/2008/2008nbca14/2008nbca14.html
Noteup:	Search for decisions citing this decision

Reflex Record (noteup and cited decisions)

Decisions cited

• Beetham and D.B. Western v. Markessini, 2002 NBQB 37 (CanLII) — (2002), 247 N.B.R. (2d) 13 • (2002), 247 N.B.R. (2e) 13
• Benoît c. Lemieux, 2003 NBBR 16 (CanLII)
• Calumet International Inc. v. Maliseet Nation at Tobique, 2004 NBQB 149 (CanLII)
• Dostie v. Royal & Sunalliance Insurance Company of Canada, 2004 NBQB 195 (CanLII) — (2004), 277 N.B.R. (2d) 203
• Dubé v. Dionne et al., reflex — (1998), 201 N.B.R. (2d) 387 • (1998), 201 N.B.R. (2e) 387
• Spencer v. Laforge, 2001 NBCA 35 (CanLII) — (2001), 237 N.B.R. (2d) 232 • (2001), 237 N.B.R. (2e) 232

COURT OF APPEAL OF NEW BRUNSWICK
		43/07/CA
RICHARD A. HARRIS AND H.A.R. CONSTRUCTION LIMITED (Plaintiffs) APPELLANTS		RICHARD A. HARRIS ET H.A.R. CONSTRUCTION LIMITED (Demandeurs) APPELANTS
- and -		- et -
W.H. GOODWIN & CO. LTD. AND W. HARRISON GOODWIN (Defendants) RESPONDENTS		W.H. GOODWIN & CO. LTD. ET W. HARRISON GOODWIN (Défendeurs) INTIMÉS
Harris and H.A.R. Construction Limited v. W.H. Goodwin & Co. Ltd. and Goodwin, 2008 NBCA14		Harris et H.A.R. Construction Limited c. W.H. Goodwin & Co. Ltd. et Goodwin, 2008 NBCA 14
CORAM: The Honourable Justice Turnbull The Honourable Justice Richard The Honourable Justice Bell		CORAM : L’honorable juge Turnbull L’honorable juge Richard L’honorable juge Bell
Appeal from a decision of the Court of Queen’s Bench: February 26, 2007		Appel d’une décision de la Cour du Banc de la Reine : Le 26 février 2007
History of case: Decision under appeal: Unreported Preliminary or incidental proceedings: N/A		Historique de la cause : Décision frappée d’appel : Inédite Procédures préliminaires ou accessoires : S.O.
Appeal heard: November 22, 2007		Appel entendu : Le 22 novembre 2007
Judgment rendered: February 14, 2008		Jugement rendu : Le 14 février 2008
Counsel at hearing: For the appellants: David H. Dunsmuir For the respondents: Hugh J. Cameron		Avocats à l’audience : Pour les appelants : David H. Dunsmuir Pour les intimés : Hugh J. Cameron
THE COURT: The appeal is allowed with costs of $2,500, and the summary judgment dismissing the action against W. Harrison Goodwin is set aside.		LA COUR L’appel est accueilli avec dépens de 2 500 $ et le jugement sommaire rejetant l’action intentée à W. Harrison Goodwin est annulé.

The following is the judgment delivered by

THE COURT

[1] In an unreported decision dated February 26, 2007, a judge of the Court of Queen’s Bench summarily dismissed H.A.R. Construction Limited and Richard A. Harris’ action against W. Harrison Goodwin but allowed the action to proceed against W.H. Goodwin & Co. Ltd. The summary judgment was issued pursuant to Rule 22 of the Rules of Court.

[2] Rule 22.02(2) provides as follows:

22.02 Affidavit Evidence (2) A defendant applying for summary judgment shall file and serve an affidavit (a) setting out the facts verifying his contention that there is no merit in the whole or part of the claim, and (b) stating that he knows of no fact which would substantiate the whole or part of the claim.

22.02 Preuve par affidavit (2) Le défendeur qui demande un jugement sommaire doit déposer et signifier un affidavit a) exposant les faits qui appuient son argument voulant que la demande, en tout ou en partie, ne soit pas fondée et b) dans lequel il affirme ne connaître aucun fait qui puisse justifier la demande en tout ou en partie.

