July 2023

ADVOC TE

The Culture That Got Us Here:

“We have strived to earn and retain the respect, confidence, and support of our clients, our community, and our fellow lawyers and to do so in a law firm environment based upon respect, loyalty, friendship, goodwill, and generosity.”

As Nixon Wenger celebrates its 50th year, Paul Nixon’s legacy and ideals continue to inspire the 昀rm’s ongoing spirit and purpose. We are truly grateful to our staff, clients, and North Okanagan community for their remarkable support and we look forward to our next 50 years.

Paul Nixon, Q.C. 1948-2020 Founder of Nixon Wenger

Proudly committed to our community for 50 years.

•21-year judicial career: 9 years on the BC Court of Appeal, 12 years as a Supreme Court Judge.

•Presided over all manner of cases including criminal, civil and family claims.

•27 years as a leading litigator, has appeared in all courts of British Columbia and the Supreme Court of Canada.

•Effective and respected decision-maker.

Immediately available to assist with arbitration, mediation, and other forms of dispute resolution with an emphasis on commercial and insurance disputes.

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ENTRE NOUS

The U.S. detention facility at Guantanamo Bay remains in operation. At the time of writing, around 30 individuals—all Muslim men—are still held there. As is the case with most of the individuals ever detained at the facility, most who remain there have never been charged with a crime. Only two still detained there have been convicted.

The events of 9/11 are seared into the memories of those old enough to have followed the news coverage on that day. Both horror and fear overtook most of us. Even in Vancouver, on September 11, 2001, those of us in office towers looked uneasily outside to see whether any rogue airplanes approached in an otherwise empty blue sky. Responsibility for the attacks in the United States was quickly attributed to the terrorist group Al-Qaeda. That the U.S. government sought desperately to address what had occurred and prevent reoccurrence was understandable, but the nature and scale of the human and moral catastrophes that resulted cannot be brushed aside.

The United States Congress adopted a joint resolution authorizing thenPresident George W. Bush, who signed the resolution on September 18, 2001, to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons”.

On September 20, President Bush demanded that the Taliban regime in Afghanistan deliver to U.S. authorities “all the leaders of al-Qaeda who hide in your land”. The regime refused and by late September 2001, a U.S. Central Intelligence Agency team was in the country. That team was followed by U.S. and British special forces contingents and, in the public initiation of Operation Enduring Freedom, by air strikes on Taliban targets commencing

on October 7, 2021. Later that fall, U.S. and allied forces, working with the Afghan anti-Taliban “Northern Alliance”, established their first ground base in Afghanistan.

By late December 2001, U.S. authorities were holding 45 Al-Qaeda and Taliban detainees. U.S. Secretary of Defense Donald Rumsfeld announced at that time that they would be sent to the U.S. naval base at Guantanamo Bay, situated on leased land in Cuba; he described it as “the least worst place we could have selected”. The New York Times reported at the time that the United States had rejected another option, the U.S. territory of Guam: local residents had raised security concerns (in the event terrorists mounted an attack to free prisoners), plus there was a government concern that prisoners held in a U.S. territory would attract more legal rights than prisoners held abroad. The newspaper quoted a Pentagon spokesperson as stating— in words that, given what we now know about the torture and depravity that ensued, are chilling—that the individuals in U.S. custody “are those that we think might provide some valuable information, so we want to be able to talk to them pretty thoroughly.”1

On January 4, 2002, a newly formed task force headed by U.S. Marine Brigadier General Michael Lehnert received orders to deploy to Guantanamo Bay and build 100 cells in 96 hours. His team finished its building work in slightly less than the allotted time and on January 11, 2002, the first 20 detainees arrived. At its peak in 2003, the by-then expanded facility held 660 detainees. In total, around 780 detainees—all Muslim men and boys— have at some point been held there, with the last one arriving in 2008.2 Many of the detainees may have had little connection with Al-Qaeda or the Taliban, although certainly some did. Among the one-time detainees was Canadian Omar Khadr, who was taken prisoner in Afghanistan in July 2002, when he was 15 years old, and transferred to Guantanamo later that year.3

Various of the detainees sent to the Guantanamo facility arrived only after months or years at “black sites” elsewhere in the world. The use of “enhanced interrogation techniques” at those sites and at Guantanamo itself came at tremendous moral cost, as well as, of course, inflicting sustained physical and mental cost on detainees. The methods also reportedly yielded little useful information as a practical matter as well as, from a legal perspective, arguably further making the criminal convictions of those interrogated, in any ordinary court, unlikely at best. The United States sought to avoid application of the Geneva Conventions to the “unlawful combatants” it detained, although in Hamdan v. Rumsfeld, a 2006 decision in a case involving Osama bin Laden’s former chauffeur, the U.S. Supreme Court found those conventions did apply at least in part.4

In 2015, retired Major General Lehnert (by the time of his retirement he had been promoted) spoke eloquently about the need to shutter the Guantanamo facility, whose existence he had initially understood would be shortterm. “History continues to judge our decisions—decisions made when we were angry and frightened,” he said.5 Six years later, in 2021, he conveyed the same thoughts in testimony to the U.S. Senate Judiciary Committee:

The speed of Guantanamo’s creation and the urgency to gain information had bad consequences …. The subsequent decision to subject detainees to so-called “enhanced interrogation techniques,” and to avoid application of the Geneva Conventions except when it suited us, cost us international support and aided the cause of our enemies.

Speaking plainly, we are where we are today because of those misguided policy decisions to cast aside our values and the rule of law. I’m not an attorney, but even I know that when you forgo generations of legal thought and precedent, bad things happen.

The vast majority of the 780 men sent to Guantanamo never should have been there. Among the 39 [in December 2021] prisoners who remain in Guantanamo, there are some who need to pay the price for their crimes. But what we have now is not justice. There is no justice for the detainees but more importantly the relatives of the victims of 9/11 and of other terror attacks deserve justice and they deserve closure.

The major general has of course not been alone in expressing concern— quite the contrary. He pointed to over 50 retired generals and admirals who had also said the facility should be shuttered. Numerous citizens, politicians and non-governmental organizations have done so both in the United States and around the world. By 2006, President Bush himself expressed the view that the detention facility should be closed. Indeed, over time, the Bush administration “released” around 540 detainees (most destined for custody in their home countries). In 2008, both presidential candidates (Barack Obama and John McCain) supported closing the facility. In 2009, almost immediately upon taking office, President Obama signed an executive order requiring the facility to be closed within one year. (Obviously this did not actually occur, including because Congress thwarted the transport of continued detainees to the United States to face trial there.) The Obama administration released around 200 detainees. President Donald Trump was, of course, characteristically unperturbed by the facility’s continued existence and only one detainee was released (to a Saudi prison) during his term. The Biden administration has released a number of detainees; however, as noted at the outset, around 30 still remain there. Numerous of them have been approved for transfer out of the facility but continue to be held nonetheless, in part because of the challenge of determining where they can be sent that is not overly dangerous to them.

It would be naïve to think there are not large difficulties in completing this process. However, there are large costs in not doing so, including— though perhaps crass to raise given the more fundamental philosophical nature of the others—monetary ones. By September 2022, the Guantanamo detention facility had reportedly consumed US$7 billion over the course of its existence, and the cost to keep each individual detainee there was US$13 million per year. The immense cost stems in part from an “enormous rotating work force” housed in what in effect are suburban neighborhoods constructed on the military base, and in part from the stop-start nature of efforts to, variously, close or maintain the facility.6

In 2021, Major General Lehnert urged a finite period for closure: “I was given 96 hours to open it. 96 days to close it seems reasonable.” And if not 96 days, fewer than two more decades?

The fact that the Guantanamo facility continues to exist is disturbing in and of itself. However, also disturbing is what its continued existence, in face of all the above, says more generally about American legal and political systems, and Western democratic society. While the facility is obviously not in our power as Canadians to close (although it would have been within the federal government’s power over the years to resist participation in it), we suspect the sorts of factors that foster or allow inaction in this case are emblematic of those that allow other problems to fester on both sides of the border.

The Guantanamo facility is clearly one of the most notorious, if not the most notorious, detention facilities in the world. Many people, including U.S. presidents—holding what has been described as the world’s most powerful office—have wished to see it closed. The facility is run by a country that espouses liberty and claims to be an example of moral and political virtue for others in the world. The facility’s bad image reputedly draws recruits to terrorist and military forces that wish to do harm to the United States. It is an enormous financial burden. It has been the subject of tremendous attention, although that sometimes wanes, for more than two decades. Certain practices there, at least historically, have been morally repugnant and contrary, at the very least, to legal norms that would ordinarily apply in war, in U.S. courts and in detention facilities in the United States. There are a limited number of remaining detainees, in relation to whom issues may be difficult but, at least, finite. And yet, the facility survives.

How is this possible? Is it a lack of political will, focus or cohesion? A lack of government or diplomatic competence? A combination of the above?

Given the Guantanamo facility has survived for more than 20 years despite the worldwide attention it has received, what does this say about

our chances to fight successfully against other injustices of a more local nature—and our ability to achieve results swiftly enough for those results to matter?

If we can tolerate the continued existence of Guantanamo, what does this say about what else we can tolerate? And what else is out there—perhaps even worse—that, with Guantanamo having occupied for over two decades a significant portion of media and political bandwidth, we may never even have heard about or directed our attention to?

ENDNOTES

1. Katharine Q Seelye, “A Nation Challenged: The Detention Camp; US to Hold Taliban Detainees in ‘the Least Worse Place’”, The New York Times (28 December 2021), online: <www.nytimes.com/2001 /12/28/us/nation-challenged-detention-camp-ushold-taliban-detainees-least-worst-place.html>.

2. This is despite Donald Trump, during the 2016 presidential election campaign, vowing to “load up” the facility with “some bad dudes”.

3. Canada (Justice) v Khadr, 2008 SCC 28; Canada (Prime Minister) v Khadr, 2010 SCC 3.

4. 548 US 557 (2006).

5. Maj Gen Michael Lehnert (retired), “I Helped Create Gitmo. Now I Want to Shut It Down”, Politico (11 January 2015), online: <www.politico.com/magazine /story/2015/01/guantanamo-closing-i-helpedcreate-gitmo-now-i-want-it-shut-down-114162/>.

6. Carol Rosenberg, “At Millions Per Detainee, Guantanamo Prison Stuck in a Cycle of Costly Delays”, The New York Times (16 September 2022), online: <www.nytimes.com/2022/09/16/us/politics/ guantanamo-bay-prison-cost.html>.

ON THE FRONT COVER LOUISA WINN, K.C.

By Aleem Bharmal, K.C., Tina Parbhakar and Mary Salaysay

In 2021, Louisa Winn, K.C., co-directed a documentary film called But I Look Like a Lawyer 1 This 30-minute film brought to light the experiences with unconscious bias and discrimination lived by British Columbia’s pan-Asian lawyers over the past 30 plus years. Louisa, her co-director Audrey Jun and the team of creators were inspired by an earlier short film called But I Was Wearing a Suit, 2 created by Indigenous lawyers in British Columbia in 2017. With the support of the Federation of Asian Canadian Lawyers (“FACL”) BC, filmmaker Jeremy Dyson and his media team and the Law Foundation of BC, But I Look Like a Lawyer premiered successfully to a North American audience of over one thousand lawyers and law students in November 2021. The film was featured at the Vancouver Asian Film Festival and has become a teaching tool for several Canadian law societies and at UBC’s Peter A. Allard School of Law. An evidence-based exposition featuring pan-Asian lawyers and scholars in law and history, the film addresses the negative and lasting impacts of Canadian colonial policies and is a thoughtful companion to the 2017 film and diversity and inclusion dialogues in British Columbia’s legal profession. Not every day does a circumspect senior prosecutor moonlight as a social justice documentary filmmaker with rave reviews. There is definitely more to Louisa than meets the eye. While Louisa appears to navigate various arenas effortlessly, behind the scenes, her drive, focus and courage play instrumental roles.

A TIRELESS ADVOCATE, DAY AND NIGHT

A lawyer for almost 30 years, Louisa was first called to the bar in 1994, in Newfoundland, and then called to the B.C. bar in 1995. Louisa is a senior

Crown prosecutor at the BC Prosecution Service (“BCPS”). Embedded in the Criminal Appeals and Special Prosecutions section, she has become an expert in commercial crime and regulatory prosecutions and received a Queen’s Counsel appointment in 2019 for her commitment to excellence and distinguished service. Daily life sees her prosecuting the spectrum of criminal fraud, employer-caused workplace fatalities and a variety of corruption-based offences in trial courts across the province. Her cases invariably involve breaches of trust and betrayal in relationships, which have resulted in the loss of money, assets and sometimes lives. As Crown, Louisa and her BCPS colleagues spend their days working to protect the public through independent, effective and fair prosecutions. This involves making difficult decisions about prosecuting offenders and protecting victims of crime, balancing the various factors that can make up the public interest in each case. As Louisa puts it, when you have been cheated by fraud or another’s financial recklessness, you are essentially robbed of the ability to thrive economically in life. Louisa sees herself as metaphorically chasing after fraudsters to hold them to account for their unfair activities toward others and, in reality, she is extremely successful at preparing and putting forward her cases to get the job done.

Indeed, Louisa’s passion has led to her becoming a subject-matter expert in counterfeit currency offences. She is the only prosecutor in Canada to have successfully secured convictions of three different “master” producers of large-scale sums of fake money, all of whom operated in British Columbia. Such experiences drew the Bank of Canada to ask the BCPS for her ongoing services and recruit her for legal educational advice on counterfeit currency identification and enforcement. Her BCPS supervisors thus unanimously say, “Louisa is the expert to the experts.” Indeed, she has trained specialists at the Bank of Canada as well as the National Anti-Counterfeiting Bureau, the RCMP, forensic accounting investigators and teams of regulatory investigators on how to fortify their special investigations.

A QUIET, YET MIGHTY STORM

Crown managers who work with Louisa say, “She is a quiet little storm—if you unleash her, watch out!” Even as a junior Crown lawyer in the 1990s, when playing touch football with other prosecutors, despite her short height and non-jock lifestyle, team members knew the secret was to position Louisa to catch the ball, as she would outrun many others to a touchdown.

Louisa is both competitive and compassionate. Colleagues say Louisa is warm, welcoming and well connected, as well as perpetually pleasant and positive. Friends, other social justice advocates, law students and colleagues

seek her out to guide and mentor new lawyers as well as articled and law students. She is the kind of person who organizes and connects different organizations to a common goal from a singular desire to align and achieve shared momentum and success. Louisa leverages mutual interests and uplifts people around her. She seeks to exceed expectations of what can be done, whatever she is assigned.

At the same time as managing a full-time trial load, Louisa has authored with a team of her co-workers the report and recommendations of the BCPS’s Gender Equity and Advancement Committee. She also remains a proactive inaugural member of the BCPS’s Equity, Diversity and Inclusion Committee, established in 2020 by the Assistant Deputy Attorney General Peter Juk, K.C. Louisa brings her lived experiences, academic background and advocacy experiences as a dedicated member of Amnesty International to her equity and inclusion work in the legal realm. She is the former chair and active contributor to the annual Amnesty International Film Festival hosted in Vancouver for over a dozen years. Having experienced the transformative power of film throughout her own life, Louisa is adamant that documentary is a key method to effectively communicate complex human rights abuses and social justice challenges at home and around the world.

As a member of the CBABC’s Truth and Reconciliation Committee since 2017, Louisa has innovated, initiated and sustained an ongoing dialogue series to showcase the supportive relationships that have existed and can continue to exist among Indigenous, pan-Asian and other racialized communities in British Columbia. This relation-building series, which she formulated in 2019 with Tina Parbhakar, represents a collaborative effort between Indigenous and racialized elders, scholars, lawyers and law students and is supported by the CBABC, Allard Law’s Indigenous Legal Studies and FACL BC. Chief James Hobart of the Spô’zêm First Nations, a founding partner, has described the dialogue series as a bright light example of truth and reconciliation efforts. Of course, co-collaborators watching the short films “Cedar and Bamboo” and “To All My Fathers Relations” formed the key part of an initial gathering. Louisa remains dedicated to this series about cross-cultural collaboration to dismantle colonialism and its devastating effects of bias and discrimination in our communities.

FORMATIVE INFLUENCES AND REEL CAUSES

Louisa’s commitment to creating a safe, stable and equitable society began at an early age, influenced by her late father’s family experiences in Burma, now Myanmar. Born in Hong Kong, she is the product of diasporic parents from two former British colonial countries. Louisa grew up in St. John’s,

Newfoundland, in the 1970s and ’80s. She explains that she was “born in one far east and raised in another far east.” Her love of documentary films began at an early age when her father would bring home National Film Board of Canada (“NFB”) films for their family and friends to watch. Cable TV was rare, so families in St. John’s rented film reels from the local NFB office to watch with a projector. This love of film found later expression during university lunch breaks, as Louisa sought out showings of human rights films on campus. This audio-visual education was a perfect complement to her undergraduate studies in Western philosophical thought, which culminated in an honours degree in Canadian history.

Studying the experiences of the past to understand the present and knowing where we have come from as a community of communities are recurrent themes in both Louisa’s life and her personal approach. Louisa spent her early university years learning the effects of Canadian colonial policies on immigration, including British child migration and European migrant labour. As a student, she dreamed of becoming an historian and re-writing textbooks to celebrate diversity. Years later, as a lawyer volunteering with Amnesty International, Louisa’s “documentary addiction” found an outlet as she and her Amnesty International friends reviewed hundreds of film submissions each year to find suitable candidates to showcase the current state of human rights around the world at the annual film festival.

BORN TO BE A LAWYER

Some say lawyers are made; others say lawyers are born. Louisa, consistently seeking to protect the vulnerable, stand up against unfairness and call out for justice, seems to be the latter. As an infant, Louisa had arrived with her parents in Toronto in 1968. As reflected above, her parents then followed career opportunities in St. John’s. Childhood memories include regular gatherings of the Multicultural Society, which hosted families originating from as near as the mainland of Canada to as far as Sri Lanka and South Africa. The world’s diasporas living in St. John’s formed their own friendships, sharing feasts at each other’s homes. Two younger siblings soon joined the family, born in St. John’s, growing up in the quiet new suburban neighbourhood of Cowan Heights. Being Chinese in a community with few other visible “foreigners” mostly drew friendly curiosity. However, it also drew outright disdain. Louisa recalls incidents of explicit racism, such as being called anti-Asian slurs by other children. In a graphic primary school memory, an aggressive boy attacked her and her little sister at a neighbourhood playground, hurling insults while beating them with his fists. His physical pursuit was violent and unrelenting, supported by his friends’ jeers and despite her friends’ screams for help. Louisa’s friends quickly found her mother,

who was running over to investigate the commotion. Soon afterwards, police arrived to disperse the melee. This real-world lesson of supportive allies and intolerant foes led Louisa and her sister (now also a lawyer) to develop a heightened awareness. Louisa, in particular, took on the role of a protector and defender as a result of these kinds of formative experiences.

Louisa’s curiosity, audacity and leadership were early childhood traits, continuing a lineage of unwavering resilience. Her father, the son of a tenacious woman who raised him and his nine siblings during the Second World War, was the first in his country to receive a United Nations Colombo Plan Scholarship in 1958. This opportunity took him from medical school studies at the University of Rangoon to optometry studies in Queensland, Australia, and then to meeting and marrying Louisa’s mother, an optician from Hong Kong. Unrest in Burma and Australia’s exclusionary immigration policies in the early 1960s compelled her parents to move to Canada to join family. In later years, her father developed an interest in animal rights, human rights and Buddhism, enlisting Louisa to proofread his op-eds. While in middle school, Louisa also regularly proofread his essays, and this inevitably influenced her own thinking. She found early opportunities to try her own advocacy in high school public speaking competitions, not shying away from weighty or unpopular topics, such as criminalizing pornography and legalizing prostitution. As a teenaged youth parliamentarian, in 1984, she learned a sobering lesson on the power of institutionalized and societal prejudice with a crushing defeat to her proposed mock bill to prohibit schools from banning and segregating children with AIDS. Decades later, Louisa sought out allies for another audacious social justice advocacy effort. In 2018, Louisa found wholehearted support from her supervisors at the BCPS, Trevor Shaw and Peter Juk, K.C., to create a proposal to Myanmar’s parliamentarians for a training program for their prosecutors on gender-based violence. Other Crown colleagues had delivered similar training to police and prosecutors in South America and Asia. The military coup in Myanmar in 2021 alongside a worldwide pandemic put an abrupt end to any present hope of delivering this training. Not easily discouraged, Louisa directed her energy into her local advocacy work, and specifically the filming and post-production of the But I Look Like a Lawyer documentary under serious COVID-19 protocols.

CLARUS MAGNUS DICERUS

This Latin term meaning “clear and loud speech” was the slogan for the Memorial University (“MUN”) Debating Society in 1987. An avid debater through grade 11 to the end of her university years, Louisa was thrilled by public speaking and debating competitions. In fact, Louisa along with her keen cohort of fellow debaters were determined to host the national tour-

nament of the Canadian University Society for Intercollegiate Debate (“CUSID”) in style. John and Ann, her good friends, were part of a small organizing team with Louisa. They describe two years of meticulous planning, given that none of them had any past experience running a large event. They fundraised through car washes and rented a local pub to host a dance night. They promoted the tournament at other provincial debating events. They mobilized a large team of friends as volunteers.

Ultimately, over one hundred students arrived for a weekend that, unfortunately, saw the worst snowstorm in Newfoundland’s 1980s weather history. Nonetheless, Louisa and the team were prepared and the national event went ahead with the wider local community showing up in full force—including lawyers, judges, professors, a talk show host and other local celebrities—as debate judges. Louisa was a project manager in early development. John and Ann recount Louisa’s precise planning and logistical directions to her volunteer crew on a walkie-talkie. Louisa had prepared everything down to the last minute, and was clear and loud when needed. The student attendees left St. John’s satisfied and impressed.

AN UNTITLED AND UNBRIDLED LEADER

The legal profession is meant to uphold the rule of law and due process and advocate for equitable treatment and equality before the law. These principles are not universally held around the world or universally respected, even in our own communities. Knowing how to lead when you are not officially in charge and creating opportunities to bring folks together to push towards common social justice goals are strategies that Louisa unwittingly yet unfailingly embraced from an early age. They find ongoing and intentional expression in her as a lawyer today.

On the heels of widespread positive attention to the documentary But I Look Like a Lawyer, viewers have asked for a spinoff to address current challenges in addressing characteristics such as gender, race and ability. Louisa has had the foresight to see the broader opportunity to address identity and intersectionality and mobilized colleagues and friends, once again, from various equity-seeking legal associations and groups, including an established entertainment lawyer, to form a development team for the next documentary project. With her ability to create a bold vision that others can rally around and gently guide that vision forward, this documentary is in the incubation phase, centred in the calm eye of the quiet little storm.

ENDNOTES

1. Online: <faclbc.ca/documentary/>.

2. Online: <www.youtube.com/watch?v=HTG7fi-5c3U>.

PROPOSAL FOR THE PATRIATION OF HEAD OF STATE

By Rod Germaine

There are two common responses to the suggestion that Canada should reconsider its relationship with the monarchy.

First, it is not a priority. Politicians are especially prone to this view, and it is entirely valid. There are many—too many— vitally important issues in these tumultuous times. The reality, however, is that the monarchy is unlikely to ever become a priority in that sense. There will always be serious fires to be extinguished urgently. Yet it is an issue that cannot be deferred forever. It has to be examined some time, and there are accumulating indications that now is the time. Recently, for example, in a piece entitled “King Charles’s Coronation: Should Canada Become a Republic?”, Philip Resnick, Professor Emeritus, University of British Columbia, asked, “Should we retain a British monarch as our official head of state?”1

Second, the required constitutional amendment process is a can of worms that is best left sealed. Professor Resnick called it a “long constitutional process”. As the process is presently structured, he is correct. It is not only long, but also problematical and potentially futile because it may well revive old constitutional grievances. But modification of the existing process could moderate the risk of a constitutional debacle.

The obstacles inherent in these responses can be overcome by means of a formula that does not require an abrupt break with the monarchy and instead involves an evolutionary shift in the sensible style of a good Canadian compromise.

A CANADIAN SOLUTION

This, then, is a proposal to repatriate the office of head of state of Canada by a process which:

• recognizes the historical significance of the monarchy;

• preserves the office of Governor General; and

• maintains the country’s form of constitutional parliamentary democracy.

How? By ending the representational capacity of the Office of Governor General. It is that simple.

In reality, it is not so simple because a constitutional amendment is required and the unanimity formula applies. But the point is that if the Governor General does not represent the Crown, the Governor General is the head of state. The effect in practice would be minimal.

Nor is it necessary for the amendment process to be long and painful. The proposal is a purpose-designed process that would seek to elicit the required unanimity before submitting the question to the majority will of Canadians. A federal statute defining the amendment could defer the referendum until after the amendment has been accepted and adopted by every province, subject to the referendum. Tabulating the referendum results nationally rather than by jurisdiction would enhance the integrity of the process.

The substantive effect would be relatively minor, precisely the least required to accomplish the change. The Governor General would continue to perform the same role, but as head of state. And, as a process designed for this single purpose, it would be less likely to provoke demands for unrelated amendments.

The Form of Amendment

The amendment would:

• terminate the representational role of the Office of Governor General, provide the Governor General with the authority to exercise all former royal prerogatives and endow the Governor General with all of the former royal powers and responsibilities in relation to Canada and its Indigenous peoples;

• provide that the role and authority of the Office of Governor General is otherwise unchanged and expressly confirm that the Governor General is thus the head of state of Canada;

• adopt a long title for the Office of the Governor General that includes words such as “historically the representative in Canada of the Monarch of the United Kingdom”;

• define the process for the appointment and term of office of the Governor General in terms such as the following:

• before appointing a Governor General, the prime minister shall consult with a Head of State Appointments Committee comprising of not more than five eminent Canadians whose membership on the committee has been approved by an allparty joint committee of Parliament; and

• the term of office of the Governor General shall be six years, which may be extended for up to six years in accordance with the procedure set out above;

• if necessary, amend the Office of Lieutenant Governor in order to ensure consistency with the patriation of the head of state; and

• include transitional and interpretive provisions to ensure that all references to the King or the Crown, or any variation thereof, and any related provision, whether in the constitution or other laws, shall be construed to reflect the Governor General as head of state.

The Process

The federal government would enact legislation—the Patriation of the Head of State Act, perhaps—adapting the scheme of the Referendum Act to define the unique process governing this amendment question. The Act would:

• settle the text of the question for the referendum in terms consistent with the constitutional amendment proposed above, and in the manner provided under s. 4 of the Referendum Act;

• provide for a pause in the referendum procedure upon the final settlement of the text of the question in the manner provided under s. 5 of the Referendum Act;

• provide that the pause remains in effect until the Senate, the House of Commons and the legislative assembly of every province has made a commitment to accept and be guided by the result of a national referendum;

• provide that, upon the commitment of every jurisdiction, the Writs of Referendum shall be issued in the manner provided under s. 6 of the Referendum Act; and

• modify the Canada Elections Act to require that the results of the referendum shall be tabulated nationally rather than by jurisdiction and only the consolidated results from all electoral districts shall be published.

This proposal, then, is for an incremental approach to the ultimate maturation of Canada as an independent nation. It preserves the legacy of the monarchy while elevating the Office of Governor General to head of state. It embraces the unanimity formula but engages a unique process in which waiting for unanimity to materialize would precede the referendum rather than follow it. It turns on the will of the people of Canada as a whole by tabulating the referendum results nationally rather than by jurisdiction. The

process would have the added advantage of avoiding the disruption and expense of a referendum if unanimity is not attainable.

Why?

This proposal attempts to persuade by advancing a careful and measured formula for achieving the result. It avoids the question of whether Canada should dispose of the monarchy.

If, however, the question must be confronted, then why would Canada wish to make the change? Canada’s link to the monarchy is historically important. It has widespread support among Canadians. There is no loud clamour for its termination. Canadians value the continuity. And for 70 years the monarchy has provided Canada with a head of state who performed the role impeccably.

That said, there are reasons for reviewing the status of the monarch as Canada’s head of state. Consider this comparison of the proposed system with the current system.

By elevating the Office of Governor General to head of state, the country’s head of state would be selected in Canada by the prime minister after consultation with eminent Canadians.

This is a fundamental change. Since Canada’s foundation, its head of state has been an office that is inherited. The first born of the reigning monarch inherits the monarchy and becomes head of state for the U.K., Canada and other Commonwealth nations. Thus, Queen Elizabeth II inherited the office of Canada’s head of state when her father, King George VI, died. This means the rules of succession for a family that is among the most privileged and entitled in the world determine who is head of state for Canada. These rules, incidentally, are not fixed, and Canada’s role in any revision is limited and formally non-existent.

History dictates that there is no guarantee the dignified and unimpeachable performance of Queen Elizabeth II will be repeated by her successors. It is beyond argument that King Charles III will not emulate his mother. He is too old to ever celebrate a golden jubilee on the throne. More to the point, it is uncontroversial that, given his personal history, he is precluded from achieving his mother’s gloriously unblemished stature. As well, the current conflicts within the royal family do not augur terribly well. And if the past is a reliable guide to the future, the reigns of Charles I and Charles II are sufficient to illustrate the risks of selecting our head of state in this manner.

The proposal contemplates regular renewal of the incumbent head of state. The term of office of the Governor General is six years. The possibility of an extension addresses the risk of emergency circumstances and is unlikely to be invoked very often. The office would therefore be in-

fused at regular intervals with fresh and contemporary Canadian talent and perspectives.

Under the prevailing system, the only assurance that the incumbent will change is that the monarch cannot live forever. The extent to which the monarch reflects Canadian interests and values is necessarily diffused by the number of countries for which the monarch is head of state, not to mention the reality that the U.K. demands priority. It is also dependent on the inclinations of the monarch, although Canada has no complaint about this aspect of the system in recent decades.

For these reasons, it is respectfully submitted that a domestic head of state as proposed would serve the country more effectively. It is time for Canada to consider patriation of its head of state.

Questions

Several questions can be anticipated on the basis of comments received in response to drafts of this proposal.

Won’t any proposal for repatriation of the head of state be controversial and become a surrogate for other conflicts leading to intractable divisions that are likely to defeat the objective? Is it realistic to think that either Quebec or Alberta would agree to end the role of the monarchy without dealing with other constitutional grievances and conflicts?

These questions are aimed at the same issue and, given Canada’s experience with constitutional amendments, they are also entirely valid. And there is no bullet-proof answer. The proposal seeks to minimize the incentive for other constitutional grievances to interfere by adopting an incremental approach and limiting the scope of the required amendment. The unique legislative foundation should also reduce this potential problem. But only by implementing the plan will it be possible to ascertain its success in this respect.

Why would Canada’s Indigenous peoples agree to the patriation of the head of state if they don’t have any role in the decision-making process? Why would Indigenous peoples agree to the Governor General title for head of state given the historic record of the federal government with respect to Indigenous peoples?

How would this process work in the context of reconciliation? How would the process for achieving consensus take into account the reconciliation process? Would the legislation and the repatriation process be legitimate if Indigenous peoples are not actively involved in some way?

All of these questions address an issue of utmost importance. Canada’s Indigenous peoples must be involved. But there is no attempt to exclude Indigenous peoples from the proposed process. For example, subsection

3(5) of the Referendum Act, which would be emulated in the proposed legislation, provides that the referendum question shall be available “in such aboriginal languages” after consultation with Indigenous peoples’ representatives. The input of Indigenous peoples is invited and, inevitably, it will bear on both the process and the substance of the amendment.

If the federal government enacts the proposed Patriation of the Head of State Act unilaterally, wouldn’t there be push back from segments of civil society as well as other governments and Indigenous peoples? How would the process attain buy-in from other levels of government and Indigenous peoples?

Only one element of these questions has not been answered above: the unilateral character of the proposed federal legislation. In this respect, the proposed Patriation of the Head of State Act would be no different than the Referendum Act, which is the existing federal legislation respecting constitutional amendments.

Does the monarchy have a role in the process?

Yes, but it is a formality. As matters now stand, the reigning monarch appoints the Governor General on the advice of the prime minister. The reason this is a formality is that, by convention, there is no option for the monarch to refuse the advice. Under the proposed amendment, this role of the monarchy would disappear. The prime minister, after consulting the Head of State Appointments Committee, would simply appoint the Governor General as head of state.

