January 2025

ADVOCATE

JANUARY 2025

OFFICERS AND EXECUTIVES

LAW SOCIETY OF BRITISH COLUMBIA

Jeevyn Dhaliwal, K.C. President

Brook Greenberg, K.C.

First Vice President

Thomas Spragg

Second Vice President

Gigi Chen-Kuo

Chief Executive Officer and Executive Director

BENCHERS

APPOINTED BENCHERS

Simran Bains

Paul A.H. Barnett

Sasha Hobbs

ELECTED BENCHERS

Aleem Bharmal, K.C.

Tanya Chamberlain

Nikki Charlton

Jennifer Chow, K.C.

Christina J. Cook

Cheryl S. D’Sa, K.C.

Jeevyn Dhaliwal, K.C.

Tim Delaney

Brian Dybwad

Brook Greenberg, K.C.

Katrina Harry, K.C.

Ravi Hira, K.C.

James A.S. Legh

Dr. Jan Lindsay

Michèle Ross

Natasha Tony

Benjamin Levine

Jaspreet Singh Malik

Jay Michi

Georges Rivard

Gurminder Sandhu, K.C.

Thomas L. Spraggs

Barbara Stanley, K.C.

James Struthers

Michael F. Welsh, K.C.

Kevin B. Westell

Jonathan Yuen

Gaynor C. Yeung

BRITISH COLUMBIA BAR ASSOCIATIONS

ABBOTSFORD & DISTRICT

Kirsten Tonge, President

CAMPBELL RIVER

Ryan A. Krasman, President

CHILLIWACK & DISTRICT

Nicholas Cooper, President

COMOX VALLEY

Michael McCubbin, President

Shannon Aldinger, President

COWICHAN VALLEY

Jeff Drozdiak, President

FRASER VALLEY

Michael Jones, President

KAMLOOPS

Jeanine Ball, President

KELOWNA

Tom Fellhauer, K.C., President

KOOTENAY

Dana Romanick, President

NANAIMO CITY

Kristin Rongve, President

NANAIMO COUNTY

Lisa M. Low, President

NEW WESTMINSTER

Mylene de Guzman, President

NORTH FRASER

Lyle Perry, President

NORTH SHORE

Adam Soliman, President

PENTICTON

Ryu Okayama, President

CANADIAN BAR ASSOCIATION

BRITISH COLUMBIA BRANCH

BOARD OF DIRECTORS

Lee Nevens

President

Mylene de Guzman

First Vice President

Patricia Blair

Second Vice President

Dan Moseley

Finance & Audit Committee Chair

Dan Melnick

Young Lawyers Representative

Dimple Kainth

Equity, Diversity and Inclusion Representative

Adam Munnings

Aboriginal Lawyers Forum Representative

Connor Bildfell

Director at Large

Sarah Klinger

Director at Large

Randolph W. Robinson

Director at Large

Nathan Bauder

Director at Large

ELECTED MEMBERS OF CBABC PROVINCIAL COUNCIL

PORT ALBERNI

Christina Proteau, President

PRINCE GEORGE

Marie Louise Ahrens, President

PRINCE RUPERT

Bryan Crampton, President

QUESNEL

Karen Surcess, President

SALMON ARM

Dennis Zachernuk, President

SOUTH CARIBOO COUNTY

Angela Amman, President

SURREY

Peter Buxton, K.C., President

VANCOUVER

Executive

Sean Gallagher President

Joey Levesque Vice President

Spencer Malthouse

Secretary Treasurer

Heather Doi

Past President

VERNON

Chelsea Kidd, President

VICTORIA

Sofia Bakken, President

CARIBOO

Coral D. Atchison

Nathan R. Bauder

Jon Maurice Duncan

KOOTENAY

Jamie Lalonde

Christopher W. Trudeau

NANAIMO

Patricia D. Blair

Phil Dwyer, C.M.

Benjamin D. Kingstone

PRINCE RUPERT

Emily Beggs

VANCOUVER

Connor Bildfell

Erica Chow

Joseph G. Cuenca

Nicole L. Garton

Rupinder Gosal

Diane Maureen Gradley

Jennifer Khor

Bruce McIvor

Leena (Ronak) Yousefi

VICTORIA

J. Berry Hykin

Cherolyn Knapp

Anwarullah Mujtabah

WESTMINSTER

Rebecca Lee Darnell

Manpreet K. Mand

Natasha S. Nair

Matthew A.G. Somers

Gurjit Kaur Tiwana

YALE

Mark Brade

Laurel D. Hogg

Aachal N. Soll

CANADIAN ASSOCIATION OF BLACK LAWYERS (B.C.)

Cecilia Barnes, President

FEDERATION OF ASIAN CANADIAN LAWYERS (B.C.)

Jenny Huang, President

INDIGENOUS BAR ASSOCIATION (B.C.)

Michael McDonald, President

SOUTH ASIAN BAR ASSOCIATION OF BRITISH COLUMBIA

Hardeep S. Gill, President

ASSOCIATION DES JURISTES D’EXPRESSION FRANÇAISE DE LA COLOMBIE-BRITANNIQUE (AJEFCB)

Sandra Mandanici, President

ADVOCATE

“in the interests of an independent bar”

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Entre Nous

On the Front Cover: The Honourable Mary V. Newbury By

Yun Li-Reilly, Connor Bildfell and James Tate

The Crown’s Duty to Determine, Recognize and Respect Aboriginal Title: Part II – Implementing the Duty By

Tim Dickson

Questioning the (Unquestioned) Practice of Referral Fees on Commissions in Foreclosure Proceedings By

Tyler Holte

Delay and Timeliness: Part III – Obstacles and Implementation By

The Last Capital Case — Part II By Hamar

ON THE FRONT COVER

The Honourable Mary V. Newbury, who graces our January 2025 cover, retired from the Court of Appeal on November 26. Read all about her remarkable achievements, starting on page 19 of this issue.

•21-year

•Presided

•27

•Effective

HIRA ROWAN LLP WELCOMES

ANNE MACKENZIE

We are very pleased and honoured that, after 34 years as a Judge on all three levels of court in British Columbia, the Honourable Anne MacKenzie has joined our firm.

After 11 years of practice, Anne was appointed to the Provincial Court. Following six years on the Provincial Court, she was appointed to the Supreme Court and eventually became the first female Associate Chief Justice of the Supreme Court of British Columbia. In 2011, Anne was appointed to the British Columbia Court of Appeal and served on that court for over 12 years, retiring in May 2024.

Together with the Honourable Bruce Josephson, KC, Anne is available for mediations, arbitrations, or general advice regarding arguments. Having served as a Judge for over three decades, she is uniquely qualified to provide such assistance.

Please feel free to contact Anne by telephone at 604-638-4875 or by email at amackenzie@hirarowan.com

The Litigation Support Group

Business Valuations

• Matrimonial disputes

• Shareholder disputes

• Minority oppression actions

• Tax and estate planning

• Acquisitions and divestitures

Personal Injury Claims

• Income loss claims

• Wrongful death claims

Economic Loss Claims

• Breach of contract

• Loss of opportunity

Business Insurance Claims

• Business interruption

• Construction claims

Forensic Accounting

• Accounting investigations

• Fraud investigations

Left to Right: Kiu Ghanavizchian, Andrew Mackenzie, Gary Mynett, Vern Blair, Rob Mackay, Farida Sukhia

ENTRE NOUS

The fall of 2024 was an unsettling time for many of us, seeing continued violence both domestically and abroad, witnessing wild elections and their aftermaths, and hearing about the prospect of a further pandemic.

For a bit of respite, below we turn instead to a fall 2024 event that, at least for most of the lawyers who participated, was more upbeat: the interviews of prospective summer articled students at law firms and other employers that participated in the “Vancouver Recruit” (or variations of this in other parts of the province). The Vancouver Bar Association (“VBA”) formally designated the week of October 21, 2024 as interview week, culminating in the making of offers to students commencing at 8 a.m. (or 7:59 a.m. when emanating from firms whose clocks run strategically fast) on October 24 for temporary articles between students’ second and third years.

For most lawyers involved in student interviews, it was, as always, a pleasure to meet with enthusiastic, talented students. The law students gamely explained, much more articulately than most of us ever could, their varied reasons for attending law school. This year again, those ranged from personal and family encounters with law, both positive and negative, to having taken engaging law classes in high school. Many students also showcased impressive grades, whether in absolute terms or when considering formidable personal and employment obligations or personal and societal obstacles that impeded entry into law school itself.

The students being interviewed were, as always, kind enough to shed light on the meaning of hobbies (listed in the “interests” section of their resumes) that either did not exist in interviewers’ youth or were otherwise known only to interviewers’ hipper contemporaries. The students were also kind—or savvy—enough to give their interviewers time to indulge in a favoured lawyer pastime: talking about themselves. It takes some discipline

and self-awareness for interviewers to guard against the temptation to rank most highly those students with whom they had the best interviews … measured against the standard of the interviewers hearing themselves, at their entertaining best, speak at length.

Beyond giving lawyers the chance to interact with so many law students, interview week brings together colleagues at and across law firms. Particularly where members of interview teams are matched for representing different practice areas or generations within the firm, interviewers get to spend time with colleagues that they might not otherwise interact with that often. (The joy of these in-firm interactions is sometimes tempered, of course, by realizing at end-of-day meetings, at which interview teams compare notes, that some colleagues are not the kindred spirits that interviewers had previously assumed them to be.)

It must be acknowledged that not everyone at each law firm mixes with law students or, by extension, attends interviewer end-of-day meetings during interview periods. Deliberately excluded from the pool of interviewers may be those more colourful or crusty characters (only found at firms other than one’s own, of course) that it may take a prospective employee more time than an interview slot to get to know and appreciate. Also left out of the interviewer mix may be those renegades known for urging prospective summer students to spend their break on activities entirely outside law and perhaps even outside the country.

Apart from the recruitment experience bringing together colleagues within firms, bonds are formed across the city among lawyers and human resource professionals engaged in the same task at different firms. Interviewers recognize fellow interviewers from afar, given away by mentioning on telephone calls—or having out-of-office responses alluding to—schedules occupied during interview week by back-to-back meetings. We also see each other across the room at downtown restaurants, entertaining freshfaced potential employees.

Of course, all the above is about the interviewer side of the recruitment process. It is difficult to know what impressions the process leaves on students. They seem constantly required over the course of months leading up to interview week to “audition”—at coffees, firm tours, receptions at which people screech at them over the din, and on-campus interviews.

Students must also prepare their resumes for scrutiny with a plethora of volunteer commitments (over and above what these good-hearted students might otherwise wish to do) and risk the occasional extreme-sounding adventure … that can then be described on their resumes in a way that will catch an interviewer’s attention.

It all seems exhausting and stressful compared to what the older members of the legal profession had to do in order to break into it.

Adding to the stress, students are supposed to insert “Firm Z, you’re my first choice” language into communications with their preferred potential employer at the right moment during interview week. Given that some firms treat “you’re one of my top choices” or “I really like you” or anything else short of “first choice” as dastardly brush-offs not warranting placement of the student on the “to call” list on offer day,1 the “first-choice” utterance is very important. However, must it ever be awkward for those students not struck by Cupid’s arrow, for whom the choice of prospective employer is not clear by the end of Day 2 of interview week! Kudos to the VBA for introducing, in 2024, the requirement that employers must, as soon as reasonably possible during interview week, inform students if they are no longer being considered, particularly if a student has provided “first-choice” language, so that the students can re-direct their efforts and declarations of affection to another potential employer.

We sympathize with students who ask interviewers about how they chose their firms and hear back from them all about “fit”—such an elusive concept, yet a very real one. Looking down the lists of hires at other firms, it is not unusual to see little overlap between those students and those who met the interviewers at another.

We also sympathize with students who tried so hard to be hired, only not to receive any offers, or only to receive offers from an employer other than their real “first choice”. Far from all is lost: rest assured that some of us at the Advocate—even later-to-be “Best Lawyers”—did not receive offers for temporary articles either. There may sometimes be—or so we join with you in thinking—no truly good reason why. Perhaps it was bad luck in the interviewers the student was paired with (e.g., being stuck with the interviewer who had no questions, or only had questions that sounded as though formulated by a particularly malevolent psychologist), maybe the student was not especially awake (or was overly caffeinated) during an 8 a.m. interview slot, perhaps the case law-driven student did not look interested in playing on a firm’s sports team, or perhaps their anxiety in missing classes (law schools, might you give students a break?) overrode the enthusiasm they might otherwise have conveyed. Students, you will almost certainly prove wrong anyone who failed to recognize how much you deserved to be chosen!

Interview week inspires, among many interviewers, a certain nostalgia about—or, at least, it provides an opportunity to reflect on—their articles and early days in the practice of law. Really, how could interview week not do this, given the questions interviewees ask about interviewers’ own work

histories, and given that a good number of interviewers articled before the interviewees were born? (Law students, try not to remind interviewers of this. Some of the people who interviewed us are now retired or have been featured in Nos Disparus!) Interviewers may have appreciated an increasing need over the years to modify their own explanations of why they went to law school—the formerly tried-and-true “watching a lot of Perry Mason” response has, for several years, tended to be met by students with a puzzled stare. “Watching a lot of Ally McBeal” now suffers a similar fate. Including, as part of the historical narrative of past recruitment processes, any references to “picking up and reviewing law firm brochures” has also increasingly required explanation (“the internet wasn’t as big a thing”), as have references to receiving an offer over lunch (“there didn’t used to be an offer day…”).

Some stories of interviewers’ early days in the legal profession have a certain “you had to be there” quality, but given that so recently dusted off, here are a few stories heard around Vancouver during this past interview week (and younger readers, take into account that some of these anecdotes are from a more paper-centric era):

• Question: What most surprised you about articling when you went through it? Answer: Well, given this is in some ways an office job, there was quite a bit of need to leave the office, to collect and review client documents, to do filing runs, etc. Oh yes, and while it may in part be an office job, there aren’t really office hours: needing to be in the office on evenings and weekends is a given, though in fairness partners and associates may be there as well.

• Question: What sorts of work have you, now that you’re a partner, involved articling students in? Answer: Oh, you mean, apart from the very exciting and glamorous hearings and meetings on the most scintillating of topics that of course fill our days? Just maybe, once in a while, students have had to go review documents at client businesses. See above!

• Question: As in, looking at documents on computers there? Answer: Well no, not exactly. One student submitted an expense chit for asthma medication after having been sent to a warehouse that turned out to be particularly dusty. And well, there was the time members of the firm were sent to an attic where boxes of documents, and reportedly mice, were located.

• Question: I’ve heard of UVic rabbits, but mice …. were there mice? Answer: Everyone moved too fast through the attic to be sure.

There was some report of fur in a box whose lid was quickly reclosed.

• Question: Why else might a student need to leave the office besides reviewing documents? Answer: Well, of course to a litigator getting a court stamp on the same day as a document is filed can be really important and if the filing is in a court that still accepts physical filing, there could be a filing run…

• Question: When were you most disappointed in an articled student? Answer: Well, that’s an easy one (finally—phew!). That was when a student reached the court registry only after the doors had closed for the day. After all, they got the document a whole 10 minutes before 4 p.m.: plenty of time to reach the courthouse from the flatter parts of downtown Vancouver.

• Question: Oh, well, okay … do other articled students always make it to the courthouse in time for filing? Answer: Of course! Bonus pro tip for articled students, associates and others enlisted to file documents: wearing high heels when running to the courthouse is very helpful, because the people who otherwise stand or walk in groups in the middle of downtown sidewalks get worried about what’s happening and clear a path. Just be careful to ensure your shoes stay on—having a shoe fly at passersby can attract the kind of attention that delays the courthouse journey. And make sure that not just the time is right but also the date—one junior associate duly got to the Court of Appeal registry by 4 p.m., only to find that while they had impeccably timed their arrival, they had reached the registry several days after the filing deadline had lapsed, and the senior litigator in charge hadn’t thought to arrange for a consent order to allow for late filing.

• Question: What makes for a great articling student or junior associate? Answer: Determination! Ranking highly in everyone’s estimation is the associate who figured out how to get a box of documents to an arbitrator’s office after the elevator to the right floor was locked off—great persuasive ability in getting someone equipped with an elevator pass to allow a hitchhiker! Being able to advocate in any situation, and having command of logistics, are marvelous things.

• Question: What lawyers did you most like working with when you were articling? Answer: Those lawyers who could articulate research questions well, those who took students on field trips and

to hearings, and those who illuminated aspects of practice. The lawyers explaining particular practice points best are not necessarily those working in the practice area about which they are speaking. For example, solicitors are good at pointing out to articled students, who may be panicking that a deadline in the Supreme Court Civil Rules was missed, that litigators do not always abide by deadlines or other rules.

• Question: When articling or as a junior associate, do you bond with others in and around your year? Answer: Absolutely—speaking with others is needed to preserve sanity and otherwise share dangerous missions. For example, in the days of delivering hard copies of memoranda, fellow students were useful in doing strategic walkbys to ensure partners notorious for asking follow-up questions were not in their offices at the time of drop off. And as a certain former colleague now working across town will remember … to whom other than a fellow student or associate might one turn when convinced that a partner had started praying on receipt of the student’s prized draft book of authorities? Who other than a colleague might help figure out that what sounded like praying was an instance of the partner counting under their breath as an anger management technique deployed to deal with an earlier unrelated problem?

• Question: Well, apart from occasions like the above, when do articled students most panic? Answer: When thinking they have done something wrong before realizing that perhaps they did not (or that, if they did, there are people around to help). One vivid recollection on the talk show (sorry, interview) circuit is of young counsel for a respondent distressed by missing a filing deadline for an upcoming hearing—before realizing, after much angst, that they had not received the applicant’s materials and, as such, had nothing to respond to.

• Question: What was your experience getting feedback as a student? Answer: Getting more work if all was going well (which suited those of us who don’t like criticism, even in its constructive form).

• Question: Is it necessary to play golf when working at a law firm? Answer: It is increasingly possible to get by without it. This is a blessing for those of us who took lessons but apparently took instruction so poorly that in the end we could no longer even hit the golf ball.

• Question: What did you like least about being an articled student? Answer: All the peculiar things that law firms have traditionally thought students should do but somehow fail to disclose to students before they accept offers: participating in holiday party skits (thankfully falling out of favour), buying gifts for and supervising lawyer colleagues’ children at summer picnics, making pancakes for charity breakfasts …. (How is someone just out of law school supposed to know a single package of frozen fruit is not enough to buy as a topping for a law firm-full of orders? And, ahem, no, this is not personal—really!)

• Question: Do you get more comfortable in your work over time? Answer: In some respects certain things become familiar, but comfortable may be a stretch! Rarely do the same facts, issues and personalities arise, and alertness is a benefit in spotting legal issues (it’s all a recurring law school exam)—but don’t worry, it’s generally a great profession. As always, read all about the good, bad and ugly (topics, not people) on the remaining pages of this issue of the Advocate.

ENDNOTE

1. Paraphrasing a witty colleague and sometime social commentator.

ON THE FRONT COVER

THE HONOURABLE MARY V. NEWBURY

By Yun Li-Reilly, Connor Bildfell and James Tate*

Few people have contributed as much to the law in British Columbia as the Honourable Mary V. Newbury. In over 30 years on the bench, first at the B.C. Supreme Court and then at the Court of Appeal, she has left a lasting legacy through her rigorous yet practical approach to the law. Now, as she retires from her role as a justice and embarks on a new chapter in her career, we take this opportunity to celebrate the many contributions of this remarkable jurist, mentor and friend. We do so from our perspective as three of her former clerks— “Newbies”—who have seen and felt her impact not only on the law, but also on our own lives and on others fortunate enough to meet her.

THE EARLY YEARS

Mary Victoria Newbury was born in Calgary, Alberta to Ed Newbury, an electrical engineer, and Mary (Rogers) Newbury, a teacher. Ed Newbury and Mary Rogers had met in their early teens when ferrying from Vancouver Island to the mainland to attend their respective medical appointments: Ed on his way to a podiatrist to deal with “flat feet”, and Mary (senior) on her way to the orthodontist. They reconnected later at UBC and married. After moving to Calgary together and feeling homesick for the Island, they named their first daughter “Mary Victoria”, after their favourite city.

* We thank Mary’s sisters Heather, Elizabeth and Alex, the Honourable Pamela Kirkpatrick, Warren Wilson, K.C., Karen Nordlinger, K.C., Rose-Mary Basham, K.C., and our fellow “Newbies” for their assistance with this article. All errors are our own.

Mary’s family eventually made its way back to Vancouver Island, and after spending a few years in Nanaimo and Victoria, they ended up in Vancouver. Mary’s parents went on to have three more daughters: Heather, Elizabeth and Alex. To secure some peace and quiet from her much younger sisters, who were born between 8 and 17 years after her, Mary had her own bedroom in the basement of the house. Despite this, she was still called on to provide regular pro bono babysitting services and has fond memories of doing so. The four sisters remain extremely close to this day, and Mary’s younger sisters describe her as “an honest true friend” and “a true Renaissance woman”.

THE UNIVERSITY YEARS

After high school (having met Rick Peck, K.C., in grade 5), Mary decided to pursue her fascination with history by attending UBC. She completed an honours degree in history and international relations in 1971. Along the way, she met the Honourable Pamela Kirkpatrick and Rosemarie Wertschek, K.C. She had plans to work in foreign affairs on graduation, but these plans were put aside unexpectedly when her good friend Rosemarie saw a sign advertising “LSATs” and suggested they both give it a go.1 They also took the GRE for graduate school, but their draw to the law was too strong to ignore.

At law school, Mary was part of the esteemed UBC Law Class of 1974, which recently celebrated its 50th anniversary and was featured in the March 2024 edition of the Advocate. 2 The Class of 1974 produced a long list of jurists, King’s Counsel, politicians, professors and other accomplished members of the profession. Ask any of them who was the smartest in the room and they would say, without hesitation and in unison, “Mary”.

Anyone who has read a Newbury decision would know her intellectual prowess. What they might not know is that Mary was known by her peers in law school as the caregiver who was the most generous with her impeccable lecture notes and her time. A group of them studied together in the “American Room” in the old law library, and many credit her with getting them through law school and beyond. Karen Nordlinger, K.C., was from out of town and without a car, so Mary often drove her home after a stop at the White Spot for a hamburger and a slice of boysenberry pie, and to Mary’s parents’ house for Sunday dinners with the family. Mary was the editor of the UBC Law Review, where she worked with Gordon Turriff, K.C., and met Rose-Mary Basham, K.C.

After graduating from law school near the top of her class, she earned a Master of Laws degree at Harvard in 1975, writing her thesis on tax law

issues that would break most of our brains. During her time in the United States, she travelled to New York to celebrate American Thanksgiving with Pamela Kirkpatrick and her husband David, who was teaching at Cornell University at the time. (Mary returned their hospitality by making them a festive dinner on U.S. Thanksgiving for many years thereafter.) After Harvard, Mary returned to Vancouver to start her working career. Exactly 40 years later, she would encourage one of her former clerks to follow her footsteps at Harvard, and in true law mother fashion visited her in Boston with gifts from home and took her to see the Boston Symphony Orchestra.

THE LAWYERING YEARS

Mary’s early legal career marked her as a standout talent in a traditionally male-dominated profession. She was hired as one of the first female articling students at Ladner Downs (now Borden Ladner Gervais) and became one of the two first female associates of that firm on her call to the bar in 1976. Warren Wilson, K.C., who oversaw the hiring of articling students, recalls her as “one of the best, if not the best, student [he] ever hired”. Mary’s talent and work ethic quickly made her indispensable, often being the first choice for major transactions due to her ability to get things right on the first try and to meet demanding deadlines. She also worked for litigators in the firm, producing opinions of law on major issues. She became known for her commitment, famously pulling an all-nighter as a student to ensure a key transaction closed on time, a feat rarely attempted by students at the firm.

As an associate, Mary’s contributions only grew, managing clients and undertaking high-level work that was usually reserved for more experienced counsel. One of her landmark achievements was her instrumental role in the formation of the Hongkong Bank of Canada in 1980, helping to establish what would become Canada’s largest foreign bank. Warren noted how Mary thrived under the firm’s high expectations, impressing senior partners with her resilience and dedication: “Mary was the first female lawyer at Ladner who was squarely on the partnership track—an uncommon prospect for women in that era.” And sure enough, she became the first woman partner of that firm in 1981. In 1984, she became a partner at Mawhinney & Kellough and continued as a partner of Fraser & Beatty after those two firms merged in 1990.

Mary was a lawyer’s lawyer. Her partners and others looked to her for advice and answers when confronted with difficult and complex legal issues. She never shied away from those issues; in fact, she revelled in them. She loved the law and practised accordingly. Her vast legal knowledge, remarkable analytical skills and extraordinary work ethic were widely

known. There was no legal issue she could not solve. In 1986, Mary and Rose-Mary Basham took on “a team of 12 at Davis” in the first constitutional challenge for a group of doctors against mandatory retirement. When opposing counsel asked Rose-Mary, “Don’t you ever sleep?”, her response was “I do—I have Mary Newbury on my team.”

Throughout her career, Mary continued to distinguish herself, earning the respect and admiration of colleagues who count her as a close friend to this day. But Mary did not just solve legal issues. She also served as a mentor to countless associates who looked to her for guidance, support and advice. Despite her busy practice, she always found time to be a mentor—a theme throughout her career.

Mary also found time to contribute to the profession in other ways. For example, she participated in and wrote many CLE presentations. She led the course on company law—one of her favourite areas—in the Law Society’s Professional Legal Training Course for several years. She was appointed to the B.C. Law Reform Commission and served on that commission until her appointment to the bench. She served as a director of the Courthouse Libraries Society and as chair for three years, and as a member of the Law Society’s Competency Committee.

THE BENCH YEARS

In July 1991, after practising for 15 years, Mary was persuaded by her friend, the Honourable Mary Ellen Boyd, to apply for the bench. She had many misgivings but soon received “the call”: she had been appointed as a justice of the Supreme Court of British Columbia. Her appointment marked a special occasion for many reasons, one of which was that the appointment of solicitors—especially female solicitors—was rare, if not unheard of at the time.3 But no one could doubt the wisdom of this appointment. Mary was born to be a judge. And what a judge she was.

As a trial judge, Mary quickly established herself as a brilliant, hardworking and thoughtful judge. As a former solicitor, she was thrown into chambers for the first few months, presumably to learn the court rules. She recalls the courtroom falling uncomfortably silent when she answered in the negative on being asked if she was familiar with “a case called Inspiration Management”. Within weeks, however, she had the court rules and procedures at her fingertips.

Soon after their respective appointments to the trial court, Mary and Pamela Kirkpatrick started powerwalking during the lunch hour. Joined soon by Justice David Tysoe, they would leave the courthouse through the side door to avoid awkward run-ins with counsel who had just appeared

before them, and they would cover about 5 kilometres, or approximately 7,000 steps, while chatting about the latest cases and their families. Pamela recalls Mary often breaking into a song or a ditty during these walks, about anything they saw along the way.

While Mary enjoyed untangling thickets of facts, she was most in her element when tracing the historical roots of legal doctrines, carefully analyzing their evolution over time, and grappling with their application in hard cases. Anyone who knew her, or read even one of her decisions, knew she was destined for the Court of Appeal.

And so she went. In September 1995, after four years as a trial judge, Mary received “the other call”: she had been appointed to the Court of Appeal for British Columbia. Over the next 30 years, she earned a reputation as one of the most hardworking, prolific and outstanding judges in the history of our province. One former clerk, to whom Mary had given refuge in her basement suite during a time of need, noted that without fail, Mary left the house for work each morning at 7:20 a.m. on the dot.

The sheer volume of Mary’s contributions as a judge is staggering. By our rough count, she decided more than 2,500 reported cases, and authored reported reasons for judgment in more than 1,000 cases. The breadth of those contributions is equally impressive. Her most cited decisions include those concerning property assessments,4 assessments of future care costs,5 spousal support,6 class actions,7 issue estoppel,8 property division,9 summary trials,10 privacy,11 contempt,12 certificates of pending litigation,13 bankruptcy and insolvency, 14 separation agreements, 15 survivorship, 16 First Nations issues,17 Mareva injunctions18 and much more. While she enjoyed writing in all areas of the law, her favourite areas included commercial/ company law, shareholders’ disputes and equity generally.

Although Mary treated every case that came before her as her most important case, her 2021 decision in Dickson v. Vuntut Gwitchin First Nation stands out as one of her most memorable and impactful decisions. That case required the court to address an apparent conflict between two fundamental rights: the collective rights of self-governing Indigenous peoples to set residency requirements for seeking election as councillors under s. 25 of the Canadian Charter of Rights and Freedoms, and the individual’s right to equality under s. 15(1) of the Charter. Sitting as a justice of the Yukon Court of Appeal, Mary concluded that s. 25 of the Charter protected the First Nation’s residency requirements.19 Three years later, the Supreme Court of Canada agreed—or that is how she reads its reasons.20

As her decisions revealed, Mary truly loved the law. On that point, one of her former clerks recalls his first day clerking for Mary. She called him

into her office, which was stunning, then sat him down and asked with bated breath: “Do you like trusts?” Wanting to impress, he replied nervously: “Of course. Who doesn’t like trusts?” A smile leapt across Mary’s face. “Good. We’re going to get along just fine.”

Three points stand out about Mary’s judicial writing. First, she wrote her decisions in a careful, scholarly way. Her reasons reflected her careful attention to detail, her unparalleled command of the law, her attention to the historical epistemology of the law and her belief in the importance of developing the common law in the English tradition. Second, she always made a point to thank counsel for their submissions when they did an especially good job. She recognized the important role lawyers play in our justice system, and took steps to encourage and commend those who represent their clients effectively, even if unsuccessfully. Third, she treated all litigants, including self-represented litigants, with care and respect. She treated each decision as her most important, recognizing the significance of her decisions in the lives of everyday British Columbians. Her sisters recount that Mary was a firm believer that “justice delayed was justice denied”.

In 2018, Mary was awarded a fellowship with the Inns of Court of London, where she lived steps away from the British Museum and rubbed shoulders with judges and King’s Counsel of the English tradition, writing on the complex topic of “act of state”.

A couple of years ago, Mary elected supernumerary status, which is typically reserved for judges looking to achieve a more relaxed pace as they approach retirement. But she hardly leaned into this status: she continued at a pace that most of us would consider difficult, if not impossible, to maintain. Indeed, at the time of her mandatory retirement at age 75, it seemed she was just getting warmed up as a judge. But for mandatory retirement, we are confident she would have many years left of highly productive work as a judge.

Mary forged strong and lasting bonds with her colleagues at the bench. These included many other trailblazing women, including the Honourable Patricia Proudfoot, the Honourable Mary Southin, the Honourable Risa Levine, the Honourable Pamela Kirkpatrick, the Honourable Mary Saunders and many others. Mary confides that she is very sad to say goodbye to the Court of Appeal, a group of the most collegial fellow jurists she will forever consider her friends.

THE LOVE OF MARY’S LIFE

A few years into her tenure as a Court of Appeal judge, Mary was surprised

to learn that she had found a love that even surpassed her love of the law, in Chief Justice Allan McEachern. It all started when the Chief Justice, recently widowed, started to invite his fellow Court of Appeal justice out to dinner and public events. After only a few very engaging dinners, the Chief asked, “So when do you want to get married?” Mary recalls that she almost fell off her chair. Although admiring of his cross-examination skills, she decided to tread water, and replied casually that she wasn’t in any hurry. Soon she realized that the Chief was right and that they should marry. The two kept their engagement top secret but got married in her living room in April 1999 with Justice Bill Esson, formerly C.J.S.C., officiating. The small affair was attended by close family and Rosemarie Wertschek. Mary recalls that after their guests had left, she and the Chief visited Peter Butler, his “closest friend in law”, in the hospital.

Never one to make a big deal of herself, on the Monday following the wedding, Justice Newbury left a dictated memo for her assistant, Lorraine, telling her calmly that she and the Chief had married over the weekend. But, she added, for purposes of her judgments going forward, she would still be Madam Justice Newbury.

The love between the Chief and Mary was fit for a storybook. These two were the quintessential power couple. He wrote her poems and referred to her as “Mary Mary”; she called him “Chief”. Together they enjoyed their love of gardening, sailing (preferably in the Gulf Islands) and art. They also gave some great parties. They respected and accommodated each other’s entertainment choices: for him, it was the Canucks, and for her, the Vancouver Symphony Orchestra. They had a wonderful marriage that most would yearn for, cut all too short when the Chief tragically passed away in 2008 with Mary by his side.

OUR MARY

Mary has always been so much more than an extraordinary judge. She is an impressive gardener, a nimble yogi, a fashionable dresser and interior decorator, an entertaining host, an engaging storyteller and—most of all—a dear friend and mentor. She has taught her clerks and countless others invaluable lessons not only about career and the law, but also about how to live a good life as a kind person. She never misses an opportunity to celebrate someone’s birthday, new child, promotion or anniversary. And she gives her time, her mentorship and her support freely. As a result, she has a large and devoted fan club of former clerks called “Newbies” (the name was not approved—but also not rejected—by Her Ladyship). She has also presided over the weddings of some of her Newbies.

Mary is a known Anglophile. We feared in 2018 during her fellowship that we would lose her to the Inns of London. Luckily she returned, but she eagerly awaits to her annual trip to London. Experienced counsel knew that the best way to get her on side in an appeal was to cite an old English chestnut that set the course of the law in the relevant area. She is a stickler for grammatical and syntactical correctness and ferrets out cringeworthy trends such as the use of nouns as verbs—“privilege” being the latest offender. She has, however, given up objecting when counsel use “fulsome” to mean “full”.

