Supreme Court of Canada

C.B. v. The Queen, [1981] 2 S.C.R. 480

Date: 1981-10-20

C.B. Appellant;

and

Her Majesty The Queen Respondent;

and

C.B. Appellant;

and

His Honour Judge E. Kimelman, Senior Judge of the Provincial Judges’ Court (Family Division)

and

Radio Station CJOB and affiliate station CHMM

and

The Honourable the Attorney General of the Province of Manitoba Respondents.

1981: June 10; 1981: October 20.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Courts—Juvenile court procedure—Meaning of trial “without publicity”—Trial in camera—Juvenile Delinquents Act, R.S.C. 1970, c. J-3, s. 12—Criminal Code, R.S.C. 1970, c. C-34, as amended, ss. 441, 442(1).

Appellant charged under the Juvenile Delinquents Act contends his trial should be in camera on the ground that s. 12(1) provides “the trial of children shall take place without publicity”. The Appeal Court held that a trial “without publicity” did not mean a trial in camera and permitted the respondent radio stations to be present and report on the proceedings, subject to certain restriction. The issue turns on the interpretation of “without publicity”.

Held: The appeal should be allowed.

The expression “without publicity” in s. 12(1) means in camera. Section 12(1) creates an exception to the general rule of law that all trials in criminal and civil matters must be held in open court. Children’s trials must be held in camera.

R. v. H. and H. (1946), 1946 CanLII 229 (BC SC), 88 C.C.C. 8; R. v. N. (1979), 1979 CanLII 751 (BC CA), 10 C.R. (3d) 68, reversing N. v. MacDonald Prov. J.

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and Attorney General of British Columbia, 1979 CanLII 3072 (BC SC), [1979] 4 W.W.R. 620; Re Juvenile Delinquents Act (1975), 1975 CanLII 775 (ON CJ), 13 O.R. (2d) 6; R. v. B. (1979), 2 Fam. L. Rev. 213; Attorney General of British Columbia v. Smith, 1967 CanLII 65 (SCC), [1967] S.C.R. 702; R. v. Truscott (1959), 1959 CanLII 496 (ON SC), 125 C.C.C. 100; Re L.Y. (No. 1) (1944), 1944 CanLII 494 (MB CA), 82 C.C.C. 105; Re Rex v. D.P.P. (1948), 1948 CanLII 336 (MB KB), 92 C.C.C. 282; R. v. Paquin and de Tonnancourt (1955), 1955 CanLII 443 (MB CA), 111 C.C.C. 312; R. v. Pagee, 1963 CanLII 672 (MB CA), [1964] 1 C.C.C. 173; R. v. Simpson, 1963 CanLII 742 (ON CJ), [1964] 2 C.C.C. 316; Re Liefso (1965), 1965 CanLII 289 (ON SC), 46 C.R. 103; R. v. Haig, 1970 CanLII 456 (ON CA), [1971] 1 O.R. 75; R. v. Gerald X. (1958), 1958 CanLII 465 (MB CA), 121 C.C.C. 103, referred to.

APPEAL from a decision of the Manitoba Court of Appeal¹, dismissing an appeal from a judgment of Hewark J. granting leave to appeal under the Juvenile Delinquents Act but denying an application for prohibition and mandamus arising from a ruling of Kimelman Prov. J. Appeal allowed.

Martin Minuk and Mathew B. Nepon, for the appellant.

Derek Booth, for the respondent CJOB.

Stuart Whitley, for the respondent the Attorney General of Manitoba.

The judgment of the Court was delivered by

CHOUINARD J.—The issue in this appeal turns on the interpretation of the expression “without publicity” in s. 12(1) of the Juvenile Delinquents Act, R.S.C. 1970, c. J-3; whether, simply put, it means in camera or whether it merely refers to the restrictions imposed on reporting by s. 12(3) and (4).

Section 12 reads as follows:

12. (1) The trials of children shall take place without publicity and separately and apart from the trials of other accused persons, and at suitable times to be designated and appointed for that purpose.

(2) Such trials may be held in the private office of the judge or in some other private room in the court house or municipal building, or in the detention home, or if no such room or place is available, then in the ordinary court room, but when held in the ordinary court room an interval of half an hour shall be allowed to elapse

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between the close of the trial or examination of any adult and the beginning of the trial of a child.

