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OFFICERS AND EXECUTIVES

CANADIAN BAR ASSOCIATION

LAW SOCIETY OF BRITISH COLUMBIA

BRITISH COLUMBIA BRANCH

Jeevyn Dhaliwal, K.C. President

BOARD OF DIRECTORS

Brook Greenberg, K.C. First Vice President

Scott Morishita President

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

Lee Nevens First Vice President

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

Mylene de Guzman Second Vice President

BENCHERS APPOINTED BENCHERS Simran Bains Paul A.H. Barnett Sasha Hobbs

Dr. Jan Lindsay Michèle Ross Natasha Tony

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

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

Judith Janzen Finance & Audit Committee Chair

Benjamin Levine Jaspreet Singh Malik Jay Michi Georges Rivard Gurminder Sandhu, K.C. Thomas L. Spraggs Barbara Stanley, K.C. James Struthers Michael F. Welsh, K.C. Kevin B. Westell Jonathan Yuen Gaynor C. Yeung

BRITISH COLUMBIA BAR ASSOCIATIONS

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

ELECTED MEMBERS OF CBABC PROVINCIAL COUNCIL

ABBOTSFORD & DISTRICT

PORT ALBERNI

CARIBOO

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Nathan Bauder Jon Duncan Nicholas Maviglia

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QUESNEL

Michael McCubbin Shannon Aldinger

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NEW WESTMINSTER Mylene de Guzman, President

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PENTICTON Ryu Okayama, President

SALMON ARM SOUTH CARIBOO COUNTY Angela Amman, President

SURREY Peter Buxton, K.C., President

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KOOTENAY Jamie Lalonde Christopher Trudeau

NANAIMO Johanna Berry Patricia Blair Ben Kingstone

PRINCE RUPERT Emily Beggs

Graham Hardy Lisa Jean Helps Bruce McIvor Heather McMahon Heather Mathison

VICTORIA J. Berry Hykin Cherolyn Knapp Kimberley Nusbaum

WESTMINSTER Manpreet K. Mand Daniel Moseley Matthew Somers Sarah Weber

VANCOUVER

YALE

Joseph Cuenca Bahareh Danael Nicole Garton Diane Gradley

Mark Brade Laurel Hogg Aachal Soll

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

VERNON Chelsea Kidd, President

VICTORIA Sofia Bakken, President

CANADIAN ASSOCIATION OF BLACK LAWYERS (B.C.) Cecilia Barnes, President FEDERATION OF ASIAN CANADIAN LAWYERS (B.C.) Fiona Wong, President INDIGENOUS BAR ASSOCIATION (B.C.) Michael McDonald, President SOUTH ASIAN BAR ASSOCIATION OF BRITISH COLUMBIA Hardeep S. Gill, President ASSOCIATION DES JURISTES D’EXPRESSION FRANÇAISE DE LA COLOMBIE-BRITANNIQUE (AJEFCB) Sandra Mandanici, President

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On the Front Cover: The Honourable Chief Justice Christopher Hinkson

By Giuseppe Battista, K.C. . . . . . . . . . . . . . . . . . . . . . . . .

Disputing Jurisdiction: A Review of Recent Case Law on Territorial Competence

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Whither Judicial Review?

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The Honourable Chief Justice Christopher Hinkson is retiring. Read about his fascinating career starting on page 177.

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WESTERN ARBITRAT TION C CHAMBERS Our Members

Jack Marshall, K.C.

Dan McDon nald, K.C., FCIArb.

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The Hon. Russell Brown

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ENTRE NOUS

N

egative comments from those holding or seeking elected office about participants in the judicial system are certainly not new.

Recent examples include expressions of outrage by provincial elected officials about conduct in, or the outcome of, certain criminal cases (or, as the commentator qualified in one instance, perhaps about wider societal issues to which a particular court decision pointed) to which neither they nor their government were parties.1 In its own league are the vulgar and violent comments of the former U.S. president criticizing prosecutors, court staff, plaintiffs and judges in cases brought against him and his businesses. The fact these examples are being discussed together is not intended to overlook fundamental differences between them.

Various examples of this phenomenon cause us unease. Of course, in matters related to the former U.S. president, it is difficult to disentangle our negative reaction to his criticism of the judicial system from the negative reaction we might have to almost anything he says. In this Entre Nous we step back from the particulars to a more general consideration of whether or when public criticism by those occupying or aspiring to elected office might be appropriate.

Setting aside for the moment who initiates or participates in the discussion, it is important to acknowledge that, in general, there is supposed to be public discussion of the judicial system and how it operates—that is a good thing.

Court proceedings themselves are presumptively open in part because having citizens observe and comment on what unfolds there is integral to a democratic society. As noted in Edmonton Journal v. Alberta (Attorney General),2 “a democracy cannot exist without … freedom to express new ideas and to put forward opinions about the functioning of public institutions.

The concept of free and uninhibited speech permeates all truly democratic societies and institutions”. With respect specifically to the courts:

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There can be no doubt that the courts play an important role in any democratic society. They are the forum not only for the resolution of disputes between citizens, but for the resolution of disputes between the citizens and the state in all its manifestations. The more complex society becomes, the more important becomes the function of the courts. As a result of their significance, the courts must be open to public scrutiny and to public criticism of their operation by the public.

Logistically and strategically, it is also unsurprising that individuals who have formed views on what unfolds in the judicial system might choose to express those views directly to members of the public rather than (or at least alongside) expressing those views to appellate courts and complaint bodies. It is relatively easy today for many individuals to disseminate their messages widely and without needing to rely on intermediaries—at least this is so for individuals who have access to and facility with the internet (to type an X or Truth Social message, or post a video), and who have confidence in their ability to communicate and be persuasive.

In taking control of this message and disseminating it immediately, they also need not wait for a third party to adjudicate on their concern and make public their adjudicative findings, which might not necessarily be aligned with the commentator’s own views. Further, they can choose the audience to whom they direct the message, maximizing the opportunity for positive feedback. By going public more generally, they can also attempt to rally support among potential new allies, or find other individuals who might have been affected by a problem and be inspired to come forward. Proceeding in quieter ways, for example by filing a complaint only, might cause these opportunities to be missed or at least deferred. This might, in turn, reduce the chances of achieving solutions most likely to be propelled by public outcry, such as the legislative change or institutional restructuring that neither an appellate court nor a complaint body can effect.

Turning to an appellate court or a complaint body can be as or more daunting than going public. It can take time, patience, sometimes considerable resources, a degree of trust (that the recipient will take the concern seriously and address it conscientiously and in good faith), confidence that there is a chance it will be resolved in one’s favour, and tolerance for the possibility that it will not. Members of groups for whom the justice system has historically not been just may, legitimately, not have the confidence required to work within the system that has previously let them down.

Even if they might otherwise have been attractive, sometimes paths alternative to public comment may also simply not be available. For example, a non-party to litigation may have no feasible mechanism for challenging a judicial decision through the courts. Or, perhaps, the decision with which the

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person is dissatisfied is that of the final appellate tribunal. So certainly there is much to be said in favour of public commentary in some contexts.

This said, sometimes public criticism of the judicial system is not lawful.

Speech may be unlawful because it crosses into inciting violence. Outside the confines of a court, tribunal or complaint body, speech may be defamatory in a circumstance not shielded by a defence such as absolute or qualified privilege. On some occasions where it would interfere with the administration of justice, it may constitute a contempt of court. It may also in some cases violate a specific statutory or common law publication ban in relation to specific matters that occurred in court. Further, even in instances where public comment is not downright impermissible, and where it might have some benefits, there remains a tension in deciding whether or not to embark on it.

From a self-interested perspective, those airing grievances publicly should be aware that if they do so instead of pursuing other potential remedies (such as an appeal or formal complaint), some of their audience might conclude this choice reflects lack of confidence in their position, as they are not willing to have its merits tested by an impartial third-party adjudicator.

This is so particularly for commentators who were, or could have chosen to be, participants in the process they are criticizing, and as such might have had some standing to challenge the outcome through the courts or other appellate tribunal. It is possible as well that a court or complaint body getting wind of the parallel public airing of the issues will not be impressed, and perhaps at least subconsciously be less inclined to help.

From an institutional perspective (which should be of some concern to all but the true anarchists among us), there is also an important tension of which to be mindful. Public criticism of the judicial system and those who work within it may sometimes be needed to identify problems and prompt positive changes. However, particularly if the message is of complete disdain for an institution, rather than about its possible improvement and redemption, public criticism may undermine the audience’s confidence in the institution, lead its processes and orders to be less readily followed, in face of waning efficacy give rise to a new round of criticism, and ultimately cause individuals to resort to self-help in resolving issues rather than working through an organized and fair institutional process.

For lawyers, the Code of Professional Conduct for British Columbia sets out particular baseline considerations in identifying and addressing these tensions. As the code reflects, a lawyer is—among other things—an officer of the courts and has a duty to promote the interests of the state and maintain the authority and dignity of the courts. Sensibly, if public comments—

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which might, given lawyers’ knowledge and status, be given particular weight—are made by a lawyer, the allegations: •

should not be irresponsible (a lawyer “should take care not to weaken or destroy public confidence in legal institutions or authorities by irresponsible allegations”);

•

should be sincere (“a lawyer should avoid criticism that is … unsupported by a bona fide belief in its real merit”, and while a lawyer should “lead in seeking improvements in the legal system, … any criticisms and proposals should be bona fide …”);

•

should be reasoned (a lawyer should “lead in seeking improvements in the legal system, but any criticisms and proposals should be … reasoned”);

•

should not be “petty” (“a lawyer should avoid criticism that is petty”);

•

should not be “intemperate” (“a lawyer should avoid criticism that is … intemperate”).

In relation to those in or seeking public office, if they are lawyers or occupy institutional roles related to the administration of justice, the application of these principles should be relatively straightforward. On November 27, 2023 the Law Society of British Columbia noted, with respect to a particular set of comments that it viewed at least as implied criticism by the B.C. Attorney General of a judge’s decision (although whether the comments were intended to be specific to the decision has been the subject of some debate), the following: ….“We recognize there will be different views on whether the sentence passed was appropriate,” says Christopher McPherson, KC, President of the Law Society. “However, it is our opinion that judges can expect the Attorney General to defend the role of the justice system rather than imply that judges are not sufficiently trained and have thereby imposed an inappropriate sentence.”

The Code of Professional Conduct for British Columbia provides that judges are entitled to receive the support of the legal profession against unjust criticism and complaint. Trust in the process of the courts requires the confidence that judges can resolve disputes fairly and impartially.

Governments and their officials have a crucial part to play in maintaining this confidence, which is fundamental to a democratic and well-functioning society.

We have noticed in recent months that government officials, including Premier David Eby, KC, have made comments on justice system matters that tread on interference with the administration of justice by politicizing justice issues. Examples include comments on bail reform and an announced review following a stabbing in Chinatown.

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The government has an important obligation to ensure public safety and we agree that critiques and reviews are key to make improvements. However, criticism by government officials about individual cases, or critiques about judicial decisions without reference to the systemic and legal constraints placed on decision makers, undermines the public’s confidence in the administration of justice. The government must be mindful of this when providing comments on justice-related matters.3

The B.C. Branch of the Canadian Bar Association wrote to the Attorney General in the same regard,4 noting that the reported comments, “made with the weight of your office, risk undermining the public’s confidence in the criminal justice system”. The letter raised further specific matters such as the Attorney General’s “opportunity to educate the public about the process for criminal matters” if making a statement.

The discussion above centred on criticism of judges, but in recent weeks we have seen the premier taking public issue as well with the approach of a particular defence lawyer (whose team has also reportedly faced physical threats) in a high-profile criminal case.5 Feelings about this case run strong, of course, and we do not have sufficient information to reach any conclusions about any given defence strategy (nor, we would surmise, do most commentators). What is clear, however, is that the subject matter of concern played out in a trial setting where the Crown and judge could intercede (including by objecting and ruling on objections, respectively), the case is proceeding to appeal (of the conviction) and family members of the victim have indicated they are considering, as is their right, a complaint to the Law Society. In short, there are other means of addressing a perceived issue in the specific case, even apart from broader discussion of legislative or institutional reform which events in that case may inspire. Like judges, prosecutors, witnesses and court staff, defence lawyers are central players in the judicial system and at the very least, in any public comments by elected officials, this fundamental message must not be lost. The fact defence counsel are active participants not constrained by the state should be a point that improves public confidence in the judicial system, and not be a point undercutting it.

Although non-lawyers are obviously not governed by the Code of Professional Conduct, the principles the code sets out in relation to public commentary provide reasonable guidance even for non-lawyers who are in, or seek to attain, elected office. In order to be fit for the roles they inhabit or seek, they too should take responsibility for promoting the interests of the state and maintaining the authority and dignity of the courts. Those institutions are part of the institutional structure they sought to belong to and that supplies them with their platform; it deserves their loyalty even alongside any efforts they may see fit to make to improve it. Although we acknowl-

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edge his “base” may not agree, today’s starkest illustration of what not to do is provided by the former U.S. president, who obtained power and additional fame from a position in an institutional structure he would willingly dismantle in his own interests.

Unguarded public criticism by those in elected office can not only undermine the judicial system broadly, by calling it into question, but ultimately can also make outcomes emanating from it less fair. No matter the degree of independence a judge, for example, may have via security of tenure, surely it starts to become easier not to rule in ways that attract public criticism, that may reduce chances of advancement controlled by a provincial or federal government, or that may create physical dangers (if an audience member feels that criticism by a prominent public figure should be acted on in some way targeting the judge’s person, home or family).6 Further, while great efforts are being made to encourage members of the bar to apply to the bench, it is scarcely a selling point to potential applicants that once appointed they might face scathing criticism or be treated not as the final word on a subject, but simply as presiding over a proceeding that runs in parallel to a public debate about the same facts. While public criticism is something that judges must accept as part of a democratic society, it is something that at least those in positions of authority should carefully consider before engaging in.

ENDNOTES 1. See e.g. Lisa Steacy, “BC Attorney General, Premier Under Fire for Comments on Justice System”, CTV News Vancouver (29 November 2023, updated 30 November 2023), online: <bc.ctvnews.ca/b-cattorney-general-premier-under-fire-for-commentson-justice-system-1.6666421>; Simon Little, “AG Defends Comments on Judge Training After BC Voyeur Escapes Jail Time”, Global News (30 November 2023), online: <globalnews.ca/news/10 139251/judge-training-voyeur-criticism/>; Vaughn Palmer, “David Eby’s Journey from Activist to BC Premier”, Vancouver Sun (22 January 2024), online: <vancouversun.com/opinion/columnists/vaughnpalmer-bc-premiers-journey-from-legal-activist-topremier>.

2. [1989] 2 SCR 1326.

3. Online: <www.lawsociety.bc.ca/about-us/news-and -publications/news/2023/government-commentson-judicial-matters-may-underm/>.

4. Scott Morishita, “Letter to Attorney General After Remarks on Judges” (28 November 2023), online: <https://www.cbabc.org/Our-Work/Submissions /2023/Letter-to-Attorney-General-after-remarkson-judges>.

5. Justine Hunter, “B.C. Premier Pledges Reform After ‘Profoundly Offensive’ Remarks in Trial”, Globe and Mail (22 December 2023, updated 24 December

2023), online: <www.theglobeandmail.com/canada /article-bc-premier-pledges-reform-after-profoundly -offensive-remarks-in-trial/>.

6. Worth comment in its own right is the fact that some in the United States appear to be acting on such criticisms by engaging in “swatting”, where they not only choose to bypass institutional mechanisms for seeking results in a given case, but also weaponize institutions against their foes. In instances of “swatting”, someone pretends an incident requiring police response is unfolding at the home of a lawyer (e.g., prosecutor Jack Smith), judge (e.g., U.S. District Judge Tanya Chutkan) or other public official, and causes first responders to descend on that residence, where a potentially fatal confrontation could ensue.

See Jeff Amy & Lindsay Whitehurst, “Judges Overseeing Trump Cases in New York and DC Are Latest Targets as Bogus ‘Swatting’ Calls Surge”, CTV News (11 January 2024), online: <www.ctvnews.ca/world /judges-overseeing-trump-cases-in-new-york-anddc-are-latest-targets-as-bogus-swatting-calls-surge1.6722298>; Josh Campbell & Kat Jaeger, “High-Profile Political Figures Are the Targets in the Latest Wave of ‘Swatting’ Incidents. Why the Trend Is So Alarming”, CNN (14 January 2024), online: <www. cnn.com/2024/01/14/us/swatting-incidents-trendexplained/index.html>.