As Mary retires from the bench and opens a new chapter in her career, we are confident that she will continue to have a lasting impact both on the law and on the lives of those fortunate enough to spend time with her. On behalf of the many counsel, clerks, students, court staff, family and friends who have benefited from her sense of humour, mentorship and kindness, we are forever grateful. On behalf of the legal profession and all those that it serves, we will continue to aim higher as a result of her inspiration. There will never be another judge quite like Mary.

ENDNOTES

1. Rosemarie would go on to become an accomplished K.C. tax law partner at McCarthy Tétrault. The Honourable Pamela Kirkpatrick would go on to become a master and then a judge of the Supreme Court, before joining Mary at the Court of Appeal. Both would remain Mary’s lifelong friends.

2. (2024) 82 Advocate 199.

3. Rare as this may be, she encourages other solicitors to apply to the bench.

4. Gemex Developments Corp v British Columbia (Assessor of Area #12), 1998 CanLII 6466 (BCCA).

5. Aberdeen v Zanatta, 2008 BCCA 420.

6. Redpath v Redpath, 2006 BCCA 338.

7. Ernewein v General Motors of Canada Ltd, 2005 BCCA 540; Wakelam v Wyeth Consumer Healthcare/Wyeth Soins de Sante Inc, 2014 BCCA 36.

8. Cliffs Over Maple Bay (Re), 2011 BCCA 180.

9. VJF v SKW, 2016 BCCA 186.

10. Everest Canadian Properties Ltd v Mallmann, 2008 BCCA 275.

11. Legal Services Society v British Columbia (Information and Privacy Commissioner), 2003 BCCA 278.

12. North Vancouver (District) v Sorrenti, 2004 BCCA 316.

13. Youyi Group Holdings (Canada) Ltd v Brentwood Lanes Canada Ltd, 2014 BCCA 388.

14. Galaxy Sports Inc (Re), 2004 BCCA 284.

15. Berthin v Berthin, 2016 BCCA 104.

16. Bergen v Bergen, 2013 BCCA 492.

17. Dickson v Vuntut Gwitchin First Nation, 2021 YKCA 5 [Dickson].

18. Silver Standard Resources Inc v Joint Stock Co., 1998 CanLII 6468 (BCCA).

19. Dickson, supra note 17.

20. Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10.

THE CROWN’S DUTY TO DETERMINE, RECOGNIZE AND RESPECT

ABORIGINAL TITLE:

Part II – Implementing the Duty*

By Tim Dickson

When the Crown asserted sovereignty and ownership over what is now British Columbia in 1846, at common law Indigenous nations’ ownership of their lands continued as Aboriginal title. In respect of such lands, beneficial ownership lay not with the Crown but with the title-holding Indigenous nation. In Part I of this article I argued the Crown was legally obliged to determine the existence and bounds of the various Aboriginal titles in the territory prior to alienating portions of the land base through land grants, leases and industrial permits. Having failed to fulfill its duty to determine, recognize and respect Aboriginal title then, the Crown is obliged to do so now.

The problem is that our existing tools for recognition of Aboriginal title— treaties and litigation—have proved to be inadequate to satisfactorily answer the “Land Question” for most of British Columbia. While it may be possible to reform those processes to increase the rate at which Aboriginal title is determined, their structural limitations—discussed in Part I and below—make it unlikely they would ever achieve the determination of Aboriginal title on a widespread basis.

As argued in Part I, it is not constitutionally acceptable for the current limbo state of non-recognition of Aboriginal titles to continue. The honour of the Crown demands that the existence and bounds of Aboriginal titles be determined so those titles can be respected. The Crown is obliged to take effective steps to facilitate that outcome.

Part of the thesis set out in Part I is that, given the failure of litigation and treaty negotiation to answer the Land Question for the great majority of the B.C. land base, we need an alternative process for determining Aboriginal

* This article is the continuation of Tim Dickson, “The Crown’s Duty to Determine, Recognize and Respect Aboriginal Title: Part I – The Existence of the Duty” (2023) 81 Advocate 699.

title. Part II addresses what kind of alternative process might succeed in reaching determinations of Aboriginal title claims, where litigation and treaty negotiations have largely failed.

While the duty to determine lies on the Crown, the reality is that an alternative process for determining Aboriginal title will only be regarded as legitimate if it is co-created by representatives of Indigenous nations and the Crown and ratified through appropriate processes. The failure of the 2009 Recognition and Reconciliation Act is instructive on that point. The legislation would have provided a path for reconstituting Indigenous nations out of the Indian Act bands into which they had been shattered by colonialism, and for shared decision-making and shared resource revenues with the Crown.1 But the initiative withered in the face of opposition from both business leaders and First Nations.2 It had been negotiated by the provincial government and British Columbia’s First Nations Leadership Council,3 with little involvement from the rights-holders themselves and without adequately acclimatizing non-Indigenous British Columbians to the benefits and justice of the proposal. The experience warns that implementing a new mechanism for resolving the Land Question is unlikely to be successful without close involvement from those who will be most affected.

Any new mechanism along the lines proposed, therefore, would need to be developed by Indigenous nations and the provincial and federal governments, building on rich engagement with their respective constituencies. These tentative thoughts are offered in the hope of illustrating that creating a new mechanism is possible.

THE LIMITATIONS OF THE CURRENT MECHANISMS FOR DETERMINING ABORIGINAL TITLE

The limitations of our existing mechanisms for determining Aboriginal title give some guidance on what is needed in an alternative process.

When it was first created in the early 1990s, the B.C. Treaty Process was expected to result in the recognition of rights—including, most importantly, Aboriginal title—for many Indigenous nations in the province. While certainly the Treaty Process remains a vital institution for advancing reconciliation, in facilitating just three treaties over three decades the process has ultimately been a disappointment. Its main limitation is part of its basic architecture: political negotiations detached from any serious investigation into where and in what respects the Indigenous nation’s occupation of the land prior to 1846 gives rise to Aboriginal title. Without a means of developing a shared understanding of the likely contours of that Aboriginal title, the parties have no common touchstone to guide them to a compromise.

That problem is exacerbated by overlapping claims—the reality that many parts of the province are claimed by more than one Indigenous nation. Those overlapping claims may arise because there is evidence that each Indigenous nation used the area historically; in such a case the question is whether either Indigenous nation—or, potentially, both nations together—sufficiently and exclusively occupied the area as of 1846 so as to give rise to Aboriginal title. With other overlapping claims the question centres more on which of several modern Indigenous groups is the proper successor to the historical rights-holding group. That complex question is often the product of the colonial practice of breaking Indigenous nations up into small Indian bands.

Because the B.C. Treaty Process is based on political negotiations, as opposed to an examination of evidence, it lacks a strong mechanism for answering the questions raised by overlapping claims. All too often the result is deadlock—a serious claim by a neighbouring Indigenous nation to the same land being considered for the treaty has too often effectively shut the negotiation process down. The approach to dealing with overlaps has mainly been to defer the issue to the contending Indigenous nations to resolve themselves. While there are important Indigenous legal processes that have the potential to resolve overlapping claims where they are carried through, at their cores those processes are voluntary, and so far they have not yielded results in the more persistent overlap cases.

One result of the B.C. Treaty Process’s detachment from a fact-based inquiry is therefore that it permits overlapping claims to present major barriers to finalizing treaties. But the problem also goes deeper. As discussed in Part I of this article, negotiations are fundamentally driven by the parties’ evaluation of their respective risks if the negotiations are not successful. To put the matter bluntly, unless there is an alternative to negotiation for the determination of Aboriginal title, then governments have little incentive to offer treaty terms that would secure agreement from more Indigenous nations.

Litigation does offer such an alternative process, but as set out in Part I of this article, litigation is so prohibitively complex and expensive that it is a hollow option for the great majority of Indigenous nations.4 To date there have been just two definitive determinations of Aboriginal title in the courts: Tsilhqot’in, where title was found after a very long trial, and Nutchlacht, where, following a relatively short trial, it largely was not.

As I stated in Part I of this article, litigation is therefore unlikely to lead to many determinations of whether and where Aboriginal title exists. And without some accessible mechanism for a fact-based determination of Abo-

riginal title to serve as an alternative to treaty negotiation, it is not realistic to think treaties will either.

A FASTER, MORE ACCESSIBLE ADJUDICATIVE PROCESS

The limitations of litigation and the B.C. Treaty Process for determining Aboriginal title demonstrate that some alternative process is needed. They also point to the basic function that alternative process must perform: evidence-based, binding adjudication of claims to Aboriginal title, but through a faster, more accessible process than litigation. What is needed is an adjudicative process, outside of court, that would make findings of fact related to an Indigenous nation’s occupation of the land and come to binding, enforceable determinations. That is, of course, what courts do, and so to serve as a useful alternative to court this alternative process would need to be much faster and more affordable for Indigenous nations.

There are legal structures familiar to all of us that aim at providing for adjudication that is faster and cheaper than in court, while still being rigorous and defensible. One such structure, of course, is that of adjudicative tribunals, which in Canada deal with a wide range of complex and important topics, including major projects (e.g., the Canada Energy Regulator), competition (the Competition Tribunal), labour relations (the Labour Relations Board) and the regulation of utilities (the B.C. Utilities Commission). Commissions of inquiry—another form of administrative body—often hear from witnesses and counsel and make determinations of fact, including on such diverse issues as the tainted blood scandal (the Krever Commission), a major terrorist attack (the Air India Inquiry) and police mishandling of a serial killer investigation (the Missing Women Inquiry).

Arbitration is another such legal structure. Often in arbitration the timelines are highly attenuated compared with court, the time allowed for testimony is limited, and procedural motions are screened for merit. And yet commercial parties often choose arbitration over court as the means for resolving disputes between them, including where the financial stakes are at their highest.

The point is that our political and legal culture already accommodates evidence-based adjudicative processes beyond court in a wide variety of contexts. We can, and should, use such an alternative adjudicative process to determine Aboriginal title.

Indeed, as a country we have already experimented with such a process in determining other kinds of Aboriginal law disputes, and with some success. The specific claims process deals with certain kinds of claims, including breach of treaty and fiduciary duty and maladministration of lands and

resources (but not claims to Aboriginal title). Remedies are limited to monetary damages; specific claims cannot yield such remedies as declarations or vesting orders or restitution. But on the other hand, limitation periods and equitable doctrines such as laches and acquiescence do not apply.5

The process begins with the submission of a claim for consideration by Canada, followed by a period of years in which Canada may assess the claim and then pursue negotiations with the Indigenous nation at its discretion. If Canada chooses not to negotiate, or if negotiations are unsuccessful, then the Indigenous nation may submit its claim to an adjudicative body, the Specific Claims Tribunal, which makes binding determinations of liability and quantum of compensation, subject only to judicial review.

The specific claims process has become an important pathway for resolving the claims of Indigenous nations. Certainly it has its limitations. Among other things, Indigenous groups point to the lack of independence of the initial phase of the process, in which Canada determines whether a claim will be accepted into the process at all, as well as the staffing and funding shortages throughout the process, and particularly at the tribunal level. The Assembly of First Nations and Canada are currently engaged in discussions over the development of an Independent Centre for the Resolution of Specific Claims.6 Under that proposal substantial changes would be made to the negotiation phase of the process. The proposal would very largely maintain the current form of the Specific Claims Tribunal, which the BC Specific Claims Working Group—a forum within the Union of BC Indian Chiefs— describes as “an essential body for claims resolution”.7

A tribunal that would determine questions of Aboriginal title could likewise become an essential mechanism for reconciliation.

An advantage of creating a new mechanism for determining Aboriginal title is that the process can be specifically designed to fit its purpose. For instance, while certainly one cause of the length of Aboriginal title trials is the complexity of the issues, another is the maximalist approach to process in our litigation culture. Documentary discovery is extensive; the default is oral evidence at trial, as opposed to affidavits; the number of witnesses called is left to the parties’ discretion; time limits on evidence in chief or under cross are often not imposed or enforced; before trial there are few controls on interlocutory motions; the parties are permitted to extend timelines under the court rules, and in general there is relatively little intervention from the court to ensure all parties are pushing to get the case heard quickly; and the parties are relatively unconstrained from bringing unmeritorious motions at trial.8

The rules of court can, of course, be amended, as they were in 2010 in British Columbia, and rule amendments and other efforts could usefully be

made to facilitate judicial determinations of Aboriginal title. But there appear to be limits to such reform, as illustrated by British Columbia’s recent efforts to reduce the costs of car insurance. Prior to instituting a no-fault system of car insurance, the Province sought to constrain personal injury litigation in the courts by amending the rules to limit the number of expert reports that parties could tender on their own (as opposed to reports from courtappointed experts, for which there was no limit). That amendment was held in Crowder to constrain the B.C. Supreme Court’s core jurisdiction to control its own process, and to force it to take on an investigatory function by appointing expert witnesses and “to depart from their traditional non-adversarial role, and consider how a case might be best presented, contrary to the principle of party presentation.”9 In the result, the court held the amendment to infringe s. 96 of the Constitution Act, 1867 and therefore to be void.

An alternative mechanism, such as a new administrative or arbitral tribunal, would not be burdened by such limits. It could be designed to play an investigatory role, with a staff whose research would complement that of the parties’ witnesses. Or it could rely on rules and guidelines that guard against the procedural excesses of litigation. Or both. The point is that its process is not baked into the Constitution and our legal culture. It could be designed to achieve its specific purpose, which in this case is reaching legitimate determinations of the existence (or not) and bounds of Aboriginal title through a process that is fair and rigorous but faster, cheaper and more accessible than court.

In the remaining sections of this article I provide some thoughts on the possible design of such a tribunal.

LEVELLING THE FIELD

As discussed in Part I of this article and summarized above, one of the obstacles to determining the Land Question in British Columbia is that Aboriginal title litigation is too daunting a prospect for most Indigenous nations to take on. A primary problem is the enormous expense, as already discussed. A different concern is that Aboriginal title litigation unfolds in courts established by the Crown, according to procedural rules developed out of the traditions of the colonizing community, where the judge is appointed by the Crown, and where the Indigenous nation bears the onus of proof. It is understandable that many Indigenous nations would be wary of initiating a determination of their Aboriginal title in court, when an adverse judgment would be binding and final.

For a tribunal process to succeed in answering the Land Question on a broader scale, it must offer a more level playing field. There are many dimensions that could be evened out. I will touch on three of them.

The first is funding. It would be essential for Indigenous nations participating in the process to be provided with adequate funding. In court, Indigenous nations have generally been required to carry the enormous expense of Aboriginal title litigation on their own. Early case law gave some hope the courts might order the Crown to pay advance costs for title litigation fairly frequently,10 but that has subsequently proved not to be the case.11

If, as I argued in Part I of this article, the Crown is obliged to determine, recognize and respect Aboriginal title, which it has failed to do, then the general reluctance to order advance costs in title litigation appears misplaced. But any such reluctance must vanish entirely in the context of a jointly developed process to determine the boundaries of Aboriginal title. In that process the Crown’s participation would be paid for by public funds; so too should the Indigenous nation’s.

Another dimension that could be addressed is the identity of the adjudicators. As noted above, when Indigenous nations come before court in title claims brought against the Crown, they appear before judges appointed by their adversary. That is a common reality in constitutional litigation, and indeed in criminal law. But with Aboriginal rights litigation that tension is particularly acute because the recognition of Aboriginal title is a form of intersocietal law, arising from the bridging of Indigenous and non-Indigenous cultures, and Aboriginal title is defined by both legal perspectives.12 Among Canada’s greatest strengths are the quality and independence of our judiciary and the robust legal culture that supports it, and our courts have indeed proved capable of recognizing Aboriginal rights. But it is a confounding task to ask of them: that courts established by one legal regime recognize rights arising from prior legal regimes. No matter the quality and dedication of our judges, there is inherently a perceived imbalance when our courts adjudicate these claims, because the claims require bridging two legal regimes and our courts were established by only one of them.

A tribunal process for determining Aboriginal title could more easily right that imbalance. That it would be jointly designed by Indigenous nations and the Crowns would itself greatly reduce concerns of structural bias. Such a process could also increase adjudicative expertise in intersocietal law by, for instance, utilizing panels of adjudicators with experience and training in both Indigenous and western legal cultures.

This alternative process could potentially also address a vexing problem concerning the onus of proof for Aboriginal title. When such claims are litigated in court, the Indigenous nation bears the onus of proving, on a balance of probabilities, that it exclusively occupied the area at issue as of

1846.13 That is a heavy burden; indeed, if applied too exactingly, it can be impossible to meet.14 Usually the documentary evidence from that period is sparse, and often much oral evidence has been lost in the intervening years, particularly given the state’s intentional efforts to disrupt cultural continuity through such means as residential schools.

The jurisprudence does not set out a satisfactory rationale for why the Indigenous nation bears the burden of proof. As discussed in Part I of this article, it is indisputable that the Crown claimed sovereignty and ownership over British Columbia while knowing that some of it must be subject to Aboriginal title. By virtue of s. 109 of the Constitution Act, 1867, provincial ownership of land is “subject to any Trusts existing in respect thereof, and to any interest other than that of the Province in the same”. It is not clear why our jurisprudence should presumptively accept the Crown’s broad claim of ownership of the entire provincial land base and force Indigenous claimants to prove the exceptions. Particularly if the Crown had a duty to determine the existence and bounds of such tracts but failed to do so, as argued in Part I, there is a compelling case that the Crown should bear the burden of proving that a relevant tract of land is not subject to Aboriginal title.

In the design of a tribunal process for determining Aboriginal title this issue of onus could be re-examined. The onus could be maintained or reversed. There could be a rebuttable presumption that the Indigenous nation exclusively occupied some land somewhere, with the question of exactly where to be determined. Or there could be no onus on either party, with the adjudicators simply being tasked with making their best determination on the available evidence.

All of these dimensions—funding, the adjudicators, and the onus of proof—could be specifically considered in the design of a tribunal process in order to level the field and produce fair, rigorous and credible determinations of the existence and bounds of Aboriginal title.

That process could also be designed to address other issues that have blocked treaty negotiations and title litigation. I will touch on two of them here: overlapping claims and private property.

OVERLAPPING CLAIMS

The main difficulty posed by overlapping claims has been that they have stalled the process of determining Aboriginal title. As outlined above and in Part I of this article, overlapping claims have often blocked progress at the treaty tables. A tribunal process would need to squarely address the reality of overlapping claims and be designed so that they do not preclude determinations of Aboriginal title being made.

An essential component of that design must be fair opportunities for the participation of the other claimant Indigenous nations. Where an Indigenous nation has a reasonable basis for claiming it occupied some of the land at issue, then it needs to be able to put that claim forward for determination. A fair opportunity to do so must mean, at minimum, funding and a reasonable amount of time to muster its case.

There would be much to work out in designing the process to fairly resolve overlapping claims, both in the architecture of the process as a whole and in the tribunal’s management of each case. Certainly this is a complex task, and Indigenous nations have profound interests at stake.

But I would think one constant touchstone should be the imperative for the process to be actually capable of coming to determinations within a reasonable time. The Land Question has been unresolved for too long; it is unconscionable for Indigenous nations to continue to be denied recognition of their titles. In light of that imperative, timelines could be set that permit reasonable but time-limited preparation (supported by funding) and that push the matter along to a resolution.

PRIVATE PROPERTY

Throughout much of British Columbia, but particularly on the Lower Mainland and southern Vancouver Island, land that is likely subject to Aboriginal title is covered over by grants of fee simple titles held by private parties. Those grants—most of them made long ago—did not extinguish the underlying Aboriginal title. Extinguishment (which was only possible before s. 35 came into force in 1982) required legislation with a “clear and plain intent” to do so—not just legislation that was “necessarily inconsistent” with Aboriginal title—and such legislation could in any event only be enacted by Parliament, not a provincial legislature.15

The inescapable reality is that there are numerous areas of this province subject to both Aboriginal and fee simple titles. While it is possible for those two forms of title to co-exist on the same tract of land, effectively only one titleholder may exclusively possess that land.16 As a society, we have barely begun to confront the questions of which titleholder should enjoy possession and of how justice can be effected for the other. On the one hand, an Indigenous nation with Aboriginal title to a particular tract of land has a primary legal and moral claim to possess it, given their profound cultural interconnection with it, the racist colonial project that dispossessed them of it, and the decades of impoverishment that resulted. On the other hand, the private holders of fee simple titles will usually be bona fide purchasers for value without notice—equity’s darlings—for whom that land is essential to

their economic security. Both kinds of titleholder have legitimate and substantial interests at stake.

One obvious path to reconciliation of this conflict would be for the provincial and federal governments to compensate Indigenous nations for the privatization of their Aboriginal title lands. Not only do those nations need large injections of capital to build their communities and erase disparities in socioeconomic standards, but that capital would also allow them to buy back portions of their lands on a willing seller, willing buyer basis. It would be just and appropriate for the Crown to foot the bill, given its primary role in alienating the land despite its duty to respect Aboriginal title, as well as the decades of tax revenue it derived from those properties.

Achieving justice for Indigenous nations by way of compensation for the privatization of Aboriginal title lands is complicated, however, by limitation periods, as the fee simple titles will usually have been granted long ago. A large and looming question is whether limitation periods constitutionally apply so as to bar compensation for such acts. If they do,17 then Indigenous nations whose Aboriginal titles have been privatized face the possibility of being denied just compensation for their lands, and will be pushed to consider seeking repossession of them. If they do not, then the Crown may face a bill so large it strains its ability to pay.

The design of a tribunal process could offer an opportunity to reach a compromise that balances these competing interests. For instance, the legislation or other constating documents could delineate the tribunal’s jurisdiction where private interests are involved to achieve some combination of substantial compensation for the Indigenous nation, limitations on the quantum of the Crown’s liability, and protection for private interests. The actual compromise reached would need to be the product of negotiation during the design of the process. But there is reason to think such a compromise could be found, and that a tribunal process could actually realize meaningful justice and certainty where Aboriginal title lands are overlaid by private interests.

A LAST WORD

As stated at the beginning and echoed just now, for an alternative process for determining Aboriginal title to be successful it would need to be viewed as legitimate and responsive to the various interests that are implicated. That in turn requires that it be developed together by Indigenous nations and the governments, informed by close consultation with a range of constituencies. The modest aim of this article is to persuade that that difficult work can and should be done. The Land Question demands to be answered. Our current mechanisms have stalled. We need to try a new approach.

ENDNOTES

1. A copy of the discussion paper can be found online at <www2.gov.bc.ca/assets/gov/environment/nat ural-resource-stewardship/consulting-with-firstnations/first-nations/paper_implementing_the_new _relationship.pdf>.

2. See, for example, <www.straight.com/article245013/union-bc-indian-chiefs-clarifies-positionrecognition-and-reconciliation-act> and <www. straight.com/article-253718/bcs-recognition-andreconciliation-act-dead-first-nations-chiefs-say>.

3. The FNLC comprises the leadership of the three major Indigenous organizations in British Columbia: the Union of BC Indian Chiefs, the BC Assembly of First Nations and the First Nations Summit.

4. For more details on the inordinate complexity of Aboriginal title, the reader should refer to Part I of this article. By way of update, at time of writing the Cowichan Tribes Aboriginal title and rights trial has concluded—after 515 days of trial, the longest trial in Canadian history. Judgment is on reserve.

5. For background on the specific claims process, see Canada’s webpage on the process, online at <www. rcaanc-cirnac.gc.ca/eng/1100100030291/153 9617582343>, and the Specific Claims Tribunal Act, SC 2008, c 22

6. See Specific Claims Implementation Working Group, “Proposed Independent Centre for the Resolution of Specific Claims – Discussion Paper” (Spring 2024), found online at: <afn.bynder.com/m/14115e0be 047c49c/original/Proposed-Independent-Centrefor-the-Resolution-of-Specific-Claims-DiscussionPaper.pdf>.

7. BC Specific Claims Working Group, “Canada’s Conduct at the Specific Claims Tribunal & the Need for Reform” (4 July 2019) at 12, online: <d3n8a8

pro7vhmx.cloudfront.net/ubcic/mailings/2625/at tachments/original/SCTnational_report_FINAL.pdf? 1562621669>.

8. See, for example, Geoffrey Cowper, KC’s call for more timely justice in British Columbia, recently published in the July 2024 and September 2024 issues of this magazine. [See also p. 41 of the present issue – Asst. Ed.]

9. Crowder v British Columbia (Attorney General), 2019 BCSC 1824 at para 174.

10. See British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71; William v HMTQ, 2004 BCSC 610; Tsilhqot'in Nation v British Columbia, 2006 BCCA 2.

11. Anderson v Alberta, 2022 SCC 6.

12. See R v Van der Peet, [1996] 2 SCR 507 at para 42; Delgamuukw v British Columbia, [1997] 3 SCR 1010 at para 112; Tsilhqot’in Nation v British Columbia, 2014 SCC 44 at para 72 [Tsilhqot’in SCC].

12. Tsilhqot’in SCC, supra note 12 at para 50.

13. Van der Peet, supra note 12 at para 62; Delgamuukw, supra note 12 at paras 87 and 101.

14. Delgamuukw, supra note 12 at para 180.

15. See the discussion in The Council of the Haida Nation v British Columbia, 2017 BCSC 1665 at paras 29–35, as well as the Gaayhllxid • Gíihlagalgang “Rising Tide” Haida Title Lands Agreement, which recognizes the Haida Nation’s Aboriginal title to Haida Gwaii and, at ss 4.4–4.10, preserves fee simple titles under provincial jurisdiction.

16. Wesley v Alberta, 2024 ABCA 276, which concerns a claim for damages (among other remedies) for breach of treaty rights, is recent authority in support of this answer.

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QUESTIONING THE (UNQUESTIONED) PRACTICE OF REFERRAL FEES ON COMMISSIONS IN FORECLOSURE PROCEEDINGS

By Tyler Holte

One of the final steps in the conventional residential foreclosure process is the mortgagee’s application for approval of sale of the property. I am troubled by what seems to now be common in that order: the mortgagee’s counsel is paid a referral fee from the listing realtor’s commission, which is paid from the sale proceeds. In my review of case law in this province, I do not see this practice being challenged (at least for the reasons why I find the practice troubling). I also discovered some other provinces do not find this practice acceptable.

With this referral fee, the mortgagee’s lawyer is receiving funds from the sale proceeds of the mortgagor’s property, which is not credited to the mortgagor’s liability on the judgment or costs award. This referral fee is effectively, albeit indirectly, being paid by the mortgagor as it either eats into their equity, or increases the shortfall that they are liable to pay.

For those that would like to argue the realtor is paying this fee, I cannot agree. By agreeing to pay the referral fee, the realtor is willing to undertake listing efforts for a lower commission. Given how widespread this practice seems to be, is that not evidence that the commission permitted in conduct of sale orders is inflated from what is reasonable?

Alberta conducts its foreclosure process differently: the court (not the foreclosing mortgagee) directly appoints the realtor. In Alta West Mortgage Capital Corporation v. 955492 Alberta Ltd., 1 the Alberta Court of Queen’s Bench commented that it was extremely unlikely that the court would agree to the appointment of a realtor where there was a referral fee paid to mortgagee. In Saskatchewan, the court similarly does not permit such referral fees,2 but it should be noted there is a statutory basis to that prohibition.

In my view, the practice found in British Columbia is inconsistent with the costs award. It is allowing the mortgagee to subsidize payment of their legal account in addition to the costs award. I see materials often reference a Law Society Ethics Committee decision from October 5, 20003 for the pro-

priety of this practice. While the practice may be considered proper as between mortgagee and their lawyer, the minutes do not address the question which the court should consider: whether this is equitable for the mortgagor and inconsistent with the costs award.

While the case does not address the equities with the mortgagor, Reliable Mortgages Investment Corp. v. Ellis, Roadburg4 discusses this practice. The mortgagee taxed the lawyer’s accounts, successfully arguing that the accounts should be reduced by the amount of referral fees the lawyer obtained. The referral fees in that case totalled $157,302 across files that totalled an additional $286,446 in legal fees. In other words, the referral fees made up a significant part of the remuneration.

I am also concerned regarding the optics of this practice. Regardless of whether this is reducing the legal bill, or whether the law firm is being paid this in addition to its bill as in the Ellis case, it is creating a sharp change in remuneration at the conduct of sale point in the proceeding. Consider the situation where a mortgagor may have listed the property during the redemption period and has a potential sale, but there will be a shortfall of funds to pay the mortgage in full. If the property has been adequately marketed, the mortgagee should allow the sale to complete as it is likely the most funds they can expect to obtain from the property. Foreclosures generally sell at a discount because of the risks the mortgagee imposes on the buyer, such as of the “as is where is” nature, and the lack of guarantee of actual possession at the closing date.

Anecdotally, some colleagues and I have observed there to be a delay or reluctance from mortgagees to allow sales to go through for foreclosure properties when there is a shortfall of funds. Most solicitors who practise in real estate do not go to court, and are not prepared to force the issue with an application for a vesting order. This is especially true for clients that have no funds to pay a lawyer to perform that work, which is true for most foreclosures. I do not know if this delay or reluctance stems from a strategy to cause the prospective sale to collapse so that the mortgagee can get conduct of sale and by extension, the referral fee. However, this perverse incentive being in the background is a bad optic and capable of bringing the administration of justice and the profession into disrepute. It causes a questioning of motives, which would be sterilized if there were not this referral fee.

I welcome readers’ views.

1. 2016 ABQB 641 at para 33.

ENDNOTES

2. See Royal Bank of Canada v Strelioff, 2020 SKQB 339.

3. Online: <https://www.lawsociety.bc.ca/Website/ media/Shared/docs/publications/code/ec/0010(10).pdf>.

4. 2020 BCSC 187.

DELAY AND TIMELINESS: Part III – Obstacles and Implementation

By Geoffrey Cowper, K.C.

In the first two parts of this article,1 the case was advanced for achieving timeliness and the need for basic changes to our culture and justice systems. My summary in Part I2 of what is needed demonstrates the scope, scale and complexity of the problem and potential solutions:

Meaningful change requires a combination of understanding, communication, incentives and leadership. In the case of the justice system, we need to understand not only the cost of delay, but also the benefits of timeliness. We need to do better at communicating the rewards of timeliness, and we must frame and apply appropriate disincentives to delay. We need to increase our expectations of judicial leadership to include better systems and case management.

Delays have appeared and reappeared for reasons embedded within our culture, so we should squarely address the critical obstacles that stand in the way of enduring progress. Implementation can then be framed and articulated in response to the predictable obstacles to improvement.

OBSTACLES

The obstacles that are commonly raised against increasing timeliness include the following: more judges and more resources are needed; lawyers lack trial experience and are simply taking too long; the volumes of evidence and complexities of our legal system drive more intensive and longer process; and lawyers and parties are not cooperating in reducing the courts’ work.

These objections at bottom reflect the widespread commitment to those very features of our system that create and sustain delays. We are mistaken if we think they are either accidental or unloved. In relation to the failure to achieve timeliness they can be sorted into the problems of distributed responsibility, adverse incentives and practical challenges.

Responsibility for delays and lack of timeliness suffers from a distribution problem: too many stakeholders are given responsibility for decisions which influence timeliness. Timeliness has been achieved when the adju-

dicative institutions are given or assume responsibility for timeliness. There are examples of this in judicial, administrative and arbitral history.

An objection to case management is that we have been trying case management for some time without seeing a culture shift. The short answer to this objection is that to this point in time, unlike in successful case management models, we still defer to party choice. British Columbia’s experience with case management affords a good example of both distributed responsibility and the frustration that often accompanies halfway measures. Our current model is to nudge the parties along, gently reduce unnecessary evidence and witnesses and generally improve the organization of a case. The results have been limited and uninspiring. Case management is successful where the court or tribunal is responsible for timeliness and the result involves uniformly proactive, direct and mandatory measures.

The success of case management and early trial dates will rest on responsibility being placed on the court or tribunal and limiting the ability of the parties to engage in dysfunctional behavior. Those limits can include courtdriven early hearing dates; limited time periods for discovery and other pretrial process; and limits on the volume of filings and oral hearings. Of one thing we can be certain: when the rules are changed lawyers will continue to serve their clients’ needs and interests within those rules. However fond we are of the privileges we enjoy as lawyers we cannot let those continue to prevent our timely service to the public interest in delivering justice.

There are other potential benefits to placing the responsibility to achieve timeliness squarely on the courts and other tribunals. Timeliness overall is what should concern us. We should no longer tolerate the tendency of cases to become a means of perpetuating conflict, uncertainty and injustice.

Our justice system has long been one where the result for most is settlement, not judgment. We all lose credibility when those settlements are not driven by the dispute’s merits but by factors such as unrecoverable costs and unnecessary delays. The culture’s focus on what occurs in courtrooms has stopped short of ensuring that a decision on the merits is a realistic alternative. Mediation has been a constructive game-changer but needs to be more tailored to helping achieve timely resolution. It must become a tool used as much by the court as by the parties. Although mediation is by its essence consensual, the evidence is overwhelming that judicial and professional support for mediation produces earlier, and the most just, settlements.

A further issue is that although much has changed, the incentives favouring delay that are baked into how we are paid, what we celebrate and who we feature as role models have not. Although everyone in the justice system is motivated by non-monetary goals, our monetary incentive structures perversely work against the interest in timeliness. We should not expect

professionals to sacrifice their self-interests where the asymmetry of incentives is part of the background music of our lives. Any change in incentives must reward timeliness to a degree that compensates for the difficulties inherent in picking up the pace of litigation, that recognizes the potential costs of downtime and that is consistent with the relevant economics. Leadership on this front is most likely to come from large institutional employers of lawyers: governments, companies and publicly funded legal services. These parties are the largest participants in our justice system, have direct interests in total case costs and can adjust their compensation systems to incentivize timeliness.