Why keep the Governor General office and/or title? Why not adopt “President of Canada” or other title that clearly communicates the break from colonial tradition? If the change is merely symbolic, shouldn’t the symbol be more clearly indicated?

Again, the philosophy of the plan is to keep it as simple as possible in order to avoid the complexities as well as the emotional provocation of a full-tilt republican proposal. It assumes that bringing home the office of head of state will be less controversial if titles and offices are not radically altered.

The proposal contemplates the appointment of the head of state by the prime minister, a highly undemocratic process that centralizes the power in the hands of one politician. Why go through the trouble of a constitutional amendment in order to perpetuate such an elitist process?

To repeat, the proposed question and process are based on the notion that Canada is likely to prefer an evolutionary shift away from the monarchy rather than a blunt and brutal transformation. As far as the elitism of the process is concerned, the introduction of a Head of State Appointments Committee and the requirement that the prime minister consult with the

committee before making an appointment are substantive improvements. The prime minister currently is not bound to consult beyond the Cabinet before the Governor General is appointed.

If the proposal for a minimalist process is intended to avoid backlash, is it worth the trouble in order to achieve so little?

Some backlash is probably inevitable. Only adoption and implementation of the plan will reveal its extent. For the reasons given above, the proposal is designed to reduce the backlash to a minimum. To address the descriptor “little”, it is not accurate to dismiss the patriation of Canada’s head of state as only a little achievement. One must not mistake the significance of the proposed change. Canada would have its own head of state. This is not a matter of little consequence.

Is it conceivable that the Senate, the House of Commons and all the provinces would bind themselves to abide by the outcome of the referendum? Governments may lose elections between making the commitment and the referendum. What form of commitment would suffice? How would the referendum campaign be organized? Who could campaign? How would the campaigns be financed? What happens if the results of the referendum are very close?

Many details of the proposed process will demand greater consideration and, perhaps, refinement, possibly even further legislative attention. It is not possible to anticipate every potential contingency. But initiating the process would ensure issues are addressed and resolved.

Why would ordinary citizens find the proposal compelling or exciting?

Precisely because it heralds the full maturity of the country as an independent nation with its own head of state.

ENDNOTE

news-pmn/king-charless-coronation-should-canada -become-a-republic/wcm/1f33816f-9b4e-49b6a1b0-40868621c95d/amp/>.

1. Philip Resnick, “King Charles’s Coronation: Should Canada Become a Republic?”, National Post (7 March 2023), online: <nationalpost.com/pmn/

ELECTRONIC TRIALS AND CHANGE IN BRITISH COLUMBIA’S JUSTICE SYSTEM

By Kate Gower

In 2020, COVID-19 visited a “huge unscheduled pilot” of new tools on courts worldwide. Driven by the urgent need to keep the figurative doors of justice open, justice systems pivoted to various forms of “remote court”. In four months, remote courts were up and running in 56 countries.1

In this article, I curate the story of electronic trial processes in British Columbia both before and after the declaration of the COVID-19 pandemic and use it as an entry point through which to explore change in British Columbia’s justice system. I take up the invitation of the Action Committee on Access to Justice in Civil and Family Matters to focus attention on the people who use the justice system.2 I do so conscious of Access to Justice BC’s statement that taking a user-centred perspective has the power to be transformative.3 As the justice system considers how to pivot in a changing world, I posit that how we define “users” affects how change happens. My goal is to illuminate how unexamined assumptions such as about who “users” are may be inadvertently limiting access to justice.

AN EXPERIENCE WITH CHANGE

Before I tell the story of new tools in B.C. courts and engage with the nature of change, I want to share the experience that started me thinking about how to improve access to justice by improving court processes. In 2013, I was the lawyer charged with making an electronic trial happen for a case concerning Treaty 8: West Moberly First Nations v. British Columbia. 4 West Moberly was a complex, multi-party case with a voluminous evidentiary record. The parties disclosed over 19,000 historical documents and maps concerning the making of the treaty. The common book of documents, which included only what the parties considered to be the “key” documents, contained 3,376 documents. All parties agreed that the only reasonable way to manage this volume of material at trial was in the electronic environment. We successfully created and used a simple electronic trial platform

(the “West Moberly E-Trial Platform”) to both present evidence and enter it with the court.

In this article, when I use the terms “e-trial” and “e-hearing”, I am referring to hearings where new tools (programs and processes) allow the court to view and receive digital documents. In the West Moberly e-hearing, an electronic document could be put to a witness, that witness could mark up a document in the digital environment and the marked-up document could be entered as an exhibit. For example, a witness could review Exhibit 123 (perhaps an image of where an accident occurred), the witness could add further markings (perhaps to illustrate where they were standing when the accident happened) and that marked-up document could be entered as the next exhibit (Exhibit 124). The new tools that facilitate e-hearings can be used to support both in-person and remote hearings, but they do not replace current court filing procedures.5

We created the West Moberly E-Trial Platform to meet the needs of our case in 2014. We did not use proprietary software. The platform was simple and easy to use. It could be set up in a standard courtroom with no internet connection. A full description of the platform is available elsewhere,6 but the platform was successful because we paid close attention to the needs of the lawyers and the court. For example, to address concerns about learning new tools, we carefully set up the naming conventions for documents to preserve the usual language lawyers use in court (for example, it was still possible for counsel to say in court, “I would like to take you to Tab 1234, document BC123456, in the e-Common Book”). A key goal was to ensure that the court could review and receive evidence digitally. I was pleased when, at a Canadian Bar Association discussion, the trial judge commented positively that all the evidence from trial was contained on a laptop just one centimetre thick.

While some counsel remained unconvinced of the efficacy of the e-trial platform on the first day of trial, by the end of the first week all parties had used the platform. By the end of trial, witnesses for the plaintiff First Nations had used the technology to mark land use on digital maps and the e-trial had saved all parties and the court time and money. I shared the story of the West Moberly E-Trial Platform at seminars for others in the justice system and imagined everyone else would give it a go.7

Three years later, no one else had given it a go. I developed a theory that change was not happening because people in the justice system were unaware that new tools were being used in courts in British Columbia and across Canada. To address this, I launched a website to aggregate and share stories about electronic trials.8 I imagined that others would use the infor-

mation on the website to cross-pollinate their experiences, and then everyone else would give it a go.

Once again, no one else gave it a go. The justice system remained unmoved.

USING NEW TOOLS BEFORE COVID-19

In 2017, I reviewed information available about e-hearings in Canada’s courts. I found limited resources from which I or others could learn. No one appeared to be tracking the frequency of e-hearings or collecting materials on e-hearings.9 Only a handful of court decisions mentioned that electronic processes had been used.10 A few documents titled “E-Trial Plan” were filed with the Federal Court of Canada.11 I found informal references to Toronto’s Commercial List running hearings electronically, but could find no documentation guiding this process. The Ontario Bar Association and The Advocates’ Society had published high-level papers on e-hearings,12 and a few articles described ad hoc electronic litigation in Canadian courts. I was almost alone in sharing stories of improved process at continuing legal education presentations.

Across the Atlantic in England and Wales, a different story was unfolding. After a spending freeze, the Crown prosecution service recognized it needed to revise its processes to meet budget targets. It calculated that it could manage the cost of printing the paper used, but the costs of movement, filing and eventual destruction were too expensive.13 An English company won the competition for new software designed to replace old paper processes, and the program “CaseLines” was installed in every Crown Court in England and Wales in 2016. By October 2017, 200,000 cases were stored online in CaseLines, and the program was being used daily by over 1,000 judges for trials and hearings.14

With this background in mind, we approach the “huge unscheduled pilot” COVID-19 caused. In May 2019, the B.C. government and judiciary actively considered CaseLines at a meeting in the Microsoft building in Vancouver.15 That year, a series of e-hearings ran in the B.C. Supreme Court. In the spring, a wills variation case, Hutchison v. Moore, used CaseLines in the Victoria and Vancouver courthouses.16 In the summer and fall, an Aboriginal title claim, Nuchatlaht v. British Columbia, used CaseLines for a series of applications.17 The West Moberly E-Trial Platform was brought back into court in May 2019 to argue costs in that matter.18 In September 2019, trial began for another Aboriginal title claim, Cowichan Tribes v. Canada, using an Ontario e-trial program called “REDI”.19

There was still little or no public discussion of these new tools. There was almost no mention of e-hearing processes in court decisions. In fall 2019,

the B.C. courts released the Court Digital Transformation Strategy 2019–2023, and electronic trials were placed in the fourth of five phases.20

USING NEW TOOLS AFTER THE DECLARATION OF COVID-19

The COVID-19 pandemic was declared in March 2020.21 Worldwide, justice systems began pivoting to various forms of “remote” court. On March 27, 2020, a collaboration in the United Kingdom launched the website “Remote Courts Worldwide” to connect justice system workers globally, and to offer a space “for people who work in the justice system to exchange news of operational systems, as well as of plans, ideas, policies, protocols, techniques, and safeguards”.22 The goal was, in part, to avoid “unnecessary duplication of effort across the world”. By mid-July 2020, remote courts were up and running in 56 countries.23

The U.K. courts held their first remote hearing on March 24, 2020, using a video platform and e-hearing tools. It was the day after the country announced a “lockdown”, and the justices and parties were all located in different places.24 In the next two months, in addition to scores of cases in the lower courts, the U.K. Supreme Court held 17 video hearings and delivered 24 judgments, and the Judicial Committee of the Privy Council held 17 video hearings and delivered 12 judgments.25

In Canada, the justice system struggled to respond. Former Chief Justice Beverley McLachlin called for help making change happen: “I am writing to lend my voice to the growing list of practitioners, judges, academics and court users who are beseeching governments across Canada to see COVID19 and the courts’ woeful inability to pivot as a wake-up call.”26

Four months later, Ontario courts announced that the Ministry of the Attorney General had secured CaseLines for the Ontario Superior Court of Justice, and that it would launch the program in August. Chief Justice Morawetz announced the move in a memorandum to the bar and legal associations;27 the plan was to have the program running in all courts by the end of 2020. The Superior Court posted a rolling notice providing updates on the program’s use.28 Chief Justice Morawetz described how it had always been his goal to modernize the Ontario courts and that they had used change managers to facilitate the shift to new tools.29 Justice Fred Myers commented that the rollout of the new tool owed much to having “the right chief at the right time”.30

In British Columbia, each level of court had its own experience with new tools in response to the unprecedented effects of COVID-19,31 but for this article I focus on the experience at the B.C. Supreme Court. On March 18, 2020, the court released a notice titled “Supreme Court of British Columbia

- Closed Courthouses and Suspended All Regular Court Operations” (the “March 18 Notice”).32 All civil and family matters were adjourned, and applications could be made to the court only for essential and urgent matters. The notice provided a link to a new form created to request hearings—the “Request for Urgent Hearing Form”—and listed new processes for filing for and conducting hearings. A series of notices followed that revised and amended the court’s processes to allow incrementally for new ways to file documents, swear affidavits and hold hearings. The March 18 Notice was revised and replaced on March 30, 2020 by Notices #4 and #5, which were in turn revised and replaced several times. Between March 18, 2020 and June 7, 2021, the court issued 44 COVID-19 notices.33

On June 7, 2021, Notice #44 informed the profession that the Supreme Court had created a File Transfer Server (“FTS”) “to allow parties in remote hearings to transmit documents electronically to the Court so that they can be accessed by presiders”, and stated that “[t]he FTS is to be used for transmitting documents to the judiciary”. As a pilot project, the FTS was available only “at the request of parties or counsel only in insolvency matters” (emphasis in original). In Part IV, the notice set standards for uploaded documents, which included having a numbered index, having a file name that corresponds to the tab allocation in the index and being searchable.34

Chief Justice Hinkson and Justice Masuhara (Chair of the Joint Court Technology Committee) provided several online video updates on the court’s process. In presentations in April 2020 and May 2021, Chief Justice Hinkson and Justice Masuhara said that the court was agnostic toward any new technology and thus chose not to impose a new tool on the bar. They listed concerns including the open court principle, the right to be heard and seen, challenges users may have with new technology, the erosion of formality, the de-skilling of younger lawyers and the levels of strain and stress in video hearings.35

In 2021, CaseLines was used before the court for the trials of Ding v. Prévost, A Division of Volvo Group Canada Inc.36 and Sidhu v. Hiebert 37

Also in 2021, an Aboriginal title claim, Nuchatlaht v. British Columbia, 38 provided a small, unscheduled, side-by-side study of two new tools: CaseLines and the FTS. The court provided the FTS for the parties. The plaintiff chose to continue its practice of using CaseLines to present its portion of the application. The plaintiffs ensured that the judge, court and all parties had access to a CaseLines hearing folder for the application; however, counsel for British Columbia declined to use CaseLines and conducted his submissions using documents loaded to the FTS.

Both tools allowed parties to transmit documents to the judge and to other parties. CaseLines also offered a user-friendly interface that allowed

parties to load materials of any size and file format, search a term across all documents, navigate intuitively and direct the judge, a party or a witness to any page without their needing to turn to it and to make private or public notes or highlight documents in different colours.

During submissions by counsel for British Columbia, counsel wished to put documents to the witness. He found that, with the FTS, he was not able to do so. The witness, the judge and counsel were all in separate locations, and the witness had not been given access to the documents in the FTS. With the approval of counsel for British Columbia and the judge, plaintiff’s counsel provided the witness with access to the CaseLines file, and thereafter used CaseLines to direct all parties, the judge and the witness to any documents counsel for British Columbia wished to review and/or put to the witness. The process of setting this up took less than five minutes. The difference between the two tools was obvious: one made the hearing possible, while the other did not.

CHANGE

I offer three points.

First, let us interrogate the construction of the “user” to date. A growing body of legal design research is showing the value of using the experiences and needs of users to guide improvements to functionality.39 Fundamental to this approach is having an understanding of who the users actually are.

Notice #44 appears to construct the user as the judiciary: the FTS makes it possible to “transmit” documents to the judiciary and allows “presiders” to access documents for remote hearings. I accept that a key part of the justice system is ensuring the decision maker has the evidence on which to make a decision. However, the evidence here suggests that the users are a larger group.

When members of the judiciary spoke about adapting to a new operational normal in B.C. courts, they mentioned needs, rights and challenges of “users” who include lawyers and the people who come to court to try to resolve their legal problems. In the Nuchatlaht application, counsel for British Columbia would have been unable to continue without the functionality offered by CaseLines, so both the court and counsel benefitted from that new tool. In the two CaseLines trials, the remote hearings included a screen that displayed the document being discussed in court, a feature not traditionally afforded to those in the gallery. In another e-trial, clients were able to view the transcript of the proceedings in real time, which significantly changed the experience for those who were hard of hearing or who preferred written to spoken words. In the Nuchatlaht trial in 2022, the court

created an “overflow room” where the Nuchatlaht members and the public watched the court case remotely. Finally, the Nuchatlaht trial was also an opportunity for court services to gain experience with a new tool.

It is hard to intentionally bring about change when it is not clear for whom one is making the change happen. In my opinion, we should be more deliberate in identifying all the “users” we are considering.40

Second, let us imagine a small user group, perhaps one composed of only the judiciary and lawyers. Since notices to the profession are standard practice, we might posit that an acceptable pivot could be achieved with a series of notices to the profession. We might also posit that a notice setting standards for using an FTS would be an acceptable way to make change happen.

Two assumptions are embedded in this theory of change. The first assumption is that it is possible and desirable to list every requirement necessary to ensure a new process runs smoothly. I agree there are certain essential processes and procedures that must be carefully managed. However, I submit that the list of essential processes may not be as long as some imagine. I think there is value in identifying the essential processes because I believe that would create space for all users to benefit from humancentred design processes as change happens in courts.

In fact, this is beginning to happen in e-trials already. In Ding v. Spittal and Sidhu v. Hiebert, sections for certain documents are already repeated as standard sections (for example, “Trial Schedule”, “Trial Record”, “Draft Transcripts” and “Certified Transcripts”). After that, these e-trials operated as examples of the human-centred design approach. A design option, CaseLines, was presented to the users (i.e., all those involved in trial). The design of the new tool is user-friendly and intuitive. There was an initial learning curve, in which users gained confidence that the skills they already have from using other computer programs are applicable (for example, searching across documents using the same Boolean searches used in libraries, and “dragging and dropping” new documents into the e-trial program using the same motion used on personal computers). Then, as the trial progressed, users flagged certain processes as having room for improvement. I have then seen scenarios where the users identify an issue and watched as both REDI and CaseLines updated their programs in response.

When we pursue change through detailed notices, we are choosing not to engage with the growing body of work on human-centred legal design.41 Evidence is building that it is possible to maintain the essential elements of court process while also benefitting from iterative design processes that use user experience to improve functionality. I will return to those processes and benefits in a moment.

The second assumption is that the users are a remarkable group. They are a homogenous set of legal actors who can follow processes that shift and change through any number of different notices. They consistently and accurately prepare indexes, and create and type in document names.

I think we should be careful not to overestimate how well lawyers can or will follow set processes.42 If our theory of change relies on assumptions that a comprehensive manual will be uniformly read and scrupulously followed, then I suggest that these assumptions, and this change initiative, will fail.

My third and final point is that the evidence shows that when new tools are used in B.C. courts, those involved experience new possibilities for improving legal process. For example, in the early e-trial on the West Moberly E-Trial Platform, the lawyers began trial by creating digital replicas of the binders they would have used to examine a witness in the paper environment. Some named their documents according to the tab the documents occupied in their examination binder. However, as trial progressed, parties learned they could appear in court with a list of document names and use the copies already available on the e-trial platform. This development brought improvements in time and money in pre-trial preparation and reduced the volume of the documentary record.43 In the Nuchatlaht applications and trial, the parties and the court successfully ran a cross-examination in a remote hearing. Those involved now have a base experience on which they might consider the next level of functionality.

When users engage with new tools that work, they “learn by doing” and accrue “user experience”. When they find that they can rely on a new tool, there is space for them to see and consider new possibilities. They can offer evidence-based opinions on what processes matter and on others for which there are improved processes that work. I submit that learnings like these will blossom whenever an e-trial is conducted. In Ontario, the judiciary, lawyers, court administration and those using the courts to solve their legal problems have already accrued several years of these experiences, in a way that the B.C. justice system has not. In my opinion, this user experience has value, and none of the users in our justice system benefit from not collecting it.

How could we collect this evidence in British Columbia? What is the bare minimum British Columbia would need to do to gain experience with these new tools? As mentioned earlier, the B.C. Supreme Court launched a pilot project to use its FTS for insolvency matters.44 Perhaps it could run a pilot project using CaseLines or REDI in chambers applications that are more than two hours. The B.C. Supreme Court recently launched a pilot elec-

tronic filing project for masters chambers on Vancouver Island, but this is with respect to filing documents with the court, rather than for use in the hearing itself. I offer applications over two hours because these are generally document-based applications that could benefit greatly from document management tools, and they are heard at set dates and times, giving all involved time to prepare. If there are infrastructure concerns—for example, ensuring adequate internet connectivity45—then the pilot project could be located in one courthouse where internet connectivity is reliable, or in one courtroom where a landline could be supplied. I offer these ideas to illuminate different possibilities to gain experience.

CONCLUSION

Twenty-five years ago, John Kotter identified eight steps to creating successful change. 46 Kotter’s first step is establishing a sense of urgency, and COVID-19 created that in the justice system. In this article, I have described the experience of change in the B.C. Supreme Court and placed it against a backdrop of changes at courts in Ontario and the United Kingdom. I have considered how decisions about “users” affect how change happens and suggested that the unexamined construction of the “user” is causing the B.C. justice system to miss opportunities for change.

To summarize, I offer my three points as questions:

1. Who is the “user” in this change scenario? If the user is more than the judiciary, how could we—or should we—construct the “users” of the system as change happens in our courts?

2. What are the assumptions embedded in the recent changes? Are we overestimating the ability of legally trained users to follow detailed notices? Are we overestimating the utility of written manuals?

3. How can we best gather and assess information on users’ experiences with the new tools here in British Columbia?

ENDNOTES

1. Richard Susskind, “The Future of Courts”, The Practice (July/August 2020), online: <https://clp.law. harvard.edu/ knowledge-hub/magazine/issues/ xzremote-courts/>.

2. Action Committee on Access to Justice in Civil and Family Matters, Access to Civil and Family Justice: A Roadmap for Change (2013) at 7, online: <www.cfcj-fcjc.org/sites/default/files/docs/2013/ AC_Report_English_Final.pdf>; Action Committee on Access to Justice in Civil and Family Matters, Challenge and Change: Canada’s Justice Development Goals (2020) at 19, online: <static1.square-

space.com/static/60804beaba3bc03016513a59/ t/609d9ab372b8f876777a7ee9/16209414950 00/jdgreport2020challengechange.pdf>.

3. Access to Justice BC, “Shift to a User-Centred Perspective”, online: <accesstojusticebc.ca/user-centred/>.

4. West Moberly First Nations v British Columbia, 2017 BCSC 1700, aff’d 2020 BCCA 138, leave to appeal refused 2021 CanLII 2825 (SCC).

5. Susskind, supra note 1.

6. Kate Gower, “The Modern Courtroom: Digital Exhibits and the West Moberly Electronic Trial Platform”, Litigation Update 2016: Current Trends in

Trial Tactics and Advocacy (28 October 2016) (unpublished, available upon request).

7. I presented at sessions at or organized by CLE-TV, the Trial Lawyers Association of British Columbia, the Canadian Bar Association, the Pacific Business Law Institute, the Annual Pacific Legal Technology Conference, the Trial Lawyers Association of British Columbia’s Women Lawyers Retreat, and the Federal Court – Aboriginal Law Bar Liaison Committee.

8. Gower Modern Law, online: <gowermodernlaw. com>.

9. Information on e-trial processes tends to be held by a few service providers: Kate Gower, “Using Technology in Aboriginal Litigation: Current Trends in E-trials”, Aboriginal Litigation and Negotiation (12–13 December 2017) (unpublished, available upon request).

10. Bank of Montreal v Faibish, 2014 ONSC 2178 at paras 1–5; 1159465 Alberta Ltd v. Adwood Manufacturing Ltd, 2010 ABQB 133, Schedule 1 - Judicial Comments About the Electronic (Digital) Trial, Sections 1.1 – 1.17.

11. Southwind v Canada, Docket: T-2579-91, E-Trial Order dated June 15, 2016.

12. Gower Modern Law, “E-Trial Resources”, online: <gowermodernlaw.com/e-trial-resources/>.

13. Henry Brooke, “The Digital Court System – The Future Has Arrived” (20 November 2016), online: <sirhenrybrooke.me/2016/11/20/the-digitalcourt-system-the-future-has-arrived/>.

14. Caroline Hill, “Litigation: CaseLines Reaches Milestone – Over 50 Million Pages in the System”, Legal Insider (18 October 2017), online: <legaltechnology. com/2017/10/18/litigation-caselines-reachesmilestone-over-50-million-pages-in-the-system/>.

15. The meeting was not publicly reported.

16. Gower Modern Law, “Victoria Courthouse Runs Second E-Trial” (12 April 2019), online: <gowermodern law.com/2019/04/victoria-etrial/>.

17. Gower Modern Law, “E-Hearings for Chambers Applications”, online: <gowermodernlaw.com/ 2019 /10/e-hearings-for-applications/>.

18. West Moberly First Nations v British Columbia, 2018 BCSC 1440.

19. Gower Modern Law, “Cowichan Tribes E-Trial Well Underway in Victoria” (2 October 2019), online: <gowermodernlaw.com/2019/10/cowichan-etrial/>.

20. British Columbia, Ministry of Attorney General, Court Digital Transformation Strategy 2019-2023, online: <www2.gov.bc.ca/assets/gov/law-crime-and-justice /about-bc-justice-system/justice-reform-initiatives /digital-transformation-strategy-bc-courts.pdf>.

21. World Health Organization, “WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19” (11 March 2020), online: <www.who. int/director-general/speeches/detail/who-directorgeneral-s-opening-remarks-at-the-media-briefingon-covid-19—-11-march-2020>.

22. Remote Courts Worldwide, online: <remotecourts. org>.

23. Susskind, supra 1.

24. Lord Reed, “The Supreme Court During Lockdown” (20 June 2020), online: <www.supremecourt.uk/ watch/lord-reed/the-supreme-court-during-lock down.html>.

25. Susskind, supra note 1. The UK Supreme Court and the Judicial Committee of the Privy Council provide a streaming service of hearings and decisions at <www.supremecourt.uk> and <www.jcpc.uk>. See also Mary Ryan et al, Remote Hearings in the Family Court Post Pandemic (London: Nuffield Family Justice Observatory, 2021), online: <www.nuffieldfjo.org. uk/wp-content/uploads/2021/07/remote-hear ings-in-the-family-court-post-pandemic-report0721.pdf>.

26. Beverley McLachlin, “Access to Justice: Justice in the Time of Social Distancing” (31 March 2020), online: <www.thelawyersdaily.ca/articles/18386/accessto-justice-justice-in-the-time-of-social-distancingbeverley-mclachlin>. See also Gower Modern Law, “Watching Canada’s Justice System Pivot” (31 March 2020), online: <gowermodernlaw.com/ 2020/03/justice-system-pivot/>.

27. Gower Modern Law, “Ontario Courts Launch CaseLines E-Trial Platform” (30 July 2020), online: <gower modernlaw.com/2020/07/ontario-courts-launchcaselines-e-trial-platform/>.

28. “Supplementary Notice to the Profession and Litigants in Civil and Family Matters Regarding the Caselines Pilot, E-Filing, and Fee Payment” (2 September 2020, updated 17 December 2020, 7 January 2021, 24 February 2021, 9 April 2021, 19 April 2021, 17 June 2021, 5 October 2021 and 8 November 2021), online: <www.ontariocourts.ca/ scj/notices-and-orders-covid-19/supplementarynotice-september-2-2020/>.

29. Canadian Institute for the Administration of Justice, “Hybrid Courts: The New Operational Normal” (12 May 2021), online: <ciaj-icaj.ca/en/library/ videos/webinars-cpd/#goto-2021-webinar-serieson-court-modernization-justice-forward>.

30. Justice Fred L Myers & Kate Gower, “The Essential Guide to Preparing and Navigating Electronic Documents for Remote Advocacy”, Canadian Bar Association (23 February 2021).

31. For example, see the 2022 Annual Report of the Court of Appeal for British Columbia, online: <www. bccourts.ca/Court_of_Appeal/about_the_court_of_ appeal/annual_report/2022_CA_Annual_Report. pdf>.

32. “Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings” (18 March 2020), online: <www.bccourts.ca/supreme_court/ documents/Notice%20of%20Suspension%20of%20 Civil%20and%20Family%20Proceedings%20%20March%2018,%202020.pdf>.

33. Index to notices available online at <www.bccourts. ca/supreme_court/documents/COVID-19_Index_ of_Notices.pdf>. However, notices that were replaced are no longer available online.

34. “Notice to the Public and Profession Regarding Use of the File Transfer Server – Insolvency Proceedings –COVID-19 Notice No. 44” (7 June 2021). The June 2021 version is no longer available online. It was revised on September 17, 2021, and nine changes were made to the text: <www.bccourts.ca/supreme_ court/documents/COVID-19_Notice_No.44_Use_ of_th_%20FTS_(File_Transfer_Server)_in_Insol vency_Proceedings.pdf>.

35. LexisNexis Canada, “Justice Adapting: British Columbia Courts” (29 April 2020), online: <www. youtube.com/watch?v=J_VjU3wTCJU>; Canadian Institute for the Administration of Justice, supra note 29.

36. Ding v Prévost, A Division of Volvo Group Canada Inc., 2022 BCSC 215. In the final paragraph of the reasons for judgment, the Honourable Justice E.M. Myers writes “I thank counsel for the courteous and effective way they conducted this lengthy trial, all during the challenging time of COVID. Given the huge volume of documents and the remote appearances of the witnesses and some counsel, this case could not have been conducted other than with the use of an electronic document management system: no hard copies were necessary. Counsel are to be commended for their collaboration in setting this up.”

37. Sidhu v Hiebert, 2022 BCSC 1024.

38. Nuchatlaht v British Columbia, 2021 BCSC 370.

39. See e.g. Access to Justice BC, supra note 3; Margaret Hagan & F Kürsat Özenç, “Guest Editor’s Introduction” (2020) 36:3 Design Issues 2; Jane Morley & Kari D Boyle, “The Story of the BC Family Justice Innovation Lab” (2017) 34:1 Windsor YB Access Just 1 at 19, 25; Shannon Salter & Darin Thompson, “Public-Centred Civil Justice Redesign: A Case Study of the British Columbia Civil Resolution Tribunal” (2016–2017) 3 McGill J Disp Res 113.

40. See e.g. the “user personas” used to assess new tools in Margaret Hagan, “A Human-Centered Design

Approach to Access to Justice: Generating New Prototypes and Hypotheses for Intervention to Make Courts User-Friendly” (2018) 6:2 Indiana Journal of Law and Social Equality 200.

41. Gordon Ross, “Airlines, Mayonnaise, and Justice: Reflections on the Theory and Practice of Legal Design and Technology” (2020) 36:3 Design Issues 31.

42. For a user’s perspective on this, see “A User’s Perspective on the Justice System During the COVID-19 Pandemic” (29 May 2020), online: <accesstojustice bc.ca/2020/05/a-users-perspective-on-the-justicesystem-during-the-covid-19-pandemic/>.

43. See calculations by William G MacLeod, QC, in Gower Modern Law, “E-Trial Costs – What the Evidence Shows” (2 December 2019), online: <gower modernlaw.com/2019/12/e-trial-costs/>.

44. See Court COVID-19 Notice No 54, online: <www.bccourts.ca/supreme_court/documents/ COVID-19_Notice_No.54_Masters_Chambers_ Pilot.pdf>.

45. Internet connectivity will always be a minimum requirement for using e-trial tools. In Cowichan Tribes, an order was entered prior to trial that the parties and court staff would coordinate to ensure the courtroom had a functioning internet connection (online: <gowermodernlaw.com/wp-content/uploads /2019/08/19-07-24-Canadas-Consent-Orderre-REDI-Analysis.pdf>). Three Assistant Deputy Ministers collaborated to create an internet connection to support that e-trial. Later, it was determined that a new landline was required, and I volunteered my time to secure that landline. In the Ding v Spittal and Sidhu v Hiebert e-trials, the reporting company ensured internet connectivity.

46. John P Kotter, Leading Change (Boston: Harvard Business Review Press, 2002).

CASE COMMENT: McCLEAN v. THORNHILL

By Joel Nitikman, K.C.

In Part II of my article “I Am Sure I Am Right (But I Might Be Wrong): A Tax Professional’s Duty to Warn a Client About Weaknesses in a Tax Opinion”,1 I referred to the U.K. trial decision of David McClean v. Andrew Thornhill QC [now K.C.].2 That decision has now been affirmed by the Court of Appeal for England and Wales. What follows is a summary of the appeal decision.

The appellants (plaintiffs below) were some of the persons who had invested in a film tax shelter involving various limited liability partnerships (“LLPs”). The LLPs were formed for the purpose of participating in the distribution of films. Participation in the LLPs was marketed to investors on the basis that, for income tax purposes, they would be entitled to deduct losses that the LLPs were anticipated to incur and thereby shelter their regular employment or business income. Because of new U.K. tax decisions handed down between the time the LLPs were formed and the time they were audited, the tax scheme failed. Her Majesty’s (at the time) Revenue and Customs (“HMRC”) denied almost all of the appellants’ (and all other investors’) claimed tax deductions. HMRC made a settlement offer to the investors, all of whom accepted.

Thornhill was a tax barrister, although here he was acting as a solicitor. The promoter of the LLPs retained him to give the promoter an opinion on whether the tax shelter “worked”—that is, whether the LLPs would have losses that the investors could deduct. He said “yes” in an unqualified opinion. Thornhill knew that his opinion would be given to the investors. However, the information memorandum (“IM”) under which the LLPs were marketed said that the investors were advised to obtain their own tax advice in respect of the tax shelter and, in fact, had to sign a form confirming that they had received such advice before they could purchase units of the LLPs.

