January 2024 by Advocatemagazine

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OFFICERS AND EXECUTIVES

CANADIAN BAR ASSOCIATION

LAW SOCIETY OF BRITISH COLUMBIA

BRITISH COLUMBIA BRANCH

Jeevyn Dhaliwal, K.C. President

BOARD OF DIRECTORS

Brook Greenberg, K.C. First Vice President

Scott Morishita President

Lindsay R. LeBlanc, K.C. Second Vice President

Lee Nevens First Vice President

Don Avison, K.C. Chief Executive Officer and Executive Director

Mylene de Guzman Second Vice President

BENCHERS APPOINTED BENCHERS Paul A.H. Barnett Sasha Hobbs Dr. Jan Lindsay

Michèle Ross Natasha Tony Guangbin Yan

Dan Melnick Young Lawyers Representative Rupinder Gosal Equity, Diversity and Inclusion Representative

ELECTED BENCHERS Aleem Bharmal, K.C. Tanya Chamberlain Nikki Charlton Jennifer Chow, K.C. Christina J. Cook Cheryl S. D’Sa, K.C. Tim Delaney Brian Dybwad Ravi Hira, K.C. Lindsay R. LeBlanc, K.C. James A.S. Legh Benjamin Levine

Judith Janzen Finance & Audit Committee Chair

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 Gaynor C. Yeung Jonathan Yuen

BRITISH COLUMBIA BAR ASSOCIATIONS

Michelle Casavant Aboriginal Lawyers Forum Representative Patricia Blair Director at Large Adam Munnings Director at Large Randolph W. Robinson Director at Large Sarah Klinger Director at Large

ELECTED MEMBERS OF CBABC PROVINCIAL COUNCIL

ABBOTSFORD & DISTRICT

PORT ALBERNI

CARIBOO

Kirsten Tonge, President

Christina Proteau, President

Nathan Bauder Jon Duncan Nicholas Maviglia

CAMPBELL RIVER

PRINCE GEORGE

Ryan A. Krasman, President

Marie Louise Ahrens, President

CHILLIWACK & DISTRICT

PRINCE RUPERT

Nicholas Cooper, President

Bryan Crampton, President

COMOX VALLEY

QUESNEL

Michael McCubbin Shannon Aldinger

Karen Surcess, President

COWICHAN VALLEY

Dennis Zachernuk, President

Jeff Drozdiak, President

FRASER VALLEY Michael Jones, President

KAMLOOPS Kelly Melnyk, 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

SALMON ARM SOUTH CARIBOO COUNTY Angela Amman, President

SURREY Peter Buxton, K.C., President

VANCOUVER Executive Heather Doi President

KOOTENAY Jamie Lalonde Christopher Trudeau

NANAIMO Johanna Berry Patricia Blair Ben Kingstone

PRINCE RUPERT Emily Beggs

Graham Hardy Lisa Jean Helps Bruce McIvor Heather McMahon Heather Mathison

VICTORIA J. Berry Hykin Cherolyn Knapp Kimberley Nusbaum

WESTMINSTER Manpreet K. Mand Daniel Moseley Matthew Somers Sarah Weber

VANCOUVER

YALE

Joseph Cuenca Bahareh Danael Nicole Garton Diane Gradley

Mark Brade Laurel Hogg Aachal Soll

Sean Gallagher Vice President Zachary Rogers Secretary Treasurer Niall Rand Past President

VERNON Chelsea Kidd, President

VICTORIA Marlisa H. Martin, President

CANADIAN ASSOCIATION OF BLACK LAWYERS (B.C.) Zahra Jimale, President FEDERATION OF ASIAN CANADIAN LAWYERS (B.C.) Fiona Wong, 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

Ryu Okayama, President

THE

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Entre Nous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . On the Front Cover: Jeevyn Dhaliwal, K.C. By Clayton Caverly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 Years of Resilience: Reflections on the “Chinese Exclusion Act” By David How, Talia Gukert, Russell Chiong and Rhythm Jethi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Vancouver’s Cannabis Exclusion Zone: Is It Charter-Compliant? By Delaney Ignatieff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Real Estate Agency Law in British Columbia – Part II By Bruce Woolley, K.C. . . . . . . . . . . . . . . . . . . . . . . . . . . A Practical Guide in Determining When to Charge Provincial Sales Tax on the Provision of Legal Services By Thomas D. Ciz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Value of Lawyers at Mediations By David A. Paul, K.C. . . . . . . . . . . . . . . . . . . . . . . . . . . The Wine Column . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . News from BC Law Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . News from CLEBC Society . . . . . . . . . . . . . . . . . . . . . . . . . . . . News from Courthouse Libraries BC . . . . . . . . . . . . . . . . . . . . . LAPBC Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . View from the Centre . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Announcing the 2024 Advocate Short Fiction Competition . . . Peter A. Allard School of Law Faculty News . . . . . . . . . . . . . . . TRU Law Faculty News . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Attorney General’s Page . . . . . . . . . . . . . . . . . . . . . . . . . . . Nos Disparus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . New Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Letter to the Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Classified . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal Anecdotes and Miscellanea . . . . . . . . . . . . . . . . . . . . . . . Bench and Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Gracing our equivalent of an album cover, Jeevyn Dhaliwal, K.C., is the new president of the Law Society of British Columbia. Read her remarkable story starting on page 15 of this issue.

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ENTRE NOUS

In the wake of the 2020 presidential election, I believed that challenging the results on behalf of President Trump should be pursued in a just and legal way. I endeavored to represent my client to the best of my ability. I relied on others, including lawyers with many more years of experience than me to provide me with true and reliable information, especially since my role involved speaking to the media and to the legislators in various states. What I did not do, but should have done, Your Honor, is to make sure that the facts that the other lawyers alleged to be true were, in fact, true. In the frenetic pace of attempting to raise challenges to the election in several states, including Georgia, I failed to do my due diligence.

ust”. “Legal”. “Best of my ability”. “Relied on others”. “Due diligence”. There is much to unpack in this portion of the apology letter written (and tearfully read into court) by Jenna Ellis, a lawyer for former president Donald Trump, after she pleaded guilty to a felony charge of aiding and abetting false statements in connection with efforts to overturn the results of the 2020 U.S. election. Ellis, then 38, and a lawyer who obtained her law degree 12 years earlier, had previously held herself out as both an “attorney for the U.S. Department of State” and a “professor of constitutional law”. In fact, she had never been an attorney for the U.S. State Department but had worked for an electronic discovery company that assisted the department; she had also been an assistant professor of legal studies teaching political science and pre-law to undergraduate students at Colorado Christian University—a university that does not have a law school. Ellis appears to be part of that baffling group of people who will say anything to advance themselves, whether it is true or not. “

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Immediately after law school, she became a deputy district attorney in Weld County, Colorado, prosecuting traffic offences and low-level misdemeanours. She held the position for a little over six months before being fired. Thereafter she went into private practice. By 2015, Ellis had selfpublished a book titled The Legal Basis for a Moral Constitution: A Guide for Christians to Understand America’s Constitutional Crisis, where she argued that the Constitution of the United States should only be interpreted according to the Bible (probably news to the framers of that document, but that is a discussion for another day). Although initially a fierce critic of Donald Trump, in particular questioning his Christian credentials, she did an aboutface, coming to describe him as “a sincere Christian, the best president in modern history”. By then she had become a senior legal advisor on the Trump team. It was here that she became involved with “lawyers with many more years of experience” including Rudy Giuliani (who obtained his law degree in 1968) and John Eastman (who obtained his law degree in 1995). It was as part of this “elite strike force” (her words) that Ellis found herself engaged with a team of lawyers responsible for 62 lawsuits contesting the U.S. presidential election processes, vote counting and vote certification. All those lawsuits were thrown out, withdrawn or abandoned. Most were dismissed due to a complete lack of evidence or being found to be frivolous or otherwise entirely without merit. That is a staggering set of losses for anyone, let alone an “elite strike force”. For her efforts, Ms. Ellis was criminally charged (together with Giuliani, Eastman and four other lawyers) by the State of Georgia as one of 19 alleged co-conspirators involved in a “criminal racketeering enterprise” in which she and the other co-defendants were accused of “knowingly and willfully join[ing] a conspiracy to change the outcome” of the 2020 U.S. presidential election in Georgia. In August 2023, Ellis was grinning from ear to ear in her mugshot, which she posted online together with Biblical references commanding one to “love your enemies” and “pray for those who persecute you”. By October 2023, she was pleading guilty to a felony crime, hence her tearful statement outlined above. At what point, we wonder, should a lawyer start to take responsibility for their actions? In other words, when should duties to the public and ethics become central to everything they do? Surely being 38 years old and having 12 years at the bar is enough time to know that outright lying about something as important and central to democracy as a federal election is not a good idea, and is quite possibly improper (and even criminal). Ellis before

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a judge is quick to speak of her relative youth and inexperience as if those are some sort of excuse for her criminal and wildly unprofessional behaviour. Otherwise in front of a camera, however, she was part of an “elite strike force” prone to making the most outrageous statements, and any semblance of professional responsibility or duty to the public simply flew out the window. There, the mandate was to actively and aggressively mislead. Prior to the cheerful mugshot, Ellis had already been disciplined as part of an ethics complaint brought before the Colorado Supreme Court. In a sixpage opinion, the judge hearing the ethics complaint imposed a public censure on Ellis and, as part of a stipulated agreement, Ellis admitted to making 10 misrepresentations on Twitter and various television programs, including that “the election was stolen and Trump won by a landslide”, that “we have over 500,000 votes [in Arizona] that were cast illegally” and that “Hillary Clinton still has not conceded the 2016 election”. Before the judge, Ellis’s counsel advanced the idea that public censure “is generally appropriate when a lawyer knowingly engages in any [noncriminal] conduct that involves dishonesty, fraud, deceit or misrepresentation that adversely reflects on the lawyer’s fitness to practice law”. However, Ellis did not admit that she had “knowingly” made the misrepresentations and stipulated that she had acted with a mental state that was “at least reckless”. The court noted that “for disciplinary purposes, recklessness is treated as equivalent to a knowing state of mind, with a limited exception not applicable here”. We wonder what Ellis will advance as the appropriate disciplinary measure in the proceedings that follow her criminal conviction. Perhaps in a sign of the times, in the earlier disciplinary matter the parties “represented that they could not locate published lawyer discipline cases that present facts akin to those to which they stipulate, noting that this case is novel and one of first impression”. Similarly, there were no facts akin to those involving John Dean, John Ehrlichman, G. Gordon Liddy and, of course, Richard Nixon himself, who were just 5 of the 11 lawyers ultimately disbarred for what we now call the Watergate scandal. That scandal suddenly looks like rinky-dink child’s play compared to the post-election shenanigans of the lawyers surrounding Donald Trump. The company that Ellis kept (and to whom she attempts to shift blame) includes Texas lawyer Sidney Powell, who has pleaded guilty to six misdemeanour counts of conspiring to intentionally interfere with the performance of election duties, and Kenneth Chesebro, the architect of a scheme to present fake electors to challenge the certification (and thereby the outcome) of the presidential election. Chesebro has pleaded guilty to a felony charge of conspiracy to commit filing false documents.

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All three criminally convicted lawyers—Ellis, Powell and Chesebro—are expected to provide testimony against the remaining indicted co-conspirators in the racketeering case. However, they also face disciplinary hearings related to the same or similar underlying facts. A criminal conviction is one thing (whether part of a plea deal or otherwise), but keeping one’s licence to practise is another. The State Bar of Texas continues to seek Powell’s disbarment, for example, and has filed a petition in state court alleging that she committed professional misconduct by making false statements, using false evidence, bringing frivolous lawsuits and taking a position that causes “unreasonable delays” or “burdens” the courts and “engaged in conduct involving dishonesty, fraud, deceit or misrepresentation”. Chesebro avoided a conviction on the racketeering charge, which would have automatically led to him losing his licence, but he still faces disbarment from the California bar for being involved in a crime involving dishonesty. He has confessed criminally to conspiring to submit false documents in a scheme to overturn the U.S. Constitution and yet, as an attorney, he took an oath to uphold that Constitution. Chesebro’s alleged co-conspirators in the Georgia racketeering case, Eastman and Giuliani, face similar disbarment proceedings in their respective jurisdictions. In an interview in June 2022, before he was criminally indicted, Chesebro described his actions for the Trump campaign as “what lawyers do”. One wonders how (if at all) these lawyers weighed the risks before proceeding as they did. The potential payoff to each of them if they were successful was undoubtedly huge in terms of political appointments, notoriety, power and ultimately money. If the election had been overturned, it would have been because of their efforts, and they probably expected to be rewarded handsomely. Was that truly enough to blind them to the potential downside—criminal convictions and the loss of the ability to practise law altogether? It appears so. “What lawyers do” should always be “what lawyers ought to do”. When ambition outweighs ethical obligation, bad outcomes are more likely. This does not mean ambition is bad per se, but ambition at any cost is not only reckless, but ultimately self-defeating. Ambition needs to be constantly confronted at the legal level with the ethical obligations of the profession. That sometimes means, perhaps often means, putting the interests of the state, the court or the public above one’s own interests. There are always ethical questions about where to draw the line, and often different lawyers will have different views on where the line is; however, when criminal conviction and discipline or disbarment are in the cards, one has likely crossed the line some time ago.

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Jenna Ellis is small fry. She is a nearly 40-year-old, 13-year call with prosecutorial experience, teaching experience and additional experience in private practice. Surely at some point in all of that she became aware of her own ethical obligations as a lawyer. Given her professed faith as a Biblereading Christian, one would have thought she might have at least come across Proverbs 12:22: “The Lord detests lying lips, but he delights in people who are trustworthy.” Maybe she should have interpreted her ethical obligations according to the Bible.

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ON THE FRONT COVER JEEVYN DHALIWAL, K.C. By Clayton Caverly

onfirming prevailing tropes, for incoming Law Society of British Columbia president Jeevyn Dhaliwal, K.C., it all started with a big dream, formed in childhood and nurtured and toiled upon over years. Jeevyn realized early that she needed a hook to stand out from her four older siblings, in order to impress her hardworking parents. From age three to adulthood, she burnished her talents and worked hard to have them recognized in different venues and with an extensive variety of audiences. Jeevyn Dhaliwal was going to be a singing star. That ambition bore fruit in a smashing first career as a semi-professional vocalist. Jeevyn has done studio work, made CDs and sung at countless charitable and sporting events across the province. She had a steady climb in her artistic career that, by dint of character, foretold the ascendancy she would later know within the legal profession. She has even performed at the Grand Ole Opry in Nashville, Tennessee. Jeevyn is probably the world expert in rendering our national anthem in a manner that lends dignity and unity to the opening of sporting events, which surely must be the purpose of the practice. She has done so for the Vancouver Canadians baseball team, the Vancouver Whitecaps soccer team and, during its brief existence, the Vancouver Grizzlies basketball team. After six years opening games of the Western Hockey League Kamloops Blazers, Jeevyn did the same for the clearly rowdy Vancouver Canucks crowds beginning with the Canucks’ 1994 run to the Stanley Cup finals. Singing in the big leagues. Many, many of the Law Society’s members will have first come across our new president years ago—by singing along with her. Our profession is graced with a significant number of individuals who come in with prior suc-

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cess in other fields, but likely few whose occupational history was as unconventional or as unrelated as Jeevyn’s, who still sang for the Canucks while working her way up in the law. In her years singing for her supper, Jeevyn met several of our prime ministers and even our uniquely admirable late Queen. Not bad for an ambitious Kamloops girl dreaming of how to stand out. Jeevyn credits her active and loving family for providing the strong foundation on which she has thrived, and for being role models in her love of community and engagement. Her deep roots in British Columbia began with her grandparents, who all immigrated here from India’s Punjab region in the early 1900s, in the hope that good citizenship and hard work would grant them a new and prosperous life. Jeevyn’s father Saba was born and raised in Kamloops and her mother Ambo was born and raised in Vancouver. In keeping with their traditions at the time, they were promised to each other when Ambo was nine years old; they were engaged when Ambo was 13 and married when she was 17. How that came about testifies to the strength and generosity of the combining families. Ambo’s father in Vancouver was diagnosed with tuberculosis and prescribed stays at the Tranquille sanatorium in Kamloops, where her family was introduced to Saba’s family and stayed with them. They all shared together in the family tragedy of sickness and eventually death. As his last wish, Jeevyn’s grandfather asked that his eldest child Ambo be promised to Saba, also an eldest child. And so it was. By the time of Saba’s own death, the couple had been married for 51 years. Ambo and Saba settled in Kamloops and had five children. Jeevyn’s parents immediately showed their baby daughter how to break long-established barriers. Jeevyn’s name means “life” in Punjabi and was, at the time, reserved among Sikhs for male children only. Out with the old rules. There is an argument that these loving parents, with that highly symbolic gesture, infused Jeevyn with the inexhaustible energy and common-sense boldness she has displayed ever since. The Dhaliwal family consistently engaged in a full roster of city and community activities over the years. Jeevyn says the most impactful was, for 45 years, operating a kiosk serving Indian food at Kamloops’ annual Canada Day celebrations, which brought “tolerance through tummies” for their community in terms of recognition and acceptance. For all their volunteer service, Jeevyn and her parents have received Awards of Distinction from the City of Kamloops, and her mother Ambo was honoured with the Freedom of the City. Good citizenship was indeed a family trait that our new president inherited, and she has continued to put it into practice ever since.

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The Dhaliwals remain a fixture in Kamloops and Jeevyn’s own roots bide there: her lovely mother Ambo and her siblings, a very close extended family, a Shuswap summer place and continuing hometown involvement. Visits there are frequent and beloved. In her time away from her many obligations, Jeevyn likes to bake, sing, walk the two Lhasa Apsos and spend time with her extended family, husband and daughter, who is now studying law at UVic. Jeevyn’s singing career brought her joyous reward and an uncommon ease with crowds and performance, and maybe even her concomitant eagerness and success in speaking up and truly participating on boards and committees that others might find daunting. Jeevyn’s husband is a psychologist working in challenging clinical and correctional settings. It is a pithy measure of Jeevyn’s deep confidence and of Mark’s wisdom and mettle that he has yet to take up her repeated encouragement that he author a self-help manual as to how he manages to remain the supportive partner he is. Fate and her parents—well, mostly her parents—required a change in Jeevyn’s occupation to something perhaps more stable and permanent than vocalist. So she switched gears entirely, in a remarkable pivot, and took an undefined “support” position at a local Kamloops law firm, Mair Jensen Blair. The magnitude of the transition is illustrated by her first day on the job. Jeevyn has fashion flair and, at the time, had a closet full of stage and evening clothes, none of which would serve as model office apparel. So she settled on a bright pink satin shirt, a pleated beige skirt and matching threeinch cream coloured stiletto heels, all 1980s style. After making her way to the office through the snow and slush, she discovered she was the new office runner, delivering materials within the office, covering reception on breaks and doing the downtown bank run in those heels. Jeevyn loves to tell that story herself, with her talent for self-mockery and her utter absence of pretension. These notable and disarming traits may be among the reasons for Jeevyn’s easy entry into the heights of lawyer governance. Everyone likes her. That perhaps otherwise inauspicious law firm start was quickly overcome and Jeevyn was promoted through the ranks to end as a legal assistant in criminal defence and federal prosecutions work. After a few years, the next logical step was the UBC Faculty of Law, from which Jeevyn graduated in 1997. She articled with Bob Mostar at Pryke Lambert Leathley Russell in Richmond, and brought star-quality glitz to their holiday party. She was called to the bar that she will now preside over in 1998. Driving to a litigation associate interview at what was then Fraser & Beatty in Vancouver, Jeevyn’s car was T-boned in a total write-off accident. Jeevyn was only briefly delayed and appeared at the interview with charm,

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aplomb and a telling absence of frazzle. That kind of cool presentation under stress is an essence of litigation, and was noted. As head of the litigation department in which she would work, I am pleased to say that Jeevyn got the job, carrying out a practice first in litigation, and then in labour and employment following the birth of her and her husband’s daughter. Jeevyn’s current legal practice focuses on workplace immigration law, facilitating permission for clients to live, work and study in Canada. I have to wonder if she assists new Canadians with lessons on the national anthem. If so, lucky them! Here I get to the part of this remarkable story that is the reason for Jeevyn adorning the cover of this journal: another tale of rapid rise fuelled by capability and diligence. Once ensconced in a specialized and stable law practice, and with her daughter maturing beautifully, Jeevyn transferred all she had learned about community service, personal engagement, and poise and presentation to legal governance roles. Jeevyn was elected to positions with the Vancouver Bar Association and the Canadian Bar Association, B.C. Branch Provincial Council. She was president and a longstanding board member of the British Columbia South Asian Bar Association. She sat on a provincial appeals board and on an important provincial advisory council on multiculturalism. The Law Society of British Columbia will have a new president with ten years’ history of involvement in its affairs, starting with a committee appointment in 2013. In 2014, Jeevyn was elected the first South Asian bencher from Vancouver County, breaking barriers just as her parents had with her naming so many years ago. Just how many years ago is astonishingly belied by one look at our youthful incoming chief executive. Among other appointments, Jeevyn’s Law Society committee work has included chairing the Finance and Audit Committee and Credentials Committee; being vice chair and member of the Discipline Committee; being a member of the Rule of Law and Lawyer Independence Committee; being past chair of the Act and Rules Committee; and being on the Legal Services Regulatory Framework Taskforce. All of that experience should help Jeevyn hit the ground running as the Law Society faces what she considers its biggest existential threat, in transforming into a new single legal services regulator for the province. There is a sense that Jeevyn may be the last to serve in her new position as presently constituted. However that all ends, we British Columbia lawyers can be comforted that we have an experienced, flexible leader with a good sense of humour and strong family and community support to take us into that unknown. We hope at least one 2024 bencher will table a motion that all Law Society meetings commence with a sing-along to “O Canada”.

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100 YEARS OF RESILIENCE: REFLECTIONS ON THE “CHINESE EXCLUSION ACT ”* By David How, Talia Gukert, Russell Chiong and Rhythm Jethi

The Chinese do not and never will assimilate with our people, as has been proved to be the case in every country in which they have settled. … The whole aim of our immigration regulations and laws is to keep out the bad and undesirable people, and to let in those that are good. Simon Fraser Tolmie, Member of Parliament for Victoria, British Columbia in the second session of the 14th Parliament on Bill No. 15, respecting Chinese migration.

he 100th anniversary of the passing of the Chinese Immigration Act, 1923, also known as the Chinese Exclusion Act (the “Act”), on July 1, 2023 has come and gone. While there was some coverage commemorating this dark moment in Canadian history, for most Canadians July 1, 2023 was simply our country’s 156th “Canada Day”. However, for many Chinese Canadians, this year’s festivities took on a more somber note and represented a reckoning with intergenerational trauma and a history that has largely been swept under the rug and erased from our collective psyche. Many took the time to reflect on the past, present and future and their place in the national community. It was a moment of deep catharsis, sprinkled with often conflicting emotions. Anger, pride, grief, gratitude, concern and hope, to name a few. The Federation of Asian Canadian Lawyers BC (“FACL BC”) invites you to reflect on the many meanings associated with July 1, the role the legal community plays in upholding (and sometimes working against) human rights, and

* This article was prepared and submitted by the co-authors on behalf of FACL BC. FACL BC is a diverse coalition of AsianCanadian legal professionals, whose mandate is to promote equity, justice and opportunity for Asian-Canadian legal professionals and the wider community.

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how our society can come together, while affirming our diversity, to build a stronger and more resilient nation. THE “CHINESE EXCLUSION ACT” AND “HUMILIATION DAY” A century ago, on July 1, 1923, the Canadian Parliament enacted the Act to ban immigration of people of Chinese origin to Canada and closely monitor those who continued to live in Canada. The Act was not repealed until May 14, 1947, and despite its repeal, its legacy continues as a painful reminder of the systemic and institutional barriers many racialized people in Canada continue to face. For the countless Chinese Canadians affected by the Act, many regard July 1 not as “Canada Day” but as “Humiliation Day”. When the Act was introduced 100 years ago, it was an embodiment of prevailing racist ideologies that sought to curtail the influx of Chinese peoples entering Canada and to closely monitor those Chinese peoples living in Canada at the time. The Act’s official name, the Chinese Immigration Act, was a euphemism given the purpose of the Act was to prevent immigration. The date it came into force was no coincidence but rather a deliberately cruel choice to show the Chinese they had no place in Canada. The Act was the only law enacted by Parliament that banned immigration based solely on national origin and represented the culmination of decades of efforts by the Canadian government to curb Chinese immigration. Before the passage of the Act, the government of Canada enacted racist and restrictive policies against people of Chinese descent, such as introducing the infamous Chinese Head Tax (the “Head Tax”) under the Chinese Immigration Act, 1885. The Head Tax, a tax imposed on any Chinese person who sought to immigrate to Canada, started at $50 when first enacted but reached $500 by 1903 (worth roughly $2,500 and $12,900 today with inflation, respectively). At its peak, the Head Tax was equivalent to the savings from two years’ worth of wages and was said to be enough to purchase two homes in Montreal. However, the Head Tax did not stop the Chinese from immigrating to Canada. Despite the Head Tax, and as a testament to their resilience and determination, roughly 97,000 Chinese people paid the tax to come to Canada for a better life between 1885 and 1923. The Canadian government profited greatly from the hardships imposed on Chinese immigrants. The government collected over $23 million over the 38 years the Head Tax was in place, nearly equal to the total cost of the Canadian Pacific Railway, which was itself largely built by Chinese labourers and catalyzed Chinese immigration to Canada in the first place. While there is no question that the contributions of these Chinese immigrants formed a foundational pillar in Canada’s nationhood, the Canadian and British Columbian

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governments, in an effort to appease the rising concerns of their constituents (who were at the time almost exclusively white males since women had only recently acquired the right to vote and racialized peoples were still denied suffrage), made sure that these immigrants remained in Canada as sojourners and undertook measures to dissuade them from making Canada their home and stifle their ability to build communities. While Parliament sought to curtail the influx of Chinese peoples into Canada, the government of British Columbia passed multiple laws that further disenfranchised and outright banned the Chinese from voting, from being elected to political office, from becoming professionals (including practising law), from living outside of Chinatown and even from swimming in indoor pools. Chinese Canadian students were often segregated in schools, movie theatres and cemeteries, as racism against Chinese Canadians became the political, cultural and societal norm.

Chinese Immigration certificates – Credit: Chinese Canadian Museum

Before the passing of the Act, Chinese immigrants were required to carry Chinese Immigration certificates with them at all times and were required to produce those certificates on the request of law enforcement or risk fines, detainment or deportation. After the passage of the Act, all Chinese peoples living across Canada, including those who had lived here for multiple generations, were required to register their status and were issued a Chinese Immigration certificate that, at the bottom, included a statement

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advising: “This certificate does not establish legal status in Canada”. This represented a painful and omnipresent reminder to the bearer of the card that they were regarded as second-class citizens. In addition to being required to carry Chinese Immigration certificates with them everywhere they went, Chinese Canadians had significant restrictions around travel outside of Canada. Before the outright ban of Chinese from entering Canada, trips to China carried the risk of being made to pay the Head Tax a second time. After the Act came into force, returning to China to see family and friends was impossible unless it was a one-way trip. This had a devastating impact on a generation of Chinese people both in Canada and back in China. The Chinese-Canadian population was predominantly male; husbands and fathers were separated from their families with no hope of reunion. Men without their wives could not start families, and fathers could not see (or even meet) their children until they were adults, if at all. Bachelors languished and feared dying without family to bury them, doomed to wander a foreign land as a ghost for eternity. By 1931, the Chinese population in British Columbia had declined to less than four per cent of the province’s total population, sparking fears that Chinese communities in Canada would eventually disappear altogether. During the 24 years that the Act was in force, fewer than 50 Chinese immigrants were allowed to enter the country. The message could not have been clearer: “the Chinese do not belong in Canada.” BEYOND EXCLUSION The Act was eventually repealed in 1947, nearly a quarter century later. The efforts of Chinese Canadians to demonstrate their belonging did not go unnoticed. Although the Act sought to exclude and eliminate Chinese Canadians, it had the effect of galvanizing some in the Chinese-Canadian community to demonstrate their patriotism by serving in the Canadian army during the Second World War. Chinese Canadians volunteered for military service to prove their loyalty to Canada. Their contributions to the Canadian forces were vast with some, such as the 150 Chinese Canadians recruited for Force 136, being sent to the then Japanese-occupied parts of Southeast Asia, where they supported and trained local resistance movements in guerilla tactics. Their sacrifice and service exposed the hypocrisy of Canada’s exclusionary and xenophobic attitudes, leading to social and political change within the country and contributing to the repeal of the Act in 1947. Even after the Act’s repeal, discrimination against the Chinese persisted. Initially, only spouses and children of Chinese-Canadian citizens and permanent residents were permitted to immigrate to Canada. Only in the

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1950s did British Columbia enact laws prohibiting discrimination in housing and employment on the basis of race. Other Asian Canadians also faced discrimination. Japanese Canadians were unable to return to the coast until 1949 following their internment during World War II. Relying on the Immigration Act, 1910, which permitted the exclusion of immigrants determined to be “unsuited to the climate or requirements of Canada”, the Canadian government continued to enact and enforce policies that restricted panAsian immigration until new regulations were enacted in 1967. On June 22, 2006, then Prime Minister Stephen Harper offered a public apology in the House of Commons to the Chinese-Canadian communities impacted by the Head Tax and exclusion under the Act. The government agreed to pay $20,000 in compensation to the survivors, or their spouses, who had paid the Head Tax. Sadly, there were only an estimated 20 Chinese Canadians still alive who had paid the Head Tax. For too many, it was “too little, too late”. The fight for Chinese Canadians’ place in Canadian society is an ongoing struggle to this day. In 2023, the Asian-Canadian community continues to face racism in the form of hate speech and violent attacks, exacerbated by the COVID-19 pandemic. Just as in 1923, Chinese Canadians continue to endure scapegoating for what some see as Canada’s social and political problems. The alarming rise in levels of anti-Asian attacks following the outbreak of the COVID-19 pandemic demonstrated the fragility of our hard-fought place in Canadian society. The current housing affordability and availability crisis is being blamed on immigrants, particularly those from China and other parts of Asia. The federal government’s foreign interference scandals focus squarely on China, despite strong evidence of interference from other countries. Proposed solutions, such as a foreign agent registry, are sounding alarm bells, with community activists concerned such tactics could fuel more anti-Chinese sentiment and spur further violence. TOWARD A BRIGHTER TOMORROW BY REFLECTING ON THE PAST While Canada has made progress toward nominal inclusion and equality, such as Vancouver and Toronto electing their first Chinese-Canadian mayors in 2022 and 2023 respectively, and increasing diversity in the legal profession and on the bench (such as the recent appointments of Justices Kevin Loo and Anita Chan to the British Columbia Supreme Court), much more must be done to ensure equality and justice for our communities. We must not take for granted the hard-fought gains of the last century. It is equally important that we avoid falling into the “model minority” myth. Institutionalized and systemic racism and discrimination is a prob-

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lem that plagues us all, and it is up to all communities to actively fight against it. Chinese Canadians have struggled against seemingly insurmountable barriers, like the Head Tax and the Act, and have been able not only to overcome and survive them, but thrive despite them. However, we must never forget that the rights and freedoms we enjoy are not guaranteed but have to be actively upheld and advanced. Perpetuating stereotypes and false narratives that Asians are somehow more resilient or hardworking than others only serves to divide Asians from other minority groups. The ability of immigrants to integrate and assimilate into existing power structures is not something to flaunt, but rather to question and deconstruct. It is not something innate but rather a survival tactic derived from necessity and the pressure to conform. We can only overcome colonialism by working in solidarity with all marginalized groups, especially our Indigenous and Black communities. FACL BC recognizes that our members have multiple intersectional identities and that they experience complex and multi-layered realities as a result. To deny that we have benefitted from the model minority myth is to erase the lived experiences of so many in our own community. The 100th anniversary of the passing of the Act is an opportunity to reflect on how far we have come and to remember the fragility of our position in a country founded on colonialism and with enduring colonial legacies. FACL BC also recognizes that July 1 is a painful date and a time of mourning for many other groups, including Indigenous people and communities. In the time since the Tk’emlúps te Secwépemc First Nation in Kamloops identified 215 unmarked graves at the Kamloops Indian Residential School, hundreds more unmarked graves have been identified across the country. FACL BC stands in solidarity with those affected by the Act and other parts of Canada’s colonial history. We urge our members to consider narratives alongside our own, commemorate the lives lost to Canada’s continuing colonial legacy, and reflect on the meanings of this day beyond the celebration of Canada Day. We must use our voices to uplift all marginalized communities and fight against racist and discriminatory systems, policies and attitudes. This is particularly true for those of us in the legal profession. While the bench and the bar still have a long way to go in reflecting the diverse Canada they serve, this does not diminish our power as lawyers. Rather, we must use the respect and privilege we enjoy as members of the legal profession to serve and advocate for those less fortunate. We must be vigilant to threats against the progress we have made and proactive in tackling the problems we have yet to overcome. Canada remains a country deeply embedded in colonial

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legacies, and the resulting intergenerational trauma and systemic barriers continue to stifle the full potential of our diverse communities. The legacy of the Chinese Exclusion Act is a testament to Canada’s complex history and a reminder of the ongoing struggle for inclusivity, equality and justice. As our young nation ages another year, this anniversary has been an opportunity to reflect on what it means to be Canadian, given Canada’s colonial past and present, and to recommit to honouring those who came before us by fighting for those who will come after. For those interested in learning more about the Act and the impacts it has had on Chinese communities in Canada, FACL BC would like to highlight the Chinese Canadian Museum’s latest exhibition: “The Paper Trail to the 1923 Chinese Exclusion Act”. The exhibition, curated by Catherine Clement, features hundreds of certificates of identity documents used to track Chinese Canadians during the Act, the most ever publicly displayed in an exhibition. It commemorates the 100 years since the passing of the Act by probing the nature of paperwork and documentation over the contested terrain of history, with a diverse array of families of Chinese descent from across Canada contributing to the exhibition. For more information and to book tickets, please visit the Chinese Canadian Museum’s website at <https://www.chinesecanadianmuseum.ca/exhibitions/paper-trail-1923chinese-exclusion-act>.