(3) No report of a delinquency committed, or said to have been committed, by a child, or of the trial or other disposition of a charge against a child, or of a charge against an adult brought in the juvenile court under section 33 or under section 35, in which the name of the child or of the child’s parent or guardian or of any school or institution that the child is alleged to have been attending or of which the child is alleged to have been an inmate is disclosed, or in which the identity of the child is otherwise indicated, shall without the special leave of the court, be published in any newspaper or other publication.

(4) Subsection (3) applies to all newspapers and other publications published anywhere in Canada, whether or not this Act is otherwise in force in the place of publication.

Background

The case is summarized as follows by the appellant in his factum:

1. The Appellant was charged under the provisions of the Juvenile Delinquents Act, R.S.C. 1970, Cap. J-3 (hereinafter referred to as the J.D.A.) with certain delinquencies arising out of an incident in the City of Winnipeg, in Manitoba on April 2nd, 1979. An application was made by Radio Station CJOB and its affiliate station CHMM (hereinafter referred to as the “Radio Stations”), before Senior Family Court Judge E.C. Kimelman to be present in Juvenile Court and report on the proceedings at the trial of the juvenile Appellant, C.B. The application was heard by the learned Provincial Court Judge on June 18th, 1979, in the Provincial Judges’ Court (Family Division) of Winnipeg.

2. The ruling on the application was made on Friday, June 22nd, 1979. The application of the Radio Stations was granted and an Order was made permitting the Radio Stations, through Mr. Bob Beaton or an employee of the Radio Stations, to attend Court, watch the proceedings and report, subject to outlined conditions relating to identification of the juvenile, his parents or guardians, or the school or institution in which he finds himself.

3. On Tuesday, September 25th, 1979, the Appellant sought leave to appeal and to appeal the decision of Senior Family Court Judge E.C. Kimelman, pursuant to Section 37 (1) of the J.D.A. Simultaneously, the Appellant sought an Order of Mandamus directing Senior Family Court Judge E.C. Kimelman to comply with the statutory provisions of S. 12 (1) of the J.D.A. to hold the trial of the Appellant in camera and an

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Order prohibiting the said Senior Family Court Judge from proceeding to hear the trial in the presence of persons or parties not contemplated by the provisions of the J.D.A.

4. On September 25th, 1979, the learned Trial Judge, Mr. Justice Hewak, granted leave to appeal under the J.D.A. but dismissed the appeal. In addition, the learned Trial Judge dismissed the application for Mandamus and Prohibition.

5. The Appellant appealed from that Judgment to the Manitoba Court of Appeal and special leave to appeal was granted and the appeals were dismissed by a judgment rendered April 18th, 1980.

6. From that Judgment the Appellant now appeals.

The respondent radio stations agree with the appellant’s summary “with the clarification that the application of the respondent radio stations was, to remain in attendance in court and report on the proceedings, without identification of the juvenile”.

The issue then, as put by counsel for the respondent radio stations, quoted by Monnin J.A., speaking for the Manitoba Court of Appeal is: “‘In camera’ or not ‘in camera’. It is as simple as that.”

The appellant’s submission is that by virtue of s. 12(1) trials of children in juvenile court must be held in camera and a judge of the juvenile court has no discretion to order otherwise.

Alternatively, if s. 12(1) confers a discretion on the juvenile court judge, the appellant submits that the rule remains that trials of children in juvenile courts must be held in camera, subject to the discretion of the juvenile court judge to admit members of the public and the news media.

In the further alternative if a juvenile court judge has the discretion to admit members of the public and the news media to the trials of children in juvenile court, the Judge in this case erred in exercising that discretion.

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It would appear that if the appellant is right on his main submission, as I believe he is, it will not be necessary to deal with his two alternative submissions.

Analysis

The difficulty here stems from the apparent inconsistency between s. 12(1) and (3). To quote Manson J. of the British Columbia Supreme Court in R. v. H. and H.², at p. 11:

The Act is not a lawyers’ Act, not a model of perfection in the matter of draftsmanship, not one to which it is easy to apply the ordinary rules of construction. Nevertheless, we must take the Act as we find it and despite some anomalies, give effect as best we can to its provisions.