When HMRC denied most of the tax deductions, the appellants sued Thornhill. The appellants claimed that Thornhill owed them a duty of care in respect of the advice he gave to the promoter. The appellants had (they claimed) relied on that advice in acquiring LLP units and argued that Thornhill breached that duty of care.

The trial court concluded that Thornhill did not owe a duty of care to the appellants (then plaintiffs) for his advice in relation to the tax losses. Thornhill was not engaged to advise the plaintiffs and they were not his clients. Thornhill could assume, reasonably, that the plaintiffs would obtain independent tax advice, as the IM advised them to do (and indeed as they were required to confirm that they had done).

Insofar as the claim was based on Thornhill’s failure to warn the plaintiffs that there was a significant risk that his opinion might be wrong, the trial judge found that the promoter had represented, implicitly, to the investors that the promoter’s understanding of Thornhill’s tax analysis (that the tax shelter worked) was consistent with Thornhill’s opinion. But, the trial court held, this told the investors nothing about the terms in which Thornhill’s opinion had been expressed or the extent (if any) to which it was qualified by any risk warnings. Therefore, Thornhill had not, directly or indirectly, represented to the plaintiffs that his opinion was right absolutely, so he had no duty to warn them that it might be wrong.

Moreover, even if Thornhill owed the plaintiffs a duty of care, he would not have breached it. On a detailed review of the tax law as it stood at the time and as it had developed since then, the trial court concluded that Thornhill’s opinion was one that a reasonably competent tax Q.C. could have given.

In addition, the plaintiffs had not established that Thornhill caused their losses. As a matter of law they could not claim, and as a matter of fact they could not prove, that the schemes would not have been promoted at all if Thornhill had advised the promoter correctly.

The plaintiffs appealed. The Court of Appeal dismissed the appeal in a lengthy judgment by Lady Justice Simler. Lady Justice Carr wrote a much shorter concurring opinion. Sir Julian Flaux, Chancellor of the High Court, agreed with both.3

On appeal, the appellants’ arguments were as follows:

i) The judge was wrong to treat this case as raising a question whether an adviser on one side of a commercial transaction owed a duty of care to the opposing party. Mr Thornhill was not acting as an advising barrister in any ordinary sense. He was intentionally making himself part of the sale process in relation to its most critical aspect. As the judge found, there was no conflict of interest.

ii) Correctly characterised, this is a prospectus case, which is distinguishable on the facts from NRAM.[4] A prospectus such as the IM is a classic source of pre-contractual representations despite seller and buyer being on “opposite sides of the transaction”. Mr Thornhill was essential to the selling of the Scheme and expressly consented to the contents of his opinions being reflected in the wording of the IM (which he approved) without any disclaimer of responsibility.

iii) In relation to the language and legal effect of the IM and core documents, Scotts [the promoter] properly accepted responsibility for the contents of the IM and represented that:

a) it believed the tax benefits would be available to appropriate individuals;

b) it had taken reasonable steps to check this position;

c) those reasonable steps included taking advice from Mr Thornhill;

d) Mr Thornhill had given unequivocal advice that the position was as set out in the IM.

iv) Neither the warranties set out in the subscription agreement, nor the statements signed by investors for SAD2 and SAD3 [the LLPs] in the checklist, nor the statement in the IM that prospective investors are “advised to consult their tax advisers” affect this analysis. In particular, the judge was wrong to treat relevant provisions of the IM and subscription agreement as requiring investors to obtain duplicative tax advice covering the same ground as covered by Mr Thornhill’s opinions, namely the likely availability of the tax benefits as a matter of general principle. On a proper construction of the relevant provisions, they only required investors to take advice on their own individual tax positions against the backdrop of the advice provided by Mr Thornhill.

v) The judge was wrong to conclude that it was unreasonable for investors to rely on Mr Thornhill’s advice without making independent inquiry in relation to the likelihood of the Scheme achieving the tax benefits and that Mr Thornhill could not reasonably have foreseen they would do so. Independent inquiry plays no part in the NRAM test at paragraph 19 properly construed. Even if it did, the inquiry would have to be of an adviser of equivalent status. As the judge himself emphasised, any such inquiry by an investor or their adviser, would to Mr Thornhill’s knowledge, absent a disclaimer of responsibility, start with reasonable reliance on Mr Thornhill’s unequivocal endorsement of the tax benefits. These facts accordingly supported the existence of a duty of care and did not prevent a duty of care from arising.

vi) Accordingly, it was reasonable for the appellants to rely on the representations and assertion that there was no doubt that the Scheme would work to obtain the tax benefits; and further, it was reasonable for Mr Thornhill to have foreseen that the investors would do so. He was an expert whose conclusions were central to the investments which the investors were being persuaded to make and chose to allow himself and his advice to be used to sell the Scheme. He voluntarily chose to act in a way which most barristers would never act and allow his definitive advice to be identified as the basis for investment.

vii) The judge was also wrong to draw any distinction between the investors who saw (or whose IFAs [independent financial advisers] saw) Mr Thornhill’s opinions and those who did not. Given the express acceptance of responsibility by Scotts, the naming of Mr Thornhill, the availability of his advice and the statements as to the taxation effects on investment, the IMs were informing the investors of the material terms

of Mr Thornhill’s opinions. If those opinions had been qualified in any way, the terms of such qualification would have had to be set out in the IMs but they were not.

viii) The judge was also wrong to decide that UCTA 1977 [Unfair Contract Terms Act 1977] did not apply so as to make the warranties in the subscription agreement subject to the requirement of reasonableness within section 2. The warranties were in substance and effect, a “no reliance” clause, intended to exclude liability on the part of Scotts and Mr Thornhill. Had the judge correctly concluded that UCTA 1977 applied, he ought then to have decided that the warranties did not satisfy the requirement of reasonableness given their terms, their lack of clarity and the drastic consequences of a requirement that investors were required themselves to investigate whether the tax benefits of the Scheme would be achieved.5

Significantly, the appellants did not argue that Thornhill had a duty to warn them that his opinion might be wrong. But see below under “Breach of Duty”.

COURT OF APPEAL’S DECISION Justice Simler

Justice Simler analyzed and dismissed each of the appellants’ arguments.

Duty of care

On Thornhill’s potential duty of care, the important point was that the investors were, in essence, the opposite party to the LLP transaction on which Thornhill was advising. The issue, therefore, was whether the facts met the NRAM test for a professional having a duty of care to the opposite party. Justice Simler held that, generally, a lawyer does not owe a duty of care to the opposite party, but one might “exceptionally arise” where the lawyer makes representations to the other party on which the other party relies.

However, such reliance is not enough to create a duty of care. In addition, it must have been reasonable for that party to have relied on the lawyer’s representation and the lawyer should have foreseen reasonably that it was likely that the other party would do so. It is “presumptively inappropriate” for a party to rely on opposing counsel’s opinion and it will be for the plaintiff to show that the plaintiff was entitled to rely on it without investigating independently whether the lawyer’s representation was accurate.

On a related point, Thornhill neither stopped being a tax advisor to the promoter nor became a neutral or independent tax expert on which all parties could rely. He was at all times the promoter’s tax advisor, so that the rules above for opposite parties applied. That conclusion was not affected by the fact that everyone had a common interest in the tax shelter working

and the tax benefits being achieved. The investors and promoter remained “commercial counterparties to an arm’s length transaction”. It was reasonably to be expected that anyone in the investors’ position (i.e., “with sufficient wealth and potential tax liabilities to be a potential investor in a tax avoidance scheme of this kind”) would and could obtain “easy and convenient access” to independent tax advice.

The conclusion was that, in these circumstances and absent good reason to the contrary, the “default expectation” was that the appellants would not rely on Thornhill but would obtain their own tax advice.

Nor did the IM, on a fair reading, promise that the tax deductions would be allowed by HMRC. The IM stated that its tax analysis was based on the promoter’s “understanding of current UK tax legislation and published practice”. This qualified any representation being made. It made it clear that the promoter was saying simply that it believed Thornhill’s tax advice to be correct, not that either the promotor or Thornhill represented or promised that it was correct. The promoter represented that it believed that the tax shelter would work and the tax benefits would be available. It did not say that the promoter was right to have that understanding (or belief) and “there is nothing that can fairly be construed as any sort of guarantee that the tax benefits would materialize”.

The IM’s only representations as to Thornhill’s advice were that the IM’s tax analysis was based on the promoter’s understanding of current law and practice, that it had obtained advice from Thornhill and that the IM’s tax analysis was (by implication) consistent with his advice. That did not morph into a representation that his advice was correct and “still less that his advice was unequivocal” (although in fact it was—see below).

Nor did Thornhill’s agreement with the IM’s tax advice create an “unequivocal representation” that HMRC would allow the claimed deductions: “His unequivocal statements of legal opinion about the legal effects of the Scheme were not statements of fact that there was no doubt that the Scheme would work to obtain the tax benefits”.

And, on that point, Justice Simler rejected the argument that any doubts that Thornhill had on the ability to claim the deductions had to be stated in the IM. If he had such doubts but nevertheless thought that they could be overcome on a correct legal argument, such doubts did not have to be stated expressly in the IM’s summary of the tax ramifications of the investment.

Breach of duty

Having held that there was no duty of care, Justice Simler went on to ask if Thornhill would have breached his duty had he had one. She held he would have.

Thornhill’s opinion turned on whether the LLPs were trading on a commercial basis with a view to profit. According to Justice Simler, the proper way to ask the breach question was as follows: “could a reasonably competent tax silk [“silk” is a U.K. term for a K.C.] have advised that there was no doubt that the LLP was trading on a commercial basis with a view to profit without any qualification at all?”

Justice Simler emphasized that this was not the same as asking if there was a separate duty to warn that Thornhill’s opinion might be wrong, but rather a question of what Thornhill should have advised investors on a reasonable basis had he owed them a duty to give them advice (which he did not). According to Justice Simler, Thornhill knew (or, in this hypothetical scenario, would have known) that the investors would rely on him for advice on this critical point. While the IM contained certain risk warnings, they were general in nature; there were no specific warnings as to the satisfaction of the three critical tax issues. Accordingly, Justice Simler concluded that Thornhill’s unequivocal opinion would have been a breach of duty (had there been one):

In the circumstances of this case and in light of his findings, it seems to me that had the judge addressed the gravamen of the appellants’ case on breach, he could not but have concluded that no reasonably competent tax silk could have expressed such an unequivocal view in relation to the three statutory tests, even on the strength of Ensign Tankers [the leading U.K. decision at the time Thornhill gave his opinion]. This unequivocal view did undermine the accompanying warnings in the IM. Non-negligent advice would, at least, have acknowledged that no two cases are factually the same, and accordingly no existing authority could be said to cover the circumstances of the LLPs’ case exactly; and that the three statutory tests each engaged a risk of challenge by HMRC. Accordingly, notwithstanding the presence of IFAs and the requirement for investors to take their own tax advice on the tax consequences of the Scheme, I consider that reasonably competent tax advice should have identified the risks. To this extent only, in my judgment the judge was wrong to conclude that had a duty of care been owed by Mr Thornhill to the appellants, it would not have been breached.6

Speaking for myself, I think Justice Simler drew a very fine line here. She did not say that Thornhill had (or would have had) a duty to warn that his opinion might be wrong, but that there was (or would have been) a duty to say that, in light of the case law as it stood at the time, Thornhill could not say unequivocally that the facts were covered by precedent, so that HMRC might challenge the deductions (even if he honestly and reasonably believed that it would lose that challenge). Intellectually, I see the distinction. In practice, it appears to me to amount to very much the same thing.

Causation and reliance

However, had Thornhill had a duty of care and had he breached it, it would

not have mattered because the appellants could not prove causation. They argued that, had Thornhill drafted his opinion to the promoter properly, the IM and its tax advice “could not have been expressed in the terms they were” and so the deal never would have occurred; no investor would have invested in the LLPs.

Justice Simler was not persuaded: Even if Mr Thornhill negligently overstated his advice, I am not persuaded that non-negligent advice would have warned that there was a significant risk of a successful challenge to this Scheme. This was the appellants’ own self-imposed threshold for success on causation on the above basis. The appellants came nowhere close to establishing this or that the IM would have had to be differently worded, for the reasons given by the judge. As the judge held, Mr Thornhill could at one and the same time hold and express a very firm view as to the answer to the trading question, while acknowledging that an alternative view might be taken by others. On this basis I cannot see that the IM would have required any different wording. In my view the judge’s conclusion on this aspect of the case on causation cannot be impugned.7

Again, Justice Simler drew a very fine line. She held that Thornhill’s opinion (had he owed the appellants a duty of care) should have said that HMRC might challenge the deductions because the application of the law to these facts was uncertain, yet also held that Thornhill could warn of a challenge without believing it had any real hope of succeeding and so the tax advice in the IM was appropriate.

Justice Carr

In her concurring opinion, Justice Carr held (despite her initial reservations to the contrary) that Thornhill had no duty of care to the plaintiffs. In her view:

A specialist professional who voluntarily provides unequivocally positive advice to their client in the knowledge:

i) that the advice would be made available to a third party without any express disclaimer of responsibility; and

ii) that the third party would be likely to “take comfort” from that advice and (with their advisers) be assisted by it in deciding whether to enter into a financial transaction, exposes themselves to the risk of a claim that they owed the third party a duty of care based on an assumption of responsibility.8

However, despite there being “multiple factors pointing in favour of the existence of a duty of care”, at the end of the day they were “not enough to get the appellants home”. The IM was the “gateway” to Thornhill’s opinion. By telling the investors to get their own tax opinions and, probably more importantly, by telling Thornhill that no investor could buy LLP units with-

out confirming in writing that they had obtained such advice, the IM negatived any duty that Thornhill might otherwise have owed to the appellants.

CONCLUSION

The takeaways from this appellate decision are as follows:

1. a tax shelter in the form of an unregulated scheme that can be accessed only through authorized professionals is more akin to an arm’s length sale transaction than a prospectus case;

2. opposing counsel do not, as a general rule, owe a duty of care to the other side in a commercial transaction;

3. to have a duty of care, it must be reasonable to assume that the other party will not make independent inquiries as to the correctness of the lawyer’s representations;

4. a party’s statement that it believes its views on a particular point to be true after having taken legal advice on the point is not a statement that the advice is correct; in fact, it is implicitly an invitation to obtain independent advice on the point;

5. a party’s requirement to certify that he or she has obtained independent advice, particularly where that party has (or can be assumed to have) a high net worth and suitable investment sophistication, will, in most cases, absolve the opining lawyer from having a duty of care to those so certifying; and

6. when the state of the law or the application of the law to the facts is uncertain, an opinion must say so or otherwise acknowledge that the opinion could be challenged; there is no requirement to say it could be challenged successfully, if a competent tax lawyer in the same position reasonably would not think it would be.

ENDNOTES

1. (2023) 81 Advocate 349.

2. [2022] EWHC 457 (Ch).

3. [2023] EWCA Civ 466 [McClean].

4. Steel v NRAM Ltd (formerly NRAM Plc), [2018] UKSC 13, a decision that restated the test for when a person has assumed responsibility toward another.

5. McClean, supra note 3 at para 85.

6. Ibid at para 167 [emphasis added].

7. Ibid at para 170 [emphasis added].

8. Ibid at para 175.

CALL AND RESPONSE: MUSINGS ON ENTERING THE PROFESSION

By Daxton Boeré

When are you getting called?”

I got asked this question too many times to count in the weeks and months leading up to my call—friends, family, lawyers at my firm, opposing counsel.

“May.” I’d pause. “If everything goes according to plan.” It was mostly a joke—mostly, but not entirely. An easy way to laugh off the excitement I felt from others—an excitement I was not quite yet allowing for myself.

It didn’t feel real. I’m still not sure it does.

It’s not as if I thought it wasn’t going to happen. I made it over every hurdle. The finish line that had loomed in front of me for so long was in sight. That same line is now, somehow, behind me. And still, I can’t quite believe I’m here.

I imagine I’m not alone in feeling this way. It’s almost natural, isn’t it? After the relentless succession of steps that need to be taken to get to this point, after the exams and the degrees, the hunt for articling positions, the reports and checklists for the Law Society … after everything, you think you can’t possibly have actually made it to the other side.

For me, though, there’s something more to it. Something that lay beneath every moment since I started law school. Something that made me doubt more than usual whether I’d get to the end (recognizing, of course, that this “end” is really just another starting point).

I didn’t think about being transgender when I went into law school. At least, no more than I thought about it going about my everyday life. I didn’t know any lawyers and I didn’t really think about how my identity would impact my career.

I had been out as nonbinary for six years when I applied to law school. Seven and a half when I started 1L. When I graduated, I had been out for ten years. An entire decade. A third of my life. It’s eleven now. Eleven years since I came out. Ten since I’ve been Dax. Nine since my birth certificate has said “Daxton”.

I came out at a time when people barely knew what transgender meant. For so many, I was the first trans person (certainly the first nonbinary person) they had ever met. If you don’t know, transgender means that I don’t identify as the gender everyone thought I was supposed to be. Nonbinary means I do not identify as a binary gender. I am not a man and I am not a woman. I use they/them pronouns because I am not a he and I am not a she. I feel mostly like I don’t identify with a gender at all, which is a very hard feeling to describe.

I used to feel like I could not exist in my skin. Like the body that housed me, the body that raised me, was an unliveable space that I would never be able to escape. Being able to transition, coming out, having the right name and pronouns used for me, those all helped that feeling. Growing into myself turned a sensation that overwhelmed every moment into a background hum that I now rarely notice.

I entered law school sure of myself and secure in my identity and immediately found out that the profession I so badly wanted to join might not want me back.

I wouldn’t say that there was a giant “trans people not welcome here” sign, necessarily. Though there were certainly some situations that got close. Overall, though, it was more like a cascade of indicia that all together made it clear that my existence was unexpected and, worse, unwelcome. It was the statutes and judgments that spoke of all humans as “he” or “she”. It was the sessions on appearing in court that told us in detail how men should dress like this and women should dress like so. It was the gendered ways we addressed justices (though that has thankfully changed). It was scrolling firm websites during on-campus interviews (“OCIs”) and not seeing a single person who looked like me. It was arguments over whether lawyers should say their pronouns in court. It was the impression I was given that the only workplaces where I could be out and respected were government positions and social justice work.

Through it all, I carried on. I wrote pithy articles on trans rights in law school. I started a club for trans students to connect us with each other. At OCIs I asked every firm “do you have a gender-neutral bathroom?” A question as much practicality as activism. (The utility of it somewhat dampened by my absolute failure to remember which firms responded in the affirmative!)

In many ways, my gender identity is one of the least interesting things about me. Yet it has been ever-present in my journey to enter law. Underneath everything I do, there is me and this is who I am.

“They” sometimes feels very apt for the multiplicity I feel within me. Each time I am misgendered there is the me that is hurt and annoyed and

there is the me who understands that re-wiring a brain after 30 or 50 or 70 years is a challenging endeavour. There is the me who prepares for court by reviewing my cases and re-reading my speaking notes and there is the me who sits and wonders if I will have the courage—or will even bother—to correct the judge if they call me Ms. instead of Mx. There is the me who wants to be the first, to make a path for others, and there is the me who thinks they wouldn’t mind being fifth, or twelfth, or fiftieth instead.

From what I can tell I am the first they/them lawyer at a big downtown firm in Vancouver.1 The first out nonbinary associate in this space, though hopefully not the only one for very long.

I might be the first nonbinary lawyer you ever meet. I know that. This may all be unfamiliar. I know that too. For some, I might be the first nonbinary person you ever (knowingly) meet. Your tongue may slip over the theys and thems, or the “Mx.”, and I or someone else will need to (gently, firmly) correct you. You may struggle to adapt your language and, even, the way you think about other people and the world.

It might be new and it might be hard, is what I’m saying. But who are we as lawyers if we are not willing to do new, hard things?

Articling—practising—was new and hard, for me. I think probably for everyone. Articling was challenging, fun, incredible, occasionally demoralizing, and a significant amount of work. It was filled with learning and trying. It was peppered by days in court: equal parts exhausting and exhilarating. And there were some truly delightful surprises along the way—the standout of which must be learning that I enjoy the law in practice much more than I did in school.

I have asked perhaps more than my fair share of questions. I have had the opportunity to educate in return. In spite and because of who I am I have made it through all the obstacles I faced to get here.

I am grateful for the mentors who have taken the time to teach me and who have shown me what kind of lawyer I want to be (diligent, reliable, tenacious).

I am grateful for those who came before. For the incredible trans (and especially nonbinary) lawyers who did this first. For the queer lawyers who came out in the profession and dared to bring their full authentic selves to work. I am grateful for the women in law—those who came into a profession full of men and carved out space for the rest of us. Grateful for those women who, long before I started fighting for the use of “they” instead of “he or she”, fought for “he or she” instead of simply “he”.

I am one of the first to be where I am and yet so many others have built this path for me, left a legacy of change and growth I can only hope to live up to.

It is an odd thing to strive so hard to join a profession that you aren’t even sure actually wants you. But as my call day loomed closer and closer, as making it to actually being a lawyer came close enough to touch, I felt certain that I was ready to be here—and I was right.

For me and for every one coming after me. For those who will be able to flip through firm websites and see someone who looks like them. I’m ready. I’m excited. I’m here.

ENDNOTE

1. I would love to be wrong about this: please let me know if I am.

STING (NOT THE SINGER)*

By Catherine Crockett

The last client arrived at 5:00. I was on the dreaded Friday afternoon Lawyer Referral duty: multiple half-hour sessions of free legal advice.

I appreciate now that it’s a way of giving back to the community. But I was a young associate back then. I viewed myself as a commodity, valued by how much money I brought in to the firm. I would have to make up the Friday afternoon billables on the weekend.

I marched to meet the client on painful pointy heels. They matched my most imposing black suit, offset by a highlighter-yellow blouse. My goal was to move the final referral swiftly from office to exit.

I met the client in our three-chair reception area. Family law clients rarely travel in pairs, and doesn’t everyone prefer that spare chair between themselves and stranger danger?

I could see instantly that this meeting would not increase my billables. The client had frizzy grey hair in Roseanne Roseannadanna style. She wore a gauzy muumuu in swirls of green with pink and blue blotches. Like someone threw up Monet’s water lilies and made a dress out of it. And the ubiquitous mushroom-brown Birkenstocks (do they come in other colours?) She was knitting. Or maybe crocheting. One of those plastic needle activities with wool.

“Ms. Zellas?” I inquired.

She finished her stitch before acknowledging me. “I am Madam Zellas.”

I suppressed an eye roll. She put her yarn into a giant black leather purse and secured its brass buckle with a thunk. It was like a doctor’s bag. She had the imperious air of a doctor too.

“I’m Karla Stringer.”

“You’re the lawyer?”

Seriously? Did I mention I was wearing my power suit? I didn’t smile, and led her wordlessly to my office. I moved my half-empty coffee mug to the credenza and checked the time on my watch as I slid behind my desk: 5:03 p.m. Immediately to business.

* This story came first in the 2022 Advocate Short Fiction Competition. Entries were required to deal, if only incidentally, with legal subject matter and contain at least two of the following phrases: (a) “The wasp is only half-dead, madam”; (b) “It’s a Tweet. The truth doesn’t matter.” (or “The Truth doesn’t matter. It’s a Tweet.”); (c) “Well, I call it jazz.”

Madam Zellas told me that her daughter was not letting her see her fouryear-old granddaughter since the daughter started up with a new boyfriend. He was something of a control freak, in her opinion. She wanted to know what her rights were as a grandparent. She emphasized her “rights” by stabbing her index finger onto my desktop. She had a collection of silver rings on her right hand. One had what looked like a Dairy Queen ice cream shape on it. (Nowadays I would have mistaken it for a poop emoji.) Later I concluded it was a bee hive.

I dove into my law-on-grandparents spiel. “The courts look at this from one perspective: the best interests of the child. It’s not about your rights, or your daughter’s rights. Generally speaking, judges don’t interfere with parents’ decisions about with whom their children associate. But it depends on the relationship between the parent and grandparent, and the grandparent and the grandchild.”

I knew the law cold. I prided myself on that, and the fact that I was single and childless meant I could be objective. Too many family lawyers let their clients’ emotions affect their professionalism.

Madam Zellas told me some of the history and I explained how she could apply in court for access to her granddaughter. I concluded the conversation by handing her a photocopy of a case in which a Judge Kontrabash laid out the law on grandparents’ access in (mostly) plain English. As I leaned across my desk to hand it to her, I noticed my office was starting to smell vaguely of incense and whole wheat flour.

I was on track to be done well within her free thirty minutes. Hand off the case, tell her to read it at home, rise from my seat and … Madam Zellas gasped.

Judges’ decisions rarely evoke such reactions (okay, never, unless you’ve just been convicted of murder). I sat down again and gave her the eyebrow raise.

“Kontrabash. One of my first clients was named Kontrabash. Her avatar was a white-tailed deer.” Her focus remained on the case.

Avatar? I knew this would extend our session, but Curiosity won the arm wrestle with Impatience. “What sort of work did you do?”

She sat up tall in her chair. “I am a Medium. It is a calling. Not something you retire from.”

If she had “clients”, that was work, in my books. I didn’t pursue the point.

“So, do you predict the future, read tarot cards? That kind of thing?”

She did not suppress her eye roll. “The Sight is a gift. You can’t choose how it manifests.” She crossed her arms and looked away from me. “I do not engage in cheap parlour tricks.”

I’m ashamed to say her indignance amused me. Her being a Medium and all, I’m pretty sure she picked up on my skepticism.

“What’s an avatar, in your work? Does everyone have one?”

“It is not work!”

I waited her out.

“Yes,” she continued, “everyone has an avatar. It’s usually an animal, occasionally a flower or tree. I had one client who was a puddle, but only that one. Sometimes people know it, but mostly I find it for them.”

Of course she did. How else would she bill her hours?

“Can you tell just by looking at a person? What’s my avatar?” This would be worth it for the story to tell Friday night at the curling club bar, which I and other recent law school grads went to for the cheap beer. I was a bad Canadian, having no interest in curling or hockey.

She looked me square in the eye for an uncomfortable amount of time. I’m not one for direct eye contact, but I maintained the staring contest with my best neutral-judge face. She blinked first and shrugged.

“You gave me free advice. And that Kontrabash, she was generous. Always brought me perogies at Christmas time. They were a little doughy, but good flavour. I will try to contact your avatar. Give me your hands.”

She reached across my desk and took my hands in hers: right in right, left in left, so our arms formed an X. I noticed the left hand had only gold rings. The metal on her fingers felt smooth and warm, her hands dry. She had thick nails a drag queen would envy, but no polish. Our faces were closer now so I could smell her breath. Hints of Juicy Fruit. She closed her eyes and breathed deeply in through her nose, out through her mouth. Breath in, breath out, breath in, breath out. Mesmerizing. I found myself matching her pattern.

Just when I was wondering if this is what chair yoga feels like, she spoke: “I am listening to Nature. What will she tell us?”

“What does it sound like?”

“Well, I call it jazz. There can be voices, of people, or animals, or sounds of them moving through their environment. This time it is humming—no, buzzing. Gentle, gentle.” She thrummed her fingers softly against my wrists.

“I can see bees. They touch down so softly on the flowers. It’s a blackberry bush. Such a light fragrance. No thorns, so it’s not a wild plant. This is someone’s garden, a neat row against their fence. There are blossoms, but no fruit yet. That’s why the bees are here.”

Bees. That’s when I made the connection to the hive ring.

She continued. “I hear a grunting further down the row. I’m leaving the bees behind. These are different vines—light green, more delicate, with tiny thorns. And that slightly tangy smell. Long, red, soft, juicy, ripe raspberries!”

Please, dear god, no sexual metaphors …

She smiled, her eyes still shut. “And there’s the source of the grunting. It’s a black bear. She’s gorging herself. Pulling the berries off the canes with her mouth. And lower, there—not one, no, two cubs! They are breaking the stems and pulling all the lower berries to their mouths. They are not so delicate as their mother. The owner of this bush will not be happy.”

I was losing patience with the metaphors. “So, am I the bear?”

Madam Zellas squeezed my hands tighter. Her rings dug into the undersides of my hands.

“Wait! The mother bear is standing upright. Something is irritating her? A bee? No, the bees are doing their job elsewhere. She’s swatting—it’s a wasp! Is it protecting its nest? No … it’s alone.”

Okay, we have an epic battle here, but seriously, it’s a bear versus a wasp. Is it a legal metaphor? Is the wasp injustice? Is the bear the client seeking time with her grandchildren? I’m really not good at this.

“The wasp is so angry, slicing back and forth in front of the bear’s face. That whiny noise: zzzzzz, zzzzzz, ZZZZZZ. It’s aiming for her wet spongy nose. The bear drops to her side. She pushes her face into the soil under the raspberries and rubs her paws against her ears.”

“Did it sting her?” I mean, if I’m the bear, this is bad, right?

“One of the cubs, she thinks it’s a game. She rubs her head in the dirt too. The other one wants to join in. She jumps over the first cub; her leathery paws connect with her mother’s head and … I see red, it’s smeared on the cub’s paws … ”

“Did it sting the cub?” What if I was the cub?

I felt Madam Zellas’s hands relax. She rubbed her thumbs back and forth where our hands joined.

“Don’t worry. It’s just raspberry juice. I can see that now. So funny those cubs. Their game is done. The bears are back to their raspberries.” Madam Zellas sighed happily.

I was about to release my hands from hers. My palms were sweating— awkward. Suddenly she gripped my hands so tightly I squealed. She opened her eyes and stared somewhere past my head. I did a quick shoulder check, even though there was just a bare wall behind me.

“The wasp is only half-dead, Madam,” she bellowed in a Vincent Price voice. I yanked my hands away. That seemed to break her trance or whatever you call it when people channel horror film actors.

“What do you mean by that?” I demanded. “Is that an omen or something?”

She looked amused. “The bears are fine. My avatar is a mother bear.”

“Am I a bear too?” I was prepared to be insulted. She was the Mama Bear and I was the Baby Bear? Come on…

“I can’t be sure, but I don’t think so.”

“Maybe it means you will get to see your granddaughter soon?”

“No. It’s not about me. It’s about you.”

I waited. She looked sheepish and reached for her doctor bag on the floor.

“I’m not easily offended,” I assured her.

She placed her bag on her lap and fingered the hive ring.

“I am not sure, since we just met. But it seems to me you are the wasp.”

Okay, didn’t see that one coming. Now I was slightly concerned.

“You said the wasp was half-dead. That’s kind of like being a little bit pregnant or a little bit famous. You either are or you aren’t.” Was she predicting my death?

Madam Zellas appeared unconcerned. “If you are the wasp, on the bright side, you are still half-alive.” She popped her purse open and put the Kontrabash case inside. “I imagine you have plenty of stings left to deliver.” …

That meeting was fortyish years ago. I don’t believe in any of that mystic stuff any more than I believe in the Easter bunny, or God for that matter. Madam Zellas’s parting words did sting though. At first, I was angry. After she left, I kicked off my uncomfortable shoes and stomped to the break room to rinse my cold coffee down the drain. There was a sign above the sink that read “Clean your own dishes! Your mother doesn’t work here!” Why do people assume mothers do the dishes anyway? Mine didn’t.

As usual I was the last to leave the office. I stewed about my waspishness for the remainder of the evening.

To tighten up this tale, the next day I called Madam Zellas and offered to prepare an affidavit and help her fill out the court forms. No animal avatars attended our next meeting. I don’t know if I was trying to prove to myself or to her that I was not some nasty insect.

Turns out my pro bono work was, literally, for naught. The daughter left the boyfriend and needed daycare (also known as a grandmother). Madam Zellas dropped by to let me know she had cancelled the court date. She brought the granddaughter along and gave me a paper lunch bag full of what they said were cookies but I would describe as carob nut kibble.

“We put wheat germs in them,” declared Daisy the grandchild.

“Mmm! Who doesn’t love wheat germs?” I replied.

I kept working at the firm. I still dreaded Lawyer Referral Day. But I made more of an effort to get out of the office—not just for Friday beer nights. I joined a curling team in the fun league at the urging of my not-yet-

but-soon-to-be husband. (Still don’t like hockey though.) He was also a lawyer, but had a better handle on the whole work/life balance thing. We have a couple of kids. I did become the Mama Bear after all—at least that’s my interpretation.

