Case information
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36844
Her Majesty the Queen, et al. v. Warrant Officer J.G.A. Gagnon, et al.
(Federal) (Criminal) (By Leave)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2016-07-28 | Appeal closed | |
| 2016-07-25 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2016-07-25 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2016-07-22 |
Judgment on the appeal rendered, CJ Abe Cro Mo Ka Wa Ga Côt Br, The appeal from the judgment of the Court Martial Appeal Court of Canada, Numbers CMAC-577 and CMAC-581, 2015 CMAC 2, dated December 21, 2015, heard on April 25, 2016, is allowed. Section 230.1 of the National Defence Act, R.S.C. 1985, c. N-5, is constitutional. The matter is remitted to the Court Martial Appeal Court for the hearing of the appeals on the merits. Allowed |
|
| 2016-05-11 | Transcript received, 102 pages | |
| 2016-04-29 | Correspondence received from, (Letter Form), Caporal Mark Létourneau re: error mentioned at the hearing (Sent to the Court 2016-005-02), (Electronic version filed on 2016-04-28) | Warrant Officer J.G.A. Gagnon |
| 2016-04-25 | Order issued on motion for a stay of execution, by the Court | |
| 2016-04-25 |
Decision on the motion for a stay of execution, the Court, WHEREAS the appellant in case 36844 filed a motion for a stay of execution of the declaration of invalidity ordered by the Court Martial Appeal Court of Canada on December 21, 2015 and suspended for a period of six months; AND WHEREAS the motion was referred to the panel of the Court that would deal with the appeal on its merits; AND THE APPEAL having been heard; IT IS HEREBY ORDERED THAT: 1. The motion is granted; and 2. The declaration of invalidity will remain suspended until this Court’s decision on the appeal. Granted |
|
| 2016-04-25 | General proceeding, (Letter Form), Nothing said in regards to the publication ban | Her Majesty the Queen |
| 2016-04-25 | Judgment reserved OR rendered with reasons to follow | |
| 2016-04-25 |
Hearing of the appeal, 2016-04-25, CJ Abe Cro Mo Ka Wa Ga Côt Br Judgment reserved |
|
| 2016-04-25 | Respondent's condensed book, (Book Form), Joint with 36466 and filed in Court | Warrant Officer J.G.A. Gagnon |
| 2016-04-25 | Appellant's condensed book, (Book Form), Joint with 36466 and filed in Court | Her Majesty the Queen |
| 2016-04-19 | Correspondence received from, (Letter Form), (Included in the notice of appearance), 3 reserved seats | Warrant Officer J.G.A. Gagnon |
| 2016-04-19 | Notice of appearance, (Letter Form), Jean-Bruno Cloutier and Mark Létourneau will be appearing and presenting oral argument. | Warrant Officer J.G.A. Gagnon |
| 2016-04-19 |
Order by, Abe, FURTHER TO THE ORDER dated April 5, 2016 and revised April 7, 2016, granting leave to intervene in the appeal in file no. 36466 to the Directeur des poursuites criminelles et pénales du Québec; IT IS HEREBY FURTHER ORDERED THAT: 1. The said intervener is granted permission to present oral argument not exceeding ten (10) minutes at the hearing of the appeals. 2. The Attorney General of Canada, the Attorney General of Ontario, the Attorney General of Quebec and the Attorney General of British Columbia are each granted permission to present oral argument not exceeding five (5) minutes at the hearing of the appeals. Granted |
|
| 2016-04-19 | Appeal perfected for hearing | |
| 2016-04-18 | Notice of appearance, (Letter Form), Joyce De Witt-Van Oosten, Q.C. will be appearing | Attorney General of British Columbia |