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VANCOUVER’S CANNABIS EXCLUSION ZONE: IS IT CHARTER-COMPLIANT? By Delaney Ignatieff

ntil 2018, cannabis had long been illegal in Canada. But you now can find a dispensary almost anywhere in Vancouver. One place where you cannot find one is Vancouver’s Downtown Eastside. This seems odd in light of the fact that the Eastside community has pioneered some of Vancouver’s—if not Canada’s—most progressive approaches to managing drug use, such as safe injection sites and safe supply clinics. Yet, amidst this transformation, there exists an exclusion zone in the heart of Vancouver, where cannabis remains out of reach for a vulnerable population. A city bylaw restricts businesses and opiate substitute programs from opening up in the one area of the city that needs them most.1 For years, cannabis has carried the reputation of a gateway drug to be avoided. But emerging research presents a starkly different picture. It reveals that for people addicted to harder drugs, cannabis is increasingly used as a means of reducing dependence by helping to manage cravings, withdrawal symptoms and associated health issues.2 Among persons struggling with substance use, cannabis has become a “reverse gateway drug”.3 But Vancouver maintains a firm stance on prohibiting the sale of cannabis in the Downtown Eastside. The exclusion zone raises important questions about the city’s role in contributing to—or at least failing to help address—the opioid crisis. Cannabis substitution programs increase accessibility to low-cost alternatives for people addicted to hard drugs. Increasing access to cannabis programs could make a real contribution to overdose prevention. In what follows, I make the case that Vancouver’s bylaw infringes s. 15 of the Canadian Charter of Rights and Freedoms, by hindering people from accessing a safer alternative to hard drugs—and does so without a compelling reason. THE ZONING BYLAW AND SECTION 15 OF THE CHARTER The exclusion zone appears in a section of the city’s “Zoning and Develop-

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ment By-law”, which simply states that “cannabis stores are not permitted in the identified region on a map”.4 The region covers a good portion of the Downtown Eastside.5 The bylaw, on its face, does not appear to discriminate against any particular group. But it discriminates by having an adverse effect on a particular group of people in the Downtown Eastside by making it harder for those people to access cannabis as a therapeutic alternative. The Supreme Court of Canada in R. v. Kapp set out the current two-part test for making a s. 15 Charter claim.6 The first question is whether the law, on its face or in its impact, creates a distinction based on an enumerated or analogous ground. The second question is whether the distinction creates a disadvantage or prejudice. A law creates a distinction when it withholds a benefit that is provided to others or affects a group that has historically experienced discrimination. Even if the law is neutral, it may still result in a disadvantage where it has a disproportionately adverse impact on a group. The exclusion zone in the Vancouver bylaw affects persons suffering addiction—a disability—by hindering access to cannabis (a means of easing addiction), and a disproportionate number of the people affected are Indigenous. There are no other exclusion zones in Vancouver. Both prongs of the test are met because, in its effects, the bylaw creates a distinction based on an analogous ground and perpetuates a disadvantage by hindering addicted persons in the area from gaining easier access to a therapeutic substance. Justice Majawa of the B.C. Supreme Court, in a recent decision in Wong v. Magnuson,7 recognized the possibility that removing the prohibition on the sale of cannabis in the Downtown Eastside might help “reduce the risk of harm from opiates” in the area.8 However, the case did not involve a Charter challenge. HAVE WE BEEN HERE BEFORE? Prior to the current bylaw involving an exclusion zone, Vancouver took various different approaches to regulating the sale of cannabis in the city, both before and after cannabis became legal. In one of these earlier approaches, a city bylaw set out a scheme for obtaining a licence for a medical marijuana dispensary. In the 2018 B.C. Supreme Court case Vancouver (City) v. Karuna Health Foundation,9 the city sought injunctions against a group of dispensaries not in compliance with the bylaw. Among the grounds argued in response was that the bylaw violated s. 15 of the Charter. The respondents in Karuna contended that the bylaws have a “disproportionate impact on medical cannabis patients who require treatment for chronic conditions and are of limited physical mobility”.10 This entailed discrimination under s. 15, they argued, because it imposed a disproportionate

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burden due to physical and mental disability. Chief Justice Hinkson held that there was “no evidence before me that the [bylaws] impose differential treatment based on ability” and that even if there were such evidence, it was not clear that “their effect is substantively discriminatory”.11 Siding with the city, the court held that “[t]he purpose of the Impugned Bylaws is land-use and business regulation”.12 They were not about supply or access, which is a matter within federal jurisdiction. A further notable case in this context is Abbotsford (City) v. Shantz,13 in which the court addressed whether bylaws for managing parks infringed homeless people’s rights under s. 15 of the Charter. In response to the city’s application for an injunction, the respondents claimed that continually displacing homeless people from public spaces prevented them from obtaining the basic necessities of life. Chief Justice Hinkson recognized the city’s homeless did share important intersections between disability, addiction and Indigenous ancestry.14 However, the group did not experience differential treatment from the enforcement of the impugned bylaws.15 MAKING THE CASE FOR SECTION 15 AT PRESENT The ruling in Karuna predates the legalization of cannabis and the worsening of the opioid crisis. A challenge made today might more effectively offer evidence of how Vancouver’s exclusion zone bylaw may perpetuate a disadvantage for an analogous group under s. 15. It might do this by tendering evidence from persons suffering from addiction who can testify to the impact of the bylaw on their drug use and their means of coping with addiction. The facts in a challenge to the exclusion zone might also be distinguished from those in Abbotsford (City). The bylaw in that case did not entail differential treatment or disadvantage toward a distinct group, since it affected everyone who might use city parks. The exclusion zone, by contrast, primarily affects the individuals residing in Downtown Eastside. And the impact is significant for one group residing within it. A REASONABLE LIMIT? If a court were to find a s. 15 violation in a challenge to the exclusion zone bylaw, the next question would be whether it constituted a reasonable limit on the right under s. 1 of the Charter. This involves asking whether the purpose of the bylaw is pressing and substantial and whether the bylaw meets a three-part proportionality test.16 Assessing proportionality asks whether there is a rational connection between the law and objective at issue, whether the law minimally impairs the right in question and whether the benefits of the law outweigh its burdens.17

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It is difficult to see how hindering access to cannabis would serve a pressing and substantial objective, given its availability elsewhere in the city. It would also seem pointless to hinder access to one drug in the Downtown Eastside in light of various initiatives to make other drugs more accessible, such as medical-grade fentanyl.18 But even assuming the bylaw has a pressing objective, it does not minimally impair the right to equal treatment under the law. Whatever concerns the city may have about the provision of cannabis within the Downtown Eastside, it is unclear why those concerns would not be met by permitting at least a small number of dispensaries in that area. It has been close to 3,000 days since the City of Vancouver declared a public health emergency, and it is no longer acceptable to subject a group that has long endured discrimination to further adverse treatment. Cannabis can be used as a tool to protect individuals from drug poisoning in the Downtown Eastside. If city officials will not do the sensible thing, the courts and constitutional rights may need to be relied on to make this right. ENDNOTES 1. City of Vancouver, Zoning and Development By-law, “Use Specific Regulations”, s 11.8.6.2(c) [Exclusion Bylaw], online: <bylaws.vancouver.ca/zoning/zoning -by-law-section-11.pdf>. 2. M Eugenia Socías et al, “Intentional Cannabis Use to Reduce Crack Cocaine Use in a Canadian Setting: A Longitudinal Analysis” (2017) 72 Addictive Behaviors 138 at 143. 3. Hudson Reddon et al, “Cannabis Use Is Associated with Lower Rates of Initiation of Injection Drug Use Among Street Involved Youth: A Longitudinal Analysis” (2018) 37:3 Drug and Alcohol Review 421 at 422. 4. Exclusion Bylaw, supra note 1. 5. See map online: <bylaws.vancouver.ca/zoning/ zoning-by-law-section-11.pdf>.

6. 2008 SCC 41. 7. 2020 BCSC 1752. 8. Ibid at para 40. 9. 2018 BCSC 2221. 10. Ibid at para 151. 11. Ibid at para 153. 12. Ibid. 13. 2015 BCSC 1909. 14. Ibid at para 229. 15. Ibid at para 236. 16. R v Oakes, [1986] 1 SCR 103. 17. Ibid. 18. PHS Community Services Society, “About Safer Alternative for Emergency Response” (26 September 2023), online: <www.phs.ca/medical/safer-vancouver/>.

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REAL ESTATE AGENCY LAW IN BRITISH COLUMBIA: PART II By Bruce Woolley, K.C.

his is Part II of my article on real estate agency law in British Columbia from the 1950s to the present. In Part I,1 I provided some personal reminiscences on the real estate market. I then set out how real estate agency law (residential) had evolved from the 1950s to the present. Part II deals with the Real Estate Council of BC (“RECBC”), which was integrated into the BC Financial Services Authority (“BCFSA”) in 2021 (along with the Office of the Superintendent of Real Estate [“OSRE”]); the Canadian Real Estate Association (“CREA”); the British Columbia Real Estate Association (“BCREA”) and its member real estate boards (“Boards”); and the Sauder School of Business, Real Estate Division at UBC (“Sauder RED”). These entities deal with regulation, organization and education. I have written this article at my home in Surrey, British Columbia, the unceded traditional territory of the Semiahmoo, Katzie and Kwantlen First Nations. RECBC, NOW BCFSA History RECBC was the governing body and regulator for the real estate industry from 1958 to 2021. Its roots go back to the early 20th century. In 1919, ten Vancouver real estate brokers became the first subscribers to a new association called the Vancouver Real Estate Exchange Ltd. (the “Exchange”). The Exchange became the Vancouver Real Estate Board in 1948. “Exchange members were committed to high standards of practice and to advance the interests of the City of Vancouver and Greater Vancouver area and its citizens by collection and circulation of valuable and useful information pertaining to the purchase, maintenance and sale of real property. Members also agreed to oppose enactment of laws detrimental to real estate ownership.”2 Apparently prompted by the Vigilance Committee of the Exchange in the early 1920s, the provincial government introduced the Real Estate Agents

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Licensing Act (the “Licensing Act”). The Licensing Act provided for licensing and established minimum standards of practice. The Licensing Act had no educational requirements. In 1950, pursuant to the Licensing Act, the Real Estate Agents Licensing Board (the “Licensing Board”) was established. It provided for mandatory educational requirements. This education consisted of a pre-licensing course conducted by the Realty Training Bureau Limited, which was operated by the then-secretary of the Licensing Board.

Real Estate Act In the 1950s, the Vancouver Real Estate Board (renamed the Real Estate Board of Greater Vancouver in 1970) (“REBGV”) was very active in education. It was also dealing with various proposals for a revised Licensing Act. It issued the Norris Report, which described the Licensing Act as a totally unsatisfactory piece of legislation, and submitted suggestions for change to the government. One of the recommendations of the Norris Report was the formation of a Real Estate Council to replace the Licensing Board. Another was that pre-licensing educational requirements be administered by the Faculty of Commerce and Business Administration (as it was then named) at UBC. The Real Estate Act (“REA”) introduced in 1958 incorporated these major recommendations. Establishment of RECBC The REA established RECBC. It mandate was to protect the public by enforcing the licensing and licensee conduct requirements of the REA. RECBC was also given major educational responsibilities. RECBC was responsible for ensuring that the interests of consumers who used the services of real estate licensees were adequately protected against wrongful actions of licensees. In 1985, total responsibility for licence issuance and administration was delegated to RECBC. While RECBC always had a disciplinary role that included conducting investigations of complaints and hearings when required, it originally only made recommendations to the Superintendent of Real Estate (the “Superintendent”) in each case. In 1986, the government delegated all discipline decision making to RECBC, leaving provision for appeals by both licensees and the Superintendent. RECBC had staff, as well as positions comprising the “Council”. In the 1990s, public positions were added to the Council. Part of the staff included an in-house lawyer, David Berger, and the in-house department grew over the years to approximately nine lawyers and three paralegals in 2021. Originally, the REA dealt with the licensing of persons acting as trading services licensees—those licensees who assisted consumers in buying and selling real estate. In 1994, rental property management services were

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added and in 2006 strata management services were included in the new Real Estate Services Act (“RESA”).

Real Estate Services Act Since the introduction of REA in 1958, the legislation had not kept up with changes in the real estate industry and agency law. In 2005, the government bought into force the RESA and the Real Estate Development Marketing Act (“REDMA”) to replace REA. Part I of the old REA had dealt with licensing and agency matters, while Part II had dealt with real estate marketing. Section 73 of RESA set out the objectives of RECBC: •

administering RESA, its regulations, rules and bylaws;

•

maintaining and advancing the knowledge, skill and competency of its licensees; and

•

upholding and protecting the public interest in relation to the conduct and integrity of its licensees.

RESA provided for 16 members of Council, 13 of whom were elected by real estate licensees and 3 of whom were appointed by the Lieutenant Governor. RESA also provided for rules, which were not contemplated by REA. The rules were created by RECBC, and assisted RECBC in keeping up to date with changes in the real estate industry. The rules dealt with matters such as licensing, general responsibilities of licensees, business practices and relationships with principals and parties. Given the transfer of powers to RECBC since its establishment in 1958 and the new power of RECBC to make rules, subject to the approval of OSRE, RECBC was the regulator of a self-governing real estate profession. When RESA was enacted, the scope of OSRE’s overview of RECBC was limited. In urgent circumstances, the Superintendent could issue a notice of hearing and conduct a hearing. The Superintendent could also appeal to the Financial Services Tribunal where it disputed orders issued in relation to disciplinary processes conducted by RECBC. In addition, the Superintendent maintained regulatory responsibility for unlicensed real estate services. I never really understood why two different offices would deal with licensed versus unlicensed activity. That is certainly not the case for lawyers and is not the case today under BCFSA. RECBC Executive History Before going further to discuss the events of 2016 that led to the demise of RECBC, I would like to discuss some historical aspects relating to RECBC that I think may be of great interest to lawyers. One of the themes of this article is the large role lawyers have played and continue to play in organ-

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ized and regulated real estate and in real estate education. The first executive officer of RECBC (then called the secretary) was Irwin Davis, whose work is also mentioned in Part I of this article. Irwin’s grandfather, Edward P. Davis, K.C., came to Vancouver in the 1880s. He took up residence at the corner of Thurlow and Seaton (now Hastings) Streets. He established Davis & Company, an eminent Vancouver law firm, now part of DLA Piper LLP. In the 1920s, Ghent Davis, son of E.P. Davis, built Kanakla at UBC, now known as Cecil Green Park. This was Irwin’s home. In the early days of Kanakla, the streetcar stopped at 4th and Alma, so it was a long walk out to the home, unless you were collected by the Davises’ car. Kanakla was sold in 1940 for $9,000. In 1967, it was purchased by Ida and Cecil Green and donated to UBC. Some of you may have enjoyed a beer there. Irwin attended the Shawnigan Lake School on Vancouver Island and graduated from the University of Toronto in 1939 with a bachelor of arts degree. During World War II, he served as an officer in the Royal Canadian Air Force. After the war, he was called to the bar and joined Davis & Company. He left in 1954 to become the secretary of the Licensing Board and then in 1958 the secretary of RECBC. Irwin served as secretary until 1964, when he retired and moved to the Faculty of Commerce and Business Administration. I have many fond memories of Irwin, a gentleman, and, together with his partner of 45 years, Bob Houston, a consummate host. The first year I taught Urban Land Economics at UBC, Irwin telephoned me. He was teaching the course at the same time. He thought I should have a proper start to the course, which was taught once a week in the evening. He invited me to dinner at the Faculty Club, where we each had a glass of sherry and a fine meal, and then went off to teach, wearing a jacket and tie as one did in those days. Dermot Murphy succeeded Irwin as secretary of RECBC. Dermot worked for RECBC for 36 years until his retirement in 1995. Dermot guided RECBC with a steady hand and was very well respected in the real estate industry. Both Irwin and Dermot died in 2008. Dermot was succeeded by Robert Fawcett, who continued the tradition of excellence and dedicated service. Robert became known as the executive officer and served RECBC until his retirement in 2016, his career, like Dermot’s, having spanned 36 years with RECBC. All three men were dedicated professionals and leaders, and I have had the great pleasure of knowing all of them. Erin Seeley took over as Acting Executive Officer (later becoming Chief Executive Officer [“CEO”]) in 2016. In 2022, Erin became the CEO of YWCA, Metro Vancouver. Education Part of the responsibility of RECBC is the education of licensees; that

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responsibility has continued to BCFSA. Education can be discussed in three distinct components. First is licensing education (in the past often referred to as pre-licensing) (“Licensing Courses”), discussed in more detail in the Sauder RED section below. RECBC delegated licensing education to Sauder RED, which runs the Licensing Courses. Second is the Applied Practice course. In 1976, RECBC made BCREA’s applied course a requirement of licensing for trading services, with the sixday course initially offered at the British Columbia Institute of Technology campus and later through various locations throughout the province, which continued to be administered by BCREA. In 2019, RECBC took over responsibility for the development and delivery of the course from BCREA. It is now offered through a combination of online and virtual classroom learning. Once a person completes the Licensing Course, they can register for the Applied Practice course, which is offered in four parts, the first two of which must be completed before the prospective licensee can apply for their licence. They then must complete the third and fourth parts of the course, which include a “soft” mentorship, within six months of obtaining their licence. The third component is continuing education for licensees. Since 2007, RECBC has required “Legal Update” as a mandatory course. The course was a joint effort of RECBC and BCREA. In 2019, “Legal Update” was brought inhouse to RECBC. There has been a close partnership with the legal community in content development and classroom delivery. Since 2020, RECBC has also offered a mandatory course on “Ethics”. Both courses must be completed once every two years as part of licensing. Other focused courses have also been required, such as “Rule Changes – Agency Disclosure” and “AntiMoney Laundering for Real Estate Licensees”. Education matters at RECBC were, at the time of integration with BCFSA, under the able leadership of Pamela Skinner, who continues as Senior Vice President, Education, Licensing and CUDIC Operations. Pam was a former executive with HSBC Bank (Canada) and HSBC Trust Company (Canada). The continuing education offered by BCFSA is coordinated with Sauder RED, which provides valuable education and administrative support. Independent Advisory Group After the 2009 recession, housing prices in the Lower Mainland increased dramatically. It was a hot market with large volumes of sales. In 2016, the media were attracted to a practice of buyers assigning sale contracts before closing the purchase transaction. The assignee of the contract would then complete the purchase. This meant that the first buyer made a profit without having to pay property transfer tax and other closing costs. The practice was referred to as “shadow flipping”, and it was alleged that real estate

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licensees were participating in some of the profits and were also acting in these transactions, which could give rise to serious conflicts of interest. In response, RECBC established the Independent Advisory Group (“IAG”) in 2016 to focus on licensee conduct in residential real estate. Even before the IAG issued its report, the government dealt with shadow flipping, an attractive target for the politicians. Flipping is merely the assignment of a real estate contract, which is not contrary to law. It was not a new phenomenon. Had the government wanted to address the practice head-on and put the matter up for debate, it would have, I assume, proposed an amendment to the Property Law Act, which would have been debated in the legislature. Instead, the government chose to work in the shadows, and not bring the matter forward to the legislature. It added s. 8.2 to the Real Estate Services Regulation. That section provides (in summary) that in a contract a licensee prepares the licensee must include a prohibition on assignment without the written consent of the seller, and a provision that the seller would be entitled to any profit resulting from an assignment. A consumer may instruct their licensee otherwise. I note that the prohibition only applies to contracts prepared by licensees. It does not apply, for example, to a contract prepared by a lawyer. By using the backdoor of a regulation for licensees, the government avoided a public debate about the impact of the prohibition on the property rights of buyers and sellers. I also note that the section does not apply to a contract for the sale of a development unit by a developer, all as defined in REDMA. I leave the reasons for the “development unit” exception to your active imaginations. While the government did establish the Condo and Strata Assignment Registry (“CSAIR”), that registry is only for the collection and reporting of information on these assignments. In June 2016, the IAG issued a report that made a number of recommendations that included some fundamental changes to the regulation of licensees. It did not recommend the end of self-regulation. However, by September 2016, the government changed RECBC from a self-regulated agency to a government body and made OSRE responsible for rule making and oversight of RECBC. Subsequently, the Ministry of Finance issued a report entitled “Real Estate Regulatory Structure Review” that recommended that RECBC and OSRE be merged into the Financial Institutions Commission (“FICOM”) as a single regulator. FICOM became part of BCFSA in November 2019 when BCFSA was established as a Crown corporation. Then, in 2021, RECBC and OSRE merged into BCFSA. To summarize, RECBC no longer exists. RESA, the rules and regulations are administered by BCFSA, which also has as part of its operations credit unions, trust companies, insurance companies, pension plans and mort-

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gage brokers. BCFSA is under the capable and thoughtful guidance of Blair Morrison, CEO. He spent 11 years with the Bank of Montreal in senior roles in legal, compliance and procurement. The chair of the board of BCFSA is Dr. Stan Hamilton, a longtime supporter of licensee education, and professor emeritus at the Sauder School of Business. BCFSA now deals with both licensed and unlicensed activities. BCFSA lawyers deal with disciplinary matters, as in the past, relating to breaches of RESA, the rules and the regulations. There are approximately 16 lawyers at BCFSA. Lawyers dealing with disciplinary matters report to Chris Biscoe (J.D. UVic 2003), Director Legal, Compliance and Enforcement. Corporate legal matters are overseen by David Avren (LL.B. UBC 1980, LL.M. Auckland 1988), Vice-President Legal. Before BCFSA, David was Director of Legal Services, BC Hydro and then General Counsel of Coast Capital Savings Credit Union. Outside counsel are sometimes engaged. If you have a client who has a complaint about the conduct of a licensee, BCFSA is most likely where the complaint will be handled. Licensees who are the subject matter of a complaint sometimes hire legal counsel, some of whom have included Peter Watts, George Cadman, K.C., Greg Blanchard, Kelly Murray and Wes McMillan. As noted below, Boards also have discipline jurisdiction concerning REALTOR™ conduct in relation to the Code of Ethics (the “Code”) and Board rules, not RESA or its rules and regulations. Board discipline sanctions do not extend to dealing with the RESA licence itself. CREA, BCREA AND THE BOARDS The previous discussion dealt with the regulatory regime for all licensees in British Columbia. There is an umbrella organization in Canada—CREA— that represents real estate professionals, known as REALTORS. If a licensee is a member of a Board in British Columbia, that licensee will automatically be a member of BCREA, which means that licensee is also a member of CREA. CREA was formed in 1942. Its mission, according to its website, includes working for a policy and legislative environment that supports and enables homeownership and acknowledges the importance of REALTORS and housing to communities and the Canadian economy; championing REALTORS through awareness, education and furthering excellence in the profession to build brand equity and support REALTORS’ business needs; and supporting REALTORS with competitive tools and technology. It has a membership of over 160,000. It is a professional organization, not a regulator, and has no discipline function. The provincial member organization in British Columbia is BCREA. It was originally founded in 1952, but its current incarnation was created in

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1976. It is the provincial organization for the eight Boards in British Columbia. Yes, there used to be more Boards, but some have amalgamated. The Boards operate the Multiple Listing Service™ (“MLS”) system, and members of Boards are known as REALTORS. The terms “MLS”, “Multiple Listing System” and “REALTOR” are all trademarks of CREA and should be used with appropriate consent and recognition. A real estate licensee must be a REALTOR if they wish to have full access to the MLS. Code of Ethics BCREA and the Boards are actively involved in promoting the interests of the real estate profession in British Columbia. Boards also have a membership discipline function. In 1959, CREA approved a Code of Ethics (as defined above, the “Code”). All REALTORS are bound to abide by the Code. Many of the provisions in the Code mirror legal obligations under the common law and also some provisions in RESA and the rules. Others are peculiar to just the Code. If a REALTOR breaches a provision in the Code and a consumer complains to the relevant Board, that Board will investigate and may commence discipline proceedings. Neither CREA nor BCREA participates in disciplinary matters. Board discipline is based primarily on alleged breaches of the Code while BCFSA discipline is based on breaches of RESA and the rules. Board discipline, separate from the Code, may also be triggered if a REALTOR has breached the local Board rules. Unlike the discipline regime for lawyers, a real estate licensee who is a REALTOR can be subject to discipline both by a Board and by BCFSA for essentially the same conduct in a particular matter. Under Board discipline, a REALTOR may be fined, required to take educational courses or have their membership in the Board suspended or terminated. The Board cannot deal with a licence issued by BCFSA. The first Vancouver Real Estate Board was formed in 1888. I note that in 1885 the first mayor of Vancouver, Malcolm A. MacLean, was a real estate agent. He was a charter signatory in the formation of Vancouver’s first Board. The Board faltered and disbanded after three months. In 1919, the Exchange was formed. In 1948, it changed its name to the Vancouver Real Estate Board. R.H. Tupper of Bull, Housser & Tupper assisted in the 1948 transition. It changed its name again in 1970 to the Real Estate Board of Greater Vancouver—REBGV. Education The Boards and BCREA have been actively involved in the education of REALTORS. Each licensing cycle (two years), REALTORS are required to complete a minimum of 18 hours of professional development. This

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requirement can be fulfilled by taking a combination of at least 12 hours of accredited professional development and 6 hours of self-directed professional development. BCREA and the Boards have developed self-paced online and instructor-led professional development opportunities. This is in addition to BCFSA mandatory education. I would be remiss if I did not mention the large contribution of Gerry Neely, a well-known lawyer in Victoria, to the ongoing education of REALTORS. For 26 years, he wrote regular articles for the BCREA publication “Legally Speaking”. Those articles were of great assistance to REALTORS. Gerry was an honorary member of BCREA and died in 2022. He was also the first articling student at Pearlman Lindholm in Victoria. Gerry initially passed the torch to four lawyers: Mike Mangan, Ed Wilson, Brian Taylor and Jennifer Clee. BCREA continues to publish “Legally Speaking”, with a variety of real estate lawyers contributing columns, including Peter Borszcz, Lisa Niro, Jude Chow, Oana Hyatt and Amy Peck. Standard Form Documents The last BCREA topic I wish to discuss is standard form documents. BCREA manages a committee dealing with standard form real estate documents.3 Those documents range from various contracts of purchase and sale to listing agreements and many other documents used by REALTORS. Those standard forms are the primary forms used in residential real estate. The committee meets on a regular basis to review the forms and any comments or changes in the law that may affect the wording of a form. The Canadian Bar Association, BC Branch (“CBABC”), nominates a member to the committee.4 Ed Wilson has served as the nominee for 29 years, and deserves a hearty round of applause for his hard work and devotion. Now that Ed has retired as a partner from Lawson Lundell LLP, his position on the committee has been taken by Brendan Craig, a partner at Lawson Lundell LLP. This past year Ed was also the deserving recipient of the Georges Goyer QC Memorial Award for Distinguished Service. Ed’s husband of many years, Robert Laing (LL.B. UBC 1982), joined BCREA as Director of Government Relations in 2000 and continued as the CEO of BCREA for the period 2002 to 2018. Prior to that, Robert was the Executive Director of Professional Programs at the Faculty of Commerce and Business Administration UBC from 1989 to 2000. SAUDER RED One of the recommendations of the Norris Report, discussed above, was the suggestion that pre-licensing educational requirements be administered by the Faculty of Commerce and Business Administration at UBC. The Dean of

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Commerce, Earle MacPhee, the president of the University, Norman McKenzie, and the Attorney General of British Columbia, Robert Bonner, were all in favour of the idea of professional education for real estate agents. The newly formed RECBC agreed to establish a chair and the necessary educational facilities at UBC. Professor Philip White, from the University of London, was asked to head a new “Division of Real Estate Management” (the “Division”). This Division would take over the responsibility for prelicensing education and a full-time undergraduate and graduate program. The undergraduate courses and the “salesman’s pre-licensing course” were first offered in 1958. The Division of Estate Management became the Department of Urban Land Economics in 1966 and dealt with the undergraduate and graduate programs, while the pre-licensing courses and the diploma courses became a separate function. They were handled by the Real Estate Division of the Faculty of Commerce and Business Administration. In 2003, that faculty was renamed the Sauder School of Business in recognition of a donation of a $20 million endowment by William Sauder. He was awarded an honorary doctor of laws degree by UBC in 1990. Professor White originally handled the full course load. From 1960 to 1964, Dr. Heaver assisted him. In 1965, Irwin Davis, the then-secretary of RECBC, and Stan Hamilton joined the faculty. Irwin became the coordinator of all the diploma and pre-licensing courses. In 1966, Dr. Ratcliffe joined the Division and became the chair of the Division when Professor White became dean. In 1968 Dr. Hamilton and Dr. Goldberg joined the Division on a permanent basis. Over the years, the Sauder RED has grown. On an average year, approximately 2,500 to 4,000 students take the Licensing Course. The initial Licensing Course for trading services was expanded to include Licensing Courses for rental property managers and strata managers. The Licensing Courses have evolved from the early lecture and correspondence models to today’s diversified delivery systems that include online resources (such as videos, assignments, practice exams and flashcards) and live lectures and review sessions. BCFSA continues to have jurisdiction over the Licensing Courses and works closely with Sauder RED. Sauder RED also works closely with BCFSA in its ongoing continuing education programs, as well as programs for mortgage brokers. Sauder RED has expanded beyond British Columbia and offers the real estate licensing education program in Saskatchewan. Directors of the Division have included Robert Laing, who was the Executive Director of Professional Programs until 2000, when he left to go to BCREA as set out above. When Robert left, real estate licensing and credit programs were split out and managed separately. David Moore (LL.B. UBC

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1989) became Executive Director of Real Estate Licensing Education Programs in 2000 and continued until his retirement in 2021. The position was taken over by Devin Kanhai (J.D. UBC 2009). Andre Gravelle became Executive Director of Real Estate Credit Programs and continues in that role. They have built a strong team of lawyers and other professionals who provide decades of experience in real estate education. I note that David Moore is married to Karin Mickelson, who is an associate professor at the Peter A. Allard School of Law (“Allard Law”). She has taught first-year Property Law since 2001, and was awarded the Jim Taylor QC Faculty Scholar Award in 2022. I note as well that Connie Fair, who retired in 2021 as president and CEO of the Land Title and Survey Authority of BC, was an Associate Director of Sauder RED from 1984 to 1988. Sauder RED also provides work and education opportunities for law students. For over 25 years, students at Allard Law have had the opportunity to work for Sauder RED during the summer, and in some instances throughout the year. The students act as writers, editors and tutors. Many practising lawyers, such as Aman Bindra, have gone through the program. Aman has continued to have an association with Sauder RED and is currently an instructor in the Trading Services Licensing Course. I am glad I have been able to end this Part II referring to law students. They are the future of the legal profession. I have had the great privilege of teaching for a number of years at Allard Law and I am always impressed by the probing and inquisitive minds of the students. I hope that many of the law students of the future, whether at Allard Law or otherwise, continue as lawyers who have a good relationship with the real estate profession. There are wonderful opportunities for lawyers to be involved in providing legal services to regulated and organized real estate, and to provide education support. I have found it to be deeply satisfying. ENDNOTES 1. (2023) 81 Advocate 823. 2. Anne Broadfoot, A History of Service 1919-1994 (Real Estate Board of Greater Vancouver, 1995) at 27.

3. I sat on the committee for many years. 4. CBABC and BCREA have a joint copyright in some of the forms.

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A PRACTICAL GUIDE IN DETERMINING WHEN TO CHARGE PROVINCIAL SALES TAX ON THE PROVISION OF LEGAL SERVICES By Thomas D. Ciz

his article is intended to assist each person (a “vendor”1): • who is a lawyer,2 a law corporation,3 a notary public4 or a notary corporation5; • who, in the ordinary course of that person’s business in British Columbia, sells or provides, or intends to sell or provide, a service in British Columbia to a client; and

•

who is either duly registered pursuant to s. 168 of the Provincial Sales Tax Act6 (the “PST Act”)7 or who is required to be registered pursuant to subs. 169(4) of the PST Act,8

in determining if they are required by the PST Act to levy and collect provincial sales tax (“PST”)9 with respect to the service sold or provided to their client and to remit the amount of PST collected to the Ministry of Finance of British Columbia (the “Ministry”) on behalf of the client. A compendium article in regard to the imposition of goods and services tax on a supply of legal services was previously published in the Advocate.10 INTRODUCTION Under certain circumstances, Part 5 [taxes in relation to services], Division 4 [legal services] of the PST Act will apply to impose PST on the purchaser of legal services that are provided by or on behalf of the vendor. It is very important that vendors charge (i.e., levy and collect) and remit PST appropriately on the sale or provision of each legal service made to each of their clients, as the purchaser of those services. If a vendor charges PST when PST is not applicable under the PST Act, the client will be financially disadvantaged. Conversely, if a vendor fails to charge and remit PST when required by the PST Act,11 the vendor will be personally liable for the uncollected PST.12 For this reason, each service that a vendor sells or provides, or intends to sell or provide, to a client should be carefully considered

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in isolation, in order to determine whether or not the particular service will be subject to PST. Unfortunately, the provisions of the PST Act are complex and are often subject to the administrative policies of the Ministry, which can change without prior notice. This article attempts to distill the relevant provisions of the PST Act and the relevant regulations into a decision matrix that is easy to use and that reflects the Ministry’s current administrative policies. The following decision matrix should be read in conjunction with the current version of the following: • Bulletin PST 106 – Legal Services (issued March 2013, revised February 2014); • Bulletin PST 314 – Exemptions for First Nations (issued July 2013, revised June 2023); and • Bulletin PST 319 – Partnerships (issued December 2013, revised July 2017). THE DECISION MATRIX The following matrix is composed of a series of questions that are each intended to be applied to each particular service that is (or is to be) sold or provided by a vendor for the purpose of determining if PST applies to that service. Each question generally has only two possible answers (either yes or no), and each answer leads either to another question in the matrix or to a final determination. The endnotes are integral to the application of this decision matrix. QUESTIONS

IF YES

IF NO

START A. IS THE PARTICULAR SERVICE THAT IS PROVIDED BY THE VENDOR A “LEGAL SERVICE” WITHIN THE MEANING OF THE PST ACT? 1. Is the particular service provided by an individual to his or her employer in the course of his or her employment?13,14

THE PARTICULAR SERVICE IS NOT Proceed to question #2 A LEGAL SERVICE TO WHICH PST APPLIES15

2. Does the particular service come within the meaning of the “practice of law”16 under the Legal Profession Act 17?

THE PARTICULAR SERVICE IS A “LEGAL SERVICE” UNDER THE PST ACT18

3. Is the particular service described in s. 1819 of the Notaries Act 20?

THE PARTICULAR SERVICE IS A “LEGAL SERVICE” UNDER THE PST ACT21

Proceed to question #3

Proceed to question #5 Proceed to question #4

Proceed to question #5 4. Is the particular service a legally related service that is THE PARTICULAR SERVICE IS A prescribed as a legal service for the purposes of the PST Act?22 “LEGAL SERVICE” UNDER THE PST ACT23

THE PARTICULAR SERVICE IS NOT A LEGAL SERVICE TO WHICH PST APPLIES24

Proceed to question #5

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QUESTIONS

IF YES

IF NO

CONTINUED B. IS THE CLIENT OF THE VENDOR THE ”PURCHASER” OF THAT PARTICULAR LEGAL SERVICE? 5.