I’ll cut this short—I’m heading out in a few minutes to pick up my grandcub from school. Free daycare, that’s the ticket to grandchild time.

We’re making granola today. I’ve lined up the ingredients on the counter: honey, canola oil, large flake oats, almonds, coconut and a myriad of seeds. And of course, the “wheat germs”. It’s a tedious process of baking, stirring, baking, stirring, but there’s no other way to obtain that crackly amber perfection. The warm honey and cinnamon smell will permeate the house.

Time to grab the car keys and put on my shoes. I can reheat that half-full mug of coffee when I get back.

By the way, Birkenstocks do come in other colours: mine are dandelion yellow.

THE LANCE FINCH MEMORIAL FUND AT TRU CALL

FOR DONATIONS

Chief Justice Finch loved the law and devoted many hours as a lawyer and judge to mentoring students, in particular in the area of oral and written advocacy. Chief Justice Bauman has stated: “Lance always commanded the respect of the legal profession in our province and his legacy of significant jurisprudence was acknowledged across Canada. He was a good colleague, a good friend, and a great judge.”

In figuring out how best to honour Chief Justice Finch’s legacy, TRU, Judy Finch (and the Finch family), the judiciary, and members of the bar decided on the establishment of a dedicated endowment in Lance’s name that can be used to advance the development of essential advocacy skills and to provide mooting opportunities to students at B.C.’s newest law school.

Since it was founded eleven years ago, TRU Law at Thompson Rivers University has taken its rightful place as a mooting competitor. Supported by 26 coaches, close to 200 students have mooted against teams from Canada, the USA, Germany, Estonia and Afghanistan. Fifteen TRU mooters have been chosen as clerks in the British Columbia Courts, the Alberta Court of Appeal, the Tax Court and the Federal Court of Canada. This endowment fund will help to ensure that law students develop the communication skills and confidence needed to become skillful advocates and leaders, whether in the courtroom or boardroom. Individuals, law firms, and businesses that wish to donate can do so by contacting Sarah Sandholm, Director of Development at TRU Law by email <ssandholm@tru.ca> or phone 250-377-6122.

Individuals can also give online: <tru.ca/giving>

Thank you for your generous consideration,

ORGANIZING COMMITTEE:

Peter Senkpiel, Thomas Cromwell O.C., Robert McDiarmid K.C., & Frank Quinn K.C.

Left to Right: Kiu Ghanavizchian, Sunny Sanghera, Gary Mynett, Lucas Terpkosh, Vern Blair, Rob Mackay, Farida Sukhia

THE WINE COLUMN

By Michael Welsh, K.C.*

Drinking good wine with good food in good company is one of life’s most civilized pleasures.

— Michael Broadbent

NAVIGATING A WINE LIST

You have booked a table for four at a Michelin-starred restaurant in your city, or at a new bistro that is getting rave reviews on social media. Your party is seated by the host or hostess who then presents the menus, followed by a thick bound book. You open it to see page after page of wine from around the world, or perhaps just from one country like Italy—but from every one of its many wine regions. Your party peruses the menu. One orders pan-seared salmon, another lamb shanks and another stuffed chicken marsala. You decide to have the orange duck (canard à l’orange). The server asks if you wish for some wine. As you consider your response, one person at the table reminds you that she only drinks red while another says that he only likes white. You flip through the many hundreds of choices, some costing hundreds and even thousands of dollars. Your eyes glaze over. What to do? [Stop drinking? Dip into your line of credit? – Ed.]

Or you are handed a fresh sheet with limited seasonal options of food and wine, and you are not sure if any of the six wines listed will work for your party. Again, what to do?

* 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.

You think maybe it’s time for a beer, but then the craft beer options also go on for a couple of pages. Recalling the words of Andre Simon, another famous wine writer, that “food without wine is a corpse; wine without food is a ghost; united and well matched they are as body and soul, living partners”, you go back to the wine list.

For those who like wine with their meal, this is a periodic dilemma from whose horns it is hard to extricate yourself (especially as I have set it up with food and preference choices that almost eliminate a general wine option).

Start by going back to basics, and with luck a table that accords more in similar food and wine tastes. What type of food are you having? Italian, French, South Asian, East Asian, Germanic, seafood, West Coast fusion? That cuisine will often limit the choices. Heavy red wines do not fare well with South or East Asian foods, or most seafood dishes. A rich Italian or French dish, or a steak or other red meat, will battle with a lighter, more acidic white. The food and wine should match in intensity. Sweeter wines do better with spicier foods, as they hold up to and tame the heat. Salty foods are likely to make your wine taste fruitier and more acidic, and they can be a good counterbalance to tannic wines. High acid food can balance very acidic wines. With luck that should remove several pages of wine from those for consideration.

Next, look at how the wine menu is organized. Traditionally, and still seen in most “high-end” restaurants, the list is by colour, country and region. With this format, there is an assumption you know something (if even only a little) about where wines come from and their characteristics. For many of us, especially if the list is vast, this is an assumption with little evidence in support.

Fortunately, more casual (less stuffy?) restaurants have moved away from this model. Instead, they have begun listing their wines by a “style”, such as full-bodied, refreshing, or fruity (to name a few). If you are not confident about how the grape and region can influence the flavours of a wine, this format of a wine list can be more approachable.

If you are in a restaurant that specializes in a distinctive cuisine from a wine-making region (France, Italy, Spain or Germany, for instance), there is a reason why the wine list focuses on that same region. The food and wine have evolved together, and so will usually pair better together, eliminating some guesswork.

Still, at some point you must make a subjective choice: Is the wine you are considering fruity and voluptuous, or full-flavoured and deep? Will it overpower a salmon or be anemic with a steak? And if you have not tried it or at least something you know is similar (a red Bordeaux or Chianti style,

for instance), then these descriptions may be of limited assistance, especially as in some regions, including the Okanagan or California, where unlike places like France or Italy, there are no rules around their style. Wines from new world areas can straddle more than one category (dry or off-dry, rich and full, or light and delicate).

Going back to that group with eclectic menu choices, another idea is to eschew ordering a bottle at all. If the restaurant offers it (which most do now), consider wine by the glass. These wines are generally the most popular with the clientele and each of you can go with a wine that matches your food and your wine preference. However, in a group setting, they are also the most expensive option. It becomes a question of whether you want good value or good variety. Another option is to follow that great Canadian tradition: compromise. If some of your table mates prefer or have menu choices that pair with lighter wines, and you are looking for something a bit heavier, look to a fuller Chardonnay or Sémillon or a rosé or a lighter red like a Gamay, Pinot Noir, Grenache (Garnacha) or Nebbiolo. Especially in summer, never fear to ask for an ice bucket to cool the reds as well as the whites.

Given we are well into the 21st century and everyone seems to live and breathe on a phone, another option is to use a wine app. There are several good ones out there. I wrote a column a few years back about how handy they can be if used properly. Well known examples are Vivino, Wine Enthusiast and Cellar Tracker, and there are Canadian options such as the one offered by Natalie Maclean. The potential downside of these apps is that they are generally based on reviews by consumers and many of those are not an objective analysis of the wine, but rather whether the reviewer enjoyed it. However, you may find some tasting notes on those wines you are considering that may assist.

Whatever your route there, once you get to that point of having narrowed down your choices, you can ask for a tasting sample of each before the final choice. If the wine choices are “on tap” and for sale by the glass or carafe, or are one of the more popular choices, many restaurants are happy to oblige. Just do not ask to sample the Château Margaux.

And that takes me to the best and most ready answer when you are floundering through that wine list. Ask for help. Reach out to the sommelier if the restaurant has one (and that Michelin-starred one with the tome of wines better have one). The sommelier likely participated in producing the wine list, so is familiar with most if not all of the wines on it. Each sommelier possesses the essential specific knowledge about their cellar, the provenance of its wines and their current states of development. Sommeliers

know their chefs (usually better than their spouses given they work most evenings) and can provide invaluable advice on matching wines to your menu selections. Be direct about how much you want to spend. (However, if you wish to be discreet, point to a wine in your price range on the list, rather than saying it aloud at the table. A good phrase while pointing is “I’d like it to be in this region.” With luck your table will think you are talking wine appellation, not price.) Explain the menu choices and, if you know, the general wine preferences of your table partners. And if you have time to plan, call ahead and discuss the list with the sommelier. There will be some wonderful options of wines, wine types and grapes you have never tried that can await that sommelier recommendation.

Finally, remember that the highest markups are generally on the cheaper wines, as restaurants know most patrons gravitate there and, as such, they can make the best profit by selling the cheap wine at a midpoint price. They cannot do that with more expensive wines and still get a decent volume of sales. It is worth aiming somewhat higher on that list to get a better wine for the buck.

While by no means covering even half a page of a decent wine list, here are a few differing ideas for various dishes and cuisines. While some are priced higher than my usual range, I go by that rule that the best deals on the wine list are the pricier options.

SUMAC RIDGE PRIVATE RESERVE GEWÜRZTRAMINER 2022 BC VQA Okanagan Valley, #142893 $15.99

For decades, Sumac Ridge Estate Winery in Summerland was the face of the B.C. wine industry. Founded in 1979, and the first estate winery in British Columbia, it was a leader in production of local wines from European grape varieties, experimenting with traditional sparkling wine, Bordeaux reds and lesser-known varieties such as Gewürztraminer. Unfortunately, it was bought out by local winery giant that in turn was bought out by an international one, and the brand was generally dumbed down to cheaper, entry-level wines. In April this year, the owner, Arterra Wines Canada, announced that this iconic Summerland operation is at an end, with winemaking and the winery itself closed immediately. As this passing marks the end of an era, I lead the reviews with this one. The Sumac Ridge Gewürztraminer has always been produced well and popularized this variety. It is vibrant throughout. Pale gold, on the nose you will find soft lemon-lime and rose petal, and on the slightly effervescent palate lychee, crisp citrus (especially white grapefruit) and apricot with a clean, slightly off-dry finish. It is great with South or East Asian or Moroccan/

North African dishes, lighter seafood or just sipping on a summer evening. Enjoy it while you can.

CRAGGY RANGE SAUVIGNON BLANC 2022

Te Muna, Marlborough NZ #614420 $31.99

Scoring 94 points on Wine Spectator and 92 by wine writer James Suckling, this New Zealand Sauvignon Blanc stands out from the pack. Te Muna means sacred place in M-aori. The vineyards for this wine are planted on limestone mineral type soils, which the winery says influence the wine profile. Only 12.5 per cent alcohol, it is aromatic and complex, and has a wider range of aromas and flavours than many of its rather straightforward grassy and sharp New Zealand cousins at lower price points. A pale straw yellow, it bursts out of the glass with vibrant aromas of white and ruby grapefruit, gooseberry, green apples and kaffir lime leaf, followed with rich flavours of more bright citrus, mixed with green pineapple and green mango fruit, with notes of ginger and wet stone on the long, juicy and lifted finish. Sauvignon Blanc is made for seafood, so from a seafood salad, smoked salmon, or oysters, to baked white fish in a butter sauce or prawns or scallops, it covers the waterfront. Also good are dishes with asparagus or green beans, pasta with pesto, soft-ripened cheeses, and chicken in a creamy mushroom sauce or with chimichurri or a fruit salsa, to name a few ideas. In addition to the BC Liquor Distribution Branch stores, it can be found at private stores like Everything Wine (where it is a couple of dollars cheaper).

CHABLIS - WILLIAM FEVRE CHAMPS ROYAUX 2018

AOC Chablis #25270 $37.99

Chardonnay seems sadly overlooked as a wine option in recent years, largely in my opinion due to the over-oaked, woody and over-the-top versions emanating from California. But if you turn instead to Burgundy, you can find complex and delicate versions that pair with many foods. This one is bright, refreshing and crisp. Five per cent of the wine was fermented in old oak barrels and the rest in steel. It rightly gets high marks from Wine Enthusiast. Its light aromas show preserved lemon, flint and melon, and the flavours are of lemon citrus and green apple and chalky minerals with light vanilla on the finish. Food choices really are wide, encompassing some of the same as with the Sauvignon Blanc, but other richer dishes as well. Seafood or mushroom risottos, scallops (Coquilles St. Jacques), lobster or crab with drawn butter, a poached spring salmon, roasted chicken or turkey or pork tenderloin all work. We tried it with a chicken stew in a creamy wine sauce with a mix of vegetables that paired wonderfully. You can ask me for the recipe.

CASSINI PINOT NOIR 2020

BC VQA Okanagan Valley #167007 $28.00 (Approx.)

Moving from white Burgundy to the grape of red Burgundy, this is one of the Okanagan’s best pinots. It is lightweight, which in my book is a good thing as many Pinot Noirs, especially from California, again are overripened, over-oaked and overkill. Subtlety is king with Pinot Noir. The grapes for this wine were harvested in the third week of October, destemmed and lightly crushed into open-top fermentation tanks. The winery says that temperature control during the fermentation, extended skin contact and pneumatage (a new and gentler method of “punching down” the skin cap) twice a day give it richer colour and extraction. Half of wine was aged in stainless steel tanks and the other half in three-year-old French barrels. A pale red, it has vibrant aromas of wild strawberry and raspberry mixed with some cranberry and floral notes, leading to a bright palate of red berry and cherry fruit framed with a just a touch of oak and vanilla. The tannins are supple and mild but balance the finish. The winery suggests it pairs well with turkey, chicken, duck, salmon, braised veal, wild mushroom risotto, light cheese and appetizers, which is a wide but reasonable range of ideas. I suggest Coq au Vin or Boeuf Bourguignon (of course), or if you are adventurous Escargot à la Bourgogne. It is available from Everything Wine, JAK’s, Legacy Liquor, or online from the winery.

CHÂTEAU LANESSAN BORDEAUX 2018

AC Haut-Médoc #50076 $45.00

The Bouteiller family has owned this 45-hectare vineyard and Grand Vin de Bordeaux-Médoc winery since the 18th century. This vintage scores 91 points on Vineous. Typically with younger Left Bank Bordeaux that are cabernet-based, this one started a bit closed, but opened up and softened as it sat. Dense purple, it has a nose with rich plum, red cherry and cassis (red currant) lashed with black licorice, vanilla and toasty oak. The flavours on the bright medium palate are more of that rich red fruit, with hints of vanilla, cedar and green tobacco. It has a long rich and smooth finish. It will age well for at least another decade. It pairs well with most types of meat, including charcuterie, or lamb (perhaps with garlic and rosemary), roast duck or beef (perhaps steak frites).

BORDERTOWN VINEYARDS & ESTATE WINERY CABERNET FRANC 2019

BC VQA Okanagan Valley #237266 $22.49

This flavourful Osoyoos version won gold at Wine Align National Wine Awards in 2022. It is a bigger wine than most that come from the French

home of Cabernet Franc, the Loire Valley. The past few decades have shown that Cabernet Franc does well in the southern Okanagan (Oliver/ Osoyoos) as a stand-alone wine. This one has rich aromas and flavours of sweet cherry pie. On the nose that is mixed with some cassis, raspberry and vanilla and on the palate plum, green tobacco, black tea and more raspberry and vanilla. Try it with richer dishes like lamb shanks or pork roast or burgers or pasta with red sauce and lots of cheese. In addition to the BC Liquor Distribution Branch stores, it is found at Save-On-Foods, many private liquor stores or the winery.

CHIANTI CLASSICO GRAN SELEZIONE - MULINO DI GRACE MOLINO 2016

DOCG Chianti, Italy #660217 $59.99

Selezione means choice. Gran Selezione is the highest classification of Chianti Classico, sitting above Reserva. Introduced in 2014, the Gran Selezione category stipulates a minimum of 30 months’ aging. Wines held back from 2010 and subsequent vintages were eligible for release under the new classification from its inception, so this vintage is one of the earlier. Deep purple, it was slightly dusty on the nose when opened, but with aeration showed a full olfactory bouquet with cherry and plum and black currant, with herbal notes of rosemary, green tobacco and a bit of ash. The complex spice-driven palate has more of that black fruit with a bright, lingering and slightly bitter finish with notes of almonds and well-balanced tannins. While eminently consumable now, it has good ageing potential for several more years. It is rated with 92 points from Wine Spectator and 96 from Falstaff International wine magazine. It is made for richer Italian fare, including cured meats, pastas with richer meaty sauces, grilled pork or veal, stews like Spezzatino di Manzo or Ciambotta, or pizza.

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BC LAW INSTITUTE

By Tejas Madhur*

REMEMBERING MAT GOOD

We begin our update on a sad note by remembering our longstanding board member Mat Good. Mat died on April 27, 2023. He was first appointed to the board of the BC Law Institute (“BCLI”) by the CBABC in 2017. Over his six years on the board, Mat was a member of the Executive, Audit and Program committees. He was also our vice-chair. His enthusiasm and commitment to BCLI were extraordinary, and his passing is a great loss to BCLI and to the legal community in British Columbia. We send our condolences to Mat’s family and all those who were closest to him.

WELCOMING PENSION DIVISION REFORMS

We were pleased to see that the recommendations in a BCLI report were incorporated into Bill 17 in the B.C. legislature in March. This bill introduces amendments to part 6 of the Family Law Act that implement BCLI’s recommendations on pension division reforms for separating spouses. These recommendations were published in our 2021 Report on Pension Division: A Review of Part 6 of the Family Law Act. They build on contributions of our Pension Division Review Committee, which spent two years generating these recommendations. Bill 17 addresses transitional provisions; private annuities; disability benefits; waiving survivor benefits after pension commencement; commuted value; transfer and calculation; and locked-in retirement accounts and life income funds.

* Tejas Madhur is the chair of the board of BCLI.

UNDERSTANDING OUR “RENOVATE THE PUBLIC HEARINGS” PROJECT – AN INTERVIEW WITH PROJECT COMMITTEE CHAIR, BRUCE WOOLLEY

BCLI has always relied on volunteers from legal and expert communities to help us with our work. Earlier this year, we established our Renovate the Public Hearings Project committee. This project brings new opportunities for BCLI, as we are committed to conducting a Reconciliation and Community Listening Exploration Series in parallel with the deliberations of the committee. We are grateful to Bruce Woolley, who has volunteered to chair this committee. We sat down with Bruce to talk to him about this project, and his work.

Bruce Woolley graduated from UBC law school in 1978 and was called to the bar in 1979. He has specialized in real estate, spending the last 45 years working both for law firms and as in-house counsel for Expo 86, Cominco, BC Enterprise Corporation and the Bank of Bermuda (now HSBC). Over the course of his career, he has represented the Real Estate Council of BC, now part of the BC Financial Services Authority. He has also represented the B.C. government in treaty negotiations with Indigenous peoples and has contributed to the development and implementation of the four modern treaties. This past term, Bruce taught Property Law at Allard Hall, where he also taught from 1988 to 1997, and has also taught for the Sauder School of Business Real Estate Division, and various real estate boards.

Our communications manager, Taja De Silva, sat down with Bruce. Here is a summary of their conversation.

Why is there a need to “renovate” public hearings?

Laws should reflect public needs and realities. When they no longer represent the public interest, the next step is to start thinking about law reform. This is a milestone we have now reached with public hearings under local government legislation in British Columbia.

The intended purpose of the public hearings process was to create a forum for the public to communicate with local governments on proposed rezoning bylaws that regulate land use, allowing local governments to gauge the public’s concerns and support. However, unresolved procedural issues have made public hearings unhelpful at times to both local communities and governments. Some of these issues involve timeliness and cost efficiency, whether the process is truly democratic and whether the process adds substantially to the resolution of the rezoning issue.

Rezoning of land use often raises important and contentious community issues. People who are truly affected by rezonings ought to be properly heard and their concerns addressed. We need to make sure that public hear-

ings are democratic and serve their intended purpose. This means responding to public criticisms with a coherent push towards meaningful reform. What inspired you

to commit to chairing BCLI’s Renovate the Public Hearings Committee?

BCLI has deep roots in our province, with its provenance being the Law Reform Commission of BC. Since that time, BCLI has been an important agent for change. BCLI has written many excellent reports, many of which I use in my teaching. BCLI’s Report on Section 29(2) of the Land Title Act and Notice of Unregistered Interests, for example, has been incredibly helpful to many of my students. I am delighted to have a part in BCLI’s work and I see this as a continuation of the great work of the Law Reform Commission.

My experience gives me a good perspective on these issues. It also affords me a unique opportunity to make meaningful contributions to law reform and to collaborate with a group of exceptionally caring, intelligent and motivated individuals brought together by BCLI.

What are you hoping this project will change or achieve?

Public hearings need to be both democratic and efficient in their approach. My hope is that the Renovate the Public Hearings Committee will create a series of concrete recommendations that accurately describe and identify necessary improvements, outline how improvements should be implemented and develop a better way to engage the public and reduce predevelopment risk and barriers to housing.

With the helpful emphasis on research and collaboration that BCLI brings to law reform, I expect that this project committee will be a good forum for coming up with solutions. Our final report will reflect the views of the committee as a whole.

What is unique about the perspective and expertise that you bring to the project?

While my deep understanding of real estate and property law will certainly guide how I approach the topic of reform for public hearings, it is the broad scope of what I have learned over 45 years of legal practice that I expect to be of most use to the committee. This background has taught me the importance of the rule of law, fairness, balancing viewpoints and considering all perspectives.

I have done a lot of project work throughout my career and what I have learned is to aim for success before you think about barriers or obstacles to avoid. In light of this, the committee’s main objective is to look for solutions. When I was supporting the completion of the four modern treaties or working on transitioning the Bank of Bermuda to HSBC, I knew that problems were bound to arise. I found that the best way to mitigate the impact of these problems is to centre solutions around opportunity.

You have important experience working to support Indigenous self-government. How will that experience be aiding you in this role?

I worked on the implementation of all four of the modern treaties on behalf of the province. I have a deep interest in Indigenous legal issues, and I know that Indigenous land use issues are unresolved and of deep importance. As we work toward reconciliation, it is important that we remain aware of how Indigenous considerations must contribute to law reform. These considerations are part of how we look to develop our recommendations as a committee. Something as simple as rezoning can have impacts on Indigenous peoples and any level of impact needs to be strongly considered by the committee. Aligning B.C. legislation with Indigenous governance is central to the committee’s goal to create a new and democratic approach to public hearings because democracy must also include Indigenous voices.

Is

there anything else you would like to share?

It is a pleasure and an honour to be involved in a BCLI project. I would strongly encourage all lawyers to participate in some way as a volunteer in the legal profession, whether at BCLI, the Law Society or another field of interest.

LAPBC NOTES

By the LAPBC Staff*

DEVELOPING RESILIENCE

During the COVID-19 pandemic, resilience became a popular term used to describe everything from supply chains to toddlers. Resilience is actually defined as our ability to adapt well and recover quickly after stress, adversity, trauma or tragedy. People with honed resiliencies may exhibit individual strengths and also have three common attributes.

One, they are realists and are able to accept their current circumstances. This means we need to accept that we are in the middle of a difficult period, that there is uncertainty surrounding our futures and frankly that we are scared. But it also means we need to recognize that this is a common experience, that there are many ways we can perceive this reality and that there is hope that this period and how we feel about it will change.

Two, resilient people are able to find meaning and purpose in their lives even during trying periods. A famous example about the development of this ability is the story of Victor Frankl and his ability to cope in a concentration camp during the Second World War. Frankl reminds us to focus on those things that make us feel valued and whole. Meaning and purpose take many forms, but they can be as simple as maintaining healthy working and eating habits and staying connected to your family and colleagues. We can also shed habits and relationships that steal our energy and sap our selfworth.

Finally, resilient people are improvisers, and one of the tiny benefits of the COVID-19 pandemic was that it caused us all to improvise and find new ways of living. The ability to shape our environment and resources to meet our true needs is a skill that has outlasted the pandemic. Maybe you have

* This column was a team effort by the capable and knowledgeable people at LAPBC.

become a Zoom or Teams expert, learned how to workout in your home, or become a creative chef or an educator within your family. It does not matter. If you are doing your best with what you have and finding new ways to get things done, then you are improvising—a key element of being resilient.

There is significant research and literature that suggest we can develop our resilience—that it can be increased through training. For example, one trait of resilience can be enhanced by learning to balance the positive and negative feelings generated by the positive and negative experiences in our lives. Put simply, the experiences of the positive events in our lives bolster our ability to cope with the negative events. By recalling the positive feelings and coping strategies, we are able to rely on these when confronted by the stress, anxiety and fear that come with negative life events. This form of resilience builds self-reliance.

The practice of using positive experiences to fuel us can be harder than we might expect. As lawyers and as human beings, we are hard-wired to focus on the negative. Even though the research shows that we actually experience three times as many positive events in our lives as we do negative ones, the majority of our focus and mental energy is expended on the negative things that happen to us. The positive things can easily melt into the background of our daily lives, and we can start taking them for granted. We have an inherent evolutionary negativity bias to overcome: we as a species would not have survived long if we had ignored dangerous wild animals to focus on the beautiful flowers. In addition to the survival instinct, some of us also focus on external negatives as protective devices for own sense of self—for example, finding in faults in others to make ourselves feel better. Further, some of us spend far too much time and energy on the things that deplete us rather than the things that build us.

So here is a quick three-minute exercise. Think about a positive life experience you have had. It can be anything from a recent compliment from a work colleague, to finishing a tough workout, to a hug from a loved one. If you are stuck, have a look around you. We often capture these moments with physical mementos like photographs, medals, souvenirs and art. Now close your eyes and remember how that felt, what you were thinking about at the time, how your heart was beating, the joy and calm, the sense of accomplishment and the feeling of satisfaction. Keep your eyes closed and take ten full deep breaths thinking only about how that positive experience felt. Now open your eyes; those feelings are your indicators of what is meaningful and important to your life. Current challenges and stresses can be balanced against them, and we need to remember the positive event is the one worthy of our time and attention, not the negative ones. Find

moments in your day to revisit a positive event, especially if you are becoming overwhelmed with negative ones, and build your resilience.

At LAPBC, we are always available to help at 604-685-2171 or 1-888-6852171 or <info@lapbc.com>, and you can check out our website at <www.lapbc.com>.

The Lawyers Assistance Program of British Columbia 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 604-6852171, toll-free at 1-888-685-2171 or via the LAPBC website: <www.lapbc.com>.

Compassion. Support. Education. All provided in the strictest of confidence. Every call we receive is treated as confidential. FOR

ANNOUNCING THE 2023 ADVOCATE SHORT FICTION COMPETITION

EL IGIBLE 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.

EL IGIBLE FICTION

A fictional work, written in English, to a strict maximum of 2,500 words that deals, if only incidentally, with legal subject matter. The contributor must be the author of the work, which must be entirely original and must not ever have been published or submitted for publication or consideration in a writing competition elsewhere.

DEADLINE FOR SUBMISSIONS

The close of business on Friday, September 1, 2023. 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 15, 2024. Contest judges may award fewer than three prizes if, in their judgment, they consider it appropriate.

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

TRANSFER OF RIGHTS

In consideration of having their fiction reviewed for:

(a) possible selection as winning entries;

(b) possible publication in the Advocate; and

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

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

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

PETER A. ALLARD SCHOOL OF LAW FACULTY NEWS

By Heidi Wudrick*

RESEARCH WITH IMPACT

Our faculty members are committed to both curiosity-driven research and work that responds to pressing societal challenges. We aim to impact policy, legislation and the lives of individuals and communities. Here we provide a snapshot of four recent projects and initiatives at the law school that engage with issues across criminal law, social policy and family law.

Indictment: The Criminal Justice System on Trial

A new book by Allard Law Professor Benjamin Perrin provides a rigorous critique of Canada’s criminal justice system, bringing to light stories of survivors and offenders. In Indictment: The Criminal Justice System on Trial (University of Toronto Press), Perrin calls for a trauma-informed, evidencebased approach to criminal justice. He examines Canada’s current treatment of victims of crime, Indigenous people and Black Canadians, people with substance use and mental health disorders, and people experiencing homelessness, poverty and unemployment.

As a professor of law and former lead criminal justice advisor and legal counsel to Prime Minister Stephen Harper, Perrin brings a wealth of experience to the topic. Indictment also includes insights from others on the frontlines, including prosecutors and defence lawyers, police chiefs, Indigenous leaders, victim support workers, corrections officers, public health experts, gang outreach workers, prisoner and victims’ rights advocates, criminologists, psychologists and leading trauma experts. Bringing forward the voices of marginalized people, along with their stories of survival and resilience, Perrin argues that a better way is possible. This project is supported by the Law Foundation of British Columbia.

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

Indictment will be available on October 3, 2023. A behind-the-scenes podcast will also launch September 12 on all major platforms. For more, visit <benjaminperrin.ca>.

Housing Assessment Resource Tools

Based at Allard Law and led by Allard Law Professor Alexandra Flynn, the Housing Assessment Resource Tools (“HART”) project researches databased tools and policy solutions that will help address Canada’s housing crisis. Funded by the Canada Mortgage and Housing Corporation (“CMHC”) Housing Supply Challenge, the project recently launched three new tools aimed at supporting policy makers in making evidence-based decisions to improve the quality of housing supply.

HART’s Housing Need Assessment Tool uses census data to measure housing need and affordable shelter costs by income category, household size and priority populations, with the goal of helping governments set effective housing targets to lift Canadians out of chronic housing need and homelessness.

The team’s Land Assessment Tool helps pinpoint where non-profit housing should be built. The tool assesses suitable public land based on proximity to key services and amenities, which allows governments to effectively use land to maximize affordable homes.

The Property Acquisitions Tool aims to prevent the loss of affordable housing through property acquisition by governments, non-profit housing providers and community land trusts. It includes a policy map and database, a report on the acquisitions and best practices, and six how-to guides for every level of government to successfully integrate acquisitions into their housing strategy.

The HART team is also working with governments to support proposals for the $4 billion Housing Accelerator Fund launched by CMHC.

“The Evolution of Life Sentences for Second-Degree Murder: Parole Ineligibility and Time Spent in Prison”

A new article by Allard Law Professors Debra Parkes and Isabel Grant and Professor Jane Sprott, Department of Criminology, Toronto Metropolitan University, explores the meaning of a “life sentence” for second-degree murder in Canada. Published in the Canadian Bar Review in 2022, their article, “The Evolution of Life Sentences for Second-Degree Murder: Parole Ineligibility and Time Spent in Prison”, examines what life sentences actually mean for people convicted of murder in terms of how long they spend incarcerated. Since 1976, Canada’s sentencing regime for murder has imposed mandatory life sentences with periods of parole ineligibility ranging from 10 to 25 years. Roughly a quarter of those under federal super-

vision are serving life sentences, mostly as a result of the mandatory life sentence for murder, yet there has been little analysis of what these sentences mean in practice.

In their research, supported by the Social Sciences and Humanities Research Council, the authors examined both the length of parole ineligibility periods and how long people were serving in prison beyond those parole ineligibility periods between 1977 and 2020. They found a statistically significant increase in the length of parole ineligibility imposed by judges, as well as an increase in the length of time beyond parole ineligibility that people are serving in custody. While Indigenous persons received somewhat shorter parole ineligibility periods, they served longer periods incarcerated beyond their parole eligibility date.

The literature demonstrates that people who are ultimately paroled for murder have very low violent recidivism rates. The authors conclude that there is no public safety rationale for the increase in punitiveness that has been seen in recent decades.

Why British Columbia’s Rules on Common Law Marriage Need Reform

Since 2013, under British Columbia’s Family Law Act, couples who lived together in a “marriage-like” relationship for at least two years are obligated to share debts and assets accumulated during the relationship in the event of a breakup. They can also be required to pay spousal support. Couples who live together but wish to exclude themselves from the application of these laws need to create and sign a contract to legally opt out.

Family law expert Professor Erez Aloni explores this issue in his paper “Compulsory Conjugality”, published in 2021 in the Connecticut Law Review His research sheds light on how cohabitating couples navigate British Columbia’s opt-out system. After speaking with 30 unmarried couples about why they choose to live together and to what extent they understood the legal implications, Aloni found that most couples either did not know they were in a common law relationship or had misconceptions about the law. Half of the couples he spoke with said they did not want the law to impose financial obligations, but the few couples in his study who tried to opt out said they could not afford a lawyer or did not understand how to properly enter into an agreement.