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ON THE FRONT COVER THE HONOURABLE CHIEF JUSTICE CHRISTOPHER HINKSON

By Giuseppe Battista, K.C.

T

he distinguished career of the Honourable Chief Justice Christopher Hinkson as a barrister, justice of the Supreme Court of British Columbia, justice of the Court of Appeal for British Columbia, deputy justice of the Supreme Court of Yukon, justice of the Court of Appeal of Yukon and the 16th chief justice of the Supreme Court of British Columbia will come to an end on May 7, 2024, on his retirement. His stellar career has been chronicled numerous times in this publication1 and others and may be well known to many of you, but the highlights bear repeating.

Chief Justice Hinkson obtained his LL.B. from UBC in 1975. He articled at Guild Yule before practising as a civil litigator for 31 years at Harper Grey. In 1990, he was appointed Queen’s Counsel, and in 1997 he became a fellow of the American College of Trial Lawyers. He appeared in almost 200 trials and 100 appeals in British Columbia and 14 appeals in Ottawa and also conducted many jury trials. He was perhaps best known as counsel for defending physicians in medical negligence claims, but he tried a broad range of cases.

When he was a practising barrister, he devoted a truly remarkable number of hours to pro bono files, including his tireless commitment to securing appropriate health care and education for children with autism and autism spectrum disorder as well as countless hours representing more than 100 lawyers before the Law Society of British Columbia.

In March 2007, he was appointed to the Supreme Court of British Columbia, and in March 2010 he was appointed to the Court of Appeal for British Columbia. He served as a justice of the Court of Appeal until returning to

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the Supreme Court as chief justice in November 2013. He also served as deputy justice of the Supreme Court of Yukon and justice of the Court of Appeal of Yukon prior to being appointed chief justice.

The position of chief justice is an onerous one. The memorandum of understanding signed by the Minister of Justice and Attorney General, the Chief Justice of British Columbia, the Chief Justice of the Supreme Court and the Chief Judge of the Provincial Court states among other things that the role of the chief justices is to manage the judicial administration in their respective courts. The list of responsibilities is daunting, to say the least.

Suffice it to say, as Chief Justice of the Supreme Court he was kept very busy with these administrative responsibilities alone.

Chief Justice Hinkson took on his appointment as chief justice with determination and enthusiasm. He believed that his role was to manage the institution he had inherited and that those who were its stewards must protect it. The chief justice must also be willing to stand up to government, judges and public criticism.

From his many years of experience as both a lawyer and a judge, Chief Justice Hinkson was familiar with the professional and personal challenges faced by lawyers, judges, law students and the public at large when interacting with the judicial system, but he felt that it was very important to hear firsthand from people to better understand how the Office of Chief Justice may be able to better serve them.

Moreover, recognizing the important role that members of the media play in informing the public about the justice system, in 2015 Chief Justice Hinkson in collaboration with Chief Justice Bauman reinstated the position of a superior courts communications officer to act as a spokesperson for the superior courts and to act as a liaison between the superior courts judiciary and the media respecting decisions of the courts as well as any initiatives undertaken by the courts to improve access to justice or to make the courts’ processes more efficient and affordable.

He met with and made himself accessible to almost anyone who asked him and would not turn down a request if he was able to accommodate it.

He was extremely generous with his time, which he shared in many ways.

Shortly after his appointment, Chief Justice Hinkson travelled all over the province to speak with local bar associations to hear their concerns regarding the courts and the delivery of justice. He did so knowing that he could not solve all the problems, but that it was important that he be aware of people’s concerns and do what he could to address them.

He also made a point of meeting with each member of his court to hear any concerns or suggestions they may have that would help him better understand what he could do as chief justice.

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He lectured at all three B.C. law schools on the topic of ethics, and he was a frequent presenter at professional development conferences. Not only did he feel that this was important from the point of view of imparting his knowledge and experience on his audience, but he also saw it as an opportunity to meet law students and lawyers of varying degrees of experience to hear about the challenges they see in the profession.

He judged moots and presided over lawyers’ call ceremonies and welcoming ceremonies for new judges. He also consulted with the Lawyers Assistance Program.

He attended countless bar functions and other professional activities. He was especially proud of the Inns of Court Program that he first became involved with in 1986 and took over upon his appointment as chief justice in 2013.

He met with court staff to hear their concerns because he felt they were an important component of the judicial system and the efficient delivery of justice.

Many people have noticed and commented on how much Chief Justice Hinkson continued to sit as a judge after his appointment as chief justice.

When he was appointed, it was suggested that an appropriate division of time between sitting as a judge and carrying out the administrative demands of the position would be to sit one-third of the time and devote the remaining two-thirds of the time to administrative duties. Notwithstanding his duties as chief justice, he continued to sit as judge in a significantly greater proportion than had been suggested to him and still carried out all the administrative functions of the office.

During his tenure as chief justice, some social issues such as addiction, issues involving unhoused persons, legalization and decriminalization of drugs, and Charter issues arising out of COVID-19 pandemic orders came before the courts. In some cases those matters were complex and posed novel legal issues. Chief Justice Hinkson presided over a number of these cases. They included cases that had implications for some of the more vulnerable members of our society. Chief Justice Hinkson’s judicial acumen together with his common sense and patience served him particularly well when hearing them.

As Chief Justice of the Supreme Court of British Columbia, he was a member of the Judicial Council and for several years up to the time of his retirement was chairperson of the Judicial Conduct Committee. His membership in the Canadian Judicial Council required him to make frequent trips to Ottawa for meetings.

What seemed to be a never-ending battle for the chief justice was pressing the federal Minister of Justice in Ottawa to fill judicial vacancies on his

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court. Chief Justice Hinkson laments the fact that he never had a full court during his time as chief justice.

Most of the challenges of the position of chief justice were expected and anticipated, but the COVID-19 pandemic was unprecedented and required creative solutions to keep the courts operating within the strict health care measures ordered by the provincial government.

Chief Justice Hinkson knew that they needed to do everything that was necessary to keep the courts open, but no one had all the answers as to what it was that needed to be done. He gives credit to the judiciary and the court staff who were able to keep the courts open in the face of the significant obstacles created by the pandemic.

One important measure was to conduct all or portions of trials, hearings and examinations for discovery virtually. When the courts reopened to normal operation, some of the virtual hearing measures continued making it an easier, more efficient and cost-effective way of conducting trials.

Another role that Chief Justice Hinkson has fulfilled for the last eight years, which is not within his job description, is that of playing Santa Claus at the Vancouver bar Christmas brunch for children. One year, his own grandchildren attended and were “none the wiser” that the jolly man in the red suit was in fact “Gramps”.

It would be hard to imagine anyone working as hard as Chief Justice Hinkson has done throughout his career without the support of a loving, patient and very understanding family, and he considers himself very fortunate to have this in his wife, Maureen; his children Tim, Stacey and Chelsea; Maureen’s children Claire, Curtis, Christopher and Chloe; his six grandchildren; and Maureen’s two grandchildren. Family has always been very important to Chief Justice Hinkson, but he acknowledges that the demands of his job sometimes impacted on his ability to do more of the things he would have liked to have done with them. Chief Justice Hinkson will be able to repay all the support he has received from his family over the years when he retires and has the freedom to spend unlimited quality and leisurely time with them.

When asked to reflect on his long legal career, Chief Justice Hinkson’s simple response was “I did the best I could”. The best he could turned out to be far more than anyone could have imagined or expected of him.

Lay litigants who appeared before him appreciated his patience and his efforts to help them understand the legal process and put them at ease while still ensuring the efficiency of the court process.

Articled students and less experienced lawyers who are early in their careers and may find appearing in court itself intimidating, much less

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appearing before the chief justice, also appreciated his patience and helpful suggestions.

Experienced counsel appreciated the efficient way he conducted matters in his courtroom, his commonsense approach to a case and his willingness to inject a bit of humour when appropriate.

There are others who may never have had direct contact with him, but unbeknownst to them, benefitted from his leadership as chief justice.

The people of British Columbia have been very well served by Chief Justice Hinkson. He will be missed by many as he starts his well-deserved retirement, and we wish him well.

ENDNOTE 1. Bernie Buettner & Joe Battista, “On the Front Cover – The Honourable Chief Justice Christopher Hinkson” (2014) 72 Advocate 339; “New Judges – The Honourable Mr. Justice Christopher E Hinkson” (2007) 65 Advocate 399. See also Connor Bildfell, “The

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Role of Chief Justices in British Columbia’s Superior Courts” (2018) 76 Advocate 25 and Connor Bildfell, “Lessons Learned from COVID-19: An Interview with Chief Justice Hinkson” (2020) 78 Advocate 661.

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DISPUTING JURISDICTION: A REVIEW OF RECENT CASE LAW ON TERRITORIAL COMPETENCE

By H. David Edinger and Kailey Graham*

W

hile it is understandable that if you had to sue someone, you would want to do so in the place most convenient to you, the issue of jurisdiction is not that simple. Commencing an action in a location where you are, but which has little or no connection to your claim, will often result in a jurisdictional dispute. In such cases, the court’s first step is to examine whether it has territorial competence, which gives it jurisdiction.

Territorial competence is established when one of the requirements set out under s. 3 of the Court Jurisdiction and Proceedings Transfer Act1 (the “CJPTA”) is satisfied. Where the factors in ss. 3(a)-(d) are not engaged,2 plaintiffs must resort to s. 3(e) and establish there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based. Section 10 of the CJPTA identifies a nonexhaustive3 list of factors for the courts to consider in assessing whether there is a real and substantial connection. The interpretation and application of such factors are not always clear on the facts, as is discussed below in our review of commercial litigation case law from the last three years concerning contracts, torts and carrying on business in British Columbia.

While not intended to be comprehensive,4 this overview highlights the courts’ recent interpretation of certain s. 10 factors.

If territorial competence is established under either s. 3 or s. 10 of the CJPTA, but another forum is the clearly more appropriate forum for the hearing of the matter, a party can argue that the court should decline to exercise jurisdiction on the basis of forum non conveniens pursuant to s. 11 of the CJPTA. While the forum non conveniens analysis raises complications of its own in its application, the focus of this article is territorial competence, the first stage of the analysis. We note though that where territorial competence is established by a thin strand, as was the result in a number of

* Prepared with the assistance of articled student Andrew Hung.

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the cases discussed below, the forum non conveniens analysis often serves to safeguard the courts from dealing with cases arbitrarily or lightly connected to British Columbia.

PROCEEDINGS CONCERNING CONTRACTUAL OBLIGATIONS Section 10(e) of the CJPTA states that there is a real and substantial connection where the proceeding concerns contractual obligations and: (i)

the contractual obligations, to a substantial extent, were to be performed in British Columbia,

(ii) by its express terms, the contract is governed by the law of British Columbia, or (iii) the contract (A) is for the purchase of property, services or both, for use other than in the course of the purchaser’s trade or profession, and (B) resulted from a solicitation of business in British Columbia by or on behalf of the seller

Determining territorial competence in cases involving contractual obligations may often be easier than in those involving torts, as discussed below. However, difficulty may arise where the existence and/or terms of the contract or the location of the alleged breach of contract are in dispute.

The jurisdiction where contractual obligations were to be performed is not necessarily limited to the jurisdiction where the contract was executed, but rather where they were to be substantially performed.5 For example, in Cleeves v. Antony’s College in the University of Oxford, the court concluded that there was no real and substantial connection between any alleged contract and British Columbia.6 The plaintiff claimed against St. Antony’s College in the University of Oxford and related individuals for allegedly preventing her from completing her postgraduate degree and her subsequent economic loss. Her claims were largely predicated on the existence of an alleged contractual right, but no written contract was produced.

Assuming that the allegations were true, the court concluded the contract was formed in England given that the plaintiff was in England when she allegedly entered it, and the contract was to be performed in England.7 Such a contract would have been governed by the laws of England and intended to be performed in England given that was where the plaintiff was enrolled and studied.8 Therefore, despite no written contract between the parties being available, the court interpreted s. 10(e) by performing a factual analysis as if such a contract did exist as claimed, considering where the parties were at the alleged time of its execution and the likely terms based on the circumstances.

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Where a written contract is available, the interpretation of s. 3(c) or s. 10(e) may not always be straightforward either given potential deficiencies with the relevance of the contract or the evidence concerning its existence, terms or scope. In determining territorial competence, the courts pay particular attention to the presence and terms of a forum selection clause. The failure to consider such a provision on a jurisdictional application was found to be an appealable error9 in Hydro Aluminium Rolled Products GmbH v. MFC Bancorp Ltd.10 This decision demonstrates how the courts look to give meaning to forum selection clauses with difficult wording and may be inclined to an interpretation that establishes territorial competence.11 The role of forum selection clauses and the difficulties of imperfectly written contracts were at issue in Medicane Health Incorporated v. Bar Tal.12 The dispute was over the ownership of shares by an Israeli businessman in a medical cannabis company that operated primarily in Israel. The company argued that four agreements between the parties established a forum selection clause in favour of litigating in Canadian courts.13 The court concluded territorial competence was not established given that the alleged agreements were:14 •

inapplicable to the present action and could not be “stretched to apply to disputes that arise with respect to new companies, new shares, or new shareholder agreements”;15

•

not signed by either the company or the defendant, or both;16 and/or

•

did not include forum selection clauses.17

Additionally, the court found that no oral agreement was made concerning forum selection.18 A careful review of the evidence was required to understand the context and relevance of the agreements and whether draft agreements had actually been agreed on or not. Practical realities of unwritten or imperfect written contracts often create difficulty in the application of s. 3(c) and s. 10(e) of the CJPTA. Therefore, it is important to agree on unambiguous contractual terms regarding jurisdiction and, where those terms may not be clear, carefully establish the necessary jurisdictional facts when arguing territorial competence.

PROCEEDINGS CONCERNING A TORT COMMITTED IN BRITISH COLUMBIA Section 10(g) of the CJPTA states that there will be a real and substantial connection where the proceeding concerns a tort committed in British Columbia. While certain torts such as the tort of trespass19 generally have an obvious location which is directly connected to the tort, other torts are not as self-evident.

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One such example is the tort of misrepresentation, which can be committed in the jurisdiction where the representation is made, received or acted on.20 Given the options, this tort casts a wide net for establishing territorial competence. For example, a person could be travelling through British Columbia, to which they and their claim have no other connection, when they receive an alleged misrepresentation on their phone. Even if they acted on it later and in another jurisdiction, a claim based on the misrepresentation received in British Columbia still engages s. 10(g) of the CJPTA. Evidence produced by the parties and the court’s consideration of same will be essential in establishing where the parties were when the representation was made, received or acted on. Plaintiffs seeking to establish territorial competence may fail where they have overlooked the importance of precise pleadings and supporting evidence to establish the necessary jurisdictional facts regarding the location of the tort.

In The Hershey Company v. Leaf, the plaintiff brought a claim of negligent misrepresentation against a foreign corporation, The Hershey Company (“Hershey”), stating that he would not have bought its products if he had known about Hershey’s alleged use of child labour and slavery in its supply chain.21 The plaintiff sought to certify a class action in this regard. In arguing that British Columbia courts had territorial competence over the matter, the plaintiff relied on affidavits from himself and another putative class member that alleged that representations were received in British Columbia.22 The Court of Appeal overturned the lower court’s decision on this point and found that the affidavits were insufficient to establish that the alleged tort of negligent misrepresentation was committed in British Columbia.23 The Court of Appeal explained that the affidavits did not contain a concise statement of the material facts giving rise to the claim as required, and merely alleged that the representations had been communicated in the marketing, packaging and advertising of Hershey products sold in British Columbia.24 The affidavits did not identify the individuals who made the alleged representations, the content of the representations, or when they were made. The “bare allegation” in the affidavit was insufficient to permit a finding of territorial competence over a foreign defendant.25 Given that the location of misrepresentation can be where it is made, received or acted on, how misrepresentation is applied in analyzing territorial competence may have significant implications, particularly to companies such as Hershey with an expansive global reach. The courts’ application of s. 10(g) of the CJPTA may presumptively capture cases in which there is really no real and substantial connection at all and require the analysis of forum non conveniens pursuant to s. 11.