Has the client agreed to pay consideration for the particular legal service?25

Proceed to question #7

Proceed to question #6

6. Is the client otherwise obligated to pay consideration for the particular legal service?26

Proceed to question #7

THE CLIENT IS NOT THE PURCHASER OF THE LEGAL SERVICE AND THEREFORE THE CLIENT IS NOT OBLIGATED UNDER PART 5, DIVISION 4 OF THE PST ACT TO PAY PST IN RESPECT OF THE PARTICULAR LEGAL SERVICE

7. Is the particular legal service provided to the client for the client’s own use or benefit?27

THE CLIENT IS THE PURCHASER OF THE LEGAL SERVICE UNDER THE PST ACT

Proceed to question #8

Proceed to question #11 8. Is the particular legal service provided to another person (the “recipient”) for that recipient’s use or benefit at the client’s expense?28

THE CLIENT IS THE PURCHASER OF THE LEGAL SERVICE UNDER THE PST ACT

Proceed to question #9

Proceed to question #18 9. Is the particular legal service provided to a principal (the “recipient”) for whom the client acts as agent for the use and benefit of that principal?29

THE CLIENT IS THE PURCHASER OF THE LEGAL SERVICE UNDER THE PST ACT

Proceed to question #10

Proceed to question #18 10. Is the particular legal service provided to another person (the “recipient”) for that recipient’s use or benefit at the expense of a principal for whom the client acts as agent?30

THE CLIENT IS THE PURCHASER OF THE LEGAL SERVICE UNDER THE PST ACT Proceed to question #18

THE CLIENT IS NOT THE PURCHASER OF THE LEGAL SERVICE UNDER THE PST ACT AND THEREFORE THE CLIENT IS NOT OBLIGATED UNDER PART 5, DIVISION 4 OF THE PST ACT TO PAY PST IN RESPECT OF THE PARTICULAR LEGAL SERVICE

C. DOES PST APPLY TO THE PURCHASE OF THE PARTICULAR LEGAL SERVICE? 11. Does the purchaser of the particular legal service reside or ordinarily reside31 in British Columbia?32

Proceed to question #17

Proceed to question #12

12. Is the name of the purchaser (or is any other name under which the purchaser carries on business33), listed in a telephone directory for any part of British Columbia in which an address or telephone number in British Columbia is given for the purchaser?34

THE PURCHASER IS DEEMED TO Proceed to question #13 CARRY ON BUSINESS IN BRITISH COLUMBIA

13. Does the name of the purchaser (or does any other name under which the purchaser carries on business) appear, or is such name announced, in any advertisement in which an address or telephone number in British Columbia is given for that purchaser?35

THE PURCHASER IS DEEMED TO Proceed to question #14 CARRY ON BUSINESS IN BRITISH COLUMBIA

14. Does the purchaser have employees or other representatives in British Columbia?36

THE PURCHASER IS DEEMED TO Proceed to question #15 CARRY ON BUSINESS IN BRITISH COLUMBIA

15. Does the purchaser have a warehouse, office or place of business in British Columbia?37

THE PURCHASER IS DEEMED TO Proceed to question #16 CARRY ON BUSINESS IN BRITISH COLUMBIA

Proceed to question #17

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QUESTIONS CONTINUED 16. Does the purchaser otherwise carry on business in British Columbia?38

IF YES THE PURCHASER FACTUALLY CARRIES ON BUSINESS IN BRITISH COLUMBIA

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IF NO Proceed to question #25

Proceed to question #17 17. Is the particular legal service provided in British Columbia?39

PST APPLIES TO THE PURCHASE OF THE PARTICULAR LEGAL SERVICE FOR WHICH THE CLIENT, AS PURCHASER, IS LIABLE TO PAY UNLESS OTHERWISE EXEMPT

Proceed to question #26

Proceed to question #38 18. Does the recipient of the particular legal service reside or ordinarily reside40 in British Columbia?41

Proceed to question #24

Proceed to question #19

19. Is the name of the recipient (or is any other name under which the purchaser or recipient carries on business) listed in a telephone directory for any part of British Columbia in which an address or telephone number in British Columbia is given for that person?42

THE RECIPIENT IS DEEMED TO CARRY ON BUSINESS IN BRITISH COLUMBIA

Proceed to question #20

20. Does the name of the recipient (or does any other name under which the purchaser or recipient carries on business) appear, or is such name announced, in any advertisement in which an address or telephone number in British Columbia is given for that person?43

THE RECIPIENT IS DEEMED TO Proceed to question #21 CARRY ON BUSINESS IN BRITISH COLUMBIA

21. Does the recipient have employees or other representatives in British Columbia?44

THE RECIPIENT IS DEEMED TO Proceed to question #22 CARRY ON BUSINESS IN BRITISH COLUMBIA

Proceed to question #24

Proceed to question #24 22. Does the recipient have a warehouse, office or place of business in British Columbia?45

THE RECIPIENT IS DEEMED TO Proceed to question #23 CARRY ON BUSINESS IN BRITISH COLUMBIA Proceed to question #24

23. Does the recipient otherwise carry on business in British Columbia?46

THE RECIPIENT FACTUALLY Proceed to question #25 CARRIES ON BUSINESS IN BRITISH COLUMBIA Proceed to question #24

24. Is the particular legal service provided in British Columbia?47

PST APPLIES TO THE PURCHASE OF THE PARTICULAR LEGAL SERVICE FOR WHICH THE PURCHASER (NOT THE RECIPIENT) IS LIABLE TO PAY48 UNLESS OTHERWISE EXEMPT

Proceed to question #26

25. Is the particular legal service provided in British Columbia?49

Proceed to question #30

PST DOES NOT APPLY TO THE PURCHASE OF THE PARTICULAR LEGAL SERVICE

26. Is the particular legal service in relation to a matter that involves the interpretation or application of an enactment as defined in the Interpretation Act,50 or a former or proposed enactment?51

PST APPLIES TO THE PURCHASE OF THE PARTICULAR LEGAL SERVICE UNLESS OTHERWISE EXEMPT

Proceed to question #27

27. Does the particular legal service relate to a matter that involves the interpretation or application of an enactment,

PST APPLIES TO THE PURCHASE OF THE PARTICULAR LEGAL

Proceed to question #38

Proceed to question #38 Proceed to question #28

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QUESTIONS CONTINUED or a former or proposed enactment, of a jurisdiction other than British Columbia and is a matter in relation to: • a physical or legal presence in British Columbia or contemplated such presence; • an activity in British Columbia or a contemplated such activity; or • a transaction in British Columbia or a contemplated such transaction?52

IF YES

IF NO

SERVICE UNLESS OTHERWISE EXEMPT Proceed to question #38

28. Does the particular legal service relate to a matter that involves the analysis or application of any law and is the matter in relation to: • a physical or legal presence in British Columbia or contemplated such presence; • an activity in British Columbia or a contemplated such activity; or • a transaction in British Columbia or a contemplated such transaction?53

PST APPLIES TO THE PURCHASE OF THE PARTICULAR LEGAL SERVICE UNLESS OTHERWISE EXEMPT

29. Does the particular legal service relate to a contract or covenant, or a contemplated contract or covenant, that is in relation to: • a physical or legal presence in British Columbia or contemplated such presence; • an activity in British Columbia or a contemplated such activity; or • a transaction in British Columbia or a contemplated such transaction?54

PST APPLIES TO THE PURCHASE OF THE PARTICULAR LEGAL SERVICE UNLESS OTHERWISE EXEMPT

30. Is the particular legal service in relation to real property situated in British Columbia?55

PST APPLIES TO THE PURCHASE OF THE PARTICULAR LEGAL SERVICE UNLESS OTHERWISE EXEMPT

Proceed to question #29

Proceed to question #38

Proceed to question #30

Proceed to question #38

Proceed to question #31

Proceed to question #38 31. Is the particular legal service in relation to tangible personal property that can be seen, weighed, measured, felt, touched, or that is in any other way perceptible to the senses (including natural gas or manufactured gas) that is, or that is contemplated to be, ordinarily situated in British Columbia or delivered in British Columbia?56

PST APPLIES TO THE PURCHASE OF THE PARTICULAR LEGAL SERVICE UNLESS OTHERWISE EXEMPT

32. Is the particular legal service in relation to property (other than real property situated in British Columbia or tangible personal property described in question #31, above) that is, or that is contemplated to be, owned, possessed or used in British Columbia?57

PST APPLIES TO THE PURCHASE OF THE PARTICULAR LEGAL SERVICE UNLESS OTHERWISE EXEMPT

33. Is the particular legal service in relation to a right to use property described in question #32, above, that is, or is contemplated to be, used in British Columbia?58

PST APPLIES TO THE PURCHASE OF THE PARTICULAR LEGAL SERVICE UNLESS OTHERWISE EXEMPT

Proceed to question #32

Proceed to question #38 Proceed to question #33

Proceed to question #38 Proceed to question #34

Proceed to question #38 34. Is the particular legal service in relation to a court or any other proceeding in British Columbia or a possible such proceeding?59

PST APPLIES TO THE PURCHASE OF THE PARTICULAR LEGAL SERVICE UNLESS OTHERWISE EXEMPT

35. Is the particular legal service in relation to the incorporation or contemplated incorporation of a corporation under the Business Corporations Act,60 or the Societies Act ? 61

PST APPLIES TO THE PURCHASE OF THE PARTICULAR LEGAL SERVICE UNLESS OTHERWISE

Proceed to question #35

Proceed to question #38 Proceed to question #36

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QUESTIONS

IF YES

THE ADVOCATE

IF NO

CONTINUED EXEMPT Proceed to question #38 36. Is the particular legal service in relation to the registration, or contemplated registration, of a corporation as an extraprovincial company under the Business Corporations Act or as an extraprovincial society under the Societies Act ?62

PST APPLIES TO THE PURCHASE OF THE PARTICULAR LEGAL SERVICE UNLESS OTHERWISE EXEMPT

37. Is the particular legal service in relation to any other matter that relates to British Columbia and is so prescribed?63

PST APPLIES TO THE PURCHASE OF THE PARTICULAR LEGAL SERVICE UNLESS OTHERWISE EXEMPT

Proceed to question #37

Proceed to question #38 PST DOES NOT APPLY TO THE PURCHASE OF THE PARTICULAR LEGAL SERVICE

Proceed to question #38 D

DOES THE PURCHASER QUALIFY FOR AN EXEMPTION FROM PST?

38. Is the purchaser a diplomatic agent or a member of the administrative or technical staff of a diplomatic mission situated in Canada who is a citizen of the country operating the diplomatic mission?64

Proceed to question #45

Proceed to question #39

39. Is the purchaser an official of a United Nations agency situated in Canada, or of any other international organization situated in Canada, who has diplomatic privileges and immunities recognized by the Department of Foreign Affairs and International Trade of the government of Canada?65

Proceed to question #45

Proceed to question #40

40. Is the purchaser a career consular officer of a consular post situated in British Columbia, or of a consular post situated elsewhere in Canada but accredited for British Columbia by the Department of Foreign Affairs and International Trade of the government of Canada and who is a citizen of the country operating the consular post?66

Proceed to question #45

Proceed to question #41

41. Is the purchaser a career consular employee of a consular post situated in British Columbia who is a citizen of the country operating the consular post?67

Proceed to question #45

Proceed to question #42

42. Is the purchaser a spouse of a person described in any of questions #38 to #41, inclusive?68

Proceed to question #45

Proceed to question #43

43. Is the purchaser a United Nations agency situated in Canada?69

Proceed to question #45

Proceed to question #44

44. Is the purchaser an international organization situated in Canada, to the extent that the international organization has privileges and immunities under s. 5 of the Foreign Missions and International Organization Act ?70

Proceed to question #45

THE PURCHASER IS NOT EXEMPT FROM PST UNDER THE CONSULAR TAX EXEMPTION REGULATION

45. Is the purchaser a Canadian citizen?71

THE PURCHASER IS NOT EXEMPT Proceed to question #46 FROM PST UNDER THE CONSULAR TAX EXEMPTION REGULATION

Proceed to question #48

Proceed to question #48 46. Is the purchaser a permanent resident as defined in the Immigration and Refugee Protection Act ?72

THE PURCHASER IS NOT EXEMPT Proceed to question #47 FROM PST UNDER THE CONSULAR TAX EXEMPTION REGULATION Proceed to question #48

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VOL. 82 PART 1 JANUARY 2024

QUESTIONS CONTINUED 47. Is the purchaser an honorary consular officer?73

IF YES

IF NO

THE PURCHASER IS NOT EXEMPT THE PURCHASER IS EXEMPT FROM PST UNDER THE FROM PST UNDER THE CONSULAR TAX EXEMPTION CONSULAR TAX EXEMPTION REGULATION REGULATION Proceed to question #48

48. Is the particular legal service provided to a lawyer, law firm,74 notary or notary firm75 (each, the “particular person”)?76

Proceed to question #49

THE PURCHASER IS NOT EXEMPT FROM PST UNDER SECTION 80 OF THE PROVINCIAL SALES TAX EXEMPTION AND REFUND REGULATION Proceed to question #53

49. Is the vendor an individual who: • provides legal services only to that particular person; and • is not an employee of that particular person for the purposes of the Income Tax Act?77

Proceed to question #51

Proceed to question #50

50. Is the vendor a law firm or notary firm that provides legal services only to that particular person?78

Proceed to question #51

THE PURCHASER IS NOT EXEMPT FROM PST UNDER SECTION 80 OF THE PROVINCIAL SALES TAX EXEMPTION AND REFUND REGULATION

51. Is the particular legal service provided by the vendor only in respect of a particular client of that particular purchaser?79

Proceed to question #52

52. Is the purchase price to that particular purchaser for the legal service to be included in the purchase price of legal services billed or otherwise charged to the client by the particular purchaser?80

THE PURCHASER IS EXEMPT FROM PST UNDER SECTION 80 EXEMPTION AND REFUND REGULATION

THE PURCHASER IS NOT EXEMPT FROM PST UNDER SECTION 80 OF THE PROVINCIAL SALES TAX EXEMPTION AND REFUND REGULATION

53. Is the purchaser of the particular legal service a “First Nation individual”81?82

Proceed to question #55

Proceed to question #54

54. Is the purchaser of the particular legal service a “band”83?84

Proceed to question #55

THE PURCHASER IS NOT EXEMPT FROM PST UNDER SECTION 81(1)(a) OF THE PROVINCIAL SALES TAX EXEMPTION AND REFUND REGULATION

55. Does the particular legal service relate to real property situated on “First Nation land”85?86

THE PURCHASER IS EXEMPT FROM PST UNDER SECTION 81(1)(a) OF THE PROVINCIAL SALES TAX EXEMPTION AND REFUND REGULATION87

Proceed to question #56

56. Is the particular legal service performed on “First Nation Land”88?89

THE PURCHASER IS EXEMPT FROM PST UNDER SECTION 81(1)(a) OF THE PROVINCIAL SALES TAX EXEMPTION AND REFUND REGULATION90

THE PURCHASER IS NOT EXEMPT FROM PST UNDER SECTION 81(1)(a) OF THE PROVINCIAL SALES TAX EXEMPTION AND REFUND REGULATION

Proceed to question #53 THE PURCHASER IS NOT EXEMPT FROM PST UNDER SECTION 80 OF THE PROVINCIAL SALES TAX EXEMPTION AND REFUND REGULATION Proceed to question #53

Proceed to question #53

Proceed to question #57

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QUESTIONS CONTINUED 57. Is the purchaser of the legal service an aboriginal organization representing the interests of “Indians”91 and “bands”92?93

IF YES Proceed to question #58

THE ADVOCATE

IF NO THE PURCHASER IS NOT EXEMPT FROM PST UNDER SECTION 81(1)(b) OF THE PROVINCIAL SALES TAX EXEMPTION AND REFUND REGULATION Proceed to question #63

58. Does the particular legal service relate to aboriginal treaty or land claims negotiations?94

THE PURCHASER IS EXEMPT FROM Proceed to question #59 PST UNDER SUBPARAGRAPH 81 (1)(b)(i) OF THE PROVINCIAL SALES TAX REGULATION95

59. Does the particular legal service relate to consultations with the government of British Columbia or the government of Canada in relation to aboriginal rights or aboriginal title?96

THE PURCHASER IS EXEMPT FROM PST UNDER SUBPARAGRAPH 81(1)(b)(ii) OF THE PROVINCIAL SALES TAX EXEMPTION AND REFUND REGULATION97

60. Does the particular legal service relate to consultations with the government of British Columbia or the government of Canada in relation to interim agreements that relate to aboriginal rights or aboriginal title?98

THE PURCHASER IS EXEMPT FROM Proceed to question #61 PST UNDER SUBPARAGRAPH 81 (1)(b)(iii) OF THE PROVINCIAL SALES TAX EXEMPTION AND REFUND REGULATION99

61. Does the particular legal service relate to negotiations in regard to existing treaties or treaty rights?100

THE PURCHASER IS EXEMPT FROM PST UNDER SUBPARAGRAPH 81(1)(b)(iv) OF THE PROVINCIAL SALES TAX EXEMPTION AND REFUND REGULATION101

Proceed to question #62

62. Does the particular legal service relate to negotiations with other aboriginal organizations in relation to overlapping treaty or land claims?102

THE PURCHASER IS EXEMPT FROM PST UNDER SUBPARAGRAPH 81(1)(b)(v) OF THE PROVINCIAL SALES TAX EXEMPTION AND REFUND REGULATION103

THE PURCHASER IS NOT EXEMPT FROM PST UNDER SECTION 81(1)(b) OF THE PROVINCIAL SALES TAX EXEMPTION AND REFUND REGULATION

63. Is the particular legal service provided to a corporation (the “recipient corporation”)?104

Proceed to question #64

64. Is the particular legal service provided to the recipient corporation by an employee of another corporation that is a “related corporation”105?106

THE PURCHASER IS EXEMPT FROM PST UNDER SECTION 82 OF THE PROVINCIAL SALES TAX EXEMPTION AND REFUND REGULATION

THE PURCHASER IS NOT EXEMPT FROM PST UNDER SECTION 82 OF THE PROVINCIAL SALES TAX EXEMPTION AND REFUND REGULATION

65. Is the particular legal service provided to an individual?107

Proceed to question #66

THE PURCHASER IS NOT EXEMPT FROM PST

66. Is the purchase price for the particular legal service paid either by the Legal Services Society or by a “funded agency”108 within the meaning of the Legal Services Society Act for the purposes of s. 9 of that statute?109

THE PURCHASER IS EXEMPT Proceed to question #67 FROM PST UNDER SECTION 128 OF THE PST ACT

67. Is the purchase price for the particular legal service paid

THE PURCHASER IS EXEMPT

Proceed to question #60

Proceed to question #63 THE PURCHASER IS NOT EXEMPT FROM PST UNDER SECTION 82 OF THE PROVINCIAL SALES TAX EXEMPTION AND REFUND REGULATION Proceed to question #65

Proceed to question #65

Proceed to Part E, below

THE PURCHASER IS NOT EXEMPT

THE ADVOCATE

VOL. 82 PART 1 JANUARY 2024

QUESTIONS

IF YES

CONTINUED partly by the individual and partly by the Legal Services Society or by a “funded agency”110 within the meaning of the Legal Services Society Act for the purposes of s. 9 of that statute?111

IF NO

FROM PST TO THE EXTENT THAT FROM PST THE PURCHASE PRICE OF THE PARTICULAR LEGAL SERVICE IS Proceed to Part E, below PAID BY THE INDIVIDUAL. Proceed to Part E, below

E. HOW IS PST COMPUTED? The amount of PST that is payable by the purchaser of a particular legal service is equal to seven per cent of the purchase price of that legal service.112 The purchase price of a particular legal service is equal to the total value of the consideration provided by the purchaser for the provision of that legal service together with: • all fees and charges, other than those prescribed to be excluded; • all disbursements for legal research or secretarial and other support services; and • all other prescribed disbursements, that are billed or otherwise charged to the purchaser for or in relation to the particular legal service.113 For additional commentary regarding the disbursements that are subject to PST and those which are exempt from PST, refer to pages 4 and 5 of Bulletin PST 106 (Exhibit 1). If the particular legal service is provided outside of British Columbia to a purchaser that resides, ordinarily resides or carries on business in British Columbia, that purchaser is exempt from PST in relation to that portion of the purchase price which is for a legal service that relates to a jurisdiction other than British Columbia pursuant to subs. 127(1) if the purchaser resides, ordinarily resides or carries on business outside British Columbia as well as in British Columbia and part of the legal service relates to a jurisdiction other than British Columbia in the same manner as legal services related to British Columbia (refer to questions #26 to 37, inclusive).114 For these purposes the purchaser must: • make a reasonable estimate, subject to the regulations, of that portion of the purchase price that relates to legal services that relates to a jurisdiction other than British Columbia; • make and retain a record of the estimate and the basis on which it is made; and • if the vendor is required by the PST Act to collect the tax payable, provide a copy of the record to the vendor.115 PST is payable on the earlier of (a) the day the consideration for the purchase is paid, and (b) the day the consideration for the purchase becomes due.116 Consideration for the purchase of a particular legal service becomes due on the earliest of (a) the earlier of the day that the vendor first issues an invoice in respect of the legal service and the date of the invoice, (b) the day that the vendor would have, but for an undue delay, issued an invoice in respect of the legal service, and (c) the day that the purchaser is required under a written agreement to pay the consideration for the legal service.117 In general the vendor of the legal service is required to levy and collect PST from the purchaser of the legal service and to remit the applicable amount of PST to the Ministry.118 However, if the legal service is provided outside of British Columbia by a vendor that is not registered for PST and the legal service relates to British Columbia, the purchaser must self-assess the applicable PST and remit it to the Ministry. In order to self-assess the PST that is due, the purchaser is required to complete and file a Casual Remittance Return (FIN 405) together with the payment of the PST due by the last day of the month following the month during which the legal service was invoiced.

ENDNOTES 1. For the purposes of the Provincial Sales Tax Act, SBC 2012, c 35 (the “PST Act”), if a person provides legal services as a partner in a partnership or as an employee of an individual, partnership or corporation, each reference in the PST Act to that person is deemed by s 129 of the PST Act to also be a reference to that individual, partnership or corporation, as the case may be. Thus, each reference to a “vendor” in this article also includes each such individual, partnership and corporation. 2. Subsection 1(1) of the Legal Profession Act, SBC 1998, c 9 defines “lawyer” to mean a member of the Law Society of British Columbia continued under s 2 of the Legal Profession Act and (a) in Part 2, Division 1 of the Legal Profession Act, includes a member of the governing body of the legal profession in another province or territory of Canada who is authorized to practise law in that province or territory, (b) in Parts 4 to 6 and 10 of the Legal Profession Act includes a

former member of the society, and (c) in Part 10 of the Legal Profession Act includes an articled student. 3. Subsection 1(1) of the Legal Profession Act defines “law corporation” to mean a corporation that holds a valid permit under Part 9 of the Legal Profession Act. 4. Subsection 16(1) of the Notaries Act, RSBC 1996, c 334 defines “notary public” to mean a member of the Society of Notaries Public of British Columbia. 5. Section 1 of the Notaries Act defines “notary corporation” to mean a corporation for which a permit has been issued under the Notaries Act. 6. SBC 2012, c 35. 7. Note that each reference to an enactment in this article is to that enactment as amended. 8. Unless otherwise stated, all statutory references herein are to the PST Act. 9. “PST” and “provincial sales tax” means the tax that is imposed under Part 5, Division 4 of the PST Act.

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10. “A Practical Guide to Determining When to Charge GST on a Supply of Legal Services” (2017) 75(2) Advocate 205. 11. Subsections 179(1) and (2). 12. Section 199. 13. Refer to the post-amble of the definition “legal services” in s 1. This specific exclusion from the definition “legal services” is not interpreted by the Ministry to exclude any subsequent provision of such services by the employer to another person. 14. Answer “no” to this question if the individual is providing the particular service under a contract for service (e.g., as counsel). 15. Even though the particular service may not constitute a legal service which is subject to PST under Part 5, Division 4 of the PST Act, PST may nevertheless apply to the service under another provision of the PST Act depending on the particular circumstances. 16. Subsection 1(1) of the Legal Profession Act defines the “practice of law” as including: (a) appearing as counsel or advocate, (b) drawing, revising or settling (i) a petition, memorandum, notice of articles or articles under the Business Corporations Act, or an application, statement, affidavit, minute, resolution, bylaw or other document relating to the incorporation, registration, organization, reorganization, dissolution or winding up of a corporate body, (ii) a document for use in a proceeding, judicial or extrajudicial, (iii) a will, deed of settlement, trust deed, power of attorney or a document relating to a probate or a grant of administration or the estate of a deceased person, (iv) a document relating in any way to a proceeding under a statute of Canada or British Columbia, or (v) an instrument relating to real or personal estate that is intended, permitted or required to be registered, recorded or filed in a registry or other public office, (c) doing an act or negotiating in any way for the settlement of, or settling, a claim or demand for damages, (d) agreeing to place at the disposal of another person the services of a lawyer, (e) giving legal advice, (f) making an offer to do anything referred to in paragraphs (a) to (e), and (g) making a representation by a person that he or she is qualified or entitled to do anything referred to in paragraphs (a) to (e), but does not include (h) any of those acts if performed by a person who is not a lawyer and not for or in the expectation of a fee, gain or reward, direct or indirect, from the person for whom the acts are performed, (i) the drawing, revising or settling of an instrument by a public officer in the course of the officer's duty, (j) the lawful practice of a notary public,

THE ADVOCATE

(k) the usual business carried on by an insurance adjuster who is licensed under Division 2 of Part 6 of the Financial Institutions Act, or (l) agreeing to do something referred to in paragraph (d), if the agreement is made under a prepaid legal services plan or other liability insurance program. 17. SBC 1998, c 9. 18. Paragraph (a) of the definition “legal services” in s 1. 19. Section 18 of the Notaries Act states as follows: A member enrolled and in good standing may do the following: (a) draw instruments relating to property which are intended, permitted or required to be registered, recorded or filed in a registry or other public office, contracts, charter parties and other mercantile instruments in British Columbia; (b) draw and supervise the execution of wills (i) by which the will-maker directs the willmaker's estate to be distributed immediately on death, (ii) that provide that if the beneficiaries named in the will predecease the will-maker, there is a gift over to alternative beneficiaries vesting immediately on the death of the willmaker, or (iii) that provide for the assets of the deceased to vest in the beneficiary or beneficiaries as members of a class not later than the date when the beneficiary or beneficiaries or the youngest of the class attains majority; (c) attest or protest all commercial or other instruments brought before the member for attestation or public protestation; (d) draw affidavits, affirmations or statutory declarations that may or are required to be administered, sworn, affirmed or made by the law of British Columbia, another province of Canada, Canada or another country; (e) administer oaths; (e.1) draw instruments for the purposes of the Representation Agreement Act; (e.2) draw instruments relating to health care for the purposes of making advance directives, as defined in the Health Care (Consent) and Care Facility (Admission) Act; (e.3) draw instruments for the purposes of the Power of Attorney Act; (f) perform the duties authorized by an Act. 20. RSBC 1996, c 334. 21. Paragraph (b) of the definition “legal services” in s 1. 22. Presently there are no legally related services that are prescribed as legal services. 23. Paragraph (c) of the definition “legal services” in s 1. 24. Even though the particular service may not constitute a legal service which is subject to PST under Part 5, Division 4 of the PST Act, PST may nevertheless apply to the service under another provision of the PST Act. 25. Paragraph (c) of the definition “purchaser” in s 1. 26. Ibid.

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27. Subparagraph (c)(i) of the definition “purchaser” in s 1. 28. Subparagraph (c)(ii) of the definition “purchaser” in s 1. 29. Subparagraph (c)(iii) of the definition “purchaser” in s 1. 30. Subparagraph (c)(iv) of the definition “purchaser” in s 1. 31. Refer to Thomson v Minister of National Revenue, [1946] SCR 209, [1946] CTC 51 for a discussion of the meaning of “resident” and “ordinarily resident”. Of particular relevance is the decision of Rand J where he states that the concept of residence is “chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question. It may be limited in time from the outset, or it may be indefinite, or so far as it is thought of, unlimited”. Refer also to Lee v Minister of National Revenue (1990), 90 DTC 1014 (TCC) for an extensive list of non-exclusive indicia of residency for Canadian income tax purposes. 32. Subsections 126(1) and (2) and para 127(1)(a). 33. Each member of a general partnership (or a limited liability partnership) is considered to carry on the business that the partnership carries on at the location(s) where that business is carried on by the partnership. In contradistinction to the foregoing, if the partnership is a limited partnership, the general partner is considered to carry on the business that the partnership carries on at the location(s) where that business is carried on by the partnership. 34. Paragraph 5(a). 35. Paragraph 5(b). 36. Paragraph 5(c)(i). 37. Paragraph 5(c)(ii). 38. There are numerous other factors which may be relevant in determining the place where a person carries on business. 39. Subsections 126(1), (2) and 127(1). 40. Supra note 31. 41 Subsections 126(1) and (2) and para 127(1)(a). 42. Paragraph 5(a). 43. Paragraph 5(b). 44. Subparagraph 5(c)(i). 45. Subparagraph 5(c)(ii). 46. There are numerous other factors which may be relevant in determining the place where a person carries on business. 47. Subsections 126(1), (2) and 127. 48. It is the purchaser/client, rather than the recipient, that is obligated to pay the PST applicable to the particular legal service because it is the purchaser/client which agreed to pay, or is otherwise obligated to pay, the consideration for that legal service. 49. Subsection 126(1) and para 127(1)(a). 50. RSBC 1996, c 238. 51. SBC 2015, c 18. See paragraph 127(2)(b). Section 1 of the Interpretation Act defines “enact-

ment” to mean “an Act or regulation or a portion of an Act or regulation” and defines “Act” to mean an “Act of the Legislature, whether referred to as a statute, code or by any other name, and, when referring to past legislation, includes an ordinance or proclamation made before 1871, that has the force of law”. 52. Paragraph 127(2)(c). 53. Paragraph 127(2)(d). 54. Paragraph 127(2)(e). 55 Paragraph 126(2)(a) and 127(2)(a). 56. Paragraph 126(2)(b) and 127(2)(a). 57. Paragraph 126(2)(c) and 127(2)(a). 58 Paragraph 126(2)(d) and 127(2)(a). 59. Paragraph 126(2)(e) and 127(2)(a). 60. SBC 2002, c 57. 61. Paragraph 126(2)(f) and 127(2)(a). 62. Ibid. 63. Paragraph 126(2)(g) and 127(2)(a). 64. Paragraph 2(a) of the Consular Tax Exemption Regulation. 65. Paragraph 2(b) of the Consular Tax Exemption Regulation. 66. Paragraph 2(c) of the Consular Tax Exemption Regulation. 67. Paragraph 2(d) of the Consular Tax Exemption Regulation. 68. Paragraph 2(e) of the Consular Tax Exemption Regulation. 69. Paragraph 2(f) of the Consular Tax Exemption Regulation. 70. SC 1991, c 41; see paragraph 2(g) of the Consular Tax Exemption Regulation. 71. Paragraph 3(a) of the Consular Tax Exemption Regulation. 72. SC 2001, c 27. See paragraph 3(b) of the Consular Tax Exemption Regulation. 73. Paragraph 3(c) of the Consular Tax Exemption Regulation. 74. Section 79 of the Provincial Sales Tax Exemption and Refund Regulation defines “law firm” as having the same meaning as in the Legal Profession Act. In turn, subs 1(1) of the Legal Profession Act defines “law firm” as “a legal entity or combination of legal entities carrying on the practice of law”. 75. Section 79 of the Provincial Sales Tax Exemption and Refund Regulation defines “notary firm” as meaning a legal entity or combination of legal entities providing services described in s 18 of the Notaries Act. 76. Paragraph 80(a) of the Provincial Sales Tax Exemption and Refund Regulation. 77. RSC 1985, c 1 (5th Supp). See subpara 80(a)(i) of the Provincial Sales Tax Exemption and Refund Regulation. 78. Subparagraph 80(a)(ii) of the Provincial Sales Tax Exemption and Refund Regulation. 79. Paragraph 80(b) of the Provincial Sales Tax Exemption and Refund Regulation. 80. Paragraph 80(c) of the Provincial Sales Tax Exemption and Refund Regulation.

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81. Subsection 1(1) of the Provincial Sales Tax Exemption and Refund Regulation defines “First Nation individual” as meaning an individual who is an Indian and whose property is exempt from taxation under s 97 of the Indian Act, RSC 1985, c I-5, or under a provision of a final agreement equivalent to that section. 82. Paragraph 81(1)(a) of the Provincial Sales Tax Exemption and Refund Regulation. 83. Subsection 1(1) of the Provincial Sales Tax Exemption and Refund Regulation defines “band” as having the same meaning as in s 2 of the Indian Act, which in turn defines “band” as meaning a body of Indians (a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951, (b) for whose use and benefit in common, moneys are held by Her Majesty, or (c) declared by the Governor in Council to be a band for the purposes of the Indian Act. 84. Paragraph 81(1)(a) of the Provincial Sales Tax Exemption and Refund Regulation. 85. Subsection 1(1) of the Provincial Sales Tax Exemption and Refund Regulation defines “First Nation land” as meaning land that is a reserve or that is treaty lands of a treaty First Nation (a) that were, immediately before the effective date of the treaty first nation’s final agreement, a reserve or surrendered lands and (b) in respect of which a First Nation individual’s property is exempt from taxation under s 87 of the Indian Act or under a provision of a final agreement equivalent to that section. 86. Paragraph 81(1)(a)(i) of the Provincial Sales Tax Exemption and Refund Regulation. 87. Subsection 81(2) of the Provincial Sales Tax Exemption and Refund Regulation prescribes subs 81(1) for purposes subs 145(2). Subsection 145(2) requires the vendor to levy and collect PST in respect of the particular legal service unless the purchaser asserts that it is exempt from PST pursuant to subs 81(1) of the Provincial Sales Tax Exemption and Refund Regulation and the vendor obtains from the purchaser, at or before the time the PST is payable, (a) a declaration in a form acceptable to the director, if required by the regulations, (b) any information or document required by the regulations, and (c) any information or document required by the director. 88. Supra note 85. 89. Paragraph 81(1)(a)(ii) of the Provincial Sales Tax Exemption and Refund Regulation. 90. Supra note 87. 91. Subsection 1(1) of the Provincial Sales Tax Exemption and Refund Regulation defines “Indian” as having the same meaning as in s 2 of the Indian Act. 92. Supra note 83. 93. Paragraph 81(1)(b) of the Provincial Sales Tax Exemption and Refund Regulation. 94. Subparagraph 81(1)(b)(i) of the Provincial Sales Tax Exemption and Refund Regulation.

THE ADVOCATE

95. Supra note 87. 96. Subparagraph 81(1)(b)(ii) of the Provincial Sales Tax Exemption and Refund Regulation. 97. Supra note 87. 98. Subparagraph 81(1)(b)(iii) of the Provincial Sales Tax Exemption and Refund Regulation. 99. Supra note 87. 100. Subparagraph 81(1)(b)(iv) of the Provincial Sales Tax Exemption and Refund Regulation. 101. Supra note 87. 102. Subparagraph 81(1)(b)(v) of the Provincial Sales Tax Exemption and Refund Regulation. 103. Supra note 87. 104. Section 82 of the Provincial Sales Tax Exemption and Refund Regulation. 105. A “related corporation” has the meaning defined in s 148 of the Provincial Sales Tax Exemption and Refund Regulation which states as follows: (1) In this Part, “related corporation” means a corporation that is related to another corporation within the meaning of subsection (2). (2) For the purposes of this Part, a corporation is related to another corporation if (a) one of them is a wholly owned subsidiary of the other, or (b) both of them are wholly owned subsidiaries of the same corporation. (3) For the purposes of this subsection and subsection (2), a corporation is a wholly owned subsidiary of another corporation if at least 95% of the outstanding shares of each class of the share capital of the first corporation are beneficially owned by one or both of the following: (a) that other corporation; (b) a wholly owned subsidiary, or wholly owned subsidiaries, of that other corporation.” 106. Section 82 of the Provincial Sales Tax Exemption and Refund Regulation. 107. Section 128. 108. SBC 2002, c 30. Section 1 of the Legal Services Society Act defines “funded agency” as meaning a person who receives money from the society to provide legal aid but does not include a practising lawyer or notary public. 109. Supra note 107. 110. Supra note 108. 111. Supra note 107. 112. Subsections 126(1) and (2). 113. Section 20. 114. Subsection 127(3). 115. Refer to subs 127(4) and to s 181 to determine the vendor’s obligations as collector of PST. 116. Refer to subs 28(3) and generally to s 28. 117. Subsection 33(1). 118. Subsection 178(3).

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THE ADVOCATE

VOL. 82 PART 1 JANUARY 2024

THE VALUE OF LAWYERS AT MEDIATIONS By David A. Paul, K.C.

hile mediation can be highly effective, it is not a panacea. One key factor influencing a mediation’s outcome is whether the parties have legal representation. Having participated in hundreds of mediations, I can confidently say that lawyers play a crucial role before, during and after the mediation. In this article, I discuss the lawyer’s valuable role in representing their client at each stage. BEFORE MEDIATION Having a lawyer before mediation can be invaluable in helping the client to prepare and negotiate effectively. The lawyer assists by reviewing the case, identifying the issues, explaining the law, helping the client understand their rights and obligations under the law, evaluating the strengths and weaknesses of the case, and developing a strategy for mediation. When appropriate, the lawyer also helps the client prepare for mediation by determining whether to request or provide further disclosure or to obtain expert reports. These additional steps can help to avoid surprises and misunderstandings during the mediation. They can also help facilitate a constructive dialogue. Before the mediation, the lawyer will further assist the client by preparing a mediation brief that outlines the facts, the issues, the relevant law and the client’s position regarding each matter in dispute. DURING MEDIATION During the mediation, the lawyer’s role includes protecting the client’s rights and interests and addressing instances of power imbalance while negotiating persuasively, respectfully and in good faith. As the process proceeds, the lawyer advocates while guiding the client, exploring options, serving as the client’s ally and providing objective and professional advice. As negotiations progress, the lawyer’s role includes helping the client to stay focused, ensuring that the client makes informed decisions by helping the client to understand the legal issues, brainstorming the different options for resolution and helping the client to appreciate and assess the risks of not settling, including the costs of litigating the matter. Disputes, particularly in family and estate matters, can be stressful and emotional, as they may affect the client’s personal life, plans and children’s

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well-being. It is not uncommon for litigants to experience feelings of anger, sadness or frustration. A lawyer can help their client cope with these emotions as they arise during the mediation by helping to address the client’s feelings and by saving face by normalizing the sentiments, if not the behaviour. When necessary, counsel can suggest breaks when appropriate and discuss their observations with the client, including how the client’s conduct may affect the negotiations or the likelihood of a settlement. These steps can help de-escalate the client’s emotions and give the client more confidence to continue the negotiations. Legal representation during mediation helps ensure a fair and enforceable agreement. In family law matters, disputes can have long-term consequences for both parties and their children. Any agreement reached during the mediation must be fair and enforceable. Having a lawyer helps ensure that any agreement reached during the mediation accurately reflects the client’s needs and interests and is supported by law. Once the parties reach a consensus, the lawyer helps formalize the deal by drafting an agreement that accurately reflects the settlement, contains all the necessary terms and conditions, and is enforceable. POST MEDIATION After the mediation, the role of a lawyer includes ensuring that the client and the other party comply with their responsibilities. A lawyer can also help their client file the agreement with the court if deemed appropriate. If disputes or issues arise after the mediation, lawyers can help their clients enforce the terms of the agreement through negotiation, mediation or litigation. CONCLUSION Lawyers play a significant and valuable role in representing their clients before, during and after mediation. They help their clients prepare for the mediation, provide legal advice and guidance, formalize the agreement and ensure that the parties comply with their obligations under the deal after the mediation.

