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
ADVOCATE
“in the interests of an independent bar”
Published six times each year by the Vancouver Bar Association
Established 1943
ISSN 0044-6416
GST Registration #R123041899
Annual Subscription Rate $36.75 per year (includes GST)
Out-of-Country Subscription Rate $42 per year (includes GST)
Audited Financial Statements Available to Members
EDITOR:
D. Michael Bain, K.C.
ASSISTANT EDITOR: Ludmila B. Herbst, K.C.
EDITORIAL ADVISORY BOARD:
Anne Giardini, O.C., O.B.C., K.C.
Carolyn MacDonald
David Roberts, K.C.
Peter J. Roberts, K.C.
The Honourable Mary Saunders
The Honourable Alexander Wolf
CONTRIBUTING EDITORS:
Peter J. Roberts, K.C.
The Honourable Jon Sigurdson
Lily Zhang
BUSINESS MANAGER: Lynda Roberts
COVER ARTIST: David Goatley
COPY EDITOR: Connor Bildfell
EDITORIAL OFFICE:
#1918 – 1030 West Georgia Street Vancouver, B.C. V6E 2Y3 Telephone: 604-696-6120
E-mail: <mbain@hhbg.ca>
BUSINESS & ADVERTISING OFFICE: 709 – 1489 Marine Drive West Vancouver, B.C. V7T 1B8
Telephone: 604-987-7177
E-mail:
<info@the-advocate.ca>
WEBSITE: <www.the-advocate.ca>
VOL. 82 PART 4 JULY 2024
Entre Nous
On the Front Cover: The Honourable Chief Justice
Leonard Marchand
By Jeff Locke
Delay and Timeliness: Part I – Here We Go Again
By Geoffrey Cowper, K.C.
Brazinski v. Brazinski: Lessons to the Family Law Bar About Access to Justice?
By Kendelle Pollitt
What Is a “W-8BEN-E” and Why Should I Care?
By Thomas D. Ciz
Ode to Criminal Law Practitioners Seeking Education
By Jay Fogel
Plant Life
By Catherine Crockett
The Wine Column
Letter
ON THE FRONT COVER
The Honourable Chief Justice Leonard Marchand is Sylix and a member of the Okanagan Indian Band. He was appointed to the Supreme Court of British Columbia in 2017 and to the Court of Appeal for British Columbia in 2021. He was appointed as the 16th Chief Justice of British Columbia in December 2023. Find out more about Len starting on page 497.
We are a firm ofconsulting economists who specialize in providing litigation support services to legal professionals across western Canada. Our economic reports are supported by knowledgeable staffwith extensive experience in providing expert testimony.
We offer the following services in the area ofloss assessment:
Past and future loss ofemployment income
Past and future loss ofhouseholdservices
Past and future loss offinancial support (wrongful death)
Class action valuations
Future cost ofcare valuations
Loss ofestate claims (Duncan claims in Alberta)
Income tax gross-ups
Management fees
Pension valuations
Future income loss and future cost of care multipliers
•21-year
•Presided
•27
•Effective
The Litigation Support Group
Business Valuations
• Matrimonial disputes
• Shareholder disputes
• Minority oppression actions
• Tax and estate planning
• Acquisitions and divestitures
Personal Injury Claims
• Income loss claims
• Wrongful death claims
Economic Loss Claims
• Breach of contract
• Loss of opportunity
Business Insurance Claims
• Business interruption
• Construction claims
Forensic Accounting
• Accounting investigations
• Fraud investigations
Left to Right: Kiu Ghanavizchian, Andrew Mackenzie, Gary Mynett, Lucas Terpkosh, Vern Blair, Rob Mackay, Farida Sukhia
ENTRE NOUS
Two constitutional challenges have been commenced to the newly enacted Legal Professions Act, 1 which until its enactment was Bill 21. In those court proceedings, the Law Society of British Columbia and the Trial Lawyers Association of British Columbia both claim the new statute violates fundamentally important rights and principles. The statute also has its defenders, including the Attorney General of British Columbia (see the Attorney General’s Page at page 575 of this issue). We invite letters and submissions from readers (other than counsel in related litigation: we will leave them to make their pitches in the courtroom) about the statute’s content and implications, for potential publication in future issues of the Advocate
We turn below to an issue that may not feature much, if at all, in the arguments with which the courts ultimately grapple, given the control that the Legislative Assembly has over its own process: the fact that on government motion, Bill 21 proceeded to third reading with only 30 of its 317 clauses having been discussed at the committee stage. This limitation on the role of the Opposition in scrutinizing the bill sits at best uneasily with the Honourable John G. Diefenbaker’s powerful description, in a 1949 speech, of the role of the Opposition in a parliamentary system:
If Parliament is to be preserved as a living institution His Majesty’s Loyal Opposition must fearlessly perform its functions. When it properly discharges them the preservation of our freedom is assured. The reading of history proves that freedom always dies when criticism ends. It upholds and maintains the rights of minorities against majorities. It must be vigilant against oppression and unjust invasions by the Cabinet of the rights of the people. It should supervise all expenditures and prevent over-expenditure by exposing to the light of public opinion wasteful expenditures or worse. It finds fault; it suggests amendments; it asks questions and elicits information; it arouses, educates and molds public opinion by voice and vote. It must scrutinize every action by the government and in doing so prevents the short-cuts through democratic procedure that governments like to make 2
In 2021, the Legislative Assembly of British Columbia adopted Standing Order 81.1, which, as returned to below, came to play a central role in the events that unfolded on the last days of this past legislative session. Pursuant to Standing Order 81.1, if a minister states that agreement could not be reached among representatives of all parties in respect of proceedings at one or more stages of a public bill, the minister “may propose without notice a motion for the purpose of allotting a specified number of days or hours for the consideration and disposal of proceedings at one or more stages of a public bill”. The provision continues: “The motion shall be decided forthwith, without debate or amendment.”
This provision is certainly not unique to British Columbia, nor has it been applied only to Bill 21. It is also somewhat less aggressive than Standing Order 46 (“Closure of Debate”) which, rather than simply providing for the allocation of time, provides for the question to simply be “put” then and there.
Given the vast array of topics with which modern governments must deal, legislative sessions are no doubt crowded. There may well be a need for tools that governments can use to manage time and ensure that, to fulfil the mandate the government may feel it has from electors, some legislative steps may advance. If an uncooperative Opposition were inclined to use delay in and of itself as a tool to thwart government legislative agendas, there might well be a need to resort to Standing Order 81.1.
However, curtailing the time in which Opposition parties may challenge and probe prospective legislation—the foundation for so much of our lives and for what the courts must then apply—should be exceptional. We do not see those exceptional circumstances arising in this case. While the Attorney General expressed disappointment at the pace of debate on Bill 21, and the Opposition front-loaded various questions in relation to clause 1, a fair reading of the legislative debate, in which coherent and respectful questions were being put to the Attorney General, does not suggest Opposition abuse for which time allocation might serve as a remedy.
Further, where the government does wish to rely on time allocation, it should be done in an orderly manner, in an appropriately mapped out legislative session, that allows the Opposition to govern itself and budget for the time it will be allotted.
On May 13, 2024 Bill 21 was at the committee stage, with first reading having occurred on April 6 and second reading on May 6. On the afternoon of May 13, BC United MLA Mike de Jong, K.C., pressed the Attorney General on whether, given the government had just introduced two more bills which he said had not been anticipated (Bill 26 (Name Amendment Act) and Bill 27 (Municipalities Enabling Validating Amendment Act)), it was the government’s intention to have Bill 21 voted on through third reading in this
legislative session, and whether in doing so the government would rely on time allocation. The Attorney General indicated she was “frustrated by the pace at which this is going” but was “making [herself] available”. She also indicated, fairly enough, that she was not the government House Leader, who would ordinarily be in charge of matters of time allocation. Also fairly, however, Mr. de Jong noted:
Look, I hope the Attorney realizes that this is relevant for an opposition, any opposition, in determining how to conduct itself going forward. If there is to be time allocation, the sooner the opposition is informed of that, if there is to be the guillotine, if there is to be closure, the sooner the government informs the House and the committee of that, the better for everyone. I don’t think anything is achieved by the Attorney saying: “Well, we’ll see how it goes.”
Something as important as this, a rewrite of a regulatory scheme that has been in place for over a century and a half, I think – I hope we all agree – deserves careful scrutiny. If there’s a guillotine in the future in the next two days, by the way, as I said a moment ago, a relevant question throughout, but made even more relevant by the government’s decision in the last three days of the session to introduce more legislation that it says it wants to pass, how the opposition allocates our time is influenced by that and the knowledge of what the government’s intentions are with respect to this bill.
We surmise recollections may differ on past legislative practice, and acknowledge that Standing Order 81.1 provides for a motion without notice, but we take what Mr. de Jong then said as at least setting out an ideal to which it would be worth aspiring:
the Attorney reminded me of the time I spent as House Leader. I think the record will show that there were times when governments that I was part of imposed closure. In every instance, it was made clear weeks in advance whether there was any prospect of a bill being subject to that procedural manoeuvre.
The risks and potential ill-effects of truncating debate, particularly without notice, were illustrated shortly thereafter in the course of an exchange on a particular issue related to Bill 21. In answering a question from the Opposition regarding what, if any, concerns the government had with the existing disciplinary procedure within the Law Society, the Attorney General gave a brief response and noted she would be “happy to speak to it when we get to sections 89 and 90 [of Bill 21]….The sections, once we get to 89 and 90, will really help me go through each of the ways that discipline and the discipline hearing and committee process will be undertaken in this act.” Mr. de Jong pointed out that the uncertainty as to timing also meant there was uncertainty as to whether sections 89 and 90 would ever be addressed during the legislative debate. (Indeed, they ultimately were not, given the events described below.)
On May 14, BC United MLA Todd Stone, the Official Opposition House Leader, again raised the prospect of time allocation. He indicated surprise that the government had introduced two bills the day before, expressed disappointment that there had not been earlier notice this would occur and noted the reality that in the context, “[t]here is just no possible way [Bill 21] … is going to be completed without time allocation …. There is no way that this bill will receive the scrutiny that it requires, that it demands.”
Shortly thereafter, pursuant to Standing Order 81.1, the Honourable Ravi Kahlon (the Minister of Housing) moved for time allocation not on Bill 21, but on Bills 26 and 27. The motion was approved on division. Bills 26 and 27 received second reading that day.
Still on May 14, in the evening (just after 6:15 pm), Mr. Kahlon invoked Standing Order 81.1 again regarding the remaining stages of Bills 26 and 27, and now also with respect to Bill 21, moving:
All remaining stages of consideration of Bill 21…will be disposed of by 8:30 p.m. on Wednesday, May 15. A) If at 8:25 p.m., the bill is still being considered at committee stage, the Chair shall forthwith put any remaining questions to complete the consideration of the bill without further amendment or debate, which shall be deemed passed and which shall not be subject to a formal division call, but which may be taken in accordance with Practice Recommendation No. 1…..D) Once the title of the bill is passed, the committee shall rise and report the bill complete….
The motion under Standing Order 81.1 was approved on division.
Committee discussion of Bill 21 resumed on May 15 at approximately 3:40 p.m., with the discussion at that point being on clause 7 of the bill.
At 8:25 p.m., with discussion of Bill 21 having reached only clause 30, the chair said: “Hon. Members, it being 8:25 p.m., pursuant to the motion adopted by the House yesterday, the committee will now proceed to finalize clause-by-clause consideration of Bill 21.” That being done within moments, the Attorney General then moved that the committee rise and report the bill complete. The motion was approved and the committee rose at 8:28 p.m. At 8:55 p.m., Bill 21 was read a third time in the Legislative Assembly and passed.
May 16 was the last day of the legislative session. Much like the last day of term at an English boarding school (or so we surmise from having read cheery English children’s books about same), the discussion in Hansard on that day is filled with excited tributes, thanks and well wishes for the summer. Nestled into this, the Law Society’s president, Jeevyn Dhaliwal, K.C., and its chief executive officer, Don Avison, K.C., both in the gallery, were introduced as being there to witness royal assent being given to Bill 21. Royal assent was given at around 5:30 p.m.
Obviously, given the numbers it can muster on a vote in the Legislative Assembly, a majority government can typically ensure that the legislation it wishes to be enacted will be enacted. However, the process outlined above regarding Bill 21 is concerning.
We are experiencing throughout our society the corrosive effects of individuals receiving only the information they wish to read and hear, or at least limiting the extent to which other information intrudes. Individuals seek out or are, by algorithm, provided with affirmation of their pre-existing views rather than being challenged to consider other perspectives and being, in needing to articulate their position and answer questions about it, forced at least to consider whether their chain of reasoning fully holds together. They simply become more and more convinced they are right no matter what, that it is not worth engaging with others, and that others do not deserve to be listened to—and in not listening to others’ views, they become further committed to their own position.
Those of us whose hearts were stirred by John Stuart Mill may remember his articulation in On Liberty of “the peculiar evil of silencing the expression of an opinion”, being that this “rob[s] the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.” As Mill noted, “the opinion which it is attempted to suppress by authority may possibly be true. Those who desire to suppress it, of course deny its truth; but they are not infallible.” And “[i]n the case of any person whose judgment is really deserving of confidence, how has it become so? Because he has kept his mind open to criticism of his opinions and conduct. Because it has been his practice to listen to all that could be said against him; to profit by as much of it as was just, and expound to himself, and upon occasion to others, the fallacy of what was fallacious.”
We do not suggest that the government has simply shut its ears to commentary and criticism. There was a consultation process leading up to the drafting of Bill 21, and further engagement thereafter. It may be the case, with the best will in the world, that by the time of the legislative debates the government was heartily sick of hearing all that could be said against (but also for) its then-prospective legislation in consultations and other discussions in which it engaged.
However, that is not a substitute for allowing legislative debate to unfold on the bill that was introduced.
First, we do not know whether those consulted over preceding months even under non-disclosure agreements were told precisely of elements of
the form of Bill 21 that was ultimately introduced on April 6, or whether the consultation was in part somewhat tangential.
Second, even if the consultations were meaningful for those who engaged in them, various of the consultations occurred under the curtain of the non-disclosure agreements noted above. Even if the use of such agreements is sometimes needed, their use means that most of the persons affected by Bill 21 had no direct opportunity to consider or participate in the discussions that occurred subject to those agreements.
Third, consider an analogy from another branch of government: the judicial branch. In our judicial system, the testing of evidence and argument in a courtroom setting, through an adversarial process, is often regarded as the ideal form of arriving at truth and, correspondingly, at an appropriate resolution of disputes. Further, the opportunity the public has to learn about the substance of a dispute through the open courts, and observe the judicial process in operation, informs the consideration and debate that should occur in a democratic society. In the Legislative Assembly, the exchange that the Opposition and government may have, before the cameras that allow public view, is a means in theory of both achieving the best possible laws and providing insight to the public about the content of those prospective laws and the workings of our democratic system. Truncating debate makes it more difficult to achieve those ends.
We have focused our discussion on Bill 21 and the process leading to the enactment of this new legislation. However, as noted earlier, time allocation has been used in respect of other legislation as well. This is so not simply at the provincial level but also federally. At the very least the Bill 21 episode provides a reminder of the importance of scrutinizing what unfolds in legislative chambers across Canada and holding governments to account for steps (such as time allocation) that may limit the purpose for which we elect our representatives, as well as the effect those representatives can have. Perhaps beyond that, the fact the provincial government in this case felt comfortable invoking Standing Order 81.1, despite the level of concern that had been expressed about Bill 21’s substance, may signal it is comfortable doing so more generally. If so, there will be more and more need for vigilance, so that the truncation of debate does not simply become commonplace, including in relation to bills that may be less well known than Bill 21 but nonetheless deserve careful attention.
ENDNOTES
1. SBC 2024, c 26.
2. Hon John G Diefenbaker, “The Role of the Opposition in Parliament”, Address to the Empire Club of Canada (Toronto, 27 October 1949) (emphasis
added), as quoted in Gerald Schmitz, “The Opposition in a Parliamentary System” (BP-47E), online: <publications.gc.ca/Collection-R/LoPBdP/BP/bp 47-e.htm>.
ON THE FRONT COVER
THE HONOURABLE CHIEF JUSTICE LEONARD MARCHAND
By Jeff Locke
On December 8, 2023, the Honourable Chief Justice Leonard Marchand was sworn in as the 16th Chief Justice of British Columbia. His appointment was met by the court, members of the bar and the public with great appreciation and, as was witnessed on the occasion of his February 8, 2024 public welcoming ceremony at the Vancouver courthouse, with tremendous applause and spontaneous ovation at the conclusion of his remarks. The Great Hall was filled with both new and experienced members of the bar, members of the judiciary from all levels of courts, elected officials, personal friends, family members and members of Indigenous communities. Those assembled smiled, nodded their heads in agreement, waved and shed tears during the event. It was evident that the Chief Justice had a personal connection of one sort or another with most people in the room.
The appointment of Chief Justice Marchand was a significant moment in our province’s history, but our new Chief Justice was no stranger to such trailblazing endeavors. In June 1968, he had just turned five years old when his father, Len Marchand Sr., PC, CM, OBC, blazed a new trail by becoming the first person of First Nations status elected to Parliament. Those who knew and supported Len Sr. would reflect that he was elected for his personal qualities and not because he was Indigenous. Yet, because Len Sr. was Indigenous, he also brought a special and valuable perspective to his work. Like his father before him, Chief Justice Marchand has blazed a new trail by becoming the first Indigenous person to be appointed Chief Justice of British Columbia. Like his father, he possesses the personal qualities neces-
sary for his position and, in addition, brings to the role the knowledge, insight and lived experiences of an Indigenous person.
The Chief Justice is a sincere person who takes a genuine interest in everyone he meets. He does not have acquaintances; he has friends. For those who have only met him for the first time since his initial appointment to the bench, a common experience is being told by him, “We need to work on you calling me Len”, followed by his trademark broad smile and burst of laughter. Intending no disrespect to his title or the importance of his office, he is most comfortably known as “Len”, and in that manner he will be referred to for the remainder of this brief biography. A bit of related advice for counsel, it’s Justice “Mar-shand”, not “Mar-shawnd” (but he will answer to both).
In many respects, the pathway taken by Len leading to his entry to the judiciary and his appointment as Chief Justice is one which is familiar to many who enter the legal profession. He received a high school education, undergraduate and law degrees, articles, employment as an associate lawyer and entry to the partnership of a law firm. What makes him remarkable is how he did it—how he practised law, how he has served as a member of the judiciary, how he has quietly led and inspired so many, and how his particular collection of qualities reveal themselves in large and small measure through his work and interactions with others.
Len was born in 1963 in Kamloops to Len Sr. and Donna (née Parr) Marchand (both of whom are also known for their trademark smiles and great laughter). Donna was a registered nurse who had come west from her native Ontario to live and work in Kamloops. At the time of Len’s birth, Len Sr. was working as a professional agrologist but was also active with the North American Indian Brotherhood, a national lobby group organized to advance the rights of First Nations peoples. Len Sr.’s 1968 electoral victory over the incumbent candidate, E. Davie Fulton (later the Honourable Mr. Justice Fulton), came only eight years after First Nations people had won the right to vote.
Len grew up in Kamloops with his parents and sister Lori and split time between Ottawa and Kamloops. Len graduated from Kamloops Senior Secondary in 1981 and was both class valedictorian and the recipient of the “Gold K”, an infrequently granted award given to students with exceptional strengths in leadership, academics and athletics. Len excelled in math and science, and in 1986 graduated from UBC with a degree in chemical engineering. He then pursued a career as a professional engineer, working in Alberta for Chevron Canada Resources. Len was an asset to the company, but over time began to contemplate whether there might be another career
path open to him that involved helping people, as opposed to generating revenue for corporate shareholders. Around the same time, Len attended several administrative tribunal hearings on behalf of his employer. After seeing legal counsel at work, he began to think that he could do that job. The course of Len’s life was forever altered the night of a rugby team party where he met Laurie Hibbard, the sister of a teammate. Within nine months, Len and Laurie had married, quit their jobs in Alberta and relocated to Victoria in time for Len to start at UVic Law in September 1991.
Len excelled in law school and, following graduation, returned home to Kamloops to practise. In 1994, he joined Fulton & Company (Justice Fulton’s former firm). Len articled under Lyle R. Backman, K.C., a gifted litigator strongly rooted in the traditions and decency of our profession, who has mentored many young lawyers at the firm. With a career pathway bearing some resemblance to that of former Chief Justice Bauman, Len not only practised in an Interior community, but also saw much of his work devoted to representing local governments. Len also took on other civil and criminal cases dealing with difficult subject matter, including a series of historic abuse claims relating to a notorious offender. Recognizing Len’s qualities and talent, the partners of the firm made him a partner in 1999 after less than four years of practice.
In June 1999, Len received a phone call that would change the course of his career and life. A group of Indigenous residential school survivors contacted him seeking counsel and representation. Len responded to this call for help and began work for what ultimately became many hundreds of residential school survivors. Len excelled in this work and was instrumental in negotiations leading to the 2005 signing by the federal government of the Indian Residential Schools Settlement Agreement. Former Supreme Court of Canada Justice Frank Iacobucci was the federal representative whose work supported reaching the agreement, and also served with Len on the committee to select the members of the Truth and Reconciliation Commission. Justice Iacobucci recalls being impressed with Len’s intellectual talents and “soft skills”, remarking that “Len was a key player in the residential school settlement process. He had a big picture view of the issues and made significant contributions to the settlement agreement.” From his initial retainer though the conclusion of the last residential school claims, Len worked tirelessly with a single-minded commitment to helping as many people as he could, carefully learning their individual cases and advocating for just outcomes.
There are many remarkable things that can be said about this time in Len’s practice. But those who knew and worked with him particularly
remember his discipline and complete commitment to ensuring that each case was meticulously prepared to his high standards. Len had a tireless energy and a humble and compassionate approach to his clients, many of whom had suffered unspeakable abuses and trauma. During this time, Len maintained a gruelling schedule of travel, meetings and hearings, working extraordinary hours (regularly recording over 300 hours each month) while never losing time for his growing family (school events, outdoor recreation and epic vacations), hot yoga and his daily noon-hour runs. His days of training for marathons and triathlons are behind him, but he still runs with an easy stride that friends refer to as “gazelle-like”. Despite his busy schedule, Len also found time throughout practice to mentor young lawyers, both within and outside of his firm.
In his legal practice, Len was an excellent and inspiring mentor who understood the challenges of practice and the demands and stresses it places on new lawyers. On a personal note, I was fortunate to follow and work with Len at our firm, and receive his occasional words of advice or insights. Those that remain with me include: “working evenings and weekends is sometimes unavoidable but should be the exception and never the rule” (he does not precisely follow this one); “when dealing with challenging counsel or situations ‘we will not react, we will respond’”; “use plain language and try to use an active speaking voice in your writing to best support clarity and comprehension”; and “appreciate your support staff, treat them like gold and never take them for granted.” Many of us who worked in practice with Len also identify that “W.W.L.D.” (“What would Len do?”) remains part of our decision-making process (and usually results in a quick answer to a dilemma).
Christina Cook, a lawyer with the BC First Nations Council and Vancouver County bencher, recalls her efforts as a newly called lawyer to entice Len to lunch. Len, who is known for his daily peanut butter sandwich habit, declined the invitation, telling her, “I don’t go for lunch!” (flash again to the trademark smile) and instead invited Christina to visit him at his office. Thereafter, the two spoke regularly, with Len listening and sharing advice. Len somehow finds time for many of these relationships.
The deadline for residential school claimants under what was known as the “Independent Assessment Process” was September 19, 2012. As his residential school practice was winding down, Len shared with his law partners that he intended to pursue an appointment to the judiciary. As Len has since said, “If no qualified Indigenous person ever applies, no qualified Indigenous person will ever be appointed.” In September 2013, Len was appointed to the Provincial Court of British Columbia, sitting in Kamloops.
It was quickly apparent that Len had found a deeply meaningful calling. Len approached his work on the Provincial Court with the passion, curiosity, diligence, laser-sharp focus and humility that have characterized his entire legal career. He became, and remains, a vocal advocate of the important work of the Provincial Court and continues to encourage qualified candidates to seek appointments to that court. In another notable first, Len is the first Chief Justice to have presided as a judge at all three levels of our courts.
As a lawyer, Len’s greatest talent was his excellent judgment—whether it related to running his files or navigating the complexities of a partnership table. The sense of fairness and justice that we all possess rises to a different level of refinement within Len. As a trial judge, Len worked to ensure that adjudication and the making of justice occurred in a respectful and transparent manner and that those in his courtroom were heard, respected and treated fairly. In Provincial Court, it was not uncommon for Len to sit late to work through issues with parties. In family law disputes, he was known to step down from the bench and leave his robes behind to join the parties at a table to help work out solutions. His reasons for judgment, both then and now, continue to reveal his humanity and appreciation that our courts are intended to serve the people who come to them.
In 2017, Len was appointed to the Supreme Court, sitting first in Kelowna and then in Kamloops. Many common themes arise from the friends, colleagues and members of the judiciary who know and have worked with Len. His former colleague in Kamloops, Justice Sheri Donegan, described Len as being “empathetic, compassionate, thoughtful, humble, kind, principled, hard-working, ethical, fair, practical, caring, the list goes on. He not only recognizes that we all have equal worth, he lives it.” Justice Donegan explained that “he is committed to the rule of law. He does what is right. He recognizes the profound impact the justice system has on the everyday lives of people, including Indigenous people, and works hard to build trust in that system, one litigant at a time.”
Len strives each day to be the most positive and enthusiastic person he can be. He is a sought-after speaker at conferences and events, but he is not one to linger near the podium after his presentation. Instead, he gets into the group and commonly seeks out people on the fringes, striking up conversations and making connections with them. Len has a talent for remembering names. If you tell him your kids’ names and what their interests are, he will probably remember those as well. Len has a great ability to see the good or the talents in people and does not make negative comments about others. If he hears a negative remark said about someone, he will invariably
return with a smile and an observation of some positive personal quality. A former colleague from practice recounts that he once complained to Len about a challenging opposing counsel. After a pause, Len replied: “But he sure gets great results for his clients!” (flash again to the smile).
Len creates an environment in which those around him want to be the best versions of themselves. In the words of Ayla Salyn, a former member of his residential school practice group and current partner at Fulton & Company, “He is an ‘uplifter’. He is the person who goes out of his way to offer to encourage and convey his belief in others” and “has this amazing way of making people feel like they are important, and I have seen it over and over again. He sees the human in others, and accepts people as they are.”
Len is thoughtful, measured and seemingly unflappable. Michelle Good, who is another former colleague from his residential school practice, and now an acclaimed author, reflects that “Len has magnificent restraint. His way is calm, measured and respectful. He does not react. This is critical to having a great capacity for objectivity. People are more inclined to listen to him.” A common observation is that Len will “exercise judgment, but is not judgmental”. He does not skip to conclusions and gives very few spur-of-themoment responses.
In 2021, Len was appointed to the Court of Appeal and committed himself to learning the work of an appellate jurist. Len loved being a trial judge and it was with mixed feelings that he put his name forward for an appointment to the Court of Appeal. At the Court of Appeal, Len continued his kind and respectful approach to those who come before the court, whether it was a self-represented litigant or a young lawyer presenting their first case. He writes his judgments plainly and in a straightforward manner so that the people who are affected by his decisions can understand them. A colleague on the court identified Len as a self-described realistic optimist who supports giving people the opportunity to rise to the occasion.
Following his appointment to the Court of Appeal, Len often commented on the insightfulness and brilliance of his new colleagues on the court. At his welcoming ceremony, Len recalled having three thoughts upon reading Chief Justice Bauman’s email message advising of his retirement and the process to replace him:
Number one, I felt happy for the Chief Justice and his family that they would have more time together. Number two, I felt sad that the court would be losing an outstanding jurist, leader and human being. And number three, I felt relieved that the court was so loaded with talent that we’d be in the best of hands no matter which one of my colleagues filled the role of Chief Justice.
Len then deleted the email. A member of the court recalls that it was difficult to convince Len to put his name forward to be considered for Chief Justice. He did so only after being encouraged to do so and a period of deep personal reflection.
Len received the news of his appointment from the Minister of Justice after accepting a call though his car’s Bluetooth system from an unknown Ottawa phone number. At the time, Len and Laurie were on their way with their great friends Ravinder and Sam to see the Western Canada Theatre production of Shrek, the Musical. Len’s three passengers did their best to remain silent as the Minister told Len to keep the news of his appointment strictly confidential until the Prime Minister made a public announcement the next day.
Len holds a strong faith in the honour of the legal profession and in the justice system. As he has said, “We all share a common understanding that the justice system is meant to play a central role in preserving all that is good in our society and improving all that is not good. The ability of the justice system to deliver on its promise turns on the trust and confidence the public has in the system.” He appreciates that our courts are meant to serve the people and that those who enter our courts are often baffled by the law and processes. This includes both self-represented litigants and Indigenous people, who are disproportionately represented in matters before the courts, particularly within the criminal justice and child protection systems. Bencher Christina Cook remarked that “our courts need to have, and be seen to have, a capacity to understand these issues” and cited as example the reasons for judgment of Marchand J.A. (as he then was) in R. v. Kehoe, 2023 BCCA 2, where he recognized that “Canada’s colonial history and assimilationist policies” have played a role in bringing Indigenous accused before the courts.
Len’s experience in the Kamloops Cknucwentn Indigenous Sentencing Court and his work advocating on behalf residential school survivors have given him context, depth of knowledge and lived experiences that very few members of the judiciary bring to the bench. As Michelle Good remarked, “Len’s background and experience will give First Nations people confidence that their perspective is not being missed.” In a similar vein, Len’s former classmate and past CBABC president Dean Crawford, K.C., observed, that this perspective “will not define the Marchand court but is an additional element that he brings, and will promote the objective that the people who appear before our courts see themselves in the court.” In the words of Justice Donegan, “Having him at the helm lends credibility to the system not only in the eyes of Indigenous people, but society as a whole. Indigenous
people need voices throughout the justice system, they need to trust the system. They, like all of us, deserve a justice system that is responsive to their needs. As Len said in one of his speeches, ‘Diversity on the bench is one way to help ensure our judiciary sees the whole picture as we work to find the best legal solutions to complex problems’.”
Len also has a great sense of humour, and most of his best stories are told at his own expense. In the early days of his appointment to the Supreme Court, Len was sitting in Vancouver and was assigned to hear a matter in a particular courtroom. Len got turned around and found himself in a public corridor and, now running late, headed directly to his courtroom (perhaps with a somewhat muted gazelle-like stride) entering through the public door behind counsel and giving a quick “whoops, pretend you don’t see me” on his way past them up to the bench.
Len has many stories of his work and travels in the Yukon and Northwest Territories, including regularly being deposited by bush plane in remote areas and hoping that someone would come to collect him at the landing strip before it got too dark and cold. Still, he would find comfort in the knowledge that his travel bag contained a dog-eared copy of The World According to Garp (or other good book), good chocolate to give those he met in his travels and an emergency jar of peanut butter.
In his private life, the centre of Len’s universe is his wonderful spouse and soulmate Laurie, his three remarkable sons (Miles, Noah and Keegan), the equally remarkable spouses of Miles and Keegan (Carolyn and Lisa) and his two granddaughters. Much of Len’s remarks at his welcoming ceremony were devoted to expressions of personal gratitude. In his own words, “Without Laurie, none of the good things that have happened in my life would have been remotely possible.” Len Sr. was a teacher and mentor whose life was devoted to public service and his mother, Donna, continues to be an inspiration of grace, strength and dignity. His in-laws Frank and Rosemary Hibbard gave him support, happiness and examples of lives that were truly well lived.
Len’s predecessor, the Honourable Robert J. Bauman, K.C., reflects on Len as “thoughtful, sensitive, empathetic, a team builder, very respectful and principled” and with “a vision for justice in our province that includes the perspective of Indigenous peoples.” In the view of former Chief Justice Bauman, Len’s appointment occurs “just at this critical time in our collective journey towards real reconciliation—on the edge of adopting UNDRIP [United Nations Declaration on the Rights of Indigenous Peoples] and the challenge of weaving our law with Indigenous legal orders.” Importantly, he says, “we must not pigeonhole the new Chief Justice as a champion for only
one part of our community; he is a lawyer and judge with wide experience—he is there on merit!”