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Complications with s. 10(g) of the CJPTA can likewise be seen with the tort of conspiracy. When harm is suffered in British Columbia as a result of a conspiracy, this can serve as the basis for a finding that the tort was committed in British Columbia.26 Where harm is suffered is not always clear though, and it may not truly have a real and substantial connection to British Columbia. The presumption of territorial competence can be rebutted where only a minor element of the tort of conspiracy was committed in British Columbia or the tort was not meaningfully connected to the province.27 This was the case in Bang v. Kim, which involved a violent dispute between family members over a trust and a counterclaim for, among other things, conspiracy to intimidate or harm and intentional infliction of mental distress.28 While harassing phone calls were allegedly received in British Columbia and any damage to the defendants who resided there would have occurred in British Columbia, the court found that these factors were minor and that the core elements of the counterclaim occurred in Korea. This included where communications regarding the trust were made, where the alleged conspiracy was formed, and where subsequent threats and violence occurred.

As such, the courts must carefully assess the necessary jurisdictional facts in order to establish where a tort in fact occurred, but also consider whether the presumption under s. 10(g) of the CJPTA is meaningfully engaged, or, in the alternative, use the forum non conveniens analysis to decline jurisdiction where s. 10 of the CJPTA is only superficially engaged.

PROCEEDINGS CONCERNING A BUSINESS CARRIED ON IN BRITISH COLUMBIA Section 10(h) of the CJPTA states that there will be a real and substantial connection where the proceeding concerns a business carried on in British Columbia. On its face, this provision does not make clear whose business or what level of connection is necessary to engage this factor.

In Smith v. Hayes, a matter arising out of alleged professional misconduct of an American lawyer and law firm for services to be rendered in Korea in regard to the enforcement of a British Columbia court order, the court found that s. 10(h) was not engaged even though one of the plaintiffs was a British Columbian company.29 The claim itself was not concerned with the business of the British Columbian company, but rather the business of the defendants and required determining whether they had been engaged to render services, among others, to enforce the order in Korea, and if so, had met their professional obligations.30 Further, the other plaintiff company,

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which was the only plaintiff who in fact was entitled to enforce the order, was incorporated in the United States. Without evidence about its business, the court found that its place of incorporation suggested that this was also its place of business.31 Even where the business of the defendant is related to the matter at hand, the courts may not consider it sufficient for s. 10(h) of the CJPTA if it is a weak or unsubstantiated connection, such as in The Hershey Company v. Leaf.32 While it is generally known that Hershey products are sold in British Columbia, the Court of Appeal also denied jurisdiction on this ground, again noting the plaintiff’s failure to plead material facts so that a logical connection between Hershey’s business activities and the representations (which were unspecified) could be made out.33 CONCLUSION Given the globalized nature of daily life for individuals and businesses, jurisdictional issues will continue to arise in all areas of law. While the CJPTA was implemented to create a map to navigate through these issues, its general language and the detailed factual analysis necessary to determine the issues sometimes result in diminished clarity. In the first stage of a jurisdictional analysis, unless a matter neatly fits into ss. 3(a)-(d), there will be an issue under (e) as to whether or not there is a real and substantial connection between British Columbia and the proceeding. While s. 10 provides guidance on this, its list of factors is not exclusive or self-evident.

As recent decisions considering ss. 10(e), (g) and (h) demonstrate, the courts’ consideration of jurisdictional facts shapes their interpretation of such provisions and what is considered a “real and substantial connection”.

Evidentiary rules and the importance of precision in pleadings and evidence therefore often come into play in deciding the outcome of a territorial competence analysis. Establishing or contesting jurisdiction in an action requires detailed work and careful pleadings, substantiation and consideration of your position within the mosaic of jurisprudence on territorial competence, and where the presumption of jurisdiction succeeds, doing so again for a forum non conveniens analysis.

ENDNOTES 1. SBC 2003, c 28 [CJPTA].

2. That is where the claim is against a person who is ordinarily resident in British Columbia, who agreed that the British Columbia court will have jurisdiction, has submitted to the British Columbia courts, or the proceeding is a counterclaim against a person who has commenced a claim in British Columbia.

3. As stated by s 10: “Without limiting the right of the plaintiff to prove other circumstances that constitute a

real and substantial connection between British Columbia and the facts on which a proceeding is based”.

4. Nor is this article intended to address the procedural issues related to and/or necessary for disputing territorial competence under Rule 21-8 of the Supreme Court Civil Rules, BC Reg 176/2023.

5. Hydro Aluminium Rolled Products GmbH v MFC Bancorp Ltd, 2020 BCCA 295 at paras 19–20; Inter-

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national Raw Materials Ltd v Steadfast Insurance Company, 2023 BCSC 1389 at paras 19–31; JTG Management Services Ltd v Bank of Nanjing Co Ltd, 2015 BCCA 200 at para 34—all to the effect that even if a contract may be performed in multiple jurisdictions, performance “to a substantial extent” in British Columbia may be a real and substantial connection providing territorial competence.

6. Cleeves v Antony’s College in the University of Oxford, 2021 BCSC 686 [Cleeves].

7. Ibid at paras 102–03.

8. Ibid at para 105.

9. Territorial competence is a question of law reviewable on the standard of correctness: Ewert v Höegh Autoliners AS, 2020 BCCA 181 at para 44.

10. Hydro Aluminium Rolled Products GmbH v MFC Bancorp Ltd, 2020 BCCA 295.

11. Ibid at paras 18–21. This decision also suggests at paragraph 21, referring to Club Resorts Ltd v Van Breda, 2012 SCC 17, that once territorial competence is established over one claim, that is generally enough to establish territorial competence with respect to related claims against the same parties.

12. Medicane Health Incorporated v Bar Tal, 2021 BCSC 734, aff’d 2022 BCCA 95.

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13. Ibid at para 29.

14. Ibid at para 50.

15. Ibid at paras 36, 38.

16. Ibid at paras 37, 42.

17. Ibid at para 41.

18. Ibid at para 45.

19. See e.g. Bang v Kim, 2022 BCSC 1893 [Bang].

20. The Hershey Company v Leaf, 2023 BCCA 264 at para 37 [Hershey]; Cleeves, supra note 6 at para 115; Northwestpharmacy.com Inc v Yates, 2017 BCSC 1572 at para 46; Smith v Hayes, 2023 BCSC 1761 at para 47 [Smith].

21. Hershey, supra note 20.

22. Ibid at para 38.

23. Ibid at para 46.

24. Ibid at paras 42–43.

25. Ibid at para 45.

26. Bang, supra note 19 at para 109.

27. Ibid at para 118.

28. Ibid.

29. Smith, supra note 20.

30. Ibid at paras 40–41.

31. Ibid at para 42.

32. Hershey, supra note 20 at para 50.

33. Ibid.

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WHITHER JUDICIAL REVIEW?*

By Judge Thomas S. Woods (retired)

I

n an article recently published in the Commonwealth Judicial Journal,1 Sir Nicholas Blake—a former English High Court judge— described the importance of courts’ powers of judicial review this way:

[J]udicial supervision of the executive is needed to ensure that it remains within the law as it is correctly understood, and not merely the executive’s view of what the law is or might usefully be considered to be… It is conceptually very difficult to imagine how this primary function of the judiciary is anything other than a benefit to good decision-making. It ensures both a harmony between the different branches of the state—legislature, executive and judiciary—and the proper relationship between the state and the citizen or subject when decisions interfere with their civil and political rights… [Judicial] oversight functions ensure that [government] power is exercised for the permitted purpose and the executive has not exceeded the bounds of its authority. Provided these tests are met, there is no conflict between executive and judiciary. The judiciary does not seek to become the prime decision-maker in such cases but to ensure that all parts of the separate institutions of the state are working harmoniously within their proper spheres.

Given that description, one might ask: For the ordinary citizen, what’s not to like about judicial review? Well, a lot, apparently, according to an increasing number of political leaders around the globe. They aim to persuade their constituents that judicial review ought to be curtailed. Surprisingly, they are gaining support for their self-interested campaigns to remove their governments’ conduct from judicial oversight. And contrary to their own interests, ordinary citizens in some jurisdictions, for ideological reasons, seem to be lining up to embrace policies that would strip them and their democratic institutions of some very important protections.

PLANNED CURTAILMENT OF JUDICIAL REVIEW IN ISRAEL The latest instance of the insidious erosion of key constitutional safeguards can be seen in what is occurring very visibly now in Israel. (And at the time

* This article is adapted from an editorial, written by the author, published in the December 2023 issue of the Commonwealth Judicial Journal.

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of writing, news of other dispiriting, and overshadowing, calamities occurring in the region must, of course, be acknowledged.)

The crisis pertaining to judicial review that has been building to a crescendo in Israel holds many lessons for the Commonwealth and the wider world. We would be wise to heed them. Constitutionally, there is much to worry about, and very little to applaud, as we watch nervously from a distance while Prime Minister Benjamin Netanyahu and his coalition pursue their initiative to neutralize the judicial review powers of Israel’s Supreme Court. If fully realized, PM Netanyahu’s “judicial overhaul” would enable the Knesset to reverse the decisions of the country’s highest court, and by a simple majority vote. A very significant development in this saga came in late July 2023 when the ruling coalition in the Knesset unanimously voted down the legislation’s “reasonableness clause”—a provision which had been promoted in an attempt to preserve the Supreme Court’s ability to strike down government decisions which it determines to be unreasonable according to law.

If these reforms are fully implemented, they will severely impair the separation of powers as a constitutional norm in Israel, hampering the future ability of the Israeli judiciary to play the essential check-and-balance role that the judiciary plays as the third branch of government in every tripartite democracy.

In such a brave new world, if the ruling coalition in Israel were to disagree with a court decision given against it, the government would be able to overrule that decision, fully and finally. Ponder that for a moment. In such a brave new world, where would Israeli citizens (and other legal “persons”, including corporations) turn in search of a fair and independent hearing and remedy if they have been harmed by government action that they believe was unlawful?

THE NEED FOR ENHANCED LEGAL/CONSTITUTIONAL LITERACY It was stated above that the aforementioned developments in Israel give us “much to worry about and very little to applaud”. Given the high stakes, what (you may ask) could there possibly be to applaud in what is shaping up to be the most serious constitutional crisis in Israel’s history? Well, in a word, it is the peaceful and determined pushback that the current coalition government has provoked on the part of a wide swath of the Israeli citizenry. Make mention of the importance of powers of judicial review to the protection of democracy at a backyard barbeque in Canada and you will likely provoke in return a look of puzzlement or a cavernous yawn (or both). Not so in Israel. When legislation is tabled that aims to clip the

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Supreme Court’s wings and constrain its power to overrule government action that is contrary to law, Israeli citizens rise up in mostly peaceful protest. Opponents to the Netanyahu “judicial overhaul” have numbered in the hundreds of thousands, clogging the streets of Jerusalem and Tel Aviv to voice their objections to it.

One thing the concerted opposition to the proposed reforms tells us is that the level of legal/constitutional literacy within the general population in Israel is enviably high. Israelis seem to know what the power of judicial review is, why courts possess it and why it is important that that power be preserved intact as a constitutional safeguard. Thus, when judicial review is threatened, Israelis take notice, stand up and object.

Would that happen in other Commonwealth countries if their governments were some day to pursue a similar path and seek to curtail the judicial review powers of their judges? One wonders.

It is no small challenge to abide by and act on Jefferson’s famous dictum that “a well-informed citizenry is the best defence against tyranny” in times where reliable and responsible journalism is increasingly drowned out by misinformation originating with self-interested purveyors using social media’s outsized electronic megaphone. Public understanding of constitutional precepts and principles in Canada at least—such as the singular importance of the separation of government into independent legislative, executive and judicial branches, for example—seems to be not all it could be. Many in Canada—starting with schoolteachers, university professors and even members of the judiciary themselves (see the editorial in the June 2022 issue of the Commonwealth Judicial Journal)—could and should be doing much more to educate and raise public consciousness about our legal and democratic institutions.

And it does not help that some politicians and pundits frequently take aim at the third branch of government in Canada and its unelected judges, lumping them in with other “elites” and “gatekeepers” (speakers—like virologists, epidemiologists and climate scientists—of inconvenient truths) who they say should be treated with suspicion if not contempt. (The fact that Canadian judges—unlike American ones—are unelected is the whole point.

They are not beholden to anyone or anything, other than the oath they take fearlessly to uphold the law.)

All of this will, of course, sound to some readers like special pleading.

What else would you expect from a retired judge who edits a journal for judicial office holders but a spirited defence of judicial independence and the preservation, fully intact, of the powers of the judiciary? But, with respect, such ad hominem dismissals skirt the real issue—that being that govern-

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ments are no more above the law than anyone else in a democracy. Governments sometimes make mistakes and an independent judiciary equipped with strong judicial review powers is essential to confine government action to its lawful sphere.

It is unarguable that a duly elected government owes its existence to the will of the people as expressed at the ballot box. But that cannot mean that, once elected, a government can justly grant itself licence to then conduct its business as it wishes, unencumbered by judicial oversight aimed at ensuring that its conduct remains within the limits of its lawful authority.

Yet that is precisely what some governments are bent on doing, and (perversely) what some citizens seem to be willing to support.

No one expects governments to enjoy having their decisions subjected to judicial review. Even less would we expect governments to appreciate having their decisions overruled in the course of judicial review. But mature and responsible governments whose representatives and operatives understand the constitutional underpinnings of tripartite democratic systems accept, if sometimes grudgingly, that their powers are not limitless and that it is the courts’ responsibility to keep them on the lawful side of the line.

Less mature and responsible governments scheme to find ways to insulate their decisions and actions from that pesky and annoying constitutional safeguard known as judicial oversight.

THE ATTEMPT TO CURTAIL JUDICIAL REVIEW IN THE UNITED KINGDOM: A DAMP SQUIB The Johnson government recently took a run at curtailing the British courts’ judicial review powers, causing some of its own members to break ranks and speak against the initiative. One of them, David Davis MP, commented in The Guardian that: Judicial review is a cornerstone of British democracy. It empowers everyday people to challenge decisions made by public bodies. Whether it be central government or local authorities, rule makers are held accountable by ordinary people… But governments do not like judicial review for this exact reason.2

Sir Nicholas Blake could not have said it better.

That determined effort to significantly curtail the judicial review powers of the U.K. courts (innocuously named the “Independent Review of Administrative Law”) ended in almost complete failure.

There is little room for doubt that the government was galvanized into launching the Independent Review of Administrative Law initiative by its historic defeat in the Miller litigation.3 There, readers will recall, an 11-member panel of the U.K. Supreme Court unanimously affirmed and amplified

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the decision of a lower court, exercising its judicial review powers, which declared illegal the government’s attempt to prorogue Parliament in order to preclude it from debating Brexit.

The Prime Minister of the day and his party were not amused.

Jacob (now Sir Jacob) Rees-Mogg—then the Conservative Leader of the House of Commons and no stranger to hyperbole—publicly characterized the government’s defeat in Miller as a “constitutional coup” and “the most extraordinary overthrowing of the constitution” ever seen.4 The three judges who rendered the Miller decision in the High Court (which was affirmed on appeal by the U.K. Supreme Court) were decried as “enemies of the people” in a braying headline in the Daily Mail5 set in gigantic block capitals that were positioned directly above photos showing all three in their formal judicial attire.

It can be seen that some of the current U.K. government’s staunchest supporters on Fleet Street were also not amused.

The manoeuvre to curtail the British courts’ judicial review powers in the wake of the Miller defeat was foretold in a promise made in the British Conservative Party’s platform document, Get Brexit Done, Unleash Britain’s Power,6 published not long after the decision in Miller came down. Shortly following the current U.K. government’s massive electoral win in December 2019, the Independent Review of Administrative Law Commission (the “Faulks Commission”) was struck to examine judicial review in the United Kingdom and recommend legislation that might constrain its scope.

The Faulks Commission panel chosen by the British government was immediately criticized for its composition. Some of its members had little practical or scholarly experience with the law governing judicial review.