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

THE LOIRE VALLEY: A VISIT AND A TASTING In this edition of the Wine Column, we take you on a journey to that small section of your wine shop where few people go, but which we urge you to visit more often. On these shelves, you will not see the varietals you have become familiar with, such as Cabernet Sauvignon, Pinot Noir or Chardonnay. You will not see photos of Snoop Dogg or Martha Stewart either. Instead, you will see the names of wine-producing regions such as Vouvray, Saumur, Anjou, Muscadet, Chinon and Pouilly-Fumé. These are the wines of the Loire Valley, a region of France that stretches downstream for almost 400 km from the hilltop village of Sancerre to the town of Nantes near the Atlantic. It is known as the “Garden of France” due to its abundance of vineyards and orchards, punctuated here and there by majestic historical châteaux. In the restaurants of Paris, the wines of the Loire are prominently featured on wine lists and greatly appreciated. Here in Canada, though, with the possible exception of Sancerre, the wines are little known and underrated. However, there are many good reasons for the popularity of Loire wines in France. They are authentic, fairly priced, easy to drink and tend to pair well with all kinds of food. Geography and Climate Given the elongated expanse of the Loire Valley, it is impossible to describe in general terms its geography and climate. The vineyards vary from the temperate coastal climate found near Nantes and Muscadet to the inland continental climate that produces the racy wines of Sancerre and Pouilly-

* Bruno De Vita, K.C., and Paul Daykin, K.C., are the wine consultants for their respective firms—Alexander Holburn Beaudin + Lang LLP and Aaron Gordon Daykin & Nordlinger LLP, where they also happen to practise law. They are guest columnists for these pages.

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Fumé. Due to its northern location, the Loire is an area that traditionally has been adversely affected by spring frost and cool summers, occasionally resulting in low yields and wines of less than optimal intensity and high acidity, but in recent years some have observed the positive effects of climate change on the flavour profile and robustness of Loire wines. The Grapes The predominant white varietals from the Loire are Chenin Blanc and Sauvignon Blanc. However, in the Muscadet region located close to the Atlantic coastline, we find a grape known locally as “Melon de Bourgogne”. As the name suggests, it has its origins in Burgundy where it was effectively cast out in centuries past for reasons unknown. Today, its home is the Muscadet and the Muscadet’s most significant appellation, Muscadet Sèvre et Maine. Sauvignon Blanc is used extensively in the region of Touraine, but is best known as being the source of the wines of Sancerre and Pouilly Fumé. Chenin Blanc is the varietal utilized in the wines of Vouvray, Anjou Blanc and the appellation of Savennièrres located within the region of Anjou. At its best, Chenin Blanc can produce wines of superb quality brimming with expressive fruit and notes of honey. The Loire is less known for its red wine, particularly outside of France. Cabernet Franc, a Bordeaux varietal, is planted throughout the Loire but finds its best expression in the wines of Chinon, Saumur and Bourgueil, in the Central Loire. Gamay Noir, Pinot Noir and other red varietals are also planted in the valley but there are few examples of those wines available locally. As the climate, geography and soil profile of the Loire vary significantly from west to east, it is probably best to discuss the wines of the valley by reference to its various regions or appellations. We will begin our tour of the Loire Valley at its far western point and move inland from there, in the opposite direction than one would normally tour the region by bicycle. Muscadet Sèvre-et-Maines The appellation of Muscadet Sèvre-et-Maines is named after two small tributaries of the Loire River and is located just inland from the Atlantic coast. The city of Nantes is contained within it on its western edge. It is said that the ocean influence gives the wines of Muscadet a certain salinity that makes it a perfect accompaniment to oysters and other fresh seafood. Many Muscadet wines are matured sur lie, meaning on the lees of the wine, the “lees” being the dregs or sediment that settles at the bottom of a container of wine, made up of grape seeds, skin fragments and dead yeast cells. Con-

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tact with the lees encourages malolactic fermentation, which may add a certain level of complexity to wine. In Muscadet, some wines are aged for several years on the lees. The Melon de Bourgogne grape appears able to withstand this long aging process and certain examples of this technique, such as one of the wines we tasted (see below), capture the essence of what Melon has to offer. Anjou and Savenièrres Moving eastward from Muscadet, we find the region of Anjou centred on the town of Angers. Although it is further inland, the Anjou still benefits from moderating coastal effects and has a mild climate. There is a significant production of red wine and rosé in the Anjou, but little of it is found here in British Columbia. Anjou Blanc, on the other hand, is available locally in several varieties. It is produced mainly from Chenin Blanc and is known for its stone fruit flavours and vibrant acidity. Within the region of Anjou is the appellation of Savenièrres, located immediately south of Angers. Distinctive and more expensive wines come from this appellation. Made from one hundred per cent Chenin Blanc, the wines of Savenièrres have developed a reputation in France and beyond as being of high quality and long-living. Saumur, Bourgueil and Chinon As we approach the centre of the Loire Valley, we enter the appellations of Saumur, Bourgueil and Chinon located just southwest of the Touraine region. While white wine is made in all these appellations, they are known best for their red wines and principally those that are made from Cabernet Franc. These three appellations are next to one another and share a common limestone soil profile known locally as tuffeau. However, there are notable differences in the wines they produce. The wines of Bourgueil typically have a more robust and muscular style with a potent bouquet and flavour. The wines of Chinon, particularly those made from vines planted near the river, are lighter and known for their refreshing characteristics. Likewise, the Cabernet Franc of Saumur and the neighbouring SaumurChampigny yield wines of vibrant and juicy red fruit which are known for being refreshing and easy to drink. Since the time of Rabelais, Chinon’s most famous son and a wine-lover, the red wines of the central Loire Valley have been appreciated by the French for their simplicity, purity and authenticity. They are worth seeking out. Vouvray Moving further east, we arrive at the small town of Vouvray and the appellation of the same name, located just outside the city of Tours within the dis-

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trict of Touraine. The wine of Vouvray is made from Chenin Blanc. Indeed, some say that Chenin Blanc has become synonymous with Vouvray and vice versa. Located on a plateau on the north bank of the Loire River, the vineyards of Vouvray benefit from the tuffeau, clay and gravel that make up its soil. Vouvray is made in both a dry and sweet style. In warmer vintages, Chenin Blanc grapes can be affected by botrytis, or “noble rot”, which allows for the production of a superb Sauterne-like dessert wine which is highly sought after and can age for decades or longer. Dry Vouvray or Vouvray Sec benefits from the high acidity of the Chenin Blanc grape and exhibits abundant fruit balanced by a refreshing minerality. Unlike its sweeter counterpart, it is probably best consumed within about five years of its vintage. Sancerre and Pouilly Fumé Our final stop on our tour of the Loire Valley is Sancerre and Pouilly-Fumé, found at the valley’s easternmost point. Sancerre is probably the most wellknown Loire wine outside of France. Local wine stores carry Sancerre wines from various producers, and they are well represented on the wine lists of Vancouver restaurants. The town of Sancerre is located on a hilltop on the left bank of the Loire River and is surrounded by rolling countryside with vineyards atop clay and limestone soils. The wine of Sancerre is made from Sauvignon Blanc, but it was not always so. Until the mid-20th century, its wine was made primarily from the inferior Chasselas grape. Following the introduction of Sauvignon Blanc, the popularity of Sancerre grew dramatically, and it became a favourite of many in France and around the world. The very best Sancerre wines are richly perfumed and exhibit classic Sauvignon Blanc flavours of gooseberry and grapefruit, coupled with a refreshing acidity. Pouilly-Fumé is an appellation that takes its name from the village of Pouilly-sur-Loire. Like Sancerre, it is made from the Sauvignon Blanc grape and is grown in limestone soils that also contain a measure of silex or flint. It is said that the presence of the flint gives the wine a smoky flavour, thus the name, “fumé”. There are several excellent examples of Pouilly-Fumé in local wine stores, including those that come from the Dagueneau estate, founded by the late Didier Dagueneau, who became known as the “wild man of Pouilly” and developed a cult following for his distinctive PouillyFumé wines. ********* With our tour of the Loire Valley complete, we provide you with a few recommendations and tasting notes.

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DOMAINE VINCENT CARÊME VOUVRAY SEC 2020 $43 BC Liquor Stores Vincent Carême is a well-known producer of Chenin Blanc which is grown in silex (flint) soils in the Vouvray appellation located in the Touraine district of the Loire, just north of Tours and the town of Vouvray. Carême’s Vouvray Sec is a delicate wine that is light golden in colour and shows both aromas and flavours of citrus and pear. As it was aged in oak for a period of time, it displays a hint of vanilla but retains its crispness and acidity. We would recommend drinking this wine with white fish such as halibut or sole. It is worth pointing out that Vincent Carême and his wife, Tania, also produce a delicious Chenin Blanc from their vineyards in Swartland, South Africa. The wine is labelled “Terre Brûlée” and is comparable to the Vouvray, except in price. It is $20 less! CHINON BEATRICE ET PASCAL LAMBERT, “LES TERRASSES” 2021 $30 BC Liquor Stores This wine is made from one hundred per cent Cabernet Franc. It is ruby red in colour and medium-bodied in texture. The bouquet displays wild cherry. On the palate, there is vibrant red fruit that is somewhat tart but refreshing. There are some spice and anise notes. This Chinon does not see any oak at all. It was aged in concrete vats to retain its juiciness and freshness of flavour. We suggest you match this wine with grilled salmon or some simple pasta with tomato and basil sauce. DOMAINE DE LA CHAISE, TOURAINE CHENONCEAUX BLANC 2021 $29 BC Liquor Stores Like many white wines of the Loire, this offering is made from one hundred per cent Sauvignon Blanc. The fragrant bouquet is of grapefruit but there is also some tropical fruit in there, which is the first hint to the texture and richness of flavour that await you. On the palate, you are met with vibrant, layered fruit flavours and a backbone of refreshing acidity. This was an absolute pleasure to drink and prompted us to go back to the wine store for a few more bottles to share with friends. SAUMUR LIEU DIT LES EPINATS 2021 $21 BC Liquor Stores From one hundred per cent Cabernet Franc, this is a light to medium-bodied wine for easy drinking. It is pure and unaffected, displaying lots of juicy red fruit and a touch of spice and herbs. We would recommend you serve this

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wine slightly chilled to bring out its freshness and maximize your drinking pleasure. Enjoy this wine with pizza margherita or chicken cacciatore. MUSCADET SÈVRE ET MAINE, CHATEAU THÉBAUD, LES BÊTES CURIEUSES 2015 $36 BC Liquor Stores In a tiny image located at the bottom right corner of the label, you can just barely make out winemakers, Jérémie Huchet and Jérémie Mourat, “les bêtes curieuses” (the curious beasts), each sitting astride a wine barrel. We have no idea why they are doing this. This is an intriguing wine because it is aged on its lees for several years before being bottled and released. It is made from 50-year-old vines of Melon de Bourgogne, the grape of Muscadet, and interestingly has some similarities to white burgundy, although with flavours that are more subtle. While the wine is not overtly aromatic, it has appealing citrus flavours that give it vibrancy and depth, notwithstanding its age. We suspect this wine will still be drinking well over the next five years. It would be a perfect accompaniment to freshly shucked oysters or any grilled seafood. YANNICK AMIRAULT BOURGUEIL LE GRAND CLOS 2020 $46 BC Liquor Stores Ruby red in colour, this wine is an example of the deeper and darker side of Cabernet Franc. It would be described by some as a typical “old world” wine as the bouquet and flavour profile seem a reflection of the terroir of the region, combining rich black fruit with earthiness and floral elements. The result is a delicious and robust wine that is best accompanied by a grilled ribeye steak or roast beef. CHÂTEAU DE VARENNES SAVENNIÈRES 2020 $30 BC Liquor Stores From the Savennières sub-appellation of Anjou on the north side of the Loire, comes this delightful white wine made from one hundred per cent Chenin Blanc. It has a pale straw colour in the glass, and notes of melon and lemon on the nose. In the mouth we found tangy citrus flavours and a lingering, almost off-dry finish of poached pear and honey. One would enjoy this with a salad Nicoise or grilled fish, or with a cheese plate on the patio in the summer. Excellent value. SERGE DAGUENEAU & FILLES POUILLY-FUMÉ “TRADITION” 2021 $40 BC Liquor Stores As the renamed company suggests, this wine is made by Valérie Dagueneau

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in her role as lead “vigneronne” as she carries on the proud “tradition” established by her father. There are grapefruit, apple and grassy notes followed by gooseberry, celery and lemon peel in the mouth, and a sharp, tart finish. This wine is very dry and possesses an appealing balance of fruit and acidity. It is easy to pair with a lot of foods, but we suggest shellfish if you are fussy about these things. We served it with a rotisserie chicken and it was lovely. For a special occasion, try her flagship wine “Silex”, which will set you back $200 and is available at Marquis Wine Cellars. DOMAINE FILLIATREAU SAUMUR CHAMPIGNY 2020 $33 BC Liquor Stores Made with one hundred per cent Cabernet Franc, this wine is ruby red in colour and evokes raspberries, tar, tobacco and leather on the nose. In the mouth we found blackberries, stewed prunes and Swiss chard. This Saumur is very dry and quite tannic, rather monolithic and linear, but with persistent fruit throughout. In our view, it needs some time in the bottle and asks to be paired with food with strong flavour, such as sausage or pâté de fois gras. This would be a welcome addition to the cellar of Cabernet Franc fans but challenging for others. DOMAINE FOUASSIERS “LES ROMAINS” SANCERRE 2020 $53 BC Liquor Stores Made from 40-year old vines planted on “silex” slopes with a southwest exposure, this is an excellent Sancerre that will convince you to stop drinking Sauvignon Blanc from New Zealand. Rather than “cat pee on a gooseberry” notes so often associated with Sauvignon Blanc from the new world, this is an elegant, polished wine that features lemon and lime on the nose and melon and honey in the mouth. If you have a chance to nurse a bottle of this while lunching on the warm goat cheese salad at Café de Varennes in Paris’s 7th arrondissement, you will start to think seriously about retirement.

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NEWS FROM

BC LAW INSTITUTE By Ed Wilson*

I am pleased to provide this update as the newly appointed chair of the British Columbia Law Institute (“BCLI”). I have long been involved with a number of legal professional organizations, and as I near the end of my career I am delighted to be chair of BCLI. I have long admired BCLI’s role in the B.C. legal landscape, and I am pleased to chair this organization in this dynamic time. BCLI’s work often focuses on recommending foundational reforms to our laws. In 2023, we saw the implementation of two of our reports into legislation. Bill 17, which amends Part 6 of the Family Law Act, was passed in March. It implements BCLI’s recommendations to reform pension division for separating spouses. In October, the Money Judgment Enforcement Act received royal assent. This new law will make it easier for parties to collect money they are owed following a civil judgment. It implements the recommendations of our 2005 report that also relied on the work of the Uniform Law Commission of Canada. We are always thrilled when our reports are implemented by government. Our work also frequently involves reviewing legal mechanisms to better understand how they can be modernized to reflect current needs, as is the case with the projects featured below. A STUDY PAPER ON INDIGENOUS COURTS As part of our Reconciling Crown Legal Frameworks Program, BCLI is conducting comparative research for a study paper on Indigenous courts. The term “court” is used in this context to denote a body that dispenses justice, without any connotation of resemblance to the western European concept of a court. * Ed Wilson is the chair of the board of BCLI.

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Bringing about consistency between B.C. laws and the UN Declaration on the Rights of Indigenous Peoples (“UNDRIP”), as mandated by s. 3 of the Declaration on the Rights of Indigenous Peoples Act, will mean recognizing the right of Indigenous peoples under Article 5 of UNDRIP to maintain and strengthen their distinct legal institutions, and their right under Article 34 to promote, develop and maintain their juridical systems or customs. While there are numerous examples in Canada of courts and court sessions dedicated to serving Indigenous communities or Indigenous persons, the great majority of these are divisions or special sessions of provincial courts. This is true of the eight Indigenous sentencing and family law courts that now exist in British Columbia, the Gladue courts in Ontario, the Cree Court in Saskatchewan and similar courts in other provinces. Implementation of Articles 5 and 34 of UNDRIP will require the removal of legal obstacles to fully distinct, self-standing Indigenous juridical institutions and processes. There are two examples in Canada now of juridical institutions established by First Nations that are not affiliated with a provincial court system. Both were created by Mohawk communities as an exercise of their inherent right of self-government. These are the Akwesasne Takaia’torehthà:ke (Akwesasne Court) and the Teieia’torehtáhkhwa ne Kahnawá:ke (Court of Kahnawà:ke). These institutions dispense justice in the territories of the respective communities according to traditional principles and values. Difficulties persist in achieving recognition in the Ontario and Quebec court systems for their decisions. These and other difficulties of coexistence with the provincial and federal legal infrastructure are reportedly the subject of continuing discussions by the governing bodies of the Akwasasne and Kahnawà:ke communities with the governments of Quebec, Ontario and Canada. In the United States, Latin America, Africa and countries in the South Pacific, there are examples of Indigenous adjudicative and dispute resolution institutions that co-exist with state-run courts but are entirely separate from them and apply the laws and traditional dispute resolution or peacemaking methods of the peoples they serve. Some of these bodies may apply laws of the non-Indigenous state as well and are not subordinate to first instance courts of the state in doing so. The focus of our research is on these Indigenous juridical institutions that function independently of state-run court systems. By examining how Indigenous juridical institutions function and co-exist with state-run court systems in other countries with colonial frameworks, BCLI hopes to be able to point to how the Canadian legal system can adapt and change to support independent Indigenous juridical institutions and make way for them to flourish.

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ENGAGING PEOPLE LIVING WITH DEMENTIA PROJECT AND ALZHEIMER AWARENESS MONTH The Canadian Centre for Elder Law (“CCEL”) has been a division of BCLI for 20 years. In January 2024, which is Alzheimer Awareness Month, CCEL is wrapping up a three-year project that has explored ways to engage people living with dementia. This project follows on our 2019 Conversations About Care report, which explored the law and practice of health care consent for people living with dementia. The goals of the project are to provide strategies and guidance to health care professionals and caregivers to better engage people living with dementia in health care decision making, while expanding the capacity of people living with dementia to participate in decisions affecting them and their health care decision making. Understanding the barriers that people living with dementia, caregivers and health care professionals face allowed us to identify best practices from the perspective of those with lived experience. The project involves the creation of a set of practical tools that are shared through written, video and graphic means, the hope being that people will be able to access and use this information in ways that will be most accessible for them, particularly those working in a health care setting. NEW PROJECT ON PRIVACY LAW AND ACCESS TO FAMILY JUSTICE BCLI is also launching a new research project on privacy law and access to family justice. This study paper will investigate issues caused by the restriction of information between different courts and in different proceedings in cases involving family violence. For this project, BCLI will identify and understand the barriers to information flow that exist within the judicial system. Problems balancing privacy and information sharing frequently arise in family law matters, in part because multi-sectoral or multi-agency responses are often necessary to provide support and ensure safety. This can further occur where multiple court divisions and legal frameworks are engaged in a family violence case, such as where a criminal trial may coincide with an application for a Family Law Act order. The final product will be a study paper that highlights barriers, explores key concerns and considers possible solutions for this issue. Please check out our website for information on these and all of our projects at <www.bcli.org>.

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THANK YO OU TO OUR VOLUNTEERS, SPONSORS + DONORS O We extend our sincerest gratitude to the 175 volunteer lawyerss who served clients at our 16th annual legal advice-a-th hon this September. Over the courrse of the 10-day event, they provided free legal advice to 480 low-income British Colu umbians in person and virtually from every corner off the province. We also extend thanks to ourr event sponsors and to everyone who w donated funds or sponsored a volunteer lawyer e to support our mission to increase access to justice for all British Columbians. With W your help, we raised $100,690 0. Thank you!

TITLE SPONSOR

MEDIA SPO ONSOR

SUPREME COURT SPONSORS

APPEAL COU URT SPONSORS

Alexander Holburn H Beaudin + Lang LLP Canadian Baar Association – BC Branch Carfra Lawto on LLP Citadel Law Corporation DLA Piper (Canada) LLP Law Society of BC V Victoria Barr Association Veritext Leg Ve gal Solutions

TRIAL COURT SPONSORS

Abbotsford & District Bar Association Crossroads Law Dentons Edwards, Kenny & Bray LLP Hamilton Duncan JFK Law

Richards Buell Sutton LLP L Roper Greyell LLP Trial Lawyers Association A of BC Thorsteinssonss LLP Vancouver Bar Association Coach My Casee

TOP FUNDRAISERS

TOP FUNDRAIS SING TEAMS

Grace Pastine KC - Norton Rosee Fulbright Jamie Maclaren KC - Access Pro o Bono Jennifer Flood - Thorsteinssonss LLP Asha Yo Young - Lawson Lundell LLP L Gordon Brandt - Lawson Lundeell LLP

Lawson Lundelll LLP Norton Rose Fu ulbright Clark Wilson L LLP Thorsteinssonss LLP Access Pro Bon no BC

To get in v olv ed, visit: v acc esspr obono.ca/v v olunt eer-with-us

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NEWS FROM

CLEBC SOCIETY By Adam Simpkins*

UPDATES TO DESKBOOKS The Continuing Legal Education Society of British Columbia (“CLEBC”) is delighted to announce significant updates to three of its highly regarded deskbooks. The Family Law Deskbook caters to both new and experienced family law practitioners, offering valuable insights into firm organization, document preparation and client communication. It includes a comprehensive collection of over 100 family law precedents, checklists and concise legal explanations, empowering users to efficiently manage files and facilitate the training of new staff members. The Conveyancing Deskbook simplifies the complexities of land transfer procedures in British Columbia. It provides a systematic guide for handling all transfer tasks, complete with detailed checklists, more than 70 forms and precedents, and a handy glossary. This resource ensures that practitioners can confidently navigate the conveyancing process, leaving no crucial step overlooked. For lawyers overseeing business acquisitions in the region, the Due Diligence Deskbook proves to be an invaluable asset. Tailored to British Columbia practices, it meticulously outlines every necessary search, accompanied by explanations of the reasons and methods involved. The deskbook further offers a wealth of over 45 search request templates and an extensive directory of contact information, facilitating a streamlined and systematic approach to due diligence reviews. Stay tuned for two forthcoming publications: Financial Issues in Family Law and the second edition of Estate Disputes in British Columbia. For additional information, please visit <www. cle.bc.ca/publications>. * Adam Simpkins is marketing manager at CLEBC.

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CLEBC IS RETIRING ITS USE OF CDS INCLUDED WITH PRINT MANUALS No more obsolete CDs! Starting in September 2023, the forms and precedents included in manuals will be easily downloadable in Microsoft Word via your CLEBC Store account. For more details, visit <www.cle.bc.ca/cds>. IN THE SPOTLIGHT: STEPHEN MUSSELL OF MANDELL PINDER LLP In its September 2023 “Spotlight” feature, CLEBC highlighted Stephen Mussell, a Michif (Métis) dad and Indigenous rights lawyer with Mandell Pinder LLP. In our Q&A with Stephen, he emphasized the vital distinction between Indigenous law and Aboriginal law. Referring to Chapter 2 of Volume 6 of the Final Report of the Truth and Reconciliation Commission of Canada, he noted that Indigenous law pertains to the diverse legal systems that Indigenous peoples have historically followed. In contrast, Aboriginal law emerges within Canadian common law, addressing the presence of Indigenous peoples before colonial settlement. Stephen has studied Michif law extensively but clarifies that he practises Aboriginal law, emphasizing that conflating the two misrepresents Indigenous law and diminishes its inherent power and legitimacy. In his work, he foresees the complexities of Indigenous law playing a pivotal role in future legal discussions, especially considering decisions like R. v. Powley. Beyond his profession, Stephen cherishes family moments and is enthusiastic about decolonization, the Métis Nation’s advancement and personal growth. To read our full Q&A with Stephen, visit <www.cle.bc.ca/stephenmussell/>.

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NEWS FROM

COURTHOUSE LIBRARIES BC By Caroline Nevin*

WHAT’S NEW AT COURTHOUSE LIBRARIES? It’s hard for me to believe that five years have passed since I joined Courthouse Libraries BC (“CLBC”). I spent my first year getting to know the organization, and the next few years working with its great people to help it adapt to a world that changed dramatically in 2020. We did everything in our power—including signing up for a voluntary Red Cross employee testing program—to ensure our libraries could re-open quickly after the pandemic shutdown, to help people access legal resources and the Public Access Computers (“PACs”) they needed to access newly online legal processes and services. I am so proud of what our staff achieved and what a difference we made in really challenging times. Our relationships with Court Services, particularly the registry staff and BC Sheriffs, became a big success story during that period. In a hundred different ways, we worked together to make the path easier for people navigating the justice system during the crisis. We even created a live Microsoft Teams chat running between the Vancouver registry and library staff, providing “warm referrals” for our mutual clients. And those relationships are even stronger today—with the Ministry of Attorney General, we are working on piloting Court Services Online (“CSO”) E-search on all 100 PACs in our 30 locations. This lowers financial and tech barriers to people accessing digitized public court documents, which we see as a significant access to justice gain for the province. We also expect the pilot to help registry staff, referring clients quickly to our libraries to access CSO E-search and locate the exact right documents. We could not do any of this, of course, without our funders’ consistent support. CLBC has two main funding sources: lawyers who pay Law Society

* Caroline Nevin is the chief executive officer of CLBC.

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of British Columbia fees, and their clients who pay into pooled trust accounts, generating interest that is paid to the Law Foundation of BC. The benchers of the Law Society and the governors of the Law Foundation have used those funds to partner with us to ensure great law library service to the legal community and public. Our third major partner is the Ministry of Attorney General, which provides our physical premises in 30 courthouses. The Notary Foundation has also been very supportive, providing some significant information technology (“IT”) investments (we are a very IT-dependent operation, as I am sure you can imagine!). This year, the Law Foundation granted us an extra $1 million for IT improvements to our province-wide network supporting our staff and clients around the province, and $2 million to renew our print and digital collections and make them more accessible, particularly for people outside of Vancouver and Victoria. The reality is that annual cost increases in legal publications (both in print and online) far exceed that of regular inflation, so it affects how many copies or licences we can afford to buy to serve everyone who wants to access a resource. I once asked staff to pick a top-ten list of typical legal publications and to track their cost over time. Cost-of-living adjustment at the time was very low, yet the cost of just this small list increased by seven to fourteen per cent year over year. This is not unusual; in a world where legal publishing is dominated by just a few corporations, and where Canada (and libraries!) are a miniscule bit of their marketplace, we are at their mercy. Thankfully, the Law Foundation governors recognized the need for a significant investment and provided it to us as soon as interest rates began to reliably increase. You will hear more about this project soon, through a wide consultation to learn how our collection can be improved to make the most difference to you and your practice. If you have ideas now, feel free to pass them on to us. We do budget a regular amount every year to update our collections, and here are just a few of the new/updated titles we have added recently that might be of interest: •

Singularity: How Artificial Intelligence Can Make Law Radically Better by Abdi Aidid

•

Truth Telling: Seven Conversations About Indigenous Life in Canada by Michelle Good

•

Indigenous People and the Criminal Justice System, 2nd edition by Jonathan Rudin

•

The Law of Affidavits by John Douglas Shields

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•

Trauma-Informed Law: A Primer for Practicing Lawyers and a Pathway for Resilience and Healing edited by Myrna McCallum, Helgi Maki, Marjorie Florestal and J. Kim Wright

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CLBC Webinar Archive: “How to Use the Tools of Trauma-Informed Lawyering in Life and Work” with Helgi Maki

One of our other exciting endeavours in 2024 is working with the amazing team at the BC First Nations Justice Council to support the Indigenous Justice Centres they are opening around the province in consultation with local First Nations, as well as Métis, urban and other Indigenous-serving organizations. Together, we are exploring what practical library supports make sense for their staff, elders and Indigenous clients. On the subject of training, everyone should take a minute to look at the list of newly archived PD sessions on our website (<www.courthouse library.ca>). We have useful legal research videos (our most popular is “CanLII Tips & Tricks”) as well as a variety of sessions delivered in partnership with other B.C. non-profits like the Community Legal Advocacy Society, RISE Women’s Centre, Access Pro Bono BC, Criminal Defence Advocacy Society and others. It is a real treasure trove of online resources! Five years into working with my colleagues at courthouse libraries around the province, I can tell you with confidence that no lawyer should ever feel alone in facing a legal research challenge. You can call us at 604660-2841 or 1-800-665-2570 toll free, or email <librarian@courthouse library.ca> anytime—we will get you an answer (if in our power) within two business days. We will mail you any book you want to borrow from our catalogue, and send it with a postage-paid return box. We will scan and email documents, and help you hone your research skills. We will never judge your questions—we love questions!—and we will always help you deliver for your clients or organization. Whenever you feel stumped or overwhelmed by a legal research project, remember that CLBC is here for you!

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THE BGUILED DEBATE FINALS THURSDAY, FEBRUARY 8, 2024 ROUNDHOUSE COMMUNITY CENTRE

Marvel, through gales of laughter, as two courageous teams of lawyers humorously debate the maxim: “Justice is blind, but she still peeks through the blindfold.” Don’t miss the (reinstated) annual BGuiled Debate Finals at the Roundhouse Community Centre. Doors open at 6:30, comedic brilliance starts at 7:30. All proceeds go to Access Pro Bono. Buy tickets at www.bguileddebate.com. Do you love self-deprecating lawyer jokes and want to sponsor this event? Email us at bguileddebate@gmail.com.

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LAPBC NOTES By Shari R. Pearlman*

BEHIND THE SCENES AT LAPBC This article gives you a glimpse of the types of help the Lawyers Assistance Program of British Columbia (“LAPBC”) provides and how our lawyer counsellors respond to the needs of the community and spend their time. 7:30 a.m. Executive Director Derek LaCroix, K.C., meets with a law firm partner concerned about the drinking pattern of a lawyer in his firm. Derek discusses recovery support services and explores options to approach the lawyer. Together, Derek and the partner decide that the law firm will tell the lawyer that they have called LAPBC for assistance and that they recommend the lawyer call Lawyer Counsellor Patrick Walker, who expects their call. They assure the lawyer that LAPBC is confidential and that the law firm will not learn what is said in the meeting with Patrick. Derek sets a follow-up meeting with the firm partner to check in and offer support. 8:30 a.m. Assistant Director/Lawyer Counsellor Shari R. Pearlman receives a call from a newer lawyer who finds herself procrastinating frequently, which subsequently creates feelings of overwhelm in her life. The lawyer is concerned her job may be in jeopardy—she is a single person who also helps support her aging father. The lawyer would like to find ways to manage her stress, overcome her procrastination and complete her work in a timely manner. Shari talks with her about her current level of self-care and support network and learns that the lawyer also struggles with overall well-being. Shari provides techniques to help her feel more grounded, brainstorms ways to take care of herself and emails her a worksheet to help her become “unstuck”. She refers the lawyer to the upcoming “Time Management and Boundaries” workshop. Shari schedules an appointment to check in with the lawyer in two weeks.

* Shari R. Pearlman, LCSW, J.D., is the assistant director of LAPBC and a lawyer counsellor.

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9:00 a.m. Lawyer Counsellor Michael Lederman meets with a lawyer who states he feels depressed, unhappy and lonely. Michael inquires further about how the lawyer feels, if they are concerned about self-harm, and about any medical providers they are working with. He asks the lawyer about selfcare and satisfaction level with his job. He learns that the lawyer is successful; however, his home life has not been comfortable since his divorce earlier this year. The lawyer notes that this is the first time he has ever reached out for help. Michael sets up another time to meet with the lawyer via Zoom. Michael refers him to an upcoming workshop “Feeling Better: A Cognitive Approach to Lawyers Managing Depression and Anxiety”. 9:30 a.m. Lawyer Counsellor Michael Kahn is in his office organizing materials for his upcoming LAPBC piece in the Advocate. He receives a call from a lawyer who is grieving the loss of her dear friend. Michael listens to the lawyer and helps her process her pain. They schedule another time to meet and he gives her grief exercises as “homework”. 10:00 a.m. Shari R. Pearlman meets with a lawyer who states he is unhappy in his job. Shari listens and inquires further about how he is coping with his dissatisfaction and asks what he is thinking about doing next. Shari learns that the lawyer feels he is at a career crossroads and would like reassurance, guidance and tools for career self-assessment. Shari refers him to lawyer coach Marv Stern and to an upcoming workshop, “What Can You Do with a Law Degree?” In this workshop, participants meet for four 75minute sessions to help hone job search skills, stay on task with their job search and better assess what types of work make sense for a potential job. In the meantime, she connects the lawyer with a LAPBC volunteer to receive informal mentoring and to practise informational interview skills. 10:30 a.m. Derek receives a phone call from a concerned colleague of a lawyer who appears to be debilitated. The lawyer has observed his peer looking disheveled on several occasions and observed him drink alcohol at a party until he passed out. He noticed the lawyer has been sneaking alcohol into his office and he has often smelled alcohol on his colleague’s breath. The lawyer has admitted his own drinking scares him but he is not coping well with the death of his spouse, and states that drinking helps pass the time. Another one of this lawyer’s friends lives in the same building as the lawyer of concern and has seen him lost in the building on several occasions. She has also often smelled alcohol on his breath and noticed he was slurring his words at times. Derek suggested that the other lawyer call him, too. If two people call, LAPBC will reach out gently and discreetly to assist a lawyer in need. Derek asks for a personal number and the best times to reach the lawyer of concern.

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11:00 a.m. Derek receives a call from another concerned friend regarding the same lawyer who appears impaired by his drinking. This person has known the lawyer most of his life and is prepared to participate in an intervention with the help of Derek. This friend is close with the brother and adult children of the lawyer and is happy to reach out to them to see if they would like to participate. Derek explains that he wants to have a meeting with all four of the potential intervention team members, which includes the two friends and two adult children. He will help and guide them in preparing scripts and in giving specific examples of how they have observed that the impact of the lawyer’s alcohol use has contributed to him acting out of character, harming relationships and damaging his goodwill in the community and legal community. The goal is to share specific concerns along with a message that they love him and want him to get help. Derek’s goal would be to arrange an alcohol evaluation and potential treatment for the lawyer, if needed. Since seeking help is personal and voluntary, the intervention is a unique experience to help people see the reality of their situation and hopefully reach out for the recommended help. It often takes an individual several points of contact to acknowledge and accept the need for outside help and to then engage in evaluation and treatment. As the day progresses, each lawyer counsellor attends to clients and prepares workshops and presentations. At times, they consult with each other, engage in research and resource development, and read and listen for their own edification and training. Each individual on the team is committed to the well-being of the lawyers they serve, as well as the wider legal community.