A further obstacle to increasing timeliness is rarely stated but real. It is the underlying suspicion that timeliness is just too hard. As to this all the supportive normative infrastructure of our profession, from education to professional discipline and ethics, needs to engage with the high value placed on timeliness by our clients and the human and commercial price of time. It is not too late to catch up.

IMPLEMENTATION

How then should we proceed? The goal of implementation should be to reach the point when timeliness is recognized as a necessity. Once we embrace the importance of timeliness, how it is measured and achieved may vary by subject area and venue. What is critical, however, is getting started. Although some reflection and planning are necessary, there is a risk that another study or commission will divert attention, rather than crystallize around the need for change and the selection of solutions. Our institutions must take leadership and not have it taken from them. Finally, the iterative nature of both the problem and solutions compels us to pilot and scale and not attempt a big bang of reforms.

Solutions are at hand. Indeed, there is not much debate about the need for improvement. Tensions arise when the debate moves to particulars and it is there that institutional leadership is most necessary.

In British Columbia the time feels right. There is a new Chief Justice of the Supreme Court, and the bench has a high portion of recently appointed judges. There is a new government in Victoria and a federal election must be held within a year. Even our law society is being reformed. For all the reasons discussed in this triptych we must seize this opportunity to make our system more timely and more just.

ENDNOTES

1. Geoffrey Cowper, KC, “Delay and Timeliness: Part I – Here We Go Again” (2024) 82 Advocate 507 and “Delay and Timeliness: Part II – Timely Solutions” (2024) 82 Advocate 681.

2. Supra note 1 at 511.

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ЖЖЖ

THE LAST CAPITAL CASE

Part II

By Hamar Foster, K.C.

[Part I of this article appeared in the November 2024 edition of the Advocate: (2024) 82 Advocate 851. Part I ended with a description of the events leading up to the Supreme Court of Canada hearing that the author turns to below.]

Ido not remember much about the 1976 hearing before the Supreme Court of Canada in Miller et al. v. The Queen, the case from British Columbia concerning two men convicted of murder and sentenced to death. The hearing took place at the same time Parliament was giving second reading to Bill C-84, which proposed to abolish the death penalty for all non-military offences. It was, after all, nearly 50 years ago, and although I have consulted books and documents, I am relying on my fallible human memory for some of the events in this account. I do know that, in addition to Joe Wood, Terry Robertson and J.B. Clarke for the appellants, Eddie Greenspan represented the Canadian Civil Liberties Association and W.G. Burke-Robertson, Q.C., represented the Attorney General of Newfoundland, the intervenors in the case. And I do recall two moments, one more personal than the other.

The first happened at the very beginning of the hearing, when Joe rose to make submissions on behalf of John Cockriell. Before he finished saying “If it may please your Lordships …”, Chief Justice Laskin interrupted, asking pointedly how Joe thought that his factum “complied with our rules”. Joe looked puzzled, so Laskin answered his own question by growling, “I can tell you. It does not,” and proceeded to berate him at length for filing a factum several times longer than the norm. Hardly an auspicious start. I can only assume that we did not receive similar treatment for our 116-page factum because we could justify it as a necessary response to the appellants’ factum.1

The second moment relates to one of the grounds of appeal unrelated to the Canadian Bill of Rights. It was with respect to a misdirection of the trial judge that the B.C. Court of Appeal found did not result in a substantial wrong or miscarriage of justice.2 In our factum I had relied on a case from the Manitoba Court of Appeal that supported the Crown’s position on this

issue. But when John Rowan, lead counsel for the Crown, made the point, one member of the court—I think it may have been Spence J.—looked around at the others and said something like, “Didn’t that case come before us, and we reversed it?”

My heart stopped. I was stunned that I could have made such a mistake. John looked up from his notes. And then, quizzically, down at me, his famous eyebrows arched. When I realized that I had stopped breathing, I sucked in some air and whispered to him that no, that cannot be right (thinking: but what if it is?). It is a cliché, I know, but although it seemed as if minutes passed, it could have been only seconds when Spence J. (if indeed it was him) consulted Laskin C.J.C. and said to no one in particular that no, that must have been a different case. I was saved, and my heartbeat slowly returned to something approximating normal.

When John finished his submissions on all the grounds of appeal, the Chief Justice looked at me and asked if I had anything to add. He was clearly unaware that earlier I had nearly suffered cardiac arrest. I rose, gurgled out something like “No, my lord,” and sat down. What I sounded like to others I hazard to guess. But I had actually spoken in the Supreme Court of Canada.

While we had been doing all this, Bill C-84 had survived second reading in the House of Commons—which is right next door to the court—and this, to me, was an immense relief. Subsequently, on July 14, 1976, it passed third reading by only six votes: 130–124. The law changed forever that day.

Judgment, of course, had been reserved, and when the Supreme Court handed down its decision in October, the result was not unexpected: the appeals, on all grounds, were dismissed. On the Bill of Rights issue, the whole court also held that, for an important technical reason, the statutory abolition of the death penalty did not render the appeals on that point academic.3 (Laskin C.J.C. described as “mere coincidence” the fact that “on the very day on which the hearing of this appeal commenced the House of Commons gave second reading to a bill to abolish capital punishment.”4)

Interestingly, three of the justices (the trio often referred to as LSD: Laskin C.J.C., Spence and Dickson JJ.), also specifically rejected, rightly I think, the view that the Bill of Rights could be treated as a sort of Interpretation Act. Nonetheless, even these justices described the appellants’ arguments that the death penalty was arbitrary and not acceptable to a large segment of the Canadian population as completely without merit. They also rejected the argument that it was unusually severe and degrading to human worth, and that it was excessive because it could not be shown that it had any deterrent effect that could not be had by a less final punishment.

VI.

Arriving back in Vancouver after the hearing, John and I agreed that, given that Bill C-84 had passed second reading, it seemed all but assured that Parliament would abolish the death penalty. And not long after our return, Parliament did just that. Miller and Cockriell, who had been granted three successive stays of execution since being sentenced to hang in 1974, would not be executed. Instead, under the new legislation, they were sentenced to life imprisonment, without eligibility for parole for 25 years.

Was this the last capital case? So far as I am aware it was: the appeals were heard shortly before the Supreme Court of Canada rose for the summer, at the same time that the House of Commons gave second reading to Bill C84, which passed third reading three weeks later. In any event, it was certainly my last—as well as my first and only—capital case.

Although I oppose the death penalty, and doubt very much that it is a deterrent, I respect the argument that for some crimes it is proportionate and deserved.5 I nonetheless agree with lawyer and novelist Scott Turow, who was appointed to a commission on capital punishment in Illinois over 20 years ago:

I admit I am still attracted to a death penalty that would be available for … crimes of unimaginable dimensions … or that would fully eliminate the marginal risks that incorrigible monsters … might ever again satisfy their vampire appetites. But if my time on the Commission taught me one lesson, it was that I was approaching the question of capital punishment the wrong way. There will always be cases that cry out for the ultimate punishment. That is not the true issue. The pivotal question instead is whether a system of justice can be constructed that reaches only the rare, right cases, without also occasionally condemning the innocent or undeserving.6

I believe that such a system of justice cannot be so constructed, and that Canada’s record of wrongful murder convictions, both before and after 1976, underlines this. The Milgaard , Marshall and Morin trilogy was a wakeup call—and there are many more such cases.7 Wrongful convictions were therefore an important reason for the Supreme Court of Canada holding, 25 years after denying the appeal of Miller and Cockriell, that Canada should not extradite anyone to a capital punishment nation without assurances that the death penalty will not be imposed.8 The bottom line for the court in that case was that “despite the best efforts of all concerned, the judicial system is and will remain fallible and reversible whereas the death penalty will forever remain final and irreversible.”9

It may also be worth correcting an impression that, in my experience, some people seem to have about the law of murder in 21st-century Canada.

It is that the rules regarding parole eligibility for those convicted of murder are more lenient than they were before 1976. This is not true.

As indicated above, between 1961 and 1976, murder was either capital, where the punishment was death, or non-capital, where the punishment was life imprisonment.10 If the latter, the convicted person was eligible for parole after seven years. If the death penalty for capital murder were commuted to life imprisonment, which after 1962 it invariably was, parole eligibility was ten years. Between 1968 and 1974 the average time served by convicts whose death sentence was commuted was 13.2 years.

When the death penalty was abolished in 1976, capital murder was reclassified as first degree and non-capital as second degree murder, both punishable by mandatory life imprisonment. Parole eligibility for first degree murder was increased from ten years to twenty-five. Parole eligibility for second degree murder was increased from seven years to a minimum of ten and a maximum of twenty-five, should the judge, taking into account any recommendation the jury might have, decide that ten is sufficient. These higher thresholds of parole eligibility represent a significant part of the compromise made in securing the abolition of the death penalty by a margin of only six votes in the House of Commons in 1976.

VII.

Thirty-five years after his conviction for murdering Cst. Pierlet, John Harvey Miller was on parole when, in 2009, he died of a stroke. He was 63. Not long before this he had been found guilty of incest, indecent assault and gross indecency for the abuse of his sisters between 1956 and 1974, the year he killed Cst. Pierlet and went to prison.11

After 15 years in prison, John Roger Vincent Cockriell went before a jury for permission to apply for early parole but permission was denied. He went before another jury in 1994, and this jury, after nearly three hours of deliberation, did grant permission; however, the decision was not unanimous, and I do not know if early parole was granted.12 He was granted full parole in 1998, but this was suspended at least twice. Cockriell was, as of 2019, still alive and on parole, but very unwell.13 If he is still alive today, he is 68 or 69.

The Honourable John Frederick Rowan, Q.C., who was a fine mentor to so many young lawyers, the partners in Prowse, Williamson & Foster very much included, died in 2016 after a distinguished and decades-long career as a lawyer and then a judge of the B.C. Supreme Court.14 He was 84.

I found myself in the Supreme Court of Canada two more times after Miller, but not for the Crown. Both appearances were after I had left full-

time practice and joined the faculty of law at the University of Victoria. The issue in the second of these was, I think, an important one.15 But in neither did the stakes feel even remotely as high as they did in the spring of 1976, when I spoke all of three words in Miller

ENDNOTES

1. To be fair, the main reason for the unusual length of these factums was that it was very helpful to reproduce excerpts from the trial transcript to support the arguments respecting the procedural and evidentiary grounds of appeal in the case, especially those concerning what the appellants had said during interrogation and to undercover cellmates. The transcript was, if I recall correctly, over 1,000 pages long.

2. Without getting into all the details, the issue involved, inter alia, the fact that murder was, according to then s. 214(2) of the Criminal Code, punishable by death only where an accused “by his own act caused or assisted in causing the death” of a police officer. Otherwise, a verdict of murder punishable by life imprisonment would be possible. Miller had argued that the trial judge should have included this alternative verdict in his charge to the jury. Responding to this argument occupied ten pages of our factum.

3. See Miller et al v The Queen, [1977] 2 SCR 680 at 712–14.

4. Ibid at 684.

5. For a representative example, see Walter Berns, For Capital Punishment: Crime and the Morality of the Death Penalty (New York: Basic Books, 1979).

6. Scott Turow, Ultimate Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty (Farrar, Strauss & Giroux 2003) at 114, quoted in Robert Harvie & Hamar Foster, “Shocks and Balances: United States v. Burns, Fine-Tuning Canadian Extradition Law, and the Future of the Death Penalty” (2004/05) 40:2 Gonzaga L Rev 293 at 327.

7. In addition to the Milgaard, Marshall and Morin cases, nearly 20 other wrongful murder convictions are listed in the entry on this topic in The Canadian Encyclopedia, which was published in 2015: Kirk Makin, “Wrongful Convictions in Canada”, The Canadian Encyclopedia, online: <www.thecanadian encyclopedia.ca/en/article/wrongful-convictions>. There have been more since.

8. United States v Burns, 2001 SCC 7 [Burns]. There is a very narrow “exceptional circumstances” exception, but see Harvie & Foster, supra note 6 at 320–22.

9. Burns, supra note 8 at para 129.

10. Actually, between 1961 and 1976, the capital/noncapital distinction had been reworded, but without any change in meaning. The distinction became murder punishable by death as opposed to murder pun-

ishable by life imprisonment. Both punishments were mandatory.

11. See “Convicted Killer, Sexual Abuser Dies in Hospital”, CBC News (16 July 2009), online: <www.cbc. ca/news/canada/british-columbia/convicted-killersexual-abuser-dies-in-hospital-1.776612>; “No Prison for B.C. Cop Killer Sentenced for Incest”, CTV News (13 July 2009), online: <bc.ctvnews.ca/noprison-for-b-c-cop-killer-sentenced-for-incest1.416310>.

12. Vancouver Sun (7 January 1994). These jury reviews were pursuant to the so-called “faint hope” clause, which permitted those convicted of first degree murder, once they had served 15 years of their life sentence, to ask a jury to permit them to apply for parole before they had served the full 25. (This waiting period was still longer than the seven- and ten-year rules prior to 1976.) As a result of legislation enacted by the Conservative government of Prime Minister Harper, this recourse, which was included in the 1976 legislation, is no longer available for those convicted after December 2, 2011. The Supreme Court’s most recent revisiting of the issue of murder and parole is R v Bissonnette, 2022 SCC 23, which applied the Charter’s version of the ban on cruel and unusual treatment or punishment to s. 745.51 of the Criminal Code and found it unconstitutional.

13. See Tom Zytaruk, “Surrey Cop Killer Gets New Parole Conditions”, Victoria News (23 October 2019), online: <www.vicnews.com/news/surreycop-killer-gets-new-parole-conditions-62777>.

14. See “Nos Disparus: The Honourable John Frederick Rowan, Q.C.” (2016) 74 Advocate 745.

15. In R v Wetmore, [1983] 2 SCR 284, we lost 6:1. Still, Paul and Jo-Ann and I persuaded six of the 12 judges who heard the case that we were right. Unfortunately, they were the wrong six: County Court Judge Wetmore, BC Supreme Court Justice Berger, all three BC Court of Appeal justices who heard the Crown’s appeal, and Justice Dickson, dissenting, in the Supreme Court of Canada. At the hearing, the agent for the Attorney General of Ontario, one of the six provinces that intervened to support our position, began his submissions by stating that the Attorney General had instructed him to ask the Supreme Court if they had decided to abandon stare decisis. Chief Justice Laskin was visibly and audibly offended by this question. But Justice Dickson’s dissent pretty much asks the same thing.

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THE WINE COLUMN

By Paul Daykin, K.C., and Bruno De Vita, K.C.*

THE WORLD OF CHENIN BLANC

In the award-winning film American Fiction, † Jeffrey Wright plays Thelonius “Monk” Ellison, an erudite novelist and professor who, frustrated with what he considers to be a lamentable trend in Black fiction, decides to write a satire called “My Pafology” under the pen-name Stagg R. Leigh. To his astonishment and that of his publisher, the book is a smash hit. To promote it, though, he is forced to present himself to the public in the persona of the fictitious Mr. Leigh, a former convict.

There is a memorable scene in which Monk, trying to portray himself as a hardened criminal-cum-writer, meets a young, slick movie producer named Wiley, played by Adam Brody. Here is an excerpt from that scene:

WILEY: Stagg, I presume.

MONK: That’s me.

Wiley and Monk shake.

WILEY: Hey. I’m Wiley. Nice to meet you, brother.

Monk and Wiley sit.

WILEY: Sorry about the bourgie restaurant. My assistant picked it. We can go somewhere else if you’re uncomfortable.

MONK: This is fine.

A server approaches.

WILEY: What’re you drinking?

MONK: I’ll have a Chenin Blanc.

* Messrs. Daykin and De Vita are guest authors of this column. They have been enjoying wine together for over 50 years. That is either an admission of underage drinking or a testament to their friendship, the health benefits of wine or all of the above.

† Written and directed by Cord Jefferson, based on the 2001 novel Erasure by Percival Everett, and starring Jeffrey Wright as Monk and Adam Brody as Wiley.

MONK (CONT’D): Your driest.

WILEY: Ha.

MONK What’s funny?

WILEY: Just a strange order for a guy like you.

MONK: Why’s that?

WILEY: Just don’t see too many convicts drinking white wine.

MONK: You know many convicts?

WILEY: You’d be surprised. I spent a month in the joint myself. It was some interstate commerce shit.

You will note that the author did not just have his main character order a glass of white wine—he asked for a Chenin Blanc, a slip that could have betrayed his true identity. And it was not a Chardonnay or Sauvignon Blanc, which might have been that much more predictable.

Chenin Blanc, of course, is not regarded in the wine world as particularly posh or inaccessible. It is a grape that originated over 1,000 years ago in the Loire Valley in France (where it is sometimes referred to as “Pineau de la Loire”) and has been planted throughout the world including in South Africa (where it is called “Steen”), California, South America and in small quantities in the Okanagan. Sometimes referred to as a “quick change artist”, it is used to produce a range of products from dry table wines to sweet dessert wines and even sparkling wines.

In the Loire, the finest Chenin Blancs come from the Touraine region (just upriver from the city of Tours), which is divided into two appellations—Vouvray, on the north side of the river, and the Montlouis on the south. The soil here is called “tuffeau”, being a soft, porous limestone that drains well. Look for bottles of Vouvray produced by Domaine Huet and Domaine du Clos Naudin and Montlouis from Francois Chidaine and La Grange Tiphaine. Further downstream we have Anjou and Saumur, where Chenin is often used to make sparkling wine. If you see “Saumur Brut” or “Cremant de Loire” on a label, you are looking at a sparkling wine made from Chenin Blanc in the Saumur region. While the large Anjou region produces a lot of inexpensive white table wine, the small appellation of Savennieres, just across the river, has reputable producers making Chenin Blanc that is dry but rich and opulent.

Thought to have been brought to South Africa by Dutch settlers in the 17th century, Chenin was once the most-planted grape variety in the Cape wine region of South Africa (comprising about thirty-five per cent of all vineyards in 1990). In recent decades some Chenin vines have been replanted with Cabernet Sauvignon, Syrah, Merlot and Sauvignon Blanc, but Chenin still accounts for nineteen per cent of all vineyards. Most of the

Cape’s best wines—and most celebrated wine makers—are found in the Stellenbosch and Swartland areas, where “Cape Chenin” is widely produced from old bush vines planted years ago. B.C. wine stores have a broad selection of South African Chenin Blanc and for that reason we mention three of them in this column. Look for wines from David & Nadia, Ken Forrester, Mullineux, Tania and Vincent Carême and Bellingham.

When you think of California wine, you do not think of Chenin Blanc. But there is some very good Chenin originating in the Clarksburg appellation of California, in the Sacramento River delta. Dry Creek Vineyards makes a “Vouvray-style” Chenin with fruit from Clarksburg that is available here, and Pine Ridge makes a Chenin-Viognier blend that you can find in B.C. wine stores.

Closer to home, in the Okanagan valley, Quail’s Gate and Okanagan Crush Pad both offer Chenin, as does Road 13 Winery, which produces a sparkling Chenin Blanc from vines that are over 50 years old.

In South America, although the Chenin Blanc grape accounts for a very small percentage of total plantings, it is appearing more often on labels as it transitions from being a blending grape to a principal varietal. In Argentina’s Mendoza wine region, Chenin is used to produce elegant wines that exhibit abundant fruit balanced by typical Chenin acidity.

For those of you who are tired of the “butteriness” of Chardonnay and the “grassiness” of Sauvignon Blanc, we invite you to give Chenin a try.

Here is our round-up of Chenin Blanc. We have limited our selection to dry, food-friendly versions of Chenin that are available here.

KEN FORRESTER 2022 OLD VINE RESERVE CHENIN BLANC, $25

Forrester is a champion of Chenin Blanc and this wine, made from old vines in Stellenbosch, is a great example of an affordable, food-friendly wine that will impress your friends at a dinner party but also serve nicely as a midweek white. Straw gold in colour, it features pear and melon notes on the nose and tangy citrus flavours in the mouth with a hint of honey or caramel on the finish. It has a bright acidity that will cut nicely through any food with a buttery sauce like Cacio e Pepe or Carbonara.

KEN FORRESTER “THE FMC” 2022, $70

We recently discovered this wine while dining at an Indian restaurant at Estelle Manor in Oxfordshire. The sommelier who recommended it told us, sotto voce, that “FMC” stands for “F***ing Magnificent Chenin” and indeed it is. Drawn from a single vineyard and naturally fermented in French oak and aged for a year in the barrel on the lees, this is a much more opulent

version of Forrester’s Reserve Chenin. Golden in hue and viscous in the glass, it is rich and layered with notes of lemon and lime to start and candied orange peel on the back end. Pair it with anything spicy. This is a cellarworthy wine that would also make a very thoughtful host/hostess gift.

2022 QUAIL’S GATE CHENIN BLANC, $23

Quail’s Gate has been making Chenin Blanc for over 20 years from grapes grown on its own estate vineyard. This is rare in the Okanagan. We found notes of lemon, lime and peach on the nose and on the palate, with a round, soft finish. It has less acidity than the South African or French wines we tasted, and this may appeal to some. We served it with a salad Nicoise but it would go well with any seafood dish. It offers good value.

2022 CAVE DE SAUMUR BLANC “LES POUCHES”, $28, EVERYTHING WINE

This wine is produced by one of the first cooperatives established in the Loire Valley, known for the quality of its viticulture and winemaking. This is a classic Chenin Blanc. It delivers expressive aromas of pear and stone fruit and rich lingering flavours that are balanced by a refreshing acidity. It is a pleasure to drink on its own but it is even better when paired with white fish or creamy cheeses such as Camembert or Brie.

2022 PINE RIDGE CHENIN BLANC – VIOGNIER, CLARKSBURG, $27, EVERYTHING WINE

Pine Ridge is a winery located in the heart of the Napa Valley on the Silverado Trail, but this offering is made from grapes sourced from the Clarksburg appellation located 130 kilometres inland along the Sacramento River. The maritime influence of the nearby river provides a micro-climate ideal for Chenin Blanc. This wine is a blend of eighty per cent Chenin Blanc and twenty per cent Viognier. The Viognier comes from the Lodi American Viticultural Area, just south of Clarksburg. It is fermented cold and then aged in one hundred per cent stainless steel to maintain its freshness. Not unexpectedly for a wine from California, it is aromatic, and the flavours are rich and expressive, exhibiting tropical fruit and melon. At the same time, it remains fresh and crisp. This wine would be a great accompaniment to spicy Asian-style seafood or prosciutto with melon.

2022 BELLINGHAM OLD VINE CHENIN BLANC, BERNARD SERIES, $30, EVERYTHING WINE

This is a delicious South African wine made from grapes that are hand-

picked from four sources of old bush vines located in Cape Town, Stellenbosch, Paarl and Darling. Unlike typical Chenin Blanc made in the Loire Valley, the Bellingham is rounder and, we dare say for fear of putting off those who avoid Chardonnay, more “Burgundian”. In a recent review by Jancis Robinson, one of the most influential wine journalists in the world, known as well for providing advice for the wine cellar of the Royal Family, this wine was described as having the same characteristics of a premier cru from the Côte de Beaune. It is golden in colour and the flavours are rich and layered. While one can detect a touch of oak in the wine (it is fermented in a mix of new and old barrels), it is beautifully balanced by its lustrous fruit. We highly recommend it. Serve it with sable fish or a creamy seafood risotto.

2023 REVANCHA LA PRIMERA CHENIN BLANC, $43, MARQUIS WINE CELLARS

Here is an example of a Chenin Blanc from South America. The grapes are sourced from vineyards in Agrelo, Luján de Cuyo, Mendoza, Argentina, 1,100 meters above sea level and are normally harvested in late March. Eighty percent of the grapes are fermented in stainless steel and the remainder in new French oak barrels for six months. This is an elegant wine that features aromas of red apple and flavours that are fresh and vibrant. It has a layered and creamy texture which adds to its complexity. We believe this to be the only South American Chenin Blanc in the B.C. market, but it is worth the visit to Marquis Wine Cellars to pick up a bottle. The Revancha would be a perfect accompaniment to “linguine alle vongole” or risotto with Dungeness crab.

“Sneaky Pete Strikes Again” by Kathy Traeger, acrylic on canvas, 48'' x 40''

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NEWS FROM

BC LAW INSTITUTE

By Ed Wilson*

The BC Law Institute had a busy and productive year in 2024, publishing two major reports that advanced law reform goals in two areas of emerging practice: the Report on Artificial Intelligence and Civil Liability and the Report on Parentage Law Under the Family Law Act. Additionally, our Canadian Centre for Elder Law (“CCEL”) launched the Dementia and Decision-Making Project, a set of helpful tools aimed at supporting people living with dementia, as well as their family or friend caregivers and care partners and health care providers.

RELEASED PUBLICATIONS IN 2024

Report on Artificial Intelligence and Civil Liability

Our Report on Artificial Intelligence and Civil Liability advances recommendations to adapt tort law to address harm caused by autonomous artificial intelligence. Artificial intelligence (“AI”) is being used widely across many sectors and impacts individuals’ lives. These AI systems rely on probabilistic inferences from imperfect data, leading to unexplainable decision-making processes. This complexity presents challenges when applying tort law, which was initially crafted for human actions.

Report on Parentage: A Review of Parentage Under Part 3 of the Family Law Act

Establishing the parentage of a child is pivotal to shaping the child’s identity and ensuring parental rights and responsibilities. Our Report on Parentage examines the current state of part 3 of the Family Law Act to determine if it effectively achieves its goals in ensuring equitable treatment for all children to protect their interests and to promote family stability. With signifi-

* Ed Wilson is the chair of the British Columbia Law Institute.

cant developments in law, society and reproductive science, our project assessed whether part 3 of the Act still meets these goals.

CCEL’s Dementia and Decision-Making Project

The Dementia and Decision-Making Project supports the rights of people living with dementia in making decisions about their care and well-being so that the rights of people living with dementia are respected, and that they participate as much as possible in the decisions that matter to them. These practical resources provide information for everyone who works with people living with dementia—health care stakeholders like doctors, nurses, long-term care facility staff and family members, as well as the individuals themselves—in how to provide clear support and information in relation to decision-making.

A LOOK INTO 2025

As we reflect on these accomplishments, we look forward to 2025 with excitement as we continue to advance law reform to reflect the changing legal landscape in British Columbia. In the year ahead, we plan to release at least one report, three study papers and three practical resources aimed at benefiting policy makers, law makers and legal practitioners. We are also excited to host the annual Federation of Law Reform Agencies of Canada (“FOLRAC”) conference that will bring together the law reform community for collaboration and shared insights.

FOLRAC Conference and the People-Centred Justice Workshop

This year, BCLI will host the annual meeting of FOLRAC in Vancouver, providing a valuable opportunity to connect with representatives from law reform organizations across British Columbia, Alberta, Manitoba, Saskatchewan, Ontario, Quebec, Nova Scotia and Canada as a whole. Attendees will share insights and updates on law reform initiatives. Concurrently, the BC Access to Justice Centre for Excellence will be holding its People-Centred Justice (“PCJ”) workshop with the theme of “Innovation in People-Centred Justice”. This workshop, attended by scholars, practitioners and policy makers, will explore innovations in technology, procedural reforms and alternative approaches to PCJ.

Given the alignment between the workshop’s goals and FOLRAC’s focus, as well as the opportunity to strengthen connections among the academic community, law reform organizations and legal practitioners, the two events will be scheduled back-to-back. The FOLRAC meeting will take place on May 28–29, followed by the PCJ workshop on May 30–31 at UBC Robson Square. This collaboration is vital to advancing the ongoing transformation of law and justice in Canada.

More information on event registration for both events will be available soon. If you have any questions or would like to learn more about FOLRAC, contact the BCLI Executive Director Karen Campbell at <kcampbell@ bcli.org>.

PLANNED PUBLICATIONS IN 2025

Renovate the Public Hearings Project

The project is exploring specific reforms to public hearing provisions outlined in the Local Government Act and related legislation. Critics question the effectiveness of British Columbia's public hearing laws in fostering public engagement, citing studies revealing widespread dissatisfaction due to high costs, wasted time, low satisfaction and occasional trauma for participants. The proposed recommendations aim to enhance British Columbia’s legislation regarding public engagement during the enactment of land-use bylaws by incorporating new insights into group deliberation and establishing improved methods for local governments to involve the public. As part of BCLI’s commitment to better understanding and sharing about legally plural approaches and particularly in the context of our Reconciling Crown Legal Frameworks Program, this project has an Indigenous listening component woven throughout.

Indigenous-Led Conflict Resolution Study Paper

This paper is being developed as part of our Reconciling Crown Legal Frameworks Program. It is intended to assist in highlighting options to support the application and enforcement of Indigenous legal orders. It shares some of the ways in which Indigenous peoples are leading conflict resolution processes in their communities. These examples demonstrate some of the diversity of approaches being taken up by Indigenous communities as they apply their traditional laws and legal orders to modern day issues. It also explores examples of how a plurality of legal systems can be supported through relationships and agreements. In this way, it looks at mechanisms for supporting the co-existence of Indigenous-led conflict resolution and state justice systems.

Economic Abuse and Family Business Breakdown Study Paper

We are examining how family businesses can be used for economic abuse in family law disputes, considering how case law addresses the legal and definitional basics of economic abuse in family law. We are considering what behaviours are abusive and how pervasive they are, as well as judicial responses to these behaviours (such as remedies under the Family Law Act, B.C. Business Corporations Act and others).

Rationalizing Non-Statutory Director and Officer Liability Project

This project aims to clear up confusion about when a director or officer of a corporation can be liable in their personal capacity for torts of the corporation. The state of the law is very unsettled because the Supreme Court of Canada has failed to resolve two principal conflicting lines of authority, appearing at different times to approve both of them. The issue is important to both the business (especially small business) and not-for-profit sectors. The goal of the project is to create pragmatic, fair and coherent rules concerning personal liability and to curb abusive claims from being raised against directors and officers personally in corporate litigation.

Trauma-Informed Legal Writing Guide

We have drafted a trauma-informed legal writing guide, which will include perspectives of practitioners and people with lived experience in best practices for legal writing with a trauma-informed lens. It will function as a resource akin to our Gender Diverse Legal Writing Guide.

Pension Division Questions and Answers 5th Edition

We are developing a new edition of this guide to navigating pension division on breakdown of a relationship in British Columbia. This resource is tailored to meet the needs of various professionals, offering detailed insights into the complex laws governing division of pensions between separating spouses. Since the guide’s last edition in 2017, numerous amendments have been made to both the Family Law Act and the Pension Benefits Standards Act. The update will incorporate recent changes in the law to ensure an accurate and relevant resource for practitioners. This includes the May 2023 passage of Bill 17 to amend part 6 of the Family Law Act

Estate Planning on Reserves

CCEL will be releasing a practice resource to fill a knowledge gap among legal professionals about wills and estate planning for Indigenous persons who reside on reserves. This resource is being vetted with expert practitioners in the legal community and service organizations like Seniors First BC and the UBC Indigenous Law Clinic.

BCLI’s future projects will continue to address the evolving needs of the legal communities and practitioners in British Columbia by fostering a collaborative approach, actively engaging stakeholders such as legal professionals, Indigenous groups and subject-matter experts. Through this inclusive process, BCLI ensures that our work not only reflects current challenges, but also anticipates emerging needs across many areas of legal practice in British Columbia.

NEWS FROM CLEBC SOCIETY

By Adam Simpkins*

NEW CLEBC BOARD OF DIRECTORS

The Continuing Legal Education Society of British Columbia (“CLEBC”) is delighted to announce the appointment of three accomplished professionals to its board of directors: Kate Gunn, Dr. Sarah Morales and Lisa Martz. These individuals bring with them an exceptional breadth of legal expertise and a commitment to advancing education within the legal profession.

Kate Gunn joins the board as Vancouver County representative. A partner at First Peoples Law LLP, Kate is widely respected for her work representing Indigenous communities across Canada. Her practice focuses on protecting Indigenous title, rights and treaty rights, and she has argued landmark cases concerning Indigenous law. Kate holds an LL.M. from UBC, where her research explored the interpretation of treaties between Indigenous peoples and the Crown. She is also the co-author of Indigenous Peoples and the Law in Canada: Cases and Commentary, a critical text for understanding federal legislation and court decisions affecting Indigenous rights. Kate’s academic and practical contributions to the field make her a valued addition to the CLEBC board.

Dr. Sarah Morales (Su-taxwiye) serves as the UVic Law representative. Sarah is Coast Salish, a member of the Cowichan Tribes and an associate professor at the University of Victoria Faculty of Law. Her research focuses on Indigenous legal traditions, with a particular emphasis on Coast Salish law, Aboriginal law and international human rights. Sarah has been instrumental in supporting Indigenous nations across Canada in nation building and the recognition of inherent rights. Prior to joining UVic, she taught at the University of Ottawa and has been active in Indigenous and non-governmental

* Adam Simpkins is the marketing manager at the Continuing Legal Education Society of British Columbia.

organization legal advocacy. Her work in integrating traditional Indigenous legal systems with contemporary Canadian law positions her as an influential voice on the CLEBC board.

Lisa Martz, Peter A. Allard School of Law representative, brings a wealth of practical experience from her 25 years of litigation in Vancouver. Having practised at both McCarthy Tétrault LLP and Gudmundseth Mickelson LLP, Lisa has acted as counsel for the Province of British Columbia, large corporations and individuals. In addition to her legal practice, Lisa has served as commission counsel for public inquiries and provided criminal defence for youth in care. Currently, she teaches at UBC’s law faculty, where she supervises the judicial externship program and teaches courses in dispute resolution, advocacy and legal ethics. Lisa’s involvement with CLEBC includes presenting and co-chairing various courses, showcasing her deep commitment to legal education.