More than that, its head, Lord Faulks—a longstanding Conservative Party insider—had, before his appointment, already gone on record condemning the U.K. Supreme Court’s decision in Miller, stating that the court had asserted judicial power in the case “that cannot be justified by constitutional law or principle”.7 A cynic might be forgiven for thinking that, by choosing as panel chair a party insider who had already expressed himself in such an uncompromising way regarding the most important example of the exercise of judicial review jurisdiction in U.K. history, the government had little concern for either the apparent or the substantive objectivity and impartiality of its judicial review reform inquiry.

The story of the Faulks Commission’s proceedings and ultimate recommendations is a long and tortuous one, well beyond the scope of this article.

Suffice it to say for present purposes that, following its call for submissions, some 236 persons and entities responded formally to the government’s pro-

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posed reforms. The overwhelming majority of the respondents opposed the initiative. Lord Faulks and his fellow panelists could not deliver what the government wanted and expected, given the avalanche of well-reasoned, contrary arguments that they received. In the end, only relatively inconsequential changes to judicial review jurisdiction in the U.K. were recommended and later implemented.

LESSONS TO BE LEARNED What are we to take from the British government’s ultimately unsuccessful dalliance with limiting judges’ powers of judicial review? Well. Clearly, judicial review is a thorn in the side of governments. Some governments are prepared to take aggressive steps with the intention of extracting that bothersome thorn by constraining judicial review powers, however wrongheaded that objective may be. But as Professor Mark Elliott put it—and he is the chair of the Faculty of Law at Cambridge and author of the influential Public Law for Everyone blog—“holding the Executive to account by reference to legal standards that are enforceable via judicial review is a bedrock, and non-negotiable, function of an independent judiciary”.8 It therefore behooves all citizens residing in tripartite democracies to keep themselves informed about the essential constitutional principles by which they are governed and to be prepared to stand up for them. Citizens must understand that the separation of powers is fundamental to democratic systems of government and that the preservation of the judiciary’s ability to provide effective oversight is essential in order to ensure that government action is only exercised within the limits that are prescribed by law.

The response we are now witnessing to the Netanyahu “judicial overhaul” initiative in Israel reveals not only that members of the Israeli citizenry appreciate the constitutional significance of their courts’ judicial review powers, but that they will vocally object when their government seeks to neutralize those powers and insulate its decisions and actions from judicial oversight.

The citizenries in some other countries seem less likely to recognize the danger and raise their voices against curtailment of judicial review.

WHAT ABOUT CANADA? Are Canadians well enough informed and animated about the importance of the separation of powers in their own democracy to recognize the risk of partially dismantling courts’ judicial review powers and oppose such initiatives if one were to materialize in Canada? Could Canadians unwittingly find themselves one day sleepwalking into a similar constitutional crisis of

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their own? It is a fair question for which there is no ready answer. As tedious as this may sound, subjects such the separation of powers, the finite limits of government power, and judicial review as a necessary constitutional corrective are all topics that Canadians should be discussing at their backyard barbeques, around their dinner tables and wherever else they gather.

There is reason for concern.

As mentioned, changes to the British courts’ judicial review powers were promised in former PM Johnson’s election platform in 2019. The Faulks Commission stemmed from that promise. The part of the Johnson campaign document that addressed judicial review reads as follows:9 We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.

In our first year we will set up a Constitution, Democracy & Rights Commission that will examine these issues in depth and come up with proposals to restore trust in our institutions and in how our democracy operates…

The platform document (or “Policy Declaration”) published by one of Canada’s major political parties prior to the 2021 general election contains, in its Article 15, a pledge that that party: … believes that Parliament, rather than the courts, is the law-making body of Canada.

We support the establishment of a parliamentary judicial review committee to prepare an appropriate response to those court decisions that Parliament believes should be addressed through legislation…

Does that sound familiar?

Stay tuned, Canada. Indeed, stay tuned tripartite democracies across the world.

ENDNOTES 1. Nicholas Blake, “Improving Government DecisionMaking and Judicial Review” (2020) 25:1 Com Jud J 6.

2. David Davis, “Be Warned: This Government Is Robbing You of Your Right to Challenge the State”, The Guardian (25 October 2021), online: <www.theguardian.com/commentisfree/2021/oct/25/judi cial-review-peoples-right-fight-government-destroycourts-undemocratic>.

3. Miller v Secretary of State for Exiting the European Union, [2017] UKSC 5.

4. See Jason Groves, “Who Runs This Country?”, Daily Mail (24 September 2019), online: <www.dailymail.co.uk/news/article-7500691/Boris-blastsruns-Britain-PM-Johnsons-allies-declare-war-judiciary. html>.

5. James Slack, “Enemies of the people”, Daily Mail (3 November 2018).

6. Online: <www.conservatives.com/our-plan/conser vative-party-manifesto-2019>.

7. Lord Edward Faulks, KC, in his Foreword to John Finnis, The Law of the Constitution Before the Court: Supplementary Notes on the Unconstitutionality of the Supreme Court’s Prorogation Judgment (London: Policy Exchange, 2019) at 5. The publisher of the Finnis treatise, Policy Exchange, was described by The Daily Telegraph as “the largest, but also the most influential think tank on the right [in the UK]”. See “The Right’s 100 Most Influential”, The Daily Telegraph (2 October 2007).

8. Online: <publiclawforeveryone.com/2020/08/03 /the-judicial-review-review-i-the-reform-agendaand-its-potential-scope>.

9. Supra note 6 at 48.

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SPOT THE LAWYER

By Joseph C. Bellows, K.C.

I

graduated from UBC law school in May 1974. 2024 marks 50 years since graduation, which is considered, by some, a milestone.

In 1971, when I started law school, we were divided into four “sections” of approximately 45 students in each section. I was in section 2. In first year, we did every class together and formed friendships, personal and professional, that exist to the present day.

One of my most treasured keepsakes from law school is the displayed photograph of my section taken in the fall of first year. My classmates include many notable barristers and solicitors, many K.C.’s and judges of the Provincial Court, Supreme Court and Court of Appeal.

Given that the 50th anniversary of my class graduation is quickly approaching, I thought my colleagues at the bar would find it entertaining to try to “find” my classmates from a 50-year-old photograph. A list of the names of my classmates, arranged alphabetically, is provided below. Can you “spot” the lawyer?

Kind regards and happy anniversary.

Pat Beirne Joseph Bellows, K.C. Janet Biga Ron Bozzer His Worship Malcolm Brodie (Richmond Mayor) Andy Croll Patrick Delsey Nathan Ganapathi Mike Green The Honourable Justice William (Bill) Grist Eric Heringa Roberta Hundret Dale Kermode Derek Lacroix, K.C. Terry Laliberté, K.C.

0The Honourable Justice Linda Loo Ross Manson The Honourable Judge Parker McCarthy The Honourable Justice Mary Newbury Karen Nordlinger, K.C. Richard (Rick) Peck, K.C. Al Peterson Thomas (Tom) Roper, K.C. Bruce Russell Doug Schofield Sid Shook William (Bill) Smart, K.C. (former B.C. Supreme Court judge) Lon Smith John Tait The Honourable Judge Rory Walters John Warshawski

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THE TRIALS OF WONG FOON SING

By Gordon Hilliker, K.C.

S

hortly after noon on Saturday, July 26, 1924, Frederick Baker telephoned the police and asked them to come to 3581 Osler Street, in the Shaughnessy district of what was then Point Grey. He said that his employee, 22-year-old Janet Smith, had shot herself in the head with a pistol.

Thus began what would become one of the most scandalous episodes in British Columbia’s legal history, involving a kidnapping that was alleged to have been condoned by the Crown and the unwarranted filing of a murder charge by the Attorney General against the Baker family’s 25-year-old “houseboy”, Wong Foon Sing. In an atmosphere fuelled by racism and class differences, it was a subsequently abolished institution, the grand jury, that ended the politically motivated prosecution of Wong Foon Sing and saved him from the prospect of facing the gallows.

The first that I heard of Wong Foon Sing was in the early 1980s, on the publication of Edward Starkins’ fascinating account in Who Killed Janet Smith?1 One of my partners at Harper Grey Easton, David McDonald, had a keen interest in the case. He told me of a dark chapter in his family’s history, in which his grandfather, H.O. McDonald, had been charged with being complicit in the kidnapping and interrogation of Wong Foon Sing in connection with the case.

At first, Janet Smith’s death was not treated as a murder at all. Instead, after a cursory investigation, the Point Grey police pronounced that Janet had committed suicide.

The first investigators on the scene were Point Grey Police Constable Green and medical examiner Dr. Blackwood. Frederick Baker and Wong Foon Sing were both questioned by Constable Green. Mr. Wong said that he had been in the kitchen peeling potatoes when he heard a sound like a car backfiring. He looked out the window but no vehicle was present. Knowing that Janet Smith was ironing baby clothes, he immediately went downstairs to see if she was okay. There he found her body lying on the concrete floor with a .45 caliber pistol near her outstretched right hand. Blood was pouring from her head. After confirming that Janet Smith was dead, Mr. Wong phoned Frederick Baker, who was at his office in downtown Vancouver. Mr.

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Baker rushed home, spoke with Wong Foon Sing, examined the scene and then placed his call to the Point Grey police.

Constable Green determined that the house belonged to Frederick Baker’s brother, Richard. Frederick was staying at the home with his wife and child while his brother was away on vacation. Wong Foon Sing was employed in the home by Richard Baker and had continued his employment under Frederick Baker while Richard was away. Mr. Wong told Constable Green that a few weeks earlier, while house-cleaning, he had found a gun in a knapsack that had been left in the hallway. He reported this to his employer, who asked him to store the weapon away in the attic. Janet Smith was present when this discovery was made.

Dr. Blackwood and Constable Green examined the scene in the basement. Janet’s body lay on the floor, her legs stretched out beneath an ironing board upon which sat a neatly folded pile of baby clothes. The electrical cord of an iron was draped over one end of the board; the iron itself was cradled in Janet’s right arm. Near the iron rested Baker’s .45 caliber pistol. An ejected cartridge from the gun was lying under a sink, inches from Janet’s head. The cause of death appeared to be obvious. There was a dime-sized bullet hole above Janet’s right eye and severe trauma to the back of her skull, where the bullet appeared to have exited. Dr. Blackwood examined Janet Smith’s body, which was still warm. Blood was seeping from her wounds and rigor mortis had not set in. He estimated the time of death to be within the previous hour.

Constable Green, who had formerly been Chief Detective of the British Columbia Provincial Police, quickly reached the conclusion that this was a clear case of suicide. He telephoned a funeral home to pick up the body.

Ordinarily, in a case such as this, the body would have been taken to the morgue for an autopsy to be performed. Instead, Janet Smith’s body was taken to a mortuary and embalmed. The undertaker later claimed to have received these instructions both from the police and from the coroner; they both denied his account.

Two days later Janet Smith’s embalmed body was delivered to the Vancouver city morgue, where Dr. Hunter performed an autopsy. Disturbed by the circumstances, including the fact that plaster of Paris had been used to repair the fractured skull and fill in the bullet hole, Dr. Hunter asked for the coroner and another doctor to attend. All three noted the absence of powder burns to the face and the fractures to Janet’s skull, which they believed was more consistent with being struck by a heavy object than being from a gunshot. They questioned whether this was truly a case of suicide, but did not arrive at a firm opinion in that regard.

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While the autopsy was underway the police returned to the scene and carried out a thorough examination. They found a largely intact bullet on the basement floor. This was puzzling, considering that the bullet had presumably passed through Janet Smith’s skull and struck a concrete surface before coming to rest.

Later that same day an inquest was held before a coroner’s jury. Wong Foon Sing testified, giving the same account that he had provided to the police. The police witnesses opined that Janet Smith had committed suicide. Frederick Baker said that he thought his employee had accidentally shot herself while playing with the gun, speculating that she had retrieved it from the attic and taken it down to the basement herself. The medical witnesses testified as to their findings, but offered no opinion regarding suicide. Janet’s close friend, Mary Jones, also testified, telling the jury that Janet had been a happy young woman who would never have killed herself, that she was engaged to be married, and that the only thing that troubled her was living in a house with Wong Foon Sing, of whom she was “a little nervous”.

After retiring for 15 minutes, the jury delivered their verdict: the death was accidental.

This verdict caused great consternation within Vancouver’s Scottish diaspora. A cover-up was suspected. Rumours abounded of a drug-fuelled party of young socialites that had somehow led to Janet’s death. There were also rumours that Frederick Baker trafficked in narcotics. Could that have had any connection with Janet’s death? Or did Wong Foon Sing murder Janet Smith for spurning his unwelcome advances?

The United Council of Scottish Societies,2 which in its day was a powerful lobby group, applied tremendous pressure on Attorney General Manson, demanding that the matter be fully investigated and that a second inquest be held. The press also took up the hue and cry, especially the Vancouver Star, which was owned by Liberal MLA Victor Odlum. A friend of Alex Manson, Odlum urged the B.C. legislature to pass a law to “preserve white girls of impressionable youth from the unnecessary wiles and villainies of low caste yellow men”.3 Manson ordered the British Columbia Provincial Police to launch an investigation into the matter. On August 12, 1924, provincial officers brazenly snatched Wong Foon Sing off a Vancouver street and took him to the office of a private detective, Oscar Robinson, where he was beaten, threatened with death and interrogated for several hours, all to no avail.

Wong Foon Sing did not deviate from the account he had previously given.

Manson then obtained a court order for an exhumation of Janet Smith’s body and announced that a second inquest would take place. He appointed

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prominent Vancouver lawyer Charles Craig, K.C., to lead an investigation into Janet Smith’s death and to appear as counsel for the Crown at the inquest.

I first heard of Charles Craig when I was a young lawyer at Harper Grey Easton, the successor firm to Craig, Parkes and Tysoe. C.W. Tysoe, K.C., told me that Craig was not a person to be trifled with. He related a story of a time when Craig had caused a Victoria transit bus to be seized in broad daylight, with passengers onboard, for non-payment of a judgment debt. He had given fair warning and it had been ignored.

The Chinese Benevolent Association retained prominent Vancouver lawyer J.H. Senkler, K.C., to represent Wong Foon Sing. Soon to be treasurer of the Law Society, Senkler was an outstanding athlete and had a reputation for being as combative and competitive in the courtroom as he was on the playing field. The United Council of Scottish Societies was represented by former Attorney General and former County Court judge Alex Henderson, K.C. The inquest got off to a rocky start on September 4, 1924. Over 500 people, mostly women, clamoured in the corridor at the Vancouver Courthouse, demanding entrance to the proceeding. The doors of the courtroom, initially closed to the general public, were soon opened.

Thirty-four witnesses testified in the course of a five-day proceeding. In addition to the medical doctors present at the first autopsy, Craig presented the testimony of the three additional medical doctors who conducted the second autopsy. They opined that a single bullet had caused all of the injuries to Janet’s head and that, given the lack of powder burns, it was highly improbable that she had inflicted the wound on herself. Constable Green, however, maintained that he was familiar with a previous case of suicide in which a gunshot did not leave any powder burns on the body. He stood by his opinion that Janet Smith had fired the fatal shot.

On the matter of Janet Smith’s supposed fear of Wong Foon Sing, there was evidence from Frederick Baker and his wife, Doreen Baker, that they knew of no such concerns, as well as evidence from John Lakes, one of Janet Smith’s suitors, who testified: “She told me that the Chinaman always acted friendly with her, but she told me that she always kept him in his place.” Evidence was also presented, however, from several of Janet’s nursemaid friends as well as a shopkeeper and a counsellor from the Girls’ Friendly Society, all of whom presented a different picture, that Janet Smith had frequently commented on her fear and dislike of Wong Foon Sing.

Senkler conducted what, on paper, was an effective cross-examination of the latter witnesses. In the courtroom, however, he was booed and hissed at

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by several of the spectators in attendance. Senkler referred the witnesses to excerpts from Janet Smith’s diary that appeared to indicate a friendly relationship between the two domestic servants, such as: “Sing is awfully devoted. He gave me two rolls of films for my camera, also sweets, and does all my washing and ironing” and “Poor Wong must be in love. He has just given me a silk nightie and two camisoles.”