The consensus among those of us who are privileged to know or have worked with Len is that he will be a much-admired Chief Justice. A current member of the court recounts a former Chief Justice of British Columbia being known to privately say that “Chief Justices are loved, despised or tolerated” and believes there is no doubt that Chief Justice Marchand will be loved. He is among the best of us and would likely have excelled whatever his chosen profession. As in all things, he will put his work first and himself last. He understands the importance of the courts in our democracy and will continue to connect with the public while maintaining the independence of the judiciary. He knows the challenges facing our courts and justice system, and we expect he will greatly exceed his own humble ambition that “Hopefully, things are a bit better when I leave this place. I would be quietly satisfied if that were the case.”
DELAY AND TIMELINESS: Part I – Here We Go Again
By Geoffrey Cowper, K.C.
Once again, delays in the justice system are provoking alarm and raising calls for Canadian governments to act. Of course we have seen this before. So, what is different now that makes raising this recurring issue worthwhile?
Many recent stories demonstrate the rising concern over delays in Canada’s justice system. The Globe and Mail reports that the number of stays for delay in criminal proceedings in Quebec has quadrupled over the past year.1 Both the legal and popular media regularly feature stories of murder trials with long delays. The November 2023 conviction for the July 2017 murder of a 13-year-old girl in Burnaby’s Central Park is one example of a high-profile case that occupied several years. Another case was stayed for undue delay in Ontario after the accused was convicted of sexual assault.2
Concerns over delay extend to other courts and tribunals. The Advocates’ Society recently issued a call-to-action report focused on civil proceedings titled, “Delay No Longer, The Time To Act Is Now”.3 Similarly, Howard Levitt, writing in the Financial Post, has pointed out lengthening delays in small claims courts and human rights tribunals.4 Delay has also regularly been the subject of complaints at other administrative tribunals.
Even regimes aimed at ensuring expeditious process are not immune. The anti-SLAPP legislation expressly provides for an expeditious procedure to prevent the abuse of defamation laws to suppress public debate. Despite this, the most recent appellate authority involves a five-year battle over whether Steven Galloway can sue multiple defendants for high-profile allegations of misconduct that resulted in his dismissal from the University of British Columbia.5
In an open letter to the Attorney General of Canada, Chief Justice Wagner called for judicial appointments to be made on a timely basis. Similar calls for more funding have come from the Canadian Bar Association (“CBA”) and other institutional voices. The CBA has been pressing for increased funding and resources for years.
These concerns have taken on a new constitutional dimension. The Federal Court in Hameed v. Canada (Prime Minister)6 found a constitutional con-
vention requiring the federal executive to maintain the overall judicial complement through timely appointments. The history of shortfalls in the judicial complement suggests such a rule has been honoured more in the breach than in observance, but the shortfall in both federal and provincial jurisdictions has rarely received such high-profile attention. The Attorney General has responded with more appointments, but the broader history suggests more is needed.7
Is this not all too familiar? While the length of these delays is excessive, it is not unprecedented. After past reports and previous calls to action, reductions in delay have lasted for a time.
It is remarkable that we have not become even more habituated to delays.
Instead of delays losing their impact, each generation recognizes anew the mischief of undue delay and believes it can and should be overcome.8 I added to this history in my 2012 report to the provincial government titled A Criminal Justice System for the 21st Century, along with an update in 2016.9 I concluded then and continue to believe that despite the refractory and episodic history of undue delay, many things have changed in the legal landscape that should encourage and equip permanent improvement.
This article provides an update on the nature of the problem. It then outlines how enduring improvements depend on making changes to our legal culture that build on both historical examples and modern systems. Above all we must recognize and act on the basis that timeliness is integral to justice.
NATURE OF THE PROBLEM
The well-recognized problem of delay has garnered both general and heroic measures of reform. Still, cultures of delay remain, along with a perceived pattern of delay in justice as an inevitable tidal process that rises and falls, only to rise again.
Chief Judge Metzger’s lament in 1998 that we suffer from a culture of delay points to the embedded character of the problem.10 As Chief Justice Spigelman in Australia observed, delay is a feature of the design of justice systems. Gladstone’s aphorism that “justice delayed is justice denied” captures the tendency of due process protections to run away from their legitimate purpose, thereby frustrating the ends of justice. But the cost of haste has its own less well-known saying: “justice hurried is justice buried.”
The causes and consequences of undue delay are complex. The culture of delay reflects choices and priorities made by our legal culture: all stakeholders sacrifice timeliness to other justice goals. In other words, when a choice is seen as a trade-off made between timeliness and such things as
better disclosure, more time for evidence or party autonomy, timeliness ranks lower. This subordination is often unconscious and shared. No stakeholder has a clear responsibility to achieve timeliness.
Other causes of delay include mismatched and perverse incentives, illplanned systems and unresponsive rules. We properly celebrate the quality of outcomes but rarely celebrate timeliness. Indeed, both our academic and popular cultures ignore or discount the costs of delay. The social benefits of timeliness, including those accruing to individuals, families and the economy, seem to be of more interest to economists and social scientists.
This embedded character suggests the need for a systematic approach. The call for judicial appointments attracts attention to the question of judicial capacity, but the relationship between undue delays and judicial numbers is not straightforward. Both the demands on judges and the nature of judicial work have been changing for decades. Administrative processes affect courts through undue delays for similar and additional reasons. For a generation now, calls for systemic reforms have crowded the policy anterooms, but none have been distinctively aimed at achieving timeliness within the justice system.
Less commented on in this debate is the long march away from the courts. To varying degrees, in British Columbia the core civil areas of motor vehicle personal injury, family law and commercial law are all shrivelling away from or leaving the judicial system altogether. Even criminal practice has seen the sunset of drunken driving offences and the wholesale shift to administrative roadside suspensions to further reduce the incidence of dangerous drivers. The areas of growth in the superior courts seem concentrated around statutorily dependent proceedings like class actions and bankruptcies. The long civil trials of the 1950s and 1960s concerned contracts and construction projects like the Bennett Dam litigation.11 Today’s long civil trials concern constitutionally embedded disputes such as Indigenous rights and title. For criminal matters the days devoted to Charter motions present a similar picture. The trend away from judges adjudicating disputes in many of the traditional subject areas appears to have become an irreversible fact. The concern over judicial resources may be a symptom of a shrunken and marginalized model of dispute resolution.
Many influences have fuelled the retreat from the courts, but delay is nearly always cited as the court system’s vice, while timeliness is the alternative’s virtue. Delays in alternative systems also seem less refractory. For example, when commercial arbitration came under criticism for delay, arbitration centres responded in ways that were responsive, systematic and thorough. The Vancouver International Arbitration Centre has timeliness
embedded in its rules. The development of expedited procedures appears to be finding favour with those seeking arbitral rulings for smaller disputes. The flowering of interim relief in arbitration practice has moved interlocutory relief from the courts to the arbitral tribunals. The rapidity of these changes is no doubt due in part to the fact that there is competition between arbitration administrators, the system is largely party-funded and the tribunals are mostly party-selected.
The migration of commercial disputes to arbitration has been going on for several decades and is likely irreversible. Surveys suggest that very few commercial lawyers would recommend a large commercial dispute be tried in the Supreme Court rather than in an arbitration.12 The best that might be hoped for would be a more collaborative relationship—but surely a shared culture of timeliness would make that more likely.
The experience of alternative dispute resolution systems, and the contrast with the court system, provide a number of lessons. I would suggest this experience demonstrates that moving parties desire timeliness and subject-matter expertise over fixed calendars and generalist decision makers. Further, timeliness is best achieved where the administrator shares that goal, and where it is embedded in the procedural rules. Timeliness thrives in a system with reasonable, equal incentives, and where the participants see it as a mark of excellence.
WHAT IS NEEDED?
Timeliness is not just about avoiding delay. Our efforts to eliminate delay have always been temporary because we do not have a shared commitment to timely resolutions. Both the benefits of timeliness and the costs of delay are treated as subordinate to other goals and values.
Timely justice is about delivering a just result that arrives in time. The measure of what constitutes arriving in time requires careful thought, measurement and responsiveness. There is no single answer to the problem. Indeed, there is no single, unitary problem, since the goals of timeliness are different from one type of case to another and can differ even within the lifetime of one dispute. Even a casual reflection of our common experience exposes the different causes, effects and possible measures to achieve timeliness in family, criminal, administrative or commercial cases.
While the different causes of delay have presented a formidable challenge throughout history, much has changed. First, many systems, such as medicine, engineering and transportation, have become more timely, thus affording both role models and insights. Indeed, part of today’s frustration with untimely justice comes from the unflattering comparison to
other solutions. Booking court processes do not stack up to scheduling other aspects of our lives, such as travel, restaurants and entertainment. While timeliness has always been valued in the justice system, it would be better achieved if its benefits were embraced and embedded within the culture.
We strive for a health care system that treats patients with minimal delay. Why cannot timely justice similarly minimize the disruption of legal proceedings to litigants’ everyday lives? Just-in-time manufacturing surely has lessons for case management. And, if airlines can fly on time, so can the courts. Each of these comparators has had struggles of its own but has not abandoned the cultural value that timeliness has secured in the expectations of their stakeholders.
WHAT MUST BE CHANGED?
Meaningful change requires a combination of understanding, communication, incentives and leadership. In the case of the justice system, we need to understand not only the cost of delay, but also the benefits of timeliness. We need to do better at communicating the rewards of timeliness, and we must frame and apply appropriate disincentives to delay. We need to increase our expectations of judicial leadership to include better systems and case management.
The calls for additional resources made by the Chief Justice and others draw on the generally high regard people have for the court system. However, they also suggest a lack of trust in both the need for, and effective application of, judicial resources. The overall relationship between the executive and the courts is far too often characterized by political gestures and chronic frustration. One way to rise above these problems is to transform that culture by employing data and information systems—as has been done in other systems (healthcare, transportation, etc.)—to meet the challenge of timeliness.
Despite an overall desire for timeliness, that goal is frustrated where it is unevenly shared. Where moving parties can choose a more timely resolution, they do so, except where the proceeding itself is intended to bring about a pause or halt to another process. Where the advantages of delay are readily available, responding parties will take advantage of them and do so dynamically. The U.K. example of guilty pleas dropping after increasing delays to trial illustrates the better results that might flow to a party from waiting.13 Clients in search of delay will find suitable representation unless the system intervenes. Recently, multiple changes of counsel have featured in the case reports.
A solution? Party choices must be constrained where they lead to disfunction. Adhering to a party-driven system dooms any attempt at achieving timeliness. The debate over case management in British Columbia has been ongoing for decades now. At least as to timeliness, the answer has always been clear: it is achieved when inspired, monitored and enforced by judges.
In the next instalment of this article, I will address what a shift to timeliness requires and offer suggestions on how we might achieve—and sustain—a more timely justice system for British Columbia.
ENDNOTES
1.Frederik-Xavier Duhamel, “More Than 300 Criminal Cases Stayed or Dropped in Quebec Due to Court Delays, Documents Reveal”, The Globe and Mail (4 December 2023).
2. R v Toole, 2023 ONSC 7243.
3.The Advocates’ Society, “Delay No Longer, The Time to Act Is Now” (2023), online: <www.advocates.ca /Upload/Files/PDF/Advocacy/CivilJustice/2023/ The_Advocates_Society_Delay_No_Longer_Final_ Published_June_29_2023.pdf>.
4.Howard Levitt, “The Small Claims System Is in Disarray and It Is Depriving Many of Access to Justice”, Financial Post (12 April 2022), online: <financial post.com/fp-work/howard-levitt-the-small-claimssystem-is-in-disarray-and-it-is-depriving-many-ofaccess-to-justice>.
5.Douglas Todd, “Why Steven Galloway Has Been Denied His Day in Court for So Long”, The Vancouver Sun (16 January 2024), online: <vancouversun. com/opinion/columnists/douglas-todd-why-stevengalloway-denied-day-in-court-for-so-long>.
6. Hameed v Canada (Prime Minister), 2024 FC 242.
7.Tim Wilbur, “Attorney General Arif Virani on How He Works to Expedite Federal Judicial Nominations”, Canadian Lawyer Magazine (30 April 2024), online: <www.canadianlawyermag.com/practiceareas/litigation/attorney-general-arif-viranion-how-he-works-to-expedite-federal-judicialnominations/385851>.
8.My report titled A Criminal Justice System for the 21st Century, infra note 9, was optimistic that an enduring solution to timeliness could be achieved through the application of modern management systems, including use of information technologies.
9.Geoffrey Cowper, A Criminal Justice System for the 21st Century, BC Justice Reform Initiative (27 August 2012), online: <www2.gov.bc.ca/assets/gov/lawcrime-and-justice/about-bc-justice-system/justicereform-initiatives/cowperfinalreport.pdf>; Geoffrey Cowper, A Criminal Justice System for the 21st Century: Fourth Anniversary Update, BC Justice Reform Initiative (19 October 2016), online: <www2.gov.bc ca/assets/gov/law-crime-and-justice/about-bcjustice-system/justice-reform-initiatives/cowperreport-4-anniversary-update.pdf>. I have also for the past few years sponsored a website dedicated to the topic: <www.timelyjustice.org>.
10.Chief Judge Robert W Metzger, The Report of the Chief Judge: Delay and Backlog in the Provincial Court (Victoria: Ministry of Attorney General, 1998), online: Legislative Library of British Columbia <www.llbc.leg.bc.ca/public/pubdocs/bcdocs2012 /319602/delay_and_backlog_in_the_provincial_ court_of_british_columbia.pdf>.
11.At one time the longest civil trial in the Commonwealth.
12.Queen Mary University of London, School of International Arbitration, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World (2021), online: <arbitration.qmul.ac.uk/media/ arbitration/docs/LON0320037-QMUL-Interna tional-Arbitration-Survey-2021_19_WEB.pdf>.
13.Andy Gregory, “Criminals Gaming the Justice System as Cases Jammed for Years in Court Backlog”, The Independent (10 February 2024), online: <www.independent.co.uk/news/uk/homenews/courts-backlog-delays-criminal-trials-b2473 179.html>.
BRAZINSKI v. BRAZINSKI: LESSONS TO THE FAMILY LAW BAR ABOUT ACCESS TO JUSTICE?
By Kendelle Pollitt
Access to justice is a pervasive and hot topic often debated among policy makers, lawyers and others. It is generally agreed that greater access to justice is necessary, but how is it achieved? One area of the law that acutely feels the pinch of access to justice is family law. Lawyers know that navigating family court proceedings can be a difficult task, typically requiring a nuanced understanding of legal procedures and rules, the law of evidence, various statutes and the common law, as well as courtroom practices and etiquette. While the opportunity to represent oneself in court is available to all, lay people may not fully appreciate the challenges and pitfalls of self-representation in family court until it is too late. The risks (and consequences) of selfrepresentation can be observed in the recent B.C. Court of Appeal case of Brazinski v. Brazinski 1
In the Brazinski case, the parties had been married for approximately 16 years before separation. Mr. Brazinski, who was 25 years older than his wife, brought into the relationship two Vancouver properties which he had previously owned for approximately 5 and 11 years, respectively. He further alleged he had brought into the relationship funds from a personal injury settlement. Ms. Brazinski brought into the marriage no assets or funds.
At the time of separation, Ms. Brazinski was employed as a nurse and Mr. Brazinski earned income managing two rental properties owned by the parties. They had relatively little debt in relation to their asset base and had a combined net worth of over $2.5 million. Unable to resolve their property division issues post-separation, the parties proceeded to a five-day Supreme Court trial and each elected to represent themselves in the proceeding.
In British Columbia, the Family Law Act provides that family property is generally divided equally, and excluded property that is existing at separation or traceable to an existing asset generally remains with the originating spouse. Tracing excluded property does not necessarily require complete precision or certainty; however, the onus is on the person seeking the exclu-
sion to prove the exclusion on a balance of probabilities. At trial, Mr. Brazinski sought to prove that all or a portion of the above-noted Vancouver properties, as well as all or part of the value of his personal injury settlement, were his excluded property.
Nevertheless, Mr. Brazinski clearly failed to understand the nuances of proving an excluded property claim. The evidence he presented was incomplete and, in some instances, totally off the mark. After learning of some of his mistakes mid-trial, Mr. Brazinski attempted to partially remedy a deficiency in his evidence regarding the Vancouver properties by seeking to enter into the trial record a new expert report on the last day of trial. The trial judge refused to allow in the evidence. The trial judge also found that Mr. Brazinski failed to sufficiently trace his alleged excluded property claim for the personal injury settlement funds.
At paragraph 69, the Court of Appeal stated: … The primary difficulty with the excluded property claims was that Mr. Brazinski failed to plead the claims and then failed to present sufficient evidence to prove them. Mr. Brazinski was generally not prepared for trial. Whether due to a lack of understanding of trial procedure or a failure to appreciate the legal requirements to prove these claims, much of his evidence consisted of bare assertions without supporting evidence …
The trial judge disallowed Mr. Brazinski’s excluded property claim and ordered an equal division of property. The court found that the conclusion of the trial was delayed by two weeks due to “Mr. Brazinski’s lack of preparation, organization, and his ‘persistently tangential approach’”.
Mr. Brazinski appealed the trial judge’s decision. At the appeal, both parties were represented by counsel. The Court of Appeal upheld the trial judge’s decision disallowing the excluded property claim. However, the court did allow the appeal on another, ancillary issue. In upholding the trial judge’s decision on the excluded property claims, the Court of Appeal stated at paragraph 2:
The judge found that Mr. Brazinski did not present adequate evidence to support or value his excluded property claims. Mr. Brazinski, who was self-represented at trial, failed to marshal probative evidence and plead his claim for excluded property, which made the judge’s task challenging. Given the state of the record, I am of the view that the appellant is unable to show that any errors made by the judge were material to his conclusion on the excluded property claims.
At the trial, Mr. Brazinski clearly misunderstood the legal nuances necessary to prove his case. Further, as later pointed out by the Court of Appeal, Mr. Brazinski failed to even properly plead his excluded property claims. The trial judge was challenged with balancing legal tests and fairness between the parties, without the assistance of competent legal counsel on
both sides highlighting the relevant laws and advocating for their clients’ respective positions.
Access to justice is a pressing and relevant topic of concern and debate, not only in British Columbia, but throughout many parts of Canada. Typically, this debate is focused on the cost of legal representation. Step into any family court in British Columbia and one can easily see that self-represented litigants are far more prevalent than they were a decade or two ago. More and more people are choosing to represent themselves in family court.
In the Brazinski case, both parties had steady incomes, and more importantly had assets exceeding a net value of $2.5 million—assets that could have been leveraged to pay legal fees for trial. Given the complex excluded property claims, and the potentially significant impact those claims had on either party, one must wonder why both Brazinski spouses chose to go it alone at trial.
Also, at the end of the day, given the perceived “wrongs” of the trial outcome in Mr. Brazinski’s view, the parties ended up in further litigation, this time in the B.C. Court of Appeal, and each party ended up hiring counsel to represent them in any event. But, by the time the parties made it to appeal court, the lawyers’ abilities to fully advance their clients’ claims were limited by the scope of an appeal.
Why are more and more people choosing to self-represent in family court, and more particularly, failing to see the value of hiring professional legal counsel, perhaps even when they can afford the representation? Is it the availability of information on the internet (albeit often incorrect or incomplete) that leads people to doubt the necessity of hiring a lawyer? Ignorance of the complexities of the law? Do people start off with lawyers but become jaded over the costs when persistent court delays or other factors seem to ratchet up a legal bill, yet the finish line seems far into the distance? Is legal representation simply viewed more and more by the public as a frivolous expenditure reserved only for the super-wealthy or the very poor who qualify for legal aid? Or are lawyers and law firms failing to keep pace with our increasingly service-centred and on-demand society, leading to disillusionment, dissatisfaction and a general avoidance of legal professionals by the public?
The answers to these quandaries are neither simple nor obvious. The solutions are complex and multi-dimensional. The justice system is built on the meticulous integration of a multitude of necessary pieces, including important contributing players such as lawyers, judges, court clerks and sheriffs. Take out one or more of these important pieces or players from the
system, and the foundation begins to show cracks and others need to compensate. In the Brazinski case, it was clear that the trial judge was placed in a difficult position, left to navigate a trial with two untrained and illinformed self-represented litigants.
Finally, one would hope that had lawyers been involved in the first place, an appeal to the Court of Appeal would not have been necessary, saving the clients the emotional and financial costs of unnecessarily prolonged litigation. Lawyers are a necessary piece of the puzzle of our justice system. However, it seems that members of the legal profession need to turn their minds not only to fixing the problems surrounding access to justice for those who want a lawyer but cannot afford one, but also to including those who presumably can afford a lawyer, but fail to see the value in legal representation.
ENDNOTE
1. 2023 BCCA 359 [Brazinski].
WHAT IS A “W-8BEN-E” AND WHY SHOULD I CARE?
By Thomas D. Ciz
This article attempts to shed light on an arcane series of tax certificates mandated by the U.S. Internal Revenue Service (the “IRS”) that Canadian lawyers and their clients are increasingly called on to complete and sign.
Due to limitations of time and space, this article will focus on the following four specific tax certificates: (i) Form W-9, (ii) Form W-8BEN, (iii) Form W-8BEN-E and (iv) Form W-8IMY (each a “U.S. Tax Certificate” and collectively, the “U.S. Tax Certificates”).
One may well ask, what is the purpose of these U.S. Tax Certificates and why are Canadian lawyers and their Canadian clients asked to complete and sign them?
Not surprisingly, the answer concerns money—more specifically, the collection of money by, or on behalf of, the IRS on account of unpaid tax.
As discussed below, a Canadian lawyer who fails to complete and sign a U.S. Tax Certificate when requested may experience certain adverse consequences such as the closure of their bank account if the requester is a Canadian financial institution, or the imposition of U.S. withholding tax on any payments to be received from the requester.
BACKGROUND
Like Canada, the United States taxes its residents based on their worldwide income; however, unlike Canada, the United States also taxes its nonresident citizens on the same basis. Citizenship-based taxation, which is essentially unique to the United States, has been in place since 1913 and creates unique challenges for, and imposes a significant compliance burden on, U.S. citizens who reside outside of the United States, particularly when the country of their chosen residency also imposes tax on them based on their worldwide income.1
The burdens on non-resident U.S. citizens were exacerbated when on March 18, 2010, the U.S. government enacted the Foreign Account Tax Compliance Act (“FATCA”) as part of the Hiring Incentives to Restore Employment (HIRE) Act (P.L. 111-147) (the “HIRE Act”).
FATCA is essentially a U.S. financial disclosure and transparency law which applies extraterritorially to require foreign (i.e., non-U.S.) financial institutions (each a “FFI”) and certain other non-financial foreign entities to report on certain foreign financial accounts and foreign assets that are held by an account holder who is a “U.S. Person”.2 The HIRE Act also requires U.S. Persons to report certain of their foreign financial accounts and foreign assets depending on their value. This requirement is in addition to the longstanding requirement to report foreign financial accounts on FinCEN Form 114 [Report of Foreign Bank and Financial Accounts (“FBAR”)].
For a summary of the FATCA reporting obligations applicable to a U.S. Person, refer to <www.irs.gov/businesses/corporations/summary-of-fatcareporting-for-us-taxpayers>.
If a FFI or other non-financial foreign entity fails to comply with its obligations under FATCA, FATCA requires that any U.S. Person who intends to make a payment of U.S. source income (such as interest or a dividend) to the non-compliant FFI or the non-compliant foreign entity withhold thirty per cent of the payment and remit the amount to the IRS. Withholding tax can also be levied in respect of a compliant FFI on non-compliant individual account holders who fail to provide documentation as to whether they are a U.S. Person, and on passive entities (i.e., entities whose business purpose is to generate passive income) that fail to identify their substantial U.S. owners, if any.
When FATCA was first introduced, there was concern that its extraterritorial application could violate certain bilateral treaties between the United States and certain other countries or cause compliant FFIs to be in violation of the privacy laws of their home country. These concerns have been largely assuaged by the fact that the United States has entered into a series of intergovernmental agreements (each an “IGA”) with numerous foreign governments, removing the legal impediments to FATCA’s implementation and compliance where local law would otherwise prohibit the sharing of prescribed financial information. Under an IGA, the foreign government will often agree to act as an intermediary, collecting information on U.S. account holders from the FFIs operating within its jurisdiction and transmitting the information to the IRS.
Under the IGA that Canada entered into with the United States3 (the “Canada U.S. IGA”):
•A “Canadian Financial Institution”4 will not report any information directly to the IRS; rather, prescribed information regarding a “Financial Account”5 maintained by a “Reporting Canadian Finan-
cial Institution”6 and held by one or more “Specified U.S. Persons”7 or by a “Non-U.S. Entity”8 with one or more “Controlling Persons”9 that is a Specified U.S. Person will be reported to the Canada Revenue Agency (“CRA”), which in turn will transfer the information to the IRS under the authority of the existing provisions of, and protected by the confidentiality safeguards under, the Convention Between Canada and the United States of America with Respect to Taxes on Income and on Capital, as amended, which was entered into by Canada and the U.S.A. (each a “Contracting State”) on September 26, 1980 (the “Canada-U.S. Tax Treaty”).
•The thirty per cent FATCA withholding tax will not apply to clients of Canadian Financial Institutions, and can apply to the Canadian Financial Institution only if the financial institution is in significant and long-term non-compliance with its obligations under the Canada U.S. IGA.
•The FATCA requirement that Canadian Financial Institutions be required to close accounts or refuse to offer services to clients in certain circumstances is eliminated.
•Accounts listed in Annex II (Part IV) of the Canada U.S. IGA are exempt from FATCA reporting, including registered retirement savings plans, registered retirement income funds, registered pension plans, tax-free savings accounts, registered disability savings plans, registered education savings plans and deferred profit sharing plans.
•The Canadian Financial Institutions that are identified in Annex II (Parts I to III) of the Canada U.S. IGA are exempt from reporting.
•The IRS will provide the CRA with enhanced and increased information on certain accounts of Canadian residents held at U.S. financial institutions.
The obligations of Canadian Financial Institutions under the Canada U.S. IGA have been codified in Part XVIII of the Income Tax Act10 and since June 29, 2014, every reporting Canadian Financial Institution is required thereunder to file with the Minister before May 2 of each calendar year, an information return in prescribed form relating to each U.S. reportable account maintained by the institution at any time during the immediately preceding calendar year. It is then CRA’s responsibility to provide the information to the IRS.
In turn, every reporting Canadian Financial Institution will require certain of its account holders (including any account holder that is a Canadian lawyer or law firm or that is a client of the lawyer or law firm) to complete and sign a U.S. Tax Certificate, in the appropriate form, every three years or sooner if circumstances change.
The U.S. Tax Certificates mandated by the IRS attempt to accomplish two distinct objectives. If an account holder of a FFI is a U.S. Person, the FFI must obtain from that account holder a completed, certified and signed Form W-9 disclosing certain prescribed information, including the account holder’s U.S. taxpayer identification number (“TIN”). If an account holder of a FFI is not a U.S. Person, the FFI must obtain from that account holder a completed and signed U.S. Tax Certificate, in the appropriate form (discussed below), certifying that the account holder is not a U.S. Person and disclosing certain prescribed information including whether, and the extent to which, the account holder is subject to U.S. withholding tax (either Chapter 3 Withholding or Chapter 4 Withholding, discussed below) on the receipt of certain types of U.S. source income.
FATCA served as the inspiration for the development by the Organization for Economic Co-operation and Development of a common reporting standard (“CRS”) for the automatic exchange between the numerous participating countries, including Canada, of information pertaining to certain “financial accounts” (such as bank, mutual fund and brokerage accounts, segregated fund contracts and certain annuity and insurance contracts) held by a tax resident of any such country.
The CRS is similar to FATCA, except the exchange of financial account information under the CRS is between participating countries other than the United States. However, like FATCA, the objective of CRS is to reduce tax evasion and improve tax compliance among the participating countries. The provisions of CRS have been codified in Part XIX of the Income Tax Act and every reporting financial institution is required thereunder to report certain prescribed information described in subsection 271(1) of the Income Tax Act to the Minister with respect to each of its reportable accounts. In turn, CRA will report relevant information to the tax authority of each of the relevant participating countries.
U.S. TAX WITHHOLDING
The term “Chapter 3 Withholding” refers to a statutory withholding obligation imposed under sections 1441, 1442 and 1443 of the Internal Revenue Code (the “U.S. Code”) on a payment of U.S. source income to a foreign person. In general, the statutory rate of withholding is thirty per cent and is applicable to payments of fixed, determinable, annual and periodic
(“FDAP”) income or gains from U.S. sources but only if they are not effectively connected with a U.S. trade or business made to a payee that is a foreign person.
The term “Chapter 4 Withholding” refers to a statutory withholding obligation imposed under sections 1471 to 1474 of the U.S. Code on a withholdable payment made to an entity that is an FFI (unless the withholding agent is able to treat the FFI as a participating FFI, deemed-compliant FFI, or exempt beneficial owner) or to an entity that is a passive non-financial foreign entity that fails to identify its substantial U.S. owners (or to certify that it does not have any substantial U.S. owners). The statutory rate of Chapter 4 Withholding is thirty per cent.
For more information concerning U.S. withholding tax, refer to Publication 515 [Withholding of Tax on Non-Resident Aliens and Foreign Entities] available at <www.irs.gov/pub/irs-pdf/p515.pdf>.
In addition, under certain circumstances a U.S. withholding tax (referred to as “U.S. backup withholding”) may apply to a payment made to a U.S. Person. A payer must withhold twenty-four per cent from a reportable payment made to a U.S. Person that is subject to Form 1099 reporting if:
•the U.S. person has not provided its TIN in the manner required;
•the IRS notifies the payer that the TIN furnished by the payee is incorrect;
•there has been a notified payee under-reporting;
•there has been a payee certification failure; or
•if the status of the payee as a foreign person or a U.S. Person cannot be determined, the presumption rules under chapters 3 and 61 generally require the payer to treat the payee as a non-exempt U.S. Person.
To avoid U.S. backup withholding, a TIN must be provided by a U.S. nonexempt recipient, which must be on Form W-9 [Request for Taxpayer Identification Number and Certification] when a payer is required to obtain a certified TIN from a payee.
The payer who neglects or refuses to impose U.S. backup withholding when required will itself be held liable for the amount of the backup withholding which should have been withheld from any payments (plus any applicable interest, penalties or additions to tax).
U.S. TAX CERTIFICATES
If a person (a “requester”):
•is a FFI under FATCA which maintains a reportable account for another person (the “account holder”); or
•intends to pay an amount to another person (the “recipient”) and is required to file a particular information return with the IRS as a consequence of having made that payment (a “reportable payment”),
the requester is required to obtain from the recipient (before making the reportable payment to the recipient) or from the account holder, as the case may be, a U.S. Tax Certificate which contains certain prescribed information about the recipient or account holder and which is duly completed and signed by the recipient or account holder.
Broadly speaking, a Canadian lawyer or Canadian law firm may be asked by a requester to provide it with a completed and signed U.S. Tax Certificate under one of two different scenarios.
Firstly, the lawyer or firm may be asked by each Canadian Financial Institution where it holds one or more accounts, for a completed and signed U.S. Tax Certificate. This request is necessitated by the Canadian Financial Institution’s obligation to comply with Part XVIII of the Income Tax Act.
Secondly, the lawyer or firm may be asked by a client (typically a U.S. client) for a completed and signed U.S. Tax Certificate before the client pays the invoice which the lawyer or firm issued to the client for legal services performed. This request arises because of the client’s concern that its payment of the invoice may be subject to U.S. withholding tax for which the client may be liable if it does not either withhold thirty per cent of the invoice amount or receive a completed and signed U.S. Tax Certificate claiming full protection from U.S. withholding tax under the Canada-U.S. Tax Treaty.
The particular U.S. Tax Certificate that is relevant depends on whether the lawyer or firm is (a) an unincorporated sole practitioner who is a U.S. Person, in which case the Form W-9 is applicable, (b) an unincorporated sole practitioner who is not a U.S. Person, in which case the Form W-8BEN is applicable, (c) a law corporation or other corporation, in which case the Form W-8BEN-E is applicable or (d) a partnership, in which case the Form W-8IMY is applicable. Each of these U.S. Tax Certificates is discussed below.