These appointments reflect CLEBC’s dedication to ensuring that its leadership continues to reflect a broad range of expertise and perspectives within the legal community. The board looks forward to benefiting from the insights and experiences that Kate, Sarah and Lisa will undoubtedly bring to the organization.

NEW UPDATES FOR YOUR LEGAL LIBRARY

We are pleased to announce the latest updates to three of our trusted resources for legal professionals: Civil Trial Handbook, Due Diligence Deskbook and Conveyancing Deskbook. Each of these publications, available in print or as an online subscription, has been comprehensively updated to reflect recent legislative changes and practical developments.

Civil Trial Handbook

Preparing for trial can be a daunting task, but with the Civil Trial Handbook (7th edition), you can take your mentor with you to every court appearance and client meeting. This edition provides essential guidance on preparing for a B.C. Supreme Court trial, from client retainer to obtaining costs, complete with checklists and sample trial documents. Notable updates include significant revisions to chapters on pre-trial dispositions and witness management, as well as expanded commentary on striking pleadings and summary trial applications.

Due Diligence Deskbook

For lawyers assisting with business acquisitions, the Due Diligence Deskbook is an essential tool to ensure all the necessary investigations are completed smoothly. The 2024 update includes expanded guidance on topics such as

health record searches, due diligence for data assets and consultation with Indigenous peoples concerning mineral claims. Additionally, it reflects the ongoing migration of BC OnLine searches and introduces new processes for the Bank Act Security Registry. This publication provides practical commentary and over 45 search request templates to help you cover all your bases.

Conveyancing Deskbook

The Conveyancing Deskbook continues to be the go-to guide for legal support staff managing land transfers in British Columbia. The 2024 update brings new guidance on wire transfers of property sale proceeds and virtual client verification, while also addressing changes such as the increased holdback requirements for dispositions by non-residents and the removal of exemptions for electronic filing by local governments. This step-by-step resource ensures that no detail is overlooked in the conveyancing process.

We would like to extend our sincere gratitude to all the contributors whose expertise and effort made these updates possible. Your contributions are invaluable to the legal community.

ЖЖЖ

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“Old Pal” by Jane Bronsch, acrylic on canvas, 48'' x 36'', 2023

NEWS FROM COURTHOUSE LIBRARIES BC

By Caroline Nevin*

If you have ever practised in another jurisdiction, you likely appreciate how British Columbia’s approach to law libraries is completely unique.

Just over 150 years ago, the Law Society of British Columbia was created and its first objective was to open a law library to house and share legal publications so that individual lawyers did not have to incur that expense. It was funded by a levy on each Law Society member. Fast forward about a hundred years to 1975, when the Law Society determined that the running of B.C. law libraries was best managed by professional staff overseen by an autonomous board of a non-profit society dedicated to this purpose. Funding was provided to Courthouse Libraries BC from Law Society member fees and Law Foundation proceeds from lawyers’ pooled trust accounts, leading to the current status of 50/50 operational funding by both organizations, supplemented with grants by the Notary Foundation and with courthouse spaces provided by the Ministry of Attorney General.

Today, members of the legal professions and the public benefit significantly from an integrated network of public law libraries in 30 courthouses around the province. Many functions are centralized for efficiency and quality control—HR, IT infrastructure, digital services, accounting, purchasing, distribution—which allows the best bang for the operational buck. Other functions involve localized decisions and activities centred on the unique needs of each community. And permanent cross-jurisdictional teams work together on things like Collections decisions and reference/ research inquiries. This approach—part centralized, part decentralized, part coordinated—has allowed British Columbia to build an effective, efficient and responsive public law library network that serves the entire province.

* Caroline Nevin is the chief executive officer of Courthouse Libraries BC.

The two biggest limiting factors all law libraries face are the cost of IT and the extraordinary rate of inflation in legal publishing. Thankfully, both the Law Foundation of BC and the Notary Foundation of BC have stepped up to assist us with special investments in these two areas—the Law Foundation has provided $2 million toward enhancing the accessibility of our Collections, and both the Law Foundation and the Notary Foundation have invested $1 million each to support improvements in our IT environment and digital services. We are very grateful for this infusion of funds to allow us to make headway on these essential areas without diminishing the operational budget or client services.

What’s new in the library today? Lots! All lawyers can access three key online databases from home or office using their Law Society digital credentials through BC Wallet, or through a library account. This includes Hein Online, Range Findr, and vLex—which now includes Emond's Criminal and Immigration Law digital collections. Emond is a Canadian legal publisher with titles targeted to a Canadian audience, including 18 titles covering criminal law topics such as driving, drugs, fraud, extradition and appeals, and 5 titles covering immigration topics like refugee protection, sponsorship and the labour market. We also expanded our Hein Online subscription to add permanent digital access to UK and Irish Nominative Reports—case law from the United Kingdom and Ireland spanning 1585–1899, now available province-wide.

On our library computers, you can access the public view and print features of Court Services Online (“CSO”) without the usual per-item fee—this free service is a big improvement in terms of access, and we appreciate our partnership with Court Services that allowed it to be made available on 100 public computers in all 30 of our libraries.

Our recently re-launched Clicklaw digital service offers legal information geared to the public, selected and organized by law librarians. This is a great place to send clients to learn more about the area of law you are helping them with, or to send people to who cannot afford to hire a lawyer. It is even a place I know some lawyers go to when they are taking on a file in an area of law they may not be up-to-date on in terms of changes in the law or legal processes. Speaking of which, one of family law’s most accessible and useful resources—J.P. Boyd on Family Law—has recently been updated and is available online through our Clicklaw Wikibooks.

Book-in-a-Box continues to be a big hit with lawyers, particularly in outlying areas. We deliver (and you return) library books free of charge, and even in a postal strike we can get a requested book to your nearest courthouse library. We are a practice-oriented library, so we like to have our books circulating to wherever they are needed!

Got an odd question? Check out our Legal Knowledge Base, which is a digital collection of legal research questions answered by our knowledgeable staff.

Some new books to check out:

• Technology and Security for Lawyers: the Basics and Beyond by W. Kuan Hong

• Public Inquiries in Canada: Law and Practice, 2nd edition by Ronda Bessner

• A Proactive Practitioner's Guide to Section 11(b) of the Charter by Tracy Kozlowski

• The Right Not to Remain Silent: The Truth About Mental Health in The Legal Profession by Thomas Telfer

• Diversity and Indigenous Peoples in Canada, 5th edition by Darion Boyington

• The Comprehensive Guide to Legal Research, Writing & Analysis, 4th edition by Moira McCarney

• AI and the Legal Profession: Transforming the Future of Law by Alex Davies

• Non-Human Rights: Critical Perspectives by Alexis Alvarez-Nakagawa

Some new looseleafs we have been able to purchase thanks to Collections Enhancement funding are the following:

•Harris & LeBreux, Annotated Business Agreements

•Harris, Wrongful Dismissal

•Branch, Class Actions in Canada

•Rogers, The Law of Canadian Municipal Corporations

•Hubbard, The Law of Privilege in Canada

•Butler, Tax Planned Wills Precedents

•Freedman, Financial Principles in Family Law

•Pentney, Discrimination and the Law

•Butler, Canadian Law of Planning and Zoning

•Casey, Regulation of Professions in Canada

•Segal, Disclosure and Production in Criminal Cases

Things to watch for in the near future: surveys and other opportunities to provide your feedback on our Collections and services. We are an organization that strives for continuous improvement in everything we do, and we believe that the best input comes from those who need or use our services. Please take every opportunity you can to engage with us and help make our Collections and services even better!

Our seasoned international & domestic arbitrators adhere to a fair process and deliver impartial, balanced and timely awards.

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NEWS FROM VANCOUVER BAR ASSOCIATION

By Heather Doi*

The Vancouver Bar Association (“VBA”) has been the proud publisher of the Advocate since 1943. It is my pleasure to bring Advocate readers, including the members of the Vancouver bar, an update on the VBA’s activities over the 2023–2024 term.

This has been a year of significant change in our profession. Most notably, many stakeholder organizations, including the VBA, participated in discourse regarding the anticipated introduction what was then Bill 21. On May 16, 2024, the Legal Professions Act, S.B.C 2024, c. 26 received royal assent in the legislature. While it is too early to say whether and how the new Act will reshape our profession, it seemed to set the tone for a year of adaptation.

Over the last year, our board has shown a commitment to innovation and critical self-reflection, all while continuing many of the traditions which have made the VBA a fixture in the community since 1892.

One of the VBA’s best-known functions is its role in bringing together members of the bar and judiciary at events. These events promote civility and collegiality within the profession. Immediately after the COVID-19 pandemic, most of the bar was eager to connect in person. The boom of events and desire to constantly engage seems to have long subsided. At times, it feels like we are sliding in the other direction.

Recently, opposing counsel lamented to me that earlier in her career, it seemed counsel were more comfortable picking up the phone and talking to one another when issues arose. Too often, she remarked, the inclination now is just to send an email. Sometimes the emails lend themselves to further dispute. At a minimum, they stop us from connecting with the human being on the other side of the file. Her comments were a reminder that

* Heather Doi is a partner at Nathanson, Schachter & Thompson LLP and past president of the VBA.

opportunities to connect with our peers, both in the practice of law and in adjacent settings, are valuable and perhaps increasingly necessary.

In 2024, the VBA carried on with the best of its traditions. Members of the bar started the year by racing down the slopes (Annual Alpine Championship). They moved next to hurling dodgeballs (Charitable Dodgeball Tournament), before meeting on the course for something a little more refined (Golf Tournament).

Opportunities to break bread abounded, regardless of the hour of the day. Members of the bar and judiciary had “Breakfast with the Bench”, honoured recent appointments to and retirements from the bench at the Judges’ Luncheon, and dined at the Canadian Bar Association-BC Branch (“CBABC”) / VBA 38th Annual Bench and Bar Dinner. To cap the year off, members and non-members gathered at the Vancouver Club in September to test local craft beer, spirits and non-alcoholic offerings at the Fall Festival, one of the VBA’s most popular offerings.

Some of the highlights from these events include the following:

•In spite of the poor snow conditions last winter, the Annual Alpine Championship remained a sell-out event. Notably, fastest individual times overall were set by Leah Plumridge at 17.71s (Crabtree Law) and Marc Kazimirski, K.C. (KazLaw) at 17.10s.

•Over the last two years in particular, the VBA has made it a priority to strengthen connections with other bar associations and lawyers’ interest groups in our community. Further to that, this was the second year that the CBABC and the VBA co-hosted the 38th Annual Bench and Bar Dinner at the Fairmont Waterfront Hotel on June 20, 2024. The VBA looks forward to continuing this relatively new, but successful, partnership in years to come.

•The Judges’ Luncheon, held at the Fairmont Hotel Vancouver on May 2, 2024, was particularly memorable as two chief justices were among the recent appointees and retirees we honoured. The VBA welcomed the recently appointed Honourable Leonard Marchand as Chief Justice of British Columbia and Chief Justice of the Court of Appeal of Yukon. It was also a pleasure for the VBA to be able to acknowledge the Honourable Christopher E. Hinkson (then the Chief Justice of the Supreme Court of British Columbia), who retired on May 7, 2024, shortly after the luncheon was held. Chief Justice Hinkson (as he then was) had previously served as president of the VBA (1986–1987) and in the years after, always made the time to accept VBA invitations and maintain a connection with

the bar. We look forward to honouring the latest appointees and retirees at the judges’ luncheon in 2025, which group will include Chief Justice Ronald A. Skolrood of the Supreme Court, another former VBA president (1996–1997).

The VBA also devoted significant time and effort this year to its nonevent-based committees, many of which are delivered in partnership with key volunteers who donate their skills and time to these programs.

Thank you to Jamie Gopaulsingh and Logan Rogers, who respectively organize the VBA’s softball league and drop-in basketball league. Thank you to Shaun Foster, a former board member who, even after leaving the board, has continued to assist with IT issues large and small. This year, one of the large projects included a complete rebuild and relaunch of the VBA’s website.

We also give special recognition to Michael Libby, who in September 2024 was appointed a judge of the Provincial Court. For many years, Judge Libby was the program director for the Inns of Court Program, which brings junior barristers together with senior lawyers and members of the bench. We wish Judge Libby all the best in his new role and thank him for his many years of service to the VBA and the Inns of Court Program. The VBA welcomes Tom Newnham to the role of program director and looks forward to working alongside him in this capacity.

The VBA has continued its commitment to revitalizing and maintaining the Vancouver Barrister’s Lounge at the Vancouver Law Courts. This year saw the much-hailed return of coffee and snacks to the lounge. We are indebted to the generosity of Chantal Paquette, who has worked with the VBA to help keep the lounge sufficiently stocked. With the closing of the Law Courts Inn, the Barrister’s Lounge remains one of the few dedicated social spaces for lawyers in this city.

Internally, the VBA devoted significant time to ensuring its events, programs and benefits continue to remain accessible, affordable and appealing to a broad-cross section of the local bar.

One of the VBA’s newer committees, the equity, diversity and inclusion (“EDI”) committee, has brought a renewed focus to this work, through its mandate to assist the VBA in delivering strategies and programs promoting EDI. This mandate applies internally within the organization, as well as in the VBA’s interactions with members and the bar at large. Bronwen Black and Rachel Wollenberg have been particularly instrumental in steering this committee in 2024.

We have also continued to explore means of assisting members with the challenge of accessing and finding affordable childcare. In particular, mem-

bers in need of childcare will benefit from a partnership with Kids and Company, renewed for an additional year. The partnership provides members with waitlist access and the ability to purchase up to five emergency passes annually. We encourage members to explore and make use of the childcare benefits on our website: <vancouverbar.ca>.

The final changes of the year took place at the VBA’s storied annual general meeting (“AGM”) on November 26, 2024. While bun throwing is nowhere to be seen these days, members showed their enthusiasm in other ways, with 12 candidates vying for six member-at-large positions on the board. The successful candidates were Sabrina Chang, Natasha Cooke, Roy Lou, Debbie Preston, Shirley Yan and Alan Yuen. Six executive members completed their two-year terms and stepped down at the AGM: Bronwen Black, Mia Laity, Joey Levesque, Neal Parker, David Penner and Caroline Senini. We also said goodbye to two long-serving executive members on the board: Niall Rand (past president) and Zachary Rogers (secretary-treasurer). We thank each of the departing board members for their significant contributions to the organization.

The VBA will be guided next year by Sean Gallagher, who was acclaimed as president, and Joey Levesque, who was acclaimed as vice-president. We are also fortunate to have Spencer Malthouse, filling the role of secretarytreasurer after vacating his seat as a member-at-large. The board is ably assisted by Andra Raita, who began working as the VBA’s business manager at the start of the year. Andra quickly embraced the varied nature of this position and is now integral to our otherwise volunteer-run operations.

We would be pleased to receive any member feedback about any aspect of our work. Do not hesitate to reach out to us via email at info@vancouverbar.ca, or on LinkedIn or Instagram (@vancouverbarassociation).

ANNOUNCING THE 2025 ADVOCATE SHORT FICTION COMPETITION

ELIGIBLE CONTRIBUTORS

Any person who is now, or has been, a member of the Law Society of British Columbia (including lawyers, judges and masters) or who is an articled student. Contest judges and the “staff” of the Advocate are ineligible to contribute.

ELIGIBLE FICTION

A fictional work, written in English, to a strict maximum of 2,500 words that deals, if only incidentally, with legal subject matter.

The contributor must be the author of the work, which must be entirely original and must not ever have been published or submitted for publication or consideration in a writing competition elsewhere.

DEADLINE FOR SUBMISSIONS

The close of business on Friday, September 5, 2025. Submissions will not be returned, so authors should maintain copies of their work.

FORMAT FOR SUBMISSIONS

Two double-spaced, typed manuscript copies, each with a separate cover sheet bearing the work’s title together with its author’s name, address, daytime telephone number and a word count. The author’s name should not appear anywhere on or in the manuscript itself, as all submissions will be judged anonymously, strictly on literary merit.

ADDRESS FOR SUBMISSIONS

Advocate Short Fiction Competition

c/o D. Michael Bain, K.C., Editor

The Advocate #1918 – 1030 West Georgia Street Vancouver, B.C. V6E 2Y3

JUDGES

David Roberts, K.C., Anne Giardini, K.C., and Peter Roberts, K.C. The decisions of the judges as to the literary merit of the contributions shall be final.

PRIZES

First prize:$400 gift certificate at a local book store and publication in the Advocate

Second prize:$250 gift certificate at a local book store and possible publication in the Advocate

Third prize:$100 gift certificate at Zefferelli’s Spaghetti Joint and possible publication in the Advocate

Winning entries will be selected by, at the latest, February 13, 2026. Contest judges may award fewer than three prizes if, in their judgment, they consider it appropriate.

All submissions, including winning entries, will also be considered for possible publication by the Vancouver Bar Association or an independent publisher in a selection of “legal fictions” to be released at a later date.

TRANSFER OF RIGHTS

In consideration of having their fiction reviewed for:

(a) possible selection as winning entries;

(b) possible publication in the Advocate; and

(c) possible inclusion in a selection of submissions to be published in book form;

contributors agree upon submitting their work that the Vancouver Bar Association (publisher of the Advocate), or its licensee, shall have the sole and exclusive right, in Canada and for a period of 15 years, to print, publish and sell their work in such form or forms as the Vancouver Bar Association may in its discretion consider appropriate, such right to revert automatically to all contributors whose works of fiction are not selected as winning entries or for inclusion in the selection of submissions to be published.

Contributors further undertake, if required by the Vancouver Bar Association, to execute both a written assignment in order to confirm the transfer of rights described above to the Vancouver Bar Association and a waiver of the moral rights attached to their work, should their work be selected for publication in the Advocate as a winning entry or for inclusion in a selection of submissions to be published in book form. All proceeds or royalties, if any, from the sales of such a selection will be paid to the benefit of the Vancouver Bar Association, a non-profit organization.

PETER A. ALLARD SCHOOL OF LAW FACULTY NEWS

By Heidi Wudrick*

WELCOMING FOUR NEW FACULTY MEMBERS TO ALLARD LAW

In September 2024, the Peter A. Allard School of Law was pleased to welcome four new faculty members to the law school. In keeping with our strategic plan objective of attracting, engaging and retaining a diverse global community of outstanding students, faculty and staff, these new members of the Allard Law community will enhance our research and teaching across areas including health law and policy, Aboriginal and Indigenous law, and law and technology.

Associate Professor Dr. Irehobhude O. Iyioha is the inaugural holder of the UBC Professorship in Race and Access to Justice, funded by the Law Foundation of British Columbia. Her areas of expertise include feminist legal studies, health law and policy, international humanitarian law, and law and social justice. Dr. Iyioha returns to the law school after completing her Ph.D. at Allard Law and teaching at the UVic Faculty of Law. This year, Dr. Iyioha is teaching Tort Law. In addition to her outstanding academic record, Dr. Iyioha is also a fiction author, most recently publishing a new collection of short stories titled A Place Beyond the Heart

Assistant Professor Scott Franks is a citizen of the Manitoba Métis Federation and an expert on Canadian Aboriginal law and practice and Indigenous legal theory. Professor Franks’s research focuses on the relationship between Indigenous peoples and the Canadian state. In his Ph.D. research at the University of Ottawa, Professor Franks is investigating the judicial construction of Métis legal identity in the Alberta Métis Settlements. Before joining us at Allard Law, Professor Franks was an assistant professor at the Lincoln Alexander School of Law at Toronto Metropolitan University. This

* Heidi Wudrick is the communications manager at the Peter A. Allard School of Law.

fall, Professor Franks is teaching Indigenous Settler Legal Relations and the upper-year seminar Aboriginal & Treaty Rights.

Assistant Professor of Teaching Jessica Buffalo joins us as the Academic Director, Indigenous Community Legal Clinic. Professor Buffalo is from Samson Cree Nation/Nipisikohpahk, and her Cree/nehiyawak name is Maskwa Iskwêw, meaning Bear Woman. She obtained her J.D. degree from Allard Law in 2016 and her experience includes serving as the temporary Homeless Outreach Lawyer at Calgary Legal Guidance and running a private practice, focusing on criminal defence for Indigenous and marginalized people. In 2022, she became the Law Society of Alberta’s first Indigenous Initiatives Counsel, where she led initiatives aimed at advancing reconciliation and developed intercultural competency training.

Dr. Moira Aikenhead is another graduate who is returning to the law school after completing her LL.M. and Ph.D. at Allard Law. In her new role as lecturer, Dr. Aikenhead is teaching Tort Law and Legal Research and Writing. In her current research, Dr. Aikenhead is examining how Canadian courts are treating digital evidence (such as videos, social media posts and text messages) in cases of gender violence, as well as civil remedies to technology-facilitated gender violence such as British Columbia’s new Intimate Images Protection Act . Prior to joining Allard Law, Professor Aikenhead taught at the University of Victoria Faculty of Law.

You can learn more about Allard Law faculty members’ research by accessing their open-source publications through the Allard Research Commons, online: <commons.allard.ubc.ca>.

UVIC LAW FACULTY NEWS

By Katie McGroarty*

THE ENVIRONMENTAL LAW CENTRE: HIGHLIGHTS FROM THE 2023–24

ANNUAL REPORT

The Environmental Law Centre (“ELC”) is a non-profit organization that works within the UVic Faculty of Law to deliver a clinic course through which students and staff lawyers, supported by professional staff, provide over 4,000 hours of legal assistance to British Columbians each year.

ELC’s 2023–24 Annual Report highlights a year marked by significant transitions and impactful environmental advocacy. The report provides an overview of ELC’s recent efforts to protect and restore land and water resources, support Indigenous authority and address pressing environmental issues such as climate change and plastic pollution. The following is a summary of the full report, which is available online at <elc.uvic.ca>.

All ELC work is based on partnerships with Indigenous, environmental and community organizations, individuals and lawyers with an interest in public interest environmental law. Through pro bono work, ELC aims to increase the capacity of its partners and others to protect and enhance environmental conservation and sustainability in British Columbia through both Indigenous and state authority.

ELC’s annual activities involve a range of legal approaches and solutions, including legal opinions, submissions, law reform proposals, public information, supporting advocacy before tribunals and courts, and creating manuals and training tools for communities. ELC completes 20–40 files and trains over 30 students a year, regularly engages lawyers in the public interest and private law and provides public education opportunities through publicly posting reports and other resources.

* Katie McGroarty is the communications officer at the UVic Faculty of Law.

ELC receives more requests for assistance each term than it can address. Guided by a case selection policy and process, ELC prioritizes cases that offer significant contributions to the development of environmental law while providing educational opportunities for students. This approach results in a diverse selection of cases, each requiring unique legal strategies, thereby enriching the learning experience for students and the opportunities to advance public interest environmental law. While not all work can be shared due to client confidentiality, the Annual Report includes a representative example of cases ELC takes on.

As the report indicates, ELC continues to see demand for progressive tools and ideas for recognition of the rights of Indigenous communities to manage and safeguard their relationships with the environment in their territories, to strengthen their exercise of their stewardship responsibilities, and to respond to impacts from industrial pollution. There is particular interest in supporting Indigenous organizations working with local governments to exercise local government jurisdiction in support of ecological health and Indigenous interests. ELC has worked with several nations to establish their own water flow and quality standards that any water users need to adhere to within their territories.

ELC also continues to see a demand for protecting and restoring land and water resources and for supporting public participation and government accountability in decision making about land and water resources. There is increasing interest in finding ways to mitigate the impacts of climate change through careful planning (e.g., local government planning and regulatory bylaws, and provincial forestry and watershed planning activities) and to encourage governments to move away from fossil fuels. ELC also continues to receive requests to deal with the problem of plastic pollution. Over the past few years, ELC’s work to develop and coordinate strategic law reform for the production, use, recycling and disposal of plastics helped lead to action by both the federal and provincial governments, including the approval of local bans on single-use plastics, establishing a legal framework to provide for province-wide bans of single-use plastic items, and a federal commitment to ban harmful single-use plastics and to have zero plastic waste by 2030. Most recently, ELC investigated legal mechanisms to reduce cigarette butt pollution, which is a major source of pollution in oceans and coastlines worldwide. Finally, ELC is seeing client interest in law reform for the circular economy. Clients are focusing on reducing materials throughput as a key strategy for addressing climate change and preventing further ecological destruction.

For more information about ELC and its work, please visit its website: <elc.uvic.ca>.

INDIGENOUS LAW RESEARCH UNIT: HIGHLIGHTS FROM THE 2023-24 ANNUAL REPORT

The Indigenous Law Research Unit (“ILRU”), housed in the UVic Faculty of Law, is an academic research institute dedicated to the revitalization of Indigenous law and governance. Believing Indigenous laws need to be taken seriously as laws, ILRU’s vision is for Indigenous laws to be living and in use on the ground, and to be researched, taught and theorized about just as other great legal traditions of the world are.

ILRU has had a year of balancing long-standing relationships and projects with new growth and partnerships. The 2023–24 Annual Report showcases ILRU’s dedication to advancing Indigenous law through collaborative projects, community engagement and educational initiatives. To read the full report, including more on this year’s workshops, publications and other highlights, please visit <ilru.ca>.

A Year of Growth and Collaboration

This year, ILRU released the Secwépemc Laws of Kwséltkten and Secwépemc-kt Project (Secwépemc Laws of Belonging) in partnership with the Secwépemc Sna7a Elders Council and the Shuswap Nation Tribal Council. This second-generation project builds on a decade of collaboration, focusing on internal governance and Secwépemc laws of belonging, challenging colonial concepts of membership. The project materials include a law report, a casebook of Secwépemc narratives, a glossary of Secwepemctsín terms, and a graphic summary centred on the Story of Suckerfish. In February 2024, ILRU attended the Secwépemc Winter Gathering in Splatsín to present the materials and honour the knowledge sharers, marking a significant milestone after years of pandemic-related delays.

ILRU has also been nurturing new partnerships with Qwelmínte Secwépemc, Northern Secwépemc te Qelmúcw, the Sierra Club BC, and Indigenous Climate Action. These collaborations involve providing implementation support and delivering training workshops. Ongoing projects with Cowichan Tribes, the Tsilhqot’in National Government, and other partners like the Nicola Watershed Governance Partnership and NIŁ TU,O Child and Family Services Society continue to thrive, thanks to funding from the Law Foundation of BC.

Quw’utsun Water Laws

The Quw’utsun Water Laws Project, a collaboration with Cowichan Tribes, has been particularly active this year. Initiated in 2017, this project aims to articulate Quw’utsun law on water, and is supported by funding from the Real Estate Foundation of British Columbia, Vancity, the Swift Foundation

and the Social Sciences and Humanities Research Council. Highlights include attending the Stth’lhnamut sqw’ulum (First Salmon Ceremony) to honour the salmon and hear teachings from community elders. The team also participated in the Cowichan Tribes Community Open House, engaging with community members and facilitating activities for children and youth. Materials from this project will include a report, casebook and graphic summary, animated by contributions from elders, knowledge-holders and artists.

Scw’exmx and syilx Law in and for the Nicola Watershed

The Scw’exmx and syilx Law in and for the Nicola Watershed Project, a three-year partnership with the Nicola Watershed Governance Partnership (“NWGP”), continues to make an impact. Although the project officially ended in 2022, ILRU supports ongoing community validation and implementation of the legal resources. These resources, including a report, droughts and flooding analysis and casebook, are being used in practical applications such as a water authorization pilot project and community-led book clubs. The NWGP team is also developing an implementation workbook and mini-implementation workshops to further integrate these legal principles into community practices. The working tables of NWGP have started using the legal resources in their internal governance processes, choosing narratives from the casebook to guide discussions and decisionmaking.

Indigenous Laws Workshop with Tr’ondëk Hwëch’in

In March 2024, ILRU facilitated a three-day workshop for Tr’ondëk Hwëch’in citizens on the unceded territories of the l k n and W SÁNEC peoples. The workshop aimed to introduce ILRU’s research methods and explore how these methods can support the community in upholding Dënezhu law. Participants engaged in story work and built legal frameworks, applying them to mock scenarios. This workshop is part of an ongoing collaboration to articulate Tr’ondëk Hwëch’in laws of rebalancing, inclusion and safety among humans, with materials including a report, casebook and learning journal to be published soon.

Looking Ahead to 2025

- lək ʷəŋən

ILRU extends its gratitude to all staff, directors, community partners and supporters for their continued contributions. The upcoming year promises further advancements in Indigenous law, strengthened by the relationships and projects nurtured over the past year.

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TRU LAW FACULTY NEWS

By Ryan Gauthier*

The academic year is well underway at TRU Law. Students at TRU Law are steeping in book-learning, but also still finding time to engage in student organizations and other community outreach activities.

TRU LAW MAKES FINALS OF SPORTS LAW NEGOTIATION MOOT

A team of TRU Law students came in fourth place at the 2024 National Sports Law Negotiation Competition. The competition took place from October 18 to 20, 2024 in San Diego, California. TRU Law sent two teams of two students each: Luke Conkin and Brynn Pedlow, and Sarah Andrusky and Neelam Jassal. The competition required teams to negotiate two preliminary rounds. Both rounds focused on the settlement of a real-life complaint by University of Oregon beach volleyball players. The players alleged disparate treatment in facilities and in “name, image and likeness” opportunities for collegiate athletes. The performance by Luke Conkin and Brynn Pedlow sent them to the final round, where they had to negotiate the departure of a sports agent from their agency. Luke and Brynn finished fourth overall out of 40 teams, which is TRU Law’s best showing. TRU Law is the only Canadian team that competes at the National Sports Law Negotiation Competition. This year’s team was coached by TRU Law alumni Karen Perry and Imogen Jenkins, and we thank them for their work with the teams this year.

JUSTICE ROWE VISITS TRU LAW

On October 31, 2024, Supreme Court of Canada Justice Malcolm Rowe gave a public lecture to over 100 TRU Law students and faculty. Justice Rowe spoke about the role of Canadian courts, and how they exercise their judicial author-

* Ryan Gauthier is an associate professor at the TRU Law Faculty of Law. TRU Law’s National Sports Law Negotiation team called him at 10:55 pm on a Saturday for a pep talk before they participated in the finals the next day. Totally worth it.

ity. He remarked on how the Constitution Act, 1982, significantly changed the role of courts in public policy, and on the need for courts to reflect on this role. In addition to the public lecture, Justice Rowe spoke to various classes of TRU Law students during his time in Kamloops.

LANCE FINCH MEMORIAL DINNER

TRU Law held the inaugural Lance Finch Memorial Moot Fund Lecture on October 18, 2024, celebrating the close of a very successful fundraising campaign to support mooting at TRU Law. Attendees were honoured to hear the keynote address by the Honourable Robert J. Bauman, K.C., former Chief Justice of British Columbia. TRU Law plans to make this an annual celebration of advocacy.

OTHER ITEMS

Odette Dempsey-Caputo gave a presentation titled “AI in British Columbia: Navigating the Pitfalls and Benefits for Access to Justice” on October 17, 2024, as part of the TRU Law research series. Her presentation focused on the role of AI, such as ChatGPT, in enhancing access to justice in British Columbia. She applied legal disability theory and access to justice frameworks, critically examining AI’s benefits and pitfalls. She argued that AI is a valuable tool, but not a complete solution to British Columbia’s access to justice shortfall.

TRU Law dean Daleen Millard spoke at the 19th Annual Women Lawyers Retreat by the Trial Lawyers Association of BC on October 25. In her address, “The Future of Law – Education”, she argued that an education in law commences at law school but continues over the rest of the graduate’s professional life. Law schools take the primary responsibility for teaching the hard-core, doctrinal law that forms the basis of an education in law. Of late, law professors have started to explore ways to incorporate skills such as practical legal writing and oral advocacy into their courses. She advocated for an authentic partnership between law schools and the profession to ensure a more holistic approach to legal education.

The TRU Law Rugby Club spent an amazing October weekend at the Western Law Rugby Championship in Edmonton, with 27 students attending. The combined British Columbia men’s team brought home the gold, winning 31–19 against the Alberta schools. The TRU Law women’s rugby players made a huge impact during the inter-school games, with MVP recipients being named and many tries scored. The TRU “Legal Beagles” are training hard for the upcoming B.C. rivalry tournament in spring 2025.

TRU Law also competed in the annual Hoop-Law tournament. For the second year in a row, TRU Law took home the top prize for the team that raised the most funds.

Available at Kurbatoff Gallery, 2435 Granville St., Vancouver

Visit the website: kurbatoffgallery.com

“Jimmy Who?” by Kathy Traeger, acrylic on canvas, 48'' x 36'', 2024

Nicole Garton, B.A., LL.B, LL.M., C.Med, FEA, TEP President, Heritage Trust

NOS DISPARUS

By R.C. Tino Bella

Ralston Stewart Alexander, K.C.

Ralston Alexander was born in Toronto on September 3, 1944, but removed that blemish from his personal history by moving west to Salmon Arm as a young lad. His father was a well-known and beloved doctor in that community. The shopping street in the middle of the Salmon Arm downtown is named Alexander Street, in recognition of Dr. Alexander’s contributions to that city.

In the mid-1960s, Ralston attended UBC, taking a combined commerce and law program. He married his high school sweetheart, Karen, in 1967, and earned his bachelor of commerce degree in 1968 and his bachelor of laws degree in 1969. The Alexanders made the smart move of relocating to Victoria, where Ralston articled and was called to the bar in 1970. Ralston and Karen settled into the capital city and raised their children, John and Kristen, there.