Wong Foon Sing had been scheduled as the last witness to testify. When he took the stand to take the oath, Alex Henderson, K.C., insisted that the so-called “Chicken Oath”4 be administered in place of the “Paper Oath”,5 which was typically used for Chinese witnesses. As part of the ceremony, a signed oath is set ablaze and the deponent beheads a live cock. Dr. BrydoneJack acceded to Henderson’s request. He also cautioned Wong Foon Sing that his evidence could later be used against him.

After retiring to consider a verdict, the coroner’s jury held that Janet Smith had been murdered by a person or persons unknown.

Rewards were then announced by the United Council of Scottish Societies and the province for information leading to the arrest of Janet Smith’s murderer. Attorney General Manson appointed Victoria lawyer M.B. Jackson, K.C., as “Special Counsel” to spearhead an investigation into the matter.

Manson told the press that there had likely been a deliberate cover-up by the Point Grey police, presumably to protect certain members of the social elite.6 As the months dragged on, Manson remained under relentless pressure to solve the case, both in the legislature and from the United Council of Scottish Societies. Yet Jackson was not making any progress in the investigation. In stepped Oscar Robinson, the private detective whom the B.C. Provincial police had turned to for assistance in the earlier abduction and interrogation of Wong Foon Sing. On March 20, 1925, Robinson and two associates, dressed in the white hoods and robes of the Ku Klux Klan, entered the Baker home in Shaughnessy, abducted Wong Foon Sing and took him to a house in Point Grey, where he was terrorized and interrogated for 42 days. Mr. Wong was chained to the floor and subjected to death threats, including having a gun put to his head and a noose placed around his neck. None of this worked—his story did not change.

Robinson would later maintain that he had been retained by the municipality of Point Grey for the express purpose of abducting Wong Foon Sing and attempting to obtain a confession from him. Robinson further claimed that the abduction had been directly condoned by the Attorney General and that Jackson had promised him immunity from prosecution. Both Manson and Jackson denied this account. Point Grey officials said that Robinson had

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been retained purely as an investigator and that when, several weeks later, on April 29, 1925, he disclosed to them that he was the kidnapper, they took immediate steps to have Wong Foon Sing released.

The likely truth of the matter is that both municipal and provincial government officials were complicit at least to some degree in the affair. On May 1, 1925, the Point Grey police, having obtained a warrant issued at Manson’s direction, attended at the home where Wong Foon Sing was being held and took him into custody for the murder of Janet Smith. They then staged a scene at 2 a.m. on Marine Drive, where they supposedly “found” Mr. Wong, in a confused state, wandering along the roadside, which was the story they presented to the public. The kidnappers were neither arrested nor charged.

Wong Foon Sing was taken to Oakalla Prison, where he was held incommunicado in a shed outside of the main prison building. Even his own lawyer was denied access. A phone call from an outraged Harry Senkler to the Attorney General soon changed that situation. Upon seeing his client, Senkler became very concerned about Mr. Wong’s deteriorated physical condition and immediately arranged for a series of medical examinations to take place. As a result of mistreatment while he was in captivity, Wong Foon Sing’s right eye was discoloured, he suffered from blurred vision and he was deaf in his right ear.

With 48 hours’ notice, Wong Foon Sing was directed to appear at a preliminary inquiry into the murder charge against him. The inquiry commenced on May 8, 1925 before Magistrate McQueen in Point Grey police court and was attended by an enthusiastic public. Jackson, for the Crown, was cheered, and Senkler, for the accused, was booed. The evidence that was presented was substantially the same as that put forward at the second inquest. The only new evidence consisted of the architectural details of the Baker home where Janet Smith’s body was found and some forensic tests that had been performed on severed pig heads and on the decapitated head from the corpse of a deceased mental patient from Essondale. The heads were each placed in front of a stone wall and bullets were fired at them from a distance of 18 inches. In each case substantial powder marks were left on the head and the bullet was substantially deformed. These tests, which were seriously flawed,7 were intended to show that Janet Smith did not commit suicide and that the bullet found at the scene had not been fired in the room in which it was found.

Wong Foon Sing did not testify at the preliminary inquiry and the transcripts of the evidence he gave at the two inquests were held to be inadmissible. Senkler did not present any evidence. In his closing submissions he

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argued first that it had not been shown that a murder had occurred and second, if there was a murder, there was no evidence linking it to his client.

Jackson’s submissions on behalf of the Crown were nothing short of bizarre. He challenged the evidence of his own witnesses, asserted that the death occurred several hours earlier at a different location and said that the scene in the basement was staged as part of a cover-up. The Crown’s theory was that Wong Foon Sing had lied to the police and that he had either killed Janet Smith himself or was covering up for the person who did, and that this was sufficient reason for him to stand trial.

After reserving his decision for three days Magistrate McQueen granted a committal order. In brief reasons, he stated that he perceived it was his duty to make such an order absent being strictly persuaded, in the clearest manner, that the charge was both malicious and groundless.

With no right of appeal available from the magistrate’s decision, Harry Senkler prepared a habeas corpus application to the B.C. Supreme Court.

The application commenced on June 16, 1925 before Chief Justice Hunter.

Deputy Attorney General Carter appeared for the Crown. Hurling the entire transcript from the preliminary inquiry onto the table in front of Carter, Senkler demanded: “I challenge the Crown to produce a single incriminating statement from the evidence!” Senkler’s position was that there was virtually no evidence that linked his client to the alleged crime, if indeed there was one. No facts had been presented upon which a jury could convict, said Senkler.

Deputy Attorney General Carter argued that the court could not inquire into the merits of the case and that the only issue was whether the magistrate had the jurisdiction to order a committal for trial, which he clearly did.

He also reviewed the merits of the committal, taking the same position the Crown had taken at the preliminary inquiry.

Chief Justice Hunter adjourned the matter so that he could review the transcript of the preliminary inquiry and consider his decision, which he gave orally on June 23, 1925.8 While agreeing with the Crown that he could not review the decision of the magistrate, the Chief Justice took the opportunity to comment on the evidence, on which, he said, “I do not see how any tribunal could convict.” He dropped a veiled hint that the Attorney General should enter a nolle prosequi. Noting that he had the power to grant bail, Hunter invited an application in that regard. Senkler took up the invitation and Wong Foon Sing was released on a bond of $10,000, which was quickly raised by the Chinese community on his behalf.

Two days later Wong Foon Sing was again in a courtroom, this time as a Crown witness in a preliminary inquiry into charges that had been hastily

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brought against 12 persons in connection with his abduction and unlawful confinement. The circumstances under which those charges were laid would greatly add to the length of this narrative, so it will have to suffice to say only that public outrage and the threats of an insider to “tell all” appeared to have forced Manson’s hand. At the conclusion of the hearing, 8 of the 12 were committed to stand trial at the fall assizes commencing in October 1925.

Despite significant restrictions imposed by the Criminal Code, grand juries were still in use in British Columbia. Although they could no longer initiate investigations and issue indictments as they had in the past, grand juries nevertheless performed a gatekeeper function in that they could endorse or reject indictments that were brought before them by Crown officers. The indictment against Wong Foon Sing was presented to the grand jury on October 8, 1925. In accordance with the procedure in these matters, Justice D.A. McDonald outlined, in a public courtroom, the theory of the Crown’s case. The jury then retired to examine the 14 witnesses whose names had been put forward by the Crown. They were told that they were free to consult with Crown counsel on any issues of fact that might arise and with the judge on any issues of law. Neither consultation took place. The grand jury spent the day questioning the Crown witnesses in private and then retired to consider a verdict, which was delivered the next day. A true bill for the murder of Janet Smith, which would have required a majority vote from the 13 grand jurors, was not found. In the result, the indictment against Wong Foon Sing did not proceed further. He was discharged.

The discharge of Wong Foon Sing did not end his participation in the 1925 fall assizes. He appeared as a Crown witness in three separate trials against eight of the alleged kidnappers. The ninth accused had entered a plea of guilty and agreed to testify as a Crown witness in the three trials, with his sentencing postponed until those matters were completed.

The trials of the alleged kidnappers were probably the hottest tickets in town in November 1925, and they were made even hotter when, shortly before his case proceeded, Oscar Robinson swore out an information for a private prosecution against M.B. Jackson and others.

In a courtroom that was described as stuffed to the point of suffocation,9 the redoubtable Charles Craig, K.C., opened the case for the Crown against Robinson and his teenage son, who was an accomplice in the kidnapping. Craig told the jury that the case was a simple one, that a claim of justification was of no relevance to their deliberations because the Attorney General could not lawfully authorize an abduction. The only question the jury had to answer with regard to the accused persons, Craig said, was “Did they do it?”

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The Robinsons, father and son, had retained Joseph Edward Bird as their defence counsel. A political activist, and prominent for his representation of labour unions and oppressed people,10 Bird was fearless. His strategy was to take the fight directly to Attorney General Manson, arguing that his client had indeed carried out the abduction, but he had done so with the authorization and connivance of the Attorney General and his special counsel. Bird led evidence from a number of witnesses who, collectively, presented a credible case that Jackson and Manson had, at the very least, condoned the abduction after it had taken place and had, indeed, promised the kidnappers immunity from prosecution.

One of the defence witnesses was J.H. Senkler, K.C., who gave compelling testimony about three conversations he had with Jackson during the period his client was being held by the kidnappers. Jackson had pleaded with Senkler to agree to a letter being delivered from the Attorney General to Wong Foon Sing, offering him immunity from prosecution if he told the authorities all that he knew about the murder of Janet Smith. Jackson maintained that although he did not know where or by whom Wong Foon Sing was being held, he would be able to make arrangements for the letter to be delivered. He also supplied a photograph of Wong Foon Sing, taken in captivity, which he had requisitioned from Robinson. Senkler refused to take part in this scheme, advising Jackson of his decision on April 21, 1925.

Whether by coincidence or not, the very next day, at Manson’s direction, a warrant for the arrest of Wong Foon Sing for the murder of Janet Smith was obtained on an information sworn by Superintendent McMullin of the B.C. Provincial Police. Under the Criminal Code,11 McMullin was required to swear, on reasonable or probable grounds, that Wong Foon Sing had committed the offence. Perhaps McMullin believed that he had such grounds, but Attorney General Manson held no such belief. Called as a rebuttal Crown witness, Manson denied that he had ever believed in the probable guilt of Wong Foon Sing, adding that “although the crime did not look to me to be one that was committed by the Chinaman, I had no right to arrive at a positive judgment in that respect. I did not know whether the Chinaman was guilty or whether he was not. I knew only the evidence we had for what it was worth and I made up my mind it was worth submitting to a jury … to let them try the matter so that they would know there was no attempt to protect anyone.”12 Manson’s answer, which is wrong in law, hints at the real reason for the issuance of the warrant: to quell the rumours that he was covering up for prominent members of the social elite. The rumours, however, may have been true. In a copy of a letter to Janet Smith’s parents that was discovered in Man-

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son’s private papers many years after his death, he told them that the murderer had died in a drug rehabilitation hospital in New Westminster, information that was not being publicly released so as to prevent embarrassment to the Lieutenant Governor (one of the most persistent rumours had been that the Lieutenant Governor’s son, an alcoholic, had committed the murder).

In his closing submissions to the jury, Bird put it plainly that one side or the other must be “awful liars”. This, of course, was true, but in his charge to the jury, which lasted no more than three minutes, Justice McDonald cut Bird off at the knees: “If I had thought that you would be swayed in the slightest degree in favour [of] or against the accused by this irrelevant evidence, I would have stopped it, but I thought the public might be dissatisfied if I put the lid on … I tell you this defence has nothing to offer that constitutes a defence … The two accused on their oaths have admitted the truth of the charge.” McDonald told the jury there was no need to retire, that they could announce their verdict on the spot. Declining this suggestion, the jury briefly retired and then returned with a verdict of guilty, with a strong recommendation for mercy.

The two further kidnapping trials followed in quick succession. All of the accused persons were acquitted. Wong Foon Sing appeared as a Crown witness at both trials, but the testimony that proved to be the most dramatic was when Police Commissioner H.O. McDonald took the stand in his own defence and related the circumstances of his meeting on April 29, 1925 with Attorney General Manson. McDonald testified that Oscar Robinson met with the Point Grey Police Commissioners earlier that day to advise them of the progress of his investigation and revealed that he had kidnapped Wong Foon Sing with Jackson’s approval and that he required payment before he would release him into police custody. Appalled at this revelation, McDonald took the ferry over to Victoria, where he met with Manson.

According to McDonald, Manson did not want to speak of the matter, saying, “Don’t say anything to me but go back to Vancouver to Mr. Jackson and take your instructions from him … I’ll give you a message to take back to Vancouver. We will pay Robinson a reward. I’ll leave it to you and Jackson as to what it will be. Keep it as low as possible. Now go back to Vancouver and forget that you ever saw me.”

McDonald returned to Vancouver and met with Jackson. The next day, on Jackson’s instructions, and with the warrant that had been provided from Victoria, the Point Grey police apprehended Wong Foon Sing at the house where he was being held.

Manson took great issue with this account. His version was that when McDonald came to see him he understood that McDonald wished to dis-

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close something in confidence about the kidnapping and that, as Attorney General, he could not receive such information on a confidential basis.

Manson did allow, however, that he had told McDonald that the government would be interested in paying a reward for the recovery of Wong Foon Sing and that he said something to McDonald about contacting Jackson on his return to Vancouver, although he could not recall the context.

The final chapter in this saga unfolded on December 1, 1925, when the preliminary inquiry commenced in the criminal proceeding that Robinson had initiated against Jackson for his role in authorizing the kidnapping of Wong Foon Sing. When the case was called, Crown counsel arose and said that, on the instructions of the Attorney General, he was entering a stay of proceedings. Magistrate Shaw indicated that, based on his review of the law, the Attorney General had that right and that it was not his place to question the decision. There can be little doubt, however, that had the preliminary inquiry been allowed to proceed there would have been a committal order in respect of Jackson. Clearly, there was evidence upon which a jury could find Jackson guilty.

Now that all proceedings had come to an end, Wong Foon Sing wished to return to China. In January 1926, Harry Senkler wrote to Attorney General Manson and asked whether the Crown intended to revive the indictment against his client. Manson replied that the matter was closed. On March 6, 1926, Wong Foon Sing departed for China aboard the Canadian Pacific steamer Empress of Russia. A short while later, on March 29, 1926, John Harold Senkler, age 59, died in Vancouver.

Alex Manson’s political career never recovered from the fallout of the Janet Smith matter. He went down to defeat in the election of 1928 and returned to private practice. In 1935, he was appointed to the B.C. Supreme Court. As a jurist, Manson was known for his zealous approach in criminal matters, where he would assume the role of a “crusader for conviction”.13 ENDNOTES 1. Toronto: Macmillan and Co, 1984.

2. The United Council of Scottish Societies was formed in 1923 as an umbrella group to coordinate the activities of the large number of Scottish Societies that were present in Vancouver and environs.

3. Vancouver Star (8 August 1924).

4. R v Wooey (1902), 9 BCR 569.

5. Also sometimes called the Fire Oath, this consisted of burning a written statement.

6. Vancouver Star (27 October 1925).

7. Suicide by gun frequently involves a contact wound rather than a shot fired from 18 inches away. Modern-day forensic ballistics tells us that when the muzzle is firmly pressed on the skin, very little, if any, soot will be found around the entrance wound: T Plattner

et al, “Gunshot Residue Patterns on Skin in Angled Contact and Near Contact Gunshot Wounds” (2003) 138 Forensic Science International 68–74.

8. Rex v Wong Foon Sing, 1925 CanLII 243 (BCSC).

The report erroneously states the judge to be MacDonald CJA. 9. Vancouver Sun (7 November 1925).

10. Janet Mary Nicol, “Not to Be Bought, Nor for Sale: The Trials of Joseph Edward Bird” (2016) 78 Labour / Le Travail 219.

11. RSC 1906, c 146, s 654.

12. Supra note 9.

13. R v Pavlukoff, (1953) 10 WWR (NS) 26. See also ND Mullins, QC, “AM Manson, Crusader for Conviction” (1987) 45 Advocate 351.

