Baril v. Obelnicki, (2004) 183 Man.R.(2d) 118 (QB)

• Judge: Scurfield, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: April 07, 2004
• Jurisdiction: Manitoba
• Citations: (2004), 183 Man.R.(2d) 118 (QB);2004 MBQB 92

Baril v. Obelnicki (2004), 183 Man.R.(2d) 118 (QB)

MLB headnote and full text

Temp. Cite: [2004] Man.R.(2d) TBEd. AP.024

In The Matter Of an Application under the Domestic Violence and Stalking Prevention, Protection and Compensation Act, C.C.S.M., c. D-93.

Michelle Lynn Baril (applicant) v. Peter Obelnicki (respondent)

(CI 02-01-28584; 2004 MBQB 92)

Indexed As: Baril v. Obelnicki

Manitoba Court of Queen's Bench

Winnipeg Centre

Scurfield, J.

April 7, 2004.

Summary:

Baril obtained an ex parte protection order under the Domestic Violence and Stalking Prevention, Protection and Compensation Act on the ground that her neighbour was "stalking" her. When served, the neighbour applied for a review of the merits, challenging the order on its merits and on constitutional grounds. The review was dismissed on its merits, as the court was not satisfied that the neighbour established, on a balance of probabilities, that the order should be set aside. On the constitutional issues, the neighbour submitted that (1) the Act was in pith and substance criminal law and ultra vires the province as Parliament had exclusive jurisdiction over the criminal law (Constitution Act, s. 91(27)); (2) the province impermissibly conferred powers on justices of the peace normally exercised by s. 96 judges; and (3) portions of the Act violated ss. 2, 7, 9 and 11 of the Charter.

The Manitoba Court of Queen's Bench held that (1) the Act was not ultra vires the exclusive federal jurisdiction over the criminal law (Constitution Act, s. 91(27)), as the Act was not in pith and substance criminal; (2) the Act was not ultra vires the province for purporting to confer on designated justices of the peace powers reserved to superior court judges under s. 96 of the Constitution Act; (3) provisions of the Act violated freedom of expression (Charter, s. 2(b)) and liberty rights not in accordance with the principles of fundamental justice (s. 7). The review provisions (reverse onus) were unfair and not justified as a reasonable limit prescribed by law. The appropriate remedy was to strike down ss. 12(2) and 12(3) of the Act, leaving the balance of the Act intact. The review process would then put the onus on the complainant to prove her complaint on the review rather than requiring the person subject to the order to prove that the order should be set aside.

Civil Rights - Topic 660.5

Liberty - Limitations on - Anti-stalking legislation - The Manitoba Court of Queen's Bench held that provisions of the Domestic Violence and Stalking Prevention, Protection and Compensation Act infringed liberty interests under s. 7 of the Charter - The Act provided for an ex parte protection order based on unchallenged evidence - After notice was given to the person subject to the order, that person had the onus of establishing, on a balance of probabilities, that the protection order should be set aside - The court held that the provisions were overly broad - The process for reviewing an ex parte order, particularly the reverse onus on the person subject to the order, was not in accordance with the principles of fundamental justice - The review process was not fair - See paragraphs 36 to 70.

Civil Rights - Topic 1842.3

Freedom of speech or expression - Limitations on - Anti-stalking legislation - The Manitoba Court of Queen's Bench held that the Domestic Violence and Stalking Prevention, Protection and Compensation Act infringed freedom of expression (Charter, s. 2(b)) by prohibiting one person from communicating with another - The Act provided for an ex parte protection order based on unchallenged evidence - After notice was given to the person subject to the order, that person had the onus of establishing, on a balance of probabilities, that the protection order should be set aside - The violation of rights was not justified as a reasonable limit prescribed by law (s. 1), because, inter alia, there was no minimal impairment of rights - The review process established by the Act was not necessary to achieve the important societal objectives underpinning the legislation - There was no proportionality - There was no fair review process - See paragraphs 30 to 35, 71 to 72.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - [See Civil Rights - Topic 660.5 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - [See Civil Rights - Topic 1842.3 ].

Civil Rights - Topic 8380.14

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Severance of portion of statute or section - [See Family Law - Topic 1142 ].

Constitutional Law - Topic 6515

Federal jurisdiction (s. 91) - Criminal law - Respecting particular matters - Anti-stalking legislation - The Manitoba Court of Queen's Bench held that the Domestic Violence and Stalking Prevention, Protection and Compensation Act was not ultra vires the province as infringing Parliament's exclusive jurisdiction over the criminal law under s. 91(27) of the Constitution Act - The Act was not in pith and substance criminal, but was directed at preventing violence between Manitoba residents (ie., injunctive, not penal) - See paragraphs 14 to 20.

Constitutional Law - Topic 8630

Judicial power - Appointment of judges (s. 96) - Anti-stalking legislation - The Manitoba Court of Queen's Bench held that provisions of the Domestic Violence and Stalking Prevention, Protection and Compensation Act were not ultra vires the province for purporting to confer on designated justices of the peace powers reserved to superior court judges under s. 96 of the Constitution Act - The court stated that "the authority of justices of the peace to use injunction-like powers to maintain the peace and prevent criminal behaviour was rooted in the common law at the time of Confederation. The injunction-like powers created by the Act are restricted to the prevention of such conduct. For this narrow reason, I find that s. 96 is not violated by the legislation." - See paragraphs 21 to 27.