| 2016-04-18 | Notice of appearance, (Letter Form), Ginette Gobeil and François Lacasse will be appearing and Mr. Lacasse will make oral submissions. | Attorney General of Canada |
| 2016-04-15 | Respondent's book of authorities, (Book Form), (4 volumes), Joint with 36466, Completed on: 2016-04-20, (Electronic version filed on 2016-04-20) | Warrant Officer J.G.A. Gagnon |
| 2016-04-15 | Respondent's factum, (Book Form), Completed on: 2016-04-20, (Electronic version filed on 2016-04-20) | Warrant Officer J.G.A. Gagnon |
| 2016-04-15 | Intervener's book of authorities, (Book Form), Joint with 36466, Completed on: 2016-04-15, (Electronic version filed on 2016-04-15) | Attorney General of Ontario |
| 2016-04-15 | Intervener's factum - AG on constitutional question, (Book Form), Joint with 36466, Completed on: 2016-04-15, (Electronic version filed on 2016-04-15) | Attorney General of Ontario |
| 2016-04-15 | Intervener's book of authorities, (Book Form), Joint with 36466, Completed on: 2016-04-15, (Electronic version filed on 2016-04-15) | Attorney General of Canada |
| 2016-04-15 | Intervener's factum - AG on constitutional question, (Book Form), Joint with 36466 - English translation filed on 2016-04-22, Completed on: 2016-04-15, (Electronic version filed on 2016-04-15) | Attorney General of Canada |
| 2016-04-14 | Intervener's book of authorities, (Book Form), Joint with 36466, Completed on: 2016-04-14, (Electronic version filed on 2016-04-14) | Attorney General of Quebec |
| 2016-04-14 | Intervener's factum - AG on constitutional question, (Book Form), Joint with 36466, Completed on: 2016-04-14, (Electronic version filed on 2016-04-14) | Attorney General of Quebec |
| 2016-04-14 | Intervener's book of authorities, (Book Form), Joint with 36466, Completed on: 2016-04-14, (Electronic version filed on 2016-04-14) | Attorney General of British Columbia |
| 2016-04-14 | Intervener's factum - AG on constitutional question, (Book Form), Joint with 36466, Completed on: 2016-04-14, (Electronic version filed on 2016-04-14) | Attorney General of British Columbia |
| 2016-04-14 | Notice of appearance, Sylvain Leboeuf will be appearing | Attorney General of Quebec |
| 2016-04-11 | Certificate of counsel (attesting to record), (Letter Form), (Electronic version filed on 2016-04-11) | Her Majesty the Queen |
| 2016-04-07 | Notice of intervention respecting a constitutional question | Attorney General of Canada |
| 2016-04-07 | Notice of appearance, (Letter Form), Colonel B.W. MacGregor, Lieutenant Colonel David Antonyshyn and Major Dylan Kerr and Dylan Kerr and Colonel Antonyshyn will be presenting the oral arguments | Her Majesty the Queen |
| 2016-04-06 | Notice of appearance, Patrick J. Monahan and Jamie Klukach will be appearing and Mr. Monahan will present oral argument | Attorney General of Ontario |
| 2016-04-05 | Appellant's record, (Book Form), Completed on: 2016-04-12, (Electronic version filed on 2016-04-05) | Her Majesty the Queen |
| 2016-04-05 | Appellant's book of authorities, (Book Form), Completed on: 2016-04-08, (Electronic version filed on 2016-04-05) | Her Majesty the Queen |
| 2016-04-05 | Appellant's factum, (Book Form), Completed on: 2016-04-08, (Electronic version filed on 2016-04-05) | Her Majesty the Queen |
| 2016-04-05 | Notice of intervention respecting a constitutional question | Attorney General of British Columbia |
| 2016-04-04 | Notice of intervention respecting a constitutional question | Attorney General of Ontario |
| 2016-04-01 | Notice of intervention respecting a constitutional question | Attorney General of Quebec |