LAPBC is an independent organization of members of the legal community (lawyers, judges, families and support staff). We provide peer support and referral services to help people deal with personal problems, including alcohol and drug dependence, stress, anxiety and depression. We are volunteers and staff committed to providing confidential, compassionate and knowledgeable outreach, support and education. We seek to foster collegiality among our peers and to promote health and well-being in our community. You can reach LAPBC by telephone at 604-685-2171, toll-free at 1-888-685-2171 or via the LAP website: <www.lapbc.com>.

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6TWUVGF 'HƂEKGPV #TDKVTCN +PUVKVWVKQP Our seasoned international & domestic arbitrators adhere to a fair process and deliver impartial, balanced and timely awards.

resolve@vaniac.org | vaniac.org | 604-684-2821

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A VIEW FROM THE CENTRE By Barry Penner, K.C.*

Among the hot topics in arbitration (and, indeed, in the courts) are whether and when hearings should be in person or virtual. Set out below are the views of Herbert S. Silber, K.C., who is a fellow of the Chartered Institute of Arbitrators and is a domestic mediation and arbitration panelist with the Vancouver International Arbitration Centre. IN-PERSON ARBITRATION HEARINGS – BACK TO NORMAL By Herbert S. Silber, K.C., FCIArb. During the COVID-19 pandemic the use of virtual or online hearings in litigation proceedings generally became the norm. While they performed a valuable function in keeping the wheels of justice turning, I believe that it is now time to normalize arbitration hearings, certainly domestic ones, by making in-person hearings the norm and default position. Here I am specifically referring to evidentiary hearings. Pre-hearings, motion hearings or those to hear closing submissions can certainly be done virtually, if more convenient. However, in-person hearings should be the norm when evidence is adduced. The rationale for virtual hearings during the pandemic was mostly related to lockdowns, use of masks and social distancing which made it challenging or even impossible to conduct in-person evidentiary hearings. However, the landscape has dramatically changed. There are no emergency pandemic measures in place and it does not appear that any are on the horizon any time soon. So, we need to get back the methods that have been used for centuries in evidentiary hearings: in-person examination of evidence. Some of the wellknown benefits of in-person evidentiary hearings are as follows:

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Face-to-face evaluation of witnesses. This is particularly important when credibility is in issue. Communication experts will tell you that 4/5 of communication is non-verbal.

The parties have a better opportunity to “read the room” when the evidence is tendered, so they can consider whether it might be a good idea to settle, as an example. Along the same lines there is an opportunity to develop a rapport when the parties are attending in person, which may lead to a similar result.

While the ability to air one’s grievances in the presence of the opposite party as part of the catharsis of a dispute is normally seen as one of the values of mediation, it has relevance to an arbitration in some instances. Doing so when everyone is in the same room is to be preferred to the sterile environment online.

It is much easier to deal with exhibit evidence and authorities and to follow along. If a party wants to use visual evidence that can be done easily as well and is not subject to the breakdown or lack of familiarity with technical equipment online.

The integrity of the process is much better protected in person. As an example, at an in-person hearing, it is usually obvious if counsel is inappropriately conferring with a witness or if witnesses are texting each other.

While online hearings had value in the context of the COVID-19 pandemic, that no longer provides a rationale. Therefore, it is time to “get back to normal” with in-person evidentiary hearings as the preferred and default position.

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ANNOUNCING THE 2024 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 must include the following sentence “It’s Bateman, not to be confused with __________.”

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 6, 2024. 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.

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PRIZES First prize:

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$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 14, 2025. 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.

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PETER A. ALLARD SCHOOL OF LAW FACULTY NEWS By Heidi Wudrick*

NEW BOOK BY PROFESSOR BENJAMIN PERRIN AIMS TO OVERHAUL CANADA’S CRIMINAL JUSTICE SYSTEM Canada’s current criminal justice system is not working for anyone, says Allard Law professor Benjamin Perrin. Both victims of serious crimes and people who have committed offences agree on that. The search for a better approach to criminal justice is the driving force behind Perrin’s new book, Indictment: The Criminal Justice System on Trial. In Indictment, Perrin takes a closer look at why tough-on-crime tactics have failed and brings forward innovative ideas from around the world that he says could help create a new and better criminal justice system. Indictment was selected as one of Indigo’s “most anticipated books” of fall 2023. We spoke with Perrin about some of the ways our criminal justice system could be reimagined and the impact he hopes his book will have on the lives of Canadians. What inspired you to take on this topic? One day in 2018, I received a handwritten letter from an Indigenous man who was incarcerated. It was eight or nine pages long. At that point, I’d been part of the Harper government’s tough-on-crime approach and helped write the Victims Bill of Rights Act. I hadn’t shown any concern for what life was like behind bars. And yet this man wrote me from his cell, just sharing what his experience in prison was like. What he was saying was deeply disturbing and very human. One specific line has stayed with me: “If you want to turn a man into an animal, put him in a cage, without resources to build him back up.” Around that time, Jody Wilson Raybould, Canada’s first Indigenous Justice Minister, put forward a call for public consultation, asking “If we could

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

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design a new criminal justice system from scratch, what would it look like?” I asked my students that same question and we started brainstorming. After that, I couldn’t get that out of my head—we could do things differently. Redesigning the justice system is a tall order. How did you get started with this project? One of our first steps was to reach out to every victim- and offender-based organization across Canada. We asked one question: What was your experience like with the criminal justice system? Within a day, we started getting calls and got absolutely flooded. We heard from everyone—from someone who’d keyed a car to people who had been convicted of murder. People wanted to tell their stories, and hearing what they had to say was completely life-changing for me. Your book outlines different approaches that have been getting results in communities around the world. What’s one example you’d like to see imported into Canada? One big issue is that police are not equipped to deal with someone who is experiencing a mental health crisis. If the police show up heavily armed and say “get down on the ground,” a typically developed person will likely get on the ground immediately. But this only works for people who aren’t in mental health distress, don’t have unresolved trauma and aren’t using substances at the time. Professionally trained, well-resourced non-police crisis support is something that’s been tested and has been working successfully for over 30 years. In Indictment, we profile a mobile crisis response team based in Oregon called Crisis Assistance Helping Out in the Streets—CAHOOTS. Their mental health and harm reduction workers take between 15 and 20 per cent of all 9-1-1 and non-police emergency calls—at a fraction of the cost. So instead of having the police showing up with weapons, they have someone who doesn’t carry a firearm and who looks like a member of the community. I personally don’t think police officers actually want to show up to meet someone who is having a mental health crisis when the only tools they have are Tasers, handcuffs and firearms. And the research shows it works better to have someone who can meet them where they’re at. What about in Canada? Did you come across examples of initiatives here that are working well? It’s very, very clear that Indigenous-led peacekeeping teams are more effective than police. They have higher rates of community trust and reduced crime rates in First Nations communities that have their own peacemakers, instead of RCMP.

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Likewise, Indigenous-led corrections and Indigenous-led healing lodges are very effective, but they’re all underfunded. So the system does these token things, which can be effective, but they’re not enough. You also spoke with victims of crime as part of your research. What are their thoughts on overhauling the current system? Victims are even more dissatisfied with the system than people who have committed offences. Right now, only a third of crime gets reported to police. People who are victims of crime, who supposedly the system is there to protect, have given up. For those who do go through the system, it’s not working. I’ve had many victims tell me “I want to be involved. This was not a crime against the state. It was a crime against me. I want to look at them in the eyes and hear an apology.” But in reality, people who have committed offences can’t really speak, because it incriminates them. One example from my book is the Collaborative Justice Program in Ottawa, which has been found to have higher levels of satisfaction for survivors and people who have committed offences and lower levels of repeat offences, in comparison with the traditional justice system. Again, at a fraction of the price. In Indictment, I also discuss a federal government report commissioned by Public Safety Canada that looked at dozens and dozens of studies on whether prison works to reduce crime, and they concluded that it does not. They found that excessive use of incarceration comes at an enormous cost, not just fiscally, but also socially. The research shows that for many offences, you’re actually more likely to re-offend if you’re sent to a prison than if alternative measures are used. You’ve also launched the Indictment podcast. What does it add to the conversation? I love listening to podcasts and wanted people to be able to hear for themselves the same powerful stories I heard in my research interviews. Throughout the podcast, you’ll get to hear stories of people’s real experiences with the criminal justice system for yourself. It’s a behind-the-scenes of the book that’s raw and unfiltered—a look inside the system like few have ever seen. In the first few episodes, you’ll hear from a man who was imprisoned after missing a court date and ended up traumatized and homeless, and from an Indigenous survivor of violence who has an incredible story of survival and resilience in the face of failures by multiple systems that were supposed to help. You’ll also hear from a former “tough on crime” politician

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who completely changes his views and from a senior corrections officer who blows the whistle on an ineffective system that isn’t working for anyone. I hope the Indictment podcast will get people talking about the challenges with the system and, more importantly, new and better ways we can address harm in our society. The criminal justice debate is incredibly polarized right now and desperately needs fresh ideas.

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TRU LAW FACULTY NEWS By Ryan Gauthier*

The classrooms are full of students, the hallways are full of life and professors’ inboxes are full of assignments to be marked. Such is the beginning of the new academic year at TRU Law. As we begin our 13th year of teaching at TRU Law, we have welcomed 133 new 1Ls into the building, and to their first steps on the path of practising law. 2014 TEN-YEAR REUNION TRU Law will have its first ten-year reunion on May 17 and 18, 2024. We are looking forward to putting on a meaningful celebration for our first graduating class. HOOPLAW VICTORY The TRU Law team won the annual Hooplaw event in September 2023. Hooplaw is an annual event that brings together members of the legal community throughout the Lower Mainland, as well as the three B.C. law schools, to raise money for charity. This year’s charities were the Children’s Hearing & Speech Centre of BC, Night Hoops, The Mothers Matter Centre and the Rotary Club of Vancouver Sunrise Foundation. The tournament raised over $100,000, and was attended by Premier David Eby, K.C., as well as Attorney General Niki Sharma, K.C. TRU Law’s team went undefeated this year. The team was led by Michael Rouault (class of 2023), who was also named MVP of the tournament. Michael scored a buzzer-beating layup to secure TRU Law’s victory over the Crown counsel team and advance to the championship game. In the cham-

* Ryan Gauthier is an associate professor at the TRU Faculty of Law. In 2023, he completed the “All-Japan Towers Stamp Rally”, visiting 19 towers across Japan. He did not mention this in his sabbatical report to his dean, despite it being his most significant accomplishment of the year.

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pionship, TRU Law faced off against Clark Wilson LLP. TRU Law team members included team captain Braedan Fitzpatrick, Charn Sidhu, Amarvir Mann, Januel Ibasco and Barry Sangha (all class of 2024), and Ben Turner (class of 2023). Just as importantly as the victory on the court, TRU Law also took home the trophy for most fundraising by a B.C. law school. MOOT-RELATED UPDATES At Chief Justice Robert Bauman’s retirement dinner in September 2023, the TRU Law moot program was generously provided a $7,500 donation from the event. We have also received notable gifts from the Vancouver Foundation, Trial Lawyers of BC, Borden Ladner Gervais and Richards Buell Sutton. We are deeply thankful to the community for the contributions to the Lance Finch Memorial Moot Fund and support of the moot program in general. The moot season has kicked off with the National Sports Law Negotiation Moot team competing in San Diego, California. This year, TRU Law was represented by Januel Ibasco and Harman Sandhu. The team was required to prepare and negotiate two problems with sports as the core issue. One problem centred around a dispute between a homeowners’ association and residents over pickleball. The other problem was a negotiation over the future of the remaining members of the Pac-12 football conference, which faces a very uncertain future as 10 members of the conference are leaving in 2024, leaving the conference as the “Pac-2” conference. While TRU did not emerge victorious, one of the judges called the TRU Law team the “most well-researched and prepared of all the teams we watched today”. This preparation was aided by the coaches, Karen Perry, Jesse Olynyk and Natasha Little. TRU Law will host the Kawaskimhon Moot on March 8 and 9, 2024. The Kawaskimhon (which is Cree for “speaking with knowledge”) is a consensus-based, non-adversarial moot. It incorporates Indigenous legal orders alongside federal, provincial and international law. We look forward to welcoming the community to TRU Law for this moot. SPEAKERS AT TRU LAW With the 2023/24 academic year in full swing, so are the various research presentations at TRU Law. Kelly Melnyk and Megan Vis-Dunbar provided the first research presentation of the academic year on September 19, titled “Supporting Vulnerable Adult Witnesses in Criminal Proceedings”. Kelly is the director of the Canadian Centre for Elder Law, which operates under the BC Law Institute (“BCLI”), and Megan is a BCLI staff lawyer. They presented their research on

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supporting vulnerable adult witnesses in criminal proceedings. They discussed measures rooted in legislation, policy, trauma-informed approaches and steps taken in other jurisdictions, to identify best practices to support the effective participation of all witnesses in criminal proceedings. On October 4, Wayne Garnons-Williams, the founding president of International Inter-tribal Trade and Investment Organization and a senior lawyer and principal director of the law firm Garwill Law Professional Corporation, spoke to law and business students with a talk titled “Indigenous International Trade: IPECTA – A New Hope”. The talk focused on the Indigenous Peoples Economic and Trade Cooperation Arrangement (“IPETCA”). IPETCA is a non-binding and cooperation-based arrangement acknowledging the importance of enhancing the ability of Indigenous peoples and Indigenous businesses to benefit from the opportunities created by international trade and investment. The talk provided insight into the key provisions of IPETCA and explained the opportunities it creates for Indigenousowned businesses and Indigenous workers. Anita MacKay joined TRU Law on October 13, coming to us from La Trobe Law School in Melbourne. She presented her talk titled “Underpants and Other Fundamental Rights in Closed Environments”. The talk takes its title from a story where a prison inspector in England left a one-word note for his successor that said “underpants”. The note was a reminder that apparently mundane things we take for granted in the community become incredibly important when every aspect of your life, including what you wear, is controlled by someone else. This is the reality of life in “closed environments” such as prisons, immigration detention centres and police custody. Anita’s presentation explored some of the differences between Australia’s and Canada’s implementation of human rights obligations, in particular the lessons learned from Australia’s experience implementing the Optional Protocol to the Convention Against Torture. And last, but certainly not least, Dean Daleen Millard took time out of her schedule to present on October 19. She spoke to faculty and students in a talk titled “Pollution Exclusion Clauses in Insurance Contracts: A Contiki Tour”. The presentation focused on how commercial insurers may choose to limit or exclude liabilities associated with pollution. The talk compared court decisions from Canada, South Africa, the United States and Australia. Daleen also suggested possible alternatives to the traditional, insurancebased approach to pollution.

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THE ATTORNEY GENERAL’S PAGE By the Honourable Niki Sharma, K.C.*

ENSURING SAFE ACCESS TO JUSTICE: RECOGNIZING THE ROLE OF SHERIFFS IN OUR COURT SYSTEM As lawyers, we know that when people attend court they are often under a great deal of stress, and the last thing they should be concerned about is whether they feel safe in that environment. This is why the B.C. Sheriff Service (“BCSS”) and the 500+ deputy sheriffs serving in 89 court locations across the province are so important. Since I have been the Attorney General, I have gained a deeper understanding of sheriffs as not only an important resource, but also a group of people dedicated to quietly doing their jobs so all the other court users (the judiciary, Crown, defence, public and court staff) can safely do their jobs. In this role, I have had the privilege of touring courthouses in Nelson, Prince George, Surrey, North Vancouver and elsewhere, and it is always comforting to walk in and be greeted by a sheriff. These tight-knit teams know their courthouses inside and out—to many, it is a second home. Lately, sheriffs have been going above and beyond the call of duty to make sure people in communities throughout British Columbia can rely on secure access to courtroom services. Along with them, I remain committed to ensuring timely justice for accused persons, and we have been working since 2017 to reduce delays in the court system. It is no secret that recruitment and retention have been an ongoing challenge here in British Columbia. Unfortunately, our challenges are consistent with what other law enforcement agencies are experiencing throughout Canada. If we are going to continue to provide safe, equitable access to justice services, we must do everything we can to prevent court

* The Honourable Niki Sharma, K.C., is British Columbia’s Attorney General.

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closures, to strengthen access to court services, and to improve working conditions for the BCSS—and we are committed to doing this work. In late 2022, we completed an in-depth analysis, including extensive consultation with sheriffs at all levels, to identify ways to improve retention within BCSS and inform our long- and short-term strategic planning. The result was the creation of the July 2023 report, Understanding Recruitment and Retention in the BC Sheriff Service, which included 46 recommendations. I am incredibly grateful to the BCSS staff and others who shared openly and contributed to this report. In response, my ministry has taken prompt steps to address the recommendations. This includes: •

working on a more competitive pay-and-benefits framework for sheriffs (last increase for included staff took effect April 2023);

•

offering a recruitment-and-retention incentive payment (August 4, 2023);

•

making it easier for people to apply to the sheriff program by removing financial barriers to achieve a low-cost, low-travel application process (April and August 2023 intakes);

•

starting a regional ambassador program to raise awareness at career events and support people through the application process (March 2023); and

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implementing a strategic-marketing campaign (August 2023).

The service is a great recruiting ground for police and other correctional services, and we need to make sure it remains competitive so people can choose a long-term career with the BCSS. I am thankful that our efforts are already seeing positive results. During its summer 2023 intake, the BCSS received a significant increase in applicants compared to the two previous intakes. I look forward to welcoming the newly graduated sheriffs in courtrooms across the province next month. With these changes, I hope we will see more examples like Deputy Sheriff Dennis Corrigan, who was recognized for 50 years at a long-service awards ceremony in October 2023. At the same ceremony, I was impressed by how many sheriffs were recognized for 30 years of service. I am thankful for the work the BCSS does to keep our justice system running safely and efficiently for all those involved. Next time you are at the courthouse, I encourage you to thank a sheriff for their service and the vital part they play in supporting a safer, more equitable justice system for everyone in British Columbia.

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NOS DISPARUS By R.C. Tino Bella

Donovan W.M. Waters, K.C.

The legal profession lost one of its most celebrated and erudite scholars with the death of Professor Donovan W.M. Waters on September 9, 2023. For decades, Donovan was a leading, if not the leading, international expert on trust law. Waters authored several texts including his seminal work, Waters’ Law of Trusts in Canada, which was first published in 1974 and is now in its fifth edition. Donvan’s influence on Canadian jurisprudence has been profound. It is perhaps unprecedented that, as a secondary source, Waters on Trusts has been cited and relied on 43 times by the Supreme Court of Canada and an astounding 1,423 times by lower courts. While this magnum opus is his lasting gift to the common law world, it was his first publication in 1964, “The Constructive Trust: The Case for a New Approach in English Law”, that marked the beginning of his career as a foundational legal thinker. Prior to his analysis of the constructive trust as a remedy, it had been characterized as an assortment of sui generis cases without any unifying legal theory. Today, of course, the constructive trust has evolved into one of the most versatile heads of relief in equity’s toolbox. Perhaps less well known to Canadians are Donovan’s international contributions to the arcane field of conflict of laws and his lifelong mission, as described by his colleague at the University of Victoria Faculty of Law Dr. Robert Howell, to find the “requisite integration of principle and concept between differing (common law and civil) systems of law”. In this connection, Donovan was the Canadian delegate in 1982 to the Hague Conference for Private International Law and was appointed in 1986 as rapporteur for the settling of the Convention on the International Recognition and Validity

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of Trusts. An equally passionate supporter of the uniform law movement, he advocated for the adoption of a uniform trustee act to numerous provincial law reform commissions and received the rare distinction of an appointment as “foreign” advisor to the United States Uniform Law Commission leading to the Uniform Trust Code now adopted by 36 states and counting. In 1992, he was elected as the first person outside the United States to serve as president of the International Academy of Estate and Trust Law. His reach has extended far beyond our shores. Donovan is survived by his three children, Catherine, Anne-Marie and Alastair, and his much-loved grandchildren, Jonah, Alex, Benjy and Claire. He was sadly predeceased by his accomplished and lovely spouse, Maryla, in 2018. She was a powerful figure in her own right, balancing her own work with arts organizations and a pioneering oral legal history project with the raising of a beautiful family, all the while ensuring that Donovan took his head out of a book long enough to delight in play with his grandchildren (often crawling on his study floor, he would regale us). Donovan was born in Brighton, England. His academic rigour was nurtured early on: he remembers fondly his mother’s (successful) efforts to have him schooled with the Jesuits (she would not take “no” for an answer despite the fact that the family was not Catholic). His father was a solicitor in Brighton, and many of Donovan’s mesmerizing Galsworthyian tales of feckless family members (“Aunt Dolly”) needing the protection of a paternalistic trustee (“Uncle Fred”) were drawn from an osmotic exposure to his father’s family practice. In the fullness of time, Donovan studied law at Wadham College at Oxford University, earning his B.A., B.C.L. and M.A. there and his Ph.D. at the University of London. It was as a lecturer at the University of London that Donovan met Maryla, then one of his students with a civil law background. Their union continued happily for 57 years. Those who knew them both would agree that Donovan’s professional successes were very much tied to the strength and support of their marriage. Donovan, Maryla and their children immigrated to Canada in 1965 when Donovan accepted a post as a visiting professor at the University of Saskatchewan. This was followed by an invitation from McGill University as a full professor. In 1974, he was named chair as Gale Professor of Law at McGill. It was while there that the first edition of Waters’ Law of Trusts in Canada was completed and published. In 1977, the University of Victoria Faculty of Law was able to lure Donovan to the West Coast. He remained there for 16 years, retiring as emeritus professor in 1993. The University of Victoria bestowed an honourary doctorate on Donovan in 1995. His many academic distinctions include the singular honours of a Doctor of Civil Law from

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Oxford University in 1990, election as a fellow of the Royal Society of Canada in 1982, and another honourary degree from McGill University in 2006. The end of Donovan’s storied university career led to a new professional chapter in his long life: at the tender age of 67, Donovan entered private practice as senior associate counsel at Douglas Symes & Brisseden and later at Bull, Housser & Tupper (as Norton Rose Fulbright then was). After ten years of commuting to Vancouver from their home in Victoria, Maryla suggested to Donovan that his work travel days were over. This gave the partners of Horne Coupar LLP the (long-awaited) opportunity to invite Donovan to join their firm as senior associate counsel. It has been our good fortune that Donovan not only accepted our invitation but generously shared his prodigious knowledge with our lawyers for over a decade. During his 40 years of academia and 20-plus years in private practice, Donovan acted as legal counsel in relation to the establishment, operation and regulation of a variety of domestic and offshore trust structures created for private and commercial purposes. Donovan advised on mutual funds and other pooled investment trusts, land and mortgage syndication trusts, land reclamation trusts, First Nations trusts, trusts created for active business and business succession purposes, charitable trusts, pension plans and all manner of estate planning structures in wills and family trusts. He was also called upon regularly to provide legal counsel in the context of litigation involving fiduciary relationships and equitable remedies. In recognition of these contributions, in 2016 the International Society of Estates and Trusts Practitioners conferred a Lifetime Achievement Award for his contributions to trust law. But for all of Donovan’s professional accomplishments, it is Donovan the person we will remember. He was kind and thoughtful and blessed with a wicked sense of humour. He read widely outside his field of trust law and was always an engaging conversationalist. As a speaker, Donovan could mesmerize a room of green law students or cynical practitioners alike with his thespian delivery of arcane subject matter. As Leo Amighetti, K.C., would fondly quip: “The only thing worse than speaking before Donovan Waters is speaking after him.” As colleagues who are honoured to have called Donovan a friend, we miss him terribly. One of our senior paralegals who worked with him closely put it simply: “For such a brainiac he was a wonderful man.” He will not soon be forgotten. Mark Horne, K.C., and Fiona Hunter, (with contributions from family, friends and colleagues, but any errors laid squarely at the feet of Mark and Fiona)

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Lynne Dollis

Death may end a life, but for those who live on, it is not the end of a relationship. Many, many people fondly remember Lynne Dollis as a friend, lawyer and judicial colleague. She was a very self-effacing person, a person who never boasted in any way of her many accomplishments. Lynne did not want a funeral and would probably be embarrassed to read the tributes to her here today. Nonetheless, they should be expressed. Lynne was born in Thunder Bay, Ontario on July 1, 1947. Throughout her life she was always amused that her birthday was marked by fireworks. She was raised in Hornepayne, a small village in northern Ontario, which was a division station on the Canadian National Railway. Her father worked for the railroad and her mother was a traditional spouse, raising six children, of whom Lynne was the oldest. Her childhood was wonderful. Lynne lived just down the street from Peggy, and remarkably they would be close friends for the next 70-plus years. They walked to kindergarten together, and spent their youth bicycle riding, swimming, chasing frogs, picking berries and skating on the frozen nearby river. Peggy says, “Teen years were fun … the party years … the Twist, go-go boots, and mile-high hair-dos. One Halloween we went to a party as Fred and Wilma Flintstone. Lynne had her hair up in a Wilma bun, with a chicken bone through it and a few more bones strung up as a necklace. I, as Fred, had a club made from a branch. We won first prize for being so authentic.” Lynne was very musical, earning an Ontario Royal Conservatory certificate in piano, and played the flute in the Barrie, Ontario band, which performed at the Seattle World’s Fair in 1962. Lynne graduated from the University of Waterloo in 1969 with a degree in French. In 1972, she married Nick Mikkelson, an American from Minnesota. For the next 51 years, they enthusiastically travelled around the world, walked their dogs and enjoyed literature and music together. They worked their way out west and Lynne received her LL.B. from UBC in 1977. Lynne articled in Dawson Creek for Dennis Mitchell, who had several years earlier, when he had a law firm in Fort St. John, hired Bev McLachlin when she first came to British Columbia. As Dawson Creek had a woman lawyer, Shirley Giroday, in the 1950s, who was later appointed a Provincial Court judge down south, Lynne had inadvertently chosen a fortuitous legal community in which to commence her career. (Over the years, two women bar-

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risters as well as a number of men from Dawson Creek/Fort St. John were appointed as Provincial Court judges, making the area a noted judicial incubator.) For the next 12 years, Lynne practised mainly family and civil law. Her references for appointment as a Provincial Court judge are identical to what people said about her when she retired, which is an unusual accolade in itself. She was described as well-respected counsel who was “honourable and had a good heart”, having “a very good judicial temperament” and being “a natural for the bench”. Lynne was someone “who had the highest reputation for integrity in the profession”. Lynne was appointed to the Provincial Court in November 1990, and she was assigned to Prince George. She displayed her good sense of humour right from the beginning. As I had been appointed a Provincial Court judge only four months previously, she was amused by my mentorship of her, initiating her into the secret world of judges. On the first day we met, I showed her how to discreetly access the judge’s entrance to the Plaza 400 complex by slipping into the delivery entrance, judicially squeezing past the dumpster and then into the secure corridor. We laughed about the glamour of our new positions, and then for the balance of her career she became my mentor, often advising me on the law or how to handle difficult situations. She was also interested in how to handle herself as a new judge. She asked local defence lawyer Keith Aartsen if he had any advice on fitting into Prince George legal culture. He told her that every morning she should stand in front of a mirror and practise the phrase “I acquit”. From 1995 to 1999, she was the Prince George/Northeast Administrative Judge. It was a position she took on from a sense of duty. She quickly, however, gained a grasp of the bureaucratic side of judging, and often wrote comprehensive directions to the regional lawyers on administrative changes. Lynne took up further French-language training and became one of the court’s French-language judges. Although she was not interested in sports, she watched hockey games broadcast in French to keep up her colloquial skills. In a remarkable effort later in her career she managed to get the chief judge to allow her a year of unpaid sabbatical as she felt it would prevent her from becoming stale. She often spoke to school classes and to local newspaper reporters when they were writing articles on the justice system, and gave occasional presentations at the judges’ education conferences. At this time, as the sole female judge in the Prince George/Northeast District, she was occasionally confronted by unusual situations. Commonly invited to lunches with women’s professional groups, her warm and open manner invited occasional tête-à-tête complaints by attendees about their matrimonial troubles, the inadequacies of their lawyer or dissatisfaction

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with the Supreme Court judge who was doing their divorce. When a woman from Vancouver Island was appointed to be a Provincial Court judge in Prince George, one of the male lawyers phoned Lynne up to complain about a local lawyer not being appointed. Without any sense of irony, he also said that “[t]hey have appointed a woman. A woman!” In Prince George in the 1990s, the Provincial Court judges spent forty per cent of their time away from their home chambers travelling throughout the district, helping out in the Northwest judicial district, or filling in throughout the province. This meant regular long-day trips for Lynne, and judicial weeks spent overnight in other communities. For several years, Lynne flew into two remote First Nation communities three times a year, where the judges spent the week in small villages. She never complained about travelling except for expressing a wish that the judges be provided with large red 4x4 pickups for snowy road trips, instead of the nondescript and uncomfortable vehicles they were provided with instead. The accommodations in the local motels we stayed at in small B.C. communities were often poorly lit, as if their advertising motto was “We feature 40-watt lightbulbs”. Lynn soon began travelling with her own stash of high-watt lightbulbs. In one small town, the motels were so grim that the judges would regularly stay in B&Bs. The one Lynne stayed in was run by a very religious Christian couple. One evening, Lynne was going out to have coffee with a Prince George lawyer who was in town. Her 60-year-old plus female host thought it was very inappropriate for a married woman to be going out alone with a man. The host kept a light on at the door, and stayed up until Lynne returned at 10 p.m. to ensure Lynne was safe. As Lynne was in her 50s at the time, she said it made her feel like a teenager again. In court, she was known for her fair, calm and sympathetic demeanour. A former prosecutor in Prince George, now a judge, recounts that as a lawyer she was hanging around outside the judicial case manager’s office waiting to be called in. Another Crown counsel whose case had just been assigned to a court for the day came out of the office and said, “Great, I have Judge Dollis.” Coming out of the office, just behind him was defence counsel on the same case who was smiling and said, “Good, I have Judge Dollis.” Her rulings in family cases were only very rarely successfully appealed. In the Court of Appeal, I could find only two cases where her criminal sentences were overturned, both for being too firm. Lynne even acted as her own appeal court in one case. In Fort Nelson, with an unrepresented accused facing charges of over .08 alcohol blood level and impaired driving, she forgot what stage she was at in the trial and raced ahead to a conclusion. She convicted the accused of driving over .08 at the end of a voir dire on the

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admissibility of the breath certificate. As Fort Nelson sat only once a month a retrial would be a year away. Adjourning for a new trial in front of another judge was therefore not possible. Lynne entered a judicial stay on that count, acknowledging her error. The trial continued. On the second charge, balancing the scales, she acquitted the accused, demonstrating that she could still fairly weigh the evidence and was not biased against him by her erroneous ruling. Despite her calm reputation, lawyers who forgot their manners in court were corrected. She asked a lawyer who was not standing up when speaking to the court, “Is there something wrong with your back?” At another lawyer, who was not treating a witness properly, she snapped, “Stop looming over the witness!” In 2008, Lynne elected to work part-time as a judge and then retired in 2011 after 21 years. She spent her career supporting the rule of law, in a dignified but very human way. She continued travelling, and she corresponded on e-mail with judges from around the world, particularly with people she had met at the International Association of Women Judges conferences. Lynne walked her dogs, took up regular exercise classes and joined a choir. Sadly, nature saved up the worst for the last. Lynne’s mother had died of dementia and in the last two years of her life Lynne was taken down by the same condition. Her personality rapidly disintegrated and she spent the last year of her life in a specialized care residence, as she could not function at home. In 1990, when they moved to Prince George, Lynne and Nick had fortunately bought a house only blocks away from her lifelong friend Peggy. Continuing their close friendship, they travelled together back to Hornepayne in 2003 for a town reunion. During the last years of Lynne’s life, Peggy supported Lynne at home and then in her care residence, visiting every Thursday. Although almost completely nonverbal Lynne would smile when she heard her friend’s voice. Other friends kindly visited Lynne, brought flowers or took Lynne out for haircuts, while others sent cards, or soft toys to decorate her room. Two retired judges brought a dog to visit. Lynne petted the dog and in one of her rare utterances said, “Good woofer.” Lynne died in July 2023. In a touching final twist, it turned out that Peggy’s granddaughter was a driver for the medical transport company that took Lynne’s body to the funeral home, and Peggy went on a last ride with her lifelong friend. It is appropriate to let Peggy finish this piece, by quoting what she said at Lynne’s celebration of life: “It was a privilege and honour to accompany her with my granddaughter, on her last ride to the funeral home. She looked at peace. I will be forever grateful for having such an amazing friend, and as my children pointed out, she was the sister I never had. In closing … good friends care for each other, close friends understand

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each other, but true friends stay forever, beyond words, beyond distance, beyond time.” In a sad postscript to this account, Lynne’s husband Nick died on October 7, 2023. His health had also rapidly declined, and he passed away in his sleep. Special thanks to everyone who spoke to me about Lynne, but particularly to Peggy DeCicco, Cliff MacArthur for the photograph, Wayne Plenert, Chris Cleaveley and Mary Fus, Elizabeth Bayliff and Doug Baker. Judge Vincent Hogan (retired)

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The Honourable Stephen Douglas Owen, P.C., K.C.

When Stephen Owen’s career was celebrated in the pages of this publication a quarter century ago, his friend, the late Rob Gourlay, K.C., wrote that Steve had already had careers enough for several lifetimes: teacher, lawyer, administrator, human rights advocate, conflict resolver and international consultant. By the time of Steve’s death in June this year, he had added Member of Parliament, federal Cabinet minister, vice-president of UBC and many more roles to that list. But when family, friends and colleagues gathered at UBC’s Chan Centre on September 8, 2023 to remember Steve (on what would have been his 75th birthday), it was not his professional achievements that were front and centre, but rather the essence of the man himself. It was his boundless optimism (“pathological positivity,” according to his sister Jan), his unquestioned integrity, his sense of fun (“He came with the ‘rascal option’ installed at the factory,” said childhood friend Pete Quinn) and his lifelong commitment to doing good in the world that were remembered. Not surprisingly, the qualities that were highlighted in the 1998 Advocate piece1 were recalled again by the array of speakers. From all that has been said and written about Stephen Owen, there emerge two pivotal events that shaped his life and his remarkable career.

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The first was the death of his father, when Steve was just six years old. Milton Owen was a highly regarded lawyer at Campney Owen Murphy & Owen when he was killed in a small plane crash in the rugged mountains near Kemano, B.C. This was especially hard for the young family because the wreckage was not located for several years. Steve’s younger son, Jason, spoke to the assembly about how Steve came to know his father through the stories he was told—of the war hero, the athlete, the beloved husband and the rising star in the family law firm, destined for a career in politics. Absorbing these stories, Steve developed his gift of identifying the most worthy traits in everyone he encountered, and he went on to accomplish many of his father’s unfulfilled goals. The second life-changing event in Steve’s life happened at a freshman dance at UBC. There, he met Diane Koerner, a petite high schooler tagging along with her older sister. Steve went home that night and shook his brother Reid awake to tell him he had met an amazing girl. “I think she’s the one!” he declared, and indeed she was. They began their journey together as adolescents and built a life full of adventure, friendships, deep family connections and public service, each contributing to the depth of each other’s character. Steve was born in Vancouver in 1948. After Milton’s death, the family moved to Kerrisdale, where Steve attended Maple Grove School, played hockey at the community centre and formed enduring friendships at Point Grey middle school. When he was 14, Steve enrolled with brother Reid at Shawnigan Lake boarding school, where they were known as “Owen Major” and “Owen Minor”, though there was never anything minor about Steve (except perhaps his height). Steve excelled equally at academics and at rugby, becoming an indomitable hooker for the 1st XV. He also was one of the first Canadian youth to receive the Duke of Edinburgh Gold Award. After three years in UBC Arts, with a heavy concentration in rugby, poker and bridge, he entered the UBC Faculty of Law in 1969. He always admitted to not having been a very serious student at the time, but an enduring law school memory was of witnessing electroshock therapy and being locked up at Riverview Hospital as part of a prison law seminar taught by Michael Jackson, K.C. When he was interviewed in 2016 by the Allard History Project, he spoke of being captured by the romance of maritime law during his articles at Owen Bird. He and Diane were married by then and they soon were off on their first overseas adventure. Steve did an LL.M. in admiralty law at the University of London while Diane pursued her passion for cooking at Le Cordon Bleu London. (For years the couple held each other to a mutual

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commitment: Steve promised to never enter politics if Diane would promise never to open a restaurant. We see later how that worked out.) Back in Vancouver, Steve did return to the family firm, but it was not long before he was looking to farther horizons and the young couple were headed to a remote village in northern Nigeria and a two-year stint with Cuso International, a Canadian international development organization. He taught math and history and coached sports, taking his boys’ basketball team to a win at the state finals. Steve later recalled this period as a highlight of his life with Diane and an experience that cemented their bond for the rest of their lives. Once back at home, Steve surprised many by returning to the practice of law not in a downtown tower, but as a legal aid staff lawyer in Surrey. Within five years, he was executive director of the Legal Services Society of BC, a post he held from 1982 to 1986. He is widely credited with building crucial support for this program among the practising bar, the general public and the provincial government. Now it was time for another overseas move. Steve and Diane took their young sons to Geneva, where the boys did a year of schooling in French and Steve completed an intensive MBA program at the International Management Institute at the University of Geneva. As he was finishing up that degree, an all-party committee of the provincial legislature appointed Steve as British Columbia’s Ombudsman. Within two years, he was president of the International Ombudsmen Institute. He was among the first to be awarded honorary life membership of that organization, in recognition of his visionary approach. He supported establishment of new institutions in Latin America and eastern Europe and steered the institute toward developing its relations with human rights organizations. As provincial Ombudsman, he faced tumultuous times—contemporaries may recall the Knight Street Pub fiasco, Fantasy Gardens and other scandals involving political interference in public administration. Stephen’s reports were well regarded and resulted in significant and lasting changes. During that time, he also was appointed to inquire into prosecutorial discretion in British Columbia, and his report led to British Columbia’s Crown Counsel Act. When Mike Harcourt became premier in 1991, he called on Steve to help end the growing and increasingly dangerous “war in the woods”. He built the Commission on Resources and the Environment from the ground up and shepherded the development of land use plans for the most intensely contested areas in the province, bringing together forestry workers and companies, environmentalists, Aboriginal people and forest-based communities to find solutions that everyone could live with.