Perhaps a key to the solution is to be found in the suggestion of Toy J. of the British Columbia Supreme Court in N. v. Macdonald Prov. J. and Attorney General of British Columbia³, (later reversed by the Court of Appeal for British Columbia sub nom. R. v. N.⁴ that subss. (1) and (3) ought not to be construed together but should be considered separately as dealing with two different subject matters). Reviewing the reasons of Macdonald Prov. J. in that case and the reasons of Wang Prov. J. in Re Juvenile Delinquents Act⁵, Toy J. had this to say at pp. 624-25:

As I am in respectful disagreement with the reasoning of both Wang Prov. J. and Macdonald Prov. J., I would like to point out, at an early stage of my reasons, what I believe is the fundamental error that both of these judges have fallen into. In arriving at the conclusions that they did, both learned Provincial Judges have considered the combined effect of s. 12(1) and (3) as dealing with one subject matter, whereas I am of the view subss. (1) and (3) of s. 12 deal with two separate matters.

He added at p. 627:

It is my conclusion, for reasons which I will shortly state, that s. 12(1) directs that Juvenile Court trials will be held in private, and that s. 12(3) prohibits the

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publication of the name or identity of the child tried for a delinquency unless special leave of the court has been given.

In the case at bar, the Court of Appeal for Manitoba has decided that the provisions of the Juvenile Delinquents Act entitled the members of the public and the news media to be present at the trials of children in juvenile court subject to the restrictions imposed by s. 12(3) and (4) with regard to the disclosure of the child’s identity.

As observed in the reasons of the Court of Appeal “The Act has been in existence since 1908 and until recently the expression ‘without publicity’ was never defined nor commented upon.”

The only other judgment of a court of appeal which is directly in point and of which I am aware is that of the British Columbia Court of Appeal R. v. N., supra, where it was decided that the Juvenile Court Judge has a discretion to permit members of the public to attend at the trial of a child charged with a delinquency.

In R. v. H. and H., supra, the British Columbia Supreme Court decided that the trials of children in the juvenile court must be in camera but that a complainant or informant is entitled to be present. In R. v. B.⁶, the Ontario Provincial Court (Family Division) allowed representatives of the press to be present at the hearing.

Review of Jurisprudence

The appellant has cited a number of other cases from which it would appear that the prevalent opinion is that the expression “without publicity” means in camera.

The first of these cases is Attorney General of British Columbia v. Smith⁷. What was at issue in that case was the constitutionality of the Juvenile Delinquents Act itself. In his reasons, Fauteux J., speaking for the Court, proceeded to review the preamble, the interpretation section and the main operative provisions of the Act. Summarizing the latter, he wrote with respect to the conduct of the

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trials, at p. 709:

…the conduct of the trials, without publicity, privately and, if possible, in the private office of the judge or in a private room;

The appellant then cited several cases dealing with s. 9(1) of the Act, authorizing the court in the case of an indictable offence within the meaning of the Criminal Code, to order the child to be proceeded against by indictment in the ordinary courts. Among the factors to be taken into account in making or refusing to make such an order, the courts weigh the advantages and disadvantages of a trial in open court as opposed to a hearing in camera in the interest of the child and in the public interest. In all but two of these cases the fact that the trial of a child in juvenile court is to be held in camera is not even questioned. Thus in R. v. Truscott⁸, Schatz J. of the Ontario High Court had this to say at pp. 102-03:

In any case notwithstanding the publicity and strain of a trial it is my opinion that it would be for the good of the child to have his position in respect to such a serious charge established by a jury which would remove any possible criticism of having such a serious matter determined by a single Judge in camera proceedings.

I think it is also in the interests of the community that the public be assured that in a matter of this kind where public sentiment may have been aroused, the trial and disposition of the matter shall be in the ordinary course and free from any criticism.