Ralston soon formed a partnership with Ellis Achtem. Under the banner of Achtem Alexander, Ralston plied his trade as a solicitor and threw himself into leadership positions in the Victoria Bar Association, including as its president in the mid-1990s. Notwithstanding the demands of volunteer positions in the local bar, Ralston also worked tirelessly with the United Way of Canada, eventually serving as its national president. Even in his recreational pursuits, Ralston went all in. As a member of the Uplands Golf Course in Victoria, Ralston merged pleasure with duty by serving as a board director and treasurer. He also served as a provincial appointee to the Victoria Police Board, and as president and director of the Need Crisis Line (Victoria).

In 2002, Ralston moved to the Victoria law firm, Cook Roberts LLP. He remained a partner there until his death. While many speak of an “open door policy”, Ralston truly embodied it. Though he rarely had free time, he always made room for the support of younger lawyers in the firm. One of Cook Roberts’ associates recalls that the only times they could remember when Ralston had his office door closed occurred when he was participating in Law Society hearings or facetiming with his family overseas.

Over 50 years of practice, Ralston extended his attention, mentorship and experience to countless young lawyers working at Cook Roberts and elsewhere in the Victoria bar. One piece of advice he was known to give to newly called lawyers at their call ceremony was not to spend too much time on the practice of law because “none of your clients will be attending your funeral”.

Although he rarely acted as principal for articling students over the years, he devoted himself wholeheartedly to their training and development as lawyers and ultimately long-lasting friendships formed from these relationships. When some chose to move on to other firms or government positions, Ralston’s disappointment was palpable, reflecting his deep commitment to his mentees and his genuine interest in their futures.

One did not need to be a member of any of Ralston’s firms to receive his positive attention. One of the authors of this piece, now 71 years old, was once a young mentee of Ralston who benefitted from Ralston’s example in the involvement and enjoyment of time spent in the workings of the organized bar.

In his law practice, Ralston was an extremely hard worker. He rarely left the office before 7 p.m. He followed a regimen that had him working every Saturday morning when he was in Victoria. His dedication to the craft gained him many devoted clients in the business community, who trusted the clarity of his advice and who became his friends.

Before his election as Law Society bencher from Victoria, Ralston whet his appetite for the organization by serving on the ethics, competency and insurance committees as a non-bencher. He sat on many committees over the years. For example, he was integral in addressing the aftermath of the Martin Wirick matter and helped guide the creation of what is now Part B Indemnity coverage, a truly transformative change. He chaired the Conveyancing Practices Task Force which was created to make recommendations following the Wirick matter, including the creation of new practice initiatives. This experience served him well when he decided to seek, first, his election as a bencher from Victoria and, thereafter, an executive position on the ladder to become president of the Law Society of British Columbia. He served as president of the Law Society in 2005.

Ralston was a long-time member and chair of the ethics committee and made many contributions to ethics opinions on thorny practice issues. He was also a member and chair of the credentials committee for several years. Practising law was, he recognized, a privilege, not a right, and he took his role as a bencher to ensure that a candidate for admission was of good character and repute and fit to become a barrister and solicitor of the Supreme Court very seriously.

Ralston could be acerbic and demanding but, at the same time, willing to demonstrate compassion. He had a quick take on where an issue really lay hidden among the weeds, and he found it quickly. That skill allowed meetings, particularly those he chaired, to avoid wasting time on irrelevant matters. It allowed panels on which he sat, or which he chaired, to focus on the salient issues.

Ralston loved being president of the Law Society. He delighted in chairing bencher meetings and personifying the Law Society to the profession and the public. He had a sharp wit that he used liberally and unsparingly no matter to whom it was directed. Often, the target would be the Attorney General or the Chief Justice of British Columbia.

Ralston’s tenure was not perfect, however. One of his concerns was minimizing bencher expenses, recognizing that all the Law Society’s costs were borne by the members. As a partial consequence, perhaps driven by the fact that Victoria solicitors traditionally preferred gins and tonic, the wine in the benchers’ lounge was abysmal. Fortunately, this was corrected with relatively little additional cost shortly after his term as president came to an end.

It should also be known that Ralston would not fly to Vancouver for meetings. He took the ferry back and forth, adding extra time to each absence.

In 2006, UBC law school (now the Peter A. Allard School of Law) established awards of distinction recognizing outstanding achievement of a law school graduate whose endeavours in the practice of law and community service brought honour to the law faculty. Ralston was the first recipient of this award.

While Ralston was not always a fan of the workings of the B.C. branch of the Canadian Bar Association, he took great pride when the organization bestowed a 50-year pin on him recognizing his lengthy and worthy contributions to that organization and the profession.

It must be acknowledged that Ralston did not suffer gladly those he considered fools. If one failed to meet professional or ethical standards, he could be withering in his disapproval. Nevertheless, he held himself to those same standards.

Ralston lost his life partner, Karen Diane Alexander (née Langstaff), in 2016. He lived on alone in the house they had shared on Catalina Terrace in

Victoria. However, in recent years, he was blessed to find a companion in Joyce Russell. Together, he and Joyce travelled extensively and enjoyed each other’s company and comfort.

Ralston was diagnosed with cancer in the fall of 2023. While he appeared to recover from the disease, he suffered a relapse and died on June 29, 2024.

Full house memorial services were held at Abbey Church and the Uplands Golf Club in Victoria and before the Supreme Court of British Columbia in Victoria.

Laylee Rohani, a solicitor at Cook Roberts, says this about her mentor: I’m not sure what I’ll do the next time I need help figuring out a metes and bounds description in a land title document or need some chocolate at 3 p.m. knowing that Ralston always had a personal stash of candy and chocolate in his room. I will miss his advice to always take the high road. I’ll miss hearing about his travels and his love for his family, his laughter and his gentle teasing. Cook Roberts is undeniably different without him, but he leaves a legacy that as a firm we feel honoured to uphold and strive to enhance.

No more need be said.

John D. Waddell, K.C, with input from Richard Stewart K.C., Robert McDiarmid, K.C., and Laylee Rohani

The Honourable Kenneth Arkell

Over a century ago, New York Tribune editor Horace Greeley famously said: “Go West, young man, and grow up with the country.” In 1956, the hugely “grown-up” (six feet, five inches) Kenneth Arkell did just that, moving from Ottawa to Vancouver to beef up the front line of the fledging BC Lions.

Although a knee injury ended Ken’s football career, he remained in British Columbia to complete his law degree at UBC, to practise law in Prince George and Dawson Creek, to marry his beloved Olivia, to be a supportive father to four gifted children and to give three decades of his service and leadership to our Provincial, County and Supreme Courts. His long journey (93 years) ended on August 27, 2024 in

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Bloomington, Illinois, where he and Olivia had settled after Ken’s retirement, to be close to the homes of their two sons.

Ken was a man of several “firsts”.

Born in Calgary on December 6, 1930 but raised on a farm at Bayfield, Ontario, he was the first (and only) RCMP heavyweight boxing champion to come from that small Lake Huron community, and after he resigned from the force to return to school, he was likely the first (and only) “Bayfielder” to play football for Johnny Metras, legendary coach of the Western University “Mustangs”.

In university football, Sherman Hood of the Queen’s University Gaels was Ken’s frontline opponent (and years later his B.C. Supreme Court colleague), and in 1955 Ken and Sherman both signed with the Ottawa Roughriders. But that team alliance lasted for only one season. As mentioned, in 1956 Ken joined the Lions. He also registered in first year at UBC law school.

Ken persuaded Sherman to join him in Vancouver. Sherman also registered at UBC law school and started the 1957 season with the Lions, but Sherman was on the field when Ken suffered his injury and was so affected by Ken’s plight that the teammates both decided to end their football careers that day.

However, the Arkell-Hood friendship endured, and in 1959 and 1960 Ken and Sherman became the first and second UBC law graduates to earn their degrees while playing professional football.

Not keen about remaining in Vancouver, Ken practised briefly in Prince George, then moved to Dawson Creek, where he met and married Olivia Tofteland (they celebrated their 64th wedding anniversary not long before Ken’s passing). Ken’s general practice flourished, and in 1969 he accepted an appointment as a district judge of the Provincial Court of British Columbia. After Ken had presided on his Peace River circuit for just one year, he and Olivia moved to Vernon, where they spent three very busy decades raising four children. Vernon was also where Ken made his valued contributions to the development of the Provincial Court.

In 1970, he was the first judge appointed to the Judicial Council (together with the treasurer [now president] of the Law Society and three respected business leaders), and in 1971 he was directed to survey “the position of lay judges and part-time legally trained judges in the Court system”. Only 75 of 210 Provincial Court judges had legal training, but that supposed “deficiency” did not bother Ken, who genuinely respected the contributions that many dedicated community members had been making for decades.

However, when Ken was appointed as the first Associate Chief Judge of the Provincial Court in 1972, he knew he would be sorely tested with

respect to the “lay judge” issue, as he also knew that the Chief Judge was intent on “professionalizing” the court. Tasked with revising the Provincial Court Act in 1974, Ken reluctantly added the provision requiring Law Society membership as an appointment prerequisite.

But Ken was more than satisfied with one important change he helped to achieve: wresting responsibility for judicial education away from Victoria through establishment of the Judicial Institute, an important, if not crucial, step in the court’s continuing quest for independence.

Appointment to the County Court of Yale came in 1977, allowing Ken and Olivia to remain in Vernon, but requiring Ken to share travel responsibilities with his colleagues in Kamloops, Kelowna and Penticton—an obligation he cheerfully and generously fulfilled before and after merger of the County and Supreme Courts in 1990.

For most of his judicial career, Ken worked from spacious chambers in the grand old Vernon courthouse. There, he earned his enviable reputation for firm but courteous courtroom decorum, and for writing clear, concise and timely reasons for judgment. He retired from the Supreme Court in 1999.

Whether or not it is appropriate to suggest that athletic parents usually (or even often) produce athletic progeny, that happened with Ken and Olivia’s children, who excelled in about every sport available in the Vernon area, carrying on in their various specialties well after their local school years.

Kathryn, who lives in Victoria, rowed for UVic. Jim, who lives next door to his parents’ home in Bloomington, played college basketball and football in Texas, and graduated from Texas Tech law school. Karyn, three times a B.C. high jump medalist, won an athletic scholarship to Arizona, where she now lives. Tom went to Notre Dame on a hockey scholarship and graduated in law from Notre Dame. Tom also lives in Bloomington, where he and Jim are partners at Dunn Law LLP, practising immigration law exclusively.

In a touching tribute, Ken’s children wrote: “He was known not only for his intelligent, thoughtful and considerate decisions, but also for his sense of humour and joy of life. He was a lover of music, poetry, literature, current affairs, politics and the law.”

The children added: “All that Ken achieved professionally in his life pales in comparison to the fact that he was a humble, kind, thoughtful, generous, fun-loving, loyal and loving man. He made an impact on the world and those who met him, but he will be remembered most for his ability to make people feel loved.”

The Honourable Ross Collver, K.C.

Perry Fainstein

Victoria solicitor Perry Fainstein died peacefully on August 26, 2024 at the young age of 71. He was surrounded by family, love and compassion. Many in Victoria’s legal community came to know Perry through his gentle, kind, perceptive and optimistic manner. He was a lawyer and a family-centred man, a strong believer in bringing out the best in people. He encouraged everyone with such a high degree of sincerity and optimism, it made his impact immeasurable.

Perry’s early life and formative years were spent in Richmond, British Columbia. He developed a sharp wit, keen interest in science fiction and love for sports. He grew up as the eldest of four siblings: two sisters and a kid brother, Gerald. From his early teens through early adulthood, Perry worked at the family business, Southside Foods, a food wholesaler in Richmond, later owned by Gerald. One of Southside’s most popular products was Maui Ribs, the flavouring for which was concocted after Perry and Gerald spent many evenings behind Azeka’s, in Maui, going through the garbage cans to determine the composition of the flavouring.

Perry obtained his undergraduate degree in biopsychology from the University of British Columbia in 1975 and graduated from UBC law school in 1978. He had developed psoriatic arthritis and hoped that the dryer weather would reduce the symptoms, so he articled in Kamloops at Chertkow and Company. He was called in the summer of 1979 and continued to practise at that firm for a year.

During articles he asked one of the partners if he could have a couple of days off before the Thanksgiving long weekend, as he had to help his family put up pickles. This seemed an unusual request, but given how well he was performing as an articling student, it was granted. As it turned out, Perry had arranged to drive the partner, who was visiting family in Vancouver over Thanksgiving, back to Kamloops. When the partner arrived at the Fainstein residence, he was surprised to see the garage full of literally thousands of gallon jars of Kosher dills. It turned out that Southside supplied most of the lower mainland delis with them.

Perry’s Jewish mother, stereotypically, was concerned (correctly) that Kosher food was not generally available in Kamloops. She dealt with this by sending Perry a month’s supply of gnishes and blintzes every couple of weeks. Although not formally taken into account in assessing Perry’s per-

formance as a student and a lawyer, it did not hurt that he regularly invited his colleagues over for Kosher meals.

Perry’s legal career spanned 45 years. Due in part to the arthritis, which worsened during winters, he moved to Victoria in 1981, but not before meeting the love of his life, Judy. They married in 1983, working for BC Buildings Corporation. In the early 2000s, Perry shifted once again, this time to a home office-based, conveyancing legal practice in Victoria. Perry unpretentiously impressed his clients with his accessible, easygoing manner. New clients would sometimes remark, “You’re not the typical lawyer; you don’t wear a suit,” and Perry would lightheartedly retort, “I’d be happy to wear a suit for an additional fee.” To the best of our knowledge, no client ever took Perry up on the suit-for-a-fee deal.

Perry’s desk was quite literally located in the family home, resided in by Perry, his wife Judy and their two sons, David and Daniel. Perry was closely involved in Daniel’s growth and development as someone with neurodiversity. Perry provided unending patience, love and support to Daniel, who has now completed nearly a decade of coaching Special Olympics, lives independently and aspires to work in the public relations field. It is no coincidence that Perry’s family members work and live their lives being a light for others. Judy continues a decades-long venture to empower youth to be environmental stewards through leadership and mentorship across Canada. David holds a faculty position at Seattle University training future school psychologists. Members of Perry’s larger family are primarily educators, healthcare workers and highly skilled tradespeople, all of whom received a lift from Perry’s optimism and confidence in their ability to achieve their dreams. Flourishing in life felt within reach when Perry—the husband, dad, uncle, sibling or friend—was there to encourage you to “just go for it!”

Over his years of legal practice in Victoria, Perry aided thousands of people with purchasing, selling, refinancing or otherwise dealing with real property. Due to the nature of these transactions, Perry was a fixture in many of Victoria’s bank and credit union branches. Perry did not advertise or practise law through conventional means. His advertising strategy started and ended with “Perry Pens”. There were rumours through the years of bank tellers, managers and staff feuding over these coveted “Perry Pens”. The rumours subsided over the years after Perry had distributed an annual re-supply of “Perry Pens” for the employees of Victoria’s financial institutions. That is an example of the legacy he leaves us with: one of offering the tool you need with an open line of communication for support.

Perry engaged in a phased retirement. In his first phase, he wound down his conveyancing practice halfway, then another quarter way, and then per-

haps another eighth of the way. His second phase of retirement was spurred with a pandemic push, and Perry wound down his conveyancing practice entirely. When phase two of retirement was complete, he found himself in a third phase of retirement: supporting his large client base with crafting wills and giving advice on estates. Characteristically, the end of Perry’s third retirement phase included many trips to Victoria Hospice to offer wills at no charge for those nearing end-of-life. His way with people was so approachable and put people at ease. He provided a great relief for those at hospice when they needed someone.

Perry leaves us with a legacy of kindheartedness, care and an unwavering belief in others’ capacity to grow and achieve their dreams. The support he provided to others spanned decades, always combined with his genuine nature in which Perry believed in the very best of everyone. Perry’s legacy of kindness carries through in small and big ways to date. Since his passing, numerous clients, colleagues, friends and family have shared how he left a positive mark on their lives. Perry was an outstanding example of a lawyer with a low-profile practice who made a large impact on those who knew him.

Dr. David Fainstein, assisted by Robert McDiarmid, K.C.

Jo Ann Carmichael, K.C.

Jo Ann Carmichael, K.C., passed away on October 31, 2024 after a long battle with multiple sclerosis and a shorter battle with cancer. Jo Ann was a partner at Owen Bird and then Alexander Holburn Beaudin + Lang. She was a trailblazer.

Jo Ann was born in 1951 in Ottawa, minutes before her twin sister Mary Ann. The twins were younger sisters of Don and Doug. Jo Ann’s father had a wide-ranging career, working as a mechanical engineer and later teaching accounting at Carleton University. In many ways, Jo Ann took after her paternal grandmother, who was a single mother in the 1920s, raising two sons while

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managing a hotel in Prince Arthur. That fierce, indominable spirit flowed directly to Jo Ann.

In her office, Jo Ann always displayed a baby picture of herself and Mary Ann in a pram. In the photo, Mary Ann, closed-mouthed, is looking over at her sister who is clearly vocalizing. This moment captured their early years. Before they started school, Jo Ann did the talking for both twins and Mary Ann communicated in a language that only Jo Ann could understand.

The twins attended Sacred Heart Elementary, then St. Joseph’s High School. In high school, Jo Ann was a cheerleader and joined the drama and debating clubs. Those skills would later be converted to her litigation practice. She was an effortlessly good student. Long before grade inflation, her father would ask her why she only scored ninety-nine per cent on her tests. She earned a full scholarship to the University of Ottawa, which was both a blessing and a curse. For undergrad, Jo Ann was forced to live at home while Mary Ann moved to Kingston to study nursing at Queens.

After undergrad, Jo Ann moved to Dalhousie for law school. She had a great love of the ocean, which drove her decision to move to Vancouver for articles at Owen Bird. She practised in the areas of family, estates and insurance law, and advanced to the partnership. In 1989, she moved to Alexander Holburn and on February 1, 1991 she joined the partnership, becoming the first woman partner at that firm. She remained at Alexander Holburn until her retirement in July 2023.

In litigation, Jo Ann was a fair but formidable opponent. She was a beloved advocate on behalf of her long-time insurance clients. She proudly displayed an award from a large American disability insurer that named her their outside counsel of the year. Another insurer, on her retirement, presented her with a painting. Subtly woven into the image are the citations of all the trials she argued for the client.

One story provides a glimpse of Jo Ann’s mettle. She dealt with multiple sclerosis for many years, but the symptoms waxed and waned. On one occasion, her symptoms flared just before the beginning of a trial. She was defending a disability insurer in a claim brought by a dentist who had tennis elbow. Jo Ann spent the night before the trial in the emergency room, suffering from multiple symptoms including searing pain and blindness in one eye. Nevertheless, she arrived in court the next day ready to proceed, having conscripted a junior to carry her bags and help her navigate the curbs between the office and the Vancouver Law Courts. She was unstoppable.

Jo Ann’s contributions to the profession are too many to name here. However, chief among them was the tireless work she undertook for the Law Society after being elected as a bencher for Vancouver County in 1998.

She spent thousands of hours in service to the profession, including as member, chair and vice-chair of the Discipline Committee, the Access to Justice Working Group, the Credentials Committee, the Equity and Diversity Committee and the Practice Standards Committee. She was a regular contributor to Continuing Legal Education, offering her free time to impart to the profession the vast knowledge and expertise she had acquired in her years of practice. In recognition of her pre-eminence in the profession, she was appointed Queen’s Counsel in 2000.

Jo Ann was very much a product of her early years. Her mother preached that a woman should always appear calm and composed and should dress well. Her mother also focused her volunteer efforts on the less fortunate in our society. Jo Ann’s father taught her to work hard, show results and strive for perfection. Those who know Jo Ann know that she exemplified all of these teachings, both inside and outside the firm. She regularly donated to a variety of charities and pushed the donation drives within the firm. She was always impeccably attired. She was always calm. Her work ethic and work product were both excellent.

In high school, the twins both took piano lessons, practising three hours per day. These lessons imbued Jo Ann with a love of classical music and opera. She was a lover of the arts, maintaining yearly memberships to local playhouses and the symphony. She was also a collector of fine art. Every wall in her beautiful home was decorated with a painting of substance. She was an avid gardener, a voracious reader and a talented cook. She loved fine wine and a good single malt. When clients came to town from Toronto, she eschewed the idea of a restaurant dinner and hosted a group of people at her home.

Within the firm, Jo Ann’s presence as a trailblazer cannot be overstated. Although she could appear intimidating at first, any amount of time spent with Jo Ann would disclose a deeply kind and caring individual. Being the first female partner of her firm, she championed the cause of women in the profession. To celebrate the admission of each new woman into the partnership, Jo Ann would host a women’s dinner at her home. She would put days of work into the menu, wine list and decor. Some years she arranged for local art galleries to hang paintings. Each new partner was presented with a crystal bowl, chosen by Jo Ann. The last such event took place just two weeks before Jo Ann’s passing. Unfortunately, she was too ill to attend. However, she was pleased to learn that the tradition she had started would henceforth be known as “The Jo Ann Carmichael, K.C. Crystal Bowl Reception”.

In her final years at the firm, Jo Ann sought out the role of mentor to young women. Having knocked down the walls, she wanted others to be

able to follow the path she had helped to lay down. She will be greatly missed. There will be a celebration next spring, when flowers are in blossom, to “Celebrate Jo Ann” with stories and memories. The information will be updated on <www/online-tribute.com/JoAnnCarmichael>. Your condolences can be posted to the same website.

The Honourable Alan Ross and Bruno De Vita, K.C.

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The Honourable John Edward Douglas Savage

The Honourable John Edward Douglas Savage passed away on July 18, 2024—far too soon. But, as his dear wife Connie Fair reminded us at his celebration of life, he lived happily with a passion for life that he never lost.

John had an idyllic 1950s childhood. He was born and raised on the North Shore. His father, Harry, was British and his mother, Rosemarie, was German. They met in postwar Germany, married and emigrated to Canada. His father, an engineer, purchased a lot and built a home in what was at the time the wilds of the British Properties. The Savage house was only the third on the street when they moved in. John’s early years were spent exploring the forests and creeks of the North Shore mountains with his older sister Anna. Unlike children of today, they were permitted—indeed encouraged—to set out alone, without parental supervision. They had one rule, but it did not constrain their explorations greatly: they could go anywhere so long as they remained in sight of one another. John attended Westcot Elementary School, which was a 40minute walk from his home. He and Anna made the walk up and down the hill every day, rain or shine.

John’s summers were spent swimming in the family’s unheated swimming pool and biking the steep North Shore hills. While exploring the forests John developed a keen interest in the local fauna. He appeared to favour aquatic creatures, bringing home tadpoles, newts, frogs and salamanders, although he once brought home two orphaned baby hummingbirds that the family managed to keep alive for weeks before they were released back into the forest. In winter, John and the family skied all the

local mountains: Hollyburn Ridge, Seymour, Grouse and Garibald. Not surprisingly, his upbringing led him to a lifelong love of the outdoors.

During John’s high school years at the new Sentinel Secondary School, he continued to grow his passion for outdoor activities, as well as his knack for being a social organizer and developing lasting friendships. After Whistler opened in 1966, John and his group of friends frequently drove the sketchy gravel road to Whistler to test their skiing abilities on a big mountain. Ross Hedley, a long-time friend, remembers John’s talents as the frequent host and organizer of many social gatherings and adventures. Along the way, John seemed to lose his preoccupation with biology and started to turn to the law. He became a judge on the Sentinel Student Court in grade 11; the jurisdiction was somewhat limited, but it was a sign of things to come.

After high school, John headed to Simon Fraser University to study philosophy. He graduated in 1972, and initially decided to pursue a masters degree in philosophy. However, he was eventually persuaded by his fellow philosophy student, Allan Tryon, that employment prospects were somewhat better in the legal profession. He attended law school at the University of British Columbia and was a member of the impressive Class of 1977. That class included three other members who, like John, went on to sit on the British Columbia Court of Appeal: Risa Levine, Anne MacKenzie and Pam Kirkpatrick.

After graduation, John moved to Victoria, where he was hired to article with another future appeal court judge, Carol Huddart, at what is now Crease Harman LLP. He was joined by his fellow philosopher, Allan Tryon, and they eventually worked their way up the letterhead together. The firm advertises itself as British Columbia’s oldest law firm, and it is reported that John found the firm to be a little old-fashioned and set in its ways when he arrived. But, as a student of history, it suited him well and he did not leave until his appointment to the bench.

After being called to the bar on July 10, 1978, he was mentored by Peter Klassen, who recalls John junioring him on a four-month civil trial as an articling student. Peter was so impressed with John’s hard work, dedication and legal abilities that his future at Crease Harman was assured. At the time, Peter frequently acted as counsel for the British Columbia Assessment Authority (“BC Assessment”) and asked John to assist him with that work. John’s work mainly involved employment and administrative law, but the work for BC Assessment soon became the focus of his practice. He appeared on countless cases before the Assessment Appeal Board and in the courts, developing a deep expertise in the field of property tax assessment. He was counsel on more than 100 decisions involving assessment authori-

ties in the province. These included many of the most important decisions in that field—a field which is vital to municipalities, as the primary source of their revenue, and important for all property owners.

The work John performed for BC Assessment was not limited to court representation. Given his depth of knowledge and skill with the legal nuances of assessment legislation, he provided advice and worked on drafting necessary changes to ensure the Assessment Act accurately reflected the legislature’s intent, creating certainty and fairness for both taxpayers and tax collectors.

In addition to his assessment work, John acted as an adjudicator under the Canada Labour Code, dealing with workplace issues in the trucking, postal, airline and cablevision industries. He was frequently called on to arbitrate significant real property valuations, including those arising from the expropriation of timber licences. He also served as a member of the Employment Standards Tribunal, the Financial Services Tribunal, the Environmental Appeal Board and the Forest Appeals Commission.

As counsel, John was known for his thorough preparation, and his mastery of the legal and factual issues that were important for the particular brief. In court, he was calm, courteous, dispassionate and always respectful of opposing counsel and parties. But he also had a strong competitive streak and enjoyed courtroom success.

John’s work for BC Assessment turned out to be rewarding not only professionally, but also personally. In the early 1990s, Connie began working with BC Assessment in senior roles, one of which involved overseeing legal services. In that position she worked with outside counsel, including John. John and Connie ended up working together on many significant appeals. Eventually, Connie moved on from legal services to other functions within BC Assessment, including responsibility for Corporate Services and Operations. No longer having a business relationship, they were able to work on their personal one. They were married in 2003.

John’s practice continued to include a large component of work for BC Assessment, which became a potential problem when Connie was asked to take on the role of chief executive officer. It was a condition of the offer that her husband could no longer provide legal services to the Crown corporation. Gracious as always, John told her that he would simply give up that part of his practice. But that turned out to be unnecessary as, at precisely the right moment, John was appointed to the B.C. Supreme Court on May 9, 2008.

Moving from private practice with a somewhat narrow focus to the generalist work of a trial judge is a challenge. But John made the transition look easy. He was studious by nature and his insistence on being prepared for

whatever came before him served him well. He was able to adjudicate and render decisions quickly, and with depth and legal sophistication in areas of the law that were new to him. His natural judicial demeanour was also a tremendous asset. He was calm, respectful, empathetic and unfailingly polite. The Honourable Paul Pearlman, another judge from the Victoria bar, remembers John as a conscientious, careful and thoughtful judge who “was one of those very competent people who quietly and confidently get on with doing what they do well”.

John sat on several cases of note while in the trial court including the second judicial review of the legislative response to the 2010 British Columbia Judges Compensation Commission, and Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2014 BCSC 568, one of the leading cases on the duty to consult with First Nations. Both decisions were significant contributions to important and difficult areas of public law, and his decision in the latter survived appellate review through to the Supreme Court of Canada.

John was appointed to the Court of Appeal on December 11, 2014. He thrived on the academic challenge of appellate work and loved working together with other judges in a division. He thoroughly enjoyed judicial writing and was known for his love of language and extensive vocabulary. While it helped at times to have a dictionary at hand when reviewing his opinions, he had an ability to distill complicated concepts into understandable reasons. He always listened respectfully to the views of others and was willing to take viewpoints that were not popular. I am told his personal motto was: “Nothing trumps the truth, no matter it if seems to hinder your case.”

As John retired not long after I was appointed to the Court of Appeal, I only sat with him for one week—my first sitting week in the court. I was given the writing assignment for one of the cases and was excited to pen my first appellate ruling. Unfortunately, I had a serious bike accident the following week that put me out of commission for more than three months. John, generous as always, came to me shortly after the mishap and volunteered to write the decision for me, which he did quickly and expertly. I had no difficulty concurring.

One of John’s superpowers was his ability to bring people together. Throughout his life he excelled as a host and social organizer. Those skills came in handy at the court. He hosted memorable pizza parties for the law clerks and judges every spring at his beautiful waterfront Yaletown condo. As was John’s style, he did not order pizza; he made it himself and carefully chose the appetizers and wine to accompany it.

While John’s legal career was stellar, he never let it define him. He was much more than a lawyer and judge. He maintained his multiple interests outside of the law throughout his life, following his passion for outdoor pursuits that began in his childhood. He and Connie travelled widely and went for challenging hikes wherever they went, including the Coast to Coast hike across England, which they accomplished in a period of unusually high wind. He loved golf, another pastime that he shared with Connie. He was a long-time member at the Uplands Golf Club in Victoria and was one of the key organizers of a large group of golf buddies who played weekly and went on annual golf trips. At his celebration of life, it was revealed that John, like the other members of the group, had a nickname: “Wild Man”. While understandable, it did not capture his essential character.

John was an avid reader and would happily, and knowledgably, discuss almost any topic of interest. He amassed a substantial collection of books on anthropology and archaeology. He loved art and design and was also a builder, acquiring and decorating four beautiful homes after he and Connie moved out of their family home: two on the Victoria harbour, one in Coal Harbour and one in Loreto, Mexico.

He also contributed to his community in many ways. He was the executive director of the Greater Victoria Chamber of Commerce, as well as a long-time supporter of, and honorary solicitor for, Scouts Canada. He was awarded the “Silver Acorn” in 2007 and the Queen’s Jubilee Medal in 2002 for his service to Scouting in British Columbia.

Despite John’s many interests, his greatest passion was his family: his devoted wife, Connie; his children, Arthur (Claire), Julia and Richard; his stepchildren, Kimberly (Martin) and Taylor; and his five grandchildren, Aria, Zendaya, Finnigan, Mason and Alexander. He and Connie rose to the challenge of raising so many children in a blended family, and especially valued the many special occasions and trips they arranged with all five children as they were growing up. John revelled in his role as grandfather, which ended much too soon.

John’s memory will be cherished by everyone in his very wide circle of family, colleagues and friends.

The Honourable Justice Bruce Butler

Janet Christine Birnie

Christine Birnie passed away suddenly on April 21, 2024. She leaves behind many devastated family members, friends and former colleagues. She also leaves us so much richer for the positive impact she had on all who knew her. We take great comfort in knowing that she packed more into her 71 years than the rest of us would in 100.

Christine was born in Montreal in 1952 into a closeknit, active and industrious family, fourth in a subline of five. Her parents met as graduate students in chemistry at the University of Toronto. Debating was a family pastime particularly between Christine and her father. She in part credited to that her decision to go to law school as she wanted to give back to her father as good as she got.

Christine took a circuitous route to the practice of law in large part because she was taking time to live a life of adventure. After graduating from Westmount High School, she obtained a psychology degree from the University of Waterloo. She then took off for the west where she worked in Manning Park as a park employee, waitress, janitor, tile fixer and plumber. She earned enough money to travel through West Africa on her own for the better part of a year.

In 1976, she found her way to the Cairngorms in Scotland where she taught skiing. It was there she met John Gibb and the rest, as they say, is history. They communicated through letters until he was able to join her in Canada. They spent their first summer together working on a remote fire lookout in northern British Columbia. Christine and John were married in 1977.

Realizing that a psych degree was not going to pay the bills, Christine obtained a teaching certificate from UBC in 1977. Christine and John wanted to live in a small town where they could ski, flyfish, hike, canoe and generally enjoy the great out-of-doors. They moved to Smithers in the beautiful Bulkley Valley where Christine taught elementary school and John worked as an electrician.

In 1982, Christine and John moved to Halifax, Nova Scotia so that Christine could attend law school at Dalhousie University. She excelled in law school, finishing near the top of her class. She was very active in the Women and the Law group. Christine’s peers recognized her outstanding scholarship and contribution to the law school by awarding her one of the two top

awards given out each year. After graduating from Dal Law in 1985, Christine went on to clerk at the Supreme Court of Canada for McIntyre J. During that time, Christine and John’s first son, Duncan, was born.

After that stellar launch to her career, Christine could have practised anywhere. She chose to go back to Smithers. Christine liked to say that her career was divided into thirds. She commenced her first ten years as an associate with Buri, Milne. After a few years she started a solo practice in criminal and family law with many interesting Indigenous and environmental cases thrown in. She practised before all levels of court including the Supreme Court of Canada.

It was during this period that Christine and John welcomed their second and third children into the world. Morag and David were born a year and a half apart at the family home on Tyhee Lake in Telkwa, a small community outside Smithers. While carrying a busy practice, Christine found time to be with her children. She was very involved in the cross-country ski community, coaching and managing teams and attending local and provincial races where the whole family would compete. She spent many hours shepherding children to and from various sporting events. When John was diagnosed with Lewy Body disease, Christine became his health advocate, ensuring he always had the care he needed. John passed away in 2009.