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His colleague Alex Grzybowski recalls standing beside Steve in an angry mob of 2,000 forestry workers, with trucks blocking the highway for kilometres and a caricature of Stephen hanging in effigy from a lamp post over their heads. The crowd was afraid of the changes that were threatening to leave them behind. But after reading Stephen’s report they negotiated with environmental groups and arrived at a plan that is still an important reference point for sustainable resource management in the Cariboo. And he always got a kick out of the popular description of him at the time—a “condo-dwelling, cappuccino-sucking, tree-hugging yuppie”. Alex also sat beside Stephen in a boardroom in Phnom Penh in 1996, across from Cambodia’s two most powerful leaders who were implicated in the brutal slaying of millions. Stephen succeeded in helping create a powerful peace-building institution, as they navigated their country out of the horror of its recent past. Stephen’s unquestioned integrity, his supple mind and his sense of the boundless possibilities of cooperative action made him a man perfectly suited to engage in public policy conflict resolution at a very high level. But Steve was a humble man, and many readers may be unaware of the breadth of his international involvements. He was called on to advise governments and international institutions on several continents on matters of human rights, governance, conflict resolution and environmental sustainability. He investigated security force killings in apartheid South Africa, Northern Ireland, Gibraltar, Kosovo and Cambodia. He was appointed by the Canadian government as an investigator into the brutal slaying of a Somali teenager by the Canadian Airborne Regiment, and it was this that Steve recalled as his most hair-raising assignment. After the Commission on Resources and the Environment, Steve was appointed Deputy Attorney General of British Columbia from 1995 to 1997. There, his skills were put to the test during the armed confrontation and month-long standoff between RCMP and Indigenous protesters at Gustafsen Lake. Next stop was the University of Victoria, where he directed the Institute for Dispute Resolution. At the same time, he served as commissioner and vice-president of the Law Commission of Canada. Now, back to that promise he had made to Diane about political aspirations. He had been approached in the past, but in 1999, a vacancy loomed in Vancouver Quadra, and Prime Minister Chrétien came calling. By this time, their boys were successfully launched, and Diane’s professional life was transportable, so they decided to return to Vancouver and throw a hat into the ring. Quadra was the riding where Steve had been born and raised,

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but he always loved to tell the story of taking out his first membership in the Liberal Party as he walked into the press conference where he would announce his candidacy. He was elected to Parliament in 2000, and again Diane packed up and made them a new home for the weeks spent in Ottawa. He was re-elected in 2004 and 2006. In government he served as Parliamentary Secretary to the Minister of Justice, Secretary of State for Indian Affairs and Northern Development, Minister of Public Works, Minister of Western Economic Diversification, and Minister of Sport. He enjoyed every position, but recalled the most demanding and important role was as Public Works Minister. The sponsorship scandal was about to hit the Liberal Party hard, and Prime Minister Paul Martin called on Stephen to handle the crisis, knowing that his integrity could not be questioned. After a year in Opposition, and with another election expected, Steve and Diane decided that it was time to come home. UBC, his alma mater, had been his largest constituent as an MP, and this is where he finished his professional life, as Vice-President, External, Legal, and Community Relations, bringing together his abiding interests in government, the law and community. At the Chan Centre, Steve and Diane’s older son Taylor recalled his dad taking him at age 12 on a work trip to Haida Gwaii, where Steve was leading a negotiation. For two days, Taylor sat in a corner of a boardroom, watching. His enduring memory is of Steve listening intently, hour after hour, his modesty when speaking and the deep respect he was shown. The lesson Taylor retains is that character matters more to public service than intention or cause, a lesson that seems more valuable than ever in today’s world. Taylor observed that Steve’s idea of incrementally improving democratic institutions is not a sexy proposition, made harder by the reality that our institutions so often fail us and can seem unworthy of our defence. But he always strove to keep the bigger picture in view. As children, both Taylor and Jason sometimes found their father’s ceaseless optimism and predisposition to moderation infuriating. But they and everyone close to Steve have been inspired by his strength of character, and never more so than in his later years when his history of chronic back pain and then creeping dementia took so much from him. Throughout the years and wherever home was, Steve and Diane were consummate hosts, and Diane’s culinary skills made their dinner invitations much sought after. Steve revelled in his role as chief bartender and bottle washer, serving up the perfect martini before dinner and fastidiously cleaning up after. Even when his faculties were deserting him and he could

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no longer reliably take out the trash or perform his other chores, he would gleefully proclaim to guests that “I do drinks, sinks and stinks!” Mercifully, he never really knew how much his condition demanded of Diane, who cared for him with patience, compassion and love. He spent his last months at Point Grey Hospital and even then, whenever he was asked “How are you?” his answer always was a whole-hearted “Buoyant!” In his final days, when he lay immobile in bed, his eyes would still turn towards Diane and his lips would form a pucker for her kiss. To the end, he was a decent, kind, honest and fun-loving man. He lived a full and rich life, committed to making the world a better place. He is deeply missed by so many. Kathleen Keating (borrowing from Jason and Taylor Owen, Alex Grzybowski, Peter Quinn, Reid Owen, Janet Hacin and David Helliwell) ENDNOTE 1. Robert Q Gourlay, “On the Front Cover: Stephen Douglas Owen, QC” (1998) 56 Advocate 837.

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The Honourable Thimer Mohar (“Tim”) Singh

On July 27, 2023, we lost a remarkable person with the passing of the Honourable Thimer Mohar Singh. “Tim”, as he was known to all, was born in South Africa on July 30, 1933. Tim is survived by his loving wife of 67 years Krishna (Kris), his son Umesh and daughter-in-law Rani, his granddaughter Kady, his daughters Shaneela Singh and Anilla Cannell, his granddaughter Alycia and her spouse Parwez Rafique, and his two great-grandchildren, Amaya Cannell and Zayvin Rafique. Tim experienced adversity at an early age. His father died when Tim was four years old, leaving his mother quite destitute. She struggled to provide for her family, walking five miles each day to and from her job as a prison warder. While that might have proved daunting to some children, it created an environment that enabled Tim to develop extraordinary values that molded his character.

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After completing his secondary school education, he taught English at a high school in Natal for eight years. While teaching full-time, he began his studies in law at the University of South Africa at Pretoria. He graduated as the gold medallist of his class. He then practised as a general practitioner of the law in Ladysmith, South Africa, with his older brother. There, his skills as a criminal defence lawyer and a master of the art of cross-examination were nurtured. Family became the main focus of his life, both as a young man and later when he and Kris established their own family. The word “family” had a rather extended definition for Tim, as almost everyone he came in contact with was treated with the same consideration and affection he had for his immediate family. South Africa in the 1960s was not a friendly place to be a “colored man” with a deep-seated sense of justice. Tim became politically active and was a member of the banned African National Congress (the “ANC”). In order to avoid detection by the apartheid regime and its dreaded Security Branch, the organizational structure of the ANC was modelled after the cell structure of the Communist party. Tim’s cell was compromised. He had to make the agonizing decision to leave his successful law practice, his extended family and his familiar culture by immigrating or facing almost certain imprisonment. He and Kris decided that they had to leave, and it became our good fortune that they chose Canada as their destination. Tim, Kris and the three children left South Africa in 1966. Accompanying them on their flight from South Africa to Canada were two members of the Security Branch whose job was to ensure that Tim did not return. The family had left South Africa with little more than the clothes on their backs, landing in Montreal in August. In Montreal, they boarded a bus for a very long ride to Saskatchewan. For reasons quite unknown, Tim had applied for and been accepted as a school teacher in Canwood, Saskatchewan, a farming community of approximately 500 people, 60 miles from Prince Albert. They had little or no concept of the landscape of the country, so it must have been a daunting bus ride through four provinces. They were soon valuable members of the Canwood community but, alas, they discovered that winters in Saskatchewan were quite unlike those of temperate South Africa! Not long after settling into the community, in an environment and way of life that must have been a profound cultural shock to a family from South Africa, Tim, at the age of 33, suffered a severe heart attack. He was hospi-

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talized in the Prince Albert Hospital for six weeks. Kris, who did not drive, was taken to Prince Albert from Canwood by her new neighbours every day. The children were cared for by the people of the town. From that experience, Tim never lost his appreciation for the people of Canada. Teaching high school English in Canada was not the objective of his painful decision to immigrate. Although he enjoyed his time teaching, Tim’s first love was the law, and to that end he embarked on courses to enable him to obtain membership in a provincial law society. In 1967, Tim and the family moved to Flin Flon, Manitoba, where he spent a year requalifying as a lawyer before being called to the bar of Manitoba in 1968. He practised with Pat Ferg (later Mr. Justice Ferg of the Manitoba Court of Queen’s Bench). Tim soon enjoyed a reputation as a very good criminal defence lawyer. He was highly respected both as a lawyer and as a contributing member of his community. He quickly regained the stride that had been interrupted in South Africa and became one of northern Manitoba’s leading counsel. He was counsel for the Flin Flon Bombers. His main job was to keep the players out of legal troubles. Although he enjoyed great success in Flin Flon, Tim did not enjoy the cold weather. In February 1973, Tim attended a bar function in Victoria. Everything was still frozen in Flin Flon, but they were playing golf in Victoria. His friend Don Orchard, who had practised in Thompson, Manitoba, had recently moved to Duncan to join David Williams and Jack Davie in practice. Don suggested that Tim should do the same. Once again, the family was on the move, arriving in Duncan where Tim commenced work at David Williams’ firm. It soon became obvious for those who frequented the courts of lower Vancouver Island, particularly counsel, judges and criminals (both guilty and not guilty), that Tim was special. His constant smile and gregarious nature concealed a rapier-like brilliance. He was a master of the art of cross-examination and eloquent submission, almost always without the benefit of notes. Life in Duncan was good. Tim and his family embraced life in the Cowichan Valley. Tim could play golf year-round. He could fish for steelhead in the Cowichan River. His rural home was five minutes from his office. For the first time since leaving South Africa, he was surrounded by a large East Indian population. The family had an acreage on which they had a menagerie of animals, had a large productive garden and entertained friends and family. No one who visited the Singhs left with an empty stomach. Tim’s reputation for competence spiced with gregariousness was rewarded when, at the request of Dennis Murray for the Crown and Bill Deverell for the defence, he served as a commissioner for taking evidence

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in San Francisco in the notorious case of murder on the Royal Viking Star, chronicled in Deverell’s best-selling book, Fatal Cruise. Tim’s inscrutable demeanour as commissioner was leavened with his skill as a karaoke crooner at night. Tim’s legal reputation led to an invitation to join the County Court, but when he was told he would have to move to Prince George, he declined. Several years later, he was again asked to join the court but once again declined as he would have to move to a cold climate. Ottawa seemed bent on having Tim join the court, as they asked him for a third time, but on this occasion they offered him a position on the County Court of Westminster from where, if he sat for two years, he could then transfer to Victoria. This, he accepted. Clearly, moving was getting easier. Tim and Kris built a home near White Rock and came to love the place so much that when his two years were done, he declined any further moves, choosing to end his career on the bench in New Westminster. Tim spent 22 years on the bench. He loved being a judge. On his frequents visits to South Africa, he was revered in his community as “The Judge”. Tim was not only a very fine judge but also a first-class raconteur who entertained his colleagues at Friday after-court social sessions. These sessions were so popular that visiting judges vied for the chance to come to New Westminster. These social occasions also offered Tim a platform to demonstrate his skill as a lover of scotch whiskey. Between Tim and the late John Rowan, they could taste a scotch and tell you where it came from and often name the brand! He particularly enjoyed the collegiality of his fellow judges in New Westminster. Tim rarely reserved, and he was rarely overturned on appeal. Tim’s legacy is not his jurisprudence but his character. Few members of the B.C. bar and bench have overcome the difficulties that Tim endured from an early age in South Africa, through his immigration to northern Saskatchewan, his penance in Flin Flon, his practice in Duncan and his eventual appointment to the bench. Tim’s infectious smile and his generosity were a visible manifestation of his gratitude toward and his love of the people of Canada. Sir Thomas More was once famously described as a man for all seasons. Considering the extensive contributions Tim made to his family, his profession, his friends and his community, he could also be described as a man for all seasons. We will all miss him. South Africa’s loss was Canada’s gain. May he rest in peace. The Honourable Ron Mckinnon and Brian McDaniel

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The Honourable Patrick Donald Dohm

On August 4, 2023, Patrick (“Pat”) Dohm, former Associate Chief Justice of the Supreme Court of British Columbia, slipped away, and with that we lost one of the most caring and thoughtful souls to have ever graced the bench of this province. He was 88 years old, and leaves behind his beloved wife Barbara, six children and fourteen grandchildren. Born and raised in Kamloops, Pat was the seventh of eight children. His father, Lawrence, was a Canadian National Railway engineer—a notable vocation in a community that has long served as a divisional point for Canada’s two national railroads. In addition to plying a paper route, Pat was a “rink rat”, hanging around the local arena and succeeding in minor hockey. In fact, while he was still in high school, his prowess brought an invitation (and contract) from the New York Rangers to attend their hockey camp. Although his mother, Elizabeth, squelched that prospect (she insisted that the time for games was over), Pat went on to play for the UBC Thunderbirds and earned a hockey “Big Block”. Barbara and Pat knew one another at Kamloops Secondary, but she thought him “loud and bossy”, and they did not date. However, after Pat obtained his B.A. degree and Barbara her lab tech degree, Barbara’s mind was changed when, at a friend’s 1958 wedding reception, Pat invited her to dance and she discovered that Pat “had the moves”. Married the next year, Pat and Barbara were a great team—on the dance floor and in everything else—for more than 64 years. Pat graduated from UBC Law in 1961 and articled at Russell & Dumoulin (now Fasken). But Pat and Barbara decided to return home to Kamloops, where Pat soon achieved partnership at the historic Fulton firm. Pat’s litigation practice included frequent ad hoc Crown counsel work, predictably leading to his appointment (at only 37 years of age) to the County Court of Yale. To describe the Dohm household as busy would be an understatement, but as varied as their children’s activities were, Pat and Barbara never had to nag or push Marty, Kelly, Paul, Monica, Craig or Aaron, even when their young lives were disrupted by the family’s 1980 relocation to Vancouver after Pat’s appointment to the Supreme Court.

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Pat and Barbara shared their home with a succession of energetic and reasonably obedient standard poodles, and neighbourhood dog walks usually ended most days. Barbara was also active at Point Grey Golf Club (she served as Club Captain), but Pat considered golf a waste of time. That aside, Barbara loved her kitchen and sharing what she baked, while Pat loved gardening and sharing his spectacular dahlias and roses with family and friends. There are “Dohm” cookie tins and flower vases scattered about Vancouver. Pat’s judicial career was both varied and outstanding. He quickly gained a reputation for being practical and efficient, and counsel learned to tailor their submissions accordingly. Lengthy, soporific arguments backed by volumes of case law were not the way to go, and Pat’s decisions, invariably delivered orally as soon as counsel sat down, were always clear and concise, seldom attracting appellate scrutiny. When appropriate, his decisions were also tempered with a measure of compassion. Unlike the Vancouver County Court, there was no “senior judge” position in Yale County when Pat was appointed in 1972. But his energy, decisiveness and convivial nature predictably led to an informal (if unstated) leadership role, given his inclination to respond whenever anyone needed support. Interestingly, that willingness to help even extended beyond Pat’s own trial commitments, and Provincial Court judges in Kamloops soon got used to registry messages stating: “Judge Dohm is down and available to help.” Where else in the province did that happen? Because Pat loved driving the Interior roads, out-of-town trial work was always welcome. But frequent travel also helped him to develop and foster friendships with judges throughout Yale County. It was during a trial week in Vernon that Pat provided his colleague, the formidable Judge Washington, with reason to roar with laughter as Pat related a tale that eventually became almost legendary among Pat’s many friends. Arriving at Pat’s hotel room in Vernon for “a wee dram” before dinner, Judge Washington looked around vainly for Pat’s television. He wanted to watch the 6:00 p.m. news. Sheepishly, Pat explained that he thought too much “study time” was being spent with television watching by the family in Kamloops, so before Pat left for Vernon he disconnected, removed and stored the family television set. When, after his first day in court in Vernon, Pat booked into his room, he noticed that there was no television. Pat’s inquiry at the hotel front desk revealed that a message had come “from Kamloops” that the judge wanted the television removed from his room “for this stay”.

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Those out-of-town travels also involved noon-hour visits to local antique shops and second-hand stores. Pat loved old clocks, and Barbara must have shaken her head every time Pat returned home with another relic to be fixed and added to his collection. But he generously shared repaired clocks with colleagues, sometimes even “suggesting” an ideal location to place a gifted clock. Relocation to Vancouver hardly dampened Pat’s inclination to move about. Like his friend, Justice Sam Toy, Pat was curious about what was happening around him and, following Sam’s example, Pat occasionally presided in the Provincial Court at 222 Main Street. Pat knew that the Chief Justice was not enthusiastic about the Toy/Dohm vacation-time forays, but those visits were much appreciated by the judges serving at that challenging location. What about his time as Associate Chief Justice? When Pat was appointed to that supervisory role in 1995, his long-time friend, the Honourable Martin Taylor, opined: “Of the new Associate Chief Justice it can be said that getting things done is his genius, and humanity his book, and whatever his duties may be, many will benefit from both in the coming years, as they have in the past” ((1995) 53 Advocate 181). Indeed, while Pat’s penchant for “getting things done” was well known before he was appointed Associate Chief Justice, “humanity” was, in fact, truly “his book”, and his availability and caring support became hallmarks of his term. Mere mention of a colleague’s health or family issues brought Pat’s immediate and helpful response. There were, of course, challenges, such as dealing with the tough issue of tardy reasons for judgment. Although Pat occasionally sent short written “reminders” (always in green ink), those messages were rare, as he preferred chambers visits, which were, in any event, more consistent with his view that personal contact enhanced collegiality. It should also be noted that, in sharing administrative duties with four Chief Justices (none of whom had Pat’s extensive criminal law experience), he astutely emulated his predecessor, the esteemed David Campbell, in two important ways. First, Pat took great care in assigning and monitoring jury trials. Second, he continued to schedule himself in weekly “fix date” sittings, which, combined with his recognized sentencing acumen, provided opportunities for plea reconsideration—important in a high-volume court. Pat ended his stewardship before he wanted to. As stated in his family’s touching newspaper remembrance, “he remained in that position until he reached the mandatory retirement age of 75, working until 5 p.m. on his very last day. He truly loved being a judge.”

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But the Dohm judicial chronicle has not ended. It began, of course, with Pat’s older brother Thomas, a Supreme Court justice from 1966 to 1972, continued through Pat’s 38 years, was also marked by the service of Pat’s nephew Anthony (Tom’s son) as a Provincial Court judge in Nanaimo from 1998 to 2015, and continues with Pat’s son Paul, an Associate Chief Judge of the Provincial Court. It has been, and is, quite remarkable. That said, we miss Pat’s rich voice, his wonderful smile and his huge presence. Ross Collver, K.C. Richard Peck, K.C.

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Mathew Good

Mathew Good died on April 27, 2023 at the age of 37, nine months after being diagnosed with cancer. He leaves his wife, Claire Hunter, K.C., children Zoë and Olin, and extended family. Called to the British Columbia bar in 2011 after clerking for Justices Huddart and Tysoe at the Court of Appeal, and Chief Justice McLachlin at the Supreme Court of Canada, Mat practised civil and commercial litigation and class actions with Hordo Bennett LLP, with Blakes and finally as a sole practitioner—Good Barrister—where his practice centred primarily on plaintiff’s class action work. Mat was raised in Vancouver in a wonderful and loving household by parents Ed Good and Anna Maddison, alongside siblings Jocelyn and Conrad. Mat was connected by blood or marriage to many members of the bar. His father Ed is a career barrister. His mother Anna was a lawyer and lobbyist. His grandfather, Harry Maddison, was the senior Yukon Supreme Court justice from 1969 until his retirement 30 years later. Mat married Claire Hunter, K.C., and was proud to be the son-in-law of Justice John Hunter of the Court of Appeal and Rebecca Winesanker Hunter, retired after a career at the Department of Justice. Various other cousins from Vancouver to Ontario fill out the family’s very deep “bench” strength.

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Mat was, at various times, a member of the bars of Alberta, Manitoba, Ontario, Quebec (on select files) and most proudly the Yukon, where he always took a file if it would get him up north. Along with dad Ed and grandfather Hank, the Goods were perhaps the only three-generation family of lawyers up north. Mat was proud to be a third-generation lawyer. Only later in law school did he discover his heritage went a generation further back. He was delighted to discover that he could not do worse in his career than his greatgrandfather who, despite attending Yale Law, had managed to get himself disbarred from the Alberta bar for being a drunk and was thus not spoken of in the family—the “bar” was set very low indeed. Mat had family encounters with members of far-flung legal communities. On a CLE trip to Israel at a visit to the Supreme Court on which Claire and Mat brought baby Zoë, he absented himself from a small-group session so as not to wake the baby or disturb the lecture. Having finally gotten her to sleep, he was bouncing her on his shoulder in the hall. Along came two Israeli jurists talking loudly. “Shush!” Mat muttered sternly, pointing at the baby. The robed ones stopped to admire the baby and pat her on the head, and walked off. Mat learned only later the shushee had been then-president of the Supreme Court, Esther Hayut. Throughout his career, Mat had the benefit of mentorship from many talented lawyers and judges including David Klein, Paul Bennett, Randy Hordo, K.C., Bill Kaplan, K.C., and Justice Harvey Groberman, with whom Mat taught a course on statutory interpretation. Mat’s age and relatively short career belie a long list of professional achievements. He argued or made submissions before each level of court in Canada, on several occasions in French. Mat was a true believer in the power of class actions as a tool to seek redress in the face of large-scale injustices. Using the tools of class action procedure, Mat assisted victims of the Samji Ponzi scheme in obtaining recovery well beyond the usual level in record time. Mat contributed to access to justice in other ways. He was recognized for his pro bono work as the recipient in 2016 of Access Pro Bono’s Allan Parker QC Award for Representation Services. Among his pro bono matters, he was proud to have obtained Indian status for two minors using statutory interpretation to compel the government to issue them cards. He was a prolific volunteer in the profession, serving at various times on the boards of the Justice Education Society of BC, Association des juristes d’expression française de la Colombie-Britannique and the British Columbia Law Institute.

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Mat built a successful sole practice with the ability to take on major files, often with novel and innovative case theories. He did this through collaboration with a range of co-counsel across Canada. Many of his co-counsel continue prosecuting claims that had their genesis in his creative legal mind. In another twist, Mat found himself acting as an expert witness on Canadian class action law in the Delaware Court of Chancery. Mat found time to publish articles on an array of legal and social subjects beyond daily practice, including in this publication. In 2015, he received a legal research grant from the Law Foundation of BC to support his work. His writing on class actions (from law school no less) was endorsed by the Supreme Court of Canada.1 He continued to write on class action topics and was asked by Justice Ward Branch to co-author the loose-leaf text Class Actions in Canada. In his all-too-short but brilliant time with us, Mat developed and maintained many close friendships with his colleagues in the law and their partners. They describe Mat as the vibrant centre of their law family. An old soul in a young (and extremely tall) body, topped with a giant brain. A human quantum particle, who possessed a remarkable breadth and diversity of interests and the ability to approach issues from every side. To his friends and family, Mat was the preternaturally gifted big-hearted giant. He could transition effortlessly from dancing at Balkan music camp to singing Colombian pop songs, and maintained an encyclopedic knowledge on matters ranging from obscure legal doctrines to the best sushi restaurants in Tokyo. To the more casual observer, Mat’s unique combination of traits could be confounding. During Mat’s brief foray into representing industry at the Trans Mountain pipeline hearings, a protester against whom Mat was seeking an injunction referred to a particularly rakish pair of socks Mat wore to court, stating: “With socks like those, you’re on the wrong side.” On another occasion, while Mat was dancing with abandon to Balkan brass music at an East Side festival, an observer remarked perplexedly to Claire: “Your boyfriend looks like he reads the National Post.” Even during his illness, Mat remained intellectually curious. Shortly before his passing, at a lunch with two of his co-counsel to celebrate some recent successful class action judgments and settlements, Mat lauded the emboldened U.S. Federal Trade Commission under its chair Lina Khan, and wondered aloud about what impact he could have had in a public consumer protection role had things turned out differently. While excelling in the law, Mat still carved out time for his more eclectic hobbies: he was a longtime supporter and member of the Vancouver Bach

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Choir and had a passion for Balkan dancing sufficient to command a week of his time at a dance camp every summer. In a fitting tribute to Mat’s love of music, art, his children and their community, his former law offices at 3615 West 4th Avenue in Vancouver have been reopened as the Good Centre for the Arts, a community centre dedicated to providing music and art lessons to children. Among the factums, certification motions and journal articles Mat authored, he would likely say that the most important thing he ever wrote was a letter, delivered by hand to Claire Hunter not long after they met at a party, setting out the case for why they should date. It led to a marriage he was grateful for to a woman he adored and of whom he was fiercely proud. It also led to his proudest achievement, being father to daughter Zoë and son Olin. After he got sick Mat would recount to a friend the blessing of not working because it meant more morning snuggles and chats with his kids. Mat loved his children dearly and was excited about all the remarkable things they will undoubtedly accomplish. While the rigours of private practice can harden many by their second decade at the bar, Mat insisted on protecting the smells, tastes, colours and textures of life. Don’t drink bad wine, and do hug the people you love. To have known him was to see the possibility of “having it all”—a wonderful family, a rewarding and successful career, and an appreciation for the beauty in the everyday. Nicholas Isaac, Sam Jaworski and Peter Senkpiel, K.C. ENDNOTE 1. AIC Limited v Fischer, 2013 SCC 69.

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NEW JUDGES By R.C. Tino Bella

The Honourable Judge Jacqueline McQueen

Jacqueline Grace “Jacqui” McQueen was sworn in as a judge of the Provincial Court of British Columbia on May 5, 2023. The path that led her there, as this short piece will demonstrate, was circuitous and unconventional, but fated nevertheless. Jacqui was born on a sunny June day in 1969 in Edmonton, Alberta, the second child of Ron and Grace, who were still teenagers at the time of Jacqui’s birth. Jacqui’s early life was an itinerant one, moving nearly 20 times in her first 18 years, raised by two young parents who had little money, no education and few prospects. Jacqui’s first experience with the Provincial Court occurred when she was six years old, when her parents separated and sorted out their differences through multiple court appearances in Kelowna, British Columbia. When Jacqui was in grade two, her father moved to Alberta with her older brother, Jeff, and Jacqui relocated with her mother to Richmond, British Columbia. Jacqui’s father passed away when she was 30 years old, after many years with no contact. Her brother, Jeff, went on to serve in the Canadian military for 25 years. Jacqui’s mother, Grace, was first employed as temporary Christmas help at Sears, yet over the years rose through its ranks, supporting herself and Jacqui, and in doing so instilling in her daughter a strong work ethic and sense of independence. Grace’s determination and drive—virtues she demonstrated for the sake of her young daughter—eventually prompted her in her 40s to obtain her bachelor of business administration and master’s degree in organizational development, working in human resources, and later as general manager of the University of South Florida book stores. As Jacqui says, her mum “enjoyed lots of success despite her start”. Like mother, like daughter.

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In Richmond, Jacqui attended Brighouse Elementary, JN Burnett Junior High and Richmond Secondary School. Throughout her school years, Jacqui participated in many sports, including cross-country, soccer, basketball, volleyball, softball and cheerleading. But Jacqui’s great love and real talent lay in the pool, swimming competitively with the Richmond Kigoos and Racers, which later led to work as a lifeguard and swimming instructor. With earnings from that job and many others, Jacqui paid her own way through university. After graduating from high school, Jacqui initially considered becoming a nurse. However, when Grace was transferred to Sears in Toronto, Jacqui followed, enrolling in the Urban and Regional Planning program at what was then known as Ryerson University (later, Toronto Metropolitan University) to explore her interest in community development and social policy. Jacqui’s commitment to serving others came naturally and early: during her Ryerson years, Jacqui worked at Woodgreen Community Centre, running a federally funded life skills program for at-risk youth and later undertaking a community services needs assessment. She also worked at the City of Toronto in the planning department, where she completed a similar community services needs assessment in the Parkdale neighbourhood. When Jacqui was 19, Grace met her spouse, Rich, and moved to live with Rich in Florida. It was Rich who fulfilled the role of a loving and encouraging father to Jacqui. The support that Jacqui has received from her parents has been fundamental in her rise to the bench. Rich and Grace raised a daughter who excels professionally, yes, but also raised a daughter who is loyal, conscientious and true to her convictions. Rich and Grace were there for Jacqui at her judicial welcome ceremony and frequently return to Vancouver to visit Jacqui and her family. Not yet sure of her career goals, Jacqui decided to apply for early admission to Osgoode Hall Law School at York University and was admitted. She describes her early experience there as “complete culture shock”, having never met a lawyer before landing there. She earned her LL.B. in 1993. While at Osgoode, Jacqui joined the Community and Legal Aid Services Program (“CLASP”), and ultimately became a division leader in the Community Education and Law Reform Section and later the chair of its board. At CLASP, Jacqui worked in a variety of areas, including running specialized clinics at the AIDS Committee of Toronto and at the Latin American Community Centre, focusing primarily on refugee matters. After graduating from Osgoode, in what one might consider the reverse order, Jacqui completed her bachelor of arts degree at York University, attending school part-time while articling and working as a first-year asso-

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ciate at a small litigation firm north of Toronto. At that firm, one of Jacqui’s principals was Heather McGee, now a judge of the Ontario Superior Court of Justice, who was an important mentor to her and provided Jacqui with experiences in criminal, young offender, civil and family matters in Jacqui’s first year of practice. In the summer of 1996, Jacqui returned to British Columbia, where she found litigation work with Diana Davidson and Leslie Muir (now, Master Leslie Muir). In 1997, Jacqui signed on with Karen Nordlinger, K.C. However, Jacqui’s first stint with Karen was short-lived. Jacqui’s partner at the time, Simon, had obtained a position as a boat builder in China, and in the spring of 2000, the couple embarked on that adventure together. Unfortunately, Simon’s job did not pan out, and the couple ended up in Simon’s home country, New Zealand, where Jacqui sewed sails for a sail manufacturer before getting a job as a law clerk with Wilson McKay in Auckland. Jacqui was called to the bar in New Zealand in 2001. After the relationship ended, Jacqui returned to Vancouver in 2002 and was hired as an associate with Lindsay Kenney LLP. While at Lindsay Kenney LLP, Jacqui practised family law and civil litigation under the guidance of Frank Potts and Angela Thiele, who provided Jacqui with additional experience in the courtroom, encouraging Jacqui’s acumen in advocacy. In 2005, after a short time working outside of law as a program coordinator with Ovarian Cancer Canada, Jacqui joined Aaron Gordon Daykin as an associate. It was at Aaron Gordon Daykin where Jacqui’s dedication to family law was solidified under the leadership of Paul Daykin, K.C. and the late George Gordon. After her return to Canada, Jacqui met and became fast friends with Colin, whom she married in October 2008. Thrilled to have a family of their own, Colin and Jacqui welcomed twins Alex and Jacob in 2010 and their third son Ryan in 2012. Jacqui was away from practice beginning in 2010, returning to part-time practice as a sole practitioner in 2012, running a pension for family lawyers practice and taking civil litigation piecework. In February 2010, Karen Nordlinger, K.C., merged her practice with that of Paul Daykin and George Gordon, rebranding the firm as Aaron Gordon Daykin Nordlinger LLP (“AGDN”). Then, in February 2015, Jacqui returned to her home at AGDN, becoming a partner in 2018. Jacqui’s practice had come full circle. At AGDN, Jacqui performed miracles, running a busy family law practice while raising three active, athletic boys, serving as a bencher for the Law Society of British Columbia, and participating in a range of other committees and pro bono legal advice groups.

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If Jacqui has a weakness, it is her willingness to volunteer. In 1996 and 1997, Jacqui served on the executive of two Canada Bar Association subsections (Young Lawyers and Gender Issues). She was the B.C. representative at the CBA National Young Lawyer Committee, and was a member of the CBABC’s Women Lawyers Forum mentorship committee between 2003 and 2005 and participated as a mentor. Jacqui was an executive member of the CBABC Vancouver Family Law subsection from 2006 to 2007. Jacqui has presented at Continuing Legal Education Society of BC, Trial Lawyers Association of BC and other conferences, was a member of the British Columbia Legal Institute committee reporting on family law pension division, and has volunteered as a contributing author for CLEBC. The list goes on. Jacqui was first elected by her peers as a bencher for the Law Society of British Columbia in January 2019 and continued there until her judicial appointment in 2023. During her time at the Law Society, Jacqui enthusiastically served as a member of the Executive Committee, Credentials Committee, Lawyer Development Task Force, Unauthorized Practice Committee, and Access to Justice Advisory Committee. She served as chair and member of the Practice Standards Committee, the Rule of Law and Lawyer Independence Advisory Committee, and the combined Ethics and Lawyer Independence Advisory Committee. At AGDN, Jacqui was our unofficial human resources representative, possessing as she does a soft shoulder on which to cry. But more importantly, she provided wise guidance on all ethical matters, her moral compass steadfastly pointed to true north. Jacqui took silk in 2020. It would not be the last time she would receive a call from the Attorney General. When Jacqui applied to the Provincial Court of British Columbia, with her characteristic self-deprecation, she thought that her chances of an appointment were remote. The rest of us, however, were convinced that Jacqui was heeding a call and that an appointment would soon follow. When Jacqui received the phone call from Attorney General Niki Sharma, K.C., in April of last year, we were proven right. At AGDN we lost a partner, the Law Society lost a bencher, and clients lost counsel, but the Provincial Court and the public at large gained a very fine judge, of whom Colin and the boys are justifiably proud. In her winding path to the bench, Jacqui has benefited from the mentorship of Karen Nordlinger, and the late, great George Gordon, and has followed the trail blazed for her by other members of the same little family law boutique who became judges: the Honourable Justice Terrence Warren, the Honourable Judge Catherine Warren and the Honourable Judge Suzanne MacGregor.