[3] In the present case, the affidavit filed by W. Harrison Goodwin in support of his motion for summary judgment did not meet the requirements of Rule 22.02(2), in that it did not state that he knows of no facts which would substantiate the whole or part of the claim. On appeal, counsel for W. Harrison Goodwin argued that this requirement should not be read as mandatory. Alternatively, he maintained that Mr. Goodwin’s failure to comply with this requirement should be excused by application of Rule 2.02, which permits flexibility in the face of procedural errors.

[4] A review of the jurisprudence reveals that the requirement set out in Rule 22.02 has consistently been regarded as mandatory. As Drapeau J.A. (now Chief Justice) stated in Dubé v. Dionne et al. reflex, (1998), 201 N.B.R. (2d) 387 (C.A.), [1998] N.B.J. No. 241 (QL), at para 11, “Rule 22.02 expressly provides for filing and service of affidavits by the moving party. This rule sets out the minimum requirements of what must be included in the affidavit.” In Caissie v. Sénéchal Estate et al. 2001 NBCA 35 (CanLII), (2001), 237 N.B.R. (2d) 232, [2001] N.B.J. No. 120 (QL), 2001 NBCA 35, he added, at para. 14, that “[t]he evidentiary record must include an affidavit by the moving party that complies with Rule 22.02.”

[5] Several decisions of the Court of Queen’s Bench also highlight the importance of strict compliance with the requirements of Rule 22.02, including New Brunswick Milk Dealers Association v. New Brunswick Milk Marketing Board (1984), 56 N.B.R. (2d) 413 (Q.B.), [1984] N.B.J. No. 263 (QL), at para. 6; Beetham v. Markessini et al. 2002 NBQB 37 (CanLII), (2002), 247 N.B.R. (2d) 13, [2002] N.B.J. No. 28 (QL), 2002 NBQB 37, at para. 48; Benoît c. Lemieux, [2002] N.B.R. (2d) (Supp.) No. 95, [2002] A.N.-B. n^o 448 (QL), 2003 NBBR 16 (CanLII), 2003 NBBR 16, at paras. 8-13; Dostie v. Royal & Sunalliance Insurance Co. of Canada 2004 NBQB 195 (CanLII), (2004), 277 N.B.R. (2d) 203, [2004] N.B.J. No. 186 (QL), 2004 NBQB 195, at paras. 32-38; and Calumet International Inc. v. Maliseet Nation at Tobique 2004 NBQB 149 (CanLII), [2004] N.B.J. No. 137, 2004 NBQB 149, at paras. 5-11.

[6] The purpose and effect of the summary judgment Rule support the mandatory nature of the minimum requirements set out in Rule 22.02. Noting that “a trial on the merits is a right that is closely guarded by the courts”, in Dubé v. Dionne et al. this Court explained, at para. 9, that “Rule 22 confers upon a judge an extraordinary power authorizing him to put an end to a proceeding without a trial.”

[7] In our view, the minimum requirements of what must be included in an affidavit in support of an application for summary judgment reflect the extraordinary nature of the relief sought. When a party applies for such relief, the effect of which would be to deprive the opposing party of a trial, the supporting affidavit must, at the very least, comply with the minimum requirements set out in the Rule. The minimum requirements set out in Rule 22.02 are therefore substantive in nature, and not merely procedural. It follows that failure to comply with the requirements of Rule 22.02 is not a procedural irregularity.

[8] Given that the affidavit of Mr. Goodwin fails to state that he knows of no facts which would substantiate the whole or part of the Plaintiffs’ claim, the requirement was not met, and summary judgment was not available. We therefore conclude that, on the basis of the record before her, the motion judge erred in dismissing the action against W. Harrison Goodwin.

[9] For these reasons, the appeal is allowed and the summary judgment dismissing the action against W. Harrison Goodwin is set aside. It follows that those portions of the Statement of Claim dealing with the claim against Mr. Goodwin that the motion judge struck out as a result of the summary judgment are restored to their original state. Portions of the Statement of Claim that were struck out on other grounds and that were not the subject of this appeal remain unaffected. We order the respondent, W. Harrison Goodwin, to pay the appellants costs in the amount of $2,500.