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Left to Right: Sunny Sanghera, Kiu Ghanavizchian, Andrew Mackenzie, Gary Mynett, Lucas Terpkosh, Vern Blai r, Rob Mackay, Farida Sukhia

The Litigation Support Group Business Valuations

Economic Loss Claims

• Matrimonial disputes

• Breach of contract

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• Minority oppression actions

Business Insurance Claims

• Tax and estate planning

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• Acquisitions and divestitures

• Construction claims

Personal Injury Claims

Forensic Accounting

• Income loss claims

• Accounting investigations

• Wrongful death claims

• Fraud investigations

Suite 700 – 1177 West Hastings Street, Vancouver, BC, V6E 2K3 Telephone: 604.687.4544 • Facsimile: 604.687.4577 • www.bmmvaluations.com Vern Blair: 604.697.5276 • Rob Mackay: 604.697.5201 • Gary Mynett: 604.697.5202 Kiu Ghanavizchian: 604.697.5297 • Farida Sukhia: 604.697.5271 • Lucas Terpkosh: 604.697.5286 Sunny Sanghera: 604.697.5294 • Andrew Mackenzie: 604-697-5242

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THE WINE COLUMN

By Michael Welsh, K.C.*

In the souls of the people the grapes of wrath are filling and growing heavy, growing heavy for the vintage — John Steinbeck, The Grapes of Wrath Give me wine to wash me clean of the weather-stains of cares — Ralph Waldo Emerson

THE WRATH FOR GRAPES Wine and wild weather. The two are not doing so well together. Instead of having wine to wash away the weather stains of care, grape growers are now having weather wash away—or freeze or fry away—their crops. It is a brutal time for wine producers, in British Columbia and abroad.

First to the tough times at home from three consecutive winters of vinekilling frigid temperatures: An industry report earlier (in 2023) estimated that the 2023 (grape) crop could be down 54%, with some 3,200 acres – about 29% of the province’s total planted acreage – needing to be removed and replaced.

Production in the South Okanagan was hit significantly, with the red varieties that thrive here bearing the brunt of the damage. Syrah tonnage is expected to be down by 72%, Cabernet Sauvignon by 67% and Merlot by 66%.1

Wine Growers BC estimated in June 2023 that twenty-nine per cent of the province’s vineyard acreage needs to be replanted. The losses add up to

* 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.

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$133 million in direct revenue lost to the B.C. wine industry.2 Replant costs were estimated as high as $317 million after the 2022–2023 winter.

One 14-acre Oliver winery, Nostalgia Wines, lost its entire crop in 2023, after winter temperatures dipped to below -29°C. Over fifty per cent of the vineyard needs replanting. Spearhead Winery in Kelowna harvested one half bin of grapes from its entire home vineyard after December 2022 temperatures dipped below -30°C. With the recent frigid temperatures in January 2024 reaching as low as -30°C and hovering around -20°C for days, these losses of crop and vines will only continue, and many vineyards may need complete replanting.

Instead of growing exponentially as it has in the past few decades, the number of wineries is now declining, as they shut their doors to the public.

Some of the better known but departed wineries include: •

Sumac Ridge Estate Winery in Summerland, one of the oldest estate wineries in British Columbia (now becoming just another label for wine made at the factory-like Jackson Triggs winery in Oliver);

•

Red Rooster Estate Winery, one of the first from Naramata Bench (again becoming just another label for wines made at the Peller Estates winery in Kelowna);

•

Covert Farms Family Estates Winery in Oliver, after 65 years as a tourist farm producer and over a decade as a winery, is closed to the public (although the wines will still be made and sold to wine shops and restaurants);

•

Harper’s Trail Winery, the first winery in Kamloops that established that winery region, has closed after 16 years, although the owners are looking for buyers to reopen;

•

Camelot Vineyards Estate Winery in Kelowna closed after 16 years, from losing its entire crop from winter damage.

In a recent Global News piece, Wine Growers BC estimated that about a quarter of all B.C. wineries are for sale.

Vintners have been faced with a heat dome, wildfires, drought and have been stricken by extremely low temperatures for two winters in a row.

“It’s Mother Nature and we’re farmers, so we’re never quite sure what’s going to happen,” said Miles Prodan, CEO of Wine Growers B.C. “But it’s all been exacerbated by climate change.”

Prodan said last year’s winter resulted in the loss of nearly half of the region’s grape crops. And this year’s deep freeze appears to have been worse, potentially damaging grape vines themselves. That’s on top of dev-

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astating wildfire seasons that have put fruit at risk of smoke taint — along with driving critical customers away from the wineries.3

And it is not just a B.C. problem. It is a global one, although for differing reasons in different international wine areas.

According to the International Organisation for Vine and Wine (“OIV”), global wine production was set in 2023 to fall to its lowest level since 1961, hit by effects of climate change—soaring temperatures and extraordinary flooding. Fueling that decline are expected drops of twelve per cent and fourteen per cent in output respectively in Italy and Spain, the world’s biggest and third-biggest producers in 2022.

Giogio Delgrosso, head of statistics at the OIV, told CNN that in the past, extreme weather would strike every few years to interrupt long stretches of healthy, abundant harvests. “Now extreme climate events are always happening. Every year there’s something.”4 France is expected to overtake Italy as the largest wine producer, but that is creating its own problems for French producers. They cannot sell the wine—there is just too much of it. The world is moving away from drinking wine, in fact from consuming as much alcohol period, not just in North America, but in Europe as well. With consumption down, prices are dropping, while production costs increase. As occurred decades ago, French and EU authorities are buying wine in bulk and turning it into vehicle fuel and now hand sanitizer. Another subsidy encourages vintners to uproot their vines and replant with other crops such as kiwi or olives, or turn their land back to woodlands.

However, much anger remains. Never cross a winemaker, especially a French one. The burgeoning crisis is creating riots: French winemakers struggling to sell their own produce have taken out their anger on imports from Spain. Hundreds of them descended on a major cross-border highway last month (October 2023) and stormed trucks transporting Spanish wine into France. The protestors smashed crates and emptied gallons of imported wine onto the road.

Frédéric Rouanet, who organized the demonstration, explained to CNN that Spain makes many lower-priced wines and said the message to merchants was clear: “If you want to get cheap wine from Spain, you’ll have to buy our wine from us first.”

Otherwise, said Rouanet, who runs an association of winemakers in Aude in France, the region’s wineries simply “can’t get by.”5

Reports last year from across Europe, including Greece and even Albania, were of punishing heat that withered grapes and the vines themselves.

It was worsened by violent hailstorms and winter frosts. Some Albanian growers are considering growing their grapes in greenhouse environments to protect them from the elements.6

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The OIV said world wine production was expected in 2023 to be at its lowest level in 60 years, due to poor harvests in Europe and many areas in the Southern Hemisphere.7 United States production, the world’s fourth largest, was up twelve per cent last year from the year before. But that too is problematic, for the same reasons as in France. Predicting wine sale issues from overproduction, in Washington state the largest producer, Ste. Michelle Wine Estates (which makes up about half of wine production in that state), cut some sixty per cent of its vineyard contracts. Those growers, many of whom were told only about a month before the 2023 harvest, struggled to find other last-minute buyers for their grapes.8 With the Okanagan-Similkameen crops decimated, an idea (which I hope has been short-lived) was floated by some B.C. producers to be able to buy some of that Washington crop, so they had wines to sell in the coming year or two. That would mean changes to the legislative structure for land-based wineries. If it were to happen, I believe it would be a death-knell for the B.C. wine industry—the end of what makes it a special wine region developing its own terroirs and styles of wine. As one Oliver grower stated: “We’re very proud to be from Oliver. We’re not looking to create wine from Washington or California … that’s totally against our ethos and our brand. We’re local.”9 It is one thing to struggle, and another to lose your soul.

This is paired with a shift away from a culture of wine consumption.

Globally, it has fallen about six per cent between 2017 and 2022. OIV data shows consumers have changed their drinking habits and inflation has eroded their disposable income. That means nearly 1.9 billion fewer wine bottles were drunk last year than in 2017.10 This cluster of factors, environmental and cultural, leaves an uncertain future for those growing grapes and making wine. It is an old joke in the wine industry that the best way to make a small fortune making wine is to start with a large one. While there have been vine-killing winter temperatures before in the Okanagan (in November 1955 when temperatures dropped from the plus teens to about -17°C, again in December 1978 when they dropped in hours to -26°C, and in the late 1990s and again in 2009 when temperatures again dipped below -25°C, in all cases destroying the vines and in the worst cases, orchard trees), those were isolated events decades apart, not year after year as we see now.

However, farmers are a resilient breed. As Will Rogers said: “The farmer has to be an optimist or he wouldn’t still be a farmer.” While there may be a reversal in the number of B.C. wineries and volumes of wine produced, that industry is here to stay. And with the quality of the wines only getting better, the good news is that consumers will still have great options. The bad

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news will likely be that with the growing costs of production from crop loss, and increases in all the other costs to make wine, those wine options will likely have a higher price tag.

Here are some interesting local and European wines that are still reasonably priced.

UNSWORTH CHARME DE L’ILE ROSÉ N/V BC VQA, Mill Bay Vancouver Island #116693 $30.00 (approx.)

This Island sparkler, of a lovely salmon hue, is made by Méthode Cuvée Close, which I must admit was a new term for me. It turns out to be another term for Charmat, the process used for Prosecco and other lighter bubblies, where the base wine is then mixed in a stainless-steel pressure tank together with sugar and yeast. Fermentation occurs in a closed system, so CO2 cannot directly escape to the atmosphere and dissolves in the wine. It is faster and cheaper than traditional bottle fermentation while still giving a good mousse to the wine. This version, from Pinot Noir grapes, reminds me of rosé Prosecco. The nose displays floral and light strawberry notes, with more of that strawberry mixed with cranberry, red apple and some minerality on the palate, all surrounded by a fine persistent bubbles and good vibrant finish. Have it with some cheeses, maybe some oysters or cracked crab, or on its own as an aperitif. Available online from the winery and at many private wine stores including Everything Wine, Cascadia Liquor and other Vancouver Island outlets.

DOMAINE LABBÉ VIN DE SAVIOE 2020 AOC Abysmes #1027487 $30.00 (approx.)

This unique wine is produced from Jacquere—a crisp and delicious grape variety native to the region of Savoie in eastern France. On the nose and palate it is very bright and light and slightly effervescent and has only 11.5 per cent alcohol. Its aromas are of lemon lime and granny smith apple, with white blossoms, some raw almond and a bit of wet stone. The flavours are more of fresh lemon and green apple, along with white pear, green peach and melon, and pleasing minerality. It has a medium long finish. It is refreshing to sip on its own or again paired with a cheese board, shellfish or a grilled chicken dish. Available at private wine stores such as Marquis Wine Cellars or online at wineonline.ca or BSW Liquor.

VIÑA MORANDÉ VINOS VALLE DEL MAULE SEMILLON 2022 Maule Valley, Chile #453280 $23.99 This wine is produced from 50-year-old vines, planted back when Semillon

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was one of the main white varieties in Chile. This is textbook Semillon, with white flowers, some honey and beeswax on the nose and a racy palate with lots of good acidity, lime, green apple and pear and a strong and subtle minerality on a medium body. It has only twelve per cent alcohol. It was awarded 92 points on Descorchados Wine Guide to South American wines.

Try it with a smoked salmon omelet, a creamy white pasta dish or baked white fish.

DOMAINE LOUBADÈRE CÔTES DE GASCON BLANC 2021 IGP Côtes de Gascogne, France $17.00 (approx.)

This pale gold blend is of Colombard, Ugni Blanc and Gros Manseng. It has aromas of ripe peach and mandarin orange, mixed with white flowers. The flavours of bright citrus (grapefruit, lemon and orange rind), with ripe apple, peach, apricot and a bit of honey, with a touch of wet stone on a sustained bright finish. It is made for creamy seafood dishes but will also be good with soft cheeses and fresh fruit as a starter. It is available at private wine stores including JAK’s.

AZELIA BRICCO DELL’ ORIOLO 2020 DOGC Dolcetto d’Alba, Italy #423954 $30.99 Scoring 90 points on Vinous, this single vineyard Dolcetto from Montelupo Albese is inky black, with a nose of blackberry, blueberry, black plum, cherry, tobacco, vanilla and a bit of ash. The mid-weight palate has a tart profile with good tannins but a smooth rich finish with more black fruit, especially cherry and spicy toasty oak, a hint of mint, and some tea-like tannins. It would be good with tomato-based pasta dishes, a pizza loaded with sausage and roasted vegetables, a pork tenderloin or lamb shanks.

MASI BONACOSTA VALPOLICELLA CLASSICO 2021 DOCG Valpolicella, Veneto, Italy #285585 $21.99 Made in the historical heart of the Valpolicella region, this wine is a blend of three indigenous Italian grapes: Corvina, Rondinella and Molinara. While still young and a bit tight, it offers fresh berry fruit on the palate, with good supporting acidity and soft tannins. It has red fruit on nose; mostly raspberry and cherry with some ash and vanilla. The flavours are also bright red fruit with some tea-like tannins, and a light but persistent finish. Try with roast duck, or mushrooms in a wine sauce on a polenta or pasta. If you are vegan, as this wine is vegan as well, have it with a rich dish like a white bean stew or Cajun-style red beans and rice.

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FAUSTINO ART COLLECTION RIOJA CRIANZA 2019 DO Rioja, Spain #213339 $25.00 (approx.)

This wine is a rich purple with a nose of bright berry fruit, black currant and brambleberry with some ash notes and flint minerality. The palate shows more black berry fruit, dark plum and cherry with lots of tea-like tannins leading to a long and rounded finish. Good food pairings are traditional Spanish tapas like grilled chorizo in wine sauce, albondigas with a potato tortilla (omelet), or a meal of roasted leg of lamb or a barbequed brisket. It will also pair well with hard cheeses like an Iberico or Manchego with salted almonds. You can find it at Everything Wine, JAK’s and other private wine stores.

ENDNOTES 1. Peter Mitham, “Red Rooster Closure Reflects Dire Straits for B.C. Wineries”, Wine Business (10 October 2023), online: <www.winebusiness.com/news/ article/277823>.

2. Casey Richardson, “‘It’s a Scary Time’: South Okanagan Wineries Plead for Flexibility from Government”, Castanet (28 July 2023), online: <www. castanet.net/news/Penticton/438940/-It-s-a-scarytime-South-Okanagan-wineries-plead-for-flexibilityfrom-government>.

3. Simon Little & Troy Charles, “Up to a Quarter of Okanagan Wineries Are on the Market”, Global News (26 January 2024), online: <globalnews.ca/ news/10252191/bc-wineries-for-sale/>.

4. Anna Cooban et al, “Extreme Weather and Falling Demand Are Pushing Wineries into the Red”, CNN (19 November 2023), online: <www.cnn.com/ 2023/11/19/business/global-wine-productionfalls/index.html>.

5. Ibid.

6. Briseida Mema, “Grapes of Wrath: Albania Winemakers Struggle with Warmer World”, Phys.org (15 October 2023), online: <phys.org/news/2023-10grapes-wrath-albania-winemakers-struggle.html>.

7. “World Wine Output to Fall to Lowest in 60 Years”, CTV News (7 November 2023), online: <www. ctvnews.ca/lifestyle/world-wine-output-to-fall-tolowest-in-60-years-1.6634229>.

8. Anna King, “Northwest wine behemoth Ste. Michelle Cuts Grape Contracts”, KNKX (10 August 2023), online: <www.knkx.org/agriculture/2023-08-10/ northwest-wine-behemoth-ste-michelle-cuts-grapecontracts>.

9. Joe Fries, “Wineries Seeking Help after Tough Winter”, Penticton Herald (26 July 2023), online: <www. pentictonherald.ca/news/article_c40ffc24-2b1811ee-9ddc-a7245ff56155.html>.

10. Supra note 4.

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NEWS FROM

BC LAW INSTITUTE

By Ed Wilson*

The British Columbia Law Institute (“BCLI”) has two major projects that are currently in the consultation phase. We are seeking feedback on both our Parentage Project, which proposes reforms to part 3 of the Family Law Act, and our Renovate the Public Hearing Project, which proposes reforms to the public hearing provisions of the Local Government Act. BCLI PARENTAGE PROJECT CONSULTATION The British Columbia Law Institute’s Parentage Law Reform Project Committee has recently published its Consultation Paper on Parentage. The committee is seeking public comment on its proposals to government to reform part 3 of British Columbia’s Family Law Act.1 Part 3 of the Family Law Act governs who can become a parent in British Columbia. Parentage is important for several reasons. First, it forms the foundation of many aspects of a child’s identity, such as family name and relationships, nationality and cultural heritage. Second, it can also determine important legal rights and responsibilities, such as a child’s inheritance rights.