LIMITATION ON BENEFITS IN ARTICLE XXIX-A OF THE CANADA-U.S. TAX TREATY
The two primary purposes of the Canada-U.S. Tax Treaty, and of the other bilateral tax treaties of which Canada is a contracting state, are to avoid double taxation and to prevent tax evasion.
Although the Canada-U.S. Tax Treaty provides Canadian residents, such as Canadian lawyers, with significant opportunities to avoid U.S. tax on certain types of payments they receive from a U.S. source, such as a payment made to a Canadian lawyer by its U.S. client for legal services rendered in Canada, paragraph 1 of Article XXIX-A of the Canada-U.S. Tax Treaty (an anti-treaty shopping provision) may nevertheless apply to deny the availability of such treaty benefits to a person unless the person is a “qualifying person” or the person otherwise qualifies for such benefits in the circumstances described by paragraphs 3, 4 or 6 of Article XXIX-A.
Paragraph 2 of Article XXIX-A generally defines a “qualifying person” as meaning a resident of a Contracting State that is:
•a natural person;
•the Government of Canada or a political subdivision or local authority thereof, or any agency or instrumentality of any such government, subdivision or authority;
•an estate;
•a not-for-profit organization, provided that more than half of the beneficiaries, members or participants of the organization are qualifying persons or residents or citizens of the United States;
•an organization described in paragraph 2 of Article XXI (Exempt Organizations) and established for the purpose of providing benefits primarily to individuals who are qualifying persons, persons who were qualifying persons within the five preceding years, or residents or citizens of the United States;
•a company or trust in whose principal class of shares or units there is substantial and regular trading on a recognized stock exchange (a “publicly listed company or trust”);
•a company more than fifty per cent of the vote and value of the shares (other than debt substitute shares) of which is owned, directly or indirectly, by five or fewer persons each of which is a publicly listed company or trust referred to above, provided that each company or trust in the chain of ownership is a qualifying person or a resident or citizen of the United States; or
•a company that meets the “ownership and base erosion test” which will be satisfied:
•by a company if fifty per cent or more of the aggregate vote and value of the shares of which and fifty per cent or more of the vote and value of each disproportionate class of shares (in
neither case including debt substitute shares) of which is not owned, directly or indirectly, by persons other than qualifying persons; or
•by a trust if fifty per cent or more of the beneficial interest in which and fifty per cent or more of each disproportionate interest in which, is not owned, directly or indirectly, by persons other than qualifying persons,
where the amount of the expenses deductible from gross income (as determined in the Contracting State of residence of the company or trust) that are paid or payable by the company or trust, as the case may be, for its preceding fiscal period (or, in the case of its first fiscal period, that period) directly or indirectly, to persons that are not qualifying persons is less than fifty per cent of its gross income for that period.
In addition, pursuant to paragraph 3 of Article XXIX-A, the anti-treaty shopping provision will not apply to deny treaty benefits to a person that satisfies the “active trade or business test”.
The active trade or business test will be satisfied by a person if:
(a)that person is not a qualifying person but is a resident of a Contracting State; and
(b)that person, or a person related to that person, is engaged in the active conduct of a trade or business in that State (other than the business of making or managing investments, unless those activities are carried on with customers in the ordinary course of business by a bank, an insurance company, a registered securities dealer or a deposit-taking financial institution).
If such a person satisfies the active trade or business test, the person will qualify for the benefit of the Canada-U.S. Tax Treaty with respect to income derived from the other Contracting State in connection with or incidental to that trade or business (including any such income derived directly or indirectly by that resident person through one or more other persons that are residents of that other State), but only if that trade or business is substantial in relation to the activity carried on in that other State giving rise to the income in respect of which benefits provided under the Canada-U.S. Tax Treaty by that other State are claimed.11
Similarly, pursuant to paragraph 4 of Article XXIX-A, the anti-treaty shopping provision will not apply to deny treaty benefits to a company that satisfies the derivative benefits test.
The derivative benefits test will be satisfied by a company if:
(a)the company is not a qualifying person but is a resident of a Contracting State;
(b) its shares that represent more than ninety per cent of the aggregate vote and value of all of its shares and at least fifty per cent of the vote and value of any disproportionate class of shares (in neither case including debt substitute shares) are owned, directly or indirectly, by persons each of whom is a qualifying person or a person who:
(i) is a resident of a country with which the other Contracting State has a comprehensive income tax convention and is entitled to all of the benefits provided by that other State under that convention;
(ii) would qualify for benefits under paragraphs 2 or 3 if that person were a resident of the first-mentioned State (and, for the purposes of paragraph 3, if the business it carried on in the country of which it is a resident were carried on by it in the first-mentioned State); and
(iii) would be entitled to a rate of tax in the other Contracting State under the convention between that person’s country of residence and that other State, in respect of the particular class of income for which benefits are being claimed under this Canada-U.S. Tax Treaty, that is at least as low as the rate applicable under this treaty; and
(c)the amount of the expenses deductible from gross income (as determined in the company’s State of residence) that are paid or payable by the company for its preceding fiscal period (or, in the case of its first fiscal period, that period) directly or indirectly to persons that are not qualifying persons is less than fifty per cent of the company’s gross income for that period.
A company that satisfies the derivative benefits test shall be entitled to the benefit of Articles X (Dividends), XI (Interest) and XII (Royalties) of the Canada-U.S. Tax Treaty, as applicable12
FORM W-9
A Form W-9 [Request for Taxpayer Identification Number and Certification] should be used only when the recipient or account holder is a U.S. Person. For example, a recipient or account holder who is a Canadian citizen and a
resident of Canada for Canadian income tax purposes would be required to complete and sign a Form W-9 if the individual is also either a U.S. citizen or a green card holder for U.S. immigration purposes.
The Form W-9 and the relevant instructions to complete this certificate can be found on the IRS website at <www.irs.gov/formW9>. This certificate consists of one page and discloses certain information about the recipient or account holder including that person’s TIN.
The requestor who receives the completed, certified and signed Form W9 is thereby provided assurance that the recipient is not subject to U.S. withholding tax on the payment made to that person.
FORM W-8BEN
A Form W-8BEN [Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding and Reporting (Individuals)] should generally be used only when the recipient or account holder is an individual who is not a U.S. Person and is not acting as an intermediary. For example, a lawyer who is conducting a legal practice in Canada as a sole practitioner would use a Form W-8BEN.
The Form W-8BEN and the relevant instructions to complete this certificate can be found on the IRS website at <www.irs.gov/formW8BEN>. This certificate consists of one page and discloses certain relevant information about the recipient or account holder including that person’s foreign taxpayer identifying number.
Subject to a claim of tax treaty benefits made under Items 9 and 10 of Part II of that certificate, the requester may impose Chapter 3 Withholding or Chapter 4 Withholding on any reportable payment made to the recipient.
Certain residents of Canada may be entitled to claim a tax treaty benefit in respect of the receipt of a proposed payment from the requester. The tax treaty benefit, if any, that is available to the recipient depends on the nature of the payment.
The following are examples of certain types of payments and the corresponding claim of tax treaty benefits that is available to the recipient under the Canada-U.S. Tax Treaty. The underlined text in the following examples is information that should be completed by the recipient, as appropriate on a case-by-case basis.
This is the claim of tax treaty benefits that would typically be made by an unincorporated Canadian lawyer practising law in Canada as a sole practitioner. However, if the lawyer is a U.S. citizen or a green card holder, the lawyer would be required to complete and sign a Form W-9 rather than a Form W-8BEN and would be unable to claim tax treaty benefits.
• BUSINESS PROFITS (NO PERMANENT ESTABLISHMENT IN THE U.S.A.)
PART II Claim of Tax Treaty Benefits (for chapter 3 purposes only) (see instructions)
9 I certify that the beneficial owner is a resident of Canada within the meaning of the income tax treaty between the United States and that country.
10 Special rates and conditions (If applicable – see instructions): The beneficial owner is claiming the provisions of Article and paragraph Article VII and paragraph 1 of the treaty identified on line 9 above to claim a 0 % rate of withholding on (specify type of income): business profits
Explain the additional conditions in the Article and paragraph the beneficial owner meets to be eligible for the rate of withholding: The beneficial owner of the business profits does not carry on business in the U.S.A. through a permanent establishment situated in the U.S.A.
• INTEREST
PART II Claim of Tax Treaty Benefits (for chapter 3 purposes only) (see instructions)
9 I certify that the beneficial owner is a resident of Canada within the meaning of the income tax treaty between the United States and that country.
10 Special rates and conditions (If applicable – see instructions): The beneficial owner is claiming the provisions of Article and paragraph Article XI and paragraph 1 of the treaty identified on line 9 above to claim a 0 % rate of withholding on (specify type of income): interest
Explain the additional conditions in the Article and paragraph the beneficial owner meets to be eligible for the rate of withholding: [select one of the following] the beneficial owner of the interest does not carry on, and has not carried on, business in the U.S.A. through a permanent establishment situated in the U.S.A. or the debt-claim in respect of which the interest is paid is not to be effectively connected with the permanent establishment situated in the U.S.A. through which the beneficial owner carries on business.
• DIVIDENDS (RECIPIENT IS A COMPANY THAT OWNS AT LEAST TEN PER CENT OF THE VOTING STOCK OF THE COMPANY PAYING THE DIVIDENDS)
PART II Claim of Tax Treaty Benefits (for chapter 3 purposes only) (see instructions)
9 I certify that the beneficial owner is a resident of Canada within the meaning of the income tax treaty between the United States and that country.
10 Special rates and conditions (If applicable – see instructions): The beneficial owner is claiming the provisions of Article and paragraph Article X and paragraph 2(a) of the treaty identified on line 9 above to claim a 5 % rate of withholding on (specify type of income): dividends
Explain the additional conditions in the Article and paragraph the beneficial owner meets to be eligible for the rate of withholding: the beneficial owner of the dividends owns at least 10% of the voting stock of the company paying the dividends
• DIVIDENDS (RECIPIENT IS NOT A COMPANY OR IS A COMPANY THAT OWNS LESS THAN TEN PER CENT OF THE VOTING STOCK OF THE COMPANY PAYING THE DIVIDENDS)
PART II
Claim of Tax Treaty Benefits (for chapter 3 purposes only) (see instructions)
9 I certify that the beneficial owner is a resident of Canada within the meaning of the income tax treaty between the United States and that country.
10 Special rates and conditions (If applicable – see instructions): The beneficial owner is claiming the provisions of Article and paragraph Article X and paragraph 2(b) of the treaty identified on line 9 above to claim a 15 % rate of withholding on (specify type of income): dividends
Explain the additional conditions in the Article and paragraph the beneficial owner meets to be eligible for the rate of withholding: [select one of the following] the beneficial owner of the dividends is not a company. or the beneficial owner is a company that owns less than 10% of the voting stock of the company paying the dividends
• PARTICULAR ROYALTIES13
PART II
Claim of Tax Treaty Benefits (for chapter 3 purposes only) (see instructions)
9 I certify that the beneficial owner is a resident of Canada within the meaning of the income tax treaty between the United States and that country.
10 Special rates and conditions (If applicable – see instructions): The beneficial owner is claiming the provisions of Article and paragraph Article XII and paragraphs 1 and 3 of the treaty identified on line 9 above to claim a 0 % rate of withholding on (specify type of income): royalties
Explain the additional conditions in the Article and paragraph the beneficial owner meets to be eligible for the rate of withholding: [select one of the following] the beneficial owner of the royalties does not carry on, and has not carried on, business in the U.S.A. through a permanent establishment situated in the U.S.A. or the right or property in respect of which the royalties are paid is not to be effectively connected with the permanent establishment situated in the U.S.A. through which the beneficial owner carries on business.
• OTHER ROYALTIES14
PART II Claim of Tax Treaty Benefits (for chapter 3 purposes only) (see instructions)
9 I certify that the beneficial owner is a resident of Canada within the meaning of the income tax treaty between the United States and that country.
10 Special rates and conditions (If applicable – see instructions): The beneficial owner is claiming the provisions of Article and paragraph Article XII and paragraph 2 of the treaty identified on line 9 above to claim a 10 % rate of withholding on (specify type of income): royalties
Explain the additional conditions in the Article and paragraph the beneficial owner meets to be eligible for the rate of withholding: [select one of the following]
the beneficial owner of the royalties does not carry on, and has not carried on, business in the U.S.A. through a permanent establishment situated in the U.S.A. or the right or property in respect of which the royalties are paid is not to be efectively connected with the permanent establishment situated in the U.S.A. through which the beneficial owner carries on business.
FORM W-8BEN-E
A Form W-8BEN-E [Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding and Reporting (Entities)] should generally be used only when the recipient or account holder is a person which is neither an individual nor a U.S. Person and is not acting as an intermediary.15 For example, a lawyer who, or a law firm which, is conducting a legal practice through a law corporation would use a Form W-8BEN-E.
The Form W-8BEN-E and the relevant instructions to complete this certificate can be found on the IRS website at <www.irs.gov/formW8BENE>. This certificate consists of several pages and discloses certain relevant information about the recipient or account holder including that person’s foreign taxpayer identifying number.
The following discussion is limited to recipients and account holders that are either an “Active NFFE” or a “Passive NFFE”.
An “NFFE” generally means a foreign (i.e., non-U.S.) entity that is not a FFI and which is treated as an NFFE pursuant to a Model 1 IGA (such as the Canada U.S. IGA) or a Model 2 IGA.16
An “Active NFFE” includes an entity that is a NFFE if either (a) less than fifty per cent of the NFFE’s gross income for the preceding calendar year or other appropriate reporting period is passive income and less than fifty per cent of the assets held by the NFFE during the preceding calendar year or other appropriate reporting period are assets that produce or are held for the production of passive income or (b) the stock of the NFFE is regularly traded on an established securities market or the NFFE is a “Related Entity” of an “Entity” the stock of which is regularly traded on an established securities market.
A “Passive NFFE” is an NFFE that is not an Active NFFE or a withholding foreign partnership or withholding foreign trust pursuant to relevant U.S. Treasury Regulations.
If the recipient is an Active NFFE, the recipient must complete Part I, Part III (if tax treaty benefits are claimed), Part XXV and Part XXX of the Form W-8BEN-E. A law corporation formed under the laws of British Columbia would typically be considered to be an Active NFFE.
If the recipient is a Passive NFFE, the recipient must complete Part I, Part III (if tax treaty benefits are claimed), Part XXVI, Part XXIX, if applicable, and Part XXX of the Form W-8BEN-E.
Subject to a claim of tax treaty benefits made under Part III of that certificate, the requester may impose Chapter 3 Withholding tax or Chapter 4 Withholding on any reportable payment made to the recipient by the requester.
Part I of the Form W-8BEN-E identifies the recipient or account holder.
Item 4 of Part I should be completed based on the nature of the recipient or account holder. Typically, a recipient or account holder that is a company would complete Item 4 of Part I by ticking the box for “corporation”. A recipient or account holder that is a trust, estate, partnership or tax-exempt organization should not complete a Form W-8BEN-E unless they are claiming tax treaty benefits, in which case they would complete Item 4 of Part I by ticking the box for “simple trust”, “estate”, “partnership” or “tax exempt organization”, as the case may be.
Item 5 of Part I identifies the FATCA status of the recipient or account holder. In many cases, the recipient or account holder will be either an “Active NFFE” or a “Passive NFFE”.
Part II of the Form W-8BEN-E is not relevant.
Part III of the Form W-8BEN-E must be completed if any treaty benefit is claimed under the Canada-U.S. Tax Treaty in respect of a payment made to the recipient by the requestor.
c The beneficial owner is a resident of Canada within the meaning of the income tax treaty between the United States and that country.
b c The beneficial owner derives the item (or items) of income for which treaty benefits are claimed, and, if applicable, meets the requirements of the treaty provision dealing with limitation on benefits. The following are types of limitation benefits provisions that may be included in an applicable tax treaty (check only one; see instructions):
c Government
c Tax-Exempt Pension trust or pension fund
c Other tax-exempt organization
c Company that meets the ownership and base erosion test
c Company that meets the derivative benefits test
c Company with an item of income that meets active trade or
c Publicly traded corporation business test
c Subsidiary of a publicly traded corporation
c Favorable discretionary determination by the U.S. competent authority received
c No LOB article in treaty
c Other (specify Article and paragraph): ________
c c The beneficial owner is claiming treaty benefits for U.S. source dividends received from a foreign corporation or interest from a U.S. trade or business of a foreign corporation and meets qualified resident status (see instructions).
15 Special rates and conditions (if applicable – see instructions):
The beneficial owner is claiming the provisions of Article and paragraph xx of the treaty identified on line 14a above to claim a ____% rate of withholding on (specify type of income): _______
Explain the additional conditions in the Article and paragraph the beneficial owner meets to be eligible for the rate of withholding: __________
Part III of Form W-8BEN-E is similar to Part II of Form W-8BEN, discussed above. For example, Items 14a and 15 of Part III, of Form W-8BEN-E should be completed on the same basis discussed above as Items 9 and 10 of Part II of Form W-8BEN would be completed. Thus, the only differences are the
existence of Item 14b of Part III of Form W-8BEN-E, discussed below, and Item 14c of Part III of Form W-8BEN-E, which generally can be ignored due to its limited application.
In order for the recipient to claim the treaty benefit specified in Item 14b of Part III, the recipient must identify the specific exemption under the limitation on benefits provision in Article XXIX-A of the Canada-U.S. Tax Treaty on which the recipient is relying. Refer to the discussion above under LIMITATION ON BENEFITS IN ARTICLE XXIX-A OF THE CANADAU.S. TAX TREATY.
Parts IV to XXIV, inclusive, are not relevant.
Part XXV of the Form W-8BEN-E is a certification applicable to a recipient or account holder that is an Active NFFE.
Part XXVI of the Form W-8BEN-E is a certification applicable to a recipient or account holder that is a Passive NFFE. If the recipient or account holder does not have any “Substantial U.S. Owners”, as discussed below, or any “Controlling Persons”, as discussed above, that are each a U.S. Person, it should tick boxes 40a and 40b. On the other hand, if the recipient or account holder has one or more “Substantial U.S. Owners” or “Controlling U.S. Persons”, it should tick boxes 40a and 40c and complete Part XXIX.
A ”substantial U.S. owner” is defined by Regulations section 1.1473-1(b) as meaning any specified U.S. person (i.e., a U.S. person other than a person identified in Regulations section 1.1473-1(c)) that (i) owns, directly or indirectly, more than ten per cent (by vote or value) of the stock of any foreign corporation, or (ii) owns, directly or indirectly, more than ten per cent of the profits or capital interests in a foreign partnership, or (iii) is treated as an owner of any portion of a foreign trust under sections 671 through 679 or (iv) holds, directly or indirectly, more than a ten per cent beneficial interest in a trust.
FORM W-8IMY
A Form W-8IMY [Certificate of Foreign Intermediary, Foreign FlowThrough Entity, or Certain U.S. Branches for United States Tax Withholding and Reporting] should generally be used only when the recipient or account holder is a non-U.S. partnership that is not claiming treaty benefits. A nonU.S. partnership that wishes to claim treaty benefits should complete a Form W-8BEN-E.
This U.S. Tax Certificate and the relevant instructions to complete this certificate can be found on the IRS website at <www.irs.gov/formW8IMY>.
This certificate consists of several pages and discloses certain relevant information about the recipient or account holder including that person’s foreign taxpayer identifying number.
The following discussion is limited to recipients and account holders that are non-U.S. partnerships and are either an “Active NFFE” or a “Passive NFFE” as described above.
Part I of the Form W-8IMY identifies the recipient or account holder.
Typically, a recipient or account holder that is a foreign (i.e., non-U.S.) partnership would complete Item 4 of Part I by ticking the box for “Nonwithholding foreign partnership” and would complete Item 5 by ticking the box “Active NFFE” or “Passive NFFE”, as the case may be.
Parts II to VII, inclusive, are not relevant.
Part VIII should be completed as applicable. If the recipient or account holder is a foreign (non-U.S.) partnership, box 21a should typically be ticked. In addition, the recipient or account holder should attach a withholding statement, as discussed below.
Parts IX to XXV, inclusive, are not relevant.
Parts XXVI and XXIX should be completed if the recipient or account holder is an Active NFFE.
Parts XXVII and XXIX should be completed if the recipient or account holder is a Passive NFFE.
In addition, a nonwithholding foreign partnership which is a recipient of an amount that is subject to Chapter 3 Withholding or Chapter 4 Withholding is required to transmit a withholding statement and relevant completed and signed U.S. Tax Certificates with the Form W-8IMY.
Generally, the withholding statement must contain the following information.
•The name, address, and the TIN (if any, or if required) of each member of the partnership.
•The type of documentation (documentary evidence, Form W-8 series, or Form W-9) for each such member.
•The status of the person for whom the documentation has been provided, such as whether the person is a U.S. Person or a foreign person, and the statement must indicate whether the person is a beneficial owner or a foreign intermediary.
•The type of recipient the person is, based on the Chapter 3 and Chapter 4 status codes used on Form 1042-S.
•Information allocating each payment, by income type, to each such member.
•The country of residence of each such member that is not a U.S. Person and the member’s country of residence.
•If a reduced rate of withholding is claimed under the Canada-U.S. Tax Treaty, the basis for a reduced rate of withholding and in the case of treaty benefits claimed under the Canada-U.S. Tax Treaty by such member, including a statement confirming whether the applicable limitation on benefits statement and the statement that the foreign person derives the income for which treaty benefits are claimed, have been made.
•The name, address, and TIN of the recipient.
•Any other information that the withholding agent requests to fulfill its reporting and withholding obligations.
A PRACTICAL EXAMPLE
A Canadian law firm consisting of two partners, Albert Jones and Smith Law Corporation, has just been engaged by Microsoft Corporation. The firm has provided significant services to this particular client during the past several months and has recently rendered its invoice to the client for $150,000.
In due course the chief financial officer (“CFO”) of the law firm reports to the partners that she has just received a request from Microsoft Corporation for a duly completed and signed Form W-8BEN-E. Albert Jones, a partner in the firm, thinks it is ridiculous that the law firm should have to complete and sign a U.S. Tax Certificate and asks the CFO to look into the matter.
The next day the CFO is contacted by the Canadian bank where the law firm maintains numerous trust accounts, and the bank requests a duly completed and signed Form W-8IMY. The CFO notifies the partners of this request. Albert Jones is livid and again asks the CFO to look into the matter.
A few days later the CFO reports to the partners that if the law firm does not provide Microsoft Corporation with a signed U.S. Tax Certificate, thirty per cent of its invoice amount will be withheld at source by the client and remitted to the IRS and only the remaining balance of the invoice will be paid to the firm. In addition, if the law firm does not provide its Canadian bank with a signed U.S. Tax Certificate, all of its trust accounts at the bank will be closed. Faced with these serious adverse consequences, the partners instruct the CFO to do whatever is necessary.
On further investigation the CFO realizes that because the law firm is a partnership, it is considered to be an intermediary and therefore the correct U.S. Tax Certificate for the law firm to complete is a Form W-8IMY (not a Form W-8BEN-E that was requested by Microsoft Corporation).
In preparing the Form W-8IMY, the law firm must:
•complete Part I of the certificate, including designating itself under question 4 as a “nonwithholding foreign partnership” and designating itself under question 5 as an “active NFFE”;
•complete Part VIII of the certificate by ticking box 21a;
•complete Part XXVI of the certificate by ticking box 39; and
•complete Part XXIX of the certificate by signing in the space indicated and specifying the name of signatory and date of signature.
In addition to the completed and signed Form W-8IMY, the law firm must prepare a withholding statement containing prescribed information (refer to Appendix) and must obtain a completed and signed Form W-8BEN from Albert Jones and a completed and signed Form W-8BEN-E from Smith Law Corporation.
In this regard, the Part II of the Form W-8BEN of Albert Jones should be completed as follows:
PART II
Claim of Tax Treaty Benefits (for chapter 3 purposes only) (see instructions)
9 I certify that the beneficial owner is a resident of Canada within the meaning of the income tax treaty between the United States and that country.
10 Special rates and conditions (If applicable – see instructions): The beneficial owner is claiming the provisions of Article and paragraph Article VII and paragraph 1 of the treaty identified on line 9 above to claim a 0 % rate of withholding on (specify type of income): business profits
Explain the additional conditions in the Article and paragraph the beneficial owner meets to be eligible for the rate of withholding: The beneficial owner of the business profits does not carry on business in the U.S.A. through a permanent establishment situated in the U.S.A.
and the Part III of the Form W-8BEN-E of Smith Law Corporation should be completed as follows:
a g The beneficial owner is a resident of Canada within the meaning of the income tax treaty between the United States and that country.
b g The beneficial owner derives the item (or items) of income for which treaty benefits are claimed, and, if applicable, meets the requirements of the treaty provision dealing with limitation on benefits. The following are types of limitation benefits provisions that may be included in an applicable tax treaty (check only one; see instructions):
c Government
c Tax-Exempt Pension trust or pension fund
c Other tax-exempt organization
g Company that meets the ownership and base erosion test
c Company that meets) the derivative benefits test
c Company with an item of income that meets active trade or
c Publicly traded corporation business test
c Subsidiary of a publicly traded corporation
c Favorable discretionary determination by the U.S. competent authority received
c No LOB article in treaty
c Other (specify Article and paragraph): ________
PART III Claim of Tax Treaty Benefits (if applicable) (for chapter 3 purposes only) continued
14 I certify that (check all that apply)
c c The beneficial owner is claiming treaty benefits for U.S. source dividends received from a foreign corporation or interest from a U.S. trade or business of a foreign corporation and meets qualified resident status (see instructions).
15 Special rates and conditions (if applicable – see instructions):
The beneficial owner is claiming the provisions of Article and paragraph Article VII and paragraph 1 of the treaty identified on line 14a above to claim a 0 % rate of withholding on (specify type of income): business profits
Explain the additional conditions in the Article and paragraph the beneficial owner meets to be eligible for the rate of withholding: The beneficial owner of the business profits does not carry on business in the U.S.A. through a permanent establishment situated in the U.S.A.
Finally after much effort, the CFO remits a signed copy of the Form W-8IMY together with the withholding statement (refer to Appendix) and the completed Form W-8BEN and Form W-8BEN-E signed by Albert Jones and Smith Law Corporation, respectively, to the Canadian bank and Microsoft Corporation.
APPENDIX
ENDNOTES
1. The incidence of double taxation may be reduced or eliminated if the United States and the country of residency have entered into a tax treaty or if a US tax credit is available to the individual for some or all of the foreign tax that is payable.
2. A “US Person” means:
(i) an individual who is a US citizen, irrespective of the country of their residence;
(ii) an individual who is a US resident alien (i.e., an individual who either:
A. is a lawful permanent resident of the United States according to the immigration laws provided that this status has not been revoked or administratively or judicially determined to have been abandoned (i.e., a valid green card holder); or
B. satisfies the “substantial presence test” for the relevant calendar year (i.e., the individual is physically present in the United States for at least 31 days during that calendar year, and for at least 183 days in total during the 3-year period consisting of that calendar year and the 2 immediately preceding years determined by aggregating (I) all the days that the individual was present in the United States in that calendar year, (II) 1/3 of the days so present during the first preceding year before that current year, and (III) 1/6 of the days so present during the second preceding year);
(iii) a partnership, corporation, company or association created or organized in the United States or under the laws of the United States;
(iv) an estate (other than a foreign estate); and (v) a domestic trust (as defined in Regulations s 301.7701-7).
3. Agreement Between the Government of Canada and the Government of the United States of America To Improve International Tax Compliance Through Enhanced Exchange of Information Under the Convention Between Canada and the United States of America with Respect to Taxes on Income and on Capital.
4. As defined by s 1(l) of the Canada US IGA.
5. As defined by s 1(s) of the Canada US IGA.
6. As defined by s 1(o) of the Canada US IGA.
7. A “Specified US Person” is defined by s 1(ff) of the Canada US IGA as meaning a US Person other than inter alia (i) a particular corporation if its stock is regularly traded on one or more established securities
markets and (ii) any other corporation that is a member of the same “expanded affiliated group” (as defined by s 1471(e)(2) of the US Code) as the particular corporation.
8. A “Non-US Entity” is defined by s 1(hh) of the Canada US IGA as meaning an Entity (i.e., “a legal person or a legal arrangement such as a trust”) that is not a US Person.
9. A “Controlling Person” in relation to an Entity is defined by s 1(mm) of the Canada US IGA as meaning the natural persons who exercise control over the Entity and in the case of an Entity that is a trust, such term means the settlor, the trustees, the protector (if any), the beneficiaries or class of beneficiaries, and any other natural person exercising ultimate effective control over the trust and in the case of an Entity that is a legal arrangement other than a trust, such term means persons in equivalent or similar positions.
10. RSC 1985, c 1 (5th Supp), as amended.
11. Paragraph 3 of Article XXIX of the Convention.
12. Paragraph 4 of Article XXIX of the Convention.
13. Particular Royalties means (a) copyright royalties and other like payments in respect of the production or reproduction of any literary, dramatic, musical or artistic work (other than payments in respect of motion pictures and works on film, videotape or other means of reproduction for use in connection with television); (b) payments for the use of, or the right to use, computer software; (c) payments for the use of, or the right to use, any patent or any information concerning industrial, commercial or scientific experience (but not including any such information provided in connection with a rental or franchise agreement); and (d) payments with respect to broadcasting as may be agreed for purposes of Article XII, paragraph 3 by Canada and the United States in an exchange of notes between those countries.
14. Other Royalties means royalties, as defined by Article XII paragraph 4 of the Canada-US Tax Treaty, that are not Particular Royalties as defined above.
15. An intermediary is a custodian, broker, nominee or any other person that acts as an agent for another person.
16. Part VI(B)(2) of Annex I of the Canada US IGA defines an NFFE as meaning “any Non-US Entity that is not an FFI as defined in relevant US Treasury Regulations or is an Entity described in subparagraph B(4)(j) of this section, and also includes any Non-US Entity that is resident in Canada or another Partner Jurisdiction and that is not a Financial Institution”.
ODE TO CRIMINAL LAW PRACTITIONERS SEEKING EDUCATION
By Jay Fogel
Lookin’ fer cheap (free) and focused criminal CPD?
I know just the time and the place to be
WestClass,1 around since 2005
Helps Crown, defence and others to thrive
The meetings are from 7 p.m., nine to eleven times a year
You can tele-attend from anywhere2 or show up in person for a beer3
It is the last Thursday of the month, excepting December
And I send out a notice if you don’t remember
It is in New Westminster, at Taverna Greka
At reasonable prices, so your wallet won’t wreck-a
There is also a non-obligatory membership scheme
$20 for a year’s worth of case updates, cheap it would seem
If you have any interest, the slightest desire
Email <jay.fogel@gov.bc.ca>, and I’ll send the deets down the wire.
ENDNOTES
1. Westminster (County) Criminal Law Association. 2. Via Teams.
3. Or food—we won’t judge.
PLANT LIFE*
By Catherine Crockett
The first and last time I met Vincent’s wife, she attempted to dig a trench between their house and mine. The “sold” sign had appeared a month ago on what was now her unit. I learned later she intended to put in a hedge. Good fences make good neighbours and all that.
I heard and then saw her stabbing the ground with a spade, ineffectual against the not-yet-thawed topsoil. She appeared to be about my age: seventyish, plus-or-minus. Not surprising, this being a 55+ housing development. Each tiny rancher with its postage-stamp yard, and a communal beach on Okanagan Lake.
I called out as I approached our shared waist-height picket fence.
“Hello there! I take it you’re my new neighbour? My name’s Betsy.”
She stopped her shovelling, a paltry pile of clay soil beside her.
“I’m Iris,” she said. She looked like she was going to extend a hand, but glanced down at her spotless gardening gloves and appeared to think better of the idea.
“You might want to wait a few more weeks. We’re still getting frost at night.” I asked where she was from, but was pretty sure the answer would be the coast, where you can actually dig dirt in early spring.
“Vancouver. West Vancouver, actually.”
“Are you planning to move up here permanently, or use it as a summer home?” Please say summer. I hoped she couldn’t read my thoughts. I’m not antisocial, but the houses are close together. I listened to the last occupants watch Jeopardy! every evening at 7:30, and smelled their Friday night fish dinners.