Aloni argues that although the law has its benefits, it requires changes to align with evolving social norms. First, he emphasizes that the government needs to do a better job of informing people about the law. Additionally, he suggests implementing measures to facilitate the opt-out process. This could involve providing a template contract or developing an app that assists individuals in determining which obligations should apply to their specific circumstances.

UVIC LAW FACULTY NEWS

By Julie Sloan*

FREYA KODAR BECOMES NEW DEAN OF LAW

On July 1, 2023, Freya Kodar began her term as Dean of Law.

Freya is a graduate of the UVic Faculty of Law’s co-op program (Class of ’95) and joined the faculty in 2005. She served as Associate Dean, Administration and Research from 2016 to 2021. Her research focuses on income and financial inequality across the life course, and she researches and teaches in the areas of consumer law, pensions and disability and the law. She is one of the co-authors of Law and Disability in Canada: Cases and Materials, the first Canadian textbook on law and disability.

During her term, her priorities include leading the faculty through strategic planning and curriculum reform processes, and the completion of the Indigenous-informed new wing that will house the National Centre for Indigenous Laws, classrooms and spaces that are appropriate for teaching and learning Indigenous laws, and purpose-built space for the faculty’s clinical programs and research centres. She looks forward to marking the faculty’s 50th anniversary in 2025 in this transformative space, and to celebrating the faculty’s contributions and those of our alumni to the province, the country and the world.

In the coming months and years, she looks forward to connecting with alumni and the legal community and invites you to reach out to her at <lawdean@uvic.ca>.

Val Napoleon, who had been serving as interim dean since 2021, will resume teaching as well as her roles as director of both the joint degree program in Canadian common law and Indigenous legal orders (J.D./J.I.D.) and the Indigenous Law Research Unit after taking some well-earned time

* Julie Sloan is the communications officer at the UVic Faculty of Law.

away from administrative duties and teaching. Her leadership has seen construction begin on the $41 million National Centre for Indigenous Laws, an addition to the existing Anne and Murray Fraser Building. She also led the completion of the year-long Academic and Program Review and Self-Study, the review of the Equity, Diversity and Inclusion program, and numerous other faculty management initiatives. In addition, she led the collaboration with UBC and TRU faculties of law to explore and begin developing comprehensive legal competencies for legal education.

TRU LAW FACULTY NEWS

By Ryan Gauthier*

TRU LAW TAKES FIRST PLACE IN TWO NATIONAL MOOT COMPETITIONS

TRU Law took first place at the 2023 Federal Courts Immigration, Refugee, and Citizenship Law Moot. The winning duo was Salman (Sammy) Abbasi (2L) and Kimia Shiri (3L). They were aided by their team members Tiffany Syyong (2L), Hania Malik (2L) and Nadia Ahmed (2L). The team was coached by David Knapp and Erin Estok, who were keen to point out that the victory was a true team effort.

TRU Law also took first place at the 2023 National Family Law Negotiation Competition. The team of Amandeep Cheema (2L) and Dallas Boyer (2L) took home top team honours. Dallas Boyer was also ranked the top negotiator for the competition. The other team members, Laurie Paulin (3L) and Stephanie Attachie (3L), also represented TRU Law at the competition. The team was coached by Amanda Winters and Sara Hillard.

COMPETITIVE MOOT SEASON WRAPS UP

TRU Law students competed in various other moots across Canada. In addition to the above two moots, TRU Law sent teams to the BC Law Schools Moot, Davies Corporate Securities Moot, Hockey Arbitration Competition of Canada, Jessup Moot, Kawaskimhon Moot, MacIntyre Moot and Wilson Moot.

The Jessup team took home honours for second-best respondent memorial (written submissions) and fifth-best memorial overall. Meanwhile, the Hockey Arbitration Competition of Canada team advanced to the quarterfinal round.

* Ryan Gauthier is an associate professor at the TRU Law Faculty of Law. He is currently on sabbatical leave and drafted this submission in Japan.

We thank the coaches from the British Columbia, 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. In addition to the coaches named above, thanks to our other moot coaches: Danielle Ching McNamee and Brad Smith, K.C. (BC Law Schools); Chelsea Hunter and James Reid (Davies); Michael Geib, Tiana Reid and Dylan Taylor (Hockey Arbitration); Ryan Gauthier, Greg Pun, K.C., Natasha Little and Alex Devitt (Jessup); Chrystie Stewart (Kawaskimhon); Kelly Melnyk and Iain Currie (MacIntyre); and Brodie Noga, Sergio Ortega, Jane Mayfield and Karin Kotilarsky (Wilson).

SUPREME COURT JUSTICE VISIT

TRU Law welcomed the Honourable Justice Michelle O’Bonsawin from the Supreme Court of Canada on March 7, 2023. She engaged in a “fireside chat” with TRU Law students.

STUDENT AWARDS

With the academic year wrapping up, TRU Law is pleased to congratulate the following award recipients: valedictorian, Benedict Turner; gold medallist, Pardeep Birak; and Abella Prize recipient, Cem Bicer.

TENURE AND PROMOTION ANNOUNCEMENT

We are also pleased to recognize the promotion of Dr. Katie Sykes, Dr. Andrew Pilliar and Dr. Krish Maharaj within the professorial ranks.

Katie has been promoted to the rank of professor. This is the highest rank active professors can achieve. Andrew has been granted tenure, and promoted to the rank of associate professor. Krish, who joined our faculty this past year with tenure, was also promoted to the rank of associate professor earlier this academic year.

TRU INAUGURAL PROFESSORIAL LECTURE

As law professors are promoted to full professor, they may deliver an inaugural professorial lecture. These lectures are a chance to celebrate the promotion of faculty to full professor and highlight their teaching and scholarship.

Dr. Chris Hunt, promoted to full professor in 2022, delivered his professorial lecture titled “Normative Tensions in Constitutional Privacy Rights Adjudication”. He explored tensions surrounding privacy and surveillance approaches with the need to prove if a reasonable expectation of privacy

existed in a legal search or seizure in the first place. This builds off his extensive publication record in the areas of privacy and evidence.

RESEARCH SERIES

Finally, the TRU Law research series came to an end for the 2022/23 academic year with Dr. Colton Fehr’s talk titled “Moral Principles as Defences”. He discussed whether the criminal law should focus less on particular categories of defences, and instead focus on the moral principles underlying those defences.

THE ATTORNEY GENERAL’S PAGE

By the Honourable Niki Sharma, K.C.*

AMENDING THE ELECTION ACT: MAKING EVERY VOTE COUNT

I see my job as British Columbia’s Attorney General as making our province more fair, just and equitable. A key part of that is working to make sure the voices of all British Columbians are heard. This is the basis for our justice system and for our election process.

In the era of rapid technological advancements and shifting global landscapes, we cannot afford to fall behind when it comes to our elections process. Secure, transparent and fair elections that accurately represent the will of the people, and regularly updating election legislation, are part of how we make sure that every British Columbian’s voice is represented.

In recent years, public confidence in electoral systems in many jurisdictions has seen a rapid decline. Many of us watched with deep concerns as rumours of foreign interference in the 2016 United States presidential election became substantiated. We also saw an unprecedented influx of disinformation online, evidence of voter suppression, and trust in media decline in the United States and consequently around the world.

Concerns about external influence, the spreading of disinformation, questionable financial contributions and the other types of interference continue to undermine public trust in the integrity of our elections. And while Elections BC has advised that foreign interference has not been a significant issue in B.C. provincial elections, it continues to investigate and enforce Election Act transgressions in these areas.

To address these issues and maintain confidence in our democratic institutions, we must continuously improve the protections that keep our elections fair. In April, amendments to the Election Act passed in the legislature.

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

The amendments make it easier for B.C. voters to cast their ballots, while continuing to combat disinformation, increase transparency and strengthen third-party advertising rules in the provincial electoral process.

The amendments respond to recommendations made by the independent chief electoral officer in the 2020 Digital Communications, Disinformation and Democracy report, and the 2022 Recommendations for Legislative Change report.

One way that we are modernizing election processes is by leveraging technology to make voting more accessible and convenient. Due to the pandemic, we saw an unprecedented number of advance and mail-in ballots for the 2020 provincial general election. In response, we have made voting by mail and confirmation of ballots more efficient and accessible for people by removing the requirement for a witness declaration, improving the identity verification process and making it easier to drop off ballots at other locations. This not only achieves greater accessibility and saves time, but also empowers more people to exercise their right to vote.

We are also taking steps to make sure our legislation keeps pace with the way people access information today by addressing online political campaigns and election advertising. We established restrictions on intentionally making false statements about candidates and senior officials of political parties, and we are cracking down on the spread of deliberate disinformation about voting eligibility, dates, times and locations.

Additionally, the amendments authorize the chief electoral officer to require all digital platforms that publish election advertising to remove noncompliant content within a specified timeframe. Platforms that fail to remove non-compliant content may face significant and meaningful fines. The amendments also provide authority for the chief electoral officer to impose fines on individuals or organizations that transmit false statements or misrepresent themselves in relation to provincial elections. Combatting disinformation campaigns aimed at manipulating citizens’ perceptions and skewing the electoral outcomes is an imperative.

With these changes, we are building on our previous work, protecting our electoral process from the alarming increase in disinformation available online and ensuring online platforms do their part to support transparency throughout the electoral process. These amendments also complement extensive amendments made to the Election Act in 2019 to implement voting modernization and in 2017 to get big money out of politics.

I want to thank the team at the Ministry of Attorney General and the independent Elections BC office for all their work to ensure we can keep our election processes fair and reflective of the world we live in today.

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NOS DISPARUS

By R.C. Tino Bella

Brian O’Reilly

When Brian O’Reilly passed on October 3, 2022, our world lost a crusader and passionate fighter for justice for Indigenous peoples and in particular for those who survived Indian Residential Schools. Brian was a passionate Irish American born in Mott Haven, the Bronx in New York City on August 17, 1946 and grew up in the Bronx. He had already had a full life before he decided at the age of 50 to go to law school at UBC.

Upon graduation and after a brief stint in family law, Brian joined Peter Grant & Associates, a boutique law firm that specialized in fighting for Indigenous rights and justice. This was in 1998, at a time when the firm was engaged in the first legal battles on behalf of survivors of Indian Residential Schools including Blackwater v. Plint and Aleck v. Clarke. Brian dove into the Aleck case with fervour and passion. He worked tirelessly for the plaintiffs. At one point, he organized a large aerial photograph showing the farm outside Lytton where one of our clients had enjoyed an amazing life with his grandparents, aunts, uncles and parents before being shipped off to St. George’s Indian Residential School at the age of six. Brian walked our client through the amazing life he had before the school. No judge could forget the plaintiff’s description of learning traditions and living off the land with his elders before the school when Brian was finished that part of the evidence. Then, Brian carefully walked the plaintiff through the horrors of their experience at the school. He concluded with the description of their life after the school from the original “self-medication” to the healing that they were going through.

Brian had a passion for residential school plaintiffs and battled in the negotiation room in many settlements. At one point, he looked at the

lawyers from Canada and the mediating judge and said, “We have to remember, my client was a little child when this horror happened to him. We are getting so used to the horrors of the residential schools that we are talking like this is normal.”

When Canada, after several exploratory dialogues, entered into negotiations with the Assembly of First Nations and plaintiffs’ lawyers, including lawyers for individual plaintiffs such as our firm, Brian took the lead in the early discussions. There had been many attempts to come to an agreement on the residential schools as there were over 12,000 cases in the courts by 2005. Brian called and told me that this was different, and he believed a settlement could be reached. We worked together from March to the end of November 2005 and an agreement in principle was reached two days before the fall of the Paul Martin government. One of Brian’s proudest moments was when he could sign that agreement. He said that this would make it easier for all the residential school survivors to achieve some form of recognition for the enormous suffering that they had endured.

From the time of the final settlement in 2007 until his retirement, Brian continued with the same passion to get justice for residential school survivors at the Independent Assessment Process. He fought tenaciously for their rights and they could not have had a stronger advocate.

Brian also knew how to care for himself during these difficult times. When a case was resolved or there was space to take a break, Brian always had an idea. Once he said he wanted to go away for a week. When asked why, he decided he would go to see the inauguration of the first Black U.S. president, and he did. Another time, he said he wanted to see the last NASA launch from Cape Kennedy. On one Monday morning when asked about his weekend, he said he was having a great time learning to fly. The instructor carefully taught him how to land, but he liked to wave the wings from side to side and he scared the instructor a lot.

When he decided to retire, Brian bought a small Honda 250 and drove from Vancouver to New York to Carolina and then Newfoundland and Labrador and back again. He lived life to the fullest right up to the end.

Brian’s colleagues and clients knew what a powerful and honourable counsel Brian was throughout his brief career in the law. He retired to Victoria and lived there with his beloved wife and partner in adventure, Bonnie O’Reilly.

All of the lawyers who had the honour to work with Brian will never forget his commitment to fighting for his clients with passion and integrity.

Peter R. Grant

William (Bill) A. Ferguson

On December 13, 2022, a week shy of his 79th birthday, William (Bill) Alfred Ferguson passed away from complications arising from Parkinson’s disease. Over the 40 years that he was both a mentor and a friend, Bill often spoke of the wonderful life he had been fortunate to live and his love for his family, the outdoors and his close friendships both inside and outside the law.

Bill was born on December 20, 1943 in the village of Coal Creek, a few miles from Fernie, B.C. When he was two years old, the Fergusons, a mining family, moved to the coal mining town of Cumberland on Vancouver Island, where Bill lived until his graduation from high school. Bill appreciated his Scottish heritage and was very proud of where he was raised. He remained close to those in his family who stayed in Cumberland, long after he had departed for the lights and glamour of Vancouver in 1962 to attend the University of British Columbia. These roots shaped his values and philosophy of life, which endeared him to so many for so long. He was a “people person”, but not on a superficial scale. Relationships mattered to him.

In September 1967, Bill began his studies at the UBC Faculty of Law, which, while a good decision for professional reasons, turned out to be an even better choice for his personal life.

An event during his first year of law school provides a good example of how Bill never forgot anything, or anyone, that could turn out to be important to him. One afternoon during the fall of 1967, he was invited by a former roommate to meet up with him in front of Brock Hall. “Fred” owned a red convertible. As Bill approached the car, he saw one female passenger in the front seat and two others in the back. To any reasonable bystander (and particularly Fred), the expectation was that Bill would sit in the back. After briefly surveying the scene, however, Bill decided to slip into the front seat, which turned out to be occupied by Fred’s then girlfriend. This was his introduction to Jeanie. After a short visit, Jeanie had to leave for her parttime job at the Vancouver Police Department. Soon thereafter, Bill learned that Fred had left Vancouver. In keeping with one of his favourite sayings, “It’s nice to be nice,” and no doubt altruistically motivated by not wanting Jeanie to be alone, Bill called, and the rest, as they say, is history. On their first date, Bill and Jeanie attended the inaugural Shrum Bowl football game

between UBC and Simon Fraser University. They married a year later, in the fall of 1968, and were together for the better part of 55 years.

Following his graduation from UBC, Bill articled and then commenced his litigation career at Ladner Downs. In 1972, he joined Fraser, Hyndman, Defosses & Gifford, which became Ferguson Gifford (“FG”) in 1985. He continued to practise there until 1999, when he joined Shapiro Hankinson & Knutson, followed by McKenzie Fujisawa. He retired in 2015.

While Bill had many talents as a lawyer, one stood out to those of us who knew him well: his ability to distill complex arguments into concepts that could be understood by a broad range of people, regardless of whether they had a legal background. He quickly grasped the essential issues and how to address them. This led to positive relationships with his clients and success before judges and juries.

Perhaps one of Bill’s greatest attributes was his ability to connect with the many students and young lawyers with whom he worked and to instill in them values that were important to him. For many years, with his law partner Alan Hudson, he taught the Trial and Appellate Advocacy course at UBC. He was also a CLE lecturer. He would emphasize the importance of having confidence in yourself and being unintimidated by anyone, no matter how senior, difficult, or both. He believed that there were no stupid questions and that, if you did not understand what was being said, then the chances were that the person saying it did not understand it either. He was an organized and thoroughly prepared lawyer who was always ready to consider counterpoints. He would take on just about any case and was particularly happy if travel was involved.

One of the many communications that I received comes from Dennis Quinlan, K.C.:

Bill was my principal in 1979. He showed me the benefits of preparation, file organization and his own version of trial binders, well before they were the subject of CLE courses. Most of all he showed me what it meant to care for the client and the client’s issues, and why the outcome to the client was more important that any wins or losses I might personally have as a lawyer.

Gord Kehler practised with Bill from 2004 until his retirement. His observations included:

Bill would more than offer advice as a mentor—he offered his friendship. He was never too busy to take time to provide assistance and would regularly circle back to see how things had gone or offer up further thoughts and encouragement. His trademark encouragement, “Be Great!”, not only worked as a positive motivation, but also has for many become their own term of encouragement to someone facing a stressful or daunting task.

Others whose lives Bill touched over the years refer to his “enthusiastic fearlessness and passion in all things” and belief in being true to yourself. He was unpretentious and had a genuine interest in and fondness for others; he treated everyone the same way, no matter their intellect, financial circumstances or background.

Bill’s eagerness for life extended to a love for the outdoors. He was a hunter, a fisherman and an avid horseback rider. He was very fond of the photo that accompanies this piece, which was taken during one of his many horseback trips in the Chilcotin.

In 1972, he and Jeanie acquired a property on Valdes Island, which is located between Gabriola Island and Galiano Island. Valdes could be accessed only by seaplane or a flat-bottomed jet-drive riverboat. With the help of family and friends, including Bill Burris and his wife Lois, he would transport material and supplies to turn this “pile of timber”, as Jeanie described it, into a cabin. Notwithstanding his zeal, Bill had no difficulty compensating for his modest handyman skills by turning to his longtime friend Granville Airton, an engineer and carpenter, to mastermind the design and building of the original cabin. Bill delighted in hiking Valdes and introduced others to the island, including the family of one of his longtime friends from his Ladner Downs days, J.J. Camp, K.C., whose two children now have cabins on Valdes. Bill’s last big adventure was in the spring of 2022, when he went to Churchill, Manitoba with Jeanie and the Burrises to see the polar bears.

Bill also enjoyed participating in many sports and activities, though, to be accurate, his abilities and enthusiasm did not always match. Shortly after my arrival in Vancouver for articles in the summer of 1980, he asked me to join his “seniors” soccer team. I was 25. He hated not being on the field and would often complain both when he believed he should be playing (i.e., always) and equally forcefully when he was subbed off. Speaking as diplomatically as I can, he could at times be a bit of a “pest”, usually—but not always—toward the opposition.

He was not afraid to try new activities. In the late 1980s, he took up golf. He decided that some lessons were in order. Upon reviewing a videotape of his swing, Bill remarked, in his own self-deprecating way, “Who is that short fat man with some family resemblance?” The lessons and videos were of limited assistance, but no matter the results on the course, he never despaired; he had an unbridled belief and confidence in the next shot.

He was an eternal optimist. Bill passed away during the FIFA World Cup, which took place in late 2022. At one point during his final weeks, shortly before the competition commenced, he telephoned his friend Justice

Heather MacNaughton and asked her to place a $100 wager for him, which she did: Canada to win the World Cup and Alphonso Davies the golden boot. Just to be on the safe side, he asked Heather to place another bet: the Blue Jays to win the 2023 World Series. Enough said on this point.

In many ways, Bill and Jeanie were FG’s social epicentre: inclusive, extremely generous, adventurous at heart and willing to try anything. They rarely worried about protocol, custom or appearance. They made their beautiful home in West Vancouver available for firm functions and many other events. Jeanie’s cooking was first class, the wine flowed, good conversations about the issues of the day flourished, and the friendships of the lawyers and their significant others were nurtured. All of Bill and Jeanie’s efforts contributed to the positive culture and rapid growth of the firm through the ’70s, ’80s and early ’90s.

One particular event led to what became for many years a bonding occasion that included the lawyers and their significant others: the Burns Supper. Bill and Jeanie decided that January, a time of post-holiday season doldrums, needed sprucing up. The firm had grown rapidly, eventually reaching more than 50 lawyers, and so, for the first time, the litigators and solicitors held separate events. What started off as an evening for the litigators chez Ferguson developed into a firm-wide event that was held for several years at the Petty Officers’ Mess at HMCS Discovery in Stanley Park. The evening included a piper and an ad hoc choir (directed by H.C. Ritchie Clark, K.C.) singing “Road to Loch Lomond” and “Scotland the Brave”. The evening activities, the address to the haggis and toasts to the Immortal Memory and to the lassies provided enough fuel for stories to last the rest of the year. Although formal dress was not required, something tartan was strongly encouraged. Some of us followed Bill’s lead and wore the full ensemble. As things turned out, Bill had to be gently admonished by a couple of his partners when, on the basis that he had come up with the Burns theme (it was probably Jeanie), he charged the expensive rental of his kilt and accoutrement to the firm as an administrative expense. Suitably chastised, but still believing he was right, he then invested several hundred dollars to purchase a kilt in the Ferguson tartan, along with a formal jacket, a sporran and a dirk, which he would proudly remove from his sock and show off at various times during the evening.

By the end of the 1990s, following the arrival of the national firms, FG, like many other mid-sized Vancouver firms, was no more. Although I had left the firm by then, the Burns Supper continued to varying degrees for many years thereafter, with Bill and Jeanie alternating with Janet and me as hosts. In later years, this involved just the four of us meeting in late Jan-

uary at a good French restaurant, lamenting the paucity of Scottish cuisine in Vancouver (likely an oxymoron in any event). At our last such dinner in early 2022, as Bill’s health started to really fail, we were joined by Martin and Judy Gifford, as well as Martin Palleson and his wife Mari Worfolk. Thus ended a tradition that had existed in various forms for more than 30 years.

Bill had a love of writing, particularly short stories. He took this up with a characteristic passion that marvelled his many (sometimes involuntary) readers. As recently as the fall of 2022, he was still sending out stories to seek feedback and generate interest. One story published in the Advocate is a poignant example of Bill developing an improbable friendship with Pierre Trudeau, unhindered by the doubts that would make many others hesitate: “My Friendship with Pierre Trudeau” (2021) 79 Advocate 355.

Bill and Jeanie created a wonderful family. They were devoted to each other and very proud of their son Matthew and daughter Sarah, her husband Hayden, and their grandchildren Carter and Avery. The family also included a parade of various family dogs over the years. A relationship with Bill meant one with his family, because he would enthusiastically provide regular updates on all of their lives at every opportunity.

Bill loved Canada and would sing our national anthem loudly and proudly whenever it was played. He also dabbled in politics, seeking on one occasion the federal Liberal nomination in West Vancouver. But he was not inextricably linked to a particular party or individual, with one exception: he was Jeanie’s biggest supporter as she developed her presence in West Vancouver municipal politics, including her roles as chair of the school board, city counsellor and deputy mayor.

Bill’s ashes were scattered on his beloved Valdes Island. He did not want to be remembered at a celebration of life. Intensely private in some ways, he nonetheless expressed these thoughts in his story about Pierre Trudeau:

I did not attend Pierre’s funeral. It was complicated. On the one hand, I am not religious and do not want a funeral for myself. On the other hand, I didn’t know what to do. Of course, I do not begrudge other people for their funerals, and I could have gone, so why didn’t I? ... I considered the relationship special. Our friendship was outside his political and academic connections …

I honoured him, I respected him and I was sad at his passing. In the end, that was the extent of my mourning.

That is what Bill would hope we would do for him.

Devoted to his family and friends, enthusiastic, hardworking and with an infectious love of life, Bill was true to himself; he was his own man. In the words of Robert Burns:

Is there for honest Poverty

That hings his head, an’ a’ that; The coward-slave, we pass him by, We dare be poor for a’ that!

For a’ that, an’ a’ that. Our toils obscure an’ a’ that, The rank is but the guinea’s stamp, The Man’s the gowd for a’ that … Then let us pray that come it may, As come it will for a’ that, That Sense and Worth, o’er a’ the earth Shall bear the gree an’ a’ that. For a’ that, an’ a’ that, It’s comin yet for a’ that, That Man to Man the warld o’er Shall brithers be for a’ that.

The Honourable Justice Patrice Abrioux (with thanks to Jeanie and many others)

James Thomas (Jim) Rust

Commercial lenders’ lawyer, gardener, golfer, skier, hockey player and a man of many other roles, not the least of which included beloved husband to Patty, father to Tim (Claudia) and Ben (Joaly), grandfather to Conrad and Louis, brother to Anne, and good friend to very many others, Jim Rust passed away on Friday, November 18, 2022, having fought as hard as possible against liver cancer.

Jim started life in 1947 in Kitchener, Ontario, son of Mary and Thomas Rust. Most of Jim’s younger years were spent in Baie-Comeau, Quebec, where Jim learned how to play golf, play hockey and ski, all of which would be passions for much of his life. His father ran the large paper mill in town. Those early years were filled with adventures stemming from Jim’s participation in Scouts, with many Jamborees and countless overnight camping trips. Jim’s hockey games took place on many homemade rinks in the deep cold of Quebec winters. Those youthful years produced an impressive

French lexicon, of both dinner table niceties and colourful expressions appropriate to the ice rink (not to mention other places as his legal practice heated up at times).

One of the interesting asides of his time in Baie-Comeau was the person who used to babysit Jim and Anne during their younger years. It was Brian Mulroney, who would later become prime minister of Canada, but back then was a teenager going through school and helping out in the community. Jim was proud of his friendship with Brian, and they would see each other very occasionally over the next 60 years. Their last meeting was at a speech given by the former prime minister at the Terminal City Club to the Canadian Club of Vancouver in 2017.

In due course, the Rust family moved to Vancouver, and in 1968 Jim entered UBC law school, where he spent an exciting three years. Jim made many friends over his law school years and ensured that he saw them as much as possible over the years. During law school, Jim spent summers aboard ocean-going tug boats and became the chief cook. He got the job through his enthusiasm and stubbornness. He wanted a summer job on the water on the tugs that paid well. Unfortunately, there were a lot of people applying, and the jobs were to start right away. The person hiring asked who knew how to cook, and Jim’s hand went up right away. He got the job and ran home to get his mother’s cookbook, and off on the tugs he went. Fortunately, Jim was a quick study (it worked well for him for many years). Many of his cooking creations originated from those summer months, where he started with no knowledge of cooking and ended up as a soughtafter pastry chef by mariners in port looking for a good slice of baked Alaska.

After graduation, Jim articled at Bull Housser & Tupper. His ambition was to be a litigator. During his articling year, Jim contemplated joining the Canadian International Development Agency (“CIDA”) and being posted to a small country in their Department of Justice earning a Canadian wage. The living would be terrific! He also suggested that idea to Rod McCloy, who actually made the application. CIDA was very polite in suggesting that their applicants needed experience and perhaps Cuso (the Canadian equivalent of the U.S. Peace Corps) would be better. Rod spent two years with Cuso after articles. Jim, however, decided to take an epic ski trip through Austria. Having previously been enamoured by the beauty of the Austrian Alps and in particular the region of St. Anton am Arlberg, Jim promised himself that he would return. He sold his worldly possessions to fund the trip that would take him through six countries and experience unique ski locations such as Andorra and the Atlas Mountains of Morocco.

Sometime after his return to Vancouver, Jim decided that he would start his own firm with office space in the old Royal Bank Building at the corner of Granville and Hastings where his former firm had been prior to their move to Royal Centre. During this adventure, Jim became a good litigator specializing in family law. However, things did not go as well as Jim had hoped, and in 1979 he joined McCloy Mackay (as it was then in their small offices at the back of the fourth floor at 898 West Pender) to increase the size of that fledgling firm from two to three lawyers.

In 1979, Jim was known as a litigator whose practice was mostly in family law. However, the enticement of family law litigation started to wane. Somewhere in mid-1980, Jim met lenders from Household Finance, and decided that a real estate lending practice was much more appealing. He still continued with his litigation practice, but slowly and surely the real estate lending practice took over. As the years went by, Jim started to act for more and more lenders. The litigation practice stopped, and Jim became a commercial and real estate lending specialist for the latter three quarters of his career.

Jim’s business grew like his firm, which changed its name over the years to Jones McCloy Peterson. Jim had a wee bit of an ego, but it never extended to wanting his name in the name of the firm, except for a brief period of time in the early 1980s. His reputation spoke for itself.

Partners’ meetings in the early years seemed to last forever, followed by dinner. It wasn’t until the Scotch was banned from these meetings that the time spent shrunk to a reasonable level and business actually got accomplished. Jim’s time with Jones McCloy Peterson continued until that firm dissolved in 2004, whereupon Jim joined Lindsay Kenney as associate counsel where he continued until his retirement in 2017.

As a commercial lending specialist, Jim was very fortunate to have Vivian Booth by his side for 25 years. She was his paralegal, personal assistant and strong right arm for all of this time. Jim could be a bit cantankerous from time to time, and throughout it all, Vivian was there to ensure that everything was finally done.

At Lindsay Kenney, Jim acted for number of major commercial bank and credit union lenders as well as a couple of up-and-coming private, pre-construction lenders. Even when not involved in a specific loan, Jim was called upon by certain loan officers to pick his skilled brain regarding a particular document, and Jim was always there to assist. As a result, he received many files that would generally have gone to much larger firms.

In a short period of time, Jim became legal counsel to private lender firms for whom he acted, to the point of advising on and developing their

lender loan agreements, commitment letters and security documents. Jim’s skill in drawing such security was quite proficient, and his clients rarely felt the need to back down on their security at the behest of a developer, regardless of the size and value of the project. He was regarded with great esteem as lender’s lawyer and few borrowers’ counsel could make any effective argument with Jim’s security documentation. In the last few years of his practice, Jim was in such demand that he had the luxury of working only with clients he enjoyed. Jim’s clients, many of whom became his very close friends, were sad upon his retirement and even more so upon his death.

Jim was highly regarded in the workplace as a warm and kind co-worker. He put on a tough, gruff demeanour, but it didn’t take anyone long to realize that if you did your job he was the coolest guy in the office.

Outside of practice, Jim was an avid gardener and golfer. His knees grew to give him a bad time, so skiing and hockey were left behind. Most Sundays until about five years ago would see Jim at Shaughnessy with a regular group. He started there when he was in his teens, newly arrived from Quebec, and only left Shaughnessy when he realized he was spending more time in Palm Springs golfing at his favourite courses, Gary Player and the Classic Club. But right up to the end Jim enjoyed his gardens from the choosing of the plants and their locations to tending to their welfare to the construction of walls and structures to enhance them. He and Patty built, bought and sold a number of homes over the years, and Jim designed or enhanced the gardens in all of them.

Jim and Patty bought a vacation home in Palm Springs a few years ago that they both loved. As Jim’s work allowed, he would spend more and more time there. He found it an interesting community as just down the street from their house lived Tommy Lasorda, the great Los Angeles Dodgers manager for many years. Another neighbour was Adam West (who played Batman), with whom Jim said he always enjoyed commiserating. It was only as Jim’s health deteriorated that the home was sold, and Jim did not visit Palm Springs again.

Jim’s memory will be cherished by all who knew him and enjoyed his generosity and practical wisdom and company.

Rod McCloy

(with lots of help from the Rust Family, Dennis Peterson, Vivian Booth and Ken Teskey)

John Brian MacFarlane

Everyone who knew Brian MacFarlane knew they were lucky. He was a wonderful person to be around. In writing this, I am not only mourning this immeasurable loss, but also celebrating Brian’s life and the impact he had on the people (and animals) around him.

When I joined the Crown, one of the first people I was keen to see was Brian. He was the older brother of one of my good friends, and I just knew that he would provide that “safe space” in the office for me. I was not wrong: I walked into his corner office at 222 Main Street, and I heard, “Hey buddy!” And there was Brian, leaning back in his chair with a smile on his face. His office was filled with family photos: colourful images filling the dreary interior, always providing a reminder of what was truly most important to Brian. For him, it was always about the people in his life, and amazingly he seemed to always find time and space for everyone.

When I learned that Brian died while bodysurfing at his favourite beach in North Carolina on July 6, 2022, I fell over in shock. He was a man who had more appetite for life in his little finger than most people have in their entirety, and he seemed physically invincible, with an inexhaustible store of energy. Only 57 years old at the time of his death, Brian was the heart and soul of his family. In death he left behind his beloved wife of 29 years (and partner for 35) Leah van der Voort, and his greatest treasure and joy, his three daughters: Kathryn, Carolyn and his “finally-got-a-redhead” Zoë.