| 2016-04-01 | Notice of constitutional question(s), All Attorneys General served on March 30, 2016 | Her Majesty the Queen |
| 2016-03-30 | Order on motion to state a constitutional question, (by CHIEF JUSTICE MCLACHLIN) | |
| 2016-03-30 |
Decision on the motion to state a constitutional question, CJ, UPON APPLICATION by the appellant for an order stating constitutional questions in the above appeal; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT THE CONSTITUTIONAL QUESTIONS BE STATED AS FOLLOWS: 1. Does section 230.1 of the National Defence Act, R.S.C. 1985, c. N-5, infringe section 7 of the Canadian Charter of Rights and Freedoms? 2. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under section 1 of the Canadian Charter of Rights and Freedoms? 3. Does section 230.1 of the National Defence Act, R.S.C. 1985, c. N-5, infringe section 11(d) of the Canadian Charter of Rights and Freedoms? 4. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under section 1 of the Canadian Charter of Rights and Freedoms? Any attorney general who intervenes pursuant to par. 61(4) of the Rules of the Supreme Court of Canada shall pay the appellant and respondents the costs of any additional disbursements they incur as a result of the intervention. IT IS HEREBY FURTHER ORDERED THAT: 1. The Notice of Constitutional Question shall be served and filed on or before April 1, 2016. 2. Any attorney general wishing to intervene pursuant to par. 61(4) of the Rules of the Supreme Court of Canada shall serve and file a Notice of Intervention Respecting Constitutional Questions on or before April 8, 2016. 3. Any attorney general wishing to intervene pursuant to par. 61(4) of the Rules of the Supreme Court of Canada shall serve and file their factum and book of authorities on or before April 18, 2016. Granted |
|
| 2016-03-30 | Submission of motion to state a constitutional question, CJ | |
| 2016-03-24 | Motion to state a constitutional question, (Letter Form), Fee missing. (filing fee received 2016-04-07)., Completed on: 2016-03-24, (Electronic version filed on 2016-03-24) | Her Majesty the Queen |
| 2016-03-24 | Notice of appeal, (Letter Form), Completed on: 2016-03-24, (Electronic version filed on 2016-03-24) | Her Majesty the Queen |
| 2016-03-24 | Notice of hearing sent to parties | |
| 2016-03-23 | Correspondence (sent by the Court) to, all parties by mail, re: filing deadlines fixed by the Registrar. Letter signed by the Registrar. Filing timetable: Notice of Appeal due 3/24/16; Motion for constitutional questions due 3/24/16; Responses for motion for constitutional questions due 3/30/16; Replies for motion for constitutional questions due 3/31/16; Appellants’ documents due 4/5/16; Motion for leave to intervene due 4/8/16; Responses to motions for leave to intervene due 4/11/16; Replies to responses due 4/12/16; Respondents’ documents due 4/15/16; Intervener Factum due 4/18/16. | |
| 2016-03-23 |
Appeal hearing scheduled, 2016-04-25, EARLY START - 9:00am Judgment reserved |
|
| 2016-03-23 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2016-03-23 | Judgment on leave sent to the parties | |
| 2016-03-22 |
Judgment of the Court on the application for leave to appeal, The motion to expedite the proceedings, abridge time and hold a joint hearing with R. v. Cawthorne (36466) is granted. The motion for a stay of execution is referred to the panel of the Court that will deal with the appeal on its merits. The application for leave to appeal from the judgment of the Court Martial Appeal Court of Canada, Numbers CMAC-577 and CMAC-581, 2015 CMAC 2, dated December 21, 2015, is granted. The schedule for serving and filing materials will be set by the Registrar. Granted |