“We’ll see. My husband’s a Provincial Court judge.” She left the briefest of pauses, perhaps so I could take in the majesty of his profession. I raised my eyebrows politely, and she carried on. “They’re making him retire. He likes the city and doesn’t see why we would ever leave our condo. But I’m tired of the bridge traffic and I want a yard.”
* This story won second place in the 2023 Advocate Short Fiction Competition.
We chatted a bit more during which she told me about her cedar hedge plan. I refrained from suggesting that a lilac would be a better bet for the Penticton heat.
And then she was gone.
Six burlap-wrapped cedars arrived in Iris’s driveway the following week. And there they rested, all through March and April. I wondered if I should give them some water.
At first, I thought the judge had won the home front battle and Iris wasn’t coming back. But did I mention this was the spring of 2020? Precisely when the pandemic got serious. People were not travelling.
It was the first of May when a black Mercedes sedan pulled up to the pile of cedars. I was planting my lettuce starts when I saw a tall paperclip of a man unfold himself from the driver’s side. He had sunglasses that I guessed were transition lenses. It was his hair I really noticed—a thick, silver helmet of it, like Phil Donahue.
“Jesus Christ—who dumps…” I didn’t hear the end of his remark. He hauled each crispy cedar to the side of the driveway and left them in a heap. I waited until he pulled up to the house and exited his car for the second time.
“Hello! Are you Iris’s husband?”
It took him a moment to sort out where I was. He walked over to the fence, but without a smile of greeting to match mine. He stopped about eight feet away, next to the toppled pile of cedars. Social distancing was already standard practice.
“I’m Vincent. I am Iris’s husband. Iris passed away last month. COVID.”
“Oh my god, I’m so sorry.” I said, like everyone says when they hear news like that.
“I got it too, but it didn’t affect me much. I’m the lucky one, I guess.” He stared at the ground and pushed the sole of his tawny loafer onto one of the burlap sacks. Then he looked somewhere over my shoulder and said, “Listen, I don’t want to be rude, but it’s been a long drive and I have to use the facilities. Maybe we can get acquainted more later.”
I said something clever and sympathetic like, “Sure.” I watched him haul a massive aluminum suitcase from his trunk, and a half dozen banker’s boxes. I knew they’d purchased the home furnished, so he didn’t need much.
I watched him leave for an hour and come back with bags of groceries, a paper face mask on his dashboard. A disposable mask—as if the pandemic were a temporary thing. Vincent’s arrival also appeared to be a temporary thing: a “for sale” sign went up within the week.
After that, I didn’t see him in the yard until the May long weekend. The cedars hadn’t moved. I was in my kitchen making toast. I watched him walk out on his deck and look towards my front yard. He squinted and walked right up to the fence, staring at the base of the steps leading from my own deck. I was pretty sure I knew what had caught his attention, so I went out and down the stairs.
“Sorry,” he said, “it’s weird to stare into your yard, I guess. But that flower. So striking. What is it?”
“It’s a Batik iris,” I said, “The swirls of blue and white, and the irregular shape … makes me think of an exotic sea creature.”
“An iris. I thought so,” he said. “I used to buy cut irises for my wife all the time when we first dated. Just those plain blue ones they sell in stores. Finally, she said, you don’t always have to buy me irises just because it’s my name, you know.” He made the tiniest of laughs. “She wasn’t one for subtleties. I never bought her irises again. Never even thought about them. But that,” he pointed to the Batik, “That’s a keeper.”
We stood there, neither of us speaking for a long, yet somehow not awkward, moment. Was he pondering a flower or a wife?
Vincent recovered first. “You ever married? I haven’t seen a husband about, or a wife, I guess I should say.”
“My husband died a couple of years ago. He was a lawyer—a solicitor, mostly corporate. We lived in Calgary til we moved here.”
“A solicitor? Ha!” It was the perkiest I’d seen him. “I was a litigator, criminal for a few years, then civil, then a Provincial Court judge for the past 20 years. Forced to retire at 75. Irritating. Now what am I going to do all day?”
“You could put in the cedar hedge?”
“Iris was the gardener.” He looked at Iris’s attempt at a trench on his fence line, and kicked some dirt back into the hole. “Besides, they’d block the view of your Batik over there.”
Vincent appeared lost for words, but then segued abruptly. “I bought one of those oversized bags of flour at Costco yesterday: 20 kilos. I didn’t want to, but there weren’t any smaller bags left. I’ve got to figure out what to do with it, so, like every other housebound out-of-work idiot, I’m going to try my hand at sourdough.”
“Are you an experienced baker? Sourdough has always intimidated me.”
“Nope,” he said proudly. “Never so much as Easy Bake Oven cupcakes. But I need a challenge.”
Later that night I could smell bread baking. The following morning, I was dividing my hostas when I heard Vincent at the fence line.
“Know anyone who has a dog?” he asked. He held up what looked like a brown oval paving stone. “I think I just baked the world’s biggest dog bis-
cuit.” He knocked on it with his knuckles and then banged it on the top of the fence. “Ha!”
I laughed back. “I’m taking these hostas to a friend who has a labradoodle. She’d probably love it.”
“Hostas? Is that what those plain leafy things are? Who’d want those?”
I pretended to be affronted. “They may not be the most glamorous plants, but none are so reliable as the mighty hosta. You can plant them in full shade, pretty much ignore them and they come back bigger each year. And the symmetry of their leaf patterns—”
“Okay, okay—take your leaf plants and my dog loaf to your friend with my compliments. I’ll have to make my sandwich with store-bought bread for now.” His top row of teeth showed when he smiled. And he had dimples to match the cleft in his chin. I pulled some lettuce for his sandwich and pointed out the tomato plants that would add to his sandwich come August. He feigned interest, albeit politely.
The “for sale” sign was removed in early June.
Through June and July, couriers made regular deliveries next door. Like the rest of the cooped-up COVID crowd, Vincent had discovered online shopping. We met over the fence now and then. He told me his bread was improving since he figured out how to properly maintain his sourdough starter. He purchased a Dutch oven which he had to soak for several hours to get the first loaf out, before he discovered the wonders of parchment paper.
The irises, of course, were gone by June, fleeting beauties that they are. The lettuce bolted. The hostas soldiered on. And soon enough, the pièce de résistance of summer: tomatoes.
Vincent was reading from a Kindle in his Adirondack chair when I discovered the first ripe cherry tomatoes: Sun Golds.
“May I interrupt?” He peered over into my yard. I held up a handful of the tiny orange fruits.
“Sure—it’s just the new Mary Trump book. I need to learn to look away, but I can’t help myself sometimes.” He came to the fence line and I poured some tomatoes into his palm.
“I’d say don’t worry, I’ve used hand sanitizer, but I’d be lying.”
“I’m immune anyway. Hopefully we’ll have some vaccines for the rest of you lot soon.” We bit down on our tomatoes at the same time.
“Oh my God,” he said. “It almost makes a man want to be a gardener!” He laughed. “Will you marry me?” There were those dimples again.
“I have no use for a man who spends his days baking dog biscuits.”
“Maybe you should get a dog.”
The world stayed at home that summer. Vincent and I were no different. I asked him once about the “for sale” sign. He told me it made more sense to be here than stuck in his condo in the city during the pandemic. Once it was over, he’d probably go back—that’s where his friends and his kids were. The Penticton house, he told me, though I already knew, was Iris’s idea. “The Okanagan market’s hot right now—my realtor says I’ll have no trouble selling once the pandemic eases up.”
One hot mid-August evening, I harvested my first slicer tomato. My husband and I had always shared the first of each tomato, comparing each variety to decide which I should grow again. I pulled out a cutting board and my serrated knife. I cut one circle and paused. Then I sliced it up and spread it on the board, without taking a bite. I walked out my back door and onto Vincent’s porch. I could see him in his kitchen through the screen door. He was wearing blue gingham oven mitts and holding a red Dutch oven. I’d never been inside his home before. I tapped on the door frame.
“Perfect timing!” he called. “My sourdough just came out. Wait til you see it. The rise! The crust! I think it’s the diastatic malt powder, I don’t know, but that crust!” I could hear the exclamation point at the end of each sentence.
It felt unusually intimate to walk into Vincent’s home. Since the pandemic hit, no one was supposed to go to another person’s house. Between the August heat and the oven, his kitchen was sweltering.
I had to hand it to him: the bread was a gorgeous golden brown, covered in tiny blisters. And the smell of warm sourdough—just wow
I put my cutting board on the kitchen counter. “I have an accompaniment—this is the first ripe Stump of the World.”
“That’s quite a name.” He inspected the tomato. “Listen, we have to wait half an hour before I can slice the bread.” He went to his refrigerator. “I’ll pull out some Boursin, and I’ve got a bit of Cambozola left. They’ll go great with the bread and tomato.”
I sat on a kitchen stool. Didn’t even wait to be asked.
Vincent poked his head up above the fridge door. “I would offer you some wine, but I don’t have any. A bottle is too much for one person, and I’m not a big drinker anyway. You?”
I wasn’t. We drank water. I told him about the tomato tasting ritual I had with my husband. “I spend so much time on my own. I wanted to share the first tomato with someone.”
“I guess we’re in each other’s bubbles, so why not?” I liked that he didn’t make a big deal about it. He sat next to me, and we tasted the Stump while we waited for the bread to cool. Is there anything better than a tomato ripe from the vine?
Yes, in fact, there is. A hunk of fresh sourdough topped with Boursin cheese and a slice of fresh tomato. I’m pretty sure I moaned.
Vincent laughed. “You said your husband was a solicitor. I gather your kids are grown up. Did they appreciate your tomatoes?”
“I didn’t develop an interest in gardening until I retired. I was too busy before then.”
“With the kids and everything? I bet. Were you a stay-at-home mom or did you work?”
“I took some time off when the kids were young—I worked as a Crown counsel, so I got maternity leave.”
Vincent halted his bread between plate and mouth. “You never told me you were a lawyer!”
“It never came up, and then it seemed awkward. I was a judge too, actually. Queen’s Bench. Feels like a long time ago. I retired at 60.”
After that day we carried on talking about leaf plants and dog biscuits, ripe fruit, and steamy sourdough, punctuated by the occasional courtroom war story. The “for sale” sign went up in front of Vincent’s house again the following spring. It sold in a week. Which was more than enough time for him to move his Dutch oven and Adirondack chairs over to my place.
THE WINE COLUMN
By Michael Welsh, K.C.*
When the winds of change blow, some people build walls and others build windmills.
—Chinese proverb
WINES FOR A WARMER WORLD
For those who make wine and those who drink it, the winds of change recently have largely been ill ones. Predictions are that up to seventy per cent of today’s wine regions could become unsustainable if the world warms more than 2°C. In coastal and lowland areas in Spain, Italy, Greece and southern California, fiercer droughts and heat waves could raise that to ninety per cent.1
Most of that change is from steady increases in temperature. As temperatures rise, a grape plant reacts in complex ways. As stated by a UC Davis viticultural and enology professor recently:
You need a degree of heat to get through the ripening phase, to get sugar accumulation, and then also get the ideal amount of development of some of these secondary compounds like anthocyanins and tannins — all the things that make wine exciting and interesting and have good mouthfeel. It’s when you exceed certain temperatures that it becomes problematic for the grapes.2
* Michael Welsh, K.C., carries on a litigation and ADR practice in the South Okanagan and is a bencher. The views expressed here are his own and not those of the Law Society.
Intense and persistent heat waves, for instance, can sunburn the fruit, greatly reducing its quality. But before that, higher temperatures desiccate the grapes, concentrating the sugars. The more sugar, the higher the alcohol content. So, if you are drinking wine to get drunk, climate change will make wines more efficient for you, but at the cost of all the pleasurable experience that goes with wine-tasting.
More subtly, heat influences volatile compounds that turn into gas— that’s the “nose” you get when tasting wine—which breaks down under higher temperatures. “The profiles tend to get pushed to what sensory scientists would call the ‘cooked’ side of the spectrum: more jammy, or like cooked fruit,” says viticulturalist Greg Gambetta. “This can be a good thing. Some people like wines like this and it’s fine. So it all has to do with the identity of a region.”3
This is a potentially huge problem for wine regions, such as Burgundy, that have built their reputation on a certain style of wine from particular grapes, in that case mostly Pinot Noir and Chardonnay. Baked grapes make alcoholic but bad wine.
This issue has been compounded in recent years with wildfires along the North American West Coast and in parts of Spain and Greece, smothering vineyards in smoke and tainting wines. As I heard someone note recently, campfire flavours are for s’mores, not Merlots.
The effects of high temperatures and lack of water will be exacerbated in poor soils, which is often what you find in vineyards. They can lead to loss of colour intensity in red wine, as high temperatures affect anthocyanins, the pigments that give red wine its colour. In addition to high temperatures increasing sugar content, they also can lead to a degradation of malic acid in the grapes and the uptake of potassium in the vines, both resulting in less acidic wines. Acidity adds to the flavour of the wine and helps to preserve it.4 Without it wines are “flabby” and boring.
But as Shakespeare said in Henry VI, “Ill blows the wind that profits nobody”. And in this case researchers are having a heyday.
Grape growers and winemakers, and the researchers who support them are looking at various options. They face a particular problem in areas like Canada or the northeast United States where there can be a combination of prolonged high temperatures in summer and biting cold in winter.
With climate models for the Okanagan area predicting warmer winters, it will be increasingly difficult for plants to develop cold-hardiness. Research at UBC and elsewhere suggests that some more heat-tolerant varieties currently being grown in regions of Spain, southern France and Greece may be a good fit for the Okanagan. But ultimately, according to a UBC professor involved in that research:
… taking a long-term view of resilience will be key for any climate adaptation strategy — something that’s hard to do when the last two years of cold snaps are still fresh in everyone’s minds. “We (currently) have no evidence that cold snaps are going to increase with climate change for the Okanagan,” she says. “The heat extremes and the fires will definitely increase.” The question of how to respond to these conditions will require more data, a challenge given the Okanagan’s unique climate. “There’s not a clear climate analogue for somewhere that’s this cold in the winter and this hot in the summer.”5
One of the main areas for the making of these decisions is in decoding the grape genome. The complete sequence of the grapevine genome has been available since 2007, but now research is being done on particular varieties of grapes.
Traditionally using new varieties or clones of a grape has been the answer when speaking about adaptation to climate change. Whether with cross-pollination with native American grapes to create hybrids such a Marechal Foch, or the grapes that form the backbone of Nova Scotia winemaking such as L’Acadie Blanc, these hybrid varieties have more cold resilience. However, many wineries and wine consumers are not overly fond of hybrid grapes and want wine from classic European varietals. Enter genotyping to adapt those varieties to local environmental conditions, soil, meso-climate and microclimate, and to the profile of wine produced. The strategy for local adaptation in the future will likely be to try to maintain the type of wine that made the renown of the area.6
“We could be using these tools to enhance [vinifera grapes] if consumers are resistant to hybrids because they want the name recognition, they want a Chardonnay, they want a Merlot,” said one researcher.
In one recent breakthrough that promises to revolutionize the South American wine industry, a team of researchers from Argentina, Spain and Germany has successfully decoded the entire genome of the Malbec grape. According to the researchers, understanding Malbec’s complete genome will facilitate the development of grape strains better adapted to global temperature increases.
Luciano Calderón, one of the Argentine researchers involved in the project, emphasized the importance of this research in the context of climate change. “We consider this research a key tool for understanding the biology of our flagship variety in this context of climate change,” Calderón remarked. The implications of such a statement are profound, considering the ongoing challenges posed by global warming, which affects the vegetative and reproductive cycles of vine plants. These changes can lead to wines with excessive alcohol content, low acidity, diminished color intensity, and astringent flavors.
This significant achievement not only underscores Argentina’s role in global viticulture but also opens up new possibilities for enhancing the quality and resilience of this beloved varietal.7
A related and promising tool is something with the interesting name: CRISPR/Cas9. It is a precise, quick and simple gene editing tool, the technology for which earned its discoverers a Nobel Prize in Chemistry in 2020.
Gene editing avoids some of the issues some people have with traditional genetically modified organisms. The technology changes a specific gene sequence that scientists can easily choose, and researchers are using it on various crops, including grapes, to better adapt them to our changing climate.
This is especially helpful for removing individual genes that make vinifera grapes susceptible to grape and vine diseases that are becoming a bigger problem due to climate change.
“The advantage from a science point of view is you are changing one thing, the one part of the genome you want to change, instead of in a breeding program when you mix two parents, [and] you’re changing the entire genome,” said [a lead researcher]. … “So one of the challenges of breeding is not bringing in a bunch of traits that you don’t want in the final product. And CRISPR is seen as a technological way around this.”
The applications are still being explored, but studies indicate it could allow us to make disease-resistant Chardonnay grapes while otherwise leaving the variety completely intact. So unlike with hybridizing, it’s still 100 per cent Chardonnay.8
One reason for increased threats from pests and diseases such as parasites and fungi (most notably mildew) is that climate change also indirectly affects the grapevine by changing the existing equilibrium with those pests and diseases. It can influence their frequency and intensity in the areas where they are traditionally found, and cause a geographical shift in the distribution of insects or fungi, which may cause problems in regions where they have so far been absent.
These climatic stressors can also result in a reduction of the immune response of the plant, requiring increased costs of additional labour on the vineyard or an increased use of pesticides.
Problems with pests and parasites are more likely to affect northern areas, where higher temperatures will likely be associated with considerable rainfall, creating a wet and warm climate favourable for fungi and other pests.9
Enter a new Canadian technology. (Powdery) mildew has been a problem for winemakers for nearly 200 years. A fungus native to the United States, it ravaged through European grape crops in the 1850s before being controlled with sulphur and other methods. These days, it is managed with fungicides, most often sulphur, sprayed regularly throughout the growing season. The chemicals are expen-
sive for wine growers, can require strict safety protocols due to their toxicity and need to be managed carefully so fungi do not develop resistance to them.
With Earth’s climate warming, experts say fungi will have more opportunities to grow and expand their range. Although wine regions exist across climates, warmer air holds more moisture, which are two key environmental parameters for the spread of fungal pathogens.
The new system — developed and patented by St. Catharines, Ont., company Clean Works and being tested at Vineland Estates, which grows 40 hectares of grapes — attacks the fungus on the surface of the vine, unlike fungicides, which generally block the fungus from reproducing. The harvester moves over rows of vines and subjects them to three elements: hydrogen peroxide, ozone and UV-C light, which is a known disinfectant.
“That combination allows us to be able to rid ourselves of any pathogens in the vineyard, such as downy mildew, powdery mildew, black rot,” Schmidt said, calling it a new tool in the winery’s arsenal to manage these problems more sustainably. … That reaction breaks down into oxygen and water, which means no chemicals are left behind.10
Other innovations are underway within the wine-making process, but that is for another column.
And now some wines that have so far successfully made it through the ravages of climate change.
PHANTOM CREEK ESTATES RIESLING 2020
BC VQA Similkameen Valley #58467 $30.00 (approx.)
This is made in a citrus-dominant Alsatian style. From a single vineyard in Cawston, it was fermented on wild indigenous yeasts and aged in Austrian oak foudres for 18 months. The colour is pale gold and it has a nose of lemony citrus, green mango and green apple with floral notes and a backdrop of minerality. The flavours on the bright palate are loads of lemon and lemon peel, green peach and green tropical fruit with a trace of salinity leading to a long full finish. There were 400 cases produced, so look for it now. Like many Rieslings it will pair well with Indian or spicy Asian food, but also with hard cheeses such as gruyere, or with creamy seafood dishes. It is available at a few BCLDB stores, or at Save-On-Foods and other private stores such as Everything Wine, or Vessel in Victoria, or from the winery online or in person. The spectacular winery between Oliver and Osoyoos is well worth a visit. Stay for lunch or dinner.
CHATEAU DEREZSLA TOKAJI FURMINT DRY 2021
Tokaj, Hungary #16876 $17.99
The main grape is Furmint (the grape behind the famous Tokaji dessert wines) with eight per cent Kabar B and seven per cent Muscat. This has a
mineral-driven nose with wet stone, but also bright green fruit, primarily pear and lime and white grapefruit with a lovely floral note. On the slightly effervescent and dry palate you find that same bright green fruit and minerality with a whiff of lanolin and a soft but brilliant slightly honeyed finish. Winescores rated it with 91 points. The winery recommends having it with sushi, grilled fish and white meats. Good choices.
BORDERTOWN GRUNER VELTLINER 2022
BC VQA Okanagan Valley #104287 $22.00 (approx.)
Gruner finds its home in Austria and Hungary but is becoming increasingly popular locally in the Okanagan, including at this Osoyoos winery. This version has a nose of white flowers, stone, lemon lime and grapefruit peel. Being grown in the hot desert of Osoyoos, it is richer and fruitier than most of its Austrian counterparts. On the palate, there is more mineral and citrus with notes of unripe pineapple and white peach leading to a light lifted and slightly honeyed finish. Good acidity throughout. It is great for summer sipping on a patio or served with white fish, seafood, a stuffed chicken breast, or again with milder Indian dishes. You can purchase online or in person from the winery or at private wine merchants like Marquis Wine Cellars, or Cascadia on Vancouver Island.
GODORI SAPERAVI 2021
Kakheti, Georgia #688747 $17.49
From what is believed the birthplace of winemaking (not the one in the song about being gentle on the mind) this wine is from the traditional Georgian grape, Saperavi (meaning “dye”), a teinturier or black grape (having red juice and not just red skins) grown in the Kakheti region. Saperavi grapes produce very deep red wines that are suitable for extended aging. It is by far the most dominant Georgian red grape in terms of overall production, supposedly being grown there since 6,000 BCE. This one is dark purply-black in colour, with 12.5 per cent alcohol, but is very full on the nose and palate. The aromas are dark cherry, black currant and plum, with black pepper and some graphite. The flavours are more black fruit, especially cherry with notes of vanilla, subtle oak, some tea-like tannins and a long, smooth and full finish. It is great for BBQ ribs or steak, or with a tomato-based pasta dish.
PASSO DEL CARDINALE PRIMITIVO 2021
DOC Primitivo di Manduria, Puglia, Italy #126332 $28.99
This is grown in the area of Manduria and Sava, in Taranto province, from
low-yield bush vines. It was fermented in steel with extended skin maceration and then aged in American oak barriques. It is rich and full on both the nose and palate. The aromas jump out of the glass, with black currant, blackberry and plum, notes of vanilla and spice, and a touch of dried herbs. The same black fruit dominates on the palate along with ripe cherry and a bit of dark chocolate, leading to a long round finish with velvety soft tannins. At fourteen per cent alcohol it is a big wine. Again it will be great with steak but also richer pasta dishes like orecchiette with sausage and rapini, or pork chops with pasta and red sauce.
ENDNOTES
1.Matt Simon, “Savour Your Favourite Wine Before Climate Change Destroys It”, National Observer (4 April 2024), online: <www.nationalobserver.com/ 2024/04/04/news/savour-your-favourite-wineclimate-change-destroys-it>.
2. Ibid
3. Ibid
4.Future Learn, “Effects of Climate Change on Growing Grapes”, University of Reading, online: <www. futurelearn.com/info/courses/climate-smart-agri culture/0/steps/26593>.
5.Paloma Pacheco, “The Future of B.C. Wine Has Never Been More Uncertain”, The Narwhal (25 May 2024), online: <thenarwhal.ca/bc-wine-climatecrisis/>.
6.Éric Gomès, Pascale Maillot & Éric Duchêne, “Molecular Tools for Adapting Viticulture to Climate Change” (2021) 12 Front Plant Science, online:
<www.ncbi.nlm.nih.gov/pmc/articles/PMC79026 99/>.
7.“Argentina Leads Groundbreaking Malbec Genome Research”, Latin American Post (25 April 2024), online: <latinamericanpost.com/technology/argentina -leads-groundbreaking-malbec-genome-research/>.
8.Darius Mahdavi, “With Climate Change Threatening Canadian Vineyards, Is Genetically Engineered Wine on the Horizon?”, CBC News (6 March 2023), online: <www.cbc.ca/news/canada/windsor/winefuture-hybrids-crispr-1.6766089>.
9. Supra note 4.
10.Anand Ram, “Ontario Winery Testing New Green Canadian Technology to Fight Age-Old Threat to Grape Crop”, CBC News (28 May 2024), online: <www.cbc.ca/news/climate/canada-niagara-winetechnology-fungicide-1.7216243>.
NEWS FROM
BC LAW INSTITUTE
By Ed Wilson*
THE VALUE OF LAW REFORM
Law reform agencies always undertake their projects with a view to bringing about legal change that confers a net benefit to the community. Benefit from legal change may come in numerous ways. Many of these benefits are intangible, but some are quite tangible even though they may be difficult to quantify on a macroeconomic scale. Modernizing outdated laws that impose unnecessary complexity and cost, streamlining and modernizing legal procedures, simplifying the law and removing uncertainty all create efficiencies. Law reform has economic value.
Recent studies in the United Kingdom show that the economic benefit of institutional law reform is very significant. In 2019, two independent economists analyzed the impact of five law reform projects completed by the Law Commission of England and Wales between 2014 and 2018. The economists concluded that the Law Commission’s recommendations would result in significant gains to the U.K. economy and their effects would be experienced broadly across both public and private sectors, and by individual citizens.1
The five projects selected for analysis covered an eclectic range of matters. Those matters included hidden fees charged to residents in adult social care, protection of persons lacking mental capacity to consent to care or treatment, the form and accessibility of legislation applicable to Wales, regulation of taxis and Uber-like services, and criminal sentencing.2 The estimated benefit of these projects, net of the cost of implementing them, was estimated at a staggering three billion pounds over ten years.3 In an update to the economic analysis published in 2024, another independent econo-
* Ed Wilson is the chair of the British Columbia Law Institute (“BCLI”).
mist estimated the economic benefits of five additional Law Commission projects completed after 2019 at 670 million pounds over ten years.4 The U.K. government itself has estimated the economic impact of the Electronic Trade Documents Act 2023, 5 which was closely based on recommendations of the Law Commission, at 1.14 billion pounds.6
While analyses in similar detail have not yet been done in Canada, examples of how law reform generates economic benefits can readily be found here as well. Implementation of BCLI’s recommendations on termination of a strata corporation has facilitated redevelopment of older structures at or near the end of their useful life with the assent of a supermajority of owners and protection for the interests of dissenting ones.7 The reforms allow the value in the underlying realty to be unlocked and for the benefit of redevelopment funding and expenditure on new construction to spread through the economy.
One of the recommendations from BCLI’s Report on Proposals for a New Society Act8 was to allow members of a society to attend and vote at general meetings by telephone or other electronic means. This is among the recommendations from that report reflected in the present Societies Act passed in 2015.9 The ability to hold virtual and hybrid meetings undoubtedly results in administrative cost savings for societies that can be redirected towards their aims and activities.
Reform that creates greater certainty in the law confers a benefit by reducing scope for costly disputes, allowing resources to be allocated to more productive ends. The division of pensions as part of a division of family property following breakdown of a spousal relationship is an area that requires very clear rules to minimize the potential for complicated and lengthy litigation between ex-spouses. Amendments to Part 6 of the Family Law Act that BCLI recommended in a 2021 report were passed last year and will add considerable clarity in this complex area of law when they are brought into force.10
The B.C. Franchises Act is another example of law reform that increases the level of legal certainty in a potentially contentious environment. The Act is patterned on a model statute developed by the Uniform Law Conference of Canada (“ULCC”).11 A BCLI report recommended enactment of the ULCC model in British Columbia with a few adaptations to improve the fit with other legislation in this province. The Act sets a standard for pre-contractual disclosure that provides greater certainty surrounding franchise agreements and ongoing franchisor–franchisee relations. By aligning substantially with legislative requirements in other provinces based on the ULCC model, the Act contributes to legislative harmony within Canada and
thus lessens the burden of compliance for franchisors, many of whom operate on a national or multijurisdictional basis.
Recognizing that economic benefits flow from keeping laws up to date through an independent, impartial process should not lead us to overlook or underestimate the intangible benefits that also flow from it. While law reform agencies differ across jurisdictions in terms of their structure and relationships with governments and legislatures, their recommendations are always generated through a process of research, deliberation and consultation that allows for consideration of diverse interests and perspectives. The process of consultation involves public vetting of proposals for legal change and the rationale for them, followed by reconsideration of those proposals in light of the reaction. Canadian and other Commonwealth law reform agencies embraced open public consultation on proposed legislative changes well before it became common for governments to follow this practice.
While special interests are heard from in this process, of course, the public is able to know that submissions by special interests will be weighed and tested independently by an agency that has no stake in a particular outcome, is able to draw on impartial expertise, and is not constrained by the platform or policies of any political party or incumbent government. Legal change resulting from such a process stands a greater chance of acceptance by stakeholders and the general public.12 Raising the level of public confidence in the integrity of legal change is also among the ways in which institutional law reform adds value in the legal system.
ENDNOTES
1. Derrick Jones & Ruth Wainwright, Value of Law Reform (London: Law Commission of England and Wales, 2009) at 22.
2. Ibid at 22–23.
3. Ibid at 22–23, 121.
4. Law Commission of England and Wales, Value of Law Reform - Update: February 2024 (London: Law Commission of England and Wales, 2024) at 3, 6.
5. 2023, c 38.
6. Supra note 4 at 3. See also Department for Science, Innovation and Technology (UK), “UK Economy to Receive £1 billion Boost Through Innovative Trade Digitalisation Act”, Press Release (20 July 2023), online: <www.gov.uk/government/news/ukeconomy-to-receive-1-billion-boost-throughinnovative-trade-digitalisation-act>.
7. See BC Law Institute, Report on Terminating a Strata (Vancouver: BCLI, 2015), online: <2015-02-20_ BCLI-SPL-Ph2-Report-on-Terminating-a-StrataFINAL>. The recommendations in this report were implemented by SBC 2015, c 40, ss 37–55.
10. BC Law Institute, Report on Pension Division – A Review of Part 6 of the Family Law Act, Report No 91 (Vancouver: BCLI, 2021). Recommendations in this report are reflected in Family Law Amendment Act, 2023, SBC 2023, c 12, 8–20, not yet in force at the date of writing.
11. SBC 2015, c 35. See Uniform Law Conference of Canada, Uniform Franchises Act and Regulations, online: <ulcc-chlc.ca/ULCC/media/EN-UniformActs/Uniform-Franchises-Act-and-Regulations _2.pdf>.
12. Gavin Murphy, Law Reform Agencies (Ottawa: International Cooperation Group - Department of Justice, 2004) at 3, online: <publications.gc.ca/collections /Collection/J2-247-2004E.pdf>. See also Law Commission of England and Wales, Inside Modern Law Reform (London: Law Commission, 2023) at 51–52.
NEWS FROM
CLEBC SOCIETY
By Adam Simpkins*
LAWYER WELLNESS AND WELL-BEING RESOURCES
The Continuing Legal Education Society of British Columbia (“CLEBC”) is pleased to share recordings from the recent Mental Health Forum for Legal Professionals that took place on June 23, 2023 (Part 1) and February 6, 2024 (Part 2).
Co-hosted by the Law Society of British Columbia and CLEBC, this twopart event brought together the legal community to advance the conversation on mental health in the legal profession.
The event centred on strategies for enhancing personal mental health and practical approaches for practitioners, firms and other legal employers to actively improve mental health within their organizations and the broader profession. The specific topics discussed in Part 2 were directly informed by the questions and feedback received from attendees of Part 1 of the forum, ensuring that the speakers addressed the issues most relevant to the audience.
The gathering proved to be a pivotal step in continuing the conversation on mental health in the legal profession. It highlighted the importance of continued engagement and discussion to drive positive change collectively. CLEBC would like to thank all the faculty and staff that made these events possible.
To view these recordings, and all other lawyer wellness and well-being resources provided by CLEBC, please visit: <www.cle.bc.ca/lawyer-wellness -and-well-being-resources/>.
NEW EDITION! ESTATE DISPUTES IN BRITISH COLUMBIA: A LITIGATOR’S GUIDE
CLEBC is pleased to announce the second edition of Estate Disputes in British Columbia: A Litigator’s Guide
* Adam Simpkins is marketing manager at the Continuing Legal Education Society of British Columbia.
This essential resource offers practical guidance for estate litigation practitioners and those advising on estate planning and administration matters.