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One might say that a judge’s robes are woven from the fabric of her life lessons and experiences. In Jacqui’s case, she is adorned with an appetite for hard work, a strong sense of fairness and a compassionate understanding of those less fortunate. You will find her at Robson Square, with her door open. ЖЖЖ

The Honourable Judge Paul Sandhu

Paul Sandhu’s professional and personal journey, as unpredictable as it has been, has been informed by his childhood values. In his personal life, he has aspired to be an equal partner with his spouse, Mona, and to be a loving, positive and present influence in the lives of their two daughters, Anika and Karisa. He brings that same passion and commitment to his professional career. Paul’s paternal grandparents were both illiterate farmers in India. His father was the youngest of four children. As a young boy in the 1930s, Paul’s father had to walk several kilometres along unpaved and sometimes unsafe paths to attend school. In the 1940s, older siblings in the armed forces supported him through school and university, enabling him to obtain a master’s degree in arts and a master’s degree in education, and establish a successful teaching career. Like many first-generation Canadians, Paul’s father wanted his children to have better access to education and more opportunities than existed in India at that time. In the early 1960s, he left India and his family in search of a better life for his wife and Paul’s three older siblings. After working briefly in the Royal Mail in England, Paul’s dad came to British Columbia in 1964, teaching in Oliver for two years before moving to the West Kootenay community of Trail. The rest of the family arrived in Canada in 1966, and Paul was born in Trail two years later. The family of six lived in a modest 1930s house, a place they would call home until his father retired in 1996. When Paul’s mother was a toddler, she and her infant brother were orphaned. As a young girl in 1930s India, she was given an opportunity to study only basic language (not sciences) for a few years. She was diagnosed with cancer in 1972 and passed away in 1974, leaving behind children aged

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20, 17, 12, and 6 (Paul). Paul’s father never remarried, choosing instead to raise his children on his own while continuing his full-time job as a high school teacher. As a latchkey kid, Paul learned self-reliance and independence at an early age. He describes his upbringing in Trail as a most consequential and amazing experience. The family home was across the street from Butler Park, a well-known baseball field in the Kootenays. Paul and his friends earned money for “spits” and pop by keeping score during games on the old metal number scoreboard. Throughout his childhood, he and his friends spent falls and winters playing shinny on the streets and parking lots in town and summers playing scrub baseball. Paul recalls his high school highlight as when he and a group of misfit friends beat a “ringer” team of junior hockey players in a school floor hockey tournament. Paul’s fondness for his childhood is tempered by his experiences as one of the only families of colour in a predominantly Italian community. Having been born in Canada in a community with few persons of colour, Paul was raised with little exposure to or understanding of his own cultural background. His father felt it necessary that the family only spoke English in the home to ensure his children’s education would not suffer. This alienation from his culture became more apparent when Paul’s grandmother came to Canada following the death of his mother. A language barrier prevented Paul and his grandmother from speaking with one another until a few years later when he started to pick up some words of Punjabi. Notwithstanding Paul’s ostensible removal from his own culture, he learned through elementary school that he could also be seen as “different” from the kids he played and went to school with. Paul recalls several instances of being stopped and harassed by a group of older kids on the way to school, usually with verbal barbs, and occasionally accompanied by pushes and punches. He never complained of these incidents, in part out of fear of reprisal and in part out of a desire to be accepted by his childhood peers. During these interactions, one of the older boys repeatedly (and to Paul, inexplicably) referred to Paul as “Anwar”. It was only when Paul was watching “The National” news on CBC with his father that he realized the name was in reference to Egyptian president Anwar Sadat, a non-white person with darker skin. While he went on to foster and develop some lifelong friendships with some classmates, these experiences would inform Paul’s understanding of societal challenges with discrimination and diversity and the importance of empathy for those in difficulty. Paul graduated from J. Lloyd Crowe High School in Trail in 1986. In his final year of high school, he developed an interest in policing and occasion-

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ally accompanied the local RCMP detachment on “ride-alongs”. Recognizing his lifelong love of cars and his desire at the time to own a “really nice” one, Paul’s father convinced him that he should be a dentist, and he was admitted to the science program at the University of Toronto. Within two months, Paul realized that he had little interest in the sciences and loved writing. However, as an impulsive 18-year-old, his attention turned more strongly to policing and he approached the Metropolitan Toronto Police to apply to join the force. The recruiter took one look at Paul’s high school transcript and said, “you need to go to university—now” and refused to accept his application. Paul returned to British Columbia, spent some months renovating his childhood home and then attended Simon Fraser University’s School of Criminology, where he enjoyed tremendous academic success and was nominated by the university for a Rhodes Scholarship. He gained early admission to UBC’s law school in 1990 after three years of undergraduate studies and completed his LL.B. in 1993. He loved labour law and was given an opportunity during law school to work with the iconic John Baigent on a matter representing a firefighter’s union. Paul considered pursuing a career in labour law, but he missed his Interior roots and left the Lower Mainland for an articling position with the Kamloops firm of Bilkey, Quinn, which specialized in bank collections and insurance defence work. He recalls going to the Kelowna Law Courts on Christmas Eve to seek an order nisi against an elderly woman living in a motor home. That moment crystallized his decision to pursue other areas of the law. Following his marriage in 1995, Paul joined the Vancouver law firm of Kang & Company, where he practised criminal defence and immigration law. At the time, the firm was one of very few that provided legal services to the growing South Asian community. This almost karmic experience compelled Paul to reconcile the experiential reality of his Canadian birth and education and his Indian heritage. During his tenure at this firm, Paul’s linguistic and cultural knowledge was bolstered, and he gained extensive experience in immigration and human rights appellate work. Following the birth of their first daughter, Paul decided to hang up his own shingle and worked as criminal defence and immigration counsel throughout the Lower Mainland. This transition enabled Paul and his spouse—an optometrist—to juggle their work schedules and care for their daughter. Paul fondly recalls the flexibility, joys and hazards of parenthood and private practice. In one instance, after making submissions on behalf of an in-custody client, he recalls defence colleagues pointing out to him in court that he had a “Nutrio” cereal piece stuck on the shoulder of his navy

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blazer. On another occasion, a defence colleague thankfully stopped him in the parkade as he was walking to court with a baby pacifier still clipped to his jacket lapel. Working as duty counsel in Surrey provided Paul with a front-row seat to the challenges facing accused persons in a large and growing community. In his immigration practice, Paul’s concern for the plight of politically persecuted individuals provided him an opportunity to make submissions directly to the United Nations High Commissioner for Refugees based in Geneva. In 2004, following the birth of their second daughter, Paul discussed with his spouse a desire to serve the public more directly. Over the years, he had worked regularly with the Surrey Crown and desired a return to a more collegial work environment. Paul approached (now Justice) Terry Schultes about joining the Crown and felt fortunate to get an auxiliary position. Over the next 19 years, Paul contributed to the Criminal Justice Branch (later, the BC Prosecution Service or “BCPS”) in different ways. He started as trial Crown, prosecuting a myriad of cases including sexual assaults, robberies, murders and a dangerous offender proceeding. In late 2007, he was asked to fill in for a departing bail Crown in the busy Surrey office. In what would prove to be a career-altering moment, he was encouraged to apply for an administrative Crown position in Surrey’s front end. Paul was reluctant to leave day-to-day courtroom activity, but he decided to accept the position after reflecting on the advice of his father: “Some things are bigger than us individually.” Paul soon recognized that the demands of that position, and rapidly developing changes in local and provincial justice programs, would mean fewer opportunities in court and a greater focus on human resources, planning and policy. In 2011, Paul became a deputy regional Crown counsel (“DRCC”) in the Fraser Region, responsible for Surrey, the largest and busiest provincial Crown office. During his tenure as DRCC, Paul was involved in several local, regional and provincial initiatives, including the Provincial Court Scheduling/Crown File Ownership Project. With BCPS headquarters, he worked with facilities on the planning, design, construction and move of the Surrey Crown Counsel office from the Surrey courthouse to the former city hall building in 2015. Prior to this move, Paul established Surrey’s first team of prosecutors and staff dedicated to intimate partner violence (“IPV”). In 2015, with the support of branch management, he authored a proposal to the Office of the Chief Judge and other justice partners for the development of a courtroom dedicated to front-end IPV files. Following a pilot, Surrey’s front-end IPV courtroom was made permanent in 2016 and remains operational to this day.

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In 2018, Paul planned and coordinated the implementation of provincewide Crown-led bail on weekends and statutory holidays. This initiative significantly expanded access to justice for accused persons by introducing Crown charge assessment and the involvement of both Crown and defence/duty counsel for all accused persons in all locations in British Columbia. In addition to his involvement in broader justice initiatives, as DRCC, Paul remained involved in operational work, including work with police on major files such as wiretap authorizations. For his efforts, he was recognized with two “E” Division Commanding Officer Commendations (in 2019 and 2022). During his tenure as DRCC, Paul also oversaw tremendous growth and expansion in the Surrey Crown Counsel office. He recalls with a smile conversations with now Provincial Court judge and colleague Craig Sicotte about hiring most of his office to join the provincial Crown. As it did for the world, everything changed in spring 2020 with the onset of the Covid-19 pandemic. Paul recalls being concerned, first and foremost, for the health and safety of his professional staff and Crown colleagues. He also wondered how the Surrey office would be able to continue processing the large volume of files to meet the needs of the justice system. Within a week of COVID-19’s onset, Paul recalls having conversations with justice partners and the Office of the Chief Judge about what could be done to manage in-custody matters and other files. Over the summer of 2020, Paul participated in regular stakeholder meetings as a BCPS representative to plan for all pandemic-related contingencies. Recognizing the immediate necessity and potential longer-term benefits, Paul worked with other BCPS employees on a move from paper files to a safer, remote electronic process. He engaged with the judiciary, Court Services Branch, Legal Aid BC, representatives of the Criminal Defence Advocacy Society and the Association of Legal Aid Lawyers, the Public Prosecution Service of Canada and all police agencies to explore and implement new measures to ensure access to justice while maintaining public health safety. These efforts included presentations to facilitate what was recognized as a seismic transition for the criminal bar. The Canadian Bar Association, B.C. Branch recognized the BCPS’s efforts with the 2020 Innovative Workplace Award. Paul’s focus on provincial initiatives through the summer of 2020 led to his being appointed as the BCPS director of legal operations, a position he held within BCPS until his appointment to the Provincial Court. During the pandemic, Paul worked extensively with the Office of the Chief Judge and other justice partners in the development and implementation of the daytime virtual bail program.

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The successful implementation of weekend bail and the daytime virtual bail program was due in no small part to Paul’s persistence, reminiscent of Calvin Coolidge’s famous quotation: “Nothing in the world can take the place of persistence. Talent will not; nothing is more common than unsuccessful men with talent. Genius will not; unrewarded genius is almost a proverb. Education will not; the world is full of educated derelicts. Persistence and determination alone are omnipotent.” During his time as defence counsel, Paul participated in legal education within the community through organizations including the People’s Law School and Options Community Services. More recently, Paul has contributed to the community as a member of the Rotary Club. He has participated in several initiatives, including regular street clean-ups, the Starfish school meal program, book sales and shred-a-thons, and donations of medical supplies to Ethiopia and Guatemala. Recently, Paul initiated Rotary’s involvement in a bicycle donation program that encourages young girls in Nepal to remain in and attend school. Paul was also an active member of the Ministry of Attorney General’s and BCPS’s Equity, Diversity, and Inclusion groups. Paul is not without his faults. He is a diehard Montreal Canadiens and New York Yankees fan. He is also a vegetarian. In 2011, Paul was so enamored with the Canadiens that he made a bet that the Canadiens would defeat the Boston Bruins in the playoffs, failing which he would buy the entire Surrey Crown Counsel office pizza. Of course, the Bruins won. True to his word, Paul bought the entire office pizza. True to his beliefs, Paul bought the entire office vegetarian pizzas, much to the chagrin of his colleagues. In his free time, Paul enjoys running, bike riding and listening to the golden age of music from the 1960s to 1980s. He is partial to Pink Floyd, Springsteen and the Eagles, but is known to also have much softer music on his Spotify account. He also has a love for drawing (cars mostly) and occasionally writing fiction and song lyrics. As an empty nester, he is also looking forward to more travel with his dear spouse, without whom he acknowledges he would not have accomplished anything: “She encouraged my pursuing a career in law, she brought to us and raised two amazing daughters, she’s a caring and dedicated professional in her own right, and she reminds me every day that I am not as smart as I may think I am.” Paul says he has been blessed to have lived in a family of strong, intelligent women, and it has made him a better person. He also points to his father’s advice over the years as guiding his life’s journey. “From the days he and I watched ‘The National’ news together when I was a little kid, he instilled in me an interest in civics, democracy

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and justice.” Over the pandemic, in particular, Paul was reminded time and again about the importance of hearing all perspectives, being respectful of the opinions and limitations of others, and the need to make decisions that reflect the broader interests of justice. Paul views our justice system as a fundamental pillar of our democratic society and believes that judicial independence is vital to its well-being. He is also encouraged by the energy, strength and independence of young people such as his two daughters. “It’s been a hell of a journey. I am so very humbled and grateful for the trust that others have placed in me,” Paul says, “and hope that my life’s experience will benefit all of those who appear before me.” For those of us who know Paul, we know that trust is well placed. ЖЖЖ

The Honourable Justice Bradford Smith

The news of Bradford Smith’s appointment to the B.C. Supreme Court was cheered by all those who have had the benefit of knowing and working with him. As one former colleague said, he is very well suited to his new role as a judge, with his keen understanding of the legal system and of the participants who must navigate it. Her advice to those who would be lucky enough to appear before Brad is to have your pencils sharpened, your pages numbered correctly and your tabs pressed, and to know that he understands people and will do the right thing. Brad was born in Johannesburg as the eldest of three children. He grew up in a suburb of Cape Town before his family immigrated to Canada in 1987. Brad initially lived in Ontario and worked as an insurance adjuster. His work on fraud files alongside lawyers cemented his long-time desire to go to law school with a plan to practise criminal law. Brad attended Osgoode Hall Law School, where he was a student leader at the law school’s community legal aid clinic and a member of the inaugural Innocence Project cohort. After graduating in 1999, he moved to Vancouver to article with Ian Donaldson, K.C. Brad was called to the bar in 2000. After working with two law firms that had contracts to do federal prosecution work, Brad joined the Public Prosecution Service of Canada (“PPSC”)

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in 2002. There, his practice grew to include the prosecution of clandestine synthetic drug labs, complex drug conspiracies and organized criminal groups. Brad was a treasured colleague and quickly became a sought-out mentor in the office. As would become a recurring theme, Brad was extremely generous with his time when working with junior counsel. He took his role as mentor and teacher to junior counsel seriously and was committed to assisting junior counsel in their development. Many good habits and approaches were learned by junior Crown who had the good fortune of working on a file with Brad. Brad and Sandra met in 2003 in the Yaletown building where they had both bought units, Brad on the south side and Sandra on the north side. As is the foundation of a great marriage, they met in the middle: in the elevator in this case. Brad and Sandra married in 2005. Nelson was born in 2007 and Jordan in 2009. Brad took parental leave after Nelson was born. Optimistically, he thought he would be able to find time to finish his master’s degree while on parental leave. While that spare time did not materialize, Brad obtained a master of laws degree in criminal law and procedure from Osgoode Hall in 2009. Not to repeat the same mistake, he made sure to finish the degree before Jordan was born. While at the Crown, Brad was renowned for his meticulous trial preparation, which included a highly complex colour-coded file folder organization system. The system involved coloured file folders carefully grouped for different varieties of witnesses, disclosure materials and legal issues. Gazing at bankers boxes containing a neatly organized rainbow of file folders, junior counsel could see Brad was living the adage that you can never be too prepared. Brad’s meticulous preparation extended into athletics, including his training for the gruelling Two Oceans Ultra Marathon in Cape Town, which he ran with a PPSC colleague in 2012. After floating the idea over lunch one Friday, he called his friend at 9 p.m. that evening to say he had secured spousal approval and to ask whether the colleague was in to travel to South Africa to run the race. He was, and the extensive training and planning began. On the day of the race, conditions were terrible as it was cold, rainy and very windy. Former South Africa Olympian Zola Budd raced that day and was later quoted in the papers saying that she was glad she had finished the race. Conditions being what they were, Brad was not moving as fast as he had hoped and feared the worst—that after many months of dedicated training and a flight across the globe, he might not finish the race. Brad had a conversation with an experienced racer out on the course who rallied him

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with advice to just persevere and he would finish the race, which he did. It is expected that he will rely on this good advice when facing down a busy Monday morning chambers list. Brad is a car buff. For him, waiting a full three years between new vehicles is torture. He also cares for his vehicles to a standard few would aspire to and has been known to enjoy watching YouTube videos documenting the use of specialized car cleaning techniques. One co-counsel described that while commuting together out to court in Surrey from Vancouver, she knew without asking that bringing a coffee into Brad’s car would be unwelcome. She was, however, surprised when bottled water was also frowned on because “water attracts dirt”. Not being a YouTube car-cleaning video aficionado, she can be forgiven for her mistaken reliance on the usual connection between water and cleaning. Brad left the Crown in 2013 to establish a defence practice. Over a Christmas trip to Manning Park, Brad and Sandra decided they wanted a different life for their family and decided to make the move to Kamloops, which they did in 2015. As could be expected, there was a period of adjustment as Brad moved from Crown to defence, from public service to private practice and from Vancouver to Kamloops. Initially, his practice was co-located with a local Kamloops law firm. It was observed that perhaps the adjustment from Vancouver to Kamloops was the most testing for Brad as he was seemingly unused to people walking around an office without shoes, dogs being welcome at any time or the loud use of what is described as “Cariboo vernacular” by some staff at the firm. Brad opened Smith Law Group in Kamloops in 2015 and as the practice grew, Brad was joined by associate counsel, articling students and staff. The practice was busy and often involved travel to locations to take on cases throughout British Columbia. It also involved a 150-day double-homicide that was tried in Vancouver. It is fortunate that Brad enjoys cars because he commuted up and down the Coquihalla for the better part of two years. Cocounsel describe how his impressive skills as a trial lawyer were apparent throughout and that even through a long and difficult trial with some unprecedented challenges, he modelled a measured and reasonable approach. Co-counsel noted that his level of preparation and skill was on full display in cross-examining some particularly difficult witnesses, including one whom Brad memorably molded from aggressive and extremely hard to handle to Play-Doh over the course of a couple of days of crossexamination. The file resulted in acquittals and although Brad modestly said that was a result of good teamwork, the team would say it was only as good as its leader.

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No matter what else was happening in the case, Brad continued to be committed to the growth and development of junior counsel and clearly cared deeply about that. He has very high standards and expected excellence, which they found to be inspiring. And while they may (and do) disagree with Brad about comma placement, they never doubted his deep commitment to their professional development. Brad has also shown his commitment to the development of future lawyers by happily taking up invitations as a guest lecturer at the Thompson Rivers University (“TRU”) Faculty of Law and coaching a TRU moot team. He also spearheaded the effort to develop an Inns of Court Program for junior lawyers in Kamloops. His excellence as counsel, dedication to the legal system and commitment to the development of junior counsel were recognized in 2019 when he was appointed Queen’s Counsel. Brad’s family has embraced the move to Kamloops, and their favourite activities include Brad and boys out mountain biking or hiking and, depending on the season, the family out on the boat on Kamloops Lake or Nordic skiing up at the Overlander Ski Club. He is a dog lover, and the family always has a full complement of standard poodles. It also turns out that Brad is a dog magnet, and no dog can pass by without coming over to say hello. There are definite benefits to this: when a neighbourhood dog escapes, no one panics as they can be sure that dog will be found when it drops by to see Brad. Counsel and litigants who appear before Justice Smith should know that he is very respectful but has high expectations of others that they will do their very best. He has always believed that good counsel work leads to the best outcomes for the justice system and has had a real pride in the legal profession and its work. Being highly organized, perhaps including the use of colour-coded file folders, can be expected to go over well when appearing before him.

ЖЖЖ

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LETTERS TO THE EDITOR By R.C. Tino Bella*

Dear Editor, Re: Bhuvana Rai, “Tax Reporting Requirements for Employment Lawyers” (2023) 81 Advocate 867 I would like to add an important footnote to Bhuvana Rai’s article “Tax Reporting Requirements for Employment Lawyers”, at page 867 of the November 2023 edition of the Advocate. In her article Ms. Rai describes certain reporting obligations set out in the Income Tax Act. The footnote is that these obligations are not currently applicable to legal professionals in Canada, pursuant to an interlocutory order of the B.C. Supreme Court. By way of brief background, in September the Federation of Law Societies of Canada commenced proceedings in the B.C. Supreme Court challenging the application of the reporting obligations to legal professionals as being inconsistent

with ss 7 and 8 of the Charter. The Attorney General of Canada initially consented to a time-limited injunction exempting all Canadian legal professionals until (at latest) November 20, 2023. That order was recently extended by the court until the determination of the Federation’s challenge on its merits: 2023 BCSC 2068. Further information is available on the Federation’s website: <www.flsc.ca>. Yours truly, Roy Millen Vancouver, B.C Dear Editor, Re: Entre Nous, (2023) 81 Advocate 809 To add to the editorial in the November Advocate, the 2022 salary for a U.S. Supreme Court justice was US$274,200. Which is about C$365,000. Plus lifetime

* 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.

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tenure, an excellent pension and fringe benefits, various perquisites, and so forth. Plus whatever property and investments a judge may have accumulated prior to appointment—some were previously successful and well-connected corporate lawyers or politicians. Sure, some lawyers earn more from the actual practice of law, but a justice’s salary is far more than that of the average lawyer, or for that matter citizen. The conflicts of interest—real or apparent—that may arise from a judge’s association with a corporation, political party or cause, institution, or the like seem a case of Caesar’s spouse. They must at all times be above any possible reproach. Including spouses and family, most recently Justice Thomas’ wife Ginny, with her association with far right-wing groups.

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Once while waiting in chambers in Vancouver I heard a judge inform the various parties to a routine application that through a mutual fund RSP he had a minor investment that had some connection to one of the parties, and ask if any of them considered that he ought to recuse himself. No one objected to his continuing, and the incident illustrated for all the importance of real and perceived judicial independence. As for the gerontocracy in the U.S. presidency, Senate, and federal courts. Well, compulsory retirement for judges at 75, and optional after 65 or perhaps 60, would be a start, both as a practical matter and a matter of policy. Anders I. Ourom, K.C.

ЖЖЖ

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LEGAL ANECDOTES AND MISCELLANEA By Ludmila B. Herbst, K.C.*

THE LEGAL SENSATION OF THE A.D. (C.E.) 1900s: THE CODE OF HAMMURABI Rarely does law cause a sensation. However, one of those sensational moments came when the Code of Hammurabi—an almost complete copy of which was found on a stele (an upright stone slab or column) uncovered in late 1901 and early 1902 by a French archaeological expedition—was translated first into French, then German and English. The Code’s Early History Hammurabi was a king of ancient Babylonia. He reigned from 1792 to 1750 B.C. (B.C.E.).1 He brought most of Mesopotamia under Babylonian rule, and—the accomplishment for which he is best known today—set out in writing a series of laws dealing with property, family relations, contracts and crime. Various iterations of those laws likely preceded his own reign, while other pronouncements in the code may reflect decisions he rendered in particular cases that came before him: the sections of the code first set out a factual scenario, and then the legal consequence (e.g., “If a man without the consent of the owner of the orchard has cut down a tree in a man’s orchard, he shall pay half a mina of silver”2). Hammurabi “retained those [laws] that seemed most just, improved laws that failed to meet new conditions and added new laws that seemed to be required”.3 Hammurabi’s code was inscribed on stelae that were placed at various locations in his empire, for subjects to read and be guided by. He said: The oppressed, who has a lawsuit, shall come before my image as king of justice. He shall read the writing on my pillar, he shall perceive my precious words. The word of my pillar shall explain to him his cause, and he shall find his right.4

* Ludmila B. Herbst, K.C., is the assistant editor of the Advocate.

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Centuries later, in 1158 B.C. (B.C.E.), Elamite king Shutruk-Nahhunte I raided Babylon. Among the monuments he took back with him to Elam’s capital, Susa (in what is now Iran), was a stele bearing Hammurabi’s code. (One author analogized this act to “Edward of England carr[ying] away the Scottish ‘Stone of Destiny.’”5) The stele that Shutruk-Nahhunte I removed may have come from a temple in Sippar, in what is now Iraq; Hammurabi had laid the foundation for Sippar’s city wall mid-way through his reign. The Elamite raiders rubbed out part of the writing on the stele (apparently with a view to inscribing Shutruk-Nahhunte I’s name on that spot, although ultimately that did not occur), but most of the code’s content, a prologue and an epilogue remained intact. Perhaps a curse struck the raiders before their king’s name could be inscribed: Hammurabi’s epilogue, still recorded on the stele, invokes the assistance of “the great Anu, the father of the gods” to punish the person (“whether he be king, or prince, of feaudatory, or citizen”) who has “altered my words” or “erased my name in order to write his own”: “may [Anu] extinguish the splendor of his royalty, may he shatter his sceptre, may he curse his end.”6 With apologies, now the story turns—as it often does—to the Europeans who “discovered” the stele, and the reactions of English-speakers who learned of it. “Discovery” and Translation of Hammurabi’s Code By the late 1800s, Susa had become a focus of French archaeologist (and mining engineer and geologist) Jean-Jacques de Morgan, who had also worked in Malaya and Egypt. He led a French expedition that benefited from controversial treaties with the Iranian government giving France a key role in, and European monopoly on, archaeological exploration in Persia. De Morgan was in Susa not because he was particularly interested in Babylonia or Elam as such, but because of his interest in “the overall prehistory of the East”. He wrote: “In the Nile valley I developed the conviction that the first civilizations, from which the Egyptian empire arose, came from Chaldea and the Mesopotamian plains had therefore been the cradle of human progress. Susa, because of its very early date, provided the possibility of solving the greatest and most important problem, that of our origins.”7 Although de Morgan had “exceptional cultivation and dedication”, his excavation methods at Susa were—to use his own wording—somewhat “industrial”; that is, as another commentator notes, he approached the excavation somewhat like an earth removal exercise (using earth-moving wagons and carts) akin to “any public works project”. This approach may have stemmed from the fact de Morgan’s interest was more in general “origins” than in the precise historical periods of the originating society, his sense

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that the ruins of Susa were already quite muddled after a series of “total destructions of the city” in past centuries, and the sheer practical difficulty of excavating mud-brick remains. He divided the site, which was around 3035 meters high, into levels that were each 5 meters deep, progressively excavating them and thus “condemn[ing] the architectural remains at Susa to total destruction for all time”.8 At certain points de Morgan employed more than 1,000 workers on the site.9 Fortunately, Hammurabi’s code was on a substantial stone slab that would not be readily missed. In late 1901 and early 1902, de Morgan’s team found three pieces of the stele, which were easily fitted together, on the site. The stele was black diorite, and when its components were fitted into one piece, stood about 2.25 meters tall, tapered somewhat from the base to the top. Fragments of other stelae were also found at the site. Dominican father Jean-Vincent Scheil, who had been with de Morgan in Susa and was a well-known Assyriologist in his own right, swiftly translated the code into French. The French translation was published in October 1902. Evidently both Father Scheil’s skill, and his tendency to paraphrase, were well known. One commentator took even broader aim, suggesting that “[l]ike almost everything rendered into [French], fidelity to the original is sacrificed to elegance of diction”.10 The scholar who first translated the code into English, C.H.W. Johns, noted in the introduction to his own work that the earlier “rendering of the eminent French savant [Father Scheil], while distinguished by that clear, neat phrasing which is so charming a feature of all his work, is often rather a paraphrase rather than a translation. The ordinary reader who desires to estimate for himself the importance of the new monument will be forced to wonder … why the same word in the original gets such different renderings.”11 Father Scheil was very busy during this time period, and other work in which he was engaged also hit the news. In British Columbia, the Revelstoke Herald and Railway Men’s Journal12 and the Atlin Claim13 both carried the following news of his reconstruction of what Babylonian schooling would have been like in Hammurabi’s time, including the following wonderful (journalistparaphrased!) passages of considerable personal importance to many of us: Girls, it appears, got pretty much the same education as the boys. Father Scheil found contracts which had been revised and corrected by a woman learned in the law, named Amathoen….The contracts revised by Miss Amathoen were not trust contracts and probably from a New Jersey[14] point of view were primitive and crude. But they answered the needs of a highly complex civilization and the woman who could draft them was probably as good a lawyer as can be found in New Jersey. Anyhow, her name survives 4,000 years. Is it likely that any of our lawyers will be mentioned A.D. 6000?

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Returning to de Morgan’s dig in Susa … 230 crates of artefacts were sent from Susa to France, with lighter crates transported to an Iranian port town by camel, and the heavier ones by cart (which collapsed en route to its seaside destination). The artefacts arrived at the Louvre in 1903. Factual and Legal Analysis of Hammurabi’s Code De Morgan himself did not seem to attribute much importance specifically to the stele, spending only one page on the Code of Hammurabi in a 1905 book. However, it captured the interest and imagination of many other scholars and commentators. Even apart from its legal substance, the code provided a window into the factual circumstances that existed in Hammurabi’s day: the problems that the code did—or did not—focus on shed light on his empire. For example, given the code’s references to drinking establishments, it was concluded that “[m]an has frequented taverns for more than 5,000 years”.15 More particularly, as the code addressed related misbehaviour, it was noted that “[d]rinking-places were seemingly as much in discredit at that age as they are now”.16 The fact that criminal law occupied relatively little space in the code was seen as a good sign: the less space needed for that subject, “the higher the civilization of the people for whom [the code] was framed”.17 Some commentators pointed to the similarities between certain laws familiar in their own jurisdictions and pronouncements made millennia earlier in the code. For example, “[t]he ditching laws were much the same as those of Ontario and Quebec, though the ditches were for irrigation, not drainage”.18 (Hammurabi’s code said, in this regard, that “[i]f a man has neglected to strengthen his bank of the canal, … a breach has opened out itself in his bank, and the waters have carried away the meadow, the man in whose bank the breach has been opened shall render back the corn which he has caused to be lost.”19) Other commentators noted the superiority of Hammurabi’s code, relative to their own laws. One commentator noted, “Had this code of Babylon been in force in New York at the time of the Darlington Hotel collapse, short work would have been made of the responsible parties. ‘If a house falls down and kills the owner, the builder shall be put to death.’”20 (In March 1904, 14 people were killed when the “giant steel skeleton” of the Darlington “apartment hotel”, which by that point of its construction was ten storeys high, collapsed.21) The Prince Rupert Journal wholeheartedly agreed with this sentiment: “Jerry-builders and other dishonest craftsmen are threatened [in the code] with penalties which might prove a salutary addition to our own laws.”22 The code also spoke directly to certain players in the judicial process. Witnesses in a case were not to be threatened or bribed.23 One commentator

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noted “the following [code provision] would be very discouraging to strenuous district attorneys if in force today[:] ‘If anyone brings an accusation of any crime before the elders, and does not prove what he has charged, he shall, if it be a capital offense, be put to death’”.24 Several commentators took delight in the following portion of the code: If a judge has judged a judgement, decided a decision, granted a sealed sentence, and afterwards has altered his judgement, the judge, for the alteration of the judgement that he judged, shall put him to account, and he shall pay twelvefold the penalty which was in the said judgement, and in the assembly one shall expel him from his judgement seat, and he shall not return, and with the judges at a judgement he shall not take his seat.

Certainly aspects of the Code of Hammurabi—even apart from its treatment of builders and erring judges—were “[s]tern”.25 It reflected, for example, the classic “eye for an eye, tooth for a tooth” formulation: “If a man has caused the loss of a gentleman’s eye, his eye one shall cause to be lost” and “If a man has made the tooth of a man that is his equal to fall out, one shall make his tooth fall out”.26 This being said, commentators observed that in relative terms, the punishments set out in the code were not exceptionally harsh, noting that the same were “some centuries ago readily inflicted in most part by our ancestors, who thought them salutary measures of repression”.27 In other respects, further, Hammurabi was seen as “just”, even “in a sense kindly”.28 Overall, “[t]he provisions of the Code show a remarkable spirit of equity and very little arbitrary ruling or cruelty. The attempt seems to have been made, in almost every case, to arrive at a fair and just settlement of conflicting claims.”29 Commentators took particular note of the fact that among those to whom considerable protection was extended in the code were “widows, orphans and the poor”.30 The impression of one commentator was that “[r]ights of women were … safeguarded with minute care; the weak, the widow and the orphan were fully protected, and women were placed in a position of freedom and independence of their husbands”;31 “[a]lready a woman’s marriage portion is her own”.32 (In a somewhat unappealing twist, the first of those commentators added, “And the husband didn’t get the worst of everything, either. One of the provisions for the punishment of women, under certain conditions was that if she had not been a careful mistress, had gadded about, had neglected her home, and had belittled her husband, she should be thrown into the water.”33) With respect to economic issues more generally, commentators noted the Code of Hammurabi “softened the relation of landlord and tenant with an abatement of rent when storm or drou[ght] destroyed the crop”—“a concession whose legal assurance is unknown in America”.34 Further—fore-

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shadowing a debate recently revived in British Columbia in the traffic context—“[t]o overcome the ridiculous inadequacy of a fine whose maximum or minimum limits apply to rich and poor alike, and to guard his courts from the insolence of unruly wealth, Hammurabi expressly decrees that offenders shall pay for the same offense different fines levied on a sliding scale according to the depth of the offender’s pocket book”.35 Commentators also praised the fact that the code—set out on stelae like the one ultimately taken to and found at Susa—had been publicly accessible: “[t]here were all the laws of the land, in plain sight so all might read them. There was no longer any excuse to plead ignorance”.36 As it was inscribed on columns, anyone who had a cause for complaint, at least if literate, “might come, and reading it, see for himself what his rights were. It was the ‘ready lawyer’ which every citizen might consult”.37 Further, the code was reportedly articulated in a more accessible language than predecessor laws: “[t]hat many of these laws existed before [Hammurabi’s] day we need not question, but they probably existed for the most part in Sumerian, the language of the scholar. His chief merit is that he codified the law, and above all, by giving it a Semitic form, made it universally accessible.”38 The prologue and epilogue to the code were not modest. Rather, Hammurabi, the “Shepherd of Salvation”, described himself as radiant, rooting out enemies and being the “protecting genius”; “[m]y words are well weighed; my valour has no equal”.39 These aspects of the stele were described by one commentator as “contain[ing] much … which sounds very like braggadocio” and which “may seem obnoxious to an American ear of our day”; however, he assured readers this was in keeping with the code’s time and place.40 The Code’s Religious Implications Despite some mention of punishment for those who cast spells on others41— and the fact a sculptured portion of the stele itself showed Hammurabi receiving the laws from the sun god—the code contains “very little superstition”: rather, “as a whole the code is as rational in tone as an eighteenth century French philosoph[er] could have wished. It is purely a State document like our own statute books, attending strictly to the duties of the State as a conservator of the public order and dispenser of justice between citizens”.42 This said, commentators could not fail to notice the similarities between its content and portions of the much later-written Old Testament (e.g., eye for eye, tooth for tooth). Further, some Biblical scholars at the time described Hammurabi as “the monarch who rules over ‘Ur of the Chaldees’ when Abraham left that ancient city to establish himself in the land of Canaan” and even suggested “it is more than probable that Abraham was well acquainted with the code and all its enactments”.43 One commentator

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noted “the great law giver of Babylonia was in his lifetime a neighbor of our friend Noah, the first successful navigator on record.”44 At the same time, some commentators resisted any implication that Hammurabi’s code provided a model or source for later Christian writings, at least arguing that similar principles could have been arrived at independently. Improbably enough, Kaiser Wilhelm II of Germany became part of the controversy. “Deep” concerns about his “orthodoxy” were sparked by the fact that, after attending a professor’s lecture on the “Babylonian origins of the Bible”, he funded that scholar’s subsequent expedition to Assyria and discussed with him its findings. The kaiser was beseeched to, and did, write a letter setting out his “faith in God and Christ and in the authority of the old testament”. Fortunately for the kaiser, as reported on the front page of Nelson’s Daily News, “leading authorities of the state and church” accepted that the letter provided “satisfactory evidence of his majesty’s orthodoxy”.45 Kaiser Wilhelm II’s public engagement on various issues, including the Code of Hammurabi, was a marked point of contrast with the traits that one French commentator46 lauded in Edward VII of England. Unlike Kaiser Wilhelm, Edward VII “neither writes nor speaks too much….He preaches no sermons, delivers no lectures on history, and does not indulge in theological definitions. He has never spoken…of Hammurabi….He only says what is necessary, and he does so in measured language.” This said, just as Mr. Johns, the translator of the code into English, had not been able to resist a dig at Father Scheil, the French fan of Edward VII could only go so far in praising that which Edward VII did say. After all, the “art of conversation” is “peculiarly [French]” and “[t]he English eloquence does not resemble ours. It is often devoid of rhetoric; it has neither sonority nor color”.47 ENDNOTES 1. Various commentary from the early 1900s estimated Hammurabi’s reign to have occurred several hundred years earlier than that. 2. Unless otherwise stated, quotations from the provisions of the code—here, §59—in this piece are from The Oldest Code of Laws in the World, trans CHW Johns (T&T Clark, 1903), online: <www.gutenberg. org/cache/epub/17150/pg17150-images.html>. 3. “One of Oldest Codes of Laws in World Still Preserved”, Province (31 July 1927) [Province (1927)]. 4. This passage is quoted in JC Smith and DN Weisstub, The Western Idea of Law (London: Butterworths, 1983) at 160 [Smith/Weisstub Excerpt], citing Chilperic Edwards, trans, The Hammurabi Code and the Sinaitic Legislation (Port Washington, NY: Kennikat Press, 1971). 5. Ross G Murison, “Babylonian Law” (1904) 3 Can L Rev 439 at 440.