When asked by a friend how he could deal with the stressful and sometimes gruesome cases he prosecuted, Brian said, “I come home every night to my beautiful family, my beautiful home, and my beautiful wife, and everything is OK.” He was the heart and soul of his extended family, seeing his parents John and Marian every week, talking to his brother Tom and sister Amy frequently, and spending vacations with their families, whom he adored. He conveniently got one of his closest friends at Princeton, Mike Cragg, to marry Leah’s sister Rachel, and spent many happy summers with them and their children, as well as Leah’s brother Tom. His nieces and nephews adored him … like Santa Claus (whom some may think Brian slightly resembled, at least in the face), he always had time for every child, and always was ready for the next game or adventure. He was the rock and anchor of his family, and this carried into every other part of his life. He made innumerable lifelong friends in every place he went.

Brian had very strong connections to both Vancouver and Montreal. He was born in Montreal and had many family members and friends living there. Brian made sure to routinely visit and, in fact, he spent every summer at the community of Metis Beach in Quebec. Everyone there knew him, and many had their own version of his particular tennis strokes learned over summers being taught by him. He was the last person at every cocktail party, and never missed a polar bear swim on Sunday mornings at 8 a.m. in the St. Lawrence River, followed by a generous tot of dark rum, milk and brown sugar. The most important part of those summers was the friendships he made.

Brian attended Selwyn House School in Montreal before his parents realized his enthusiastic nature needed the steadying hand of Bishop’s College School and the cadet training there. He was an extraordinarily gifted student and had a brilliant mind, with a particular knack for math and science. But then he was also a talented actor, often seen treading the boards, a skill that came to his aid in later years. He was a prefect and at the top of his class. He attended Princeton University planning to study engineering, which changed after he took a 400 level math class where the answer from the tutor seemed to always be the mystifying “Take the integral! Take the integral!” He turned his keen mind to history, and the law caught his attention in the legendary English constitutional law class taught by noted scholar Professor William Chester Jordan. Brian and Leah met at Princeton in 1984, and he formed deep and lasting friendships with so many during his time there, especially his eight roommates from the “Dude Ranch”. He continued to be closely connected with most of those friends until the day he died. He graduated with an A.B. in history in 1986.

Brian moved back to Montreal to attend the McGill University Faculty of Law. He spent weekends at the family country compound at Ivry-sur-le-Lac, and attended as many Habs games as he could manage. When Leah graduated from Princeton in 1988, she moved to Montreal to be with Brian. They were married on December 30, 1993. At McGill, Brian formed many profound and enduring friendships, which he shared with Leah. He received his LL.B. and B.C.L. in 1990, graduating with honours.

In 1990, Brian and Leah moved to Vancouver, where he began an illustrious 31-year legal career. He articled at Davis and Company and was called to the bar in 1991. After a few years practising civil litigation at Davis and Company, Brian joined the Crown Counsel office in Vancouver in 1994 as he “wished to be a more helpful member of society”. He remained a pillar of the Crown counsel family over the course of his 28-year Crown career, and was one of the most experienced major crime prosecutors in the Vancouver region.

Brian’s goal on joining the Crown office was to conduct as many trials as possible. He was of the strong belief, throughout his career, that there was no substitute for experience in the courtroom and that one could not achieve distinction as a litigator without spending hours in the courtroom, examining witnesses and making legal arguments. Brian was successful in his goal and, in his first year alone, conducted over 200 trials as Crown counsel.

Brian prosecuted many complex and serious cases, including cases involving dangerous offenders, homicides, robberies, kidnappings, home invasions, human trafficking, extortion, serious sexual offences, motor vehicle fatalities and serious assaults. He participated in many legal innovations, including conducting two of the earliest cases involving DNA technology.

Throughout his career, Brian prioritized mentoring junior counsel. His calm and supportive approach, combined with his extensive trial experience, made him a popular and sought-after mentor. He was known to guide new prosecutors with the soothing words, “Don’t worry about it. If it was really important, would they have given it to you? Just do your best!”

Brian also took on leadership roles outside of the courtroom. He worked as Administrative Crown Counsel in Vancouver and in North Vancouver from 2013 to 2017. The North Vancouver First Nations Sentencing Court expanded during his tenure, and he was part of the committee that oversaw its expansion to engage more fully with community leaders and resources.

He was also active throughout the course of his career in sharing information about the justice system and the role of Crown counsel in numerous forums. He served as an instructor/supervising lawyer for the UBC Criminal Clinic course for a number of years, supervising numerous temporary articling students. He was a resource and lectured on criminal law for the Crown, the Continuing Legal Education Society of British Columbia, Canadian Bar Association subsections and the Professional Legal Training Program.

In all, Brian was committed to public service, and his open, accessible, fair and respectful approach permeated his dealings with justice system participants and the public. He had the respect of those with whom he worked across the justice sector for his collegiality and enthusiasm for the work. At the same time, he was very hardworking and unassuming, always without complaint. He exemplified the finest qualities of a prosecutor and advocate: superior intellect, strong advocacy skills and sound professional judgment, assisted by a willingness to make difficult decisions, a good work ethic and an impressive ability to be a meaningful mentor to junior lawyers. In all these respects, he demonstrated the selfless dedication to public service to which all Crown counsel should aspire. A scholarship in his honour has been created at his alma mater, McGill University, the John Brian Mac-

Farlane Memorial Entrance Scholarship. This scholarship emphasizes Brian’s commitment to public service and his dedication to improving the justice system, which is so important to a well-functioning society. It will be awarded on the basis of academic and extracurricular merit to a student entering the B.C.L./J.D. program who has a demonstrated interest in public or community service or criminal law advocacy (see <www.mcgill.ca/law/ alumni/support-brian-macfarlane-memorial-fund>).

In addition to all of Brian’s substantial professional accomplishments, he was a wonderful and supportive colleague and friend. He was the person everyone wanted in the office. He always had time for his colleagues, no matter what he had on his plate, to talk about what was going on in their lives, or about a case, or to just talk about the Habs. He was a very treasured colleague. The Crown has been bereft over the past year, and Brian is still very much part of the conversations we have in the office. I often hear “What would Brian do in this situation?”

Outside of work, Brian was a talented multi-sport athlete, and loved playing or watching all sports: hockey, football, soccer, baseball, downhill and cross-country skiing, golf, tennis and squash. He taught a generation of youngsters as the summer pro at the Cascade Golf and Tennis Club in Metis Beach. At Princeton, he played junior varsity Hockey (nickname: “Zamboni”) and was on the ski team. While there, he discovered the game of squash and joined the junior varsity team. He was an integral member of the Vancouver Lawn Tennis and Badminton Club squash and tennis communities, organizing regular weekly squash doubles games, captaining both singles and doubles squash city league teams, and becoming a Jester and co-chairing the Jester’s doubles tournament. Brian competed in numerous national and provincial championships, with medals in both, and was known throughout the community for his extraordinary sportsmanship and collegiality. An annual award to acknowledge his contribution has been created by the Vancouver Squash Doubles League.

Brian was a dedicated volunteer, giving many hours to community service, and had been a Guide Dog Puppy Trainer for BC Guide Dogs since 2015, raising four dogs to maturity for their program. He and his wife Leah were to begin training another pup, Tiger, when they returned from vacation. His family has continued this work in his memory. A memorial fund honouring Brian’s dedication has been created at BC Guide Dogs.

But in the end, Brian’s greatest accomplishment was in his role as an unparalleled father. His three daughters were the joy of his life, and there was nothing he loved more than being with any of them. When they asked him “Which of us is your favourite?”, he would always name whichever

child was closest in proximity. He never missed or took for granted a single precious moment. He was the dad at every soccer game, every tennis match, driving the kids anywhere and picking them up at all hours no matter where they were. He watched every dive at every meet, every second of every ballet performance, every minute of open mic. Nothing made him happier than being a father. In the month before he died, he continually begged the driving carpool to let him drive the kids, and he treasured every minute. When one of his children broke her arm badly at school, he told his wife as they waited in the emergency room, “I’m just so happy, so grateful to know she is here and safe, and with something that can be fixed.”

Brian has left a giant hole in the lives of all who knew him. We mourn his loss but also recognize and celebrate an extraordinary life and one well lived. He would be happy knowing that we will never forget him.

Leah MacFarlane and Tara Laker

John Martin Tennant

John Martin Tennant lived a long life. He was born in 1928 and died in October 2022, at age 94. He spent his entire career at the Vancouver law firm of Lawson Lundell following the usual ascension from articling student to associate and then to partner. John also had a full and important life outside the law. A short memoir like this is impressionistic, of course, but I hope that there will be enough colour and detail in what follows to give you an idea of how successful he was in all parts of his life.

John was the youngest of five children and grew up during the Great Depression. Perhaps because of this, he learned the virtues of perseverance and developed a will to succeed at an early age. Whether on the rugby pitch, on the tennis court or with clients and colleagues, John always gave one hundred per cent. A cherished friend and trusted advisor, he was an inspiration and mentor to many.

After getting his B.A. degree (in 1949) and LL.B. degree (in 1953) from UBC, John articled at Lawson Lundell and was called to the B.C. bar in 1954. He retired in 1997.

John had a wide-ranging business law practice and had expertise in many of the disciplines covered by that broad descriptor, including corporate and commercial law, securities and corporate finance, real estate and forestry. He acted for many well-known commercial clients, including some of the leading forest companies of the day such as Canadian Pacific Forest Products and Evans Forest Products. Perhaps his most significant client was British Columbia Forest Products (“BCFP”). John acted for the company from its earliest days and was particularly close to Ken Benson, the CEO. His non-forestry clients included Woodward’s and the Woodward family. He also spent many years on the boards of Nike Canada, Munich Reinsurance Canada and Asamera.

John was gregarious, feisty and tenacious. He had a friendly and open personality. He was also warm and generous. This combination of character traits appealed greatly to clients, as well as to colleagues and friends. John and his partner and friend Bob Mair served on the three-person executive committee of Lawson Lundell for many years (the third member was the firm’s managing partner from time to time). Together they effectively managed the firm and shaped its culture.

John’s daughter, Susan, tells me that he was deeply loyal to Lawson Lundell—he could not understand why anyone would ever want to work for another firm. He used to say that the firm should only hire people who had held interesting summer jobs that had nothing to do with law. He valued the life experiences of those around him. And there was much more to John than life at Lawson Lundell.

John was predeceased on July 10, 2019 by Joan, his wife of seven decades. He loved and cherished her as his partner and best friend, and a part of him was lost forever when she passed away. John and Joan loved to entertain and share meals with their friends. Wherever they travelled, home for John and Joan was always Bowen Island. They had an endless list of projects, and were always landscaping and improving their gardens. Susan tells me that the beauty of their garden was something they both loved, and that her dad was always “cosmeticizing” it.

John and Joan enjoyed fishing and many other outdoor activities, travelling, music, playing bridge with friends, and much more. They shared their home with many Golden Retrievers over the years, and were delighted when one of their dogs, Yonner, gave birth to ten puppies! Their latest dog, Sage, sadly passed away soon after John.

John gave back to the community in many ways. He taught forestry law at UBC for several years. John also devoted a lot of his time to the BC Sports Hall of Fame, where he was a trustee for many years. He and Joan were

longtime and close supporters of the Rick Hansen Foundation and its outstanding efforts.

John was quite an athlete. Susan tells me that he was offered a rugby scholarship by a California university but chose to attend UBC instead. There he was honoured by Big Block awards in both football and rugby. As noted above, he and Joan loved to play tennis and, at least once, as you will read, he played an enthusiastic game of soccer. But his main love was rugby. Someone who articled at Lawson Lundell over 50 years ago, shared this story: “I recall more than one Monday morning when John limped into the office with another rugby injury. I was impressed. He would have been in his mid-forties at the time. It was not exactly the image I expected of a senior solicitor at a big firm. But it was one example of the many facets of a life well lived and lived full-on.”

One of John’s former colleagues remembers John as “a solicitor of outstanding ability and reputation. [He] treated everyone at the firm—even deer-in-the-headlights articled students—with great respect and kindness.” And another: “In about 1990, I thought that I may have committed a serious career limiting move. Lawson Lundell had a firm retreat at Yellowpoint Lodge (south of Nanaimo). Saturday afternoon was set aside for recreation, and many of us took part in a pick-up soccer game. I knew that John had always been a competitive athlete, particularly in rugby. He brought that competitive zeal to our ‘recreational’ soccer game. I was playing goal, and John ended up with the ball, bearing down on me quite aggressively and ‘hell bent for leather’ (did he play sports any other way?). So I, likewise aggressively, came charging out, and knocked him down (and made the save). Then I realized that I had just taken out a 62-year-old man and senior partner (I was then a two-year associate and age 41)! Holy cow, was my career over? But no one was injured and no harm done. Just part of ‘boys will be boys’ and no ill will.”

And finally a personal reminiscence: I joined Lawson Lundell in 1976 after being a lawyer in Ireland for a number of years. On the day I started, Charles McKee took me round the office to meet some of the lawyers then working at the firm (I think they then numbered 27 or 28). Among them was John Tennant. We had an instant rapport based on two things: It turned out our first two names were the same, and I, like he, was, or rather had been, a rugby player (I retired from rugby in my early thirties but he, being made of much sterner stuff, played into his sixties).

A now-retired lawyer who spent the early years of his career at Lawson Lundell wrote: “I left the West Coast [in the 1970s] after three years and did not see or hear from John for decades. Then he called me in Calgary, told me he had heard I was interested in property on the West Coast and shared

his plan to subdivide his property on Bowen. The subdivision was delayed, but his invitation to visit an island my wife and I had not visited before resulted in the purchase of our home on Bowen. We have him to thank for our many happy years here, five minutes from his house, by boat at least. John and I often journeyed together from Bowen to [Vancouver] for the LLL&M alumni lunches, by land and by sea, and he was a delightful travelling companion, with wonderful accounts of adventures from his life and career.”

Craig Tennant also shared with me some memories of one of his parents’ particular friends: “Chunky Woodward was one of my parents’ closest friends. In 1959, Chunky came into Lawsons to meet with the family lawyer to talk about buying the Douglas Lake Ranch. I am not sure who that lawyer was, but something had come up and he was going to be late. Chunky did not want to wait so they had him meet with one of the young lawyers, my father, who handled the purchase. That started an outstanding friendship which lasted until Chunky’s death in 1990. Chunky liked to hunt, fish and travel as did my parents, so they spent much time together following these pursuits. Dad was on the board of Woodward’s for decades and only stepped down along with several other board members when Chunky handed the running of the store to the next generation.”

The same Lawson Lundell alumnus mentioned above, who became a neighbour on Bowen Island, recalled: “John’s house has a magnificent view over Howe Sound and he had prawn traps in his front yard. He had had some problems with scoundrels who would steal his prawns. So, one day when he spotted a strange vessel approaching the float on his prawn trap, he loaded his rifle with the intention of firing a warning shot. Joan grabbed the binoculars to search for a name on the boat. Lucky thing too. Joan determined that the boat was a DFO vessel on patrol and advised John to down arms. He was blessed in his choice of partner in so many ways.”

And as the following story illustrates, being a skilled lawyer doesn’t necessarily make you a skilled operator of a ride-on lawnmower. One of John’s former partners, another of his Bowen neighbours, recalls that John was on his mower “cutting the long grass on the ocean side of their driveway when he misjudged and went over the edge down to the beach (quite a distance, I’m guessing at least 30 feet)”. John’s longtime personal assistant recalls: “He was very lucky that a neighbour heard him shouting and in due course he was taken to hospital by air-ambulance.”

John was a great lawyer, a great firm leader, a great partner, a great competitor and athlete, and, to those of us who were his colleagues, a great source of work, support, experience and guidance. He was also a “great

boss” as his longtime assistant told me: “He was friendly and considerate, and his door was always open to any colleagues who needed help or to talk.”

He was a man loved and admired by many. He will be greatly missed.

Martin Kyle (with thanks to Susan Climie, Craig Tennant, Bob Tennant, Bob McCaskill, Cliff Proudfoot, Lillian Wong, Chris Baldwin, Ian MacLeod, Tom Woods, Stephen McCullough, John Trueman, Bill Dickson, Brenda McArthur, Alastair Miller and Gordon Craig)

James Munsie, known as Jay, was born in Vancouver in 1951. Jay attended Quilchena Elementary School, and graduated from Point Grey High School. He attended the University of British Columbia and obtained a bachelor of arts degree, and then completed his law degree at Queen’s University.

Jay articled at the firm of Sutton Braidwood and after being called to the bar began developing his solicitor’s practice. He left Sutton Braidwood and joined the firm of Cumming Richards Underhill Fraser and Skillings to continue his thriving solicitor’s practice. Interestingly, Sutton Braidwood later merged with Cumming Richards Underhill Fraser and Skillings and Buell Ellis in 1985 to form Richards Buell Sutton, so Jay rejoined many of his old colleagues at Sutton Braidwood through this merger. Jay practised for the balance of his career at Richards Buell Sutton.

Jay was a lawyer’s lawyer. He was clever and practical, and became the lawyer that we all relied on to untangle the most difficult legal issues. Although he was clearly an intellect, he was also inclined to suggest practical solutions that cut to the core of a problem.

Jay’s broad and loyal clients included multinational companies based in Europe, as well as businesses throughout British Columbia. He seemed to attract those clients who were involved in resource- and construction-based businesses, often located on the coast. They were all looking for solutions and not a lecture on the law. Jay handled these diverse clients with grace and a deftness that few solicitors could match.

James Mercer Munsie

Jay was also our firm’s delegate for a number of years to the Pacific Rim Advisory Council, an organization of firms from 32 countries. He was well liked and fondly remembered years after attending his last conference.

For many years, Jay could be seen commuting to work in his vintage Mustang convertible. That car really epitomized Jay, as it was a little out of the ordinary, yet it was pretty special if you looked closely.

Jay practised law for more than 40 years and during that time mentored countless young associates, many of whom credit Jay for their development and success as lawyers. When Jay decided it was time to retire, we asked him if he would take on a role as a practice advisor to our young solicitors. We did not want to lose all that Jay had to offer. Jay graciously agreed to take on this role, and continued to provide guidance and support to the next generation of lawyers. He took this role seriously, investing his time and sharing his knowledge and wisdom with our firm’s lawyers.

In the summer, Jay would take time away from his busy practice to spend time with his family at their vacation home on Thormanby Island. In his retirement years, he expanded his hobbies and joined his wife, Nancy, golfing at Shaughnessy Golf Club. Jay was an avid sun-seeker, and following the example set by his late parents, he and Nancy would often spend time in Palm Springs during the winter months.

While many of us knew Jay as a lawyer, he saw himself as a family man first. Jay was immensely proud of his three children, Shannon, Stephanie and Campbell. Nancy was at his side throughout his career, and they formed an amazing team.

It is fitting to finish this short summary of Jay’s life with the most important fact, on which we have not yet touched. Despite his enormous professional accomplishments, and his blazing intellect, these things are not what we all remember most about Jay. Jay was one of the kindest people one could ever meet. This was not a quality that was observed only from time to time. Jay was uniformly kind, warm, welcoming and generous to everyone around him every day.

Jay passed away on October 12, 2022 after suffering a heart attack. When we received the news of Jay’s death, there were many tears shed in our office. After his passing, a staff member approached me to tell me the story of Jay offering them a ride home one winter evening, as it was so cold. The staff member pointed out that they lived in the opposite direction of Jay’s home. Apparently, that was not a relevant consideration for Jay.

Jay was an exceptional lawyer, a loyal partner and a good friend. We miss Jay terribly.

Jeffrey J. Lowe, K.C., Sharon White, K.C., and Amanda Wheat

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NEW JUDGES

By R.C. Tino Bella

The Honourable Justice Joseph Doyle

The friends and relatives of Joseph Doyle have been waiting a long time for his appointment. This transition in career paths may seem stark and sudden, but those who are closest to him have been expecting it for some time.

Joe arrives at the court as a recognized leader in the area of criminal law. However, his life and work experience will bring a wealth of well-rounded knowledge and common sense to the court.

Joe was born and raised (mostly) in Vancouver. His father Pat (lovingly known as “The Bear”) was an ear, nose and throat specialist. His mother was a registered nurse. They met and married in Edmonton and moved to Vancouver after graduation. They started a family and did not stop until there were six kids’ chairs around the dining room table. Joe is the fifth of the six. Family members report that Joe’s parents were initially concerned that he was slower to talk than his older siblings. They assumed he was not talking because the older siblings provided their cute little brother with everything he needed. A family plan was devised to withhold things from Joe. It worked, perhaps too well. He has rarely been quiet at family functions since the 1960s.

In 1969, the Doyle family uprooted and moved to Portland, Oregon, where The Bear completed a sub-specialty fellowship. Joe continues to profess that this experience provides him with some insider understanding of the American psyche, despite the fact that the family returned to Vancouver before his seventh birthday. His family ascribes Joe’s interest in criminal law to this period. He regularly played an elevated version of cops and robbers, with Joe always preferring the role of FBI agent.

The Ukrainian/Irish family was, to say the least, always busy and boisterous. The girls attended Little Flower Academy. The boys attended Vancouver College. All the kids were involved in extracurricular activities. Joe was a natural athlete, participating in basketball, football, baseball, hockey and golf. He continues to golf on a regular basis. His involvement in youth sports as a coach, including coaching hockey and baseball, continued long after his own children finished playing.

After high school, Joe entered the commerce/law program at UBC. This program provided a dual degree in six years. Joe excelled in commerce and entered the law faculty in 1985. He was a full participant in all aspects of the school, playing many intramural sports and becoming president of the Law Students’ Association in 1987/88.

Following graduation, Joe spent a summer immersing himself in the French language in Montreal before starting his articles at the venerable Douglas Symes & Brissenden. Notably, that firm did next to no criminal law. Upon his call, more than one practice group wanted to hire Joe. He accepted a position in the corporate/commercial group as a solicitor, but with the agreement of the firm that he could reserve ten per cent of his time to develop his criminal defence practice.

Over the first year of practice, the ten per cent expanded and the solicitor’s work contracted. Ultimately, his love of criminal law prevailed and he joined the provincial prosecution service in 1992. The weighty and highprofile cases did not come right away. One of Joe’s first prosecutions was a charge under the Barbers Act for barbering without a licence. Joe secured a conviction and obtained the maximum penalty for a first offence, a $15 fine.

The move to the Crown began a relatively peripatetic decade wherein Joe worked at the provincial Crown offices in Vancouver and Nanaimo, then returned to Vancouver to practise civil litigation, before returning to criminal law on a full-time basis. One constant in all of these moves was that Joe left each position with a new set of friends. He is renowned for his capacity to build and maintain friendships.

The 1990s was also the decade during which Joe’s two children, Michael and Grace, were born. While they are the focus of his life, his work was often the focus of theirs. He acknowledges that many holidays and birthdays fell prey to his busy and varied schedule. One of Michael’s birthday dinners was held at the Hotel Vancouver because Joe was awaiting the return of a jury.

Three examples show the variety of Joe’s practice: (1) his appearance as Crown counsel against a serial arsonist in R. v. Grabowski resulting in a conviction on nine counts and a declaration of “long-term offender”; (2) his defence of Mr. Basi in R. v. Virk, Basi and Basi on charges of corruption

involving aides to B.C. Cabinet ministers; and (3) his appearance as amicus curiae in R. v. Arfmann, a case involving a man convicted of the first-degree murder of Constable John Davidson, a member of the Abbottsford police force. Joe was regularly appointed as amicus, including on the R. v. Blackmore and Oler polygamy trial. His contributions in all of these roles garnered the praise of trial judges.

Over the years, Joe’s practice also swerved into criminal-adjacent practice areas. He practised administrative law involving the Police Complaint Commissioner and others. He also acted as commission counsel on various Police Act hearings and acted as counsel before the Braidwood Inquiry into the death of Robert Dziekanski at Vancouver International Airport. On several high-profile matters, he was appointed by the province as a special prosecutor. He also acted for witnesses in high-profile cases, including the Surrey Six trial.

Joe has also served the profession in a number of roles, including as president of the Vancouver Bar Association (2004) and in several roles with the CBABC, including on Provincial Council and the Advisory Committee to Judicial Council. He received his Q.C. (now K.C.) appointment in 2019 in recognition of his many contributions to the profession.

For the past 17 years, Joe partnered in practice with Chris Johnson, K.C. Together, they have fostered and mentored many younger criminal lawyers. Chris describes Joe as the greatest partner with whom he has worked, in large part because Joe was usually working out of town and was happy to rubber-stamp Chris’s management decisions.

In practice, Joe is known for his calm demeanour and reasonable, convivial approach. His friends, however, are well aware of his propensity to aim his ire at inanimate objects, including, in no particular order, out-ofbounds stakes, traffic, traffic bylaws and the “reasoning” of civic, provincial and federal politicians.

There was an unsubstantiated rumour that Joe used to have time management issues. Joe denies this allegation. When people suggested that he was late for lunch, he would explain that he wasn’t late—he just got caught up doing something and then it took him longer than expected to travel to his destination.

Joe is also not afraid to defend unpopular positions in discussions. If there are two sides available, he will usually back the underdog. He brings an iconoclast’s suspicious eye to generally accepted wisdom. He admits to a passing belief in a few political conspiracy theories, but won’t admit that they are conspiracy theories. No doubt, these propensities grew out of the lively debates around the dinner table in the Doyle household.

With the kids now through university, Joe lives with his wonderful wife Nicole within the urban landscape of downtown Vancouver. Nicole, a New York native, enjoys the West Coast’s laid-back approach to hustle and bustle. Joe loves the downtown life, especially the short and predictable commuting times.

Joe’s background, work experience, compassion and dedication make him perfectly suited to his new role on the bench.

The Honourable Justice John Gibb-Carsley

The Persian poet Rumi once asked, “And you? When will you begin that long journey into yourself?” In the case of John Gibb-Carsley, the journey began long ago, and the final destination is nowhere in sight.

John was raised in the small eastern Ontario town of Perth, which has been voted the prettiest town in Ontario every year … by the residents of Perth. He is proud of his roots and appreciates the small-town values with which he was raised. Both of his parents were schoolteachers, and he had what he considers an idyllic and carefree childhood, spending time with his parents, two sisters, grandparents and friends, enjoying the cottage life, sports, the outdoors and all that small-town living offers.

John greatly values the support and encouragement of his family. His parents, Natalie and John Sr., instilled in him a love of learning and curiosity about the world that continue to enrich his life. His mother was an artist and English teacher, and her love of language was matched only by her kindness, civility and grace. Among her greatest qualities was the ability to make all those around her feel comfortable and appreciated. His father is, to this day, a pillar of the Perth community, contributing his time and energy to service groups. Despite being 86 years old, John Sr. continues to lead an active life that includes biking, swimming and tending to his garden to provide fresh produce to the local food bank. John’s sisters, Althea and Victoria, are ardent supporters of community service and social justice, Althea serving her community as a social worker and Victoria giving back as a community advocate. John attributes his commitment to values such

as fairness, justice and respect for others to observing how his family members live their lives.

Sports and competition were an important part of John’s childhood and youth. He swam competitively from a young age and was ranked nationally in the butterfly. John seemed poised to take the swimming world by storm. However, at age 11, John’s swimming ambitions began to sink. His competitors had begun to grow taller and his advantage as a towering ten-year-old no longer made up for his lack of speed.

After making a small splash in the swimming world, John was fortunate to receive a full scholarship to attend high school at Trinity College School (“TCS”), a boarding school in Port Hope, Ontario. It was at TCS that he developed lifelong friendships, furthered his love of academics and sports and developed a dream of travelling the world. John attended TCS for grades 9 and 10, but due to his mother’s cancer diagnosis, he returned to Perth for grade 11 to be closer to his family. John is grateful to the school for allowing him to keep his scholarship and return for grades 12 and 13, where he was head prefect and co-captained the varsity football and basketball teams.

John was accepted to Yale University, but decided to remain in Canada to attend Queen’s University’s commerce program. After graduating in 1994, he embarked on a three-year journey travelling the world. His wandering years yielded rich experiences. He assisted in teaching economics and physical education at a school in Australia, which included taking students on sailing and kayak trips on the Coorong lagoon. He hitchhiked from Alice Springs to Darwin and cycled the Great Ocean Road from Adelaide to Melbourne. Before returning to Canada, he travelled by boat from Hong Kong to Shanghai and backpacked through China for three months, visiting historic sites and climbing two of China’s five sacred mountains. Having attained a bit of enlightenment, he left the remaining three mountains for another time.

Back in Canada, John’s odyssey continued, taking a job in Iqaluit as a financial manager on an environmental project to remediate the radar site of the Cold War Distant Early Warning Line. He then transitioned to a much warmer climate, helping a friend set up a fledgling mountain bike touring company in Arizona, Utah and California. While the business model involved more personal biking “research” than paying customers, John’s experiences were lasting and formative. John finished off his three years of wandering by spending three months in New Zealand, where he was able not only to mountain bike but also to learn to skateboard very poorly. Skateboarding has become a lifelong passion for John, despite the embarrassing disparity between his present skill level and the time he has invested. Still,

from time to time, John can be found at a local skate park, but only in the very early morning, before the cool kids arrive.

John returned to Queen’s for law school, where he was class president during his first and second year. Arguably, he became class president so he could organize fundraising events at local pubs, where he was able to play guitar and sing for a captive audience—a practice that would follow him throughout his legal career. In his third year, John was on the Queen’s mountain biking team, which by all accounts was not so much a team but a group of cyclists who went to mountain bike races on the weekend. John thoroughly enjoyed his time at law school and is grateful for the experience and the friends he made there, some of whom he remains friends with to this day. The most important of them is his wife Jennifer.

After law school, John worked at a national law firm in Toronto, which sparked his interest in litigation and provided him an opportunity to work briefly in Montreal. Even as a Bay Street lawyer, John’s wanderlust never disappeared, and he went on a self-guided bicycle trip with three friends, cycling from Islamabad, Pakistan to western China along the Karakorum Highway. This plucky group faced illness, mudslides and theft, but the experience remains among the fondest memories of John’s life.

Heeding the calls of the mountains and the ocean, John moved to Vancouver in 2003 and began working with the Department of Justice Canada in the tax litigation group. Moving to Vancouver was one of the best decisions John ever made. While John and his wife Jennifer were only acquaintances in law school, a chance encounter in Vancouver allowed them to deepen their friendship, which led to love, marriage, a profound bond and a marvellous daughter, Parker. John is keenly aware that none of his professional accomplishments would have been possible or meaningful without Jennifer.

As counsel with the Department of Justice, John (otherwise known as “JGC”) was nothing short of beloved. Whether carb loading handfuls of dry cereal in an office shared with others, or engaging in breakdance battles on the DOJ Christmas party dancefloor with a close friend (and now B.C. Supreme Court colleague),1 John always brought life and positive energy wherever he went. Somehow, just by being himself, John was almost successful in making tax law seem cool. Almost. John’s tax colleagues remain close to him, and John is grateful to have had the benefit of their skill as lawyers, their collegiality and their friendship.

In 2010, John joined the Department of Justice’s Criminal Law and International Assistance group (“CLIA”). Working in CLIA allowed John not only to hone his litigation skills and pursue his interest in international and criminal law, but also to develop deep and lasting friendships with his CLIA col-

leagues, along with an ironclad reputation for bringing levity to any situation, including those for which levity was not appropriate. In addition to becoming an expert in extradition and mutual legal assistance law, handling some of the most high-profile cases across the country, John continued to search for and occasionally find the intersection between litigation and music. The sound of John’s harmonica would sometimes drift down the CLIA hallways late in the evening while he prepared for an important case, and his guitar would make an occasional appearance as accompaniment for an original JGC composition to honour a departing colleague. The lyrics to John’s songs were both touching and humorous and would sometimes include informative interludes explaining the law of international legal assistance. Surprisingly, despite his mellifluous tones, no record companies came calling.