The updated guide delves into the most common procedural and substantive issues in estate litigation, providing succinct discussions on the validity of wills, wills variation claims, actions against fiduciaries, and disputes over inter vivos trusts and transfers. It also offers practical tips for navigating court procedures, managing clients, developing litigation strategies and preparing for evidentiary challenges.
Highlights of the 2024 update include:
•New insights on trauma-informed practice in estate disputes.
•A dedicated chapter on litigating estates under the Indian Act.
•A detailed chapter on the use of notices of dispute in estate litigation.
•Updated discussion on the costs of estate litigation.
•New content on reconciliation and spousal status in estate disputes.
•Expanded coverage of pre-taking of remuneration by trustees.
•Further discussion on the application of wills variation principles to dual wills in British Columbia.
•A quick reference guide for commencing estate litigation proceedings.
With this comprehensive guide, practitioners will confidently apply the best methods to resolve disputes, from mediation to trial, while efficiently preparing their cases.
We thank all of the contributors and CLEBC staff that made this book possible. For more information, please visit <www.cle.bc.ca/edbc>. ЖЖЖ
LAPBC NOTES
By Anonymous
RECOGNIZING THE STRENGTHS AND CHALLENGES OF LAWYERS WITH ADHD
Despite the growing understanding of adult attention deficit and hyperactivity disorder (“ADHD”), misperceptions and significant stigma still exist around this condition. As set out in this article, my own experience reveals a journey where I had to disabuse myself of my many inaccurate perceptions about adult ADHD. Further, I had to overcome my own internalized shame over having this identifiable yet very treatable condition.
If you are an ADHD skeptic, as I was, first, it is important to recognize that nearly everyone experiences lapses in attention, or occasionally finds it hard to start a task, or see it through to completion, especially during times of prolonged high stress. Everyone loses keys—or key legal documents—occasionally. Second, ADHD experts note that other health concerns share many of the same symptoms that are frequently linked with the ADHD label. Therefore, an improper diagnosis of ADHD is possible. For example, symptoms related to anxiety, depression, sleep disorders, alcohol and substance use, chronic stress, post-traumatic stress disorder or a general lack of self-care can exist separately or in addition to ADHD.
When I became concerned that adult ADHD might be negatively affecting my work and home life, I educated myself about this topic as the first step toward objectively assessing the severity of my challenges. A second step was to seek out an accurate professional assessment, and once assessed I accepted appropriate treatment for what was a debilitating cluster of symptoms. For me, treatment included experimenting with various accommodations and tools until I found the right scaffolding to best support me.
One way to look at adult ADHD is through a neurodiversity lens. Many lawyers are intellectually and academically gifted as compared to the general adult population. Similarly, adult ADHD affects lawyers more as com-
pared to the general adult population. In a 2016 American Bar Association study of lawyer well-being in the United States, about 12.5 per cent of lawyers responding to the survey reported having ADHD. That is more than two and a half times the rate among the general adult population. The recent Canadian Bar Association study of mental health among Canadian lawyers did not screen for adult ADHD, though the numbers are probably similar.
It took me a long time to overcome my reluctance to accept that adult ADHD could be the longstanding, underlying cause that negatively impacted my work performance and relationships. With the help of my family doctor and a referral to an expert in diagnosing adult ADHD, I am no longer a skeptic. Reading Gabor Maté’s Scattered Minds: The Origins and Healing of Attention Deficit Disorder especially helped me overcome my resistance. In addition to containing useful information on the pre-frontal cortex, executive function and neurobiology, Dr. Maté’s autobiographical book charts his journey through adult ADHD denial toward correcting his misconceptions about it, and then receiving treatment. I now regularly recommend this book to all my adult ADHD-doubting friends.
Even when seeing obvious and many similarities between Dr. Maté’s experiences and mine, I initially told myself I could not possibly have adult ADHD because I was managing a successful legal career. Sure, I procrastinated a lot, and I frequently lost keys and important papers. Sure, some saw me as disorganized, with a chaotic “floor and multiple pile” filing system. Sure, some of the paralegals referred to me as “the absent-minded professor”. In addition, I experience “time-blindness”, never really knowing how many minutes, or sometimes hours, elapse in meetings with team members or clients. When my officemates commented on my quirks and idiosyncrasies, I laughed collegially with them. I then strongly emphasized that I always met my responsibilities; I never missed court filing deadlines (even if predictably last minute and even if predictably increasing the stress levels of too many legal assistants). Moreover, I bolstered my confidence with comments from judges that my written work on legal briefs and appeal factums was first rate. The ADHD specialist to whom I was referred acknowledged the strengths inherent in my incredible down-to-the-wire, last-minute focus and cramming “super powers”. He pointed out as well, that this type of “hyper-focus under pressure” is a notable characteristic of the ADHD brain. He also repeatedly asked me, “Over the years, what cost did this work style exact from your personal and professional life?” One obvious and brief answer to this question is that my ex-partner referred to himself as “the legal work widow”.
If my story sounds in any way similar to yours, I suggest you owe it to yourself to start finding out more about adult ADHD and how it can be treated. A bundle of treatment options are available, including, if indicated, medication. “Scaffolding” is the term that ADHD clinicians use to refer to an arsenal of medications, tools and behavioural adaptations to support the ADHD individual. In this regard, I find the information and free resources available at the Canadian ADHD Resource Alliance especially helpful. Similar to Dr. Maté, I experimented with different medications, and at times found them helpful. Like him, under the care of an ADHD specialist I chose to wean off medication and instead use the array of other supports and accommodations that I learned best support my particular symptoms.
One way I can describe my experience is that once my ADHD was treated, a lifelong 100-pound backpack was reduced to a 50-pound backpack. What a relief! Adult ADHD recognition and treatment did not take away all of my struggles with focus, scheduling, techno-stress, case management, document handling, time management, distraction, motivation and procrastination. That said, my enjoyment of work and home life have both increased immeasurably.
More lawyers and law students are reaching out to the Lawyers Assistance Program of British Columbia (“LAPBC”) for assistance with issues around focus, attention, motivation, procrastination, memory and self-regulation, often because they suspect they may qualify for an adult ADHD diagnosis, they are worried about their performance, or both. LAPBC recently presented a webinar focused on the topic of the challenges of lawyering with ADHD. The plan is to have future increased LAPBC programming dedicated to this issue.
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>.
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.
PRIZES
First prize:$400 gift certificate at a local book store and publication in the Advocate
Second prize:$250 gift certificate at a local book store and possible publication in the Advocate
Third prize:$100 gift certificate at Zefferelli’s Spaghetti Joint and possible publication in the Advocate
Winning entries will be selected by, at the latest, February 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.
PETER A. ALLARD SCHOOL OF LAW FACULTY NEWS
By Farhia Mohamed*
REFLECTIONS ON THE 2024 BLACK LAW STUDENTS’ ASSOCIATION OF CANADA CONFERENCE
This year’s Black Law Students’ Association of Canada (“BLSA”) conference, which was held in Toronto in February, saw the highest attendance to date from UBC BLSA, with 25 J.D. students and 2 LL.M. students taking part. The conference spanned four days, filled with events, panels and informal socials, where we met Black lawyers and law students from all across Canada. This year’s conference also achieved its highest attendance since its inception 33 years ago, with an impressive 600 attendees. Among my friends at Allard Law who were visiting Toronto for the first time, there was palpable excitement.
The conference featured engaging panels covering topics including alternative pathways with a J.D., generative AI, legal tech and innovation, and Black voices in legal academia, which involved discussion of the experiences of Black law professors. The career fair offered another unique opportunity to connect with representatives from a variety of law firms; Black lawyers and articling students shared their experiences working within their respective firms. I spoke with one associate and asked her how she chose her practice area, and she gave an insightful answer about the importance of enjoying the work you do, but also your team. Through the multitude of panels and events, it was apparent that the connections the audience had with the speakers were deeper and more meaningful due to our shared experiences.
My favourite panel was the “sister to sister panel”, which offered a more intimate setting where Black female lawyers shared their experiences working in law, the challenges they faced and how they overcame them.
*
Farhia Mohamed is a J.D. student at the Peter A. Allard School of Law.
When students had the opportunity to ask the panellists more intimate questions about their legal journeys, each of the panellists was open and transparent about their experiences in law. One student in the audience posed a particularly memorable question about navigating situations where someone makes an inappropriate or offensive comment, particularly in the workplace. A lawyer on the panel advised the student to remain kind, yet feel assured to address any remark made, stressing that everyone deserves to feel comfortable at work.
Beyond the insights we gained from the talks and panels, the entire conference was carefully thought out to cultivate an environment that celebrated the accomplishments of Black people in Canada. For example, on day two, there was a marketplace featuring Black-owned businesses, with one stand filled with books by Black authors, such as The Autobiography of Malcolm X and All About Love by bell hooks. The gentleman managing the stand shared with us how the bookstore came to be, through the desire to create an environment emphasizing the promotion of Black authors.
The theme of this year, “as we rise, we lift”, reverberated strongly throughout the conference. In addition to lawyers offering valuable insights into their career journeys, there were many spontaneous conversations with fellow law students while navigating the career fair, strolling through the halls of the hotel, and sitting next to one another during panels. We shared funny stories about our law school experiences, our hopes and dreams for our careers and lives, and the unique challenges of being sometimes the only Black students in the room—ironically in a setting filled with Black lawyers. During the luncheon on day three of the conference, we heard an inspiring speech from our school’s dean, Ngai Pindell. The conference concluded at the gala, with an unforgettable address from Angela Davis, which furthered the sense of empowerment and solidarity shared among attendees.
As the director of communication for UBC BLSA, I am grateful to have been a part of the team that provided this experience for 27 students from Allard Law. However, none of this would have been achievable without the dedicated efforts of our presidents, Gabby Lees and Tinahse Muzah, who worked tirelessly to secure sponsorships and organized brunch and dinners for all attendees, including a group dinner with the students from BLSA UVic. Although this was my second time attending the BLSA conference, the experience was truly exceptional and I am absolutely looking forward to next year.
UVIC LAW FACULTY NEWS
By Katie McGroarty*
UVIC LAW TO CELEBRATE 50TH ANNIVERSARY IN 2025
Next year marks a significant milestone as the UVic Faculty of Law celebrates its 50th anniversary. We are excited to invite all alumni and members of the UVic Law community back to campus to join us for a special event planned for June 2025. If you are interested in volunteering to help organize this event, please contact us at <lawcomm@uvic.ca>. Stay tuned for more details as we prepare to commemorate a half-century of excellence in legal education at UVic Law.
ELOISE SPITZER RECEIVES HONORARY DOCTOR OF LAWS
During the spring convocation ceremonies, UVic awarded three honorary degrees that recognize notable achievements in scholarship, research, teaching and public service. Among those honoured was Eloise Spitzer, who was awarded an honorary doctor of laws degree on June 12, 2024.
Breaking barriers throughout her career, Spitzer has made history as the first woman to hold the position of Cabinet Secretary, Deputy Minister in the Premier’s office in both Yukon and British Columbia, providing advice to Executive Councils and managing communications during constitutional change.
Spitzer’s remarkable ability to connect with people has left an enduring impact through her roles as a mentor, educator and public servant, encouraging deep community engagement and social justice. These qualities are at the heart of her transformative work.
Believing in the transformative power of education, Spitzer contributed significantly to UVic’s Akitsitaq Law Program in Nunavut. As co-op coordinator, she notably increased Indigenous law student participation.
* Katie McGroarty is the communications officer at the UVic Faculty of Law.
Spitzer has served in diverse ways including through legal aid, private practice, public interest litigation, legal education, public service, development corporations and charitable boards. No matter where she serves, she has shown that it is possible to never lose sight of the needs and voices of those most vulnerable in society. In everything she does, she embodies her belief in creating a more equitable and compassionate society.
NEW FACULTY MEMBERS JOIN UVIC LAW: LOLA AYOTUNDE, ANDREW LUESLEY, ESTAIR VAN WAGNER
We are excited to announce that three new scholars are joining the faculty in 2024: Andrew Luesley, whose appointment began January 1, 2024, and Lola Ayotunde and Estair Van Wagner, whose appointments both began July 1, 2024.
Dr. Lola Ayotunde was previously an assistant professor at the University of Saskatchewan School of Law, where she taught Global Indigenous Rights and Resource Development, Civil Procedure and Advanced Legal Research and Writing. Dr. Ayotunde has an LL.B. from Olabisi Onabanjo University, and an LL.M. and a Ph.D. in law from the University of Saskatchewan. Her research focuses on human rights law and Indigenous rights, especially in international and environmental contexts. Dr. Ayotunde joined the faculty on July 1, 2024.
Dr. Estair Van Wagner has held academic appointments in Canada and Aotearoa, New Zealand, and was previously an associate professor at Osgoode Hall Law School at York University, where she taught Property Law, Natural Resource Law and the Environmental Justice and Sustainability Clinic. Dr. Van Wagner’s research focuses on the intersection of property law and theory, planning law, natural resource governance and environmental justice. In 2024–25, she will be teaching Property and Natural Resources Law. Dr. Van Wagner joined the faculty as an associate professor on July 1, 2024.
Professor Andrew Luesley was a Dean’s Graduate Teaching Fellow at UVic Law during the fall 2023 term, and is now teaching first-year Contracts. Professor Luesley has a B.A. from Thompson Rivers University, and a J.D. and an LL.M. from the Allard School of Law at UBC. He is a Ph.D. candidate at Allard, where his dissertation is titled “Unravelling Smart Contracts: Good Faith in Crypto-Commerce”. Professor Luesley’s research interests include commercial law, law and technology, and critical race theory. Professor Luesley’s appointment as assistant professor began January 1, 2024.
TRU LAW FACULTY NEWS
By Ryan Gauthier*
NEW ASSISTANT DEAN AT TRU LAW
TRU Law is pleased to welcome Desmond MacMillan to the faculty as assistant dean. Desmond received a bachelor of commerce (general business) degree from the University of Northern British Columbia, and an LL.B. from the University of Saskatchewan. Since 2012, Desmond has been a partner at MacMillan Knight LLP in Kamloops, where he has specialized in a wide variety of litigation ranging from contracts and insurance, to employment and human rights, to fiduciary agreements and cybercrime. Desmond is no stranger to TRU Law, as he was a coach of the school’s BC Law Schools Competitive Moot team from 2018 to 2022. Desmond also serves as an intelligence officer in the Royal Canadian Naval Reserve. He has been involved in Kamloops as a North American Indigenous Games 2027 Tk’emlúps bid committee member, Memorial Cup committee member and Nicola Valley First Nations Veteran Association memorial committee member.
As Desmond joins us, we bid farewell to Lana Walker, who is returning to practice. Lana joined us in March 2022 and has served TRU Law admirably.
Lana has worked in three main areas: alumni, student wellness and external relationships. She launched an alumni newsletter, worked with the broader TRU community to promote student wellness and served on various external bodies including the CBABC and CLEBC. Lana’s sense of humour, even when navigating the thorniest of issues, will be truly missed. Fortunately, she will remain with TRU Law as a sessional instructor and a moot coach.
* Ryan Gauthier is an associate professor at the TRU Faculty of Law. He spent most of April 2024 either marking or playing Final Fantasy VII Rebirth. Both activities require an inordinate amount of grinding and have rendered him a shut-in.
TRU LAW’S SUCCESSFUL 2024 MOOT SEASON
TRU Law has had a successful moot court competition season. In addition to TRU Law’s victory in the BC Law Schools Competitive Moot, mentioned in the last issue, TRU Law took home prizes at two other moots. TRU Law took the prize for top factum at the Wilson Moot. The team was made up of Sammy Abbasi, Brittany Bouteiller, Prince Dhillon, James Singer and Russell Walton.
TRU Law also did very well at the Immigration, Refugee and Citizenship Moot, winning prizes for top appellant team, second-best law school, and second-best factum. The team was made up of Rosina Hamoni, Tamara Luistro, Ignacia Mendez-Pacheco, Scott Stewart-Lee and Will Wang.
TRU Law participated in seven other moots across Canada in February and March 2024: the Davies Corporate/Securities Moot, the Jessup Moot, the Kawaskimhon Moot, the MacIntyre Moot, the National Family Law Negotiation Moot and the Wilson Moot. In 2023–24, TRU Law saw a total of 40 mooters compete, on ten teams, coached by 28 members of the legal profession.
We thank the coaches from the B.C., Alberta and Ontario legal communities for their work coaching these moots. Without them, the moot program could not run, let alone be as successful as it is. We would like to thank Danielle Ching McNamee and Catharine Bisbicis (BC Law Schools); Chelsea Hunter, James Reid and Joe Ensom (Davies); Michael Geib, Tiana Reid and Dylan Taylor (Hockey Arbitration); David Kapp and Erin Estok (Immigration); Alex Devitt, Natasha Little, Greg Pun, K.C., and Ryan Gauthier (Jessup); Chrystie Stewart and Murray Sholty (Kawaskimhon); Amanda Winters and Sara Hillard (National Family Law Negotiation); Karen Perry, Jesse Olynyk and Natasha Little (National Sports Law Negotiation); Kelly Melnyk, Iain Currie and Lana Walker (MacIntyre); and Brodie Noga, Sergio Ortega, Jane Mayfield, Karin Kotliarsky and Emma de Paoli (Wilson).
We would also like to thank our sponsors. The travelling moot teams received support from TRU’s Dr. Sherman Jen Innovation Competition Prize. The Davies Corporate/Securities Moot team was generously supported by Poulus Ensom Smith LLP in Vancouver. The Jessup Moot team was generously supported by Gillespie and Company LLP in Kamloops. And the BC Law Schools Competitive Moot team was generously supported by Rush Ihas Hardwick LLP in Kelowna.
TRU LAW HOSTS THE KAWASKIMHON MOOT
TRU Law also hosted the 2024 Kawaskimhon Moot. The organizing committee put a lot of work into getting the moot running. The committee included
Professor Bradford Morse, Chrystie Stewart, Miranda Seymour, Ben Turner, Rob Houle, Tayler Pittendreigh and Austin Ferguson. Murray Sholty deserves particular recognition for his role in overseeing the moot.
Facilitators from across Canada came to TRU Law to provide insight and guidance to the mooters. We also want to thank Chief Justice Marchand for being the keynote speaker, and to thank the TRU Law staff for their behindthe-scenes work to get the moot up and running.
We are also grateful to our many sponsors for their support.
DENTONS 1L BUSINESS NEGOTIATION COMPETITION
TRU Law hosted the Dentons LLP Negotiation Competition in March 2024. The student teams receive materials from Dentons, and work to negotiate an agreement between the parties. This year’s problem focused on a wellknown music star embarking on a Canadian tour. First place this year went to Alex McKenzie and Jay Joshi, second place went to Maya Shapira and Elaina McKoen, and third place went to Harveer Garcha and Armaghan Aliabadi.
RESEARCH AWARD FOR TRU FACULTY MEMBER
Professor Robert Diab and TRU alum Jolene Sanderson have been awarded the David Watson Memorial Award for an article entitled “Reasonable Apprehension Under Mental Health Law”. This article was published in volume 48, issue 1 of the Queen’s Law Journal. This award is distributed annually for the paper published in that journal that is judged to make the most significant contribution to legal scholarship.
THE ATTORNEY GENERAL’S PAGE
By the Honourable Niki Sharma, K.C.*
In December 2020, the benchers adopted an Access to Justice Vision for the Law Society of British Columbia that acknowledged that, from time to time, it would be necessary to advance transformative changes to our laws, legal system and related services.
In April this year, I introduced the Legal Professions Act (“LPA”) as one such transformative change. When implemented, its provisions will provide better options for access to justice; ensure the independence of the bar and all legal professionals; empower the new regulator to establish modernized, less restrictive business models; ensure that underrepresented individuals are better represented in the practice of law; and further the work of reconciliation in a meaningful way.
The introduction of the LPA marked the culmination of a tremendous amount of collaboration and engagement that occurred over the course of more than two years. In 2022, the government initiated public consultation. Initial meetings with senior staff of the Law Society, the Notaries Society and representatives of the Paralegal Association were critical to the Ministry of Attorney General’s formulation of the core policy issues outlined in an Intentions Paper, which was publicly released for comment in September 2022. In May 2023, government released a What We Heard Report summarizing the extensive feedback received and considered on the Intentions Paper. Throughout the drafting process, the government engaged regularly in extensive consultation with regulators, associations, access to justice organizations, academics, lawyers, notaries, paralegals and Indigenous partners.
It is fundamental in our democracy that as lawyers we maintain our independence to represent the interests of our clients without government
* The Honourable Niki Sharma, K.C., is British Columbia’s Attorney General.
interference. We took care to ensure this independence was protected. The new model continues self-regulation for lawyers, and other legal professionals, through a board consisting of mostly legal professionals with lawyers being the majority. The statute enables the regulator to establish its own rules and code of conduct (with government having no general approval function whatsoever). The Attorney General is no longer a bencher as of right and the number of government appointees on the board is reduced from six to three.
So, what happens now?
The work of amalgamation is complex and will need proper time and care. The LPA contemplates that immediately upon royal assent, the preparation for amalgamation begins, starting with the formation of a transitional board of directors, a transitional Indigenous council and an advisory committee. These transitional bodies will include members from the current regulators and Indigenous voices. The transitional board and transitional Indigenous council will collaborate to develop the first rules of the board.
Other provisions that are immediately in force upon royal assent will allow the Law Society to formalize and build on its innovation sandbox by creating a framework for formal exemptions from the provisions that prohibit the unauthorized practice of law. It is important that the work of licensing individuals to perform specific activities continues to build momentum as we work toward a new regulatory structure.
Lastly, the regulated paralegal working group has been established to develop recommendations for how the new regulated paralegal designation will function in the legal services landscape. The working group has been tasked with developing a process to seek public input before those recommendations to government are finalized.
The current regulators will continue until the amalgamation date, which we expect will be 18-24 months from now.
We know that there is lot to consider and we want to support the current regulators and the transitional bodies with the proper time and support they need to ensure a smooth changeover.
I would like to take a moment to thank everyone who has engaged in the process so far. Whether you completed the public survey, submitted written views on the matter or attended an engagement meeting—thank you. We considered all the feedback we received, and I appreciate everyone who shared their well-curated thoughts on this important transition.
COURT NOTICES AND DIRECTIONS
By the Honourable Suzanne Anton, Q.C.*
British Columbia Court of Appeal
Practice Directive (Civil)
Title: Registrar’s Powers
Issued: 3 May 2024
Effective: 3 May 2024
Cite as: Registrar’s Powers
(Civil Practice Directive, 3 May 2024)
Pursuant to s. 37(2) of Court of Appeal Act, the Registrar is authorized:
(a)to exercise the powers listed in Rule 48(1) in case management;
(b)to receive and determine other matters related to the management of the conduct of an appeal referred to the Registrar by a judge or division of the Court.
History
This is a new practice directive.
Chief Justice Marchand Court of Appeal
for British Columbia
Supreme Court of British Columbia Notice to Counsel
Title: Official Language Rights of Accused Persons
Effective Date: 27 May 2024
The recent decision of the Supreme Court of Canada in R. v. Tayo Tompouba, 2024 SCC 16, requires that the Court review its existing case load and ensure that each accused person has been properly informed of their official language rights under s. 530 of the Criminal Code. In the coming weeks, the Court will be arranging for appearances by the accused person in all criminal cases that have not yet proceeded to trial. The accused person will be asked to appear (in person or by video) even where a counsel designation is on file.
These appearances will show on the court list as “s. 530 hearings”, and will be for the purpose of informing accused persons of their s. 530 rights, and confirming their choice of the official language of the trial.
We ask for the criminal bar’s cooperation and patience in this process of ensuring that the language rights of all accused persons are respected.
If you have any questions or concerns about the scheduling of these appearances, please contact the appropriate scheduling office.
British Columbia Court of Appeal
Practice Directive (Civil & Criminal)
Title: Chambers Applications
Issued: 3 May 2024
Effective: 3 May 2024
Cite as: Chambers Applications (Civil & Criminal Practice Directive, 3 May 2024)
When bringing or responding to an application before a single judge in chambers, parties should observe the following:
1.Person(s) bringing the application should obtain a date for the application online at <https://justice.gov.bc.ca/scjob/>;
2.Wherever possible, obtain other parties’ agreement to the date you have selected;
3.Prepare, file, and serve materials in accordance with the Rules and the Registrar’s filing directive;
4.Person(s) responding should also file responding materials in accordance with the Rules and the Registrar’s filing directive;
5.Any person who wishes to appear by Zoom must file a Request to Appear Remotely with their materials on the timelines in the Rules: see Remote Appearances (Civil & Criminal Practice Directive, 18 July 2022).
Once material is filed, the Deputy Registrar may request a time estimate from the parties and will advise them of the time at which they must appear. If no such time is given, parties must appear at 9:30am by default. Decisions made by the Deputy Registrar at the time of scheduling about the timing and length of hearings are final.
When bringing or responding to applications before the Registrar, parties should follow the process above, but instead of booking online must contact the Registrar’s scheduler directly to obtain available times and dates for the application.
Urgent applications brought under Rule 57 must be scheduled by telephoning the chambers scheduler to obtain a date.
If appearing by Zoom, parties must observe the requirements in the Remote Appearances practice directive.
History
Chief Justice Marchand Court of Appeal for British
Columbia
Replaces the Civil and Criminal Practice Directive titled Chambers Applications dated 18 July 2022, which replaced Chambers Applications by Telephone or Videoconference dated 18 September 2011.
Cyndi Millar died on October 25, 2023, following a brief encounter with an aggressive cancer. She leaves behind a great many shocked and heartbroken people. But really, she leaves behind so much more than that: the gifts of her unstinting kindness, her razorsharp intellect, her enormous professional accomplishments, her wicked wit and her joie de vivre. She lived her 68 years with grace, grit and spirit.
Cyndi was born on August 14, 1955 in Winnipeg, the middle daughter of three. When she was 7, her parents—Rod, a pediatrician, and Shirley, a homemaker—moved the family to Redwood City, just south of San Francisco. Presumably, this explains how Cyndi got that California beach vibe she never really lost, her sunniness and her love of driving around in a red convertible with the top down. (She did eventually give up tanning, though.)
But Cyndi’s Canadian roots proved strong. For grades 10 to 12, she attended St. Margaret’s School in Victoria, a boarding school for girls. Research suggests that graduates of girls-only schools are more likely to excel academically, professionally and athletically; that they end up more self-confident; and that they are less likely to buy into gender stereotypes. Cyndi stands as Exhibit “A” for all of this.
Undergrad found Cyndi at UBC and included the classic trajectory through Totem and Gage. B. Comm. in hand, she returned to California. What next? Cyndi decided she needed to learn to surf. In Hawaii, of course. This requires a brief excursion into Cyndi’s athleticism. A naturally gifted athlete, Cyndi picked up sports with ease throughout her life. And yet, she
never seemed to practise any of them. Certainly, she had none of the grim dedication with which some of us approach fitness. When she played a sport, it was for the joy of it. (We do confirm that her joy was heightened whenever she walloped male colleagues at tennis, much to their frustration.)
Back to Oahu, where sun, surf, sand and working as a server at the Jolly Roger proved insufficient to hold Cyndi’s interest. She wrote the LSAT at the University of Hawaii, flew to Vancouver at 6 a.m. the day she started law school at UBC and embarked on her next chapter.
Apart from learning about the law, in Cyndi’s first year she also reconnected with Colin Emslie, whom she had met before and who was by then in his third year of law school. It was at his graduation dinner-dance (which each of them attended with a different date, but never mind) that Cyndi and Colin cemented a relationship that thrived, as it turned out, through the next 43 years, three sons (Chris, Graham and Jamie) and at most recent count three grandchildren.
Cyndi articled, and then practised for five years, at Russell & DuMoulin (now Fasken). This was a time when some of the greats of the bar—litigators like Bill Berardino and Michael Goldie—were mentoring the talented young lawyers attracted by the firm’s litigation expertise. The standards of excellence and dedication Cyndi absorbed at that time formed the bedrock for all her legal work. She was brilliant, but she never relied on that. Rather, she went above and beyond on every file she accepted. She worked tirelessly for an outcome that would benefit the client, by marrying her incisive analysis of the facts and the law with her stout common sense.
By 1988, Cyndi had a toddler and was expecting her second child. She decided to trade in frontline litigation for a position as “research lawyer” at Davis & Company (now DLA Piper (Canada) LLP). We put “research lawyer” in quotations because some folks seem to equate it with “finding a case”. With respect to Cyndi, that is way off the mark. In her new role, she used her enormous intellectual horsepower to solve the complex and seemingly intractable legal problems her colleagues brought her, to craft winning arguments for all levels of courts and tribunals, to point out and demolish the errors of opposing counsel and misguided judges, and to shepherd clients and colleagues through legal thickets of which they were often only dimly aware.
Her close friend Murray Blok (now Justice Blok), with whom she had practised at R&D, puts it this way: “The work she ended up doing was of the highest calibre and complexity, much more complex than almost anything I ever did.” No surprise, then, that even though she generally tried to stay out of court, she twice ended up in the Supreme Court of Canada—first in one of the early battles about the constitutionality of British Columbia’s
tobacco legislation, and later in a case plumbing the depths of railway legislation and the role of Cabinet.
Predictably, Cyndi’s colleagues at Davis quickly grasped how much they needed her. She soon became a partner—and an active and involved one at that—and remained in high demand at the firm throughout the next three decades until she retired.
But of course there was so much more to Cyndi than the law. Here is a partial list of her unique combination of qualities that endeared her to so many people.
First, Cyndi had limitless stores of kindness, thoughtfulness and generosity. She showered these on family, friends, colleagues (including unpleasant ones) and charities. If you had a birthday or were sick, flowers, cards or casseroles showed up on your doorstep. At the firm, Cyndi instituted and ran numerous charitable programs, many of them taking up much of her time—a fact she never even mentioned. Her “religion”, to paraphrase the Dalai Lama, was kindness.
Second, and perhaps this is part of the first, Cyndi was a magnificent nurturer. Family first, of course: she was a wonderful and devoted mom, wife, daughter, grandmother, sister and sister-in-law. Friends next: she was a master at the care and feeding required for true friendships. The only way to have a friend, it has been said, is to be one. Time and again, it was Cyndi who would reach out, plan a get-together, host a dinner and, most importantly, take a great interest in whatever was happening in her friends’ lives. There were the women of her book club, with whom she went through the passages of life, several trips, many books and much wine and cheese. There were the Davis women, with whom she shared life in the trenches and many laughs at a time when women lawyers were still treated by some as being on sufferance in the profession. And there were the other friends with whom she had connected and stayed in touch over many years.
Third, Cyndi was fun, and funny, always. A natural raconteur, she kept her audiences in stitches with her stories about people “a little too big for their britches”, bores, “pompous windbags”, human foibles in general and her own supposed stumbles in particular. And she was not averse to practical jokes. Just one example: for the 50th birthday of her partner John McLean she commissioned a giant billboard with a photo of a much younger John at his “chick magnet” best. This went up at the corner of Alberni and Thurlow, ensuring maximum exposure to his clients and colleagues. Her inscription generously wished him a happy 60th birthday.
Fourth, Cyndi had, apparently, no ego needs. To be clear, she knew full well that she was hugely talented, and she was utterly comfortable in her
own skin. But bragging was not just anathema to her; she could not even see the point. Whenever possible, she avoided the limelight she could so easily have commandeered. Intensely supportive, she was as quick to play down her own accomplishments as she was to champion those of others.
Fifth, Cyndi had unwavering integrity. While she picked her spots, she did not hesitate to stand up for what is right, even at a cost to herself. Women’s rights were a particular concern for her—not surprisingly, given the frosty reception some in the legal fraternity gave to the women entering the profession in the 1980s. Her advocacy, however, was always measured.
Sixth, Cyndi was a keen student of human nature and always ready to discuss its oddities. Not to put too fine a point on it: she loved gossip. No matter how tight a deadline she had to meet, no matter that her office door had been closed for hours already for intense work, if you poked your head in and asked, “Time for some gossip?” she would drop her pen (that is what we used back then) and say, “Always.”