For the middle third of her career, Christine was a Crown prosecutor in Smithers. From 1997 to 2002, her primary responsibility was as environmental Crown, travelling from Burns Lake to Haida Gwaii. Jim MacAulay, who practised with her in the environmental law group, notes that she made a positive impact on the well-being of our province through some key court decisions in which she was counsel. John Milne, with whom Christine first practised, recalled that she appeared in front of him on many occasions after he had become a Provincial Court judge. He said that she was always well prepared and looking to expand the boundaries of any area of law she brought forward.

At Christine’s celebration of life, attendees were asked to post, on the walls of the hall, photos and memories they had of Christine. Sandy MacDonell, who worked with Christine at the Crown, described the experience in this way:

We worked in an extremely high stress job. Deadlines everywhere. Chaos occasionally present. But not around Christine. In her presence, everything was serene. The work would get done (she was right). The temperature would be lowered (also right). The deadlines would be met (mostly right). In her presence, I felt like I was back in my grandmother’s parlour, and the world was about as perfect as it could be. Everyone was treated with respect and dignity.

In September 2007, Christine was appointed to the Provincial Court bench in Smithers. At her swearing-in, a group of Haida Gwaii performed a celebration ritual in her honour. Richard Overstall, who credits Christine with encouraging him to go to law school, relates how he appeared in front of her. He was representing refugee grandparents seeking custody of their grandson, whose parents had either been killed or their whereabouts unknown following the Congo massacres in the early 2000s. He describes how Christine took great care in speaking directly to the grandparents acknowledging the family tragedies and the immense difficulties keeping the remaining family members together. As Richard put it, her address to them was a lesson on the importance of empathy from the bench.

Christine had the good fortune to meet Alf King in 2010. They became inseparable. In 2015, they purchased a building in Telkwa that had originally served as a cream and butter factory. They wanted to “create something beautiful” so they turned it into an inn, facilitated by Alf’s superb skills as a carpenter. The Creamery has a cafe and has become a popular local gathering place.

Throughout her busy life, Christine somehow found time to give back to the broader community. She was on the steering committee for the creation of a Domestic Violence “Treatment Court” in the Hazelton-Burns Lake area. She was on the boards of the Smithers Association of Community Services and the Domestic Peace Society. She was also instrumental in the formation of Passage House in Smithers, a transition home for women and their children leaving abusive relationships. In that same vein, Christine supported a family village in Guatemala built to house and educate abused women and their children.

Christine and Alf were part of a group sponsoring Syrian refugees. Initially they sponsored a single man. When his family fled war-torn Syria, the siblings and parents went in different directions. After years of separation, two of the siblings were supported by the Smithers group to allow them to move to Smithers to be with their brother. Christine was quoted in the local media as saying: “It’s easy to never get around to doing something because you are too involved in your own life. When you do reach out, you are rewarded in such amazing ways. It allows you to see how we are all connected.”

Christine was never one to not get around to doing something. In addition to all her volunteering, she lived the most active of lives. For many years, Christine and a good friend took all their children on lengthy canoe trips. Later when she was with Alf, they took bike trips together to Cuba, Mexico, Vietnam, France and Portugal, sometimes leaving behind their bikes for those less fortunate. Christine was also part of a longstanding book club and

a square-dancing group, and frequently joined friends for hikes, snowshoeing and Nordic skiing. She baked bread, knitted and wrote poetry. She and Alf created a beautiful home on the shores of Tyhee Lake where they kept bees and chickens and had an extensive flower and vegetable garden.

On hearing the sad news of Christine’s passing, Chief Judge Gillespie of the Provincial Court had this to say: Christine will be remembered by all who had the pleasure of knowing her as an energetic, engaged and brilliant lawyer and judge who was gifted with a passion for enjoying all that the northwest of the province has to offer including skiing, hiking, fishing and bee keeping.

Many of us come to the practice of law in the hopes of making a difference in the lives of others. Christine continually lived that goal. At her celebration of life, one person after another got up and said how important she had been to them. She has left our world a better place for having been here.

Deborah Armour, K.C., and Morag Gibb

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NEW JUDGES

By R.C. Tino Bella

The Honourable Justice Liliane Bantourakis

The appointment of Liliane (“Lili”) Bantourakis to the Supreme Court of British Columbia on February 28, 2024 came as no surprise to those who know her. She not only excelled throughout her practising career but also embodies personal attributes that will serve her well as a judge, including kindness, empathy, diligence and care.

Born in Greece to a Greek father and a Franco-Ontarian mother, Lili immigrated to Canada with her mother around the age of three. They moved frequently, with the most significant periods of Lili’s childhood spent in Montreal, Ottawa and Geneva, Switzerland. As a result, when she was growing up, Lili never felt she was “from” anywhere in particular. She is deeply grateful to have found her home in British Columbia, after settling here in her young adulthood.

Lili obtained her undergraduate degree from UBC, graduating with first class honours. It was during that time, while working in a restaurant, that she met Ian, an educator, who became her constant companion and partner in life. Their teenage son Fin is their pride and joy.

Lili studied law at McGill University, earning both common law and civil law degrees through McGill’s bijuridical and bilingual program. She graduated at the top of her class, receiving the Aimé Geoffrion gold medal along with many other awards for her academic achievements. She summered in Vancouver with the Department of Justice (“DOJ”) and then Hunter Voith Litigation Counsel, as it was then known.

Following law school, Lili clerked for then Chief Justice Beverley McLachlin at the Supreme Court of Canada. She completed her articles with the DOJ in Vancouver and continued as legal counsel there. At the DOJ, Lili

had a complex civil, administrative and constitutional law practice, primarily in public safety litigation, although she assumed conduct of a wide variety of public law matters beyond that. She rose quickly through the ranks as a result of her keen intellect, incredible work ethic and professionalism, receiving a senior counsel designation well before the number of years she had been called to the bar might have hinted at it. Later, she became special advisor to the DOJ’s regional director general and received several awards recognizing her skill as a litigator and contributions as a team member.

Even early on, Lili’s talent was apparent. A former supervisor recalls that her work on a complex assignment as a first-year summer student was of the calibre of someone who had been practising for years. Throughout her career, Lili willingly took on the most complex legal matters and handled them exceptionally, with one colleague saying Lili’s clear and principled distillation of complex cases was “like receiving a light from the heavens”. Another colleague commented that “Lili has a keen analytical ability and writes beautifully. She is also brilliant, and this brilliance comes with not a single shred of arrogance—always kind, always appreciative and supportive of her colleagues regardless of whether they were senior counsel or junior assistants. I am sure that she will bring this brilliance and humanity to bear in her new role as a justice”.

At the DOJ, Lili led litigation teams on often sensitive and highly contentious trial- and appellate-level civil matters, before both the B.C. and federal courts. As to her leadership, a former junior colleague said, “I’m often thinking of the gift Lili gave her teams which is her unshakably calm leadership . . . [it] was, I’m sure, an act of generosity to reduce her juniors’ stress levels and let us sleep at night, even if she was awake.” Despite a heavy litigation schedule, Lili also contributed in other ways, acting as chair of the Correctional Law Practice Group, student coordinator and articling committee member, as well as speaking both within the DOJ and externally on a variety of public law topics.

Lili cherished her time at the DOJ and made lasting friendships there. However, she could not resist pursuing an appeal-level criminal law practice. In 2020, Lili left the DOJ to join the BC Prosecution Service’s Criminal Appeals section. This was no small feat. The position was highly coveted by many excellent candidates, all of whom were criminal law specialists. That she was successful in that process, which required on-the-spot answers to questions about an area in which she had never worked, is a testament to her amazing capacity for preparing and learning quickly. Lili again excelled in her new role. As one former colleague noted, “in very short order she was handling a sizeable caseload of difficult appeals as if she had been

immersed in criminal law for years” and she became a contributing author to the Working Manual of Criminal Law.

As counsel, Lili developed a stellar reputation with the Court of Appeal. She also appeared several times before the Supreme Court of Canada, initially on behalf of the federal government and later as provincial Crown counsel. Lili is fluently bilingual and her last Supreme Court of Canada appearance was on an important language rights case that she argued in French, making notably outstanding oral submissions. At the time of her appointment, she was an advocacy advisor and board member for the Supreme Court Advocacy Institute.

Although Lili was in Criminal Appeals for just short of four years before her judicial appointment, she again formed close connections there. A former colleague wrote, “Everyone loved working on files with Lili. She pulls her weight and then some, is always in good spirits, has a great sense of humour and is compassionate and supportive.” The same colleague noted that “she has an ability to listen respectfully, which I find very impressive and is essential in a judge. She doesn’t interrupt to pre-empt a speaker with her own view, doesn’t make comments merely to show how much she knows (even though she knows a lot) and doesn’t betray disagreement or impatience in her countenance. And, within the bounds of reason, she doesn’t pre-judge.” Another colleague wrote, “Lili clearly possesses in great measure those extra qualities that make her so suitable for the bench: a commitment to justice and a genuine wisdom flowing from an understanding of the human and philosophical dimensions of the law.”

Lili acknowledges the tremendous responsibility she has assumed as judge and says that if she is able to do so, it is because she has benefitted from the support and guidance of so many over the years, including members of the bench, mentors and colleagues. Perhaps the most important support, however, came early on through the unfailing love and devotion of her exceptional parents, who have since passed.

Lili’s father had a childhood marred by extreme poverty, war and political violence. Forced to abandon formal education shortly after elementary school, he spent years of his life unjustly imprisoned as a political prisoner of the authoritarian regimes that plagued his country. He shared with Lili his firsthand experiences of the horrors that can be wrought when the rule of law is perverted. Those conversations marked her profoundly. He eventually became the leader of Greece’s national taxi union, devoting his working life to fighting for those even less fortunate than him.

Lili’s mother was a person of grace and intellect who raised her daughter essentially single-handedly in a French-speaking home. She was a social

worker who worked with a variety of marginalized populations over the years, including the mentally ill, the dying and refugees. She eventually became a member of the Immigration and Refugee Board of Canada. It was her career that variously took them across Canada and abroad. Beyond her many professional accomplishments, Lili says that her mother had a way of making everyone feel they were important, worth listening to and deserving of care. To the extent she is able, Lili strives to emulate her mother in these and many other ways.

Lili also cultivates meaningful relationships in her personal life. Weekends are spent at the soccer field watching Fin play and Ian coach, with their puppy Georgie by her side. Large family gatherings are common in Lili’s home and those always include her older brothers André and John, with whom she is extremely close and whom she describes as her stalwarts. Sunday mornings are reserved for coffee and waffles with friends. She has several close friendships, some of which have endured since childhood. She is unfailingly supportive of those she loves and is equally cherished.

In the words of yet another former colleague, “Lili is more than just a great jurist. She is personable, kind and genuinely appreciative of people; all will feel welcome and respected in her courtroom. She is unfailingly modest, and these characteristics combined infuse her with a judicial temperament that will make her a tremendous asset to the administration of justice in the province.”

The Honourable Justice Karrie Wolfe

ACT I

Those who have the privilege of entering Justice Karrie Wolfe’s orbit describe knowing her as a gift. She embodies all the qualities of a great jurist. She is brilliant but intellectually modest, a natural leader who thrives in the trenches with the team and an adherent to logic and rationality who celebrates creativity. And the only way to understand how someone can simultaneously embody such seemingly distinct traits is by using one of Karrie’s own litigation strategies—trace the history. Thankfully, Karrie’s history is much more interesting than that of legislation.

ЖЖЖ

Karrie’s first impressive performance was when she burst into the world earlier than expected. It was a joyous occasion for her Kitchener, Ontario parents Ken (a schoolteacher) and Doreen (a registered nurse) and big brother Dana. Karrie has continued to bring joy to those around her as she moves through life. It was her parents who early on instilled in Karrie a love of reading, a strong work ethic and her characteristically quiet determination. When she was only two years old, and outside with her brother on strict instructions that he not let her climb the backyard tree, Karrie was triumphantly found at the top of the tree mere minutes later, saying “I did it!” This no doubt foreshadowed what was to come.

Karrie’s academic gifts were immediately apparent when she was a young child; however, she was (and is) as well-rounded as they come. Karrie was an accomplished pianist, was the prime minister of her high school and played several different sports. At Eastwood Collegiate Institute, which continues to offer a specialized arts program, Karrie fell in love with the theatre but, in typical Karrie fashion, she never sought centre stage. Instead, she was drawn to lighting design—quite literally shining the spotlight on others. Through theatre, Karrie forged memorable and lifelong friendships, including with one of her closest friends phil lambke (who did not like capital letters). While phil did not have the opportunity to witness Karrie’s later successes, due to his untimely passing, she has kept his memory alive by dedicating every subsequent theatre production she has been involved in to her dear friend, in his honour.

Not surprisingly, after high school, Karrie was highly sought after by universities. The University of Toronto managed to persuade her to join its ranks by offering its coveted National Scholarship. Karrie accepted and moved to Toronto to study international relations, political science and environmental studies. She quickly involved herself in the university community, eventually becoming the Women’s Head of Trinity College. If you ask Karrie about this period in her life, she is more likely to tell you about the summers she spent tech-ing for the Toronto Fringe Festival or tree planting in Northern Ontario or about the people she met while working as a technician at the George Ignatieff Theatre or for one of the university’s maintenance departments. Among other honours, Karrie was awarded the John H. Moss Memorial Scholarship on graduation in recognition of her outstanding academic achievement and extra-curricular leadership.

Needless to say, Karrie’s Ontario-grounded roots left an indelible mark on her character and set her up for success as she embarked on the next chapter of her life: law school.

ACT II

Unlike many in the legal profession, Karrie did not follow familial footsteps into law school. She arrived at UVic Law in September 2000 not knowing what “summering” positions were or what it meant to “article”, and with a deeply rooted conviction that she would never practise law. What Karrie initially lacked in knowledge and desire regarding the practice of law, however, she more than made up for with her work ethic, an inability to say “no” to exciting opportunities and a commensurate ability to shoulder large workloads, which continues to this day.

At UVic Law, Karrie completed three formative co-op terms. She had the incredible experience of working alongside the late Joe Arvay, Q.C., and the other talented counsel at Arvay Finlay, acting as a law clerk for the late Chief Justice Beverley Browne at the Nunavut Court of Justice in Iqaluit, and working on corporate commercial agreements at a Thai-American law firm in Bangkok, Thailand. In Iqaluit, Chief Justice Browne charged Karrie with teaching a high school law class at Inuksuk High School for the term as she was busy with other responsibilities, but there were no lesson plans or even a textbook. With some help from her dad, Ken, she acquired a textbook as a guide and wrote lesson plans incorporating legal information specific to the relatively newly formed territory. When she was not taking advantage of UVic’s co-op program, Karrie threw herself into local community theatre productions, volunteered with the Environmental Law Centre and wrote for UVIC’s law journal (Appeal). Karrie also played intramural sports, including volleyball with none other than now Justice Jacqueline D. Hughes—a formidable duo on and later in the court. In her “free” time, Karrie built houses with Habitat for Humanity and volunteered at a local soup kitchen (the Upper Room).

Karrie’s significant contributions to the community did not go unrecognized. Among other awards, she received the First Year Achievement Prize for excellence in first year studies and a record of public service, the Faculty of Law Humanitarian Award for her outstanding contribution of time and effort to the well-being of individuals at UVic and within the community at large, and the William R. McIntyre Medal for exhibiting the highest qualities of community service, student leadership and academic excellence over the course of her studies. Karrie also received several academic awards but there are simply too many to list—needless to say, she was extraordinarily successful at law school and has the hardware to prove it. Those who had the privilege of knowing Karrie during law school describe her foremost as empathetic, compassionate and with a “touch of theatre geek”. To this day, many of them remain incredibly grateful for Karrie’s generosity when it came to sharing her detailed legal notes.

On graduation, Karrie secured one of those articled positions she knew nothing about several years earlier and joined the Ministry of Attorney General’s office in Victoria. In her articling year, Karrie competed for a position with the Office of the Legislative Counsel where the interview involved reviewing draft legislation and identifying drafting errors. Legend has it that one applicant found 10 errors, another applicant found 20 and Karrie found 46—three more than the senior counsel who drafted the exercise.

Karrie proudly joined the British Columbia bar in 2005, and in 2006 joined Quadra Legal Centre as a junior associate under the tutelage of Mary Mouat, K.C. Mary recalls how the firm had found a “true winner” with Karrie—someone who was able to work on difficult files with a sense of humour and compassion. But even then, Mary knew that Karrie was destined for greater things. Karrie’s commitment to public service inevitably drew her back to the Ministry of Attorney General’s Legal Services Branch in 2007, as a litigator in the Constitutional and Administrative Law Group.

ACT III

On her return, Karrie quickly became involved in important and complex constitutional and administrative law cases, such as Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, Reference re Election Act (BC), 2012 BCCA 394, BC Freedom of Information and Privacy Association v. British Columbia (Attorney General), 2015 BCCA 172, Conseil scolaire francophone de la Colombia-Britannique v. British Columbia, 2020 SCC 13 and hearings before the provincial 2022 Judicial Compensation Commission. Through these cases and others, she solidified her reputation for quiet courage in the face of intense opposition. In addition to being a litigator, at various points in her Legal Services Branch career Karrie served as co-supervising counsel for the Constitutional and Administrative Law Group, as a deputy supervisor for the Litigation Group, as a solicitor advising ministries and working on significant legislative projects and reconciliation initiatives, and as counsel providing constitutional opinions.

Remarkably, Karrie managed to make time for a life outside the law. She continued doing lighting design and other tech theatre roles for local community theatre groups, worked as technical crew for IATSE Local 168 when her court schedule allowed (ask her sometime about disassembling Leonard Cohen’s stage piano or taking all the springs out of the X-shaped trampoline for a certain Cirque du Soleil show) and also returned to dragon boating. Not one to do anything in half measures, Karrie joined an elite team and ended up winning bronze and silver medals at the 2008 Club Crew World Dragon Boat Championships in Malaysia. She also coached dragon

boat, including co-coaching the Island Breaststrokers Team (a women’s breast cancer survivors team). She later shifted to outrigger canoe racing. Among other adventures, with a team of nine other women, Karrie competed in the gruelling Na Wahine O Ke Kai race, crossing from Molokai to Oahu in the Hawaiian Islands.

Paddling is also where Karrie met her husband Todd, who proved to be the calm and humour amidst the chaos and who continues to be Karrie’s rock to this day. Karrie will tell you she is only able to do what she does because of Todd’s love and support.

The white whale of Karrie’s career was the Conseil scolaire francophone (“CSF”) litigation and its many offshoots, which explored the intricacies of minority language education rights under s. 23 of the Canadian Charter of Rights and Freedoms. Karrie joined the file when it began in 2010, was the only constant presence through to her role as lead counsel before the Supreme Court of Canada in 2019, and remained involved with related issues until her judicial appointment in late February 2024. To truly understand the complexity and significance of the file, one only has to consider the calibre of Karrie’s co-counsel over the years, which include now Justices Jackson, Milman and Horsman. The CSF trial spanned more than 235 days and culminated in a B.C. Supreme Court judgment that was over 1,600 pages long. What is not reflected in the reasons for judgment is that Karrie was nearly eight months pregnant during closing submissions on December 30, 2015. True to her nature, she embodied the spirit of “the show must go on”. Six days later, and almost six weeks early, her son Joshua was born.

Karrie has approached parenthood in a characteristically Karrie-way— with passion, patience and overwhelming love. She treasures the little moments spent with Joshua and Todd, such as gardening at home, doing homework together at the kitchen table and making summer memories on the shores of Lake Huron where her family has been going for decades.

As though her commitments to her family and her caseload were not enough, Karrie also devoted a significant amount of time to legal education. She presented at many CLE seminars, guest lectured at UVic Law on advocacy and administrative law and was a contributing author and member of the editorial board for CLEBC’s Administrative Law Practice Manual. Karrie’s door was also always open to her colleagues, even if it meant climbing over a box or two to get to a chair. She was a safe sounding board who offered practical solutions to thorny legal issues. Karrie’s significant contributions to the community and the legal profession were recognized in December 2023 when she was appointed King’s Counsel.

While her colleagues, mentees and friends will dearly miss their latenight (early morning!) chats, they feel incredibly fortunate to witness this next act in Karrie’s career and the ways in which she will bring to bear her intellect, humility, compassion and work ethic in further service of British Columbians as a member of the judiciary.

ЖЖЖ

The Honourable Justice David Layton

The announcement that David Layton, K.C., was appointed to the Supreme Court of British Columbia came as no surprise to anyone who knows him. David has a brilliant legal mind. He graduated as the gold medallist from Dalhousie Law School in 1987 and obtained his graduate degree in law as a Rhodes Scholar at Oxford University. He followed this with a clerkship with Chief Justice Dickson at the Supreme Court of Canada.

As counsel, David practised in Ontario as a litigator—first at Torys, then at a boutique criminal law firm where he worked on many major cases. As a former colleague noted: “David spent a great deal of his early practice helping other lawyers look very smart. He was typically retained to formulate pre-trial motion materials and arguments in major cases for various criminal lawyers. He was the one who did the heavy lifting. It came naturally to him. He had the perfect temperament. He did not have to be the centre of attention and had no interest in accolades.”

After moving to Vancouver in 2001, David worked with Gibbons Fowler and then Ritchie Sandford, playing significant roles in the Air India and Pickton mega-trials. As criminal defence counsel, he also dedicated himself to advancing the law through his appellate practice to ensure trial fairness for the accused. In 2014, he joined the British Columbia Prosecution Service as senior appellate counsel. He continued to argue complex and high-profile criminal appeals, this time on behalf of the Crown. David was named Queen’s Counsel in 2016. By 2020, he had assumed leadership of the Criminal Appeals office, a role he occupied until his appointment.

In short, David’s distinguished and accomplished legal career for over 30 years makes him superbly qualified to sit as a Supreme Court justice. But

there is more. The following six qualities also make David exceptionally suited to this next stage of his career.

First, while in many ways David personifies the national stereotype—he is unfailingly polite—he has the added benefit of being able to bring a coastto-coast Canadian perspective to the cases he will hear. Not only did he spend a decade in Toronto, but he grew up in the small town of Truro, “the Hub of Nova Scotia”, given its location at the junction of routes heading to Halifax, Cape Breton and New Brunswick. He is close with his parents and three younger siblings, and he joins them annually at the Hubbards, Nova Scotia family cottage—a true Maritimer still. If counsel listen closely, they might hear what he thinks their case is really aboat

Second, David truly loves the law. As one close friend says, “I’d say David is one of the few people I know whose profession is integral to their identity.” He has written continuously on criminal law topics, including the chapter on “Witnesses” in McWilliams’ Canadian Criminal Evidence. He has published over 55 articles and case comments in publications such as the Criminal Law Quarterly, the Canadian Criminal Law Review and the Criminal Reports. He has given of his time endlessly throughout his career to speak and present in British Columbia and across Canada on many criminal law topics (last count was approximately 110 times) and has taught at law faculties: Preventing Wrongful Convictions at UBC (2006–2010) and Ethics at UBC (2008–2009) and UVic (2003–2005). From 2012 to 2022, he sat as an adjudicator on the Law Society Tribunal. None of this was a chore for David, because, as his friend says: “When David speaks about the law, it’s obvious that he is enamoured, fascinated, drawn to and absolutely gets a kick out of it.”

Third, he loves to take a “deep dive” into almost any topic. It is this quality that led to David becoming a national expert on criminal law and ethics. Years ago, at a backyard barbeque, he was introduced to Justice Michel Proulx of the Quebec Court of Appeal. They quickly discovered a mutual passion for ethics. Before long they were writing what would become the seminal text Ethics and Criminal Law, with David writing a significant portion of the first edition (2001), and the entire second edition (2015) following Justice Proulx’s death. In 2003, the text won the CBA’s Walter Owen Book Prize for outstanding legal writing. Ethics and Criminal Law has been cited in over 80 reported decisions, including six times by the Supreme Court of Canada. David has also shared his ethics expertise informally with many lawyers throughout Canada. For decades, he has been the “ethics guy” to call. We can expect that no matter what complex or esoteric legal question may confront him, David will dive into the issue and give it his utmost consideration.

Fourth, David has interests outside the law. For one, he loves sports. Growing up, he played competitive hockey and golf. In David’s senior year

of high school, he was the Nova Scotia track champion for the 800 metre, 1500 metre (he held that record for many years) and 5000 metre events. He maintains an encyclopedic knowledge of track and field statistics. He still runs regularly. He also has a habit of cycling to the office or to court, and it is rumoured that a judge who once saw him riding in the pouring rain commented on David’s “exceptional legal submissions, and questionable street attire”. He enjoys hiking, and recently learned to skate, ski and paddle board with his partner Dianne and her son, Kai. Indoors, do not bet against David when he is playing billiards and backgammon (a sport of mind).

Fifth, David can talk about pretty much anything. He is intrigued not only by sports, but also by art, music, politics, literature and pop culture. He has been an avid reader of The New Yorker since childhood (as a child he was encouraged to read and critique an article, which gave him his lifelong appreciation of great writing). David is someone who will happily debate the merits of an action movie or a Jane Austen adaptation if that is where the conversation goes. He is an engaged conversationalist, because he is an active listener, with an open and inquisitive mind—wonderful qualities for his new assignment.

Sixth, David is thoughtful, genuine and kind. His interactions with legal assistants, witnesses, clients, victims, police, clerks, sheriffs and law students were always respectful and considerate. A senior defence counsel describes David as “just the very best colleague—easygoing, endlessly helpful”. His colleagues at Criminal Appeals will miss his constant support, assistance and commitment to their development as counsel. He was a wise and trusted leader.

The only real criticism we have ever heard of David relates to his peculiar commitment to displaying a huge, particularly ghoulish, painting of a brooding man wherever he works. As one of his defence colleagues described, “People who the police would describe as the most hardened of career criminals would recoil at the sight of it.” However, it had been painted by a friend and David never thought to question its artistic value. This is David too; he is very loyal.

Despite all of David’s accomplishments and fine qualities, you will not hear about them from him because he is completely unassuming. David is humble, and not one to enlighten others about his many successes.

In closing, David’s appointment is, as a close friend aptly said, one of those circumstances where “the universe gets it exactly right”. He has earned respect and admiration for his superb legal skills, his intellectual curiosity, and just being an all-around great person. We expect his commitment to fairness and his impressive legal acumen will stand him in good stead on the other side of the bench. We will miss him on this side.

The Honourable Justice Edlyn Laurie

Edlyn Laurie was appointed as a judge of the B.C. Supreme Court on May 27, 2024.

As a friend of Edlyn for many years, it is my delight and privilege to tell readers all about her. However, as her friend, I would be remiss in not acknowledging that if she had her way, this article would never have been written—which is likely why it took her months to ask me to write this after ignoring the polite reminder emails from the Advocate’s editors. I know she is exceedingly uncomfortable with anything about her being published—other than her written decisions. She is fine with that.

At her welcoming ceremony, those who know her well would have had no doubt that she found the genuine and entirely well-earned praise heaped on her to be excruciating. She remained stoically still, on the bench beside her newly appointed colleagues and Associate Chief Justice Holmes, but inside she was surely cringing. If she had to have something about her published, Edlyn may only be able to bear something akin to this:

Justice Laurie is a quiet, private person who was an excellent prosecutor as federal Crown counsel and a wonderful colleague, a generous person and a true friend. She combines a calm, modest demeanour with intellectual gifts, abiding curiosity, much common sense and a slightly wicked sense of humour, all valuable traits for a judge.

However, there is much more to say. So Edlyn, here is your “trigger warning”—you should probably stop reading now because the rest of this is going to be rather effusive.

Edlyn was born in Manila, making her British Columbia’s first Chinese Filipino justice—an accomplishment of which she is quietly proud, recognizing the significance of her appointment. That pride is shared more overtly by members of the bar from this community, given the wonderful comments at her welcoming ceremony. She excelled in school and eventually attended the University of the Philippines, graduating with a degree in political science in 1992. After graduating, she worked at a variety of jobs in the Philippines before deciding to go to law school. Happily for the B.C. legal community, she turned her sights to studying in Canada. She had been accepted to Osgoode Hall and planned on moving to Ontario, but on arriving in Vancouver she fell in love with British Columbia and wisely decided to stay. She was accepted to UBC Law in 2000. She articled with the Public

Prosecution Service of Canada (“PPSC”) and then started her prosecutorial career as many judges before her have done, in the infamous melee and uniquely immersive training ground that is 222 Main Street, in the heart of the downtown eastside of Vancouver.

Unless you have worked at 222 Main, you really cannot comprehend what a different world it is from any other provincial courthouse or even from the Vancouver Law Courts. Counsel, staff and judges are confronted with a relentless stream of the most broken, vulnerable and lost souls in our society, and the vexing plethora of often ill-suited options to deal with the horrors of violence, mental illness and drug addiction.

It is also a place where, as a prosecutor, you need to find your feet pretty quickly. Edlyn had no difficulty doing this, and being exceptionally well prepared in order to handle her stack of trial and bail files. Her even temperament was an ideal foundation for her careful decision-making on challenging files. She also knew that good communication and humour would get you through most stressful situations, and she valued her relationships with colleagues and defence, many of whom became her dear friends. While at 222 Main, her kindness and generosity were also apparent. She was always ready to help with a legal issue or to help find a case, but also, when a new colleague ruined the suit she was wearing by spilling salad dressing on it (no doubt while researching some new Charter challenge that defence had forgotten to mention earlier), Edlyn came to the rescue with a stylish pair of “emergency pants”. Edlyn had, of course, foreseen the need to deal with occasional lunch spills.

In addition to being a generous colleague, Edlyn quickly developed a reputation as a highly skilled, highly organized and very effective prosecutor, exemplifying the professionalism and judgment necessary to do the job well. Not surprisingly, it was not long before she was given responsibility for major drug trials involving multiple accused and complicated Charter and evidentiary issues. She dealt with numerous complex cases, many of which are now part of the lexicon for the minutiae of s. 8 of the Charter at the B.C. Supreme Court and Court of Appeal levels. Word limits do not permit me to name them all, but counsel appearing before her on a criminal matter would be well advised to ensure their research covers a search of her name in CanLII. While this is always a good practice, with Justice Laurie, it really is a necessary one as counsel will quickly realize she knows far more about the issue than they do.

As a wiretap agent, she spent many long hours (along with the intrepid paralegal team at PPSC) making urgent Part VI applications on behalf of the police for wiretaps on major drug files, often dealing with hastily put

together applications from well meaning but inexperienced police officers. After sending them back with many, many redrafts, Edlyn would then be ready for the late night and weekend applications to the Supreme Court. For some reason, that is also when Edlyn’s laptop would decide it was time to update and restart, and also the time the energy efficient offices at PPSC would turn the lights off just as she would be trying to get to the printer, making the whole experience bumpier and more stressful than needed. Edlyn handled these stressful applications with aplomb, or at least far more aplomb than any of her colleagues—no evidence of broken furniture or dented walls, unlike around some other colleagues at PPSC.

Edlyn also mentored many junior counsel at PPSC. She always treated her juniors as co-counsel and never gave them the dreaded make-work projects. Rather, she gave them meaningful assignments that matched their abilities and gave them opportunities to learn. Appropriately, she was tapped as one of the organizers for the national PPSC School for Prosecutors and there is a whole “next gen” of PPSC counsel who have benefited from her involvement with this program.

Her last chapter as PPSC counsel was as appellate counsel, a challenge which she loved and excelled at. The last appeal she had conduct of on behalf of PPSC was as respondent for a sentencing that had been conducted by one of her colleagues—thankfully upheld with no major mess up by the colleague, or, although Edlyn would have been too kind to talk about this, that would have made for a rather awkward dinner conversation.

One of Edlyn’s former colleagues on the Appeals Committee notes:

I can attest to Edlyn’s incredible work ethic and the amount of thought she puts into every legal issue that confronts her. She has very strong instincts and is almost always correct, but she leaves no stone unturned to ensure that nothing has been missed. The quality of her reasoning stands out, and I think this is a reflection of the preparation and hours of hard work she puts in. Diligent as a term only scratches the surface with Edlyn. She also has a good sense of humour and can laugh at the absurdity of life. I will also add that she is a level headed, fair, and an unfailingly kind person and a joy to work with. I would expect that as long as lawyers who appear in front of her are well prepared, they will find it a painless experience.

In addition to being a respected colleague and lawyer, Edlyn is a passionate person who pushes herself to learn new things. In addition to coming to Canada alone in her 20s, she learned to swim and drive in her adult years. She loves to travel and is a talented cook—she makes delicious meals and treats such as ice cream, bread, roti canai, handmade pasta and amazing apple caramel candies. She loves dogs of all shapes and sizes and no

doubt her new colleagues will soon add her name to their accepted dog sitters list.

Family and close friends are so important to Edlyn. She often visits her extended family in the Philippines, Canada and the United States with her husband John Walker. She graciously took to the challenge of the role of stepmom to John’s two teenage daughters with patience, sensitivity and love. Edlyn is also a constant and dear friend.

Edlyn is, as well, generally flappable. On one London trip (pre-cell phones and Google maps) Edlyn and a friend got separated at the London Tube when the doors closed on Edlyn while the friend remained on the platform. They had no way of communicating other than the friend’s panicked expressions and hysterical hand motions. The extent of Edlyn’s reaction was raising her eyebrows. Later that night, the friend found Edlyn relaxed at their hotel room, unfazed by the misadventure. While this seems obvious, it is a metaphor for what we can expect with Justice Laurie: if she happens to get on the wrong track, she will not get flustered or panicked; she will be calm and measured, methodical and thoughtful. She will do the right thing and she will end up in the right place.

Edlyn’s desire for new adventures has now extended to her appointment to the Supreme Court bench. The public and the bar are so lucky to have her presiding in their courts. Edlyn’s calm nature will not only maintain the decorum and the civility in the courtroom, but her understanding and acceptance of people will ensure that fairness and justice are achieved.