|
| 2016-03-22 |
Decision on motion to expedite the application for leave to appeal, See judgment on leave application. Granted |
|
| 2016-03-22 |
Decision on the motion for a stay of execution, See judgment on leave application. Referred |
|
| 2016-03-03 | All materials on application for leave submitted to the Judges, Cro Wa Côt | |
| 2016-03-03 | Submission of motion for a stay of execution, Cro Wa Côt | |
| 2016-03-03 | Submission of motion to expedite the application for leave to appeal, Cro Wa Côt | |
| 2016-03-02 | Reply to motion for a stay of execution, (Letter Form), (Included in the applicant's reply to respondent's argument), Completed on: 2016-03-02 | Her Majesty the Queen |
| 2016-03-02 | Reply to motion to expedite the application for leave to appeal, (Letter Form), (Included in the applicant's reply to respondent's argument), Completed on: 2016-03-02 | Her Majesty the Queen |
| 2016-03-02 | Applicant's reply to respondent's argument, (Letter Form), Completed on: 2016-03-02, (Electronic version filed on 2016-03-02) | Her Majesty the Queen |
| 2016-02-29 | Certificate (on limitations to public access), (Letter Form), (Electronic version filed on 2016-02-29) | Warrant Officer J.G.A. Gagnon |
| 2016-02-29 | Response to the motion for a stay of execution, (Book Form), (Included in the respondent's response on the application for leave to appeal), Completed on: 2016-02-29 | Warrant Officer J.G.A. Gagnon |
| 2016-02-29 | Response to the motion to expedite the application for leave to appeal, (Letter Form), (Included in the respondent's response on the application for leave to appeal), Completed on: 2016-02-29 | Warrant Officer J.G.A. Gagnon |
| 2016-02-29 | Respondent's response on the application for leave to appeal, (Book Form), Proof of service missing - rec'd March 4/2016, Completed on: 2016-02-29, (Electronic version filed on 2016-02-29) | Warrant Officer J.G.A. Gagnon |
| 2016-02-10 | Letter acknowledging receipt of a complete application for leave to appeal, file opened 2016-02-10. | |
| 2016-02-09 | Motion for a stay of execution, (Book Form), (Included in the application for leave to appeal), Completed on: 2016-02-09 | Her Majesty the Queen |
| 2016-02-09 | Correspondence received from, (Letter Form), counsel for the applicant, Bruce W. MacGregor asked that this application for leave to appeal be heard with the file # 36466., (Electronic version filed on 2016-02-09) | Her Majesty the Queen |
| 2016-02-09 | Motion to expedite the application for leave to appeal, (Book Form), (Included in the application for leave to appeal), Completed on: 2016-02-09 | Her Majesty the Queen |
| 2016-02-09 | Certificate (on limitations to public access), (Letter Form), (Electronic version filed on 2016-02-09) | Her Majesty the Queen |
| 2016-02-09 | Application for leave to appeal, (Book Form), Completed on: 2016-02-09, (Electronic version filed on 2016-02-09) | Her Majesty the Queen |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Her Majesty the Queen | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Warrant Officer J.G.A. Gagnon | Respondent | Active |
And Between
| Name | Role | Status |
|---|---|---|
| Her Majesty the Queen | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Corporal A.J.R. Thibault | Respondent | Active |
Other parties
| Name | Role | Status |
|---|---|---|
| Attorney General of Canada | Intervener | Active |
| Attorney General of Ontario | Intervener | Active |
| Attorney General of Quebec | Intervener | Active |