When the Family Law Act came into force in March 2013, it became British Columbia’s first comprehensive legislative framework for the law of parentage. The goals of this legislative framework were to provide: •

a complete scheme that addresses children equally, regardless of the method of conception;

•

quick and clear establishment of parental status;

•

protection for vulnerable persons;

* Ed Wilson is the chair of BCLI.

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•

a preference for determining parentage through out of court processes; and

•

family stability.2

Over the past decade, there have been considerable developments in law, society and reproductive science. The parentage law reform project has examined whether part 3 continues to meet these goals. The consultation paper contains 35 tentative recommendations for reform. These tentative recommendations address some of the following subjects.

Diversity and Inclusion Several of the tentative recommendations focus on respecting gender and family diversity. The committee addresses important questions such as: •

Should terms such as birth mother and biological father that are used in the Family Law Act be replaced with gender neutral terms?

•

Should terms be descriptive of a person’s role in conception and birth? For example, “the person who gave birth to the child”?

•

Should the legislation allow for more than two parents, regardless of the method of conception?

•

Should agreements under part 3 be pre-conception or pre-birth?

Decreasing Barriers and Costs Associated with Family Building The law has different rules for children conceived through sexual intercourse versus those conceived through assisted reproduction. This distinction can result in families experiencing extra costs and barriers. Several of the tentative recommendations examine this dichotomy and its continued usefulness in modern society. The committee considers issues including: •

Should sperm donation by sexual intercourse be permitted?

•

Should the Family Law Act allow surrogacy to use sexual intercourse as a method of conception?

The committee also considers ways to reduce costs by introducing streamlined options for parentage orders. For example: •

Should the Family Law Act introduce a simplified procedure for parentage orders when everyone has complied with the Act and has consented to the order?

Streamlining and Clarifying Over the past decade, lawyers have noticed areas of confusion and gaps in part 3. Several of the committee’s tentative recommendations address these issues. For example:

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•

Should all parentage agreements require independent legal advice?

•

Should part 3 address the B.C. courts’ territorial jurisdiction to make orders declaring parentage?

•

Should part 3 contain a provision acknowledging the court’s parens patriae power in relation to parentage cases?

These questions are timely and important. Several Canadian provinces have undergone legal reform in this area in the past few years. Interestingly, these provinces have taken diverse approaches in answering the above questions. For example, Ontario has opened the door to four parents regardless of the method of conception.3 Manitoba, on the other hand, explicitly limits the number to two.4 BCLI RENOVATE THE PUBLIC HEARING CONSULTATION BCLI is still seeking comments on its Consultation Paper on Renovating the Public Hearing. The consultation paper discusses six issues for reforming provincial legislation governing public engagement on local land use bylaws. More details are available on the project page on the BCLI website.

Our consultation on this project is scheduled to close on March 15, 2024.

Please visit <www.bcli.org> to download your own copies of these consultation papers and to find out more about how to make submissions in our public consultation phase on these projects.

ENDNOTES 1. SBC 2011, c 25.

2. British Columbia, Ministry of Attorney General Justice Services Branch, White Paper on Family Relations Act Reform: Proposals for a New Family Law Act (Victoria: Ministry of Attorney General Justice Services Branch, 2010) at 31.

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3. Children’s Law Reform Act, RSO 1990, c C12, s 9(2).

4. Family Law Act, SM 2022, c 15, Schedule A, CCSM c F20, s 16(1)(4).

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LAPBC NOTES

By Anonymous

OVERCOMING MY SHAME AND FEAR OF STIGMA Before I reached out to LAPBC, I repeatedly filled out duplicate Outlook calendars that tracked the severity of my hangovers. In my office, I furtively printed out hard copies of monthly calendar views. Using different highlighters, I colour-coded the frequency and intensity of my drinking: •

Green: functioning (at work, minimal impairment)

•

Yellow: medium distress; headache and nausea (at work, limited functioning)

•

Pink: extreme symptoms (at work, barely functioning)

•

Red: sick day (absent from work)

I kept telling myself I was going to get my drinking together, in my own way. I repeatedly told myself that some magical event—a big case, or enlightenment—would save me. Of course, it did not.

This self-monitoring continued for years, tracking intake and consequence. Later, I added a series of special colour-coded sticky notes, tracking my day-drinking when I would often imbibe over lunches. Even later, I selected a different series of clandestine colour-coded sticky notes to track my increasing cocaine use. Despite the data, I remained in denial that I was a person with an alcohol use disorder, a person with a substance use disorder and that these disorders were, predictably, becoming worse.

One of my “jackpot” experiences occurred when a lengthy trial in the Kamloops courthouse collapsed. (When I joined AA, I learned that those in recovery communities refer to these bleak and despairing events as “bottoms”.) As the senior litigator, I sent my team home, and told our Vancouver office manager I would clean up remaining binders, office supplies and equipment. I undertook to close out the budget hotel rooms we rented as

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office space for the duration of the trial. I accomplished those tasks, and added some extra days to indulge in partying. I vividly recall that particular binge, as that long weekend began my history of periodic injection drug use.

I still experience deep negative emotions when I admit that I developed a pattern of injecting hard drugs. Yet in my recovery I have learned that I was not the only lawyer who participated in this risky behaviour. I know it is important to counter the stigma linked to injection use; nevertheless, I find it difficult to make these admissions, even anonymously. I ache with self-loathing, guilt and shame.

In telling my story, I find some integrity in inevitability. I used to tear out the Advocate stories, with the LAPBC counsellor contact information at the end of the articles. These pages became buried in my “To Read” pile. A recent CBA wellness survey indicates that lawyers disproportionately experience considerable levels of substance use disorders and mental health concerns.1 I find some comfort in the report because it reveals that I was far from alone in my behaviours. From a personal, professional and social determinants of health statistical perspective, to me it now seems inevitable that as a lawyer affected by stress and substance use disorders, I would one day reach out to LAPBC for support.

When my work performance became beyond “willfully blind” erratic, a friend and senior office colleague entered my office. She slowly closed the door. With kind intentions she asked me whether I was experiencing any “health conditions” that I wanted to talk about. This brave concerned colleague commented that over the past year I often looked sick and exhausted. Gently she questioned whether “perhaps I might be drinking too much?” She had witnessed my boorish behaviour at our last office Christmas party. She heard rumours about my “moody interactions” with legal assistants (to put my blow-ups in the kindest light). At the time, I squirmed through this conversation and resented the intrusion. In hindsight, the concern, kindness and compassion of this colleague move me to tears. Her outreach and professional concern nudged me closer to ending my denial, and to seeking the treatment I needed. Her peer concern represents the caregiving, non-judgment and good will that exist in the legal community.

Before leaving my office, my colleague suggested I might want to give a LAPBC counsellor a call. She had his name and number ready on a LAPBC business card, which she left on my desk.

I made an appointment and found the LAPBC counsellor to be knowledgeable, challenging and non-judgmental. I say challenging because the counsellor repeatedly asked me to document my drinking and my promises to quit drinking, and then to report back on my success or lack thereof.

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Later, when I disclosed drug use, the counsellor non-judgmentally suggested I track that as well. Importantly, this counsellor assured me of confidentiality; he also invited me to attend the confidential lawyers AA recovery meeting.

The reluctance I initially felt about attending my first AA meeting almost prevented me from going. However, attending the LAPBC lawyers AA confidential meeting helped me to realize other well-respected lawyers faced similar issues. Importantly, I learned a wealth of help existed in the legal community, if I looked for it. Initially, I had to overcome the myths I had ingested about AA and recovery. The biggest myth was that alcoholics and drug addicts were losers and derelicts who meet in church basements. The truth is that the LAP lawyers recovery meeting takes place in a comfortable boardroom; you can attend in person, or beam in on a large Zoom screen.

In my initial months of recovery, meeting members provided a needed example of a combination of strength and vulnerability. They admitted that, just like me, they needed support for the issues they faced.

My recovery path has not been easy. There have been slips, lapses and relapses, but to date, because of the support I have received, no collapse. In early recovery, the support of compassionate and knowledgeable LAP counsellors was essential. In later recovery, the same counsellors helped me find further support to deal with “the slings and arrows” of my particular recovery journey. Today, I am eight years sober. My life has changed in a positive direction by quantum measures. None of this change would have been possible without me first reaching out to LAP. By telling my story, my hope is that if any member of the legal community sees a part of themselves in my journey, they too might reach out for support. This story is also an expression of my deep gratitude.

ENDNOTE 1. N Cadieux et al, Targeted Recommendations: Towards a Healthy and Sustainable Practice of Law in Canada. National Study on the Health and Well-

ness Determinants of Legal Professionals in Canada, Phase I (2020-2022) (Université de Sherbrooke Business School, 2022).

LAPBC is an independent organization of members of the legal community (lawyers, judges, families and support staff).

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

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ANNOUNCING THE 2024 ADVOCATE SHORT FICTION COMPETITION ELIGIBLE CONTRIBUTORS Any person who is now, or has been, a member of the Law Society of British Columbia (including lawyers, judges and masters) or who is an articled student. Contest judges and the “staff” of the Advocate are ineligible to contribute.

ELIGIBLE FICTION A fictional work, written in English, to a strict maximum of 2,500 words that must include the following sentence “It’s Bateman, not to be confused with __________.”

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

DEADLINE FOR SUBMISSIONS The close of business on Friday, September 6, 2024. Submissions will not be returned, so authors should maintain copies of their work.

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

ADDRESS FOR SUBMISSIONS Advocate Short Fiction Competition c/o D. Michael Bain, K.C., Editor The Advocate #1918 – 1030 West Georgia Street Vancouver, B.C. V6E 2Y3 JUDGES David Roberts, K.C., Anne Giardini, K.C., and Peter Roberts, K.C. The decisions of the judges as to the literary merit of the contributions shall be final.

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PRIZES First prize:

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

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

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

Winning entries will be selected by, at the latest, February 14, 2025. Contest judges may award fewer than three prizes if, in their judgment, they consider it appropriate.

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

TRANSFER OF RIGHTS In consideration of having their fiction reviewed for: (a)

possible selection as winning entries;

(b)

possible publication in the Advocate; and

(c)

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

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

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

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PETER A. ALLARD SCHOOL OF LAW FACULTY NEWS

By Alex Wall*

WHY IS THE LAW DIFFERENT WHEN YOU ARE UNHOUSED? We all have cherished belongings: a photo of our children, a beloved relative’s ashes. These things are treasured, no matter where we live. So why does the law not protect the belongings of unhoused people?

A report by UBC, SFU and University of Ottawa researchers, titled Belongings Matter, found the personal property rights of unhoused people in Canada are systematically undermined. Co-authors Dr. Alexandra Flynn (“AF”), associate professor at the Peter A. Allard School of Law (and director of the Housing Research Collaborative and the Housing Assessment Resource Tools (“HART”) project), and Dr. Nicholas Blomley (“NB”), professor of geography at SFU, discussed why belongings, and adequate housing for all, matter.

WHY BELONGINGS? AF: Belongings encompass so many different parts of who we are. These could be things you need for survival, like medication, government ID, or a sleeping bag and tent. They could be things you need for your work, like a suit, a computer, or for some unhoused people, a shopping cart or bike to collect recyclables. Or they could be treasured belongings that have no monetary value but mean everything to the person: a photo of a baby with his big brother, for instance, or things a parent gave them.

NB: Unfortunately, different rules apply for people who are unhoused compared with those who have a place to live. Dismantling a tent means taking away the things someone owns. If you are a person who does not have control over your space, there is nowhere you and your belongings can be where you are not governed by forms of control or regulation.

* Alex Wall is the media relations specialist at UBC Media Relations.

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We often heard in interviews for this report that unhoused people are used to their belongings being seized—one person had their relative’s ashes taken from them—and they lose a part of what makes them themselves.

WHAT DOES THE LAW SAY? AF: We looked at case law and regulations and spoke to people in Ontario and British Columbia starting in 2019, and found that a hodgepodge of laws ultimately allow seizure and destruction of unhoused people’s belongings.

As a result, people often end up having to carry their belongings with them all day, every day.

This visibility puts them at even greater risk of regulatory action, which is often based on stigma within the law that allows enforcers to make value judgments about people’s belongings. Words like “garbage”, “unmarketable”, “offensive” and “worth under $500” are used. But value is subjective. What “value” do my priceless photos of my children hold to other people?

These laws also disproportionately affect those who are Indigenous because a disproportionate number of Indigenous people experience homelessness and poverty due to the effects of colonialism.

Destroying vital belongings like medicine, tents, sleeping bags, IDs and documents forces unhoused people to replace them, which is costly and often impossible.

NB: That is not to mention the mental health harms involved. There is a sense of being devalued, of you and your belongings being treated as “less than”—which they are because they are not being protected. These laws criminalize poverty and exacerbate the condition of homelessness by inflicting trauma, which can lengthen homelessness.

And there is not much unhoused people can do to get their belongings back or be compensated for their loss, because the laws are complex and require navigating bureaucracy—that is, if the belongings have not been destroyed immediately.

WHAT IS THE SOLUTION? AF: We need to recognize that unhoused people have property rights. Just like all property rights, there need to be remedies, like prevention, compensation and punitive actions against those who seize property without the right to do so. There are short-term solutions: municipalities can and must give notice and options for people to safeguard their belongings close by.

But the real remedy is housing.

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NB: The best solutions, we feel, are those that are based on the experience and wisdom of unhoused people themselves. We encourage policy makers to first sit down with unhoused people, and listen carefully.

Our stuff matters to all of us, whoever we are. And I think at one level we can all hopefully understand that.

Regulation of personal belongings flowchart. [footnotes omitted]

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TRU LAW FACULTY NEWS

By Ryan Gauthier*

TRU LAW TEAM MAKES 2023 HOCKEY ARBITRATION COMPETITION FINALS On Monday, November 13, 2023, Jordan Elenko and Braedan Fitzpatrick competed in the finals of the Hockey Arbitration Competition of Canada (known as the “HACC”). Law students from across North America go to the HACC and engage in mock arbitration hearings over the salaries of National Hockey League (“NHL”) players. Each year, there are three NHL players at issue, and teams of two law students represent the side of either the player or the club. The teams then need to make their case as to why the NHL player should be paid a particular amount for the next season.

The NHL players at issue are based on real-life NHL players that were eligible for salary arbitration that year. This year’s players were forward Alex DeBrincat of the Detroit Red Wings (although he was an Ottawa Senator at the time he was about to become arbitration-eligible), forward Tanner Jeannot of the Tampa Bay Lightning and goalie Ilya Samsonov of the Toronto Maple Leafs. Goalies are rarely featured in the HACC. As most hockey fans will tell you, goalies are very difficult to assess! As a result, this year was extra-challenging for the teams.

The team was coached by Tiana Reid from KSW Lawyers in Abbotsford, Dylan Taylor from Dawson Mullin Law in Victoria and Michael Geib from Parlee McLaws in Calgary. These coaches are lawyers who have successfully competed in the HACC for TRU Law before, with Michael reaching the playoff rounds, and Tiana and Dylan making the finals.

The HACC’s oral rounds began on Saturday, November 11, with a round robin. The TRU Law team had three arbitration hearings, one for each

* Ryan Gauthier is an associate professor at the TRU Faculty of Law. He spent his Christmas in Las Vegas, although the only card game he played was cribbage while visiting his parents.

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player. The team advanced to the playoff rounds, participating in a quarterfinal and semi-final round on Sunday.

Both Jordan and Braedan found the semi-finals to be particularly memorable, as they had to overcome some adversity. During that round, they engaged in an arbitration over goalie Ilya Samsonov. However, because both teams had represented the Toronto Maple Leafs in the round robin, one team needed to represent the player in the semi-finals. Jordan and Braedan lost the coin toss, and had one hour to write new arguments representing the player’s side. For months, Jordan and Braedan made the argument that Samsonov’s most recent season was not of particular importance compared to any other season. During the semi-finals, they now had to argue that the most recent season was the most important year to consider. Jordan said that “it was weird pitching the counter-argument to what we had practised for months, but obviously, the arbitrators found it convincing enough to put us through to the finals.”