Seventh, Cyndi had an inexplicable need to schlepp things around. She thought nothing of lugging all the ingredients for her famous lemon drop martinis to some get-together, plus just the right glasses, plus her own mixer if necessary. She had no qualms about bringing cheeses, crackers and spreads across the border on trips into the United States, plus just the right plates, knives and napkins, all to ensure a seamless union between talking and eating on arrival. Her speciality was the lugging of awkward items on plane trips: think teddy bears which, for some unfathomable reason, had to “look out the window”, or tall dried grasses that most certainly did not fit in the overhead bin (or anywhere else, in fact). She reached peak schlepp (as far as we know) when, on a dare from some Davis colleagues, she brought a full-size naked blow-up doll on her book club’s trip to New York, which she proceeded to drag all over the Big Apple. It being Cyndi, this elicited cheers wherever she went (except when small children were around).
Eighth, one of Cyndi’s defining characteristics was her love of shopping. Shopping was splendid in her book regardless of whether she bought anything, and often she bought nothing. With Zen-like dedication, she devoted herself to the process but was not attached to the outcome.
Cyndi embraced her retirement, which she thought of as her “gravy stage”, with her usual unbounded spirit. Never one to spring out of bed on weekends to go for a run, she made up for 30 years of sleep deprivation with a vengeance (marathon sleep-ins became a staple). And as always, she gave much of her time to family and friends. She was very close to her parents, who are still in California, and helping them out became a big part of what kept her busy. Typically, though, what she stressed after such visits was how many laughs they had had together.
Cyndi’s illness overtook her with shocking speed. Yet she faced it with the full strength of who she was—with all of her courage, her resilience and her generosity of spirit. Again and again, she emphasized how grateful she was: for her “awesome” life, for her wonderful family, for the medical care she was getting—indeed, she even insisted that the hospital’s Thanksgiving dinner was “surprisingly good”. She worried about the effect of her illness on others, yet for herself she was “totally at peace”.
Even, or perhaps especially, at the end, Cyndi was an inspiration. Perhaps her friend Mary Ruhl comes the closest to summing her up: “She was simply one of the best people I have ever known.”
Cyndi would not want any of us to be sad; in fact, she expressly forbade it. But she would be tickled pink if you drank some bubbly, told (or better yet, provided fodder for) a funny story, did a secret kindness, passed on a good book, planned a trip, hosted a fun-filled dinner, or schlepped some useless and awkward object around, preferably on a plane. Just like Cyndi.
Monika Gehlen, with Brenda Brown
Richard Patrick Gibbons
Richard “Dick” Patrick Gibbons took last call on August 8, 2023, having ordered his final libation after suffering from pulmonary fibrosis for five years.
The Gibbons family had left Ireland during the 1845 potato famine, eventually settling in Minnesota where Dick’s grandfather, David Walter Gibbons (1884–1966), was born. In 1894, the family moved to Vancouver, where David’s athletic abilities culminated in David’s induction into the Field Lacrosse Hall of Fame. The family had quickly expanded to five, including another David Walter Gibbons, who was Dick’s father. The younger David became a star lacrosse player on his own and was recruited by the Nelson Maple Leafs. While in Nelson, he met and married Mary Eileen Long. In 1940, David Walter Gibbons IV (see (2004) 62 Advocate 815) was born followed in March 1943 by Richard Patrick Gibbons.
Times were tough for the young family while they lived in the back of a barber shop located in the old “Jubilee” neighbourhood of South Burnaby.
ЖЖЖ
Dick credited his early work history as the basis of his future employment and business efforts. He set pins in a bowling alley, delivered newspapers, delivered groceries, cleaned veneer at a plywood plant and was a swamper on a delivery truck.
Dick was an outstanding athlete and played little league baseball and juvenile football while attending McPherson Park Junior High. His first foray into organized football was for the Burnaby Vikings, where he honed his skills as quarterback, playing against an eventual good friend and fellow law classmate, Romano Giusti. He was the quarterback for Burnaby South High, where he was the top male athlete in his graduating year. He then played for the Vancouver Meralomas, won the Vancouver Lower Mainland Title and played under the lights at Empire Stadium.
In 1961, Dick enrolled in the arts faculty at the University of British Columbia. He played varsity football and continued playing as quarterback after he entered law school in 1963 upon the urging of his longtime friend, Craig Sturrock. Those were the days when you could enter law school after three years of arts. Summer jobs working as a labourer for Burnaby on garbage trucks or water works ended in 1965. Dick secured the only job that he could find: car salesman. He learned the five steps toward a sale and ended up being the top salesman for August. His final summer job while at law school was as a summer student in the law offices of Brown, Rinaldi, Doig and Barrett in Prince George. When he got caught in Burns Lake overnight while serving a writ, he met Jim Poyner, who was practising there at the time. This foreshadowed what Dick described as the “most important, unforeseen coincidence I ever experienced in my entire life”.
Not long afterwards, Dick had just finished a home game at UBC and his friend and teammate, Lance Fletcher, told him that a friend of Lance’s girlfriend would be giving Dick a ride to the Kingston Hotel pub. The driver to the pub turned out to be the beautiful, tall, blonde Colleen Poyner, Jim Poyner’s sister. Five months later, Dick proposed marriage. Dick and Colleen were married on August 5, 1967.
After graduating from law school in 1967, Dick articled at Armstrong, Brawner and Speton. Dick believed he learned more in one year of articles with Arne Armstrong than he could have learned at any other firm. Graham Phillips was a newly minted lawyer at the firm when Dick joined and they began a journey that was to last for more than 40 years as Graham continued to be Dick’s lawyer throughout his business career. Dick was called to the bar in May 1968.
Shortly after, the urge to be in an equal partnership led Dick to join Jim Poyner and Frank Maczko. He became an expert in public companies that
traded on the Vancouver Stock Exchange, particularly mining companies. The firm was joined by Jim Barrett and Dick’s brother, David Gibbons. Frank Maczko eventually left to become the head of Legal Aid. Dick was becoming more interested in real estate and established a real estate office and development company in Coquitlam. He also started Vacation Motels with his father and brother, purchasing hotels in Kamloops, Port Alberni and Courtenay. At about this time, Dick realized the opportunity afforded by strata ownership and converted his first building in Coquitlam, followed by buildings in Kitsilano. He was sympathetic to renters, many of whom purchased their units. This was the mid-1970s and Dick had decided to go into business full time. He sold his very significant solicitor’s practice to Graham Phillips and Ken Brawner. During this period, Dick’s philosophy “Look down before you look up” was born. This mantra stabilized him financially during the difficult era of high interest rates in the early 1980s.
Dick continued with opportunities in the hospitality business. Being very familiar with the old Kingston Hotel pub, Dick and Lance Fletcher purchased the Picadilly Hotel on Pender Street and then the Invermay Hotel on Hastings Street. The Abbotsford Hotel on Pender Street was next. With extensive renovations, the pubs and hotels prospered, enabling Dick to sell the properties to invest in his real dream, Whistler.
About this time, Colleen and Dick purchased their waterfront home on Arbutus Road in West Vancouver where they began raising their four children, Joseph, Erika, Matthew and Britt, before moving to Whistler permanently in 1993.
While Whistler brewed in the background, Dick returned to the practice of law in the mid-1980s. His tenacity and audacity were readily apparent when he challenged the Court of Appeal for a reconsideration of its judgment on a medical malpractice case that Dick had lost on appeal, telling the court that they had failed to grasp the issues and missed essential facts (Menzies v. Harlos, 1989 CarswellBC 103). The court was unpersuaded that they had overlooked matters of significance, much less that they did so in such a way as to grant a rehearing. Few before or after have taken on this challenge.
But it was Whistler that really was in Dick’s vision. He was a pioneer who helped Whistler realize its potential as a world-class resort destination. He was among the earliest investors in the garbage dump that was to become the pedestrian village. He opened the Fitzsimmons building in 1979 with its restaurant, Stoney’s, making sure that the family had a condo in the building. They were the only ones in Whistler Village that first Christmas. When sky-high interest rates made selling off the commercial space impossible,
Dick responded to a request to take over construction of the Carleton Lodge. He took over the commercial space and opened the Longhorn Pub in 1981. The name was inspired by a stock certificate that Dick had kept on his desk for years. A friend had convinced him to invest in the company of the same name, only to see the investment drain to zero in no time. Dick kept the certificate as a reminder to “always look down before you look up”. Dick went to France to encourage Whistler as a World Cup venue and his vision put volleyball courts, concerts, bike races and softball on the Whistler scene. Because of his business acumen and, perhaps more importantly, because he was a fair and reasonable individual, Dick’s business empire in Whistler grew to become the base for the powerhouse Gibbons Hospitality Group that his son, Joey, now leads. The Gibbons system for restaurants and pubs encouraged by Dick to countless employees has now gone on for use successfully by these former employees in their own popular establishments.
Dick was devoted to community service throughout his life. He always looked for ways to give back by supporting people and causes in which he believed. He made numerous donations to the Vancouver General Hospital Foundation and to UBC, where he had an endowed fund set up in his mother Mary’s name to help students from the Sea-to-Sky corridor, Nelson and Burnaby attend university. He was a director and president of the Whistler ski club, fundraiser for Alpine Canada, president of the parents advisory for Whistler Secondary School, and director and president of the B.C. and Yukon Hotel Association. In the latter role, he was instrumental on the liquor committee to influence provincial liquor policy for over 20 years. As the president of the W5 Foundation, Dick secured a long-term commitment to host the men’s World Cup races in Whistler each December. In 1997, Dick received the Whistler Chamber of Commerce Citizen of the Year award.
Dick “gave us so much to aspire to” as summarized upon his death by his son, Joey. He had “amazing business judgment” and “incredible instincts for business” according to his longtime lawyer, Graham Phillips. He was always scrupulously ethical and had incredible capacity. A law degree was a flexible tool in Dick’s hands. He died at age 80, at his home with his family at his side, just as he wished.
Hon. Janice Dillon and Bryan Davis
Paul & Company
WHEN CONSIDERING MEDIATION, EXPERIENCE COUNTS
With over 900 mediations and a career spanning four decades, David Paul, K.C. has a proven record of results resolving disputes in diverse legal areas:
F Family Law
F Civil Litigation/Personal Injury
F F Estate Disputes (including the estates of Indigenous Persons) Construction Disputes
Court delays and the high cost of litigation should be pointing you and your clients to a mediated settlement. David Paul can help parties resolve matters effectively in person or in an online forum, lowering costs for all parties, while still maintaining confidentiality.
F Over 36 years of courtroom experience
F 29 years of mediation experience
F Modern, secure technology emulating face to face communications at any location
F Competitive rates
F Mediation facilities available
NEW JUDGES
By R.C. Tino Bella
The Honourable Justice Gareth Morley
Some people have the same nickname follow them through life. In middle school, when delivering pizzas or driving a cab or during a quarter century working for the BC Ministry of Attorney General’s Legal Services Branch, Gareth Morley’s colleagues and acquaintances all seemed to settle on “the professor”. This was a tribute to his unruly hair and wide-ranging knowledge, although not necessarily his situational awareness. Thoughtful, patient (usually), and a team player (always), Gareth always seemed most at ease when he was explaining something.
Gareth was born in Toronto, but had the sense to move to Victoria in 1974 at the age of three. His father, Terry Morley, had received an offer to teach political science at the University of Victoria, and went on to be a lively and opinionated observer of the B.C. political scene. His mother, Jane Brewin Morley, articled with Brian Smith at Pearlman Lindholm before starting a law firm with her brother (and later Member of Parliament) John Brewin, Bill McCallum (later a master, as they were then called) and Bob Milne. But while there was certainly a family precedent, and lots of embarrassing parental pride in his precocity, there was also some doubt that he would successfully manage anything as practical as law.
After Gareth graduated from the U of T law school in 1997 and finished the (then) endless articling/bar admission process in Ontario, he decided to come back to British Columbia. After a brief stint in private practice, he ended up in the Legal Services Branch by the summer of 1999 and stayed there until his appointment to the bench 24 years later. While at the Legal Services Branch, he played the roles of litigator, quasi-manager, legislative counsel and advising solicitor and generally got to know practically every-
one. He had the benefit of wonderful mentors and, in his turn, got a chance to see new generations of lawyers develop.
Gareth was always happy to share his knowledge and views. His opinions were reasonable, considered and usually entertainingly delivered. In addition to his busy practice with the Ministry of Attorney General, Gareth published several articles, some on legal subjects and some purely opinionated, many of them in Inroads, the Canadian Journal of Opinion. He also co-wrote and co-edited the looseleaf Government Liability: Law and Practice, first published in 2007.
Gareth was very involved in the development of civil forfeiture law in the province. He was lead counsel for British Columbia’s intervention in Chatterjee v. Ontario , 2009 SCC 19, which upheld the constitutionality of Ontario’s Civil Forfeiture Act. Other foundational forfeiture cases Gareth was involved in included British Columbia (Director of Civil Forfeiture) v. Onn, 2009 BCCA 402; British Columbia (Director of Civil Forfeiture) v. Rai, 2011 BCSC 186; and British Columbia (Director of Civil Forfeiture) v. Flynn, 2013 BCCA 91. For many years, Gareth played a leadership role within the legal team representing the Director of Civil Forfeiture. Former team members remember Gareth as protective, kind-hearted and philosophical. He was always available with an open mind and guidance as legal questions arose. He loved debating contentious strategic decisions and did not shy away from confronting or challenging positions.
He then spent several years developing his skills as legislative counsel, working in the Office of Legislative Counsel, where he made his mark on the laws of British Columbia as one of the “Guardians of the Statute Book”. While there, he made time to complete an LL.M. at Osgoode Hall Law School, with a specialization in constitutional law. After the retirement of his esteemed colleagues Jennifer Button and Vick Farley, K.C., Gareth joined the team of counsel advising on constitutional and administrative law matters, both as an adviser and as an advocate.
Gareth’s maternal family was active in labour politics going back to the 1930s. His father, after an early career as an organizer for the United Steelworkers of America, had a more critical attitude but had an encyclopedic knowledge of obscure labour songs. Gareth got back to his roots when he became active in the BC Government Lawyers Association, ultimately as its president from 2019 until appointment.
He was a passionate representative of his fellow lawyers in that capacity. His legacy is one of courageous and compassionate leadership. He never lost sight of the collective goals or the importance of standing by individuals in whatever challenges they faced.
He would always note that his most significant contributions were made collaboratively with his colleagues and was quick to acknowledge that he was part of a collective. As a public sector lawyer, working on behalf of the Attorney General with his colleagues, there is a crucial but usually invisible role in ensuring that government acts in accordance with the law. He enjoyed working with so many people who were similarly dedicated to that work.
During COVID-19, Gareth co-taught two terms of Advanced Constitutional Law (Framework and Federalism) at the Thompson Rivers University Faculty of Law with his spouse Melanie Mortensen. The hybrid class format bridged the distance from Victoria to Kamloops.
Above all, Gareth sought to make sure his children, Leda, Mikias and Yohannes, remained a priority, no matter how busy he was. When his children were young, he sought to be an involved parent, taking on practice areas that allowed him to be home and more available. We know he takes so much pride in the adults they have become.
People in British Columbia are indeed fortunate that Justice Morley is serving on the Supreme Court of British Columbia.
The Honourable Justice Christopher Greenwood
Late in the evening on February 28, 2024, Chris Greenwood received “the call” appointing him to the Supreme Court of British Columbia. Chris was in Whistler at the time, having just finished drafting another factum, and looking forward to taking a few days off to ski with friends.
The ski season to that point had been rather disappointing; however, after “the call” and perhaps not coincidentally, Whistler was blessed with the biggest snowstorm of the season. The ski conditions in the ensuing days were phenomenal. Chris’s relentless pursuit of fresh powder, on the steepest faces, was only marginally slowed by the many phone calls and messages he received congratulating him on his appointment.
Although born and raised in Vancouver, Chris has deep personal and familial connections to Whistler that date back to long before there was a
ЖЖЖ
road from Vancouver. His great-grandmother, grandmother and mother all spent significant amounts of time there. For as long as he can remember, Chris has been travelling to Whistler to enjoy the great outdoors. From a young age, his mother J’Anne took him on long hikes where he attempted to keep up with her. Today, Chris enjoys those long hikes and skis as many days as time and his body allow.
Both of Chris’s parents have had a significant influence on his development and are to a large degree responsible for his appointment to the bench. J’Anne is obviously intelligent and articulate. She is well educated and was a teacher and librarian before her retirement. She still spends time in Whistler, where she skis, hikes and volunteers at the Whistler Nordic Centre. She is an inspiration to many, and especially to Chris.
Sadly, Chris’s father Murray passed away in 2000. This was a devastating loss as Chris and Murray were very close. Murray, like J’Anne, was also very athletic. He declined an offer to play professional football in favour of accepting a Rhodes Scholarship at Oxford University. Dr. Greenwood (Murray) was a highly educated constitutional historian who was a prolific writer of articles and books on Canadian legal history.
Growing up in the Greenwood household with his older brother Stew, Chris benefitted from both the intellectual and athletic environment. Dinnertime conversations were generally above his head, but through osmosis, Chris must have absorbed some of what was discussed as he credits his personal intellectual development to his upbringing. Athletically, Chris participated in nearly every sport, excelling in most. He played a pivotal role in University Hill’s 1985 Single A high school basketball championship, a significant accomplishment for a small school. His older brother Stew was three years older and contributed to Chris’s athletic development. In those days, Stew could run circles around Chris and punished him in the way that older brothers are seemingly born to do.
After high school, Chris attended UBC and in 1989 graduated with a degree in classical studies. While at UBC, Chris’s athletic endeavours continued, and he made the UBC football team in 1987. While he did not get much playing time, he does have a permanent injury to prove that he played. One rainy night, late in a game, he was hit hard before he was able to properly secure the ball. The point of the ball went between his fingers, separating his pinky from his hand.
After graduating from UBC, Chris decided it was time to become educated in the ways of the world. He purchased a one-way ticket to Europe and the trip turned into a seven-month odyssey. His travels took him to several countries on the European mainland as well as England, Northern Ire-
land, the Republic of Ireland and Scotland and, beyond that, Israel, Egypt, Turkey and the United States.
After returning to Vancouver, Chris became a letter carrier. It was while working for Canada Post that Chris met his future wife Michelle and her two sons Matthew and Wesley.
Eventually, law school beckoned and Chris decided to apply for the next fall’s class. When he looked into when he would need to register to take the LSAT, he discovered that the deadline was that very day. Within five hours of learning this, his application was completed and submitted, proving that he had the ability to comply with tight filing deadlines.
In September 1993, Chris’s four-year gap “year” ended, and he entered McGill law school. McGill was the only school Chris wanted to attend, following in the footsteps of his father who was a loyal alumnus. While at McGill, Chris was impressed by the calibre of his classmates and professors. At times, he wondered what he was doing there, especially during a September 30 snowstorm! In the end, he thoroughly enjoyed his time at McGill and is grateful for the legal education he received.
After law school, Chris was anxious to return to the mountains, water and the West Coast climate that best suited his outdoor-oriented lifestyle. Wanting exposure to public law, Chris was happy to accept articles with the Vancouver office of the Department of Justice (“DOJ”) where he gained experience in a wide variety of practice areas including criminal, tax, property, business and regulatory law. Chris was drawn to criminal law, and shortly after his call to the bar in 1997, he joined the criminal law section of the DOJ, later becoming the Public Prosecution Service of Canada (“PPSC”), where he remained until his appointment to the bench.
Chris had tremendous work experience at the PPSC. He was a trial lawyer on many cases in British Columbia and some in the Northwest Territories. Many cases were small, but most were large, complex prosecutions including several jury trials. In 2002, Chris handled his first two appeals in the B.C. Court of Appeal, both in the same week. Apparently, through some administrative oversight, two appeals scheduled to be heard in Victoria were not assigned and someone had to do them. No one else being available, he was assigned the files, even though he did not have the usual number of years of experience generally thought to be required. Not only did he succeed on both of those appeals, but in his estimation, the exposure to appeal work was an important part of his development as a trial lawyer.
For the past several years, Chris’s practice has focused mainly on appeal work. He has appeared on many significant appeals in British Columbia, the Northwest Territories and the Supreme Court of Canada. Chris has also
been heavily involved in legal education both within the PPSC and in the legal profession. For example, for over ten years Chris taught at the PPSC’s National School for Prosecutors in Ottawa. For many of those years, he was a vice-principal of the advanced program. Chris was a principal to several articled students and mentored many young lawyers. He was generous with his time and was always available to offer support, encouragement and assistance to his colleagues.
Chris was formidable counsel. Opposing counsel knew that his preparation, diligence, work ethic and knowledge would be difficult to match. But they also knew that he was tirelessly committed to doing the right thing. Outside the courtroom, Chris was steadfast in ensuring that Crown counsel’s ethical, legal and moral obligations were fulfilled to ensure that justice was attained. Chris’s emphasis on this extremely important part of Crown counsel’s role will benefit all who will now appear before him.
Along the way, Chris’s son Quinn was born in 2003. Justice Greenwood took nine months of paternity leave after Quinn was born, one of the first men at the DOJ ever to do so. Chris was keen to take that time to spend with his son, and as his then 14-year-old stepson Wesley naïvely remarked, “you’re getting paid to do nothing!” After returning to work, Chris juggled parenting with his complex trial work, causing Wesley to observe that he knew he would not become a lawyer because it was too much work. However, inspired in part by Chris, Wesley was called to the bar in 2020.
Constantly striving for work-life balance, which sometimes took great ingenuity, Chris continued to ski, work out and play pick-up basketball. In 2012, Chris, at the suggestion of his then and now colleague Justice Smith, signed up to run an ultra-marathon in South Africa. At the time he agreed to do it, he had never run more than seven kilometres! He successfully completed the ultra-marathon and ran several more marathons after that.
Chris was involved in coaching Quinn’s baseball and football teams over a ten-year period. In 2018, Chris was the head coach and offensive coordinator of the underdog Westside Warriors bantam football team, which won the BC Community Football Association provincial championship with Quinn as the starting quarterback. This was an incredible achievement and Chris is surely prouder of this victory than any case he successfully argued.
Chris’s experience, background and strong character traits make him well suited for his new role. His former colleagues were not surprised by his appointment because not only do they think that he has the intellectual capacity, but they know that he is compassionate and deeply committed to fairness. While they mourn the loss of a tremendous resource, they are extremely happy and proud to see him take this next step. Chris’s family
and “non-law” friends are all also proud of his achievement. While some may not know all that much about the legal system, they all know that Chris is fair and reasonable (except when it comes to stopping for lunch on a good ski day) and expect that he will be a good judge. There is no doubt that Chris will serve the people of British Columbia well.
The Honourable Justice Maegen Giltrow
On February 28, 2024, Maegen Giltrow was appointed to the Supreme Court of British Columbia. To this new role, Justice Giltrow will bring her sharp intellect and devotion to justice. She will undoubtedly continue to influence the law in this province as she has throughout her legal career.
Maegen comes from and now has her own small, tight-knit family. She grew up in Port Moody, the only, and much beloved, child of Peter and Janet Giltrow. Her father was a high school math teacher with a dry wit and pronounced suspicion of elitism. He passed on to Maegen his love of the ocean and a practical ability to tackle any project to which they set their minds. Maegen’s mother is a brilliant thinker and acclaimed academic, who retired from the University of British Columbia as senior associate dean of arts a few years ago. Her mother shared with Maegen a critical mind, interest in politics and history, and a love of art and Europe in the spring. Starting in Maegen’s teenage years, the family cherished time at Savary Island, with summers that included Maegen as a landtaxi driver, bumping Savary-ites and their bins along dusty roads. The Giltrow gathering spot, on the grassy edge of the sandy beach out front of her parents’ cabin, is a place where the world is contemplated, the beauty of the ocean and islands is enjoyed, prawns are counted, and gin and tonics are had at 4 p.m. on all but the busiest or foul weather days.
Following an undergraduate degree at Simon Fraser University, Maegen met her partner George in 1998. They travelled in Africa and have been together ever since. Maegen’s love of the sea took them from one coast to the other for law school at Dalhousie University (as well as side jobs at Nova Scotian oyster farms), and medical school for George. From her law school
ЖЖЖ
years, she maintains friendships, fond memories and flashbacks of cold winters this West Coaster had not yet experienced. Maegen excelled at law school and, luckily for us, decided to return to Vancouver to begin her career in law, starting with a clerkship for Madam Justice Southin and Madam Justice Rowles of the B.C. Court of Appeal. Maegen quickly gained the respect of these eminent jurists and cherished their mentorship and friendship well beyond her clerking year.
After the Court of Appeal, Maegen articled at Ratcliff, where she would go on to practise for almost all of her two decades as a lawyer. Greg McDade, K.C., was her principal and would remain her mentor for years to come. Maegen may not have had any choice in this, as Greg saw in Maegen a powerhouse who could stand alongside him and carry as much weight in pushing the law, arguing a case and pursuing the goals of his clients. He was not wrong. The two together brought precedent-setting cases to all levels of court. There was a sense of full circle when Maegen became the first-chair litigator and Indigenous practice group lead, with Greg an important part of her team.
Mainly through litigation, but also through policy work, negotiations and internal governance advice, Maegen dedicated her career to pursuing justice for her First Nations clients. She was committed to using the law to support their efforts to turn the tide of history and reverse the harm of colonial and state policy and discrimination. Her work touched on many issues, often focused on the interface of resource extraction and Indigenous rights and interests. The culmination of this work was the case she brought for a Treaty 8 First Nation challenging the provincial government for failing to account for the cumulative effects of resource development on the First Nation’s treaty rights. Having heard for years from her clients about their frustration and sorrow witnessing the “death by a thousand cuts” effect of oil and gas and forestry on the territory they relied on for their way of life, Maegen brought their claim to trial in the Supreme Court. The result was a significant win with a court declaration of a breach of Treaty 8 and a profound shift in how the province would have to manage industry in their territory. Only a few years after this precedent-setting decision, consultation and management for cumulative effects are regular features of First Nations–Crown relations.
Maegen was deeply committed to her work with First Nations on Indigenous child welfare. Maegen brought to this work all her best characteristics: deep listening and compassion, an understanding of social causes and the ways in which the law perpetuates harm even if unintended, and an ability to push for change using all the tools the law and policy have to offer. She worked with First Nations to consult with their communities, identify their
needs, draft reports and policy positions, and engage with government to improve how services were delivered in a manner that respects the history, needs and vision of Indigenous families. She advocated in court and through negotiations with the province and federal government. In the month she was appointed to the bench, the Supreme Court of Canada released its decision in the reference on the constitutionality of An Act respecting First Nations, Inuit and Métis children, youth and families. This decision upheld new federal legislation recognizing inherent Indigenous jurisdiction over child and family services. Maegen was co-counsel for an intervener in this case and goes to the bench knowing that change in the law to better support Indigenous families, children and communities is advancing, albeit slowly.
Maegen’s clients always recognized that they were represented by the fiercest and smartest of advocates. Maegen brought an honest empathy; an appreciation of how history, circumstances and structures could frame individual concerns; and a keen mind able to identify a legal path to achieve her client’s objectives. Maegen’s advocacy was recognized with an appointment as King’s Counsel in 2022.
Along the way, in addition to all her hard work and legal achievements, Maegen volunteered her time to numerous organizations. For example, she was a founding director of the Pacific Centre for Environmental Law and Litigation, which supports public interest environmental litigation, as well as a founding director of the Urban Indigenous Health and Healing Co-operative (Kilala Lelum). Maegen was also an elected director of a credit union and served as a board member of the Savary Island Land Trust for many years.
Maegen is a committed athlete, who spends many hours playing squash and tennis. There is little she sets her mind to that does not come to be. In the summer before articling, Maegen built her own cabin on Savary Island. This was no small feat, as it was largely the novice effort of Maegen and her good friend Mel, with advice and the occasional hand from long-time Savary residents. This beautiful spot nestled below red cedars is a haven for Maegen and a place where friends and family continue to gather to relax and read, swim in the ocean and enjoy George’s amazing cooking. Depending on the company, legal arguments and decisions could work their way into conversation.
Her partner George has been alongside Maegen through all the highs and lows, successes and challenges of life and the long days of a litigator. George has his own unique and powerful intellect and shares with Maegen a dedication to supporting people and communities facing challenge. George is a psychiatrist by profession but dedicates as much or more of his energy to
the well-being of his family. In 2008, Maegen and George welcomed their daughter Sonja. Now a teenager, Sonja is a natural and rising tennis player who, like her parents, is smart, funny, warm, at ease with herself and deeply connected to her family and friends. Maegen, George and Sonja are an extremely busy trio, each with their own interests and full calendars. Yet, they are always brought back together each day, and for extended periods at Savary, on surf trips to Tofino or on their annual trips to Crete to visit George’s family.
For the nearly 20 years we worked with Maegen at Ratcliff, she was an excellent colleague, a beacon of determination and a good friend. She is charming, witty, humble and always up for adventure. Perhaps influenced by the location of Ratcliff on Burrard Inlet, these adventures lent themselves to the ocean, sharing lunches with colleagues on the boat of her mentor John Rich, buying more than one not-always-seaworthy boat with her longtime legal collaborator and friend, and being convinced by another colleague that she should partake in monthly dips in the cold waters of English Bay. Maegen will be missed at the office and in after-hours escapades.
Maegen’s deep appreciation of the law and her strong sense of justice always have and will continue to guide her. We are all very happy for her and for the bench. Her appointment will benefit the court and the people of British Columbia.
The Honourable Judge Daniel Loucks
“No act of kindness, no matter how small, is ever wasted.” Undoubtedly, Daniel Loucks lives by those words. Funny, intelligent, thoughtful, kind and calm are but some of the words people use to describe Dan, who is also known as the really tall guy with a dry sense of humour.
On December 5, 2023, Dan was appointed to the Provincial Court of British Columbia and assigned to the Fraser Region with chambers in Abbotsford. His appointment was celebrated by all those who know him and have had the pleasure of working with him.
Dan was born in Montreal and grew up in a household speaking both French and English. He attended French-speaking schools until moving to ЖЖЖ
Ottawa in grade 9. After spending two years in Ottawa, Dan returned to Montreal to complete grade 11 and attend a CEGEP, a publicly funded college with a mix of programs, for two years, graduating in 1993.
While many people are certain about their career path after graduation, Dan was not one of them. He was unsure what his next steps were going to be or what educational path he wanted to pursue at such a young age.
What he did learn, however, was how much he loved playing guitar. When Dan was 18, he developed a strong interest in music. After only a couple of months of guitar lessons, he began teaching himself how to play not only the guitar, but also the bass guitar and the drums as well. He formed a band with a friend and, over the years, joined other bands as well. Dan enjoyed playing gigs at local venues in Montreal. Since his late teens, he has continued to write music, sing, play his original songs and record those tunes for others to enjoy.
While he was developing his musical talents as a young adult, Dan also attended Concordia University in 1994, taking courses in religious studies. He left the program as it was not something he wanted to pursue for his future. Instead, he chose to take some time off of school to work and figure out what he wanted to do with the rest of his life.
In 1996, Dan returned to Concordia University where he obtained a degree in political science. He did this three-year program in two years, graduating with distinction in 1999. It was during this time that Dan became inspired to pursue a career in law. So, with his impressive LSAT mark and post-secondary grades in hand, Dan moved to Halifax to pursue his goal of becoming a lawyer.
Dan attended Dalhousie’s Schulich School of Law from 1999 to 2002. While at law school, he played every intramural sport offered, including ball hockey, football, water polo, broomball—you name it, he played it. He has always been well-rounded and his time in law school was no exception.
During his studies at Dalhousie, Dan’s initial interest in corporate litigation waned and, fortunately for us, he developed a very keen interest in criminal law.
Dan volunteered at the criminal law clinic in his third year of law school, solidifying his interest in that area. He also volunteered with a community group that provided support and assistance for individuals serving jail terms of life imprisonment and were being released on parole. This volunteer program involved community meetings where ideas, support and guidance were shared with the goal of helping reintegrate individuals back into the community. Dan was directly involved in providing support and he gained valuable insight doing this work.
After completing law school in 2002, Dan moved to Toronto and articled for three defence lawyers: Gerald Logan, Jody Matthew and David Berg (now Justice Berg of the Ontario Court of Justice). Dan completed his articles and was called to the bar in Ontario in July 2003. He continued to work in the area of criminal defence for several more years. Dan defended all types of criminal cases, from fraud and theft to home invasion and attempted murder charges.