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NEW BOOKS AND MEDIA

By R.C. Tino Bella*

Heenan Blaikie: The Making and Unmaking of a Great Canadian Law Firm, by Adam Dodek, University of British Columbia Press, October 2024

Reviewed by Anne Giardini, K.C.

Adam Dodek’s new book, Heenan Blaikie: The Making and Unmaking of a Great Canadian Law Firm, is at least three books in one.

First, it is a history of the practice of law in Canada during the last quarter of the last century and the first 14 years of this one. These 40 years represent a time of enormous changes in legal practice, law firm formation and governance, Canadian law, Canada’s status in the world, the makeup and nature of the profession, and many other factors that affect how the practice of law was and is carried on.

Second, it represents an attentive and considered analysis of why the national law firm, Heenan Blaikie, at one time Canada’s seventh-largest law firm, failed spectacularly in early 2014. Many of the lessons and failings that Dodek describes are applicable to businesses other than the practice of law, making this book of wider interest than its title might suggest. But, anyone at any law firm in Canada, in almost any role, from articling student to managing partner, will come away from this book wiser about what to do and what not to do for the firm’s success.

Third, Dodek names names and calls out both bad behaviour and good. The legal profession in Canada is still relatively small. If you were called to the bar more than say 20 years ago, you are bound to have heard of or know some of the people in and around Heenan Blaikie during its heyday and as it disintegrated. I kept a search engine open while reading this book, so I could look up the people (“whatever happened to …”), the scandals and the news events (not all of them involving Heenan Blaikie) that Dodek

describes (“what was the Bouchard affair …”). He tosses in random facts throughout the book that led to more searches. Who knew that the Cathy Smith who admitted to killing John Belushi with a fatal drug dose—that Cathy Smith—was a paralegal at the firm?

I had previously thought of Dodek as an academic; he is a professor at the University of Ottawa Faculty of Law and a former dean of the faculty. But he has also practised law in law firms in both Canada and the United States, and this book demonstrates that he understands how law firms work. Dodek, who has studied at McGill University, Harvard and the University of Toronto, and received a Fulbright Scholarship to study Israeli constitutional law, has clerked for the Supreme Court of Israel, for the U.S. Court of Appeals for the Ninth Circuit in Pasadena, California, and for Justice Claire L’Heureux-Dubé at the Supreme Court of Canada. He has also served on the staff of Ontario’s Attorney General, as senior policy adviser and as director of policy and as chief of staff. One of his prior books is The Canadian Constitution , co-written with former Chief Justice Beverley McLachlin.

Heenan Blaikie: The Making and Unmaking of a Great Canadian Law Firm is timely. Minden Gross, a mid-sized Toronto law firm of about 65 lawyers and 100 staff, one that had been in business for nearly 75 years, shut its doors earlier in 2024 and is in the process of winding down. Despite what Dodek points out are highly privileged aspects of the practice of law in Canada—including limited competition and the right to self-regulation— law firms, even large ones, can and do fail.

Heenan Blaikie grew rapidly and, in Dodek’s telling, somewhat chaotically, after its founding in Montreal in 1973. It grew to include offices in Montreal, Toronto, Ottawa, Calgary, Vancouver, Quebec City, Sherbrooke, Trois-Rivieres and Paris. The firm started with a handshake, or there must have been more than one handshake, because there were three founders, all under 38 years old: Donald Johnston, Roy Heenan and Peter Blaikie. Of the three, Roy Heenan was the lynchpin of the firm. He was the firm’s first and only chairman for almost four decades, until 2012, and he remained with the firm until it was shuttered in 2014.

The three new partners forwent a written partnership agreement, instead, in at least one telling, committing to “have no rules and that they would devote their time and energy to fighting their competitors, not each other.”

Peter Blaikie later described the firm’s “Founding Principles” as follows. First, no written partnership agreement. “Second, large discrepancies in compensation between different types of lawyers would not be the norm.

Third, the most highly remunerated partners would not be paid a great deal more than the most junior ones. And fourth, not only would work be delegated to younger lawyers as soon as possible, but so would responsibility for client relationships.”

The new firm innovated in other ways, including maintaining close ties with McGill, enabling the recruitment of top students.

In 1984, when Heenan Blaikie was still a single-office Montreal firm, its profile was greatly enhanced when it attracted recently retired prime minister Pierre Trudeau to join its ranks. Dodek considers the value that the former prime minister brought to the firm, and the role he played in its development, and then considers the larger question of the reasons law firms hire retired politicians, and how their skills can best be deployed.

A theme Dodek returns to often is the ways that the culture at Heenan Blaikie helped it attract highly talented lawyers but also helped lead to its downfall. Some former partners and associates valued its dynamism and lack of structure and hierarchy, noting that this meant that they could do whatever they wanted. Said one: “Whatever the individual wanted to achieve, they could. There were no limits.” On this point, Dodek fittingly quotes Ronald J. Daniels, president of Johns Hopkins University and former dean of law at the University of Toronto, on the downside of less structure: “Firm culture is the medium by which certain transcendent community values are transmitted to members of the firm.” To this Dodek adds his own observation: “The founders of Heenan Blaikie succeeded in creating a unique culture that strengthened as the firm grew. It was characterized by youth, dynamism, and an ever-present sense of fun. In an office with little structure and fewer rules, possibilities abounded, even as latent dangers lurked within this culture.”

Dodek describes several times when “transcendent values” were lacking, including how and when decisions were made to open new offices, a lack of will to fire underperformers or close underperforming locations, opaque compensation and decision-making practices, and the hiring and management of controversial partners such as Joe Groia, Bob Donaldson and Marcel Aubut among others. One lawyer Dodek interviewed described Marcel Aubut, who became increasingly powerful at the firm, as “the Donald Trump of Heenan Blaikie; he said and did whatever he wanted because he had the power.” Aubut, who later stepped down as president of the Canadian Olympic Foundation after allegations of sexual harassment, faced similar allegations at Heenan Blaikie, where he was described to Dodek as “a pig” who “couldn’t keep his hands off women” and as “one of those guys who creeped you out as a woman”.

Dodek also names a number of principled leaders within the firm, people who fought hard to keep the best aspects of the firm culture alive while also challenging bad decisions and encouraging sounder governance practices.

Dodek is particularly good at identifying and tracking aspects of the management of the firm that contributed to its failure, including, for example, Roy Heenan’s willingness to meet conflict head-on in his professional work as a labour lawyer, while, within the firm, he “went out of his way to avoid it, actively shutting down difficult conversations instead of engaging”. Dodek points out that an “absence of conflict in an organization can be just as corrosive as conflict itself; the key is to learn how to manage it, not to eliminate it. Roy never acquired this skill, so the firm did not possess the necessary tools when open conflict erupted …”.

The challenges in the firm tipped into a fatal loss of trust when, in 2011, newspapers broke the “Bouchard Affair”, reporting that partner Jacques Bouchard and former prime minister Jean Chrétien had lobbied governments on behalf of Heenan Blaikie clients—lobbying that was tied to arms deals. The first time most of the firm’s lawyers heard the story was in the news. No advance notice had been provided. Although Bouchard eventually resigned, the events set off a crisis of confidence inside the firm. Dodek points out that Heenan’s leadership had in fact been warned in advance that Bouchard had prior allegations of ethical malfeasance, having falsified the qualifications of prior partners to obtain valuable contracts.

Lawyers in British Columbia will be interested in how Heenan Blaikie grew in Vancouver, and how, when Heenan Blaikie dissolved, the Vancouver office was split, mostly into two firms, Gall, Legge, Grant & Munroe, and MEP Business Counsel (Michael, Evrensel & Pawar LLP).

One of several heroes in the book is Andre Bacchus, now a law career coach and governance advisor. When Heenan Blaikie dissolved and it became clear that there would be no successor, Bacchus set out to find a job for every articling student at the firm. “Bacchus wrote to all the students, promising that the firm—essentially he himself—would endeavour to ensure that everyone found a place. He made good on his promise. For two and a half weeks, he worked tirelessly to find placements for all the students.”

You can read this book several ways, including as governance guide, gossip and tragedy. Despite some unnecessary repetition and a somewhat tentative warm up to its topics in the earliest chapters, the lessons of Heenan Blaikie: The Making and Unmaking of a Great Canadian Law Firm are considered and compelling.

LETTERS TO THE EDITOR

Dear Editor,

Re: “Bench and Bar” (2024) 82 Advocate 785 at 792

(Not sure if this is bench or bar.) You inform us, “Pieces of eight were Spanish Coins also used outside the Spanish empire”. This raises a lexicographical, if not metaphysical, question. A “bit” was an eighth of a Spanish dollar, which coins were, I believe, scored, to allow the coin to be broken into eight bits, so that one or more could be tendered in trade, not the entire coin.

As you note, the term came to apply to the U.S. and other dollars. This was especially so in the usage “two bits”, meaning a quarter dollar, an expression often heard in my younger years; not so much in our digital era.

“Shave-and-a-haircut-two-bits” dates from at least 1899. Though the phrase has not survived infla-

By R.C. Tino Bella*

tion, its catchy rhythm persists in many musical contexts. Bits need not come in a single pair; as Wikipedia notes, “Roger Miller’s song King of the Road features the lines: ‘Ah, but two hours of pushin’ broom buys an / Eight by twelve four-bit room’.”

To return to the philosophical question that vexes me: Can oneeighth of a coin itself be a coin? Even in caps? The answer may turn on whether one defines by form or by function. I believe this calls for editorial response.

John Edmond Ottawa

[Our understanding is that the base denomination was the “real”. Among the minted denominations of reals were the one-real coin, the two-reals coin, the four-reals coin and the Spanish dollar, which was worth eight reals and was thus known in its

* Letters to the editor may be e-mailed to <mbain@hhbg.ca>. Letters published do not necessarily reflect the views of the Advocate or its staff. We encourage a diversity of voices and views in our pages.

entirety as a “piece of eight”. As you note, the Spanish dollar could physically be broken into eight pie-shaped bits, each worth one real, to give change. We would lean toward not describing the pie-shaped portion of the dollar as a coin, based on dictionary definitions that describe coins as issued by government and usually round; however, we are open to be persuaded otherwise by pirates/other readers who wish to weigh in – Asst. Ed.]

Dear Editor,

Re: The Whitehorse Star

After publishing for 124 years, the Whitehorse Star went to press for the last time on May 18, 2024.

There are two reasons why that melancholy fact may be of interest to readers of the Advocate.

First, it is, of course, very concerning that the Star was one of Canada’s last independent newspapers.

Second, for nine challenging years, the Star was published by Harry David Boyle, later a judge in our Provincial, County and Supreme Courts.

Harry grew up in Penticton, where his father, Harry H. Boyle, established the law firm that still bears the family name.

But Harry only wanted to write, and in 1954 acquired the Star. His

gifted wife Gwen (a sculptor) looked after payroll and kept the paper’s accounts.

Harry’s tenure at the Star was, at times, controversial. A friendly reader referred to Harry’s “puckish, original wit” (e.g., Harry once categorized visiting parliamentarians as “a better class of drinkers in town”), and Harry himself eventually conceded that his “left wing” (his description) editorials did not endear him to potential advertisers. So, in 1963 he sold the Star.

After brief stints at the Prince George Citizen and the Kamloops Sentinel , Harry was accepted at UBC Law (Class of 1970), which led to articles with the esteemed Tom Berger, appointment as judge of Canada’s first Unified Family Court, two years as district registrar and finally appointments to the County and Supreme Courts (he retired in 2001).

Harry (98) and Gwen (95) are now in care together and, while Harry can no longer communicate, his daughter Melanie suggests that if Harry were able to react to news of the closure of the Whitehorse Star , he would likely respond: “Well, there goes the neighbourhood!”

Sincerely,

The Honourable Ross Collver, K.C.

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LEGAL ANECDOTES AND MISCELLANEA

By Connor Bildfell*

BEWITCHED: HOW THE SALEM WITCH TRIALS TRANSFORMED THE JUSTICE SYSTEM1

By Connor Bildfell*

In 1691 in Salem Village, Massachusetts, Elizabeth Parris and Abigail Williams started acting strangely. The two girls had seemingly uncontrollable fits, contorted their bodies in unusual ways and spoke unknown words. Elizabeth’s father, Samuel Parris, a Puritan minister, called a local doctor who determined that the girls had been afflicted by a witch. Tituba, Samuel’s Indigenous slave from Barbados and the children’s frequent caretaker, was accused of being a witch. So were Sarah Good and Sarah Osborne, two social outcasts. By the end of a frantic series of witch hunts over the coming months, 20 people had been killed and about 200 people had been imprisoned.

But the greatest horror of all? All of this took place under the auspices of the law.

This piece revisits the Salem witch trials and the role that the law played in transforming fear, social contagion and prejudice into injustice. In brief, the Salem witch trials offer a cautionary tale about how the law can all too

* Connor Bildfell bewitches courts as a litigator at McCarthy Tétrault LLP and is the Advocate’s copy editor.

easily become an instrument of unimaginable injustice in the hands of ordinary people overwhelmed by fear, social contagion and prejudice. But this cautionary tale may have a silver lining: the grave injustices of the Salem witch trials may have reinforced the need for modern trial fairness protections such as the presumption of innocence, the right to defence counsel and the rule against hearsay and character evidence.

THE BEGINNINGS OF THE SALEM WITCH TRIALS

Salem Village was founded in 1626 near Boston, Massachusetts by agrarian Puritans known for their strict moral standards. Salem Village bordered Salem Town, a more cosmopolitan port town involved in international trade and poised for economic growth. Both communities formed part of the Massachusetts Bay Colony, an English settlement on the east coast. But Salem Village wanted little to do with Salem Town. The villagers concerned themselves with matters of religion and agrarian life, not with matters of trade and economic expansion. Over the years, tensions between the two communities, and distrust about the dangers of the New World, continued to mount.

Salem Village also experienced internal division. The village’s two leading families—the well-heeled Porters, who had strong connections with Salem Town’s wealthy merchants, and the less well-heeled Putnams, who sought greater village autonomy and found favour among less-prosperous farm families—became bitter rivals. Squabbles were commonplace.

Political, geographical and health threats also abounded. Ongoing violence between Native Americans and English settlements kept the villagers on high alert. Bordering French colonies threatened to invade English settlements. And the villagers were still reeling from the effects of a recent smallpox outbreak. But perhaps of even greater concern was the popular opinion that public religious faith was declining and their traditional way of life was slipping away.

Salem Village also had a legal and political crisis on its hands. In 1629, the Crown had issued a royal charter that, among other things, allowed for the creation of a general court. But this charter had been revoked by James I in 1684. Meanwhile, the Dominion of New England was created, and its appointed governor was an Anglican, Edmund Andros, seated in Boston. When news of the Glorious Revolution reached the east coast in 1689, the Puritans jailed Andros and sent a representative to London to negotiate a new charter. But without a charter in place, Salem Village’s legal and political system was unstable, uncertain and unpredictable. Indeed, by 1692, Salem Village was effectively operating without any regular form of government.

These factors set the stage for the chaos and injustices that would ensue.

In the winter of 1691-92, Puritan minister Samuel Parris’s nine-year-old daughter, Elizabeth Parris, and eleven-year-old niece, Abigail Williams, started acting strangely. They had seemingly uncontrollable fits, contorted their bodies in unusual ways, and spoke unknown words—even barking at times. When adults tried to combat these symptoms through prayer, Abigail covered her ears, stamped her feet and screamed to drown out the holy words. The local doctor, William Griggs, determined that witchcraft was at play.

By February 1692, Samuel and other adults had pressured Elizabeth and Abigail repeatedly to name the witch or witches who had afflicted them. Under this intense pressure, the girls accused Tituba, Samuel’s slave and the girls’ frequent caretaker, of witchcraft. Accounts vary, but most agree that Tituba was a dark-skinned slave from Barbados. Given her skin colour, her low social status and her frequent proximity to the girls, she was likely seen as an obvious suspect.

The two girls also accused Sarah Good (a homeless and irascible beggar) and Sarah Osborne (an impoverished elderly woman scorned for her romantic involvement with a servant). Like Tituba, the two Sarahs were likely seen as obvious suspects, but for different reasons. Neither went to church, and both fit the stereotype of a witch: female, old, ill-tempered and ugly.

On March 1, 1692, two villagers interrogated the three accused at a local inn that served as an improvised courtroom overflowing with spectators. The afflicted girls were present throughout the hearings and often cried out in anguish, which was taken as undeniable evidence of their affliction and the guilt of the accused. Although the two Sarahs maintained their innocence throughout, Tituba confessed. She admitted that she had signed a book of the devil along with several other witches seeking to destroy the Puritans. But she later revealed that she confessed only because Samuel threated to beat her unless she did.

All three women were sent to jail to await trial to determine their punishment. Sarah Osborne died in prison of unknown causes. Sarah Good died by hanging. Tituba, legally the property of Samuel and therefore unlikely to be executed, received no sentence.

With the seeds of social contagion firmly planted in the village soil, a flurry of accusations followed over the coming months. These accusations targeted not only social outcasts like Tituba and the two Sarahs, but also respected members of the community like Rebecca Nurse, a devoutly religious woman seen as a Puritan matriarch. This sent the villagers into an

even greater panic. If Rebecca Nurse could be a witch, then surely anyone could be a witch.

THE TRIAL PROCESS

In May 1692, Governor Sir William Phips, the newly appointed royal governor of Massachusetts Bay Province, arrived from England to find that accused witches packed the local jails. At the time, the province had no royal charter, since as noted above the Crown had revoked the previous one. He brought with him a new royal charter that gave the province’s legislature the right to establish a court. But the process would take time, and he had to act quickly.

To address the situation, Governor Phips—who had no legal training— established the Court of Oyer and Terminer (“to hear and determine” in the Old Northern French that was still standard in English courts at the time). This court consisted of a handful of men—none trained judges or lawyers— charged with hearing trials of those accused of witchcraft.

The court applied a harsh Massachusetts law that made witchcraft punishable by death. Echoing a biblical passage from the book of Exodus, this law declared that “[i]f any man or woman be a witch (that is hath or consulted with a familiar spirit) they shall be put to death.” The court appears not to have grappled with the nuances of this seemingly straightforward provision. For example, the law offered no definition of “witch”, “consulted with” or “familiar spirit”, leaving the court to define and apply these terms without any legislative guidance.

The court held witch trials on four occasions in 1692. Most sittings spanned several days and covered multiple trials. The court was able to complete multiple trials in a single sitting because the trials moved at an astonishingly fast pace: many lasted little over an hour. This is perhaps the only aspect of the Salem witch trials that represents an improvement on our modern procedure.

The proceedings typically began with a plea from the accused. Those who confessed—or, even better, who confessed and named other witches— were met with leniency due to the Puritan belief that they would receive their punishment from God. But those who maintained their innocence were often met with the ultimate punishment from mortal men: death by hanging.

After the plea, jury selection took place. The process bore some resemblance to our modern jury selection process: 12 men were selected from a pool of 48. The accused could question jurors and even challenge them for cause—one of the few procedural protections afforded to the accused.

Once the jury was selected, the prosecutor would commence with the evidence.

The evidence often included written witness statements. It appears that the court generally preferred these statements over live testimony because they were considered more reliable and because the court had no way to create verbatim transcripts. These witness statements were often read by the various witnesses against the accused. Some witnesses also gave live testimony.

The Salem witch trials lacked many of the basic trial fairness protections that we now take for granted. Four protections in particular were conspicuously absent.

1. No presumption of innocence

First, the court presumed that the accused was guilty—the opposite of our modern presumption of innocence. This meant that the accused bore the burden of proving their innocence—not an easy burden to discharge in an environment of fear and mass hysteria.

Although the accused could offer an alibi, this evidence received little or no weight in the face of spectral evidence. “Spectral evidence” was evidence that the accused’s spirit or spectral shape appeared to the witness when the accused’s physical body was elsewhere. As a New Hampshire court would describe three centuries later in 1982, “[spectral] evidence was accepted on the basis that the devil and his minions were powerful enough to send their spirits, or specters, to pure, religious people in order to lead them astray. In spectral evidence, the admission of victims’ conjectures is governed only by the limits of their fears and imaginations, whether or not objectively proven facts are forthcoming to justify them”.2

Spectral evidence accounted for how the accused could perform witchcraft in one location even when their physical being was in a different location. The court understood that the spectre was visible only to the witness who saw it, making it effectively impossible to discredit their account. And the court required no corroboration: the witness’s own firsthand account was enough.

2. No rule against hearsay

Second, the court admitted hearsay. And not just any hearsay—double or even triple hearsay. Although today’s rule against hearsay generally prohibits the admission of out-of-court statements tendered for their truth of their contents, the Court of Oyer and Terminer admitted these statements liberally. Indeed, the Salem witch trials were largely based on second-hand rumours, suspicions and gossip, often motivated by social dynamics and

personal vendettas. For example, accusations were often motivated by jealousy, land disputes or rivalries, such as the rivalry between the Porters and the Putnams. And they often (but not always) targeted those who were social outcasts or did not follow societal norms, such as unmarried women or people with unconventional beliefs.

By the time of the Salem witch trials, debate over the admission of hearsay had already begun in the Commonwealth. But the rule against hearsay developed slowly. In a 1904 Harvard Law Review article, John H. Wigmore wrote that the “history of the hearsay rule, as a distinct and living idea, begins only in the 1500s and it does not gain complete development and final precision until the early 1700s.”3 Evidently, the rule had no presence in Salem Village.

3. No right to counsel

Third, the accused lacked the right to counsel. No defence counsel were allowed to object—or even be present—when an accused was being questioned, or to cross-examine those who testified against the accused. It is unclear why the court prohibited defence counsel. But even if no prohibition existed, one might question how many members of the community would rush to the defence of an accused witch. Indeed, many members of the community remained mute for much of the proceedings out of a fear that they too might be accused of witchcraft. So even though most witnesses could easily have been discredited through a careful cross-examination, none occurred.

4. No rule against character evidence

Fourth, the court also accepted character evidence. The evidence came in many forms—bad character evidence, bad reputation evidence, bad acts evidence—and recounted everything from unpleasant interactions to vicious rumours. This evidence played a significant role in the conviction of many accused who were relegated to the fringes of village society.

THE COURT’S DISSOLUTION

In June 1692, Governor Phips asked a group of the province’s leading ministers, including Cotton Mather, for their opinion on the ongoing proceedings, and the use of spectral evidence in particular. In a response written on behalf of the group, Cotton—who had a heavy influence on the Salem witch trials— urged caution regarding spectral evidence. But he also urged “the speedy and vigorous Prosecution of such as have rendered themselves obnoxious.”

Despite this warning, the Court of Oyer and Terminer continued to convict accused witches based on spectral evidence. The crisis reached its

height in late September 1692, when seven women and one man suspected of witchcraft were hanged on a single day. But by then, public support for the trials was waning—not because the villagers stopped believing in witchcraft, but because they stopped believing in the court’s process for identifying witches. Even after the trials ended, people continued to believe in witches and their apparitions.

In October 1692, with public support for the trials on the decline, Increase Mather, Cotton’s father, wrote a report on the evidence admissible in cases of alleged witchcraft. His report concluded that witchcraft should be tried as any other crime, without relying on spectral evidence, and that the court should always be cautious in its rulings, stating: “It were better that ten suspected witches should escape, than that one innocent person should be condemned.”

Increase’s report influenced Governor Phips to bring the Court of Oyer and Terminer to an end on October 29, 1692. But perhaps even more influential in this decision was the fact that the Governor’s own wife had been accused of being a witch. In place of the Court of Oyer and Terminer, the Governor established a Superior Court of Judicature, with instructions not to admit spectral evidence. The witch trials soon came to an end.

So what caused Elizabeth Parris and Abigail Williams to start acting strangely in the first place? One theory ties back to Cotton Mather. One of Mather’s books, Memorable Providences Relating to Witchcraft and Possession, detailed a case involving the Goodwin children of Boston, whom he had tried unsuccessfully to free from diabolical torment. A copy of this book was found in the Parris’s home, giving Elizabeth and Abigail easy access to descriptions of ways that someone under a witch’s curse might act. Some have suggested that the girls may have fabricated their stories to ease their anxieties about their marriage prospects, which determined their futures along with their financial stability. Others have suggested that the girls may have suffered from a medical condition or eaten contaminated bread. But the true reason remains a mystery.

THE SALEM WITCH TRIALS’ LEGACY

By the time Governor Phips dissolved the Court of Oyer and Terminer in October 1692, 19 accused had been hanged and 1 man had died while refusing to cooperate during interrogations. In addition, about 200 people were imprisoned on witchcraft charges.

By May 1693, Governor Phips had pardoned and released everyone remaining in prison on witchcraft charges. In the years that followed,

judges and juries—and even one of the main accusers—apologized for their roles in the trials. In 1711, Massachusetts passed legislation exonerating everyone who was executed during the Salem witch trials and paying restitution to their families. But it was not until 1957—more than 250 years after the trials—that Massachusetts formally apologized for the events. And it was only in July 2022 that Elizabeth Johnson, Jr., the last person convicted as a witch in Salem Village, was officially exonerated.

Some have suggested that the Salem witch trials influenced the later development of U.S. trial fairness protections. For example, during debate over ratification of the U.S. Constitution almost a century after the Salem witch trials, anti-Federalist delegates argued that the document needed a bill of rights to guard against violations of individual rights and freedoms by the federal government. Some have suggested that this argument may have drawn strength from the cautionary tale of the Salem witch trials, which demonstrated how individuals could be denied even the most basic rights and protections afforded by common law.

The U.S. Constitution did not expressly guarantee a presumption of innocence. However, the Fifth Amendment, which was ratified in 1791, guarantees the right not to be deprived of life, liberty or property without due process of law. “Due process of law” is widely recognized to encompass the presumption of innocence. Moreover, the Sixth Amendment, which was also ratified in 1791, expressly recognizes a right to defence counsel in criminal prosecutions.

Yet the lessons of the Salem witch trials have been forgotten at times. For example, a mass hysteria similar to that which broke out in Salem Village also broke out in mid-20th century United States during the Cold War when fears of communist infiltration into the U.S. government reached a fever pitch. Under the 1947 Federal Employee Loyalty Program, U.S. federal employees were dragged before loyalty boards on flimsy suspicions of communist sympathies. About 8,000 employees were forced to resign. At least seven committed suicide. Many compared these events to the Salem witch trials, calling them a “witch hunt”. Arthur Miller famously compared the situation to the Salem witch trials in The Crucible.

REFLECTION

So how do we explain events like the Salem witch trials? How is it that so many people—even well-educated, seemingly fair and moral people—can commit such injustices on such a large scale? And how can they do so when the threat they perceive lives only in their imaginations? The answer, I think, is a combination of social contagion, prejudice and weak institutions.

First, fear is one of the most powerful—and potentially destructive— human emotions. Fear can serve a useful purpose—for example, a healthy fear of snakes has served us well historically. But fear can also drive people to do irrational and even destructive things, as the Salem witch trials demonstrate vividly. The Salem villagers lived in fear of violence and invasion from surrounding areas, the apparent decline of public religious faith and the New World swallowing up their way of life. These fears—all understandable—dominated the villagers’ lives.

The villagers’ individual fears were amplified and dispersed through social contagion. The well-documented phenomenon of social contagion is a process by which attitudes, emotions or behaviours spread rapidly throughout a group of people. This phenomenon was on full display in Salem Village. Even the villagers who were skeptical—even doubtful— about the alleged presence of witches participated in the trials because the whole village had been swept up in social contagion. As the events in Salem demonstrate, there comes a point where an individual belief or emotion reaches a critical mass and becomes a societal belief or emotion. When that belief or emotion is based on fear—especially existential fear—the results can be disastrous.

Second, prejudice undoubtedly played a role in translating social contagion into injustice. For example, the accusation and subsequent prosecution of Tituba were likely due at least in part to her heritage, her appearance and her low social status as a slave. Likewise, the subsequent accusation and prosecution of the two Sarahs were likely due at least in part to the fact that they were social outcasts who shared certain features of the stereotypical witch. Some have also suggested that the trials more broadly reflected misogyny, given that most accused were women, often outspoken women who did not fit societal expectations about how women should act.

Third, weak institutions made it possible for social contagion and prejudice to produce injustice. At the time of the trials, Salem Village was in a state of political and legal chaos. It had no charter at the start of the trials, and the court system devised to administer these trials bore few of the hallmarks of today’s independent and impartial courts—it did not even have legally trained judges. Worse, those who established this system demonstrated a willingness to compromise fairness and justice in the name of expediency. When Governor Phips arrived in Salem, the process of implementing a new royal charter was still in progress. But rather than complete this process, he decided to create a new court with minimal procedural protections and maximum efficiency. The lack of a robust legal framework and due process protections set the stage for the injustices visited on the

accused witches and their families. The presumption of innocence, the right to counsel and the rules against hearsay and character evidence were nowhere to be found.

The Salem Witch Trials remind us why strong legal institutions are so critically important. We will always have fear and prejudice in our society— history has demonstrated that reality time and again. While the targets of that fear and prejudice may change over time, their existence and their overpowering force will not. So we must build and maintain legal institutions that can withstand that force—that will not heed the inevitable calls to do great injustice to the perceived witches of society. These institutions might just be our best antidote against becoming witches ourselves.

ENDNOTES

1. This piece is based on the following sources: Jeff Blumberg, “A Brief History of the Salem Witch Trials”, Smithsonian Magazine (updated 24 October 2022), online: <www.smithsonianmag.com/history /a-brief-history-of-the-salem-witch-trials-1751624 89/>; Robert Calef, More Wonders of The Invisible World (London: Nath. Hillar & Joseph Collyer, 1700); Chicago Public Library, “From Salem to McCarthy” (31 October 2007), online: <www. chipublib.org/from-salem-to-mccarthy/>; Kristina García, “Possessed: The Salem Witch Trials” (11 March 2022), online: <penntoday.upenn.edu/news /possessed-salem-witch-trials>; Frances Hill, The Salem Witch Trials Reader (Cambridge: DaCapo Press, 2000); Peter Charles Hoffer, Law and People in Colonial America (Baltimore: Johns Hopkins University Press, 1998); New England Law, “The True Legal Horror Story of the Salem Witch Trials”, online: <www.nesl.edu/blog/detail/a-true-legal-horrorstory-the-laws-leading-to-the-salem-witch-trials>; Len Niehoff, “Proof at the Salem Witch Trials” (2020) 47:1 Litigation 21; Sarah Pruitt, “How the Salem Witch Trials Influenced the American Legal System”, History (updated 29 June 2023), online: <www. history.com/news/salem-witch-trials-justice-legallegacy>; Benjamin Ray & University of Virginia,

Salem Witch Trials: Document Archive and Transcription Project, online: <salem.lib.virginia.edu/ home.html>; Isaac Ariail Reed, “Between Structural Breakdown and Crisis Action: Interpretation in the Whiskey Rebellion and the Salem Witch Trials” (2016) 3:1 Critical Historical Studies 27; Ronald E Riggio & Clara R Riggio, “Social Contagion” in Howard S Friedman & Charlotte H. Markey, Encyclopedia of Mental Health, 3rd ed (Elsevier, 2023); Salem Witch Museum, “Spectral Evidence” (15 February 2013), online: <salemwitchmuseum.com/ 2013/02/15/spectral-evidence/>; Allyson Schettino, “The Salem Witch Trials: The Real History Behind One of the Most Terrifying Events in Colonial History”, New-York Historical Society (25 October 2019), online: <www.nyhistory.org/blogs/salemwitch-trials>; Jeff Wallenfeldt, “Salem Witch Trials”, Encyclopedia Britannica (6 May 2024), online: <www.britannica.com/event/Salem-witch-trials /The-trials>; John H Wigmore, “The History of the Hearsay Rule” (1904) 17:7 Harv L Rev 437. An earlier version of this paper was presented to the 20 Club.

2. State v Dustin, 122 NH 544 at 551.

3. Wigmore, supra note 1.

FROM OUR BACK PAGES

By R.C. Tino Bel

IENTRE NOUS*

t is one of the world’s great misfortunes that the two occupations which are of the most fundamental importance are those for which there is provided no training: parenthood and politics. It could, we suppose, be said that all of us who are not orphans are experts at the art of parenthood. After all, we spent our childhoods and our teens undergoing practical training. We were all brought up by parents and were able to observe at first hand our own parents at work. However, it is one thing to be at the receiving end of this exercise, aware of all the mistakes that our ill-equipped parents were making and to be determined not to make the same mistakes ourselves. It is quite another to step into the reverse role. As toddlers we did not appreciate the constant pressures and times of desperation, with which our parents had to contend. Nobody offers a course in how to rear children with an inadequate supply of money and with less time than is needed to build a business or a career and also to devote to rearing a family. Worst of all, there were no lessons that taught that it is the long haul that counts: the endless Saturdays shivering in the rain on the sidelines of playing fields; the seeming inability to impart that if they leave their boots outside the tent they will get wet. Even when they get wet, the boots will, with inexorable certainty, be outside the tent the next night. There is no “Parenting 101” which will give instruction in how to

* Reprinted from (1989) 47 Advocate 509.

impart tidiness, cleanliness and politeness to one’s offspring. All our exhortations still seem to result in bedrooms that look as if a burglar had recently ransacked them. The hands still arrive at mealtime coated with a week’s grime. And why is it that a birthday followed by three weeks of creative nagging still fails to cause the thank you letter to be written to Grandmother, a grandmother who, family legend has it, managed to run the farm when Grandpa died and still produce eighteen superbly turned out, well educated and civilized children. The truth was that Grannie did no such thing. She did her inadequate best, living a life of quiet desperation until the last child was off her hands. Parents have a propensity to rose-tint family legends in order to bolster their own efforts. It is a species of family propaganda designed to strengthen pleas for reform.