See also to the same effect Re L.Y. (No. 1)⁹; Re Rex v. D.P.P.¹⁰; R. v. Paquin and de Tonnancourt¹¹; R. v. Pagee¹²; R. v. Simpson¹³; Re Liefso¹⁴; R. v. Haig¹⁵. In all those instances it is assumed that a trial in the juvenile court is to be in camera. For the contrary view, see

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R. v. Gerald X.¹⁶ and Re Juvenile Delinquents Act, supra.

After reviewing all the cases cited and all the arguments put forward in favour of each interpretation, with respect for the contrary view, I come to the conclusion that the expression “without publicity” in s. 12(1) means in camera.

In reaching this conclusion I am not unmindful of the fundamental principle of our law that all trials both in criminal and civil matters must be held in open court. There are known exceptions to this principle and further exceptions may on occasion be created by statutory provisions. The question is whether s. 12(1) does create such an exception.

The equivalent legislation in England leaves little doubt as to who may be present at the trial of a child and as to what the powers and discretion of the court are. Sections 37, 47 and 49 of the Children and Young Persons Act, 1933, 1933 (U.K.), c. 12, as revised to August 1st, 1980, provide as follows:

37.—(1) Where, in any proceedings in relation to an offence against, or any conduct contrary to, decency or morality, a person who, in the opinion of the court, is a child or young person is called as a witness, the court may direct that all or any persons, not being members or officers of the court or parties to the case, their counsel or solicitors, or persons otherwise directly concerned in the case, be excluded from the court during the taking of the evidence of that witness:

Provided that nothing in this section shall authorise the exclusion of bona fide representatives of a newspaper or news agency.

(2) The powers conferred on a court by this section shall be in addition and without prejudice to any other powers of the court to hear proceedings in camerâ.

47.—(1) Juvenile courts shall sit as often as may be necessary for the purpose of exercising any jurisdiction conferred on them by or under this or any other Act.

(2) A juvenile court shall not sit in a room in which sittings of a court other than a juvenile court are held if

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a sitting of that other court has been or will be held there within an hour before or after the sitting of the juvenile court; and no person shall be present at any sitting of a juvenile court except—

(a) members and officers of the court;

(b) parties to the case before the court, their solicitors and counsel, and witnesses and other persons directly concerned in that case;

(c) bona fide representatives of newspapers or news agencies;

(d) such other persons as the court may specially authorise to be present:

49.—(1) Subject as hereinafter provided, no newspaper report of any proceedings in a juvenile court shall reveal the name, address or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in those proceedings, either as being the person against or in respect of whom the proceedings are taken or as being a witness therein, nor shall any picture be published in any newspaper as being or including a picture of any child or young person so concerned in any such proceedings as aforesaid:

Provided that the court or the Secretary of State may in any case, if satisfied that it is appropriate to do so for the purpose of avoiding injustice to a child or young person, by order dispense with the requirements of this section in relation to him to such extent as may be specified in the order.

(2) Any person who publishes any matter in contravention of this section shall on summary conviction be liable in respect of each offence to a fine not exceeding five hundred pounds.

As already mentioned, the provisions of the Juvenile Delinquents Act are not as clear as those above. In the absence of clearer language it is nonetheless necessary to give a meaning to the expression “without publicity” and in my view an analysis of the relevant provisions of the Act and of what have been called “cognate provisions” of the Criminal Code leads to the conclusion that it means in camera.

Section 12(1) provides that the trials of children “shall take place without publicity and separately and apart from the trials of other accused persons…” The verb “shall” is mandatory and allows no discretion.

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That this expression means private or in camera is further supported in my view by subs. 2 which provides that “Such trials may be held in the private office of the judge or in some other private room in the court house or municipal building, or in the detention home, or if no such room or place is available, then in the ordinary court room,…” The rule is that such trials are to be held in a private office or a private room, or at a place where there is no public access namely the detention home. The use of the verb “may” seems to indicate that these provisions are not mandatory, but it must be observed that it is only if no such private room or place is available that the trial may “then” be held in the ordinary court room. In the latter case, it is further provided that: “an interval of half an hour shall be allowed to elapse between the close of the trial or examination of any adult and the beginning of the trial of a child”. In my view this requirement supports the proposition that the trial is to be held in camera. The general rule being that trials must be held in open court, the object of this specific provision is to set aside the general rule and by directing that an interval of half an hour be allowed to elapse, to better ensure that the court room will be evacuated and that the children will not come into contact with adult accused or other persons who might have some bad influence on them.