__________________________________

WALLACE. S. TURNBULL, J.A.

__________________________________

J. C. MARC RICHARD, J.A.

___________________________________

B. RICHARD BELL, J.A.

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Federation of Law Societies of Canada

Examination of Expert Witness Before Trial

PREPARATION FOR TRIAL
RULE 52
EXPERT WITNESS
52.01 Condition Precedent to Calling Expert
Witness at Trial
(1) Where a party intends to call an expert witness
at trial, he shall serve on every other party a copy of the
expert’s signed report which shall contain, or be accompanied
by, a statement containing the expert’s name, address
and qualifications and the substance of his proposed
testimony. Service shall be made as soon as
practicable and no later than the Motions Day at which
the trial date is fixed.

(2) Where a party intends to call an expert witness
at trial but cannot obtain from him a report, or where, because
of the nature of the proposed evidence, the expert
is not required by the party to submit a written report, the
party may comply with paragraph (1) by serving on every
other party a report signed by the party or his solicitor
which sets out the name, address and qualifications of
the expert and the substance of the evidence which he is
expected to give.

(3) A party who has not complied with this subrule
shall not call an expert witness without leave of the
court.

(4) Where a report has been served under paragraph

(1) or paragraph
(2), on motion the court may order that
any records, documents or other materials on which the
report is based be produced for inspection and copying.
(5) On consent of all parties, the court may receive
in evidence at the trial a report served under paragraph

(1) without requiring the expert to attend and give oral
evidence.
52.02 Examination of Expert Witness Before Trial

(1) Where it is impractical or inconvenient for an
expert witness to attend the trial, the party intending to
call the witness may, with leave of the court or the consent
of all parties, examine that witness before the trial
for the purpose of having his evidence available for use
at the trial.

(2) Before applying under paragraph (1) to the court
for leave, the applicant shall comply with Rules 52.01(1)
or 52.01(2).
(3) Where possible, an examination under paragraph
(1) shall be conducted before the trial judge.
(4) Unless ordered otherwise or provided by this
rule, the procedure prescribed by Rule 33 shall apply to
the examination of a witness under this rule.
(5) On the examination of a witness under this rule,
he may be examined, cross-examined and reexamined in
the same manner as a witness at trial.
(6) An order for, or consent to, the examination of a
witness under this rule may provide that the examination
be recorded by videotape or other similar means either in
addition to or substitution for a typewritten transcript.
(7) Where the evidence on an examination under
paragraph (1) has been transcribed, the party whose witness
has been examined shall serve every party who attended
or was represented on the examination, with a
copy of the transcript, free of charge unless ordered otherwise.
(8) A transcript, videotape, or any other recording
of evidence taken under this Rule may, as far as it is admissible,
be tendered in evidence at the trial by a party
to the action, and such parties shall be responsible for
providing the equipment required to tender such evidence
if it is not otherwise available in the courtroom.
(9) Where the evidence of an expert witness has
been taken under this subrule, he shall not be called to
give evidence at the trial, except with leave of the trial
judge or unless the trial judge requires his attendance at
the trial.
52.03 Medical Expert
(1) Where, under Rule 52.01(1), a party has served
a report of an expert who is a medical practitioner as defined
in Rule 36.01 the report may, with leave of the
court, be admitted in evidence without proof of signature
or qualifications of the medical practitioner and without
his attendance at trial.

Rule / Règle 52
(2) When an opposite party, within 10 days after
service of a report of a medical practitioner under Rule
52.01(1), serves notice in writing requiring the attendance
of the medical practitioner at trial, the report shall
not be received in evidence unless the medical practitioner
is called as a witness.
(3) Where a medical practitioner is required to attend
and give oral evidence at or before trial and the
court is of the opinion that his evidence could have been
introduced as effectively by way of a medical report, the
court may order the party who required the attendance of
the medical practitioner to pay the costs of his attendance.

Lawyer Hugh Cameron