While Dan was building his defence practice in Toronto, he reconnected with his law school friend Jessica, whom he had met in his last year of law school. Dan and Jessica began dating and continued a long-distance relationship for some time. We are grateful to Jessica, as she is the reason for Dan’s move to the West Coast. In 2006, Dan closed his defence practice in Toronto and joined Jessica in British Columbia. They married in the Okanagan in 2009 and have been supporting one another ever since. Among other things, they enjoy spending time travelling, entertaining and socializing with family and friends.
Once he moved to British Columbia, Dan was hired by the BC Prosecution Service (the “BCPS”) in November 2006 and began working at the Crown counsel office at 222 Main Street in Vancouver as a front-line trial prosecutor. In 2008, he changed roles and was tasked with prosecuting repeat offenders.
In May 2009, Dan joined the Surrey Six prosecution team. Dan worked on that high-profile case for five years until the trial completed in July 2014. Afterwards, Dan worked in the Port Coquitlam Crown counsel office until July 2015, and then moved to the New Westminster Regional Crown counsel office to prosecute homicides and other major crime cases.
In March 2021, Dan joined the New Westminster Provincial Crown counsel office where he continued to prosecute a mixture of Provincial and Supreme Court matters until his judicial appointment.
While recognized by his colleagues regularly as a formidable prosecutor, Dan also received formal recognition in 2020 when he was presented a merit award by the BCPS for his incredible work.
During his 17 years as Crown counsel, Dan also became an invaluable member of the French prosecution team, which prosecutes cases all over British Columbia. Dan conducted numerous French-trial prosecutions including jury trials, homicides and other major crime matters.
Since 2009, Dan has been on the executive board for L’Association des juristes d’expression française de la Colombie-Britannique (“AJEFCB”), which is an organization of legal professionals involved in various capacities to foster access to justice in French in British Columbia, primarily
through general public education and language training. Dan was involved with the AJEFCB until his appointment in December 2023.
While Dan is certainly accomplished and learned in the law, it is Dan’s other qualities that are most important to his friends and family. Dan connects with people from all different backgrounds and experiences with his laid-back and non-judgmental approach. While working, Dan would regularly be dressed casually in jeans and a t-shirt in a sparsely decorated office. We expect that his judge’s chambers will be organized, tidy and have unadorned walls for years to come.
Dan loves good food and good wine. When living in Ottawa at age 14, Dan ordered some chicken wings and his palette has never been the same since. He has become a hot sauce connoisseur, able to engage in a lengthy discussion about peppers and hot sauce preparation. Over the years, Dan has developed over a dozen different types of hot sauces that he generously shares with others. In the lunchroom, Dan would often suggest one of his hot sauce creations to jazz up someone’s lunch. Although he is always happy to give his hot sauce away, there is little doubt that he could have a successful business if he were ever so inclined.
To his friends, Dan is known as a devoted husband, cool uncle, avid reader, musician, gamer, chef, baker and history buff. He enjoys sampling different wines and trying fried chicken recipes. He has perfected baking cheese biscuits, which are always in demand among his friends. Outside of work, you can often find him tinkering with gaming codes, doing a puzzle, trying out his culinary skills, listening to music, watching a documentary or taking a road trip. His future travel plans include travelling Europe and South America and embarking on many more road trips. Perhaps one day soon he will surpass the 13,000-kilometre road trip that he and Jessica took some time ago.
Whenever Dan is chatting with someone, you will be sure to hear laughter. His wit is sharp and his laughter is contagious. Dan would always check in on colleagues and lend a helping hand. He is invaluable at putting up decorations and reaching tall shelves. The office has not been the same since his departure for many reasons, including that step ladders are being relied on once again.
In all seriousness, Dan is a much beloved and greatly missed colleague. Our loss is a gain for the people of British Columbia. We know that Dan will always serve the people of this province with patience, compassion and integrity.
The Honourable Justice Sandra Sukstorf
Justice Sandra Sukstorf’s remarkable career spans over 40 years, marked by trailblazing achievements and dedication to service. Raised in Coniston, a small mining town near Sudbury in northern Ontario, she was one of six siblings. Driven by a desire for a free university education, she enlisted in the Canadian Armed Forces (“CAF”) through the Regular Officer Training Program.
In 1982, Sandra found herself at the forefront of history, entering one of the inaugural classes of women admitted to the Royal Military College of Canada (“RMCC”) in Kingston, Ontario. Four years later, she proudly graduated with an honours bachelor of arts degree in economics and commerce and then began her career as a logistics officer in Chilliwack. Throughout the years at RMCC, as well as during the early phases of her career, the women would make significant sacrifices to set the stage for future generations to follow.
In addition to her undergraduate degree, her additional academic achievements are extensive, earning an LL.B. from Dalhousie Law School, a master of defence studies from RMCC and an LL.M. from Queen’s University, where she focused on transnational and international criminal law. Her LL.M. major paper, titled “Preventing Human Smugglers from Abusing Canada’s Immigration System Act: A Review of Transnational Criminal Law, Immigration, Refugee Law, and Extraterritoriality of Canadian Law”, critically examined the federal government’s proposed 2011 legislation to crack down on human smuggling within the context of Canada’s international legal obligations.
Sandra articled for Boyne Clarke, Barristers and Solicitors, in Dartmouth, Nova Scotia, where she was originally called to the bar. Subsequently, she was called to the bars of Ontario and British Columbia. After completing her articles, she held a number of positions of increasing responsibility within Canada’s Judge Advocate General branch, where she enjoyed a diverse career working in administrative, criminal, operational and international law. Some of her notable work included the Directorate of Law (International), where she advised on North Atlantic Treaty Organization (“NATO”) issues and supported CAF witness testimony and the release of CAF information to the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”).
In 1999, Sandra was deployed to Sarajevo, Bosnia as a Legal Adviser to the Commander of the NATO Stabilization Force (“SFOR”). SFOR’s mission was to maintain a secure environment, prevent any escalation of violence and support the country’s post-war reconstruction, and included apprehending individuals charged with war crimes and transferring them to the ICTY in the Netherlands. Sandra also served as an adjudicator on the NATO Claims Commission, a tribunal for resolving claims against NATO.
In 2002, she was deployed on HMCS Algonquin , which was based in Esquimalt, to the Indian Ocean, Arabian Sea and the Persian/Arabian Gulf as part of Operation Apollo, Canada’s contribution to the United States-led campaign against terrorism. During this time, she served as the legal adviser to both the Commander of the Multinational Operation and the Canadian Naval Task Group. The primary objective of Operation Apollo was to prevent Al Qaeda and Taliban members from escaping Afghanistan to nearby countries via the sea
In 2004, Sandra retired from full-time service with the Regular Forces and transitioned to part-time service with the Reserves. She then accepted a position with a small privately held corporation in Sudbury, Ontario, working in the television and entertainment industry. Alongside this role, she maintained a legal practice specializing in entertainment law, labour law and criminal law. During this time, her dedication to public service remained steadfast, as evidenced by her active involvement with several public boards and educational institutions in northern Ontario.
Despite her success in the corporate sector, in 2008, during the height of the Afghanistan conflict, she was invited back to full-time military service. She accepted that invitation, serving as a legal adviser to the Strategic Joint Staff. This directorate advises the Chief of Defence Staff and the federal government on strategic military operational matters.
With her extensive expertise, particularly in the field of international humanitarian law (“IHL”), Sandra became highly sought after as an instructor and panel member. Notable highlights of her engagements include instructing over multiple years at the International Committee of the Red Cross Law Conference in Vienna, Austria, as well as in the IHL courses for the Canadian Red Cross in Ottawa, Toronto and Vancouver. Additionally, she served as a panelist for the Citizen Summit on Women in Armed Conflict at the University of Toronto, and she taught Law of the Sea and Naval Operations to international forces in Sydney, Australia.
During her tenure as a military lawyer, Sandra’s professional identity was marked by her adeptness in resolving intricate legal questions. Her international deployments to Bosnia and Southwest Asia placed her at the
forefront of evolving law. While working in Ottawa, she played a crucial role in drafting rules of engagement for the 2011 military intervention in Libya, negotiating urgent Status of Force Agreements or memoranda of understanding for military operations, and advising on the use of force during the 2010 Olympics in Vancouver. In each of these capacities, she operated at the forefront of planning and establishing legal frameworks for military operations.
In the summer of 2007, modern piracy off the coast of Somalia, where the Canadian Navy was deployed, became a substantial threat for merchant vessels, attracting urgent attention from the international community. In response, a group of like-minded nations, under the auspices of the United Nations, established the Contact Group on Counter Piracy off the Coast of Somalia. Sandra represented the CAF’s interests at the inaugural legal working group tasked with establishing legal mechanisms to deter piracy and ensure the safe transit of commercial vessels through the region.
A defining moment in her career was when she was promoted to the rank of commander at the base of the Vimy Ridge Memorial in France. This poignant location held deep personal significance for her as it was where her grandfather and other family members bravely fought during World War I.
In February 2013, at the final Diamond Jubilee Gala, in Toronto, in recognition of her significant contributions to Canada and her outstanding personal achievements, she was awarded the Queen’s Diamond Jubilee Medal in a ceremony hosted by the Honourable David C. Onley, Lieutenant Governor of Ontario, and Mrs. Ruth Ann Onley, who were joined by a number of prominent Canadians as distinguished medal presenters.
In December 2014, Sandra was inducted as an Officer in the Order of Military Merit by the Governor General of Canada. This order acknowledged her exceptional service, commitment and unwavering dedication over the course of her long career.
In February 2017, in further recognition of her legal experience, the Governor in Council appointed Sandra as a military judge. At the time of that appointment, Sandra had just retired from full-time military service and was working as the Manager of Investigations, Monitoring and Enforcement for the Law Society of British Columbia in Vancouver.
The analytical strength drawn from her prior legal work and study proved invaluable when she assumed the role of a military judge. In that role, she adeptly handled unique cases and applications before her. One court martial of particular note was the Bombardier Cogswell case, which garnered worldwide media attention due to its unprecedented nature. The case involved a soldier who baked and distributed cannabis-infused cup-
cakes to her colleagues while they were on a live firing range for artillery exercises, a situation that had no precedent.
As the trial judge in R. v. Ryan, 2018 CM 2033, she navigated a complex situation where she had to choose between conflicting decisions from the Court Martial Appeal Court. In reconciling the conflicting decisions, she examined the practical implications of following the competing approaches and the resulting consequences. Her approach gained recognition from the Supreme Court of Canada in the landmark decision in R. v. Stillman, 2019 SCC 40.
Outside of her professional life, Sandra has always been an avid athlete. During university, she played varsity tennis, badminton and curling. She continues to maintain an active lifestyle. She has won numerous CAF hockey, tennis and running championships and medals, has run the Boston marathon 11 consecutive times, has completed all six of the Abbott World Marathon Majors and will represent Canada at the World Age Group Triathlon Championships to be held in Spain in October 2024.
Despite her demanding and challenging career, Sandra has always prioritized her family. She is a proud mother, grandmother and wife. Her family remains a source of strength and inspiration to her as she embraces her role as a justice of the B.C. Supreme Court. Sandra’s career is a testament to her commitment to public service, legal expertise, personal tenacity and dedication to her family.
NEW ASSOCIATE JUDGE
By R.C. Tino Bella
Associate Judge Lawrence Robinson
On February 12, 2024, Lawrence “Lanny” Robinson was appointed as an associate judge of the Supreme Court of British Columbia. Lanny is the first person to be appointed into the position of associate judge since the title for this position was changed on January 15, 2024.
Lanny was raised in the Village of Clinton, British Columbia. As one of Clinton’s favourite sons, Lanny developed traits possessed by many residents of areas founded as a direct result of Cariboo Gold Rush—namely, resilience, a pioneering spirit and a sense of humour. Lanny has consistently worn his rural upbringing like a badge of honour and his relatability consistently endeared him to clients during his nearly 22 years in private practice.
Growing up in Clinton, Lanny dreamed of joining the mill and living out his days in the idyllic pastoral tranquility of his hometown. However, Lanny’s ambition, strong academics and curiosity ultimately brought him to the hallowed grounds of Simon Fraser University in Burnaby. Concurrently, he retained employment as a bartender at Punchlines Comedy Club, where he dutifully memorized comedic performances and gladhanded with celebrities. Stories from these times, as well as excerpts from the aforementioned performances, would regale private practice colleagues for years to come.
While at SFU, Lanny was spurred into writing the LSAT. Despite limited preparation, Lanny achieved a near-perfect score and would later be accepted to law school at the University of British Columbia. Without much foresight, Lanny’s journey into law had begun.
During his accomplished law school career, Lanny was described by his classmates as bright, funny and popular. He won the Robert M. Guile, QC
Memorial Debate and was selected to represent UBC in the Laskin Moot. Graduating near the top of his class, he was also bestowed with the honour of hosting the graduation dinner, where he served as the voice and face of a new generation of future lawyers.
Lanny was called to the bar as a member of Alexander Holburn Beaudin + Lang LLP in 2002. During his time at AHBL, Lanny succeeded in and out of the courtroom, developing a thriving and varied practice, as well as deep, personal relationships with his colleagues.
Lanny’s former colleagues describe him as being tough, fair and impartial. If one ever wanted objective, unbiased advice, Lanny was the person to whom you would turn. While he has an unparalleled wit and sense of comedic timing, Lanny also has the innate ability to consider matters thoughtfully, without pretense, bias or favouritism, and to provide a logical, common-sense point of view. All of these qualities will serve him and the courts well as he occupies his new role as associate judge.
Lanny’s unparalleled ability to contemporaneously display humour and fervent written and oral advocacy made him revered by students, associates and partners alike. Many past and current AHBL associates will attribute their written and oral advocacy skills to the contributions, teachings and mentorship that Lanny supplied in abundance.
To many in and outside of AHBL, Lanny became somewhat of a legal superhero. While Lanny frequently maintained his modesty, this status was not lost on him either. This is exemplified by Lanny’s response to an unanticipated testing of the British Columbia Ministry of Emergency Management’s emergency alert system during an examination for discovery. The transcript from that discovery reads in part:
MR. ROBINSON: We’re all getting an emergency alert right now, [witness].
WITNESS: Emergency alert?
MR. ROBINSON: If you’ve got a smart phone, you’re getting an emergency alert right now. As much as I would like for you to continue this discovery, I better go out there and see if the world needs me right now, throw on my cape.
In between rescuing cats from trees and helping the elderly cross the street (or so the writer assumes), Lanny has contributed significantly to legal education and his community writ large. Concurrent with his management of a laborious, fast-paced legal practice, Lanny taught business law at Langara College and frequently presented for the Continuing Legal Education Society of British Columbia and UBC’s Sauder School of Business. He also acted as chair of the Employment Law subsection of the Canadian Bar
Association, as well as a director of the Port Moody Foundation and the Kekinow Native Housing Society.
Outside of his legal practice and volunteer work, Lanny is a devoted husband and father of two children. Lanny has been married to his wife Lalita for 25 years, and their daughters, Jane and Lucy, are their pride and joy. Jane and Lucy have also served as motivating factors for Lanny becoming one of the most ardent advocates for female soccer in British Columbia.
In addition to his love of soccer, Lanny is also a lifelong supporter of the Vancouver Canucks. Like many fans of the Canucks, Lanny’s protracted and persistent support has brought him equal parts joy and sorrow. Nevertheless, Lanny’s office at AHBL, which was adorned with multiple photographs of Vancouver Canuck teams of old, was always open to those who wanted to discuss line combinations, goalie selections, tactics, trades or the best Canucks of all time.
British Columbia’s move to appoint Lanny to the bench is akin to how Brian Burke, the former general manager of the Vancouver Canucks, orchestrated the series of transactions necessary to draft Daniel and Henrik Sedin second and third overall in the 1999 NHL draft. Simply put, Lanny’s appointment solidifies the foundation of the bench for years to come. He brings optimism to those that look for pragmatism, objectivity and meticulous analysis within the judiciary. This serves as a silver lining for Lanny’s AHBL colleagues, who will unquestionably miss his personal and professional contributions to the firm.
As Lanny’s judiciary journey begins and his period of private practice ends, many will ponder the best way to deal with their grief. In this respect, the writer is reminded that, during his time at AHBL, Lanny quipped that he wanted his obituary to read as follows:
Lanny did not have any interests or hobbies outside of work. In lieu of flowers, please send donations to the Law Society of British Columbia.
CR Lawyers LLP is a well-established full-service law firm with offices located in four Vancouver Island communities in downtown Campbell River, Comox, Courtenay and Ucluelet.
We are looking for a litigator and a solicitor of any experience level who wants to join a busy practice and live in a vibrant coastal community.
A life outside of practice matters. We want our associates to have the opportunity to succeed professionally and have time to enjoy their interests. We offer our associates a positive and supportive working environment, a competitive salary & vacation package, and a benefits program that includes health & dental benefits.
Please submit your resume today.
ATTENTION
VALERIE TREVIS trevis@crlawyers.ca
LETTER TO THE EDITOR
Dear Editor,
Re: “Contributors” (2024) 82 Advocate 319
By R.C. Tino Bella*
On the “Contributors” page of your March 2024 issue, you have mistakenly styled me as “Thomas S. Woods, K.C.” I thank you most humbly for the compliment, but I must correct the record; I am the only surviving member of that most exclusive of fraternities, namely, The Former Editors of the Advocate Who Were Not Silks.
Yours, &c., T.S. Woods
* 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.
•
GEIGER LAW PRACTICE SALES
NEW
ON MARKET – LOWER MAINLAND
Highly profitable small firm employing multiple lawyers in litigation and solicitor practices with growing profits of over $1.5m annually; transferable assets and brand not linked to partners’ identities.
• COQUITLAM B.C. – SOLICITOR’S PRACTICE –New on market
This long-established solicitor’s practice has a fairly even split between Real Property (Residential, Commercial and Development Law), Corporate/Commercial and Wills/Estates.
Wills and Estates is presently in growth mode and there is great potential for expansion in all other areas of practice as the seller is turning away work.
The office is centrally located in the Tri-City area. The seller owns the premises and is prepared to lease back to the purchaser, as well as to provide assistance through a transition period.
• DOWNTOWN VANCOUVER FAMILY LAW AND SOLICITOR’S PRACTICE
• WEST KOOTENAY SOLICITOR’S PRACTICE
• CENTRAL ALBERTA – 2 SOLICITOR’S PRACTICES
SURREY CENTER MALL PRACTICE FOR SALE
Busy real estate, desk order divorce, wills and estates practice for sale, with mentoring and bank financing options for entrepreneurial solicitor/litigator. Three lawyer offices with 5 staff stations. Free parking and adjacent to Skytrain and bus station.
Contact: info@surreylawoffice.com
TOFINO WATERFRONT
Well established busy award winning South Okanagan General Practice seeks an experienced Family/Litigation Lawyer and a Real Estate/Estates Solicitor with a view to the future and possible Partnership/Ownership opportunities for the right candidate(s).
CONTACT
Waterfront house for monthly lease during the summer. This ten year old house is on a peninsula between Cox Bay and Chesterman Beach, and has walk-on beach access. The house has stunning 200 degree views to Frank Island and Lennards Lighthouse. Two bedrooms, two bathrooms and enormous deck close to water level. Ideal for two couples. No sub-leases or rentals allowed.
Part I of this article1 told of how an Englishman named Edward Wilson restyled himself “Brother XII” and started a spiritual cult near Nanaimo in the 1920s, using funds donated to the Aquarian Foundation, a society set up with the help of Vancouver lawyer Edward Lucas. Part II2 focused on a battle over control of the society and its funds. The dispute had seen the arrest of the society’s secretary treasurer, Robert England, and those seeking dissolution of the society outmaneuvered by Brother XII who appointed more governors to vote the resolution down. The thwarted governors next bailed England out of jail and had Brother XII arrested for misappropriation of funds. Brother XII was able to make bail, but the assets of the society were frozen and Brother XII was prohibited by injunction from holding meetings of the society. The governors, led by Edward Lucas, next petitioned the Lieutenant Governor to dissolve the Aquarian Foundation on the basis that the funds were being mismanaged. Of course, they threw in an allegation of adultery against Brother XII for good scandalous measure. By now, the press was starting to take notice.
For example, The Province ran a front-page story that included: CULT’S REVOLT EYE-OPENER TO OLD NANAIMO. People of Island City Thought at First That Aquarian Foundation Had Something to Do with Fish, But Now They Know Otherwise, and the Happenings at Cedar-bythe-Sea Furnish Biggest Sensation in Years.
Citizens of Nanaimo are watching with keen interest the struggle that has centred around the Aquarian Foundation by the seashore in the maple groves of Cedar district, which is reflected in charges and countercharges in the courts of British Columbia. In the seventy-five years since
* D. Michael Bain, K.C., is the editor of the Advocate and for this article he is indebted to the good work of John Oliphant, Brother XII: The Strange Odyssey of a 20th Century Prophet (Halifax: Twelfth House Press, 2006) and Justine Brown, All Possible Worlds: Utopian Experiments in British Columbia (Vancouver: New Star Books, 1995).
the coal mines of Nanaimo were opened, there have been many sensations and excitements in the Coal Capital of the Pacific Coast – but this war among the devotees of a new cult is something novel and entertaining and its progress is being observed with attention. The whole thing is so unexpected and surprising that the good people of Nanaimo do not quite know what to make of it.
On October 30, 1928, Brother XII’s preliminary hearing was held. The Nanaimo courtroom was filled with spectators keen to catch a glimpse of the cult leader. T.P. Morgan was the prosecutor while Frank Cunliffe was defence counsel. Magistrate C.H. Beevor-Potts read the charge that Edward Wilson “on or about August 28th in the said county of Nanaimo unlawfully did steal $13,000, the property of the Aquarian Foundation.”
The prosecution’s first witness was Robert England, the former secretarytreasurer of the Aquarian Foundation who himself had been accused of absconding with Aquarian Foundation funds. England was asked about the purchase of the land on Valdes Island. When the questioning led to whether Mr. Wilson (Brother XII) was living on Valdes Island in a log cabin on his own, defence counsel, Frank Cunliffe, objected on the basis that the answer was not relevant to the case. Morton explained to the Magistrate: “I wish to show that in no way can it be shown that the monies that Wilson was spending on that island were being spent for the benefit of the Aquarian Foundation. I say that Wilson was using that island for his own purposes and not for the purposes of the Aquarian Foundation—and that those purposes were immoral purposes!”
Beevor-Pots responded: “I am going to rule that out. It is doubtless very sensational and would make good copy for the newspapers, but I cannot see that it has anything to do with this case at all.” Nevertheless, Morton remained determined to reveal Brother XII’s affair with the still-married Myrtle Baumgartner. He managed to succeed when England gave a long description of a conversation he had with Brother XII about a trip he had taken from Seattle to Chicago.
He told me that … he had met a woman and that they had been together and that they had both taken the “Sixth Initiation.” He said that he himself was the reincarnation of the ancient Egyptian god named Osiris. The woman was the reincarnation of the goddess Isis. There had been a conception, and a son would be born to them who would be the reincarnation of Horus. The object of this settlement on Valdes Island was that as the result of the union between the reincarnation of Osiris and Isis, they would bring into the world a son who would be the reincarnation of Horus, who in the year 1975 would be a world leader.
Cunliffe again objected, and again Beevor-Potts sustained the objection. But the courtroom had fallen completely silent and the press was paying close attention. The next day’s edition of The Province included a front-page
story that focused less on the cross-examination of England about the sources of various funds and more on the affair between two Egyptian deities. The report claimed that the romance “linked the sunny sands of ancient Egypt and the blue waters of the Nile with the wooded slopes of Valdes Island and the dancing waves of the Strait of Georgia.”
According to Victor B. Harrison, a lawyer who attended the preliminary hearing on behalf of the Attorney General, at one point during the proceedings Brother XII used his dark magical powers against Thomas Morton who, while in the midst of addressing the court, suddenly became silent, started to shake and collapsed on the floor. This was supposedly followed by three or four other people sitting in the courtroom also collapsing where they sat. At this point Brother XII stepped forward and shook Harrison’s hand and told him, “You are going to be appointed by the Crown to prosecute this case at the assizes.” Magistrate Beevor-Potts, meanwhile, attempted to restore order but was reduced to growling like a dog as he too had fallen under Brother XII’s mystical spell. Sadly, the court transcripts do not support Harrison’s recollection, although Brother XII’s prediction that Harrison would be appointed to prosecute the case at the assizes did come true.
The preliminary hearing continued on November 1, 1928, with Cunliffe calling his star witness, “Lady Mary” Connally, who travelled by train from Reno, Nevada to Vancouver, and then by ship to Nanaimo. She testified that her donation had been made to E.A. Wilson (Brother XII) personally rather than to the Aquarian Foundation, but that he had directed her to make the draft out to the Aquarian Foundation. She explained that the funds were to assist with any aspect of the work being done by Brother XII. Beevor-Potts did not commit the matter to trial, but instead bound Brother XII over on bail of five thousand dollars with an appearance set for the fall assizes to answer any indictment should the Attorney General prepare one.
On November 9, 1928, Chief Justice Morrison dissolved the injunction freezing the Aquarian Foundation funds and preventing Brother XII from accessing them. The Chief Justice was of the view that the Aquarian Foundation should have been joined as a party, and as it was not represented, the injunction should be dissolved. Mrs. Connally, meanwhile, wrote a letter to the Attorney General asking him to intervene on her behalf to prevent her from having to endure “another courtroom ordeal”. She told him she was coming to Victoria and would like to meet with him for half an hour. If such a meeting took place, there is no record of what transpired at it. When the fall assizes arrived on November 20, 1928, Robert England could not be located. Edward Lucas stood to forfeit the bail he had put up for England, and without his evidence, the charge against Brother XII was likely to be dismissed.
Remarkably, the next day, when Chief Justice Morrison announced that England, who could still not be located, would be tried in abstentia, Lucas stood up and asked to provide some material evidence to the grand jury. He was permitted to do so, and after his private discussion with them, they returned to the courtroom and announced a verdict of “No Bill” against Robert England. In other words, the grand jury refused to charge England. Lucas would get the bail money back. However, the same jury returned the same verdict against Brother XII the next day, on the basis that the assize court should not be taken up with such civil matters. England meanwhile had apparently fled the jurisdiction “carrying $2,800 on his person” according to The Province. His departure was something of a mystery as he had left his personal belongings at the home of Edward Lucas. He was variously seen getting on a bus out of town or on a boat bound for Vancouver. Rumours swirled around Nanaimo that England had been dumped overboard possibly on Brother XII’s instructions. But whatever happened, England was never heard from again and a body was never found.
Brother XII, meanwhile, had been accused by some of his followers of bending both the law of God and the law of man to fit his sexual desires (his affair with Myrtle Baumgarten). He responded to these charges by asking: What is law? Law is the aggregate of the CONDITIONS of sentient existence in A GIVEN FIELD of consciousness … Law is not a rule of conduct but a condition of existence, and it varies with the range of consciousness. … The disciple must be governed by and submit to the Law imposed by the Spirit or Higher Self upon the outward physical man. Thou shalt keep the Law within thine own heart and within thy mind—the Law of thine own being.3
On December 12, 1928 at the Parliament Buildings in Victoria, Premier Simon Fraser Tolmie and members of the provincial Cabinet met to hear the application to dissolve the Aquarian Foundation. Having read the materials submitted with the petition for dissolution, they heard arguments from Edward Lucas, who argued that Brother XII’s teachings represented a threat to public morality and that he was trying to start a religious war in the United States (which was more or less true). Frank Cunliffe spoke against the application, stating that a forced dissolution would violate the rights of the society’s members and there was no legal basis for such a drastic measure.
During the weeks that followed, one of the members of the Aquarian Foundation, a 36-year-old businessman from Hollywood, California named Thomas Smith, was charged with rape and the society was once again in the news in a way that did not endear it to the locals. Nevertheless, the Registrar of Companies, H.M. Garrett, advised the British Columbia government that dissolving the foundation because of its political or religious tenets would be a mistake given that the society’s objects were perfectly legitimate.
Regardless of the society’s objects, Brother XII had some of his own. Osiris’s affections for Isis had waned. Myrtle Baumgarten had suffered a second miscarriage and Brother XII sent her away accusing her of going “insane”. He also managed to secure “important work” for his wife, Elma, in Switzerland which just so happened to coincide with his growing interest in Mabel Skottowe, a 39-year-old divorced redhead from Lancashire, England. She was an ardent student of the occult and adopted the name Madame Z. In 1929, she moved in with Brother XII, becoming his personal secretary and lover. Brother XII presented her to those helping build the colony as his equal: “She is my eyes, she is my ears, she is my mouth … her orders are my orders. Whatever she says, you are to take as coming from me.” She was also short-tempered and demanding and, rumour had it, a dominatrix.
It was not until November 15, 1929 that the Cabinet passed an order-incouncil dissolving the Aquarian Foundation. Each landowner at Cedar was given title to his own property with a small portion of land reverting to the Crown. What remained of the funds was returned to the original donors. The B.C. Provincial Police, however, took a keen interest in the growing community on Valdes and now DeCourcy Island. Despite investigations, no legal basis was found to prosecute Brother XII, who very suddenly announced that he and Madame Z were leaving for England: We are passing through the final stages of that long fight against those who have sought to destroy this Work. Stand firm and loyal; continue to support our Cause as you have done in the past – now, if ever, our need is great: it is the moment of intensest [sic] struggle before the final Victory. Again I say, STAND FIRM – I leave to establish that which shall prove a sure refuge for you all.
Brother XII and Madame Z spent their time in England relaxing and publishing letters for occult magazines in London. After a few months, they found themselves in Brixham where they purchased a 62-foot sailing trawler and christened her Lady Royal. They left Brixham in late March and arrived in Las Palmas in April before crossing the Atlantic for the Caribbean. In July the Lady Royal sailed through the Panama Canal and 71 days later they were rescued after being found adrift 600 miles southwest of San Francisco. News of the rescue made the papers in British Columbia and on November 5, 1930 the Lady Royal arrived at Roche Harbour. The next day, the pair had the trawler towed to DeCourcy Island.
Upon arrival, Brother XII removed from the Lady Royal a number of parcels of different sizes wrapped in black oilcloth which he promptly hid around the island. Madame Z, meanwhile, stood on the beach watching for government boats, afraid that an immigration vessel would seize the Lady Royal before it was unloaded. The next day, they took the Lady Royal into Nanaimo to pass a customs inspection. Over subsequent weeks, Brother XII
would load a launch and make nighttime trips to the main shore of Vancouver Island meeting up with an automobile flashing its headlights. It has been suggested that he was smuggling drugs.
Brother XII returned to DeCourcy with a somewhat different personality, one that was irritable and controlling and included aspects of paranoia. He got into yelling matches with adherents to his sect and dismantled an advisory council he had previously established. He also started throwing followers off DeCourcy Island and randomly banishing people from the colony altogether. When his wife, Elma, returned from Switzerland he sent her away to North Vancouver. Both he and Madame Z engaged in psychologically controlling and abusive behaviour towards their followers, forcing people to work from two in the morning until midnight, for example, and turning individuals against one another.
In mid-1931 by public announcement in The British Columbia Gazette, Brother XII revealed that he was renouncing his birth name of Edward Arthur Wilson and adopting the name Amiel de Valdes. Six months later, Madame Z changed her baptismal name of Edith Mabel Rowbotham to Zura de Valdes. Money, meanwhile, continued to pour in from monthly donations and the occasional donation of somebody’s life savings. Brother XII’s banking was done by a man named Bruce Crawford who made weekly trips to Chemainus, Ladysmith, Duncan and Nanaimo to cash cheques and convert the funds into gold—usually 10- and 20-dollar American “gold Eagles”. Brother XII and Madam Z would fill mason jars with gold coins and pour melted wax in to seal them in place. These were then placed in five-by-nine-inch wooden boxes held together by brass screws. Each box had a rope handle for carrying. Boxes with gold coins were routinely buried in different parts of the island.
Brother XII also became wary of government and started building forts surrounding his headquarters on DeCourcy Island. He had a thousand rounds of ammunition and British and Italian guns to defend himself. At one point he brought a tree down by dynamite to block navigation between Link Island and DeCourcy Island.
In September 1932, Mary Connally sued Amiel de Valdes and Zura de Valdes as co-defendants seeking the repayment of certain monies plus $10,000 in damages for emotional distress. Another follower brought a similar lawsuit in November 1932. While the trials proceeded, neither defendant appeared and their lawyer, Frank Cunliffe, put forward no defence and called no witnesses. Chief Justice Morrison awarded both plaintiffs their full claims and declared that the two cases were “the strangest cases ever to come before a Canadian court of law”.