In addition to his interest in the law and his fondness for his colleagues, one of John’s greatest joys while at the Department of Justice was mentoring junior lawyers. Walking past his office, one would often see John engrossed in conversation with junior counsel or dashing off to court with an articled student. It was obvious that John earned the respect and admiration of these young lawyers, as they would return to seek his advice, time and time again, on a wide variety of issues. John felt he learned more from the young lawyers than he ever taught them, and was buoyed by their enthusiasm and interest in the law.

In 2012, John returned to university and received a scholarship to obtain a master of laws degree at UBC. John obtained his LL.M. over three years while working full-time at the Department of Justice and produced a thesis in which he was able to further explore his interests in international criminal legal issues. It was an enriching experience that deepened his passion for both academia and law and allowed him to enjoy once again the thrill of being on a university campus.

In his life away from the law, John continues to explore his passion for the outdoors. He snowboards and skis, both alpine and cross-country, as much as possible. In a display of judgment one could only describe as dubious, John continues to mountain bike challenging trails that are meant for younger bodies more able to withstand violent falls on stones and roots. In recent years, John has discovered a love for a new sport through which he can endanger himself: paddleboarding. John’s enthusiasm for the paddleboard led him to discover that it is unnecessary to take a ferry from Horseshoe Bay to Gibsons. Apparently, all one needs is a board, fearless determination, an energy bar and some encouragement from friendly sea lions.

Despite his many interests, friends and pursuits, John remains firmly devoted to those who are closest to him. Jennifer, John and Parker enjoy

skiing, mountain biking, paddleboarding and hiking the mountains of the West Coast. As of this writing, Parker is also still willing to be seen with her dad at the local skate park.

The long and winding road that has led John to the Supreme Court of British Columbia has given the jurists of that bench a colleague rich in life and legal experience. He is undoubtedly proving to be an insightful, assiduous and compassionate decision maker, one who allows litigants to be heard, and to feel they have been heard. He will demand much of lawyers appearing before him, while always setting an example for demonstrating respect, dignity and civility in the courtroom.

Where John goes from here is anyone’s guess. His path will undoubtedly be winding. It may even take him past Gibsons. But it is clear to those who know him that his journey is far from complete.

ENDNOTE

1. Names have been withheld to protect the innocent.

The Honourable Judge Michele Peacock

As counsel, most of us feel well placed to identify the qualities of a good judge: fair and open-minded, not quick to judgment, kind, empathetic, smart, wise, astute and humble. If all those ingredients were popped into some kind of magical, judicial Instant Pot or sorcerer’s cauldron, we have no doubt that the resulting product would take the form of our friend and colleague Michele Peacock.

Michele embodies all the qualities we look for in a judge. While it is true that write-ups such as this are quick to offer up such adjectives and superlative pronouncements with respect to their subjects, for anyone who knows Michele, there can be no doubt as to the veracity of this claim or the fact that she has possessed these qualities to her core and long before the Judicial Council came to hear her name.

Michele was born and raised in Calgary and is the eldest of four children born to parents Pat and Judy. She has three younger siblings, her sister Sandy and her brothers Mike and Chris. Her committed and determined per-

sonality was evident from an early age. Growing up, Michele took on every sport she could, including skiing, skating, gymnastics and even basketball, before settling on tennis, earning three Alberta junior tennis titles. Other successes include achieving upper levels in Royal Conservatory piano and later playing varsity field hockey and squash at McGill University.

She has long had a curiosity and passion for learning new things, qualities she shares with her mother, and which have influenced her path throughout her life. One of Michele’s longstanding interests is French. She attended a francophone kindergarten and was a student of the first bilingual class in Calgary in 1973. Michele studied French translation during her undergraduate studies at McGill, graduating with first class honours.

Her first taste of what would become her chosen profession also came early in her life, when she was a mere two months old and attended her father’s law school graduation in 1967. The seeds for a legal career were sown and, after her undergraduate studies, Michele decided to move west to Vancouver to attend the University of British Columbia to study law. She graduated in 1993 and was called to the bar in 1994, beginning her legal career articling with the firm then known as Stowe Ellis, and then as a sole practitioner with a focus in the areas of criminal and family practice. In 1995, she accepted a position as a staff lawyer with the Legal Services Society of B.C. Family Law Clinic and remained there until October 1996, when she joined the B.C. Prosecution Service as Crown counsel in the Vancouver region.

In her three-year Crown assessment, Michele was asked about her career objectives and had this to say:

My main goal is to continue to learn, to be challenged and to grow, both intellectually and professionally. One of the primary reasons I feel privileged to work for Crown Counsel is because of the wide variety of experience available. I hope to have the opportunity to participate in as many different functions as are offered by the organization.

Michele served the people of British Columbia as Crown counsel for nearly 26 years, and there can be no doubt that she met her career objectives as a prosecutor and then some. She worked the entirety of her Crown career in the Vancouver region and participated in all aspects or functions that the job offered. She was skilled in front-end Crown work, conducting charge assessments, bail hearings and arraignments and was likewise adept in conducting trials, both at the Provincial Court level and at the Supreme Court, doing judge-alone and jury trials. She represented the Crown on difficult, emotionally charged cases and, in doing so, handled herself with calm, professionalism and respect for everyone involved. She was recognized by justice partners and members of the public as having a flexible and

committed approach and for exhibiting a compassionate and trusting manner. These personal qualities helped empower and support witnesses to participate in the judicial process, in circumstances where their participation had been far from a certainty. The successful prosecution of many of Michele’s cases was owed to her very hard work, coupled with her patient, sensitive, ethical and determined approach.

Given her strong command of the French language, Michele was also a longtime member of the French Prosecution Team and was frequently called on to conduct bilingual prosecutions and last-minute translations for her Crown colleagues. She was also a valued member of the team charged with prosecuting offences arising out of the 2011 Stanley Cup Riot. The work of the team collectively earned them a BCPS Recognition Award in 2015 and national recognition in the same year in the form of the PFT Heads of Prosecution Commitment to Justice Award.

Michele has always supported the legal community. She gave generously of her time over the years in many venues, including as a supervising lawyer with the UBC Law Students’ Legal Advice Program and the UBC Criminal Law Clinic as well as being a Legal Committee member at West Coast LEAF. She was an instructor with the UBC team for the Peter Burns Moot Competition, an instructor for the RCMP Legal Training Sessions and a guest instructor at the Judicial Justice of the Peace Training Course. She was also a guest instructor for law students at PLTC and at the Law Courts Education Society.

Michele exhibited valuable leadership qualities throughout her Crown counsel tenure. She is described by her Crown colleagues as a remarkable leader—respectful, empathetic and impactful. She was also greatly appreciated as Administrative Crown Counsel for the Richmond Crown Counsel Office over a five-year period, a timeframe that importantly included the COVID-19 pandemic. Never one to shy away from a challenge, she agreed to assume the role of acting Administrative Crown Counsel for the BCPS Bilingual Prosecution Team for a period of time, while also working as Administrative Crown Counsel in Richmond. This was, of course, a busy and difficult time, and her steady hand in leading the Richmond office through the many resulting process changes, including a complete shift from paper to electronic files and remote court appearances, was exemplary.

On an interpersonal level, Michele’s positive and empowering nature and willingness to be personally available to offer advice, mentor and generally empower and lift up her colleagues were unfailing. She consistently went above and beyond, with optimism and a constructive approach, finding the positive in any situation or task. Her tenure in Richmond earned her the affectionate title of “fearless leader”—a moniker that has stuck with her.

There is no greater source of pride and strength for Michele than her family. As fate would have it, Michele met Gae in 1993, the day after writing her bar exam. Since that very first encounter, they have shared over 30 years of love and adventure and are blessed with an amazing extended family and two beautiful, talented daughters, Shae and Ava. While there is no doubt that her partner and soulmate Gae and their two daughters are proud of Michele, she would be quick to point out that they are no more proud of her than she is of them.

Outside of work, Michele has a broad range of interests. She enjoys athletic pursuits, which include being an accomplished golfer. She has a wonderful sense of adventure and enjoys travel. Her research and planning skills have carved enviable travel itineraries for her and her family around the world, including Malaysia, Borneo, the Maritimes, Sri Lanka, the Maldives, Costa Rica, Morocco and a seven-month sabbatical through Europe.

Michele has been described as having a moral compass that is in perfect harmony with pragmatism and empathy, making her the first person you go to for advice. This holds true not only in her personal relationships, but also in her professional ones. Michele is truly interested in those she encounters and is one of those people who makes you feel totally at ease when you are with her. She is an extremely committed friend who regularly goes out of her way to be there to offer meaningful support in times of need. Given her generous nature, it is not surprising that she is also an engaged and attentive listener. She has a genuine interest in the human condition, the struggles that unite us and the challenges that, although often cloaked or packaged differently, are at their core universal and shared. These are attributes that will undoubtedly serve her well as a judge.

Michele was sworn in as a judge of the Provincial Court of British Columbia on March 7, 2022 and assigned to the Fraser Region, with chambers in New Westminster. At the time of writing, she is coming up on her one-year anniversary in her new career. In this time, it has become evident that she possesses the perfect judicial temperament and is an excellent fit in her new role.

At Michele’s welcoming ceremony, Chief Judge Gillespie noted that a judge becomes involved in matters that impact, in a very real way, the lives of the people who appear in front of them every day seeking justice. It is undoubtedly a privilege and equally a solemn responsibility to serve the public in this way. For those who know Michele well, there is no question that this is a role to which she is eminently suited. Her innate and ingrained sense of participating in the lives of those around her in a meaningful and value-added way ensures the public will be very well served by Her Honour.

NEW BOOKS AND MEDIA

By R.C. Tino Bella*

Oakley the Squirrel: Camping 1, 2, 3! by Nancy

Publishing, 2023), 28 pages.

Rose (New York: Workman

Reviewed

by D.

Michael Bain, K.C.

As the editor of this legal journal, I sometimes receive unsolicited publicity for books that may be of interest to our readers. One such announcement in 2021 advertised a “unique alphabet book with a nutty twist”, Oakley the Squirrel: The Search for Z, a picture book by artist, educator and former guidance counsellor Nancy Rose. Ms. Rose’s book showed photographs of actual squirrels interacting with handmade props on miniature sets. I wrote back to the publicist and told her that “the readers of the magazine which I am editor of are all at a stage in their careers where reading should be such that nutty Oakley, as delightful and exciting as he may well be, is not actually required to help them out. They are either lawyers or judges and while this is entirely anecdotal rather than based on actual research, I am fairly certain most of them can read by now and even have the alphabet entirely memorized.” I was assured that I had been confused with a different Michael and would not be bothered by Oakley again.

Not so! For nearly two years later I received an email: “Hi Michael, I hope you’re well! I wanted to pop into your inbox with news of the return of Oakley the Squirrel – the nutty little creature who loves to count and spell with little learners.” This is how Oakley the Squirrel: Camping 1, 2, 3! came to my attention. I wrote to this new publicist and sent her copies of my prior interactions with her predecessor. For reasons I cannot quite explain, I also told her: “since then, of course, several more young people have been admitted as members of our profession and, I must confess, some of them could use some help with their spelling. Some of our older members, meanwhile, are

also now likely losing the ability to count and most likely prefer looking at squirrels camping rather than reading some of the dry articles in our magazine.” I therefore requested a copy of the book for review.

The publicist did not disappoint. A mint copy of the book arrived at my office and I fairly immediately set aside the document review I had planned for the morning and read the book cover to cover in about three minutes. Let me start by saying that Oakley the Squirrel: Camping 1, 2, 3! is a handsome cardboard book suitable for young readers to gently gnaw the rounded edges of and smack their filthy hands against. Some older readers may take the same pleasure. Oakley is indeed a squirrel and he does appear to be on a camping adventure for which he and his squirrel companions look to be well prepared. Oakley has driven to the campsite in a red Mini Cooper attached to a small trailer, which instantly puts me in mind of the licensing of trailers pursuant to the Motor Vehicle Act Regulations, B.C. Reg. 246/2010. He has brought 1 awning for shade that, based on its somewhat flimsy construction, is a good opportunity to discuss with the reader the provisions of the Occupier’s Liability Act, R.S.B.C. 1996, c. 337 and in particular the duty of care Oakley owes to his guests at the campsite. Oakley has 2 coolers filled with food he has made himself, and no doubt aware of the potential liability for hosts serving alcohol outlined by the Supreme Court of Canada in Childs v. Desormeaux, 2006 SCC 18, has sensibly also brought 3 pads and pillows for sleeping in tents.

Oakley’s drunken guests have 4 bright lanterns hung on a fence, which is probably owned by the province, and I am hopeful that he has considered the fire safety programs and fire bans that may be in effect, because those lamps look potentially hazardous to me. However, having apparently averted a disastrous end to the evening, the next morning, Oakley is up bright and early, and after using 5 buckets and shovels to erect a sandcastle and moat on a deserted beach (with apparent wild abandon when it comes to considering riparian, Indigenous and environmental concerns) he amasses no fewer than 6 fishing rods to head out onto the lake. Presumably Oakley knows about the basic licence carry and production requirements of the fisheries regulations, and if he is boating, he should also be familiar with the proof of competency currently required of all recreational boaters by Transport Canada.

I shall not spoil the entirety of the dramatic methods used by Oakley and his cohorts to reach the ultimate goal of counting to 10, for it suffices to note that simply the first six instalments provide the reader with a wealth of legal issues to explore with the grubby little brat bouncing on their knee, drooling all over the colourful photographs so beautifully prepared by Ms. Rose. The

photographs themselves are very clever and rather humorous. Ms. Rose has done an admirable job of making us believe, for example, that squirrels can roast marshmallows, barbeque cashews, wield axes for chopping firewood and even play electric guitar with no apparent source for amplification (although this is only implied and is never explicit).

This book is suitable for people learning to count and retired judges.

Reviewed by Peter Roberts, K.C.

After a pandemic-induced hiatus of three years, the Lawyer Show returned for a four-night (and one matinee) run between May 10 and 13, 2023 of the long-awaited Mamma Mia! , the ABBA-inspired play conceived by Judy Cramer from the book by Catherine Johnson. The Lawyer Show, now in its 20th year, is a fundraiser for Touchstone Theatre, a cherished cultural institution and registered charity that promotes and produces new Canadian plays. The Lawyer Show features a cast of local lawyers strutting their stuff on the boards in impressive style. This production of Mamma Mia!, the musical based on the songs of Benny Andersson and Björn Ulvaeus, was originally set for May 2020 but, like so much else, was put on hold given what else was going on at that time. Most of the cast from that intended production hung on and returned with gusto for the performances in May 2023. Collectively, they put in over 3,400 volunteer hours to get ready for opening night.

Staged at the Waterfront Theatre on Granville Island, Mamma Mia! tells the story of Donna Sheridan (Linda Sum), a single mum, and her daughter, Sophie Sheridan (Vista Trethaway), on the eve of Sophie’s wedding to Sky (James Blackwood), the bartender. Donna raised Sophie singlehandedly while building and running a quaint hotel on the fictional Greek island of Kalokairi. On the surface, it is a familiar, breezy comedy centred on Sophie’s search for the identity of her long-lost father. Love interests wax and wane as the play unfolds, but at its core it is an exploration of two generations of

Mamma Mia! by Benny Andersson & Björn Ulvaeus; The Lawyer Show, Touchstone Theatre, directed by Roy Surette, May 10–13, 2023

women exploring whether they need a male figure in their quest for personal fulfillment. As this unfolds, Donna is also coming to terms with her daughter becoming an adult. The foil to this exploration is the return to the island, at the surreptious invitation of Sophie, of three of Donna’s lovers, all of whom were with Donna on the island approximately nine months before Sophie’s birth—one of whom is surely Sophie’s father. Whenever the mood suits, the cast spontaneously erupts into the world’s catchiest pop hits from 1970s and 1980s Swedish powerhouse, ABBA.

The three father figures were enthusiastically played by Cobi Dayan (Bill Austin), Liam Kearns (Sam Carmichael) and Roger Watts (Harry Bright). All gave great vocal performances of the ridiculously catchy ABBA tunes (everyone knew them all), but special kudos to Roger for carrying it off with a brightly credible English accent throughout. Donna’s two closest friends, returning for Sophie’s wedding, were played by Mandana Namazi (Rosie) and Johanna Goosen (Tanya), both of whom gave witty comedic performances. The comedic timing of Cobi Dayan and Mandana Namazi on the song “Take a Chance on Me” was hilarious and memorable. Indeed, all the play leads gave committed and delightful performances though special kudos to Lawyer Show veteran Rhona Lichtenwald for her hilarious portrayal of Father Alexandrois.

Space does not provide room for comment on the supporting cast of Jennine Punzalan (Lisa), Jonathan Braun (Eddie), Jennifer Lang-Hodge (Ali), Breanna Moffitt, Ilana Teicher, Kiera Neufeld-Heinrichs, Itti Ma, Seeley Brocklebank, Nimrit Dhillon, Jeevyn Dhaliwal, K.C. (soon to be Law Society president), Kate Dueck, Stacey Grubb, Elan Hannah, Amy Ko, Sarah Lavrisa, Felicia Slogoski, Celia Taylor, Una Urosevic, Roselle Wu and Craig McCue. Suffice it to say they all brought an inspired level of commitment, enthusiasm and fun to the stage and wonderfully complemented the production.

As an interloper to the legal cast, Vince Kanasoot, a CPA, did an engagingly humorous turn as Pepper. For his efforts, he was awarded the Miller Thomson Shining Star Award, along with Kiera Neufeld-Heinrichs, who was the assistant choreographer and dance captain, in recognition of their contributions and dedication to the Lawyer Show.

Unseen and stuffed off to stage right was the band, a slightly reworked version of Battle of the Bar Bands champions Mr. Fancy Education, who provided tight, lively and enjoyable renditions of the songs. The band was led by musical director Marguerite Witvoet and consisted of Michael Bain, K.C. (bass guitar), Cappone D’Angelo (guitar), Patrick Aldous (drums), Doran Chandler (keyboards) and Mark Slay (percussion).

As a general observation, everyone in the production has a demanding day job but acquitted themselves well enough that they could conceivably consider giving up that employment for the stage. It was clear as an audience member that those strutting the boards before us were all having a rollicking good time. They brought an infectious energy that had the audience singing along by the end. The cast were clearly having fun, and there was scant evidence of opening night jitters or stage fright. Kudos must be given to Touchstone’s creative team, which included Roy Surette, director; Miranda MacDougall, choreographer; Ryan Cormack, set designer; Victoria Bell, light designer; and Donnie Tejani, costume designer. Well done, all. It was an engagingly enjoyable evening of musical theatre and Swedish funk. To boot, it was all for a good cause. The 2023 Lawyer Show grossed over $100,000 and netted Touchstone Theatre $35,000.

LETTERS TO THE EDITOR

By R.C. Tino Bella*

Dear Editor,

Re: Steven McKoen, K.C., & Brook Greenberg, K.C., “On the Front Cover: Christopher McPherson, K.C.” (2023) 81 Advocate 15; “Entre Nous” (2023) 81 Advocate 9; and riding a bike

I enjoyed the cover of your January 2023 issue and the write-up on Christopher McPherson, K.C., as well as the editorial on cheating. They brought back memories of cycling as a lawyer and made me think about developments in biking, cheating and human rights— and some random thoughts about Lance Armstrong, Scott Mercier, George Everett Klippert and Mr. McPherson.

In 1971, I was fortunate to secure articles at Farris, Vaughan, Wills and Murphy, which had new offices in the Pacific Centre. I decided to commute on my bike. I asked at the carpark whether I

could park my bike there. I was told the cost would be the same as for a car. So instead I smuggled my bike up the elevator early in the morning, took it to my office and hid it behind the door. During the day, Robert Gardner came in, saw my bike, mounted it and rode it around the hallways. This was reported to and dealt with by the management committee. My commuting days were over.

Some years later, I resumed commuting when I worked in one of the Bentall towers and had access to a locker and shower. One of my clients was the Continuing Legal Education Society. One day I had to attend an early meeting at their office. I asked if I could come in my biking gear on my way downtown. No problem. After the meeting, I asked at the front desk if I could use the washroom facilities. The receptionist gave me the once-

over and said, “Couriers down one floor.” I almost gave her a hug.

Cheating has long been a part of cycling. It is distressing for those who believe in honesty to watch so many young cyclists succumb to doping. We all know of Lance Armstrong. But how many of us know of Scott Mercier?

Some years ago, I did a ride in Colorado called “Ride the Rockies”. Every evening, the organizers brought in a speaker. One evening, the speaker was Lance Armstrong. While he was contrite about the individuals he had wronged, he expressed no remorse about doping itself. His excuse was “everyone else did it.”

This troubled me. When Armstrong confessed to doping, he said one of the hardest things he did in his life was come home to his 12year-old son and admit that he had cheated. I asked Armstrong what he would tell his son if he came home and asked if it was OK to cheat in school because everyone else was doing it. I didn’t get an answer.

The next evening, the speaker was Scott Mercier. He had been as talented a young rider as Lance Armstrong. When he graduated into the professional ranks of cycling, he found that he couldn’t keep up with the other members of the peloton. When he told the team doctor, the response was: “Do you know how to self-inject?” He real-

ized that he was going to have to dope. The next morning, he told the team doctor that he was leaving the team. This ended what could have been an illustrious career.

Not everyone cheats. Scott Mercier did not. His career was sacrificed because others cheated and thought it was OK. It was not. I would venture to say that most American fans of Lance Armstrong would say it was OK. I wonder what the would-be lawyers in Ontario thought.

In 1971, cyclists were not required to wear helmets. The picture of Mr. McPherson shows him in full court regalia while riding a bike. Artistic licence, no doubt. I don’t know whether he has ever tried riding a bike in his robes , but it looks risky. However, I am sure he always wears a helmet!

I belong to an organization called Barristers Into Kinetic Energy (“BIKE”). A list of some of the members is included at the end of this letter. I can safely say that every member of BIKE wears or wore a helmet. I wonder whether your artist could be persuaded to refinish the portrait so that Mr. McPherson would not be seen to be afoul of the law.

Speaking of being afoul of the law, we come to the case of Everett George Klippert. When I started my articles in 1971, he was languishing in jail—essentially for the crime of being gay. He had been

imprisoned after admitting to having had recent homosexual relations. He was ruled a “dangerous offender” and imprisoned indefinitely. His appeals failed, including to the Supreme Court of Canada ([1967] S.C.R. 822). He received what was in effect a life sentence. (Compare that to the punishment of the would-be lawyers in Ontario.)

I was moved by the fact that Mr. McPherson is the first cycling and openly gay president of the Law Society. Can you imagine being a gay articling student (and therefore a criminal) in the 1960s?

This brought me back to the editorial (with which I agree). I wonder how many of our profession had to lie about their personal circumstances in order to be able to practise law? I can recall being asked at my articling interview by a bencher (later a member of our Court of Appeal) whether I was a communist. I think this question was also asked of Gordon Martin, who answered it honestly and was not admitted. Either of us could just as well have been asked about our sexual orientation, in order to ensure that “criminals” were not admitted to the profession.

It left me wondering: Would it have been appropriate to lie about one’s sexual orientation in order to be permitted to practise law? Would it have been appropriate to lie in order to gain admission to

Trinity Western University’s law school?

We are indeed fortunate that our president of the Law Society was not required to face those issues.

Dick Hamilton, K.C. Gabriola Island

Some of the erstwhile and current members of BIKE (in alphabetical order):

Joe Arvay, O.C., O.B.C., Q.C. (who cycled even as a paraplegic)

Gary Atkinson

Suzanne Bizon

Matthew Cooperwilliams

Dugald Christie (killed tragically while cycling to Ottawa in 2006 to raise support for access to justice)

Tony Crossman (a.k.a. “Tony Crossbike”)

Neil de Gelder, K.C. (latest inductee to the Sacred Order of the Cog)

Robbie Fleming

Chris Forguson

Patrick Foy, K.C.

Gary Fraser

David Hay, K.C.

Nicole Howell

Valerie Jewison

Doug Johnson

Val LeBlanc

Bill McNaughton

Gerry Massing (now deceased, but who was known for riding every day at lunch, in any season or weather, wearing a pair of

skimpy shorts and shoes—no shirt, ever)

Mark Powers

Al Ross (Honorable Secretary of Le Peloton)

Duff Waddell

Dear Editor,

Re: Gavin Hume, K.C. & Timothy Harvey, “On the Front Cover: Christopher Harvey, Q.C.” (2023) 81 Advocate 177

I enjoyed reading the welldeserved tribute to Chris Harvey, Q.C.

Chris was the epitome of a barrister: strive mightily in court but afterward eat and drink as friends.1

I had more than 15 cases against Chris and never once did he lose his temper when things went badly for him. We always remained friends and I was shocked to learn of his passing.

Having said that, there is an error in the tribute that requires correction. During an unsuccessful attempt by Chris to have a proposed class action certified against the federal Crown, I argued that despite the importance of Magna Carta to our legal history, it is not part of Canada’s constitution and is subject to our laws. To make that point, I referenced, before Brenner C.J. who was presiding over our

case, a B.C. Court of Appeal decision that made it clear that a municipal bylaw could and did override Magna Carta

During the afternoon break, Chris took me to a plaque on the third floor in the Vancouver courthouse containing the text of Magna Carta in support of his position that it was good law in Canada. I pointed out that clause 11 discriminates against Jews and that is another reason why there is no basis to suggest that Magna Carta is good law in Canada let alone part of our constitution. Chris had no response.

As for the right of public fishing under Magna Carta, it again is subject to the Fisheries Act and can be modified by validly enacted legislation. This is not in any way to denigrate the remarkable career of Chris Harvey, but I seek only to correct the record.

All the best,

Harry Wruck, K.C. Vancouver

ENDNOTE

1. [We hate to be sticklers for detail (actually we love it), but if Harry Wruck is going to correct Chris Harvey about the Magna Carta when Chris is no longer here to defend himself, we are going to correct Harry on his Shakespeare. “And do as adversaries do in law / Strive mightily, but eat and drink as friends”: Taming of the Shrew, 1.2.280. – Ed.]

GRUMBLES

By R.C. Tino Bella*

Dear Editor, Re: “Grumbles”

(2023) 81 Advocate 450

Mr. Justice Grauer’s “Grumble”, in the most recent edition of the Advocate, refers, if only obliquely, to the fact that I have lived through five monarchies, while the editor gratuitously observes that I am older than I look. One of the misfortunes of growing old is that as the years rush by, you find yourself attending more and more funerals. Your friends keep dying. I seem to have an ever-decreasing circle of acquaintances, and I always feel obliged to go to their funerals.

Yogi Berra, the sage of the baseball fraternity, put it best: “If you don’t go to peoples’ funerals, they won’t come to yours.”

These past few months, I have written two obituaries and delivered one eulogy. When an old friend dies, I live in fear that I will

be asked to deliver a eulogy. It is not so much that I have difficulty thinking of what to say. After all, I spent my working life speaking in public, so I ought to be used to it. The problem is that I never attend a funeral without shedding a tear. Normally that wouldn’t matter. Nobody would notice. But it is different when I am on my feet, even with the comfort of a lectern between me and the congregation. The first time I delivered a eulogy was on the occasion of the funeral of a dear and very old friend. He had been a Provincial Court judge and the church was overflowing with people I knew. His widow asked me to “Say a few words”— “Make it brief, David, and not too serious.”

Well, in the event, I ran on for about 20 minutes. Then, unrehearsed, I decided to end with the closing words of Hamlet.

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

There cracks a noble heart. Flights of angels sing thee to thy rest

I choked on the angels. Then, sometime later, I ran across an old African saying: When an old man dies, it is as if a library has burned down.

So much wisdom is lost.

So, I used that saying as an introduction to the next two eulogies I was enlisted to deliver as well as the Hamlet quotation in closing. I felt somewhat of a fraud, using the same quotation each time. It felt somehow insincere. I felt vaguely obligated to come up with something different each time, something unique for my departed friend. But the quotations were so apt on each occasion and I was careful to note if there were people present that had heard me say these things at an earlier funeral. In the event, only members of my own family would hear me repeat myself, and I knew they would forgive me—and if they didn’t, it wouldn’t matter.

Funerals are rites of passage. I find it difficult to analyze why they are important. Although I don’t like attending funerals, I feel I somehow owe it to my erstwhile friend to come and say goodbye. It annoys me when I read a death notice of an old friend in the newspaper and it ends “ No funeral by request of the deceased”. “Damn it!” I

think. They have no business denying us all the liberty to come and say goodbye. It’s just not right.

What if, for instance, Queen Elizabeth II had left a will that said “No funeral, by royal command.” What a shock that would be to the nation. One would suppose that the family would hastily bury the request. I read somewhere that the queen had largely planned her own funeral. And it is obvious that those plans had been in waiting for a good many years. Nobody could have possibly come up with that magnificent piece of theatre in the few days between her death and her interment. It was so with Sir Winston Churchill’s funeral. He planned it himself and a long time before he died.

I watched both those funerals on television—I, in West Vancouver, the funerals in London. There were two moments of theatre, one in each funeral that brought a tear to my eye.

Churchill’s service in St Paul’s Cathedral had ended. His coffin was carried out to the gun carriage and taken down to the Thames to be put on a barge, which was to take it up-river to Woodstock, where he was to be buried alongside his ancestors. As the barge slowly made its way upstream, past the docks, all the cranes along the river dipped their arms in salute as the funeral barge went past. It was a touching gesture.

Eight guardsmen carried Queen Elizabeth’s coffin out of Westminster Abby to a hearse, which drove it to Windsor, where she was to be buried in St George’s Chapel, beside her husband. Her coffin was taken out of the hearse and placed on a gun carriage at the beginning of the Royal Mile that leads through Windsor Park up to the castle. That mile was lined with a crowd of her citizens, all come to bid her goodbye. But close to the castle, the common populace was replaced by her retainers and familiars. The television camera panned those who knew her well, standing along the last furlong of the Royal Mile. It came upon her two corgis, cheerfully wagging their tails. But then came the spectacle of a little black pony, a groom holding its bridle. The Queen’s pony. Standing quietly and patiently watching as the cortege passed by.

David Roberts, K.C. West Vancouver

I indeed made an egregious error (actually overlooked in editing, therefore I could cover it off as a mere typographical error) by suggesting that David Roberts’s second monarch during his lifetime would have been “His Majesty King Edward VI” when it clearly should have been “His Majesty King Edward VIII” (our late great Queen’s uncle). This error was clearly mine so you do not owe me any apology for that error.

Dear Editor,

Re: “Grumbles”

(2023) 81 Advocate 450

I notice that the “Grumbles” column in the May 2023 edition of the Advocate is entirely taken up by two letters plus an editor’s note from yourself about the egregious error that they found in my letter to you, which you kindly had published in the January 2023 edition.

However, you do now owe an apology to Advocate readers because in your editor’s note, you have compounded my initial error by saying that it should have read “His Majesty King Edward VII”. No, that is wrong as well but off only one numeral from my original error, which was off two numerals. The King involved was the eighth Edward and not either the sixth (my original error) or the seventh (your editor’s error). The seventh Edward was of course the greatgreat grandfather of our new King, His Majesty King Charles III, and was the oldest son of Queen Victoria. He succeeded to the throne in 1901 and died in 1910, and we know that Mr. Roberts cannot be that old!

I do appreciate your effort to clarify this error and somehow give me some cover. However, the initial error is all my own and I caused this whole problem in the first place! In an earlier letter to

you, which you also kindly published, I believe I had complained about the fact the “Grumbles” column seemed to have disappeared. I am delighted it is back and that ironically it was provoked by something I said in a letter to you!

[From time to time, we intentionally place errors in our musings to see if readers are paying attention. This was not such an occasion, therefore:

“Off with our heads!” – Ed.]

Best regards, Mike Donison West

Kelowna

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LEGAL ANECDOTES AND MISCELL ANEA

By D. Michael Bain, K.C.*

THE BALLAD OF SIR FRANKIE CRISP1

Let it roll across the floor, Through the hall and out the door

To the fountain of perpetual mirth, Let it roll for all it’s worth. Find me where ye echo lays; Lose ye bodies in the maze, See the Lord and all the mouths he feeds, Let it roll among the weeds, let it roll. Let it roll down through the caves, Ye long walks of Coole and Shades Through ye woode, here may ye rest awhile, Handkerchiefs to match your tie Let it roll.