6. Smith/Weisstub Excerpt, supra note 4 at 159–60. 7. J de Morgan, La Délégation en Perse du Ministère de l’instruction publique 1897 à 1902 (Paris, 1902) at 16, quoted in English in “De Morgan, Jacques”, Encyclopaedia Iranica [“De Morgan, Jacques”], online: <iranicaonline.org/articles/de-morgan>. 8. “De Morgan, Jacques”, supra note 7. 9. “Fieldwork”, online: <acheologie.culture.gouv.fr/ jacques-morgan/en/fieldwork>. 10. WW Davies, Codes of Hammurabi and Moses with Copious Comments, Index, and Bible References (Cincinnati, Ohio: Jennings and Graham, 1905) at 13. 11. “Introduction” in CHW Johns, trans, Oldest Code of Laws in the World: The Code of Laws Promulgated by Hammurabi, King of Babylon, BC 2285-2242 (Edinburgh: T & T Clark, 1903) v at viii. 12. “Old Time Scholars: Books and Pupils in a School 4,000 Years Ago” (9 June 1904).

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13. (14 May 1904) at 7. 14. One might suspect this article was first published in a New Jersey newspaper. 15. “Ancient Taverns”, Nelson Daily News (27 December 1962) at 8. 16. “The Green Bag” (1903) 15 Green Bag 95 at 97; “Jetsam and Flotsam: The Oldest Law Book in the World” (1903) 56 Cent LJ 110 and 111. One letter to the Province’s editor several years later, as Prohibition loomed, noted that the strict punishments the code contemplated for wine merchants who allowed “riotous characters” to assemble, without turning them in to the authorities, illustrated there were means by which “the abuse of the saloons would be curtailed and there would not be the necessarily for prohibition laws”: EJ Leveson, letter to the editor, Province (8 June 1916) at 7. 17. Owen B Jenkins, “The Code of Hammurabi, Compared with American Law” (1905) 39 Am L Rev 330 at 331. 18. “The Babylonian Code: Interesting Paper by Rev Dr Murison”, The Globe (14 January 1903). 19. At §53. 20. “Some Ancient Laws” in “Settled out of Court” (1904) 12:5 American Lawyer 218 at 219. At §229, “If a builder has built a house for a man and has not made strong his work, and the house he built has fallen, and he has caused the death of the owner of the house, that builder shall be put to death.” 21. “Death in Collapse of Hotel Skeleton”, New York Times (3 March 1904) at 1. 22. “An Old Code Relative to Building Industry” (24 February 1915) at 4. 23. At §3, “If a man, in a case pending judgement, has uttered threats against the witnesses, or has not justified the word that he has spoken, if that case be a capital suit, that man shall be put to death” and, at §4, “If he has offered corn or money to the witnesses, he shall himself bear the sentence of that case.” 24. “A Babylonian Lawgiver”, Buffalo Evening News (31 December 1902). 25. “The Oldest Law Book in the World”, Border Watch (14 January 1903) 1. 26. At §§196 and 200. 27. Jenkins, supra note 17 at 334–35. 28. “The Oldest Law Book in the World”, Border Watch (14 January 1903) at 1. 29. “Recent Legal Publications” (1902) 1:4 Am L Sch Rev 133 at 134. 30. Province (1927), supra note 3.

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31. “Babylon’s Ancient Code”, The Nelson Daily News (13 November 1924) at 4 [Ancient Code (1924)]. 32. Murison, supra note 5 at 449–50. 33. Ancient Code (1924), supra note 31. 34. Jenkins, supra note 17 at 340. At §48, “If a man has a debt upon him and a thunderstorm ravaged his field or carried away the produce, or the corn has not grown through lack of water, in that year he shall not return corn to the creditor, he shall alter his tablet and he shall not give interest for that year.” 35. Jenkins, supra note 17 at 338. 36. Province (1927), supra note 3. 37. “Some Ancient Laws”, supra note 20 at 219. 38. David Gordon Lyon, “Structure of the Hammurabi Code: Notes on the Hammurabi Monument” (New Haven, Conn, 1904) at 270–71. 39. Smith/Weisstub Excerpt, supra note 4. 40. Davies, supra note 10 at 15. 41. For example, see §1: “If a man weave a spell and put a ban upon a man, and has not justified himself, he that wove the spell upon him shall be put to death”. 42. Jenkins, supra note 17 at 335. 43. Davies, supra note 10 at 8 and 11. 44. Wilbur F Stone, “The Oldest Laws” (1913) 21:6 Law Student Helper 13. 45. “The Emperor Is Orthodox: His Confession of Faith Is Satisfactory”, The Daily News (Nelson) (21 February 1903) at 1. Among other things, the kaiser explained in the letter that “God reveals himself continuously in the race of men created by him” and in the development of the human race “reveals himself in this or that great sage, whether priest or king, whether among the heathen Jews or Christians. Hammurabi was one, so was Moses, Abraham, Homer, Charlemagne, Luther, Shakespeare, Goethe, Kant and emperor William the Great”—all of whom, “endowed with His grace, sought to accomplish splendid, imperishable results for their people, in their intellectual and physical provinces, according to his will.” While in Moses’ words in Sinai, “the historian can perhaps construe from the sense or wording a connection with the laws of Hammurabi, the friend of Abraham….that will never disguise the fact that God incited Moses thereto, and insofar revealed himself to the people of Israel.” 46. “A French Appreciation of King Edward, Britain’s Greatest Diplomatist”, The Daily News (Nelson) (4 June 1904) at 4. 47. Ibid.

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GEIGER LAW PRACTICE SALES BC/ALBERTA PRACTICES • DOWNTOWN VANCOUVER FAMILY/MEDIATION AND SOLICITOR’S PRACTICE – New on Market This practice has been providing Family Law, Mediation and Business Law services to its clientele for over 25 years. The practice is 70% Family Law and Mediation with the remainder constituted of Wills/Estates and Corporate/ Commercial Law. The seller is a well-respected practitioner and the clientele are typically high income individuals. The practice refers out all Real Estate law; the purchaser could easily expand the practice by retaining Real Estate files. The practice location could be retained as a “turnkey” situation or alternatively the practice/client list could be incorporated into an existing practice located elsewhere. • VICTORIA SOLICITOR’S PRACTICE – New on Market • SURREY SOLICITOR’S PRACTICE • WEST KOOTENAY SOLICITOR’S PRACTICE • ALBERTA – SOLICITOR/FAMILY LAW PRACTICE FOR SALE • CENTRAL ALBERTA SOLICITOR’S PRACTICES

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Trials. Appeals. Ad Advocacy y. One of Canada’s leading litigation teams has WZR new partnerV.

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BENCH AND BAR

obbie Burns Day (January 25) is fast approaching. This occasion celebrates the birth of Scotland’s national poet on January 25, 1759. To those still considering whether to have a bagpiper pipe in the haggis at their Burns Supper—or simply wondering about the latest happenings with their colleagues at the bench and bar— look no further than the following pages! Brent Meckling leaves Clark Wilson to join Nixon Wenger in Vernon. Jacob L. Foster joins Clark Wilson from Clyde & Co. Chanelle C. Gilbert moves from Murrell & Ittah to join Island Law Office. Shelley A. Braun moves from Alexander Holburn Beaudin + Lang to join Harper Grey. Emmett S.C. Scrimshaw moves from Samfiru Tumarkin to join Heath Law in Nanaimo. Amandeep K. Sehmbi moves from Sehmbi Law to join the BC First Nations Justice Council as internal legal reviewer for the Gladue Services Department. Corinne A. Molloy moves from Connect Family Law in Kelowna to Clark Wilson in Vancouver. Tanya Chamberlain joins Virgin Hickman as associate counsel. Marco Domenico (Nicco) Bautista sets out his own shingle as Lumino Law, after nearly six years with BMO Private Wealth. Scott Dawson moves to Dennis James Aitken LLP, from Farris LLP. Beatrice (Betty) M. Masera moves from an in-house post at ICBC to the BC College of Nurses and Midwives (“BCCNM”). Shelley S. Ball is now Senior Counsel, Strategy, Governance and Reconciliation at the BCCNM. After 35 years of practice, almost all in Whistler with Mountain Law Corporation, Peter D. Shrimpton retires and turns the reins over to the recently called Amanda Welton-Hagen. Joining Mathews Dinsdale & Clark

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.

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are Chris E. Leenheer and Virginie Vigeant, both from Harris LLP. B. Sunny Aujla is now with Farris LLP, moving from Hamilton Duncan. Aleisha M. Zanic is now with Clark Wilson, having finished articles at Silver Slinger. Jennifer (Jen) L. Poirier becomes counsel at DLA Piper, moving from Dentons. Brittney M. Menzel took up a new post at Strive Law Corporation in Surrey, moving from Doran Law. Lia Moody joins HHBG to carry on her employment law practice, having previously been with Samfiru Tumarkin. In another seismic shift in the judicial foundations of British Columbia, the Honourable Chief Justice Christopher E. Hinkson announced his retirement from the Supreme Court of British Columbia effective May 7, 2024. In December 2023, Justice Janet Winteringham was elevated to the Court of Appeal for British Columbia, having been a member of the Supreme Court of British Columbia since 2017. She replaces Justice G.M. Dickson, who became supernumerary in December 2022. The Provincial Court of British Coumbia recently welcomed the appointment of Tyleen Underwood, Mark A. Erina and Daniel T.R. Loucks as judges of that court. Judith (Judy) M.Riddle was appointed as a judicial justice of that court. “[B]agpipe playing forms part of the arts”: Andrew Sneddon, [2004] MRTA 7667. Lamenting parents’ inability to agree on matters involving their daughter, the Ontario Superior Court noted: “Each of them calls to mind the ‘silky sullen dame’ described by Robbie Burns who gathers her brows ‘like gathering storm, nursing her wrath to keep it warm.’ If there is anything that these parents do well it is nursing their wrath to keep it warm. Both blame each other. Their communications and their conduct towards each other reflect an extraordinary capacity by both of them to find areas of disagreement and conflict”: Harding v. McCullough, 2012 ONSC 6717. The Honourable Judge Paul Michael Dohm was re-designated as an Associate Chief Judge of the Provincial Court of British Columbia for a term ending March 31, 2026. One of the world’s leading bagpipers is Alan Bevan, a lawyer with the Insurance Corporation of British Columbia in Abbotsford. He has been the pipe major of the Simon Fraser University Pipe Band—of which he has been

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a member since 1995—since 2013. In addition to winning numerous individual awards, on several occasions he has won the world championship with the band. He has also performed as a featured soloist at the band’s concerts at the Sydney Opera House, the Lincoln Center and Carnegie Hall in New York, the Glasgow Royal Concert Hall and Roy Thompson Hall in Toronto. Wikipedia notes “some controversy” over the origin of name of Abbotsford, British Columbia: “[t]he most commonly cited origin is that [royal engineer] John Maclure named the land ‘Abbotsford’ after family friend Henry Braithwaite Abbott, the western superintendent of the Canadian Pacific Railway. Maclure’s sons later stated that the property had actually been named for Sir Walter Scott’s home, Abbotsford House, and pronounced it with the accent on ford. In his later years Maclure himself claimed that the naming had been ‘a combination of two ideas’”. Sir Walter Scott was a renowned novelist but also had connections to the law. Britannica.com notes that Sir Walter Scott’s father was a lawyer and “[i]n 1786 [the son] was apprenticed to his father as writer to the signet, a Scots equivalent of the English solicitor…His study and practice of law were somewhat desultory, for his immense youthful energy was diverted into social activities and into miscellaneous readings in Italian, Spanish, French, German, and Latin”. In 1799, he was appointed as “sheriff depute” of the county of Selkirk and in 1806 as clerk to the Court of Session on Edinburgh. January 1, 2024 sees the start of new two-year terms for a group of recently elected, re-elected or acclaimed benchers. The lucky decision makers are: for Vancouver, Cheryl D’Sa, Jennifer Chow, K.C., Kevin Westell, Gaynor C. Yeung, Aleem Bharmal, K.C., Christina J. Cook, Tanya Chamberlain, Timothy J. Delaney, Nikki Charlton, Ravi R. Hira, K.C., and James Struthers; for Victoria, James A.S. Leigh; for Nanaimo, Brian B. Dybwad was acclaimed; for Westminster, Gurminder S. Sandhu, Thomas L. Spraggs and Jaspreet Singh Malik; for Okanagan, oenophile Michael F. Welsh, K.C., returns; for Kootenay, Barbara Stanley, K.C., was acclaimed; for Cariboo, Benjamin Levine and Georges Rivard; for Prince Rupert, Jonathan Yuen; and for Kamloops, Jay Michi. Former U.S. Attorney General William Barr is a longtime bagpipe player. When Barr was first appointed, by then U.S. president George H.W. Bush, Barr invited the band for which he formerly played—the highly regarded City of Washington Pipe Band—to play at his swearing in. President Bush

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joked: “I’m wondering if he understands that the Constitution prohibits cruel and unusual punishment.” In R. v. Sutherland, 1943 CanLII 483, the B.C. Court of Appeal—considerably more sympathetic to bagpipers than the first President Bush—heard the case of a bagpiper found guilty of obstruction and sentenced to six months with hard labour. The accused had refused a police request to move on (or, as one officer noted, he “refused to disperse”) when he was playing the bagpipes in Vancouver, having attracted a crowd of children. He was not at the time obstructing traffic (“there [were] no cars around”), but according to one officer he was making “quite a bit of noise”, though another officer (who himself played the bagpipes) testified he did not think the noise was “excessive”. Chief Justice McDonald, with Justices Sloan and O’Halloran concurring, wrote: The magistrate convicted the appellant [on the basis] he did unlawfully and wilfully obstruct a peace officer in the execution of his duty. It is clear that the conviction was based upon the premise that the appellant was obstructing traffic on 23rd Avenue in this city. There was no evidence to justify any such finding. He was not obstructing traffic and therefore the officers, when they interfered, were not executing any duty and hence could not have been obstructed by the accused in the exercise of any duty. Under the circumstances no such duty had arisen and no such duty existed. To the suggestion that the conviction might he sustained under the city by-law, which prohibits the making of any loud and objectionable noise, the simple answer is that there is no legal evidence to even suggest that the music produced by the bagpipes is a loud and objectionable noise. I would allow the appeal and quash the conviction.

CBC reported in 2012 that the City of Vancouver had “lifted a regulation banning buskers from playing the bagpipes on local streets”, citing the involvement of “the city’s top Scotsman”, then Mayor Gregor Robertson, “who is known on occasion to wear a kilt”. Fiona Hyslop, Scotland’s cabinet secretary for culture and external affairs, was in the city at the time for a cultural event and commented, “Mayor Robertson and I both recognize that bagpipes are part of the cultural heritage shared by Scotland and Vancouver”. Leah M. Volkers was reappointed as a member of the Civil Resolution Tribunal on a full-time basis for a term ending January 26, 2029. Navdeep Shukla was reappointed as a member on a full-time basis for a term ending March 2, 2029. One comment on an Ottawa Citizen story in July 2022 about a bagpiping busker who was ticketed twice in short succession (reportedly for “encum-

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bering a roadway”) noted: “We should have had that by-law officer working Wellington street during the occupation. They must have been on holiday at the time”. The Vancouver Bar Association held its annual bun toss (figuratively this time) in November 2023. Swept to power in the AGM elections were Jeff Hernaez, Rachel A. Wollenberg, Cory Song, Spencer A. Malthouse, Allyse Cruise and Daniel Babcock. At the same event, the VBA bestowed the Peter S. Hyndman Mentorship Award on Sara Forte. “The fact that one has learned how to play a bagpipe does not make one a Scot”: X (Re), 2005 CanLII 60053 (CA IRB). On January 1, 1924, the Met Office issued its first radio broadcast of the Shipping Forecast, at that time called Weather Shipping, on the BBC. The forecast itself was originally initiated over 150 years ago by the Met Office founder, Vice-Admiral Robert FitzRoy, who also captained the HMS Beagle. Since then, the service has been a godsend to mariners and insomniacs. Greg Kim—whose website is hawaiibagpiper.com—is “a corporate lawyer by day, and a piper by day and night. I have flexibility in my schedule to perform for you. I can play traditional Scottish and Irish tunes, as well as Hawaiian and some popular tunes.” The Federal Court of Canada has noted that the lines “The best laid schemes o’ mice an’ men / Gang aft a-gley” (from Robert Burns’ “To A Mouse”) are “often paraphrased from the Gaelic into English as: ‘The best-laid plans of mice and men / Often go awry’”: Apotex Inc. v. Pfizer Canada Inc., 2014 FC 876. Some version of this sentiment often appears in case law: •

As the Missouri Court of Appeals, Springfield District, noted: “It is a timeless truth, as wise men of bygone generations have pointed out, that ‘Oft expectation fails, and most oft there/ Where most it promises’ [Shakespeare, All’s Well That Ends Well, Act II, Sc. 1 (1564-1616)], and ‘The best laid plans o’ mice and men/ Gang aft a-gley; An’ lea’e us nought but grief and pain/ For promis’d joy.’ Robert Burns, To A Mouse, Stanza 7 (1785)”: Thienes v. Harlin Fruit Company, 499 S.W.2d 223 (1973).

•

“[I]n most adjudicative systems, the best-laid plans of adjudicators and appellants can go awry”: Decision No. 224/96, 1997 CanLII 13340 (ON WSIAT).

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•

“[E]ven where parties and counsel turn their minds to desirable efficiencies, sometimes the best laid plans of mice and men…”: Dunsmuir v. Royal Group, Inc., 2017 ONSC 5738.

•

“[T]he responsibilities of sureties can be onerous and imposing should the best laid plans of everyone go astray”: R. v. Burtch, 2012 ONSC 788.

•

“While unexpected things can happen that extend a trial despite best laid plans, where scheduling efforts disclose a significant risk that the trial will extend beyond the time allotted, the trial should not be allowed to proceed”: Apotex Inc. v. Eli Lilly and Company, 2019 ONSC 2721.

In United States of America v. Rand, No. 06-2374 (2007), the U.S. Court of Appeals for the Seventh Circuit dealt with “[a]n incredibly bizarre plot” rooted in the desires of Joseph Kalady who, “[l]ike most all defendants facing federal criminal charges, … did not want to go to prison”. Kalady decided “to fake his own death so he could get out of his predicament”, with the plan ultimately being for another person to be killed and that unfortunate person’s corpse to be used as a double. The court described this plan as being “not even as bizarre as two others Kalady discussed but rejected: one was to buy a cadaver, place it in his house, and then set the house on fire; another was to have a Nigerian friend (this was soon after 9-11) crash a small airplane into Kalady’s house”. The court continued: As Robert Burns observed, the best-laid plans of mice and men often go awry. And this plan, which was hardly best-laid, quickly unraveled when the authorities realized the body, by then at the morgue, was not Joseph Kalady. This apparently was not all that difficult as [the unfortunate victim], at 185 pounds, was less than half of Kalady’s size [“Kalady was a huge man, weighing in at 450 pounds”].

January 1, 2024 is the 223rd anniversary of the legislative union of the Kingdom of Great Britain and the Kingdom of Ireland which resulted in the formation, in 1801, of the United Kingdom of Great Britain and Ireland. It has not all been roses and sunshine since. Tracy Ann Porteous was reappointed as a director of the Legal Services Society for a term ending November 1, 2025. Jennifer A. Khor was appointed as a member of the Health Professions Review Board for a three-year term. According to the firm’s managing partner, the “Burness” in the name of Scottish law firm Burness Paul is derived from its founders, William and James, “who were cousins of the very Rabbie Burns of Montrose”. During the height

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of the COVID-19 pandemic, the firm produced a video honouring Burns, under the slightly worrying name “Burness Paul Does Burns”, featuring its lawyers reciting poetry and playing the bagpipes. The firm’s managing partner noted Robert Burns had a “very tempestuous relationship with the legal profession” and sometimes fell “on the wrong side of the law ... he writes with disdain of lawyers in both Tam o’ Shanter and The Jolly Beggars”. The Law Society Tribunal recently added 11 new adjudicators who joined on January 1, 2024. The new tribunal adjudicators are Robert J.C. Deane, Susan Kootnekoff, Julie Mantini, Sean E. Rowell, Jason S. Twa and Robert Wickett, K.C. In addition, the following individuals were appointed as public representatives: Alykhan Alladina, Gregory Cran, Harindar Mahil, Diane McRae and Erwin Nest. In 2007, the Canadian Bar Association established the Cecilia I. Johnstone Award to honour the legacy of Justice Cecilia Johnstone of the Alberta Court of Queen’s Bench (as it then was). The award recognizes women like Justice Johnstone who have achieved professional excellence in their field and influenced other women to pursue legal careers. The recently announced and well-deserved 2023 winner is Myrna L. McCallum, who practises in North Vancouver with Miyo Pimatisiwin Legal Services. Maureen E. Baird, K.C., was appointed as chair of the Safety Standards Appeal Board for a term ending November 26, 2026. Hannah McDonald was recently appointed a director of Small Business BC. In November 1900, Scotsmen of Victoria unveiled a memorial statue and fountain in honour of poet Robert Burns near the putting green in Beacon Hill Park. The City of Victoria, to which ownership was transferred, subsequently turned off the fountain because it was impractical to modernize and did not comply with health regulations. The statue still sits in Beacon Hill Park and is reputed to be the oldest literary landmark in British Columbia. Not to be outdone, on August 25, 1928, a statue dedicated to the memory of Robert Burns was unveiled in Stanley Park near the southern entrance by Coal Harbour (near the Vancouver Rowing Club). The Vancouver Burns Fellowship and the Vancouver Scottish Choir both raised funds to buy the statue, a replica of the Burns statue designed by George Lawson in Ayr, Scotland. It cost $5,000 and was shipped to Vancouver by way of the Panama Canal.

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Dawana J. St. Germain was reappointed as a public member to the board of the College of Chiropractors of British Columbia for a term ending June 28, 2024. Deborah L. Charrois was reappointed as a public member to the board of the College of Massage Therapists of British Columbia for a term ending June 28, 2024. Harveen Thauli was appointed to the Disciplinary and Appeals Tribunal of World Athletics for a four-year term. Based in Monaco, World Athletics is the international governing body for the sport of athletics, covering track nd field, cross country running, road running, race walking, mountain running and ultra-running. The Guardian recently reported that almost 70 per cent of people in Italy between the ages of 18 and 34, known as bamboccioni (big babies), live at home with their parents: 72.6 per cent of men and 66 per cent of women. The newspaper was reporting on the efforts of a 75-year-old woman living in Pavia to evict her two sons, ages 40 and 42, from the family home. Annoyed that her sons did not contribute to the household expenses or chores, she obtained a court order that they move out before Christmas. Jason M. J. Kuzminski was appointed as a lay member of the board of the College of Applied Biology for a term of one year. Justice Scollin of the Manitoba Court of Queen’s Bench (as it then was) wrote in Fuerst v. St. Adolphe Co-op Parc Inc., 1989 CanLII 7401, a personal injury case, that “[i]n the last line of his poem ‘To a Mouse’ Robert Burns wrote, ‘An’ for ward, tho I canna see, I guess an’ fear.’ In much the same frame of mind, I have nevertheless concluded that the amounts proposed for both past loss of earnings and future loss of earning capacity must be reduced”. Linda D. Locke, K.C., was reappointed as a voting member to the Northern Health Authority for a term ending December 31, 2025. William A. Duvall was reappointed as a voting member to the Vancouver Coastal Health Authority for a term ending December 31, 2024. In Tow v. K-Mart Corp., 602 P.2d 1111 (1979), the majority of the Oregon Court of Appeals found that an allegation of contributory negligence (against a plaintiff who slipped on clear nail polish remover that had been

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spilled in a K-Mart aisle and broke her leg) should not have been put to the jury. The majority explained: If there were evidence that plaintiff was skipping down the aisle, or doing a Highland fling, the submission of that specification of contributory negligence would have some merit. In this case, however, the only evidence is that the plaintiff was walking in a normal manner at the time she slipped and fell. There is, therefore, no evidence to support the allegation, unless the plaintiff had a duty to the negligent defendant to be adept at slipping without falling, or falling without hurting herself. We know of no such duty.

Shelley Suzanne Ball, Kathleen M. Mell and Mosope Doris Fagbongbe were appointed as members of the Fraser, Interior, Northern, Provincial Health Services, Vancouver Coastal and Vancouver Island Patient Care Quality Review Boards for terms ending December 31, 2024. Burns Lake is a rural village on the Yellowhead highway (Hwy 16) 230 km west of Prince George. It is not named after Robbie Burns. Rather, Burns Lake was named after Michael Byrnes, who was an explorer for the Collins Overland Telegraph scheme, which operated between 1865 and 1867. Byrnes passed Burns Lake in about 1866 while surveying a route from Fort Fraser to New Hazelton. Ruminating on the potential benefits of audio- and video-recording interactions between police and alleged impaired drivers, Justice Fergus O’Donnell noted “the age-old wisdom of the poet Robert Burns to the effect of, ‘oh what a gift the Lord would gi’e (give) us, to see ourselves as others see us’”: R. v. Cheema, 2016 ONCJ 548. “Every corpse on Everest was once an extremely motivated person, possessing a strong sense of urgency, engaged by inspired leaders with shared purpose and growth mindset.” — Anon. The scotcourts.gov.uk website includes an article by Rebecca Mason, entitled “Women and Law in Early Modern Scotland: The Court of Session”, noting: The Court of Session has overs[een] many notorious cases since its inception in 1532. At the end of the eighteenth century, Agnes Maclehose, a close friend of the poet Robbie Burns, became embroiled in a major intellectual property lawsuit over the contents of love letters exchanged over the course of their close relationship. Agnes met Burns at a party in Edinburgh in 1787 – they were immediately taken with each other, and she wrote to him to invite him to tea at her home. There began a long series of love letters and love poetry sent between the two. Despite the intensity of their correspondence, it is widely-thought that their affair was unconsummated. Agnes was married yet separated from her husband, who had

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emigrated to Jamaica in 1780. In 1804, the Lords of Session ruled in Agnes’ favour, with the letters she had sent to Burns returned to her.

There is a Bagpipe Lake in Nova Scotia and another in Ontario. Sandra L. Walters was appointed to the Property Assessment Review Panel for a term ending November 1, 2026. Laila Mubarak Said-Alam, Kylie J. Buday, Robin A. Dean, Jonathan M. Chapnick and Theressa M.M.K. Etmanskias were all appointed as members of the British Columbia Human Rights Tribunal for terms of three years. Lionel Tupman is a lawyer at Tupman & Bloom LLP in Ontario. The biography on his firm’s website notes he is “a former professional bagpiper and saxophonist and continues to play music for charity events with his nearly all-lawyer blues band, ‘Oui B Jamon’.” Notes a character in Sir Walter Scott’s Guy Mannering, “A lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect”. Kent Ashby and Susan Ferguson were reappointed to the Employment and Assistance Appeal Tribunal for a terms ending October 31, 2025 and October 31, 2027, respectively. Adam Shee was also appointed for a term ending October 31, 2025. Ralph Waldo Emerson observed that “the people who care nothing for literature and poetry care for Burns”. January 24, 2024 marks the 100th anniversary of Margaret Grace Bondfield being appointed Parliamentary Secretary to the Ministry of Labour. In 1929, she went on to become the first woman to be appointed a government minister, as the British Labour Party Minister of Labour in the Labour government of 1929–1931. She was the first woman appointed as a privy councillor. MacCallum Law Group LLP in Langley notes that its call to the bar ceremony features bagpipes. Brenda M. Leong, Deborah A. Armour, Gordon R. Johnson and Marion V. Shaw were all appointed to the British Columbia Securities Commission. Wikipedia notes that while the “best-known form” of bagpipe is the “Great Highland bagpipe”, various types of bagpipes are “widely spread across

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Europe and the Middle East, as well as through much of the former British Empire”. The Metropolitan Museum of Art notes that “there are more than 130 different types of bagpipes around the world” and that they “are thought to have emerged from the Middle East. The earliest named piper was Emperor Nero (37–68 CE), and the Greek historian and orator Dio Chrysostom (ca. 40–115 CE) has described the instrument in detail, throwing serious doubts as to whether Nero was piping or fiddling as Rome burned.” James Reid was among the pipers present for the battle of Culloden Moor, between Jacobite and government forces, which was the last major battle on the British mainland. Reid was accused of high treason but claimed innocence because he was not armed; the judges determined, however, that as a highland regiment never marched to war without a piper at its head, the bagpipe was an instrument of war. He was found guilty and executed. Justice Graesser of the Alberta Court of Queen’s Bench (as it then was) provided a crash course on Jacobites and matters of succession in AVI v. MHVB, 2021 ABQB 12: James II was exiled to France. Many people, especially Scots, opposed James’ overthrow and sought to restore him to the throne. His followers became known as the Jacobites. When James II died, his son James (William and Anne’s brother) became heir to the throne according to the Jacobites. He was nicknamed the “Old Pretender”. James’ son Charles (Bonnie Prince Charlie, the “Young Pretender”) led a failed Jacobite revolt in 1745, remained exiled in France, and died childless.

As summarized poetically by Britannica.com, Sir Walter Scott’s novel Waverley was a “story of the Jacobite rebellion of 1745” and “reinterpreted and presented with living force the manners and loyalties of a vanished Scottish Highland society”. Britannica.com continues by stating: “[n]ovel after novel in the ‘Waverley’ series makes clear that the older, heroic tradition of the Scottish Jacobite clans (supporters of the exiled Stuart king James II and his descendants) had no place in the modern world; the true heroes of Scott’s novels are thus not fighting knights-at-arms but the lawyers, farmers, merchants, and simple people who go about their business oblivious to the claims and emotional ties of a heroic past.” Did you sing “Auld Lang Syne” on Hogmanay, the last day of the year? Scottish poet Sir Richard Maitland (Lord Lethington) is described on Britannica.com as also having been a lawyer. He lived from 1496 to 1586. “He studied law at the University of St. Andrews and in Paris, served James V, and was keeper of the Great Seal (1562–67) under Mary, Queen of Scots.

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Although he became blind about 1561, he remained active as a judge until 1584 and busied himself with writing and collecting Scottish poetry.” Scott Lucyk was appointed chair, In-Canada Events, for the ICC Canada Arbitration Committee. Susan Jane Shackell, K.C., was appointed as a member of the Board of Governors of the Notary Foundation of British Columbia for a three-year term. Writing in a proceeding that dealt in part with a fraudulent conveyance allegation, Justice Herold of the Ontario Superior Court wrote: “If the reasons were to be given a title, it would probably be ‘The Tangled Web’ and I might have begun the reasons with a quotation from J.R. Pope who quoted and expanded upon Sir Walter Scott when he said, ‘O, what a tangled web we weave, when first we practice to deceive! But when we’ve practiced quite a while, how vastly we improve our style’”: MacLeod v. MacLeod, 2002 CanLII 7807. The Government of Canada includes the following on its website among “frequently asked questions” related to “Trade in protected species”, particularly on the Convention on International Trade in Endangered Species: Bagpipes and guitars containing wood and/or ivory from CITES-listed species are exempt from requiring CITES permits, as personal and/or household effects. To travel to the US with an item that contains ivory, for personal use only, you must apply for a Temporary Movement Certificate. For elsewhere, you must contact the specific country for information regarding other possible regulations for importing into their country

On January 3, 1959, Alaska became the 49th state to be admitted to the United States. Alaska was previously known as Russian America, and was acquired from Russia in 1867 for the sum of $7.2 million. Wikipedia notes that Robert Burns was popular in Russia and the Soviet Union as the “people’s poet”, and “[t]he Soviet Union was the first country in the world to honour Burns with a commemorative stamp, marking the 160th anniversary of his death in 1956.” Thought du mois: The fear o’ hell’s a hangman’s whip To haud the wretch in order; But where ye feel your honour grip, Let that aye be your border. —Robert Burns, National Poet of Scotland (1759–1796)

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CONTRIBUTORS Clayton Caverly is a retired litigation partner of the Toronto and Vancouver offices of Dentons (formerly Fraser Milner Casgrain). Thomas D. Ciz serves as an associate counsel at Farris LLP, focusing on income and commodity tax matters. He received a commerce degree from the University of Alberta and a law degree from the University of British Columbia. He is also a CPA(CA). Russell Chiong is an articling student at Ratcliff LLP and a member of the FACL BC advocacy committee. Outside work, Russell is active in Vancouver's Chinatown, serving as president of Chinatown Today, a local non-profit. Talia Gukert is a third-year TRU Law student and a member of the FACL BC advocacy committee. As a biracial woman, she has an innate understanding of the complicities of ethnicity and belonging both within and outside the law; she hopes to apply the same principles of understanding and acceptance she grew up with in a multicultural household in her future practice. David How is an associate in the Aboriginal Law Group at Cassels, with a practice that focuses on all things Aboriginal rights and title. His work, in and out of the law, lives and breathes intersectionality and lived experience, and David longs for ethereal food and wine pairings, new adventures, and the universal use of the Oxford comma [given that, we are not messing with the last one! – Asst. Ed.] Delaney Ignatieff is in her second year at TRU Law, is the Student Law Society Event Coordinator and plays on the TRU law hockey team. She is also an ultimate frisbee player and coach, spinning law and frisbees with equal flair. Jet-setting enthusiast, she recently conquered Southeast Asia and South Africa. Rhythm Jethi is a third-year TRU Law student and returning for articles at McMillan LLP. She is passionate about advocating for inclusivity in the legal field by bridging gaps through education, outreach and strategic initiatives that empower underrepresented voices. She enjoys indulging in charcuterie boards, the cozy embrace of a good book on a rainy morning, and air activities such as skydiving and paragliding when time permits. David A. Paul, K.C., is a Kamloops-based family law mediator, arbitrator and parenting coordinator. His LL.M. Thesis, “Canine-Assisted Mediation”, was published in the fall 2017 Harvard Negotiation Law Review. David also enjoys gardening and winemaking; he is a certified winemaker, having completed the University of California (UC Davis) Wine Making Certificate Program in 2014. Bruce Woolley, K.C., is a sole practitioner who has advised the Real Estate Council of BC (now part of the BC Financial Services Authority) and the BC Real Estate Association. He has taught real estate law extensively since 1981.

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