Family Law - Topic 1142

Domestic violence or exploitation - Anti-stalking legislation - Validity of legislation - The Domestic Violence and Stalking Prevention, Protection and Compensation Act provided for the obtention of an ex parte protection order from a justice of the peace - After the person subject to the order was given notice, that person was entitled to a review of the order, but had the onus of establishing, on a balance of probabilities, that the protection order should be set aside (s. 12(2)) - Further, the evidence before the justice of the peace was evidence at the hearing and the person subject to the order could present additional evidence (s. 12(3)) - The Manitoba Court of Queen's Bench held that (1) the Act was not ultra vires the exclusive federal jurisdiction over the criminal law (Constitution Act, s. 91(27)), as the Act was not in pith and substance criminal; (2) the Act was not ultra vires the province for purporting to confer on designated justices of the peace powers reserved to superior court judges under s. 96 of the Constitution Act; (3) provisions of the Act violated freedom of expression (Charter, s. 2(b)) and liberty rights not in accordance with the principles of fundamental justice (s. 7) - The review provisions (reverse onus) were unfair and not justified as a reasonable limit prescribed by law - The appropriate remedy was to strike down ss. 12(2) and 12(3) of the Act, leaving the balance of the Act intact - The review process would then put the onus on the complainant to prove her complaint on the review rather than requiring the person subject to the order to prove that the order should be set aside.

Cases Noticed:

Bedard v. Dawson, [1923] S.C.R. 681, refd to. [para. 17].

Reference Re Adoption Act (Ont.), [1938] S.C.R. 398, refd to. [para. 17].

R. v. Chiasson (1982), 39 N.B.R.(2d) 631; 103 A.P.R. 631; 66 C.C.C.(2d) 195 (C.A.), affd. [1984] 1 S.C.R. 266; 56 N.R. 213; 77 N.B.R.(2d) 179; 195 A.P.R. 179, refd to. [para. 17].

Reference Re Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186; 193 N.R. 1; 149 N.S.R.(2d) 1; 432 A.P.R. 1; 131 D.L.R.(4th) 609, refd to. [para. 21].

Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.) et al., [1989] 1 S.C.R. 238; 92 N.R. 179; 90 N.S.R.(2d) 271; 230 A.P.R. 271, refd to. [para. 24].

MacKenzie v. Martin, [1954] S.C.R. 361, refd to. [para. 26].

R. v. County of London Quarter Sessions, [1948] 1 All E.R. 72, refd to. [para. 26].

R. v. Oakes (1986), 65 N.R. 87; 14 O.A.C. 335; 24 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 29].

Ruby v. Canada (Solicitor General) - see Ruby v. Royal Canadian Mounted Police et al.

Ruby v. Royal Canadian Mounted Police et al. (2002), 295 N.R. 353; 2002 SCC 75, refd to. [para. 31].

R. v. Osborne, Millar and Barnhart et al. v. Canada (Treasury Board) et al., [1991] 2 S.C.R. 69; 125 N.R. 241, refd to. [para. 33].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81; 1 C.R.(4th) 129; 77 Alta. L.R.(2d) 193, refd to. [para. 35].

R. v. Andrews and Smith (1990), 117 N.R. 284; 1 C.R.(4th) 266 (S.C.C.), refd to. [para. 35].

Royal College of Dental Surgeons (Ont.) et al. v. Rocket and Price, [1990] 2 S.C.R. 232; 111 N.R. 161; 40 O.A.C. 241, refd to. [para. 35].

R. v. Krushel (M.) et al. (2000), 130 O.A.C. 160; 142 C.C.C.(3d) 1 (C.A.), refd to. [para. 35].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205, refd to. [para. 38].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, refd to. [para. 39].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 39].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1; 17 D.L.R.(4th) 422; 14 C.R.R. 13; 12 Admin. L.R. 137, refd to. [para. 41].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 48].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 55].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 72].

R. v. Johnson et al., [1994] 3 S.C.R. 965; 174 N.R. 321; 76 O.A.C. 241; 94 C.C.C.(3d) 385, refd to. [para. 74].

R. v. Laba - see R. v. Johnson et al.

Baron et al. v. Minister of National Revenue, [1993] 1 S.C.R. 416; 146 N.R. 270, refd to. [para. 74].

R. v. Budreo (W.) (2000), 128 O.A.C. 105; 46 O.R.(3d) 481 (C.A.), refd to. [para. 74].

Statutes Noticed:

Domestic Violence and Stalking Prevention, Protection and Compensation Act, S.M. 1998, c. 41; C.C.S.M., c. D-93, sect. 2(2), sect. 2(3) [para. 11]; sect. 6(1), sect. 7(1), sect. 10, sect. 11, sect. 12 [para. 10].

Authors and Works Noticed:

Magone, K.C., Power of Justices and Magistrates to Dispense Preventive Justice (1949), 93 Can. C.C. 161, generally [para. 26].

Manitoba, Law Reform Commission, Stalking, Report No. 98 (1997), generally [para. 14].

Manitoba, Legislative Assembly, Debates and Proceedings (13 May 1998), vol. 48, no. 47, pp. 2977, 2978 [para. 15].

Pedlar, D., The Domestic Violence Review into the Administration of Justice in Manitoba (1991), generally [para. 14].

Schulman, P.W., A Study of Domestic Violence and the Justice System in Manitoba (1997), generally [para. 14].

Counsel:

No one appearing for the applicant;

Rosemary Hnatiuk, for the respondent;

Eugene Szach, for the Province of Manitoba.

This application was heard before Scurfield, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on April 7, 2004.