| Attorney General of British Columbia | Intervener | Active |
Counsel
Party: Her Majesty the Queen
Counsel
Bruce MacGregor
David Antonyshyn
Dylan Kerr
David Antonyshyn
Dylan Kerr
Director of Military Prosecutions
Major-General George R. Pearkes Building
101 Colonel By Drive
Ottawa, Ontario
K1A 0K2
Telephone: (613) 995-6321
FAX: (613) 995-1840
Email: bruce.macgregor@forces.gc.ca
Major-General George R. Pearkes Building
101 Colonel By Drive
Ottawa, Ontario
K1A 0K2
Telephone: (613) 995-6321
FAX: (613) 995-1840
Email: bruce.macgregor@forces.gc.ca
Agent
David Antonyshyn
Director of Military Prosecutions
7 South Tower
101 Colonel By Drive
Ottawa, Ontario
K1A 0K2
Telephone: (613) 996-6333
FAX: (613) 995-1840
Email: david.antonyshyn@forces.gc.ca
7 South Tower
101 Colonel By Drive
Ottawa, Ontario
K1A 0K2
Telephone: (613) 996-6333
FAX: (613) 995-1840
Email: david.antonyshyn@forces.gc.ca
Party: Warrant Officer J.G.A. Gagnon
Counsel
Mark Létourneau
Jean-Bruno Cloutier
Jean-Bruno Cloutier
Services d'avocats de la défense
Centre Asticou, Bloc 300
241 Boulevard Cité des jeunes
Gatineau, Quebec
J8Y 6L2
Telephone: (819) 934-3334
FAX: (819) 997-6322
Email: mark.letourneau@forces.gc.ca
Centre Asticou, Bloc 300
241 Boulevard Cité des jeunes
Gatineau, Quebec
J8Y 6L2
Telephone: (819) 934-3334
FAX: (819) 997-6322
Email: mark.letourneau@forces.gc.ca
Party: Corporal A.J.R. Thibault
Counsel
Mark Létourneau
Jean-Bruno Cloutier
Jean-Bruno Cloutier
Services d'avocats de la défense
Centre Asticou, Bloc 300
241 Boulevard Cité des jeunes
Gatineau, Quebec
J8Y 6L2
Telephone: (819) 934-3334
FAX: (819) 997-6322
Email: mark.letourneau@forces.gc.ca
Centre Asticou, Bloc 300
241 Boulevard Cité des jeunes
Gatineau, Quebec
J8Y 6L2
Telephone: (819) 934-3334
FAX: (819) 997-6322
Email: mark.letourneau@forces.gc.ca
Party: Attorney General of Quebec
Counsel
Sylvain Leboeuf
Procureur général du Québec
1200, Route de l'Église, 2ème étage
Québec, Quebec
G1V 4M1
Telephone: (418) 643-1477 Ext: 21010
FAX: (418) 644-7030
Email: Sylvain.leboeuf@justice.gouv.qc.ca
1200, Route de l'Église, 2ème étage
Québec, Quebec
G1V 4M1
Telephone: (418) 643-1477 Ext: 21010
FAX: (418) 644-7030
Email: Sylvain.leboeuf@justice.gouv.qc.ca
Agent
Pierre Landry
Noël et Associés, s.e.n.c.r.l.
111, rue Champlain
Gatineau, Quebec
J8X 3R1
Telephone: (819) 503-2178
FAX: (819) 771-5397
Email: p.landry@noelassocies.com
111, rue Champlain
Gatineau, Quebec
J8X 3R1
Telephone: (819) 503-2178
FAX: (819) 771-5397
Email: p.landry@noelassocies.com
Party: Attorney General of Ontario
Counsel
Patrick J. Monahan
Jamie C. Klukach
Jamie C. Klukach
Attorney General of Ontario
720 Bay Street, 11th Floor
Toronto, Ontario
M7A 2S9
Telephone: (416) 326-2640
FAX: (416) 326-4018
Email: patrick.monahan@ontario.ca
720 Bay Street, 11th Floor
Toronto, Ontario
M7A 2S9
Telephone: (416) 326-2640
FAX: (416) 326-4018
Email: patrick.monahan@ontario.ca
Agent
Robert E. Houston, Q.C.
Burke-Robertson
441 MacLaren Street
Suite 200
Ottawa, Ontario
K2P 2H3
Telephone: (613) 236-9665
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com
441 MacLaren Street
Suite 200
Ottawa, Ontario
K2P 2H3
Telephone: (613) 236-9665
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com
Party: Attorney General of British Columbia
Counsel
M. Joyce DeWitt-Van Oosten, Q.C.
Attorney General of British Columbia
3rd Floor, 940 Blanshard Street
Victoria, British Columbia
V8W 3E6
Telephone: (250) 387-0284
FAX: (250) 387-4262
3rd Floor, 940 Blanshard Street
Victoria, British Columbia
V8W 3E6
Telephone: (250) 387-0284
FAX: (250) 387-4262
Agent
Robert E. Houston, Q.C.