However, Brother XII and Madame Z had fled DeCourcy Island. Shortly before the court cases they had pillaged and wrecked the colony, destroying
doors, smashing windows, putting bullet holes in water tanks and damaging farming equipment. One cabin had been crushed by a huge tree felled onto its roof. Brother XII had destroyed his own house with an axe, demolishing model ships, watercolours, glass, cutlery and books. The couple had fled first to Roberts Creek and then to Victoria where, during the trials, they were registered guests at the Empress Hotel, reading about the trials in the daily newspapers delivered to their room. Using a tugboat named Khuenaten they worked their way up the coast to Prince Rupert where they boarded a train for Montreal. From there, together with an accomplice they booked passage for England.
Three months after the court cases in Nanaimo, Brother XII was living anonymously in a small farmhouse in northern Devonshire. On July 31, 1933 he made a new will under another assumed name: Julian Churton Skottowe, in which he left everything to Mabel Skottowe. In August 1934 the couple left using their original names for Neuchatel, Switzerland where Brother XII died on November 7, 1934 at the ripe old age of 56. Madame Z (Mabel Scottowe) left the area later that month.
On October 13, 1939 a hearing brought at the Royal Courts of Justice in the Strand in London opened on behalf of Brother XII’s creditors with claims against the small estate left by Brother XII. The hearing was delayed by the outbreak of World War II. In the spring of 1943 it was re-opened, dragging on for three years, finally settling on October 26, 1946. By then, legal costs had consumed most of the value of the estate and the claimants received only nominal payments. The approximately $400,000 fortune amassed in gold coins has never been found.
The remnants of Brother XII’s colony on DeCourcy Island are still there. Many a treasure seeker has explored the walls and wells left behind on Valdes and DeCourcy Islands, looking for even one of the 43 boxes of gold Brother XII is thought to have buried there. Once a worker on DeCourcy Island decided that a floor in a building he was taking care of was too high, so he decided to lower it. When he ripped up the floor, he found a trapdoor which he pried open. Inside he found a bundle—a loose roll of tarpaper. He lifted the package out and unfurled it. Inscribed on the inside was a message, from Brother XII: “For fools and traitors—nothing!”
ENDNOTES
1. D Michael Bain, KC, “Legal Anecdotes and Miscellanea: Brother XII – Part I: The Dawning of the Age of the Aquarian Foundation” (2024) 82 Advocate 293.
2. D Michael Bain, KC, “Legal Anecdotes and Miscellanea: Brother XII – Part II: The Dawning of the End of the Age of the Aquarian Foundation” (2024) 82 Advocate 443.
3. Do not quote this as any sort of authority on the topic.
BENCH AND BAR
You may just have missed the inaugural Qingzhao Poetry and Arts Festival commemorating Li Qingzhao (1084–c.1155), who is perhaps China’s most celebrated female poet, but you may still be able to catch the Poesiefestival Berlin. This is the largest poetry festival in Europe and scheduled to run from July 4 to 21, 2024. Hot on its heels is the Voix Vives poetry festival in Sète (July 19–26), hosting poets from around the Mediterranean. Hoping instead to learn who might be waxing poetic closer to home? Well, settle in and read about the latest adventures of the litigators, solicitors and judges below—each a poet even if they don’t know it.
Cassandra M.S. Florio leaves Borden Ladner Gervais to take up the post of Senior Solicitor and Counsel to BC Hydro. Bianca L. Gidman is now with Lawson Lundell, moving from Mogan Daniels Slager. Holiday D. Powell joins Koffman Kalef after 20 years at Miller Thomson. Patricia E. Bood leaves her post as general counsel to BCI and starts a governance consulting firm called Puimac Consulting. Farnaz Karimi is now with Narwal Litigation having been at Poulus Ensom Smith. Katherine Booth is now with Bennett Jones, having formerly been with McCarthy Tétrault. Bryan A. Millman and Michael P. Blatchford both jump from Norton Rose Fulbright to land at Miller Thomson. Shanna Gu is now at MLT Aikins, having previously been with Narwal Litigation. Janis K.L. Ko moves from Fasken to join McLellan Herbert Locke. Laura Harrison moves from Blake, Cassels & Graydon to Lawson Lundell.
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.
Roper Greyell welcomes Kiran Mangat , formerly with BTM Lawyers. Shanya L. Clarke, formerly with Cassels Brock & Blackwell, and Jacky Xu, formerly with McLennan Ross, also move to Roper Greyell. Bradley (Brad) N. Cocke joins Cooperwilliams Truman & Ito, having previously been with Harris & Company. Raj Dhatt leaves Stantec to become general counsel at Herschel Supply Company. Kristina (Kirsty) L. Foreman leaves ForeReach Consulting to become legal counsel with the Department of Justice Canada. Anthony (Tony) R. Anderson moves to MLT Aikins from Owen Bird. Gabrielle Guarino moves from Blake, Cassels and Graydon to join Lawson Lundell.
“In the future, the Court highly recommends that the parties not employ the likes of E.E. Cummings to draft legal documents. Because while the Court enjoys the famous poet’s clever word play, the parties have spent thirty-one presumably rather expensive pages attempting to inform the Court how many angels can dance on the head of this pin”: Higman Marine Services, Inc. v. BP Amoco Chemical Company, 114 F.Supp. 2d 593 (S.D. Tex. 2000).
In our last issue we erroneously reported that Katherine J. Zhou had left Lawson Lundell. In fact, she has not. Katherine remains in the banking and debt financing group of the Vancouver office. We regret the error.
English poet John Donne studied law and in 1592 was admitted to Lincoln’s Inn, one of the Inns of Court.
Master Baker noted, in Wyman v. Fammarz S.R.L., 2009 BCSC 990, that “pleadings are not restricted to the dull greys of formulaic prose. A little poetry or colour is not necessarily a bad thing.”
The Honourable Margot L. Fleming was appointed as a justice of the Court of Appeal for British Columbia in Vancouver to replace Justice Christopher Grauer, who elected to become a supernumerary judge on January 1, 2023. The Honourable Nitya Iyer, a judge of the Supreme Court of British Columbia in Vancouver, was appointed as a justice of the Court of Appeal for British Columbia in Vancouver. Justice Iyer replaces Justice Len Marchand , who was appointed Chief Justice of British Columbia on December 7, 2023.
We anticipate none of the above will be writing about their colleagues as animatedly as Judge Wardlaw of the U.S. Court of Appeals for the Ninth Cir-
cuit, concurring in the denial of rehearing en banc in Quon v. Arch Wireless Operating Company, Incorporated, No. 07-55282 (2009): “No poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal”.
In Colborne Capital Corporation v. 542775 Alberta Ltd., 1999 ABCA 14, the Alberta Court of Appeal noted that “[i]n 1808 … , the English poet and artist, William Blake mused, ‘God forbid that truth be confined to mathematical demonstration,’ a caution which reemerged in Killeen v. Kline 1982 CanLII 419 (BC CA), [1982] 3 W.W.R. 289 (B.C.C.A.), where Lambert J.A. observed at p. 302: ‘The task of the appellate court is clearly made less perplexing if the cloak of mathematics does not seem to give an air of scientific accuracy to a decision that is fundamentally one of judicial assessment, not of calculation.’”
Judith E. Hoffman was appointed as a judge of the Supreme Court of British Columbia in Vancouver. Lisa J. Hamilton, K.C., was appointed as a judge of the Supreme Court of British Columbia in New Westminster to replace Justice K.W. Ball, who elected to become a supernumerary judge on November 2, 2022. Shannon P. Ramsay, K.C., was appointed as a judge of the Supreme Court of British Columbia in Vancouver and replaces Justice J. Winteringham (Vancouver), who was elevated to the Court of Appeal on December 1, 2023. Edlyn Laurie was appointed as a judge of the Supreme Court of British Columbia in Vancouver. Justice Laurie replaces Justice M.L. Fleming (Vancouver), who was elevated to the Court of Appeal. Alison M. Latimer, K.C., was appointed as a judge of the Supreme Court of British Columbia in Vancouver. Justice Latimer replaces Justice N. Iyer (Vancouver), who was elevated to the Court of Appeal.
“The ordinary words of the English language, used by the average person, amount to ordinary speech. The same words, woven into poetic speech by a Keats or Shelley, or any other great poet, sound like the most poetic words in the English language”: Carew v. RKO Radio Pictures, Inc., 43 F. Supp. 199 (S.D. Cal. 1942).
The Honourable Judge Susan Elaine Wishart was redesignated as an Associate Chief Judge of the Provincial Court of British Columbia for a term ending May 15, 2027. She was also redesignated as alternate presiding member of the Judicial Council of the Provincial Court of British Columbia for a term ending May 17, 2027.
The Delaware Court of Chancery noted: “To a layperson, Section 10.2(a) [of the purchase agreement at issue] is much like a poem written in one of
Tolkien’s constructed languages—only a few persons dwelling outside of Middle earth are conversant enough to understand its meaning”: LPPAS Representative, LLC v. ATH Holding Company, LLC, C.A. No. 2020-0241-KSJM (2020).
Shelley-Meghan L. Lopez was appointed as chair of the Civil Resolution Tribunal (“CRT”) for a term of three years. Andrew R.T. Pendray was reappointed as a member of the CRT for a three-year term.
“Such a result [an award of $37.20], considering the amount of the counterclaim and the labours of both counsel and the Court, reminds one, irresistibly, of the Roman poet’s reflection: Parturiunt montes, nascetur ridiculus mus. But the legal rights dealt with are of importance”: Sterling Engine Works Limited v. Red Deer Lumber Company, Limited, 1919 CanLII 983 (Man. K.B.).
“If someone refers to ‘works of William Shakespeare, Edgar Allan Poe, Emily Dickinson, or other great poets,’ one could reasonably presume that the speaker considered Shakespeare, Poe, and Dickinson great poets”: Inland Insurance Company v. Lancaster County Board of Equalization, 316 Neb. 143 (2024), per Papik J., concurring.
Susan I. Forbes, K.C., was reappointed as a director of the Real Estate Errors and Omissions Insurance Corporation for a term ending August 1, 2027.
Wallace Stevens, an American modernist poet, attended New York Law School, worked as a lawyer and ultimately joined the Hartford Accident and Indemnity Company, where he regularly hired and gave initial instructions to outside counsel defending cases brought after the company had rejected a claim.
F.R. Scott, a leading modernist poet in Canada, was a longtime professor of law at McGill University.
Derrill W. Prevett, K.C., was reappointed by the Minister of Public Safety for a further term as co-chair of the National DNA Data Bank Advisory Committee.
“It is almost axiomatic to say people are nervous of uncontrolled power that may be claimed by high political officials; history recognizes power is insatiable and that it is inevitably abused. The poet Blake expressed this almost
universal attitude in the graphic lines: ‘The strongest poison ever known came from Caesar’s Laurel Crown.’”: Reference Re Production In Court of Federal Income Tax Statements; Re Regina v. Snider, 1952 CanLII 239 (B.C.C.A.), per O’Halloran J.A., dissenting in part.
Jaspreet Kaur Sunner was appointed to the board of the British Columbia College of Social Workers for a term of one year.
June 30, 2024 has been proclaimed Indigenous Survivors Day.
Linda D. Locke, K.C., is the recipient of the CBABC’s 2024 Georges A Goyer, QC Memorial Award for Distinguished Service.
Connor Bildfell was recently awarded the 2024 President’s Medal by the CBABC. Monique Pongracic-Speier, K.C. , received the CBABC Harry Rankin QC Pro Bono Award. Anita Atwal was awarded the CBABC Equality & Diversity Award.
The Missouri Court of Appeals noted in State of Missouri v. Hansborough, WD86712 (2023) that “[w]hen we select juries in this country, lawyers and judges often wax poetic about the Latin phrase, voir dire, reminding the venire panel that it is their obligation to ‘speak the truth’ about any biases that may prevent them from serving on a jury in a particular case. But, how can we expect such juries, once selected, to decide the truth unless we equip them with all of the relevant evidence necessary to make such important decisions to resolve disputes in our society?”
In Brown v. State, 216 S.E.2d 356 (1975), Judge Evans of the Court of Appeals of Georgia wrote an opinion “in rhyme” (responding to the trial court judge’s friendly challenge that the appellate judge do so if ever reversing one of his decisions again). Judge Evans noted his “limited ability … did not permit the writing of a great poem. It was no easy task to write the opinion in rhyme” (perhaps with good reason). This did not, however, hold him back. Setting the scene for what had happened in the trial court, Judge Evans explained, “The D. A. was ready / His case was red-hot. Defendant was present, His witness was not.” The trial judge refused an adjournment of one day, and the accused was convicted. On appeal, Judge Evans ordered a re-hearing: “The law of this State / Does guard every right / Of those charged with crime / Fairness always in sight”. In this regard: “To continue civil cases / The judge holds all aces. But it’s a different ball-game / In criminal cases.”
Danielle E. H. Allen was reappointed to the board of Coast Mountain College for a term ending July 31, 2026.
The Spongy Moth Eradication Regulation, B.C. Reg. 100/2022, was recently amended.
In our March 2024 issue, we quoted the case of Bilinski v. Bilinski, 2009 SKQB 285 where the court said “all that glitters is not gold …”, an apparent inversion of Shakespeare’s Merchant of Venice (II, vii) where the Prince of Morocco says: “All that glisters is not gold – Often have you heard that told.” While Shakespeare used “glisters”, the poet John Dryden used the word “glitter” in his 1687 poem The Hind and the Panther. While Thomas Gray used “glisters” in his 1747 poem Ode on the Death of a Favourite Cat, Drowned in a Tub of Goldfishes, Arthur Golding translated one of John Calvin’s sermons with the phrase “But al is not gold that glistereth.” In our May 2024 issue, John Edmond wrote to us about the Merchant of Venice telling us that some things “can glister without being gold”, however, one of us at the Advocate changed it to “glitter” thereby ensuring that everyone would become more learned with this note. We apologize for glittering where we should have glistered.
“If the spider is caught in its own tangled web, poetic justice, as well as rough justice, has been done”: Aalbers v. Aalbers, 2010 SKQB 318.
“[P]oetic justice is not the type of justice that we are supposed to dispense”: Cooper v. Harris, 581 U.S. __ (2017), per Alito J., concurring in part and dissenting in part.
“Hamlet thought it poetic justice that a bomber should be blown up by his own bomb – hoist by his own petard (‘petard’ means bomb). We have to decide whether the draftsmen of the federal sentencing guidelines took Hamlet’s position”: United States of America v. Martinez, 16 F.3d 202 (7th Cir. 1994).
Francis Petrarch, a poet of the early Italian Renaissance, studied law in Montpellier and Bologna at the insistence of his father, a notary.
Todd A. McKendrick was reappointed as a member of the Notaries Public Board of Examiners for a term ending June 5, 2026.
John Almon Ritchie, the son of Sir William J. Ritche (Chief Justice of Canada from 1879 to 1892) and a lawyer and judge in his own right, was also
a poet and playwright. He wrote the words inscribed over the entrance to the Parliament building in Ottawa: “The wholesome sea is at her gates/ Her gates both east and west”.
The Battle of the Somme was one of the largest and bloodiest of the First World War and lasted from July 1, 1916 until November 18, 1916.
Francis Scott Key was a lawyer whose poem “Defence of Fort M’Henry” was set to music and became the U.S. national anthem (as “The Star-Spangled Banner”).
Robert Stanley Weir, a lawyer and judge, wrote the English lyrics to “O Canada”. Another judge, A.B. Routhier, wrote the French lyrics.
Anjili I. Bahadoorsingh has been appointed chair of the West Vancouver Memorial Library Foundation.
Addleshaw Goddard is an international law firm that commissioned a “short body of work” (Rhyme & Reason: Poetry and the Law) as “a celebration of the law and the people within businesses who practise it. To provide a fresh perspective, [the law firm] turned to poets, because lawyers and poets use the same tools … words”. “Tools of the Trade”, by Andy Maslen, ends as follows: “Wield your words wisely, keep sharp every blade;/ for they are your weapons, the tools of your trade.”
Amelia Earhart and her navigator disappeared from the skies over the South Pacific on July 2, 1937 while trying to fly around the world. No trace of them has ever been found.
Pablo Neruda, a Chilean poet and diplomat, was born on July 12, 1904. He won the 1971 Nobel Prize in Literature and, more importantly, his work was invoked by Judicial Justice of the Peace Makhdoom in R. v. Picadilly Investments Ltd., 2008 BCPC 235:
[31] The degree and incidence of the lack of affordable housing in our fine city is so notorious that I am prepared to take its judicial notice. I am also prepared to take judicial notice of the increasing incidence of homelessness inside our city as well. In many respects higher rents coupled with lack of availability of rental spaces are an anathema to many amongst us with the least at their disposal. Most days, during my walk to the Courthouse I come across many who call city foot-paths or side-walks as their “home”.
[32] These are our fellow citizens, fellow human beings. It would be a crass rather tragic reductionism to measure a civilized society by the
height of its buildings, the width of its highways, by the effulgence of its affluence and or the effusiveness of its idiom. A society is better measured in the manner in which it treats those who happen to have the least. This state of having the least does not reflect lesser degree of humanity or humaneness. Far from it, for it concerns those amongst us with least financial, political, social, communal or familial resources, the kind of people we tend to romanticise when we find them in the novels of Charles Dickens or Aleksander Solzhenitsyn, or legal texts of John Rawls or poetry of Pablo Neruda, the same ones we somehow miss or even consciously ignore when we see them standing at a street corner or sleeping under a bridge. Indeed, Mahatama Gandhi said, “The best test of a civilised society is the way in which it treats its most vulnerable and weakest members.”
Leah Dolores George-Wilson, Nejeed Q.A. Kassam and Gillain A. Malfair were all reappointed as directors of the board of the British Columbia Lottery Corporation for terms ending May 31, 2026.
Poet Peak is a mountain west of the south end of Tweedsmuir Park and a short distance southeast from Bella Coola. It was named in remembrance of Dick Poet, a Wilderness Airlines pilot who frequently flew climbing parties and supplies into the area. He was killed in a plane crash in Tweedsmuir Park in 1964.
Daniel M.S. Rothwell was reappointed to the board of Douglas College for a term ending July 31, 2026.
On May 30, 2024, Donald J. Trump became the first former U.S. President to be convicted of a crime. Trump was found guilty of 34 counts of tax fraud relating to a payment of $130,000 made to a pornographic star in exchange for a non-disclosure agreement and the disguising of that payment as a series of payments for legal fees when they were really grossed up reimbursement payments to his lawyer, Michael Cohen. If we could make this all rhyme we would.
“If Hamlet lamented over the ‘law’s delays,’ in 1602, I should like to hear him on the snail’s gallop of the law in 1965…! And it would indeed be engrossing also to hear him comment, in iambic pentameter, on selfassumed monarchical usurpation of unwarranted judicial power, all so evident in this case”: Evans v. Philadelphia Transportation Company, 418 Pa. 567 (1965), per Musmanno J., dissenting.
In People v. Cacioppo, 264 Cal. App. 2d (1968), a police officer stopped the defendant’s vehicle and, shining his flashlight inside to find the registration,
found marijuana. The defendant argued, as summarized by the appellate court, that “the police officer was not entitled to invade a privacy resulting from the natural phenomenon of darkness by overcoming the darkness with the rays of his flashlight”, urging this with “more with literary than legal argument”. The appellate court wrote, in rejecting the appeal from conviction for possession of marijuana:
Defendant seeks refuge in what he deems a form of privacy, consequential to the phenomenon of night, equitable with that attaching to man’s castle, be it home or vehicle; and by force of law impervious to the devices of artificial illumination. Such an argument fails to acknowledge that life goes on during the whole of the 24-hour cycle comprised of nocturnal and diurnal episodes. In the realm of investigation, search and seizure, the restrictions against unlawful exercise thereof relate to the reasons and conditions upon which the law enforcement officers’ conduct is premised and not to the turning of the earth upon its axis or in its orbit.
Defendant contends that darkness creates its own legal sanctuary and tells us
“Now black and deep the night begins to fall
A shade immense! Sunk in the quenching gloom,
Magnificent and vast, are heaven and earth.
Order confounded lies; all beauty void,
Distinction lost, and gay variety
One universal blot!” (Thompson, The Seasons, Autumn, L. 113)
And more acceptably
“Tender is the Night. ....
I cannot see what flowers are at thy feet,
Nor what soft incense hangs upon
The boughs,
But, in embalmed darkness, guess each Sweet.” (Keats, Ode to a Nightingale)
In the harsh light of reality we respond:
“Oh, treacherous night! thou lendest thy ready veil to every treason, and teeming mischiefs thrive beneath thy shade.” (A. Hill) and
“Under thy mantle black, there hidden lie, light-shunning theft, and traitorous intent, abhorred bloodshed, and vile felony, shameful deceit, and danger imminent, foul, horror, and eke hellish detriment.”—Spenser
Perforce “[t]his night methinks is but the daylight sick.” (The Merchant of Venice, V.C. 1597)
The judgment of conviction is affirmed.
Colleen F.E. Brown was reappointed to the board of Northern Lights College for a term ending July 31, 2027.
Striking the affidavit of an American lawyer in which his role in various product liability claims was described in glowing terms, the Saskatchewan Court of Queen’s Bench (as it then was) noted that while “[w]riting need not be bland, antiseptic or full … poetic licence has its limits. It is one thing for [the lawyer] to describe his role as litigation lawyer as akin to that of a mixed martial arts combatant … [but] quite another for him to engage in editorializing about what the defendant’s motives and intentions were at any particular time”: Field v. GlaxoSmithKline Inc., 2011 SKQB 16.
“W.S. Gilbert might have found a happy solution … He had the benefit of poetic licence and was not faced with the provisions of the Municipal Tax Sales Act, 1984, S.O. 1984, c. 48, limiting rights of adverse possession against a tax deed to those asserted by abutting owners. Legislative licence is not available to the court, however much a happy ending may be sought”: Zeitel v. Ellscheid, 1991 CanLII 7162 (Ont. C.A.), aff’d [1994] 2 S.C.R. 142.
“Great artists often express themselves through the vocabulary of existing forms. Shakespeare wrote his Sonnets; Brahms composed his Hungarian Dances; and Plaintiff designed his colonial houses. Because we must preserve these forms for future artists, neither iambic pentameter, nor European folk motifs, nor clapboard siding are copyrightable”: Zalewski v. Cicero Builder Dev., Inc., No. 12-3448-cv, 12-3450-cv, 12-5127-cv (2nd Cir. 2014).
Amber K. van Drielen was reappointed to the board of the College of the Rockies for a term ending July 31, 2027.
Roshan P. Danesh, K.C., and Laylee Rohani were reappointed to the board of the University of Victoria for terms ending July 31, 2027.
“[N]o poet can claim copyright protection in the form of a sonnet or limerick”: Peters v. West, No. 11-1708 (7th Cir. 2012).
Poet Creek is a river that flow northeast from the Bugaboos into lower Bobbie Burns Creek on the west side of the Columbia River between Invermere and Golden in the Kootenay Land District.
Rabjeet S. Wallia was reappointed to the board of Capilano University for a term ending July 31, 2026.
In McDonald v. John P. Scripps Newspaper, No. B032591 (1989), the Court of Appeals of California described the case before it in somewhat anguished terms:
Question — When should an attorney say “no” to a client? Answer — When asked to file a lawsuit like this one.
Master Gavin L. McDonald did not win the Ventura County Spelling Bee. Therefore, through his guardian ad litem [the appellate court inserted the footnote: “We do not hold Gavin responsible”], he sued. Gavin alleges that contest officials improperly allowed the winner of the spelling bee to compete. Gavin claimed that had the officials not violated contest rules, the winner “would not have had the opportunity” to defeat him. The trial court wisely sustained a demurrer to the complaint without leave to amend.
We affirm because two things are missing here — causation and common sense. Gavin lost the spelling bee because he spelled a word wrong. Gavin contends that the winner of the spelling bee should not have been allowed to compete in the contest. Gavin, however, cannot show that but for the contest official’s allowing the winner to compete, he would have won the spelling bee.
In our puzzlement as to how this case even found its way into court, we are reminded of the words of a romantic poet.
“The [law] is too much with us; late and soon, Getting and spending, we lay waste our powers:
Little we see in Nature that is ours;
We have given our hearts away, a sordid boon!”
(Wordsworth, The World Is Too Much With Us (1807) with apologies to William Wordsworth, who we feel, if he were here, would approve.)
Cecilia A. Low was appointed and Anil K. Aggarwal, Margaret A. Koren and Edward G. Wong were reappointed to the Employment and Assistance Appeal Tribunal for terms ending April 30, 2026. Rubina Sidhu and David G. Thompson were reappointed to the Employment and Assistance Appeal Tribunal for a term ending April 30, 2028.
In 1861, Captain George Henry Richards of the HMS Hecate decided to name Poett Heights and Poett Nook, both of which are on the south side of Barkley Sound near Tzartus Island in Sarita bay, after Dr. Poett, an English “physician of means”, who had a medical practice in San Francisco, and who visited Victoria 1860–61. Dr. Poett explored for copper claims on Copper Island, in the Barkley Group, hence the name of Copper Island. However, others say Copper Island was named after G.A. Cooper, who on April 11, 1892 alienated a section of land Sec. 5 at the entrance to Uchucklesit Inlet. The Uchucklesaht Tribe has two villages that are situated approximately 24 miles down Barkley Sound from Port Alberni. The first village is
immediately past the Uchucklesaht Inlet on the west side of Barkley Sound, named “Cowishulth”. The second village is located at the head of Uchucklesaht Inlet and is named “Hilthatis”.
“The Law According to Lidia Poët” is a Netflix series described as “[i]nspired by the true story of Italy’s first female lawyer”. She graduated from the law school at the University of Turin in 1881, was disbarred shortly thereafter because she was a woman, and was readmitted to the bar in 1920. Arguably the first female lawyer in what became Italy (or in the world), however, was Giustina Rocca di Trani, who may have been part of the inspiration for Portia in Shakespeare’s The Merchant of Venice and died in 1502.
In Fair Chase Holdings II, LLC v. County of Dutchess, No. 7201/2012 (2015), the Supreme Court, Dutchess Country, noted:
This solitary Tree! a living thing
Produced too slowly ever to decay; Of form and aspect too magnificent to be destroyed. William Wordsworth, Yew Trees
Wordsworth’s fondness for trees has been captured by the New York State legislature and codified into law under RPAPL Section 861. That section provides:
If any person, without the consent of the owner thereof, cuts, removes, injures or destroys, or causes to be cut, removed, injured or destroyed, any underwood, tree or timber on the land of another...an action may be maintained against such person for treble the stumpage value of the tree or timber or [$250] per tree, or both and for any permanent and substantial damage caused to the land or the improvements thereon as a result of such violation.
“Regarding the altercations over the outdoor parking space, the evidence reveals that they were far and few between and what is more, that the matter has since been resolved. As the writer Gertrude Stein is reputed to have told a class of overly zealous poetry students, ‘Not every thing is about everything.’”: Champagne c. Bertrand, 2023 QCTAL 6585.
Arlene M. Doll and Natalie L. Hebert were reappointed to the Mental Health Review Board for a term ending July 31, 2027.
“Picture a law written by James Joyce and edited by E.E. Cummings. Such is the Medicare statute, which has been described as ‘among the most com-
pletely impenetrable texts within human experience.’”: Catholic Heath Initiatives Iowa Corporation v. Sebelius , No. 1:2010cv00411 – Document 23 (D.D.C. 2012).
Bailey A. J. Savage was reappointed to the board of the University of the Fraser Valley for a term ending July 31, 2027.
Krista L. Simon was appointed a member of the Judicial Council of the Tsawwassen First Nation, Sc wa0n M stey xw, for a five-year term.
“The first BOHEMIAN EMBASSY coffee house opened in 1960 on Nicholas Street in Toronto, Ontario, and operated at that location until 1966. It was a venue where Canadian musicians, writers, poets and other artists were discovered and encouraged”: Cullen v Triple Canon Corporation, 2011 TMOB 231.
Mary L. Macaulay was reappointed to the board of Emily Carr University of Art and Design for a term ending July 31, 2027.
New York lawyer Harbani Kaur Ahuja creates blackout poems by cutting and pasting text from various court decisions into Word documents and blacking out most of the text.
For those travelling to Europe in August, consider checking out the Metamorphosis Festival in Serbia (August 16–19), the Days of Poetry and Wine in Slovenia (August 19–24) or Poetry Moon in Helsinki (August 22–25).
“This case is notable for the bursts of creative pleading that is evident on both sides; the removing defendants have exercised a measure of poetic license in their answer in an effort to meet the artistry manifested by plaintiff”: Prevas v. Checkmate Investigative Services, Inc., 951 F. Supp. 568 (D. Md. 1996).
“Perhaps if the government had devoted less time to waxing poetic in its brief and more to analyzing the transcript of the sentencing hearing, it would not have been so quick to concede the need to vacate and remand”: United States of America v. Piazza, 959 F.2d 33 (5th Cir. 1991).
July 2024 has been declared Collector Car Appreciation Month and Automotive Heritage Month.
The Law Poets Society is a club at the University of Toronto law school “aiming to foster creativity in law”. e ee’
Viewing the defendant and counter-claimant quite fondly in Procureur général du Québec c. Thorne, 2017 QCCS 2289, the court noted that “[i]n court, [he] was generally quite pleasant, except for some harsh comments about the public servants in charge of the financial assistance program, which were uncalled for….His main problem was his tendency to abandon the subject at hand, his claim, to speak about his remarkably wide work experience, and wax poetic about the squirrels, the deer, the bears that visited his property, and even the raccoons that caused tremendous damages to his residence.” The court noted, “[h]e expressed his views eloquently, with enthusiasm and with a wicked sense of humour. In his three-piece suit, he had a style reminiscent of Winston Churchill and, like him, he could entertain his audience, even if it was sometimes composed only of the judge and the lawyer representing the Plaintiff.” However, “[u]nfortunately, this was not sufficient to compensate for the absence of a legal basis for his counter-claim.”
Various poets as well as other writers are buried or commemorated in Poets’ Corner in Westminster Abbey, in London. Geoffrey Chaucer is the first poet interred there, apparently not because of his writing credits but because he was Clerk of Works of the Palace of Westminster. Some of the authors honoured there do not receive memorials until well after their death, including the notorious Lord Byron – he died in 1824 but was given a memorial in Poets’ Corner only in 1969.
Summarizing the trial evidence in R. v. Downey, 2022 NSCA 59, the Nova Scotia Court of Appeal invoked Lord Byron himself: “As you read it, you might reflect on Lord Byron’s suggestion of the ascendency of truth’s strangeness over fiction: ‘’Tis strange,—but true; for truth is always strange; / Stranger than fiction; if it could be told” (George Gordon Byron, Don Juan (1823), Canto 14, Stanza 101).
Thought du mois:
There’s no better way of using the imagination than the study of law. No poet ever interpreted nature as freely as a lawyer interprets truth.
Jean Giraudoux, French novelist, essayist, diplomat and playwright (1882–1944)
CONTRIBUTORS
Thomas D. Ciz is associate counsel at Farris LLP where he practises taxation and corporate/commercial law. Thomas is also a CPA(CA), meaning that unlike a lot of lawyers, he understands financial statements.
Geoffrey Cowper, K.C., is senior litigation counsel at Fasken. He is widely recognized as a leading litigator in class actions, securities law, legal malpractice, administrative and public law. He has written on a wide range of topics including criminal justice reform and legal aid. He was once described by the late Jack Giles, Q.C., as the appropriate lawyer for a client who “has champagne tastes.”
Catherine Crockett is a retired Provincial Court judge and former Crown prosecutor. She writes under a pseudonym that distances her from such accomplishments.
Jay Fogel has worked for the Ministry of Justice as Crown counsel for over 25 years. Prosecutor, poet, is there nothing Jay cannot do?
Jeff Locke is litigation counsel for local governments practicing in Victoria. A board member of the BC Courthouse Libraries Society, Jeff enjoys music and gardening and in these two ways is sometimes mistaken for George Harrison.
Kendelle Pollitt is a family lawyer and certified family law mediator practising in Surrey and White Rock. She practised in Vancouver and the Fraser Valley before starting Pier Law & Mediation in 2019.