As G.B. Shaw put it rather more succinctly, “Parentage is a very important profession; but no test of fitness is ever imposed in the interests of the children.”

It is the same with politics. R.L. Stevenson said that “Politics is perhaps the only profession for which no preparation is thought necessary”. Tuition is imparted on the job. The practicality of the matter is that what lessons are imparted to politicians are directed more at the art of getting and staying elected than at how to wield power effectively and wisely.

The lifestyle of a politician, at least at the federal level in Canada, is quite unsatisfactory. It involves constant travelling and endless lobbying from whining constituents who have to be placated at the risk of losing a vote (a classic case of conflict of interest) and tedious meetings in dismal church basements at which the obligatory speech must be delivered. The requirement to follow the party line, or risk never attaining office, strains intellectual integrity. The rewards are peculiar. It is not just that the reward for hard work is more hard work. The rewards are ephemeral and are not always forthcoming. Industrious intelligent members go down to defeat for reasons utterly beyond their control. The whims of the electorate and the fortunes of the party overcome the worth of the candidate.

“[T]he race is not to the swift, nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favour to men of skill; but time and chance happeneth to them all.”

One is driven to wonder why people do it. Is it a streak of power hungry megalomania that draws people into this endeavour? Some must do it because they are tempted by the thought that they can do something useful for their country. So many such people seem to fail to catch the imagination of the voters, the Adlai Stevensons and the Robert Stanfields. Why is this? How could Nixon come so close to beating Kennedy? Was there nobody

more attractive than Lyndon Johnson? Why did Diefenbaker’s tenure of office not live up to the promise of his campaigns? How could a successful, but second-rate actor fire the enthusiasm of an electorate to two terms of office when his foreign and fiscal policies were so patently suspect, his intellect overshadowed by many of his opponents and his faculties, at the end, failing?

President Regan, in fact supplies the answer. It was exactly because of his training as an actor that he was so successful at the polls. He was trained for the celluloid screen. He was so good at it that few who watched him remembered that he was a professional and that all the others were amateurs. They, in comparison to him, stumbled over their lines, made the wrong gestures and distracted the audience from their message. Until old age took away the shine from his ability he wooed the electorate without their realizing how he did it. They loved it and him. He projected without apparent effort an image of sincerity, competence and concern. Because he looked sincere he was viewed as sincere. He looked competent so he must be competent. He appeared concerned and so the electors concluded that he was. That is what they wanted, a president with those qualities, and his opponents, if you can even remember who they were, could not project the necessary image.

A hundred years ago, and indeed up until radio began to be used to impart political messages, the qualities required for election to office included a strong voice and an ability to deal with a hall full of hecklers. The electors expected their politicians to be able to deliver speeches that might have been written by Trollope or Dean Swift. They wanted to be represented by members who could deliver lengthy addresses constructed of grammatically sound sentences delivered by personages well grounded in the classics. Brevity, in those days, does not appear to have been a virtue either in the pulpit or on the platform. An amount of passion and invective was expected. This was so even in the courtroom. Counsel like Carson, Erskine and Sir Edward Marshall Hall, would have to change their style if they were to embark on a career at the bar today. Louis Brandeis, a member of the U.S. Supreme Court from 1916 to 1939, was famous, when he practised in Boston, for the length of his written briefs; so much so that the “Brandeis brief” came to mean any written brief which was unusually long or complicated.

It was the age of the orator before the medium of radio. It produced people like Sir John A. Macdonald who put down a heckler inveighing about his insobriety with:

I know enough of the feeling of this meeting to know that you would rather have John A. drunk than George Brown sober.

The elegant Sir Wilfred Laurier charmed votes from electors in two languages. On the subject of the hanging of Louis Riel he said:

Had I been born on the banks of the Saskatchewan, I would myself have shouldered a musket to fight against the neglect of governments and the shameless greed of speculators.

Wearied by the unconstructed streams of consciousness produced by some of today’s politicians, one yearns for the intellect that appears to have been able to produce that kind of turn of phrase. What it did, of course, was produce the image of an educated, intelligent and able speaker. Abraham Lincoln was just such a politician. His most famous speech was the dedication in 1863 of the National Soldiers Cemetery at Gettysburg. Contrary to the custom of the age it was brief: only 267 words long. On that occasion he said:

Fourscore and seven years ago, our fathers brought forth upon this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation - or any nation, so conceived and so dedicated - can long endure.

We are met on a great battle-field of that war. We are met to dedicate a portion of it as the final resting place of those who have given their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hallow, this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our power to add or to detract.

The world will very little note nor long remember what we say here; but it can never forget what they did here.

It is for us, the living, rather, to be dedicated, here, to the unfinished work that they have thus far so nobly carried on. It is rather for us to be here dedicated to the great task remaining before us; that from these honoured dead we take increased devotion to that cause for which they here gave the last full measure of devotion; that we here highly resolve that these dead shall not have died in vain; that the nation shall, under God, have a new birth of freedom, and that government of the people, by the people, for the people, shall not perish from the earth.

Lincoln ran that speech up the night before the dedication.

Of all the politicians whom we know today, perhaps only [Pierre Elliott] Trudeau and Kennedy could come close to matching the brilliant oratory of the better Victorian and Edwardian politicians. Those times were the days of the one sentence put down, laced with invective and wit. Disraeli, speaking of Gladstone: A sophistical rhetorician inebriated with the exuberance of his own verbosity.

And on the subject of Sir Robert Peel:

The right honourable gentleman’s smile is like the silver fittings on a coffin.

Of course, history only remembers the outstanding speakers. Those days must have had their fair share of bumblers and incompetents who have long since faded into well-earned oblivion.

Then came radio. It changed the style of political oratory and changed the image that attracted votes. It reached more of the electorate and into their homes. The speaker was heard but not seen. Because radio listeners were not captive in a hall, they were easily distracted. Their attention span was less. The voice was all important. Old fashioned oratory thus disappeared. It was now all in the voice, the timbre and intonation and the pace of delivery. The speaker was no longer susceptible of interruption by hecklers. The speech could be read. It could be rehearsed, it could be recorded, replayed, tried again. Thus it was that President Roosevelt managed to get elected to four terms. He was magnificent on radio. One remembers his fireside chats broadcast to a nation eager to be looked after and led out of a depression. His voice exuded confidence and ability.

Few people remember the voice of Mackenzie King. He had a voice peculiarly suitable for radio. Shrewd, wily and manipulative as he was, it was really his voice that endeared him to the nation. It was the voice of a rich uncle who was going to look after you for the rest of your life, who would protect you from political catastrophe. What he said was usually written by others, Leonard W. Brockington, in particular. But it mattered not. The image projected over the airways was what garnered the votes.

Winston Churchill, though brought up as an old-fashioned public speaker, adapted finely to radio. His downfall came when he had to do it on television. The British promptly elected a Labour government. This may have been going to happen any way, but there is little doubt that Winston Churchill was not effective on this new medium.

Television requires the projection of a different image. Those who are photogenic do well; small people with finely cut features. It is important not to move very much on television. Whereas the actor on the stage can pace about the stage and indulge in the broad gesture while delivering his lines, this will not do on television. You disappear off the screen. The eye is much more concentrated on the features. Perhaps the most striking example of how some project better on television than others is the difference between Pierre Trudeau and Joe Clark. Seen on television nobody would realize that Trudeau is six inches shorter than Clark. Clark’s features are not photogenic. He was never successful on television. The odd thing was that the

image was reversed when the two were observed in operation on the floor of the House of Commons. Trudeau there appeared to be a small insignificant little man whereas Clark was a large dominating figure with a voice that could be heard in every comer. The change was dramatic. But the mass of voters only saw them on television.

Think, for a moment, of the difference between the present Prime Minister [Brian Mulroney] and the Leader of the Opposition. John Turner should have enrolled for a course at a drama academy. His style is unsuited to television. His delivery consists of short bursts of machine gun-like sentences with pauses that give the impression that he is trying to remember the script. He isn’t, of course, but that is the unfortunate impression. Then there is the nervous cough so apparent on television but unnoticed on a platform, the bright blue eyes as if lit by 100-watt bulbs project an image of wolf-like unpredictability. It is all image. In the flesh, Turner, if one did not know who he was, might be taken for a cautious and successful banker.

Politics is about prediction and policies. The politicians work out the policies which they hope will attract the voters. The voters try to predict whether or not the particular politician is going to be able to implement those policies, to predict whether the politician really means to do so and predict how capably the politician is going to be able to react in situations unforeseeable at the time of election. Television is now the medium by which these people are judged. One wonders how Sir John A. would fare today. His features are, if anything, less photogenic than Joe Clark’s. He would never be able to provoke a television audience to laughter and affection over his inebriety. His long speeches would have to be restructured. Indeed, one wonders if he would be able to get elected at all.

These observations bring into proper perspective Marshall McCluhan’s well-known but little understood aphorism that “the medium is the message”.

Join Access to Justice in French in BC for a landmark event celebrating progress in legal services for French-speaking residents of British Columbia. Featuring Right Honourable Richard Wagner, Chief Justice of the Supreme Court of Canada, and Honourable Leonard Marchand, Chief Justice of BC, and a piano recital from award-winning virtuoso Jean-Philippe Sylvestre. FEBRUARY 5, 2025

5:00 PM – 10:00 PMWESTIN BAYSHORE, VANCOUVER

RSVP BY:JANUARY 15, 2025 CONTACT

Maria Vigneault at m.vigneault@ajefcb.onmicrosoft.com

BENCH AND BAR

Famous artists born in January include John Singer Sargent (January 12, 1856), Berthe Morisot (January 14, 1841), Paul Cézanne (January 19, 1839), Edouard Manet (January 23, 1832) and Jackson Pollock (January 28, 1912). Courtrooms house both art critics and fans who invoke the names of favoured artists to paint a thousand words …. we invite you to turn the pages of the art catalogue below, and read as well about the colleagues who have been painting the town red, otherwise engaging in adventures that are far more engaging than watching paint dry, and painting arguments with a broad brush but never painting themselves into corners.

Kellan McKeen is now senior legal counsel at M Renewables, Metlen Energy & Metals in Squamish, having previously practised at Lawson Lundell. Alexandra Mitretodis forsakes Vancouver by moving from Faskens to take up a position as senior corporate counsel at Microsoft in Seattle. Bao Nguyen joins Harper Grey from Whitelaw Twining. Alanna A. Crouse moves from working with Alison Latimer, K.C. (now a judge of the B.C. Supreme Court) to join Ethos Law Group. Angela Yadav joins Vancity as Chief Legal Officer, having previously been with RBC. Kristian N. Arciaga returns to Faskens after a two-year stint with Aird & Berlis. Brittney S. Dumanowski is now with the City of Vancouver having been with Owen Bird. Jillian Foster is now with KSM Lawyers after moving from Alder Law. Thelma Zindoga joins Lawson Lundell after a stint with Blake, Cassels and Graydon. Ronald Josephson , once with Singleton Urquhart Reynolds

Lawyers who have moved their practices should e-mail details of their past and present circumstances to Peter Roberts, K.C., at <benchandbar@the-advocate.ca> to ensure an appearance in “Bench and Bar”. Note that we do not report changes in lawyers’ status within their firms (from associate to partner, for example) other than in cases where persons formerly articled have been hired as associates.

Vogel, takes up the post of president of The Resolution Network. Sherryl A. Dubo is now with Dentons, having previously been at McMillan Dubo Law Group in Kamloops. Cen F. Yang moves to Harper Grey from Singleton Urquhart Reynolds Vogel.

Candace L. Formosa moves down Georgia Street from Norton Rose Fulbright to Lawson Lundell. Emily J. Raymond departs Lawson Lundell to join the Mitha Law Group. Cozen O’Connor ingests 13 lawyers from Clark Wilson. Moving over to Cozen O’Connor are Virgil Z. Hlus, Cam McTavish, Chantal M. Cattermole, Jeannette Aucion, Alexa R. Benzinger, Kimberly Brown, Alex J.M. Farkas, Kyle J. Gough, Manveer S. Sall, Jun Ho Song, Andrew B. Stewart, Sarah E. Tradewell and Aleisha M. Zanic. Also moving from Clark Wilson are Brian C. Poston, Samantha Ip, Sean A. Tessarolo, Bo S.L. Carter, Denny V.C. Chung, Jacob L. Foster and Imroz S, Ali, all of whom land at DLA Pipper. Rosalie A. Clark moved from Clark Wilson to join DLA Piper as well. Andrew D.M. Pike recently joined Beacon Law in Victoria, having been with Pike Law & Private Client Services. Rithu N. Mahil moves from Southern Butler Price to start Mahil Mediation and Arbitration. Jakub Czypinski sashayed down Georgia Street from Norton Rose Fulbright to join Gudmundseth Mickelson. Parveen B. Karsan is now with Singleton Urquhart Reynolds Vogel, having formerly been at McQuarrie Hunter.

2025 is the Year of the Snake. Happy Lunar New Year!

The Brazen Serpent is among the paintings by Peter Paul Rubens, the Flemish artist. His father was a lawyer and alderman in Antwerp.

Henri Matisse attended law school and, in 1888, passed his exams. Until he had a severe case of appendicitis in 1889, he worked as a law clerk. His mother provided a box of oil paints to entertain him during his recovery and he became entranced with the world of art.

Mr. Justice Peter H. Edelmann was translated to the B.C. Court of Appeal. Justice Edelmann replaces Justice Peter Willcock, who elected to become a supernumerary judge effective June 19, 2024. Justice Geoffrey B. Gomery was more recently translated to the B.C. Court of Appeal. He replaces Justice Peter Voith, who elected to become a supernumerary judge effective September 1, 2024.

Scott Morishita, associate counsel at Rice Harbut Elliott and former president of the Canadian Bar Association, BC Branch, was appointed as a judge of the Supreme Court of British Columbia in Vancouver. He replaces Jus-

tice Edelmann, who was, as noted above, translated to the Court of Appeal for British Columbia, effective October 25, 2024. Elin Sigurdson, K.C., a partner with Mandell Pinder, was appointed as a judge of the Supreme Court of British Columbia in Vancouver. She replaces Justice Gomery, whose elevation to the Court of Appeal for British Columbia was on November 8, 2024. Lindsay R. LeBlanc, K.C., who practised at Cox Taylor in Victoria, was appointed a justice of the Supreme Court of British Columbia. She replaces Justice A.J. Saunders who became a supernumerary judge on November 26, 2024.

“Algonquin Park, affectionately referred to simply as the ‘Park’, for those of us who were lucky enough to have been bred and educated by its splendour, or viewed its marvels through the landscapes painted by Tom Thomson and others of the Group of Seven, was the prescient creation of the Ontario Government in the late 1800’s when the preservation of nature and natural habitats was not in the forefront of our collective psyches”: Kates Estate, 2020 ONSC 7046.

“A Michelangelo should not charge Sistine Chapel rates for painting a farmer’s barn”: Ursic v. Bethlehem Mines, 719 F.2d 670 (3rd Cir. 1983).

The Mona Lisa has hung in the Louvre since 1797. Leonardo Da Vinci’s famous portrait is purportedly of Italian noblewoman Lisa del Giocondi (née Gherardini). In all that time, the painting has only been stolen once: in August 1911 by Vincenzo Peruggia, an Italian museum worker. Peruggia worked at the Louvre cleaning and reframing paintings. He hid the painting in a trunk in his apartment for two years before returning to Florence with it. He was eventually caught, and the painting recovered, when he sought a reward for its return. Unsurprisingly, the Mona Lisa is regularly mentioned in case law even outside criminal prosecutions:

•Noting that the “special circumstances” invoked to protect certain information from disclosure had not been precisely defined, a court noted: “What [the circumstances] are remains as enigmatic as the smile that Leonardo Da Vinci left us on the face of the Mona Lisa”: Vingelli v. United States of America, 992 F.2d 449 (2d Cir. 1993).

•“A chop shop creation is not a General Motors creation….It is the difference between the original Mona Lisa painting and a forgery. Just because they might look alike does not mean that they are the same thing”: Waylor Contracting Ltd. v. Kipp Scott Pontiac Buick Ltd., 1998 ABQB 821.

•The collective agreement was “far from a ‘Mona Lisa’ when it comes to legal draftsmanship with a focus on clarity”: Saskatchewan Government and General Employees’ Union v. Mobile Crisis Services Inc., 2013 CanLII 85054 (Sask. L.A.).

Wikipedia explains that Nihonga “is a Japanese style of painting that uses mineral pigments, and occasionally ink, together with other organic pigments on silk or paper. The term was coined during the Meiji period (18681912) to differentiate it from its counterpart, known as Yoga …or Western-style painting.”

The inaugural Selwyn Romilly Memorial Award was recently bestowed by the Canadian Association of Black Lawyers on co-recipients Arlene H. Henry, K.C., and Jacy J. Wingson, K.C

Mary Cassatt, an Impressionist painter, was born in Allegheny City, Pennsylvania (a Pittsburgh-area location familiar to many U.S. election watchers) but lived for much of her life in France.

Justice Elliott Myers, once of Bull Housser & Tupper, retired from the Supreme Court of B.C. on July 31, 2024. After a suitable break, he anticipates taking up mediations and arbitrations.

Paul Cézanne attended law school at the University of Aix-en-Provence in 1859–1861 but increasingly devoted his time to drawing, painting and poetry. He persuaded his father to let him study painting in Paris.

Artemisia Gentileschi was an Italian Baroque painter whose works include Judith slaying Holofernes

“Solanum tuberosum, the potato, is one of the main food crops of the world…. The potato’s origin can be traced back some 1,800 years to the PeruvianBolivian Andes….The potato arrived in Europe at the end of the 16th century, aboard Spanish treasure ships….Once established, the potato became the staple food of the poor of Europe. Vincent Van Gogh’s ‘The Potato Eaters’ (1885) depicts a Dutch coal mining family sharing a meals of potatoes and coffee. Van Gogh did several versions of this painting, which remains a famous masterpiece”: Idaho Potato Com’n v. M&M Produce Farms & Sales, 35 F. Supp. 2d 313 (S.D.N.Y. 1999).

Wikipedia says that the largest art theft in the world occurred in Boston on March 18, 1990, when thieves broke into the Isabella Stewart Gardner

Museum and stole 13 pieces, collectively valued at $500 million. Among the pieces stolen was Vermeer’s The Concert, which is considered to be the most valuable painting ever stolen with an estimated worth of US$10 million.

Rose Keith, K.C., was named as a recipient of the Women in Law Leadership (WILL) Stronger Together Award.

Clementine Hunter was a Black self-taught artist born in late 1886 or early 1887 in Louisiana. She lived and worked for most of her life on Melrose Plantation and started painting in her 50s, with her subject matter focused on life at and around the plantation. Melrose Plantation’s owner ran an artist’s colony there, and Hunter first painted using paint and brushes left behind by a visiting artist.

Alphonse Mucha was “[a] Czech who lived for many years in Paris, and at the turn of the [20th] century was one of its most prominent resident artists”. He “figures importantly in the history of modern art. In some quarters he is regarded as the originator of Art Nouveau, which indeed for a time was called ‘le style Mucha.’”: Mucha v. King, 792 F.2d 602 (7th Cir. 1986).

The Walrus reports that the largest art heist in Canadian history occurred in the early morning hours on September 4, 1972 at the Montreal Museum of Fine Arts (“MMFA”). Three burglars scaled a tree to the roof, bound and gagged the security guards at gunpoint and began to ransack the place. However, one of them unwittingly tripped an alarm, necessitating a quick exit out a side door. They made off with a bunch of jewellery and figurines as well as 18 canvasses, including paintings attributed to Gustave Courbet, Eugène Delacroix, Jan Davidsz de Heem, Thomas Gainsborough and Peter Paul Rubens. The most valuable piece taken was Landscape with Cottages, a work credited to Rembrandt. The MMFA estimated the value of all the stolen art was $2 million.

The Beaver Hall Group was a Montreal-based group of Canadian artists in which women, including Mabel Lockerby and Lilias Torrance Newton, played a central role. Various of its women members exhibited their paintings with the Group of Seven internationally. Newton is reportedly the first Canadian commissioned to make a portrait of either Queen Elizabeth II or Prince Philip. She painted portraits of both in 1957.

Sofonisba Anguissola, mentioned in an earlier issue of the Advocate, was an Italian Renaissance painter who was at one time an official court painter to Spain’s King Philip II.

The Honourable Wally Oppal, K.C., was appointed to the board of directors of the ADR Institute of British Columbia.

Henri de Toulouse-Lautrec “tried to prevent forgeries by secretly adding a small symbol to his works. However, since he kept the symbol a secret, many expert examiners have been unable to refer to it”: Balog v. Center Art Gallery-Hawaii, Inc., 745 F. Supp. 1556 (D. Haw. 1990).

“The Lake of the Woods area located in Northwestern Ontario, also known as Sunset Country, is a summer paradise. The combination of towering pines, granite outcroppings and beautiful lakes [conjures] images of Group of Seven paintings and beckons thousands of visitors each year to its shores”: G. Keck & Son’s Contracting Ltd. v. Doyle, 2003 CanLII 41123 (Ont. S.C.).

Nomenclaturally, British Columbia is not an artist-friendly place. There is an Artist Point Mountain in Kootenay National Park but it exists only because it was mis-labelled on a map in 1946. There is also an Art Creek, north of Canim Lake, an Art Pond, north of Mount Boucherie in West Kelowna, and a Paint Lake, west of Upper Arrow Lake. Art Creek is not even named in celebration of creativity but rather was originally bestowed on a creek crossing by Arthur Divian, who pre-empted a nearby land parcel in December 1910.

There is an Emily Carr Inlet, named for the famous Victoria painter and writer. The inlet is on the west side of Princess Royal Island to the west of Doig Anchorage.

Emily Carr University of Art and Design was designated as a special purpose, teaching university under the Designation of Special Purpose, Teaching Universities Regulation, B.C. Reg. 220/2008.

“If you made a contract with John Singer Sargent for him to paint your portrait, he could not assign his contractual duty to another painter without your consent”: Morlan v. Universal Guaranty Life Insurance Company, 298 F.3d 609 (7th Cir. 2002).

David Goatley paints the portraits that appear on the covers of the Advocate. He is based on Vancouver Island but has painted the portraits of individuals across the world.

Tintoretto was a “tempestuous Italian Renaissance painter” whose real name was Jacopo Robusti. “Because his father was a dyer or ‘tintore,’ he was

called ‘Tintoretto’ or little dyer. He lived his entire life (1518-1594) in Venice, Italy. He was, along with Titian and Veronese, one of the masters of the Venetian School during the period of the High Italian Renaissance”: United States of America v. One Tintoretto Painting Entitled ‘the Holy Family with Saintcatherine and Honored Donor’, 691 F.2d 603 (2d Cir. 1982).

Jessica Berglund, formerly the director of Occupational Health and Safety (fatalities and serious injuries) Investigations at WorkSafeBC, has been appointed the Chief Civilian Director of the Independent Investigations Office of BC for a five-year term.

Britannica explains that Xie He collated or invented the “Six Principles” of Chinese painting, which “generally…may be paraphrased as follows: creativity (or ‘spirit resonance’), structural use of the brush, proper representation of objects, specific coloration of those objects, good composition, and transmission of the old masters by copying them. These became the basic standards of both the Chinese painter’s training and the critic’s judgment.”

Wassily Kandinsky, a Russian painter, studied law and economics at the University of Moscow. He was offered the position of chair of Roman law at a university in what is now the country of Estonia, but increasingly spent his time on art.

The Court of Chancery of the State of Delaware has observed that “[c]ontract damages are not like some works of abstract art; the plaintiff cannot simply throw its proof against the canvas and hope that something recognizable as damages emerges”: Zayo Group, LLC v. Latisys Holdings, LLC , C.A. No. 12874-VCS (2018).

“[A] Commissioner of Deeds may run his or her pen amuck on the signature line, with little or no relationship to any of the twenty-six letters of the modern English alphabet taught for approximately the last half-millennium in kindergarten, or the cursive version thereof, taught in third grade. Like the rest of us, it is his or her right to have a signature that looks like a Jackson Pollock painting”: Streng v. Westchester County Bd. of Elections, 2015 NY Slip Op 25278.

“Pablo Picasso (1881-1973) is the noted Spanish artist who is widely acknowledged to be one of the most important artists of the 20th century. Though Spanish by birth, Picasso lived most of his life in France”: Harris v. City of Chicago, 218 F.Supp. 2d 990 (N.D. Ill. 2002). Picasso “created more than one hundred thousand works of art prior to his death in 1973”: Museum

Boutique Intercontinental, Ltd. v. Picasso, 886 F.Supp. 1155 (S.D.N.Y. 1995). This may in part be because of the long duration of his creative period: “In creative fields, such as literature and the performing arts, certain older individuals continue to contribute long after ‘normal’ retirement age; examples include Will Durant, who published the last volume of his Story of Civilization when he was in his 80s, great artists such as Pablo Picasso, and such musical notables as Arturo Toscanini, Leonard Bernstein and Herbert von Karajan”: Dickason v. University of Alberta , [1992] 2 S.C.R. 1103, per L’Heureux-Dubé J., dissenting.

The Artylyst website lists Pablo Picasso as the most stolen artist “by a long shot.” Over 1,100 Picasso’s artworks have been reported stolen over the years.

“If there were only one truth, you couldn’t paint a hundred canvases on the same theme”: “Pablo Picasso, quoted in Helene Parmelin, Picasso Says ‘Truth,’ tr. 1969”, cited in Penguin Books U.S.A. Inc. v. New Christian Church of Full Endeavor, Ltd., 288 F. Supp. 2d 544 (S.D.N.Y. 2003).

Norman Rockwell is the official artist of the commonwealth of Massachusetts: MA Gen L ch 2 §58 (2023). His name and style of painting are often invoked in case law. For example:

•“Family life does not take place within the frame of a Norman Rockwell painting”: Todd v. Walker, 2009 BCSC 677.

•“When we look to the historical record, we hope that it resembles a Norman Rockwell painting – a poignant, straightforward, and easy to interpret representation. But frequently it does not. In some cases, like this one, the historical record is more like a Jackson Pollock”: South Salt Lake City v. Maese, 2018 UT 58.

•“New Jersey jurors do not now, if they ever did, fit the portrait of rustics, in the style of Norman Rockwell, who have come to court to be entertained by lawyers. Jurors today are far more sophisticated”: DeHanes v. Rothman, M.D. (A-167-97).

The McMichael Canadian Art Collection Act, R.S.O. 1990, c. M.4, continues the named corporation with objects including “to acquire and preserve art works, objects and related documentary materials for the collection, by or about artists who have made or are making a contribution to the development of Canadian art, with a focus on the Group of Seven and their contemporaries and on the aboriginal peoples of Canada”.

Frida Kahlo was a Mexican painter who persevered in her work despite suffering from poor health through her lifetime, including as the result of a serious bus accident when she was 18. Her life has also inspired various other artistic works including operas and ballets.

Lawren Harris Day Act, 2017, S.O. 2017, c. 32 proclaimed October 23 in each year as Lawren Harris Day, in honour of (as stated in the statute’s preamble) Lawren Harris, “a Canadian painter born in Brantford, Ontario to a great industrial family. He is credited with being the driving force behind the formation of the Group of Seven. Along with the Group of Seven, Lawren Harris pioneered a distinctly Canadian painting style. His work is an integral aspect of Canadian art and is recognized worldwide. He painted many Ontarian landscapes during his professional career.”

Georgia O’Keeffe Memorial Highway is the designation of that part of the route of STH 19 from Sun Prairie (her birthplace in 1887) to Marshall in Dane County, Wisconsin: WI Stat §84.1021 (2023).

The VBA annual general meeting was held November 26, 2024. Apparently without any bun tossing, the vote for new board members took place and saw each of the following elected: Sabrina Chang of Faskens, Natasha Cooke of Harper Grey, Yu (Roy) Lou of Blakes, Debbie J. Preston of Harris & Co., Shirley Yan of MLT Aikens and Alan C. Yuen of Dentons Canada. See also “News from the Vancouver Bar Association”, starting at page 69 of this issue.

Kazuo Nakmura, a Japanese-Canadian artist, was born in Vancouver in 1926. He commenced his training in art at the Vancouver Technical Secondary School in 1940 but, during World War II, was incarcerated at the Tashme detention camp in what is now Sunshine Valley: see “Legal Anecdotes and Miscellanea” (2024) 82 Advocate 919. He continued to paint at the camp, at the end of the day. Given the restrictions that remained after World War II on the return of Japanese Canadians to the west coast, he moved to Hamilton and then Toronto, where he was a founding member of the “Painters Eleven”, a group of abstract artists, in the 1950s.

“The picture painted by the plaintiffs, with their counsel as the artist, was not realism, as it must be for the jury to rationally ascertain and decide the truth, but surreal, a Dali (Salvador Dali, a surrealist painter, known for the illogical and inconsistent images of his paintings)”: Fineman v. Armstrong World Industries, Inc., 774 F.Supp. 225 (D.N.J. 1991).

The Court of Special Appeals of Maryland seized the opportunity to invoke Dali in a case in which an individual was injured stepping down from a patio to a lawn. The patio was higher than the lawn but not by much: they were both at ground level rather than being on separate storeys. In the circumstances, the court rejected the appellant’s attempt to invoke law regarding staircases:

The appellant's case, in Procrustean fashion, attempted to impose staircase law on a non-staircase problem….To step down from the patio to the lawn is not to descend a staircase. The patio of the Glenview Mansion is a commodious venue for cocktail parties, receptions, and other convivial gatherings. Weather permitting, such gatherings would be expected to spread out onto the surrounding lawn. From every point along the outward-facing perimeter of the patio, 20 or 25 guests could, should they choose to march abreast, step out simultaneously onto the surrounding lawn without being channeled into one or more stairways.

….It is the appellant's argument that a staircase, meeting fully the applicable City of Rockville specifications, should have been sprouted downward from that spot [from which she fell]. If, however, the appellant had paused on the near side rather than the far side of that column, should another staircase have sprouted downward from that spot? If, moreover, the appellant had initially veered to her left rather than to her right, should yet another staircase have sprouted downward from that lefthand column? Or two, perhaps, one from the near side and one from the far side?

As the patio faced out onto the lawn of the Mansion, its frontage was punctuated by four vertical columns, providing at least three openings facing forward onto the lawn. A fourth opening onto the lawn was afforded by the abutting depth of the patio itself between the fourth column and the side wall of the Mansion. Even if stepping down from the patio onto the lawn could, arguendo, be assumed to have implicated the full fury of staircase law, there is the question of how many staircases would then be required. Each of the four openings of the perimeter could accommodate at least two, and conceivably three, parallel stairways for a grand total of between eight and twelve such staircases for a surrealistic monstrosity instead of a gracious patio and lawn. If the appellant's position were pushed to the limits of its logic, the patio of the Glenview Mansion could be transformed into a Daliesque cornucopia of overflowing staircases.

To step from patio to lawn, albeit involving three steps instead of one, strikes us as an action far more akin to stepping off a curb or stepping from one level of a split-level living room to another than it is to descending a staircase. There may, to be sure, be hazards involved in taking such steps, but they would be hazards other than staircase hazards….

Thought du mois:

Art is the only way to run away without leaving home.

—Twyla Tharp

American dancer, choreographer, and author (1941–)

CONTRIBUTORS

Connor Bildfell is a partner in the litigation group at McCarthy Tétrault where he focuses on complex corporate/commercial litigation, class actions, privacy and public law matters. He has appeared at all levels of court, including the Supreme Court of Canada. He is a seasoned Newbie (a former clerk for Justice Mary Newbury), albeit a newer Newbie than some older Newbies.

Geoffrey Cowper, K.C., is familiar to readers of the Advocate, and familiar to the bar and bench of British Columbia as well as the bench of the Supreme Court of Canada. He is a partner at Fasken in Vancouver and is involved in complex commercial litigation. He is a former chair of the BC Justice Reform Initiative and a former provincial chair of the American College of Trial Lawyers.

Tim Dickson is a partner at JFK Law in Vancouver where his focus is on Aboriginal, constitutional, administrative and commercial law. Another familiar face before the Supreme Court of Canada, Tim can add adjunct professor of Aboriginal law at the Peter A. Allard School of Law to his list of many accomplishments.

Tyler Holte practises family law, wills and estates, and corporate/commercial law in the Fort St. John offices of Callison Holte Law Corporation. He previously worked in Dawson Creek and is a former chair of the board of governors for the Northern Lights College and current member of the board of directors for North Peace Community Foundation.

Hamar Foster, K.C., is professor emeritus at UVic Law. A former Commonwealth Scholar and Woodrow Wilson Fellow, Hamar clerked for the Chief Justice of British Columbia before establishing Prowse, Williamson & Foster as outlined in the two-part article that concludes in this issue. Hamar is well versed in the legal and political history of British Columbia and is a wealth of information for those with similar interests.

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Yun Li-Reilly is another accomplished Newbie who is now a partner at Farris LLP where she practises in the firm’s litigation and family departments. Among many accomplishments (including marathon running), Yun is a coauthor of the procedural text British Columbia Annual Practice, which probably makes her one of the most widely read legal authors in British Columbia.

James Tate is a partner at Ratcliff & Co. where he practises Aboriginal law as both a litigator and a negotiator. James is also general counsel for several First Nations and has successfully negotiated significant settlements with both the federal and provincial Crowns. In his spare time, James is a svelte long-distance cyclist. Very demure. Very mindful.