Burke-Robertson
441 MacLaren Street
Suite 200
Ottawa, Ontario
K2P 2H3
Telephone: (613) 236-9665
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com
441 MacLaren Street
Suite 200
Ottawa, Ontario
K2P 2H3
Telephone: (613) 236-9665
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com
Party: Attorney General of Canada
Counsel
Ginette Gobeil
François Lacasse
François Lacasse
Procureur général du Canada
Complexe Guy Favreau
200, boul. René Lévesque Ouest, 9e Étage
Montréal, Quebec
H2Z 1X4
Telephone: (514) 496-8115
FAX: (514) 283-3856
Email: ginette.gobeil@justice.gc.ca
Complexe Guy Favreau
200, boul. René Lévesque Ouest, 9e Étage
Montréal, Quebec
H2Z 1X4
Telephone: (514) 496-8115
FAX: (514) 283-3856
Email: ginette.gobeil@justice.gc.ca
Agent
Robert J. Frater Q.C.
Attorney General of Canada
50 O'Connor Street, Suite 500, Room 556
Ottawa, Ontario
K1P 6L2
Telephone: (613) 670-6289
FAX: (613) 954-1920
Email: robert.frater@justice.gc.ca
50 O'Connor Street, Suite 500, Room 556
Ottawa, Ontario
K1P 6L2
Telephone: (613) 670-6289
FAX: (613) 954-1920
Email: robert.frater@justice.gc.ca
Summary
Keywords
None.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
Charter of Rights - Fundamental justice - Prosecutorial independence - Appeals - Courts - Jurisdiction - Judgments and orders - Stay of execution - Whether s. 230.1 of National Defence Act, R.S.C. 1985, c. N-5, infringes s. 7 of Canadian Charter of Rights and Freedoms - If so, whether infringement is reasonable limit prescribed by law that can be demonstrably justified in free and democratic society under s. 1 of Charter - Whether s. 230.1 of National Defence Act infringes s. 11(d) of Charter - If so, whether infringement is reasonable limit prescribed by law that can be demonstrably justified in free and democratic society under s. 1 of Charter - Whether stay of execution of Court of Appeal’s declaration of invalidity should be ordered pending this Court’s decision on constitutional questions raised in this case.
The two respondents, who were members of the Canadian Forces, were charged with sexual assault in two separate cases and were successful at trial. When the appellant appealed the verdicts, the respondents brought motions to quash and dismiss the appeals on the basis that s. 230.1 of the National Defence Act is inconsistent with the constitutional requirement of prosecutorial independence. The Court Martial Appeal Court held that s. 230.1 is invalid. The declaration of invalidity was suspended for a six-month period ending on June 21, 2016. The respondents’ motions to quash and dismiss the appeals were dismissed, however, and the hearing of the appeals on the merits was adjourned to a date to be determined after the expiry of the period during which the effect of the declaration of invalidity was suspended.
Lower court rulings
January 13, 2015
Standing Court Martial
201431, 2015 CM 1001
Standing Court Martial
201431, 2015 CM 1001
Respondent Thibault’s plea in bar of trial allowed: charge of sexual assault against respondent Thibault did not disclose service offence
December 21, 2015
Court Martial Appeal Court of Canada
2015 CACM 2, CMAC-577, CMAC-581
Court Martial Appeal Court of Canada
2015 CACM 2, CMAC-577, CMAC-581
Respondents’ motions to quash and dismiss applicant’s appeals dismissed; s. 230.1 of National Defence Act held to be invalid, and declaration of invalidity suspended for six months; hearing of appeals on merits adjourned
Memorandums of argument on application for leave to appeal
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If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
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Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
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Date modified: 2025-02-27