This interpretation is, in my view, reinforced by the fact that whichever persons may be present at the trial, other than those who are generally admitted at in camera proceedings, such as of course the judge, court officials, counsel, are the object of a specific provision of the Act. I refer more particularly to the parents or guardian of the child, the representatives of the juvenile court committee and the probation officer.

As regards the parents or guardian of the child, s. 10(1) provides:

10. (1) Due notice of the hearing of any charge of delinquency shall be served on the parent or parents or the guardian of the child, or if there is neither parent nor guardian, or if the residence of the parent or parents

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or guardian is unknown, then on some near relative, if any, living in the city, town or county, whose whereabouts is known, and any person so served has the right to be present at the hearing.

As regards the representatives of the juvenile court committee, s. 27(1) provides that:

27. (1) There shall be in connection with the juvenile court a committee of citizens, serving without remuneration, to be known as the “juvenile court committee”.

And s. 28(2) reads:

(2) Representatives of the juvenile court committee, who are members of that committee, may be present at any session of the juvenile court.

Finally, as regards the probation officer, s. 31 provides:

31. It is the duty of a probation officer

(a) to make such investigation as may be required by the court;

(b) to be present in court in order to represent the interests of the child when the case is heard;

(c) to furnish to the court such information and assistance as may be required; and

(d) to take such charge of any child, before or after trial, as may be directed by the court.

If the trial of a child were to be open to the public at large there would be no need for such provisions as those contained in ss. 10(1), 28(2) and 31(b).

Section 24(1) has been cited as supporting the opposite interpretation. That section reads as follows:

24. (1) No child, other than an infant in arms, shall be permitted to be present in court during the trial of any person charged with an offence or during any proceedings preliminary thereto, and if so present the child shall be ordered to be removed unless he is the person charged with the alleged offence, or unless the child’s presence is required, as a witness or otherwise, for the purposes of justice.

It is argued that if the trial is to be private it was not necessary to provide specifically for the exclusion of a child. There may be another reason, however, why this specific provision was required. Indeed “person charged” in s. 24 includes a child

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wherefor it is provided that a child will be permitted to be present if he is the person charged. But, the expression “person charged” obviously includes adults also, for instance adults charged under s. 33 (contributing to juvenile delinquency) or s. 35 (criminal offences in respect of a child). The “without publicity” requirement of s. 12(1) applies to trials of children only and to my knowledge there is no like provision for the trial of an adult in a juvenile court. Hence, the need for s. 24 to exclude children from the trial of an adult in juvenile court.

Criminal Code Provisions

I turn now to ss. 441 and 442 of the Criminal Code, R.S.C. 1970, c. C-34, as amended, which it is convenient to reproduce side by side with s. 12(1):

s. 12(1) J.D.A.

The trials of children shall take place without publicity and separately and apart from the trials of other accused persons, and at suitable times to be designated and appointed for that purpose.

s. 441 Cr.C.

Where an accused is or appears to be under the age of sixteen years, his trial shall take place without publicity, whether he is charged alone or jointly with another person.

s. 442(1) Cr.C.

Any proceedings against an accused that is a corporation or who is or appears to be sixteen years of age or more shall be held in open court, but where the presiding judge, magistrate or justice, as the case may be, is of the opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice to exclude all or any members of the public from the court room for all or part of the proceedings, he may so order.

As can be seen, the rule under the Criminal Code is that in the case of an accused under the age of sixteen years, the trial “shall take place without publicity”; if over sixteen years, it will be held “in open court”. It has been argued that “without publicity” in s. 441 does not mean in camera because when dealing with the exclusion of the public, s. 442 uses different language, namely, an order must be made to exclude the public at the discretion of the judge in one or the other of the circumstances described. In my view, a proper reading of these sections rather supports the inter-

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pretation suggested above that the rule is under sixteen years “without publicity” and over sixteen years “in open court” and that the words “without publicity” mean the opposite of “in open court”, that is in camera. The very same words applied to the same category of persons, children, in a much similar context must have the same meaning and if therefore in s. 441 “without publicity” means in camera, the same expression in s. 12 of the Juvenile Delinquents Act means the same.