—George Harrison, “The Ballad of Sir Frankie Crisp (Let It Roll)”, All Things Must Pass (1970, Apple Records)

John Shalders Crisp was from Norwich. He became a printer in the noted printing business of Childs, of Bungay, Suffolk, which not only brought him an income, but also a wife in the form of Harriet Childs, the only daughter of his boss, John Childs (who was a sturdy opponent of church rates and the monopoly of Bible printing then enjoyed by universities and the King’s

* D. Michael Bain, K.C. is the editor of the Advocate. Michael visited Sir Frank Crisp’s estate in November 1999 with his brother, Nigel, a few weeks before the owner of the estate survived a stabbing by an intruder there. Neither Michael nor Nigel were ever formal suspects.

printers). John and Harriet Crisp relocated to London (where John continued as a printer for Ward & Co.) and in October 1843 they were living in Nelson Square, a quiet secluded spot on the east side of Blackfriars Bridge when Harriet gave birth to their only son, Frank.

Frank Crisp was educated at private schools including Central Hill and then at University College School in Gower Street. While initially he was intent on becoming an engineer, a few months before leaving school he became fascinated by the law and spent his spare time attending hearings at the law courts. At the age of 16 he was articled to the firm of Ashurst & Morris at No. 6 Old Jewry. He engaged in private study and obtained a B.A. and LL.B. from London University.

In 1867, at the age of 24, Frank married Catherine Howes. He was admitted as a solicitor in 1869, with honours, and his legal reputation grew until he was admitted into the partnership of Ashurst, Morris, Crisp & Co. Crisp’s legal career developed together with the limited liability principle and he became highly regarded as corporate solicitor and was “generally looked upon in the City as the Lord High Accoucheur of Joint Stock companies”.2

One of Frank’s enthusiasms, however, was the newly invented microscope, of which he was both an enthusiast and eventually an authority. It was with this instrument that he was depicted on the cover of Vanity Fair in 1890. He procured a complete library of books on the topic and in 1870 became a fellow of the Royal Microscopical Society, serving on its council from 1874 and becoming its secretary in 1878 and its treasurer in 1881, a position he held for 24 years. Under his direction and guidance (and with the help of his sizable purse) the society benefitted from a highly regarded (and illustrated) journal published and read internationally, as well as the introduction of electric lighting to the society’s facilities.

Frank was also a legal advisor to the Liberal Party and he was knighted in 1907 and received a baronetcy in 1913. In addition to his interests in law and microscopy, he held an enormous enthusiasm for medieval England, which he combined with his interest in gardening to write a book entitled Mediaeval Gardens, which was published posthumously in 1924. Crisp was also the treasurer of the Linnean Society (still going since 1788), which is devoted to gardening, and he was awarded the Victoria Medal by the Royal Horticultural Society in 1919. There is a certain irony here since the RHS banned garden gnomes from being displayed in its recognized gardens on the basis that they were crass and common; Sir Frank Crisp, though, was a devoted gnomophile.

In 1889, Crisp bought two villas on the edge of Henley-on-Thames: Friar Park and Friar’s Field. He paid a total of £18,000 and merged their grounds into a 62-acre estate. He then commissioned a little-known architect, Robert Clarke Edwards, to build what the Victoria County History described as “a

colourful and eccentric melange of French Flamboyant Gothic in brick, stone and terracotta, incorporating towers, pinnacles, and large traceried windows”. It was the size of a palace.

Sir Frank added an alpine/mountain garden to complement the palace and populated it with his beloved garden gnomes. He called upon a garden designer named Ernest Milner to help him lay out extraordinarily extravagant gardens and grounds—which, as he continued to buy surrounding land, eventually extended to 90 acres. Crisp was so proud of the result that over the course of the next 20 years, he opened the garden to the public and provided them with a 276-page guidebook full of images of the medieval and Elizabethan gardens that had inspired him. The guidebook included a long section of plant anatomy and plant families as well as information on the house itself. He also commissioned a Manchester-based calligrapher and book illustrator to produce a fold-up map of the estate to serve as a simple visual guide.

The map showed “Ye Gate of Entrance for ye visitors with ye seeing eye, ye hearing ear and ye understanding wit” and displayed curious names for various aspects of the garden and buildings including: “Ye Lower Lodge. Low but not Base”, “Ye Upper Lodge. High but not haughty”, “Ye Fountain of Perpetual Mirth” and a warning sign “Don’t keep off the grass”. When Crisp had difficulties with birds stealing some of the fish out of his artificial lake, he put up another sign: “Herons will be prosecuted.”

In addition to the artificial lake, the gardens included a medieval herb garden, a Japanese garden, a topiary garden, a rhododendron garden and a series of underground caves populated by more gnomes, accessible only by boat, and lit at night by lights designed to look like grape vines. By far the garden’s crowning achievement, however, was an alpine garden replete with a 40 foot scale model of the Matterhorn.

A few weeks after Sir Frank Crisp died, his wife sold Friar Park and its gardens for £46,500 in 1919. The purchaser was Percival David (whose father Sir Sassoon David founded the Bank of India), and he remained at Friar Park until 1953 when he and his wife divorced. The estate was then acquired by a teaching order of nuns, the Salesian Sisters of St. John Bosco, who used it as a training centre. Unfortunately, the nuns did not have the financial wherewithal to maintain the gardens, which fell into considerable disrepair. Worse still, in order to bring in some money, the sisters allowed local builders to use the grounds and even the lakes as a dump. At one point they wanted to demolish the main building and put in a block of flats with 221 units.

Fortunately, the Henley Council refused to approve the nuns’ proposal. Nevertheless, a dismal decline and eventual demolition seemed likely

until, out of the blue, a saviour appeared and put up £140,000 to purchase Friar Park. It was January 1970 and the purchaser, George Harrison of Liverpool, was now a retired Beatle at the age of 27. Most of the house was unusable and the grounds contained abandoned vehicles and other rubbish completely overgrown with brambles. Still, George Harrison felt the estate held some promise.

As he wrote in his autobiography, I Me Mine: Friar Park … is really incredible. It was all rotting and nobody was interested. They were trying to pull it down and destroy it. Now it’s a listed building. They even sent me certificates of historical value for the railings and restorations which I installed! All the historic societies want to come and look at it now, but nobody was interested when I got it, it was just unloved.

Harrison decided to rebuild the palace room by room on an as-needed basis. He started by installing a 16-track recording studio3 and a slow but steady restoration effort of the building and the gardens took place; for a period he allowed the Hare Krishna movement to occupy one entire wing of the mansion. Over the next few decades, Harrison completely restored the gardens and liberated many of the gnomes along the way, including those in the underground caves he discovered in the 1980s. While he kept the name “Friar Park”, he also christened the house “Crackerbox Palace” and became a lifelong fan of Sir Frank Crisp, whose quirky sense of humour had been left in the form of inscriptions of strange expressions dotted around the property; Harrison sometimes used these as inspiration for song lyrics. Harrison also described Sir Frank Crisp as “a combination of Walt Disney and Lewis Carroll”, and he developed an almost comedic obsession with the quirky 19th-century London solicitor.

In 1979, Harrison put up Friar Park as collateral to bankroll the production of Monty Python’s Life of Brian, a stunt that could well have resulted in him losing the property altogether. Harrison, who survived an intruder’s knife attack on the property in 1999,4 passed away from cancer in 2001 at the age of 58. Today, the 30-room house is lived in by his widow, Olivia, and their son, Dhani. The renovated palace and completely restored gardens have been valued at about £40 million.

ENDNOTES

1. This article can be read as a prequel to “Legal Anecdotes and Miscellanea: Denis O’Brien – A Very Naughty Boy” (2023) Advocate 297.

2. “Men of the Day. No 470. Mr. Frank Crisp”, Vanity Fair (31 May 1890).

3. Friar Park Studios, Henley-on-Thames, or “FPSHOT” as it became known.

4. Harrison suffered multiple stab wounds in the attack, and when his friend Eric Idle came to visit him in hospital, Harrison asked: “Why doesn’t this kind of thing happen to The Rolling Stones?”

FROM OUR BACK PAGES

By D. Michael Bain, K.C.*‡

THE COURT OF CHIVALRY*

Iwas up to the law courts today to see a Court which has not sat for 223 years. The Court of Chivalry, consisting of The Earl Marshall sitting as High Constable of England (The Duke Norfolk), with the Lord Chief Justice, the Two Kings of Arms and the Four Heralds of England, all in scarlet and gold with decorations and insignias. They sat to determine whether The Manchester Variety Theatre could use The Arms of The Manchester Corporation without permission. All the World, of course, was trying to get in and I only got in through knowing a Barrister who went in robed and let me sneak in under his robes, so to speak. The only statute dealing with the jurisdiction of the Court was one of 8 Richard II (1385 I believe), but it had been repealed a hundred years ago or so when the Court was thought to be obsolete. So counsel had to interpret the 8 Richard II (it was written in Norman French) and then find out what the jurisdiction and procedure was before that date. One nice point arose when the Lord Chief Justice asked counsel how the Court would enforce its judgments and was told that The Earl Marshall had power to commit persons to his prison. At this point. His Grace looked startled—I don’t believe he knew he had a prison of his own. The Lord Chief Justice looked a little startled too and said that he thought all private prisons had been abolished. Yes, said counsel, but The Earl Marshall is not a private person! Then, as only gentlemen could bear arms, the question arose could The Manchester Hall of Variety be called a gentlemen?

James W. Lawrence London, Dec., 1954

* Reprinted from (1954) 12 Advocate 213.

BENCH AND BAR

Are you reading this on a summer night? If so, you might want to look around to see if any of the mischievous fairies from A Midsummer Night’s Dream have emerged from the twilight to join you. For those who don’t keep a copy of the play handy, the Shakespeare Birthplace Trust summarizes it as follows: “[f]our Athenians run away to the forest only to have Puck the fairy make both of the boys fall in love with the same girl. The four run through the forest pursuing each other while Puck helps his master play a trick on the fairy queen. In the end, Puck reverses the magic, and the two couples reconcile and marry.”

Edward F. Macaulay decamps from practising as a sole practitioner on Howe Street to join North Shore Law. Emily M.G. Stockley goes in-house with the First Nations Financial Management Board, leaving Lawson Lundell to do so. C. Geoff Baragar, K.C., moves to Mitha Law Group from the Office of the Attorney General. Carrie L. Koperski sets sail to Pulver Crawford Munroe LLP’s Victoria office, departing Roper Greyell to do so. Sonia Kainth joins Clark Wilson from Henderson Heinrichs. Connie Risi lands at Alexander Holburn Beaudin + Lang, having set sail from Bernard LLP. Kimberly-Anne M. Kuntz, once of Bull, Housser & Tupper and then Norton Rose, has moved to Scion Law, a boutique estate firm. Meridian Law Group welcomes Ross E. McLarty and Murray T. Wolf, both formerly of McLarty Wolf, and Leon Beukman, formerly of Borden Ladner Gervais. Nathan Van Kampen sashays from Priddle Law Group to Mair Jensen Blair in Kamloops. Sean P. Jones and Katie Bellett, both formerly with MLT Aikins, and Andrew J. Kim, formerly with Powell Grey Kim, are all now

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.

with MacKenzie Fujisawa. Mona Yousif leaves Lawson Lundell to go inhouse with Methanex Corporation. Angie N. Riaño is now with Henderson Heinrichs, having departed from Dentons. William S. Wijaya joins Pulver Crawford Munroe after completing articles at Farris.

William T.H. Lovatt is now at Harper Grey, moving from Echo Law. Özge Yazar says goodbye to Lawson Lundell, joining Miller Titerle. Aynsley P.P. Severide returns to Harper Grey after a stint with Severide Law. Mark G. Ritchie and Denise Kwo leave Radelet & Company to start up Ritchie & Kwo. Kimberly Little moved from Haddock & Co. to the Lawyers Indemnity Fund. Megan E. Young is now at Clark Wilson, moving from Miller Thomson to get there. Jessica Park joins Legacy Tax + Trust Lawyers from Alexander Holburn Beaudin + Lang. Craig Dennis, K.C., Owen James, Eric Aitken, Ray Power, Emily Lennox and Mitchell Ferreira have split off from McEwan Partners to continue their litigation practice together under the new firm name of Dennis James Aitken LLP. Connor Pouryekta joins Lawson Lundell from O’Neill Law.

Shakespeare’s A Midsummer Night’s Dream is premised on a law that Theseus, the ruler of Athens, describes as follows to Hermia, whose father insists that she marry Demetrius rather than her beloved, Lysander. When Hermia asks “[t]he worst that may befall me in this case, / If I refuse to wed Demetrius”, Theseus responds: “Either to die the death or to abjure / For ever the society of men.” He urges Hermia to reflect on the situation, whereupon she and Lysander embark for the home of his widowed aunt because “[f]rom Athens is her house remote seven leagues; … to that place the sharp Athenian law / Cannot pursue us.” Hermia, her friend Helena (who loves Demetrius), Lysander and Demetrius are the four earlier-mentioned Athenians in the woods.

The Provincial Court was recently boosted with the appointments of Jeremy P. Hermanson, Jaqueline G. McQueen, K.C., and Nicholas J. Preovolos as judges, and Nicole L. Cederberg as judicial justice.

“This matter has come before us as a procedural morass. The misidentification, blending, and overlapping of entities and motions constitute a virtual legal counterpart of A Midsummer Night’s Dream—but without the whimsy and charm of Shakespeare”: Post v. Lee Brick Co., LLC, 2012 WL 3236566 3 (Ky. App. 2012) (unpublished).

On April 12, 2023, Barbara A. Carmichael, K.C., was appointed as the Deputy Attorney General of British Columbia.

In Midsummer Night’s Dream, Oberon is the king of the fairies, and Titania is the queen. In related matters, Oberon and Titania are two moons of the planet Uranus. Oberonia is a flowering plant in the family Orchidaceae. Oberon and Titania are mentioned in Pink Floyd’s “Astronomy Domine” and Queen’s “The Fairy Feller’s Master-Stroke”.

Kate M. Campbell and Alison C. Wake were appointed members of the Civil Resolution Tribunal for a term of three years. Sherelle Goodwin and Eric M. Regehr were appointed as vice chairs, each for a term of three years.

“A Master is not a fairy godmother capable of making that which may be wrong, magically right”: Inform Cycle Ltd. v. Rebound Inc., 2008 ABQB 62.

Stacy F. Robertson was reappointed to the Hospital Appeal Board as a member and designated as chair for a term ending December 31, 2028.

Chief Judge Lagueux noted in Iacampo v. Hasbro, Inc., 929 F. Supp. 562 (D.R.I. 1996) that “[l]ike a battlefield surgeon sorting the hopeful from the hopeless, a motion to dismiss invokes a form of legal triage, a paring of viable claims from those doomed by law.” The judge described the case as “[a]t heart, … a simple sexual harassment and disability-based discrimination case, made complicated by overly creative lawyering. As Shakespeare wrote: ‘So quick bright things come to confusion.’ W. Shakespeare, A Midsummer’s Night Dream, act 1, sc. i, l. 149 (1595-1596).”

Hippolyta, the Queen of the Amazons, is among the characters in A Midsummer Night’s Dream and ultimately marries Theseus. She is also, by the way, reputedly the mother of Wonder Woman.

Graeme Bowbrick, K.C., was appointed as a member of the board of governors of the Notary Foundation of British Columbia for a term ending May 19, 2026.

Donna M. Turko, K.C., was reappointed as a director of the Legal Services Society for a term ending April 22, 2025.

The Bench & Bar Dinner was held on June 15, 2023 at the Fairmont Waterfront. During the course of the evening, Eloise Spitzer was presented with the 2023 Law Society Award in recognition of her more than 40 years of extraordinary work in the legal profession and the administration of justice.

Her extensive contributions to Indigenous reconciliation and women’s equality, as well as her continued involvement in and dedication to the mentorship of young lawyers, makes her a worthy recipient of this award. Also recognized for his many years of dedicated service to the profession was Edward L. Wilson of Lawson Lundell, who was this year’s recipient of the CBABC Georges A. Goyer, QC Memorial Award for Distinguished Service. In addition to being just a great guy, Ed has been a CBABC member for 43 years and has given years of service as the CBABC representative on the BC Real Estate Association’s Standard Forms Committee, as well as being a past chair of the Real Property Section.

June is the month for you if you are of Italian heritage (Italian Heritage Month) or of Filipino heritage (Filipino Heritage Month).

The Battle of the Bar Bands returned to the Commodore Ballroom stage in Vancouver on June 2, 2023 for the first time since 2018. This was the 18th battle since its inception, and this year the event raised the most money it ever has for the CBA(BC) Benevolent Society. Hosts Derek Brindle, K.C., and Terry La Liberté, K.C., were accompanied by Stephanie Hacksel of the sponsor, Hunter West Legal Recruitment, in presenting no fewer than seven bands determined to enthrall a sell-out crowd of 1,500 to cover songs ranging from ABBA to Rage Against the Machine. Ms. Hacksel presented the award for top fundraiser to Actus Lex Machina (which loosely translates as “the act of the law machine” but is not a complete defence to a regulatory complaint), and the award for top legal sponsor went to Bennett Jones LLP.

In order of performance the bands were Standard of Hair, Still Living at Home, Crown Jewels, Actus Lex Machina, The Twenty-Seven Club, SHAG the Band, and House Arrest. The panel of judges included the Honourable Lynn Smith, the Honourable Jon Sigurdson, Paul Seale, Jonathan Meadows and Michael Bain, K.C., who each used entirely different criteria for ranking the bands in order. After some complex arithmetic involving the addition of single digit numbers (it was a long night, and Sigurdson had downed at least three Diet Cokes … with lemon!), third place was awarded to SHAG the Band (Gillian McLennan, vocals; David Joyce, vocals and guitar; Kurt Mang, lead guitar and backing vocals; Jonathan Wai, guitar; Georgialee Lang , backing vocals; Mike Meitner, bass guitar; Paul LeBlanc , keyboards; Casey Carmody, drums). Second place went to long-time stalwarts, House Arrest (David Hay, K.C., vocals; Dan Burnett, saxophone; Shabaz Khan, bass guitar; Chiko Misomali, drums; Jonathan Monk, guitar; David St. Pierre, guitar and vocals; Tilden Webb, keyboards).

First place once again went to the first-ever winners of the battle back in 2002 (and a winner many times since then), Still Living at Home (Howard Mickelson, K.C. , vocals, keyboards; Chris Ainscough, bass guitar and vocals; Les Toth, guitar; Mark Slay, drums, shaker and mark tree; John Logan, K.C., drums, vocals and congas). Mickelson (once described as “the Max Verstappen of showbiz”) commented that he is “getting too old for this shit” but by that time of the evening, few were left to hear his grumbling and those who were there do not remember the witticism.

Other key sponsors of the event were North Shore Law, JML, Koffman Kalef LLP, McCarthy Tétrault, Synergy Business Lawyers, Singleton Reynolds, ALF, Thorsteinssons LLP, Madaisky Pollock, Lawson Lundell LLP, Veritext, 123Dentist, Harbourside Oral & Facial Surgical Centre and Clark Woods LLP. The volunteer band members and event organizers, including the incredible Alex Fane (of the group Standard of Hair), did a tremendous job of creating the sold-out event and supporting a very worthy cause! Huge thanks to everyone involved.

The scenario in Hricko v. State of Maryland, No. 255 September Term, 1999 (2000) resembled, the Court of Special Appeals of Maryland noted, “[a]s with ‘The Murder of Gonzago’ in Hamlet or ‘Pyramis and Thisbe’ in A Midsummer Night’s Dream, … a play within a play”. In the case of Hricko, it was one where the husband was allegedly “lured to the scene of his fatal poisoning by the reconciliatory promise of a romantic St. Valentine’s weekend at the Harbourtowne Resort in St. Michael’s. A highlight of the getaway weekend was a dinner-theater murder mystery which the dinner guests were invited to solve. That play within a play was called ‘The Bride Who Cried.’ Our real-life drama may well be called ‘The Widow Who Lied.’”

The B.C. Supreme Court welcomed the appointment of Justice Bradford F. Smith, K.C., of Kamloops. Justice Smith replaces Justice S. Dev Dley, who elected supernumerary status on November 1, 2021.

The “play within a play” from Act V, Scene I, Pyramus and Thisbe, was performed by The Beatles on April 28, 1964 at Wembley Park Studios. The performance, before a live audience, was part of a television special titled Around The Beatles and the Shakespeare performance was included to recognize Shakespeare’s 400th birthday. Paul McCartney appeared as Pyramus. John Lennon played his love interest, Thisbe. George Harrison portrayed Moonshine (somewhat irritably as he was heckled) and Ringo Starr made a convincingly dangerous Lion.

Karen R. A. Ameyaw, Yasin S. Amlani, Christine H. Arnold, Janice L. Thomas and Robert V. Wickett, K.C., were all appointed as members of the Property Assessment Appeal Board for three-year terms.

In Commonwealth v. Deberry, 57 Mass. App. Ct. 93 (2003), a case where the defendant had punched a hole in a wall, the principal issue on appeal involved valuing the damaged property. If it was worth more than $250, a conviction could be obtained for the felony offence of malicious destruction of property. In analyzing this issue, the court concluded that, given the indivisible nature of the wall vis-à-vis the whole structure, the value of the structure as a whole should be considered. The court commented: The formulaic analysis in this case has, of necessity, focused on the characteristics of, and the valuation of, a wall within a legal framework in order to resolve a controlling issue of whether the criminal conduct at issue (the malicious destruction of a wall as the predicate property) crossed the felony threshold. We do not leave the topic of “wall,” however, without noting, in passing, that, in a wholly different genre, a more abstract analysis—marked by much less serious import—has been undertaken in consideration of the characteristics of “wall.” In the latter genre, a wall—even if staged as an important thing, essential to the unfolding drama—is not, it would seem, easily replicated in any freestanding, foundational manner—a consideration that reflects (for stage production, at least) the inherent impracticality of trying to value wall qua wall.

SNOUT: “You can never bring in a wall. What say you, Bottom?”

BOTTOM: “Some man or other must present Wall; and let him have some plaster, or some loam, or some rough-cast about him, to signify wall; or let him hold his fingers thus, and through that cranny shall Pyramus and Thisby whisper.”

Shakespeare, A Midsummer Night’s Dream, Act 3, Scene 1.

In conjunction with the three levels of court in British Columbia, the Justice Education Society over the last year has redeveloped and relaunched its self-help online resources for each court (<courtofappealbc.ca>; <supremecourtbc.ca>; <smallclaimsbc.ca>; <courtsofbc.ca>). JES’s efforts were acknowledged by Chief Justice Bauman in the 2022 Annual Report of the Court of Appeal for British Columbia.

Peeter Wesik was reappointed to the board of directors of the Royal British Columbia Museum for a term ending July 31, 2024.

The Fairy Creek watershed on Vancouver Island has been the focus of various protest and enforcement activities that have in turn been the subject of many court hearings.

There are three lakes named Fairy Lake in British Columbia.

“Chandler wobble” is not a descriptive for one of the characters on the show Friends , nor does it refer to one of the principals at Chandler Fogden Lyman. It is, rather, the name given to a small, irregular movement of Earth’s geographical poles across the surface of the globe. The normal amplitude of the Chandler wobble is about three to four metres at Earth’s surface; however, from 2017 to 2020 it disappeared altogether. Since 2020, however, the wobble has reappeared, and as a result Earth has started to rotate more quickly. On June 29, 2022 the shortest day ever recorded (since the invention of the atomic clock in the 1960s) occurred: 1.59 milliseconds less than 24 hours. In general, Earth’s rotation is slowing down at a rate of a couple of milliseconds per century, but thanks to the Chandler wobble, it speeds up every now and then.

Felix Mendelssohn’s often-played “Wedding March” is from his suite of incidental music to A Midsummer Night’s Dream. He died at age 38, in 1847, five years after this piece was written. He died within months of his older sister Fanny, also a composer.

George Balanchine’s two-act A Midsummer Night’s Dream ballet, set to Felix Mendelssohn’s music, was first performed in 1962.

Man Lin Chang and Dawn A. Wattie were reappointed to the Employment and Assistance Appeal Tribunal for a four-year term ending April 30, 2027.

Asked the Court of Appeals for the State of New Mexico, “So what happens if—sometimes by a plaintiff’s own doing, as happened here—the invocation of federal jurisdiction is successfully withdrawn, the case ends up solely in state district court, and the defendants raise a statute of limitations argument? Which claims are timely, and against whom? To paraphrase the Bard, the course of litigation in such cases ‘never [does] run smooth[.]’ William Shakespeare, A Midsummer Night’s Dream, act 1, sc. 11 1. 12 {14}”: Williams v. Mann (No. 34,1805) (2016).

Barbara Carmichael, K.C., Peter Juk, K.C., Colleen Spier, K.C., and Taryn

A. Walsh were all appointed as members of the Justice and Public Safety Council. Barbara Carmichael was also designated as chair of that council.

If you are a car buff, rejoice because July 2023 has been proclaimed Automotive Heritage Month. After all, there are many among us who hope to see automotive heritage as only a risky historical anomaly.

Maureen E. Baird, K.C., was appointed as acting chair of the Safety Standards Appeal Board for a term ending November 26, 2023.

In West v. Bell Helicopter Textron, Inc. (No. 14-2168) (2015), a case that fits the Bench and Bar theme for the second issue in a row, the U.S. Court of Appeals for the First Circuit included among the poets who have remarked on the “beauty of flight” William Shakespeare, referring to his words “My soul is in the sky” from A Midsummer Night’s Dream act 5, sc. 1. The court also quoted Igor Sikorsky: “The helicopter approaches closer than any other (vehicle) to fulfillment of mankind’s ancient dream of the flying horse and the magic carpet.’ ”

After something of a delay, in early May 2023 the Attorney General of British Columbia announced the first new King’s Counsel list in British Columbia in 73 years. The worthy recipients are William McLachlan, Simon Buck, Cameron Belsher, Shafik Bhalloo, Rosanne Kyle, Brendan McCabe, Michael Libby, Joseph McArthur, Mark Underhill, Amy Mortimore, Stacey Ederza Fox, John Gareth Morley, Mark Gervin, Marko Vesely, Li-Jeen Broshko, Cristen Gleeson, Peter Lawless, Sarah Westwood, Louise Jane Kenworthy, Karen Snowshoe, Brent Olthuis, Katrina Harry, Grace Pastine, Micah Rankin, Elin Sigurdson, Zara Suleman, Clare Jennings, Colleen Spier and Peter Senkpiel

The cast of the 1968 film version of A Midsummer Night’s Dream included Ian Holm as Puck, Diana Rigg as Helena, Helen Mirren as Hermia, Ian Richardson as Oberon and Judi Dench as Titania.

Merle Oberon was the stage name of Estelle O’Brien Merle Thompson, a glamorous actress of partly South Asian descent.

Amanda R. Baron was appointed to the board of directors of the Vancouver Foundation for a three-year term ending April 3, 2026.

Oluwatobi Olaoluwa Abisoye was appointed as a lay councillor to the council of the Applied Science Technologists and Technicians of British Columbia for a term ending May 17, 2024.

“[E]quity does not light up as a neon tooth fairy to blind the law to the valid exercise of creditor’s rights”: 59459 Manitoba Ltd. v. Keller , 1993 CanLII 15004 (MBQB).

In The Juryman’s Tale (Bloomsbury, 2000), journalist Trevor Grove wrote of his experience on a jury after a months-long kidnapping related trial: For week after week we had been guided and misguided through a forest of bizarre criminal intrigue. … Our credulity was alternatively appealed to and abused. Then, after four months of this, we had been abruptly abandoned and ordered to resolve our confusions as best we could on our own. We were like the befuddled lovers in A Midsummer Night’s Dream, after Puck had scrambled their wits and left them sleeping on the forest floor. The judge’s summing up was supposed to provide signposts towards the truth, which it did; but those that might have been of most use were subtly camouflaged in the legal undergrowth … Yet somehow we had found a road through the woods.

Wayne N. Plenert was reappointed as a director of the board of the Northern Development Initiative Trust for a term ending May 1, 2026.

After being unceremoniously turfed from its historical place of trade in the Vancouver Law Courts, the Law Courts Inn has arisen to live again. Debuting its new space at Charest Reporting (600-885 West Georgia St.), the Inn held its (nearly) annual trivia night on April 27, 2023. Taking home top prize among the 24 teams competing was “You’re on Your Own Kids”, the team from Roper Greyell captained by Jaime H. Hoopes, with a score of 49/50. Sharing second place were “Bro, do you even Triv?” (Webster Hudson & Coombe) and the “Ruthless Bader Ginsbergs” (Kornfeld LLP). The Inn is the “home for the bench and bar” with a purpose to provide a space for fostering and promoting understanding and the exchange of ideas among members of the legal profession.

U.S. District Judge Bumb, of the District Court for the District of New Jersey, Camden Vicinage, opened a decision regarding a suit under the Copyright Act regarding the printing and distribution of sheet music with the words: “I never heard so musical a discord”, quoting from A Midsummer Night’s Dream act 4, sc. 1: Music Sales Limited v. Charles DuMont & Son, Inc., 800 F.Supp. 2d 653 (2009).

“The Bank after they acquired the freehold may have been, as they claimed in evidence, indifferent as to who the persons were to whom they looked for payment of the rent. They may have been content with an airy nothing, so long as it was given a local habitation and a name”: Eng Chuan & Company v. Four Seasons Communications Bank Limited (1982) (UKPC), per Lord Diplock, citing Midsummer Night’s Dream Act V, sc. 1.

Brenda L. Edwards was reappointed as a member, and appointed chairperson, of the British Columbia Review Board for a term of three years.

Denese C. Espeut-Post Post, Glen J. Johnson and Manpreet K. Mand were all appointed as members of the Mental Health Review Board, each for a term ending June 21, 2026.

The opera A Midsummer Night’s Dream, with music by Benjamin Britten, was first performed in 1960.

Puck—as noted above, a mischievous fairy in A Midsummer Night’s Dream is also known as Robin Goodfellow.

In a case about a tragic accident during the hoisting of cargo onto a ship, the Supreme Court of Pennsylvania noted the ship’s “poetical and melodious name”, “Robin Goodfellow”: Dunn v. Atlantic Refining Company, 391 Pa. 65 (1958).

Thought du mois:

The eye of man hath not heard, the ear of man hath not seen, man’s hand is not able to taste, his tongue to conceive, nor his heart to report, what my dream was.

(Bottom, Act 4, Scene 1)

William Shakespeare, playwright (1564–1616)

CONTRIBUTORS

Aleem Bharmal, K.C., is the current president of the CBABC. He was the Advocate’s cover subject for the November 2022 issue and is a keen advocate for social justice initiatives.

Daxton Boeré is a newly called associate at Farris LLP. Daxton has also appeared on a cover of the Advocate even before Mr. Bharmal (see the September 2021 issue). Hopefully this was not part of a career peaking too soon!

Catherine Crockett retired from the Provincial Court (to which she was appointed in May 2016) on June 30, 2022. She is the winner of the 2022 Advocate Short Story competition and currently writes under a pseudonym easily distinguishable from the Honourable Catherine Crockett.

Rod Germaine is a retired member of the B.C. bar. In 2011, Rod bicycled from his home in Vancouver to his 40-year law school reunion in Halifax, Nova Scotia. His efforts were, in part, to raise funds for Just Aid, and also presumably to save on gas and airfare. Rod will not be happy when King Charles congratulates him on his 100th birthday.

Kate Gower is a litigator based in Vancouver and a tireless advocate for increased efficiency and reduced waste in Canada’s courtrooms. Her online resource “Gower Modern Law” is a tribute to the Modern Law Review of which her grandfather, Jim Gower, was a founding member in 1937.

Joel Nitikman, K.C., is a frequent contributor to the Advocate and a partner in the tax group at Dentons. He is a founding member of the “Irritants Committee”, a joint CRA/CBA Committee in the Pacific Region that attempts to resolve ongoing structural issues in dealing with the CRA.

Tina Parbhakar is the strategic coordinator for Access to Justice BC. She is a strong advocate for children and youth, having co-founded the Children’s Law Section within the CBABC.

Mary Salaysay is a senior trial lawyer at the Vancouver Crown Office. Having started as a Crown for a circuit court in rural Alberta, Mary joined the BC Prosecution Service in 2002. Mary’s main focus is on Provincial Court trial work with forays into major organized crime files in Supreme Court.