It has been argued by the respondent that if such be the meaning of “without publicity” s. 12(3) becomes meaningless and superfluous. It is said that if there is a discretion in the judge to allow the publication of particulars which will reveal the identity of the child, this must mean that the media are entitled to report on charges against children and on their trial and that this implies that they must be entitled to attend the trial. It must be noted that s. 12(3) is not aimed solely at the trial itself, but applies to all coverage of offences committed by children and applies as well to trials of adults in the juvenile court. Given this broader scope, s. 12(3) is not confined to the trial proper, let alone the trial of a child and in my view it is in no way irreconcilable with s. 12(1) and the meaning I ascribe to it, namely, that the trials of children shall take place in camera. I borrow again from the reasons of Toy J. in N. v. Macdonald Prov. J. and Attorney General of British Columbia, supra, at p. 632:

Here, again, I reiterate the fundamental conclusion that I have arrived at, namely, that subs. (1) of s. 12 concerns itself with the private trial and subs. (3) of s. 12 concerns itself with the prohibition against publication of a child or its parents’ names or identity without the special approval of the Juvenile Court Judge.

In my view, members of the press still have available to them all the tools and artifices of their trade, which includes their right to solicit information from witnesses and others engaged in investigative work. It is true that they do not have the ultimate benefit of being present in the juvenile courtroom where sworn testimony is given, but any

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and all other sources of information concerning the events and circumstances surrounding the delinquency may be considered and reported by them, providing the names or an indication of the identity of the child or its parents are not published.

In concluding, I think it is appropriate to refer to the definitions of the words “publicity” and “in camera” which also support the interpretation I have adopted.

The Shorter Oxford English Dictionary, 3rd edition, defines “publicity” as follows:

The quality of being public; the condition or fact of being open to public observation or knowledge.

Jowitt’s Dictionary of English Law, 2nd edition, defines “in camera” as follows:

…when the judge either hears it in his private room, or causes the doors of the court to be closed and all persons, except those concerned in the case, to be excluded.

Conclusion and Disposition

I would allow the appeal with costs in all courts and order that the information be referred back to the Provincial Judges’ Court (Family Division) of Winnipeg, for disposition according to law.

Appeal allowed with costs.

Solicitor for the appellant: Martin S. Minuk, Winnipeg.

Solicitor for the respondent Her Majesty The Queen: Gordon E. Pilkey, Winnipeg.

Solicitors for the respondent radio stations: Booth, Kripiakevich & Denneh, Winnipeg.

Footnotes

1. 11980 CanLII 2865 (MB CA), [1980] 6 W.W.R. 177; (1980), 53 C.C.C. (2d) 251, 5 Man. R. (2d) 66.
2. 2(1946), 1946 CanLII 229 (BC SC), 88 C.C.C. 8.
3. 31979 CanLII 3072 (BC SC), [1979] 4 W.W.R. 620.
4. 4(1979), 1979 CanLII 751 (BC CA), 10 C.R. (3d) 68.
5. 5(1975), 1975 CanLII 775 (ON CJ), 13 O.R. (2d) 6.
6. 6(1979), 2 Fam. L. Rev. 213.
7. 71967 CanLII 65 (SCC), [1967] S.C.R. 702.
8. 8(1959), 1959 CanLII 496 (ON SC), 125 C.C.C. 100.
9. 9(1944), 1944 CanLII 494 (MB CA), 82 C.C.C. 105.
10. 10(1948), 1948 CanLII 336 (MB KB), 92 C.C.C. 282.
11. 11(1955), 1955 CanLII 443 (MB CA), 111 C.C.C. 312.
12. 121963 CanLII 672 (MB CA), [1964] 1 C.C.C. 173.
13. 131963 CanLII 742 (ON CJ), [1964] 2 C.C.C. 316.
14. 14(1965), 1965 CanLII 289 (ON SC), 46 C.R. 103.
15. 151970 CanLII 456 (ON CA), [1971] 1 O.R. 75.
16. 16(1958), 1958 CanLII 465 (MB CA), 121 C.C.C. 103.