The finals took place during the PrimeTime Sports Management Conference. In the finals, the battle-tested team made their arguments in front of Stefanie Holland and Gerrit Yau from the law firm Cassels, Brock & Blackwell LLP, and Brad Holland, who is the Edmonton Oilers’ Assistant General Manager. While the team did not emerge victorious, they really enjoyed their time at the HACC. TRU LAW FIRSTS Although TRU Law is in its 13th year, we are always glad to be able to celebrate some “firsts”.

One “first” is the election of Jay Michi as bencher for Kamloops in November 2023. Jay Michi was part of the first cohort of TRU Law students in 2011, and was the first Society of Law Students President. Jay is now the first TRU alumnus to be elected as a bencher.

The newly launched TRU Law Review has published its first article, “Preexisting Legal Relationships in Promissory Estoppel Ought Not Be Understood So Restrictively”. The article was authored by TRU Law Associate Professor Krish Maharaj. Launching a new law review is no small feat, and we look forward to the legal scholarship to come in the TRU Law Review.

LAUNCH OF TRU LAW PRACTICAL LEGAL WRITING GUIDE TRU Law is committed to training students to succeed in the profession of law. One recent initiative is the launch of the Practical Legal Writing Guide.

The first stage of this guide was put together by Law Librarian Michelle Terriss and Assistant Dean Lana Walker with the help of Kelly Melnyck, former

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supervising lawyer at the TRU Community Legal Clinic and sessional instructor at TRU Law. Student assistants who have worked on the resource are Salman Abbasi (3L) and Lea McLean (2L). The first phase has formally launched and judged by the number of “hits” it has already received, it has already proven to be a valuable resource for students. The guide, on the TRU Libraries Page, provides explanations, examples and tips on common legal documents. The first phase has set out some basic documents that junior lawyers are likely to encounter, such as a memo to file, a memo of law, a letter to a client, a professional e-mail and a demand letter. This is just the beginning, as advanced areas are set to follow.

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

BUILDING AN ANTI-RACIST LEGAL SYSTEM When I first became a lawyer, much of my practice focused on Indigenous justice. I have advocated for Indigenous people across many levels of the justice system, including the Supreme Court of Canada. I learned a lot from this work, but something I have especially carried with me is how the law can work both for and against people.

As British Columbia’s Attorney General, I am committed to ensuring the rule of law is protected as a foundational principle. I also firmly believe that everyone has a right to feel safe and like they belong in their communities.

That means our laws need to be continually updated to reflect the diversity of the province’s people, not just a continuation of the laws that were adopted during colonization for the benefit of those who took power and against people the government sought to exclude.

One of the ways we see this play out is through systemic racism, which is not always overt, but can have an extremely negative impact on the lives of people navigating our legal system. That is why it is so important that the people who work within the system—especially us as lawyers—are continually assessing not just our own practices and biases, but also whether the system is truly serving our clients and the public.

Indigenous and racialized people in British Columbia and Canada continue to be harmed by ongoing racism while living with the intergenerational impacts of residential schools, internment camps, slavery and other historical wrongs. We share a collective obligation to not just champion but also to defend the rights of all people to be treated with dignity and respect.

Since taking office, I have made it my priority to work with community partners, including British Columbia’s Human Rights Commissioner, to

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

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draft new anti-racism legislation. The path to this milestone has been long but worth it—I am proud to share that this legislation is being co-developed with Indigenous partners.

Last summer we asked the B.C. public to share how they think government should address systemic racism by completing the Anti-Racism Questionnaire, which was available in 15 different languages. We received over 2,100 responses from people from throughout the province. We also collaborated with community organizations on engagement events, resulting in over 225 events, involving more than 5,000 participants. “What We Heard” reports presenting these findings were released to the public in February. I encourage you to read the findings in these reports, which are available on government’s anti-racism website, <antiracism.gov.bc.ca/history/whatthey-heard-reports>.

All this is leading to proposed anti-racism legislation that builds on the Anti-Racism Data Act (“ARDA”), which was enacted in 2022 to safely collect anonymized race-based data to help identify where Indigenous and racialized people are not getting equitable services within B.C. government. One of the first research priorities established by the ARDA committee is to explore the interactions between racialized groups and the justice system.

During the extensive engagement and co-development process, we heard clearly from stakeholders that government cannot collect data for the sake of collecting data; it needs to be accompanied by action. That is why the broader anti-racism legislation will take the next step and ensure government acts on the systemic racism uncovered through data collected by ARDA and other sources. Government will be required to provide supports for those who have been negatively impacted, and we will create a wholeof-government anti-racism action plan, measure and report on progress, and establish accountability and enforcement mechanisms to ensure compliance with the legislation.

In addition to how the new legislation will impact people and policy throughout British Columbia, I want to highlight two other happenings in March 2024 that complement this work.

In March 2024 we will be announcing the recipients of the Multiculturalism and Anti-Racism Grants, which fund projects that build intercultural interaction, trust and understanding, or that challenge racism, hate and systemic barriers. Applicants can receive grants of up to $5,000. In 2023 we awarded grants to 60 organizations. These grants support government and front-line organizations to work together to build racial equity throughout the province. These are annual grants, so if you work with an organization that could use support, please encourage it to apply for the next cycle in the fall.

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The B.C. Multiculturalism and Anti-Racism Awards ceremony will be held on March 21 at Simon Fraser University in Vancouver to honour people and organizations that are fostering anti-racism and inclusivity in their communities. If you are able, tune into the public livestream on YouTube— the people being recognized at this event are the everyday champions of this work and should be lauded.

The awards ceremony is always held in conjunction with the International Day for the Elimination of Racial Discrimination. The day is observed annually in memory of the 69 people killed in 1960 in South Africa during a peaceful demonstration against apartheid, a racist policy that was codified within government and the legal system itself. Although apartheid was abolished in the early 1990s, the social and economic repercussions of this kind of discriminatory policy still reverberate throughout the world. Here in British Columbia, I believe we can learn valuable lessons from history, which is why we continue to draw attention to this commemorative day.

Remembering historic events like this is one of the reasons I personally got into law; to fight for equity and justice for all people. It is why I believe it is so important that we all work to advance human rights in the province.

We can work toward eliminating racist laws, but it does not end there. The fight against racism is a fight to undo centuries of harm—and it requires consistent and concerted efforts.

While we work to hold government accountable to address systemic racism in its programs and services, we must also acknowledge that it takes more than just government to make real change—we need people like this year’s award winners and grant recipients to bring this important work out into the community. The legal community, too, are actors in this important work. I have worked with many of you who, in your own practices, have championed anti-racist approaches to law, and I thank you for your continued commitment. I will continue to do my part as Attorney General to support you in your efforts.

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ADVERTISE IN YOUR MAGAZINE

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ADVOCATE NEWS

By D. Michael Bain, K.C., and Ludmila B. Herbst, K.C.*

This issue of the Advocate deals with a wide range of subjects, starting with elected officials’ criticisms of individuals in the judicial system (Entre Nous) and ending with a gold-themed Bench and Bar. Don’t want to read about these topics, fascinating as we might find them?

Disagree with what we say about them? Well, use your chance to write in with an article, letter to the editor, grumble, book or movie review, or other content you may wish to contribute.

We welcome submissions from readers about matters that are of interest to them that other members of the legal profession might also want to learn about or reflect on, or that perhaps they should. A submission may be in the form of a weighty academic piece, but need not be. Your submission could instead, for example, set out news about a legally related organization in which you participate, including its mission, publications or educational programming. It could be commentary on a recent case or news event, or criticism of something that another Advocate contributor has written. It can be in prose, but what about some poetry for a change?

You will sometimes see the same contributor names appear in successive issues of the Advocate. We truly appreciate the contributions of those of our colleagues who write in regularly with their insights. However, those submissions are not preferred over others—rather, we are always looking for new contributors as well, reflecting a range of diverse voices, views and experiences.

Sometimes when we reach out to potential authors directly, we hear that they assumed it would be impossible to have their material published in the Advocate, so they decided not to take the time to prepare a submission.

Please never assume this—we would love to read what you would like to

* D. Michael Bain, K.C., and Ludmila B. Herbst, K.C. are, respectively, the editor and assistant editor of the Advocate.

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say, and if it means trimming a few pages of discussion about pots of gold or the Gold Rush to accommodate its publication, we would gladly do so.

Generally speaking, submissions for a given issue are due two months before that issue is released (so, for example, submissions for the May 2024 issue are due in early March 2024). If we do not have room to publish particular content in a given issue but it is otherwise of interest (as most pieces are), we hold it in the pool for potential publication in a future issue.

If you are unsure about whether a topic is suitable for the Advocate, please never hesitate to reach out to us. We can be reached at: •

D. Michael Bain, K.C: mbain@hhbg.ca or 604-696-6120

•

Ludmila B. Herbst, K.C.: lherbst@farris.com or 604-661-1722

Even if you do not feel inclined to write an article or other submission, please do not hesitate to reach out to us with ideas for possible content, including ideas about who should appear “On the Front Cover”. We are somewhat limited in relation to our “Front Cover” given there are, literally, only six front covers per year (and certain of them feature, by tradition, incoming heads of the Law Society of British Columbia, the Canadian Bar Association’s B.C. Branch, law school deans, chief justices…). However, we would like to hear from you about people who should be recognized and whose presence on the front cover would inspire others as well. We like to think we know a fair number of members of the legal profession in this province, but there remain many thousands with whom we have not yet had the privilege of becoming acquainted!

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COURT NOTICES AND DIRECTIONS By the Honourable Suzanne Anton, Q.C.*

Supreme Court of British Columbia Court of Appeal for British Columbia Provincial Court of British Columbia Policy on Use of Electronic Devices in Courtrooms Effective Date: September 17, 2012 (Amended January 15, 2024) PURPOSE AND SCOPE This policy sets out the permitted and prohibited use of electronic devices in courtrooms of the Court of Appeal, the Supreme Court and the Provincial Court of British Columbia.

DEFINITIONS 1. In this policy, the following definitions apply: a.

“accredited media” means media personnel who are accredited pursuant to the Courts’ Media Accreditation Policy.

b.

“courtroom” means a room in which a hearing takes place before a judicial officer, and includes virtual or remote court proceedings where one or more participants is attending the proceedings by video- or audio-conference.

c.

“electronic device” means any device capable of transmitting and/or recording data or audio, including cameras, video recorders, smartphones, cellular phones, computers, laptops, tablets, notebooks, personal digital assistants, or other similar devices.

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d.

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“judicial officer” means: iii.

a Justice or division of the Court of Appeal, or a Registrar of the Court of Appeal;

iii.

a Justice, Associate Judge, or Registrar of the Supreme Court; or

iii.

a Provincial Court Judge, Judicial Justice, Judicial Case Manager, or Justice of the Peace.

PROHIBITIONS ON THE USE OF ELECTRONIC DEVICES 2. Except as permitted under this policy, the use of electronic devices in courtrooms to transmit and receive text is prohibited.

3. In addition, an electronic device may not be used in a courtroom: a.

in a manner that interferes with the court sound system or other technology;

b.

in a manner that interferes with courtroom decorum, is inconsistent with the court functions, or otherwise impedes the administration of justice;

c.

in a manner that generates sound or requires speaking into the device;

d.

to take photographs or record video images except as permitted in this policy;

e.

to audio record or digitally transcribe the proceedings, including making a transcript using video conference software, except as permitted by this policy.

PERMITTED USE OF ELECTRONIC DEVICES IN THE COURT OF APPEAL 4. In a courtroom of the Court of Appeal, any person may use an electronic device to transmit or receive text in a discreet manner that does not interfere with the proceedings.

PERMITTED USE OF ELECTRONIC DEVICES IN THE SUPREME COURT AND THE PROVINCIAL COURT 5. In courtrooms of the Supreme Court and of the Provincial Court a.

accredited media; and

b.

lawyers who are members of the Law Society of British Columbia,

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may use electronic devices to transmit and receive text in a discreet manner that does not interfere with the proceedings.

PERMITTED AUDIO RECORDING BY ACCREDITED MEDIA IN ALL COURTS 6. In courtrooms of the Court of Appeal, the Supreme Court and the Provincial Court, accredited media may use electronic devices to audio record a proceeding for the sole purpose of verifying their notes and for no other purpose subject to the following restrictions: a.

electronic recording devices may only be used when a proceeding is in session;

b.

electronic recording devices must be turned off when a proceeding is adjourned;

c.

electronic recording devices must not be left unattended in the courtroom at any time; and

d.

any audio recording must be destroyed once verification of notes is complete.

7. Members of the media should also consult the Court of Appeal’s Record and Courtroom Access Policy, the Supreme Court’s Policy on Access to the Court Record, the Supreme Court’s PD 48 - Video Recording or Broadcasting of Court Proceedings, the Provincial Court’s Access to Court Proceedings Policy, and the Media Accreditation Process.

PERMITTED USE OF ELECTRONIC DEVICES DURING CEREMONIES HELD AT THE COURT OF APPEAL, SUPREME COURT AND PROVINCIAL COURT 8. During ceremonies, family members and friends may take photographs or record video images and/or audio for their personal use, provided they do so in a way that does not interfere with others’ enjoyment of the ceremony and is consistent with upholding the dignity and decorum of the Court. Such photographs, video images, and audio recordings may not be posted on social media, nor used for publication or broadcast.

9. Accredited media wishing to take photographs or record video images and/or audio during ceremonies to publish or broadcast immediately or at a later date must apply to the Chief Justice or Chief Judge of the respective court for authorization to do so.

10. The use of large cameras or other equipment that would obstruct lines of sight for members of the public is not permitted.

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DISCRETION OF JUDICIAL OFFICERS 11. Nothing in this policy affects the authority of the presiding judicial officer(s) to determine what, if any, use can be made of electronic devices in a courtroom.

PUBLICATION BANS, SEALING ORDERS, RESTRICTIONS ON PUBLICATION 12. Nothing in this policy alters the effect of a publication ban, sealing order or other restriction imposed by statute or the court, limiting the publication of information.

13. Anyone using an electronic device to transmit information from a courtroom has the responsibility to identify and comply with any publication bans, sealing orders, or other restrictions that have been imposed either by statute or by court order.

PENALTIES 14. A person using an electronic device in a manner prohibited by this policy may be subject to one or more of the following sanctions: a.

a direction to turn off the electronic device;

b.

a direction to leave the courtroom;

c.

a direction to forfeit the media accreditation card to the sheriff;

d.

citation, and prosecution for contempt of court;

e.

prosecution for any violation of a publication ban, sealing order, or other restriction on publication;

f.

a direction to remove photographs, video images, or audio recordings from social media; or

g.

any other direction or order of the court.

For more information about this policy please contact:

Court of Appeal

Supreme Court

Superior Courts Communications Officer

Provincial Court Legal Counsel

Email: SCJCommunicationsOfficer@bccourts.ca

https://www.provincialcourt.bc.ca/Media

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Supreme Court of British Columbia Practice Direction Title: Form of Address Effective Date: January 15, 2024 Number: PD-64 SUMMARY This Practice Direction directs how counsel, litigants, witnesses and others are to address a judge, associate judge, registrar or district registrar in a courtroom. It also clarifies how parties and counsel can advise the Court, other parties and counsel of their pronouns and form of address.

DIRECTION 1. This Practice Direction replaces Practice Direction 32 – Manner of Address for Registrars dated December 1, 2011, Practice Direction 59 – Forms of Address for Parties and Counsel in Proceedings dated December 16, 2020 and Practice Direction 60 – Form of Address dated November 18, 2021.

FORM OF ADDRESS FOR JUDGES, ASSOCIATE JUDGES, THE REGISTRAR AND DISTRICT REGISTRARS 2. A judge is to be addressed as “Chief Justice”, “Associate Chief Justice”, “Justice”, “Madam Justice”, or “Mr. Justice” as the context requires. The use of the terms “My Lord”, “My Lady”, “Your Lordship”, and “Your Ladyship” is to be avoided.

3. An associate judge is to be addressed as “Your Honour”.

4. The registrar and district registrars sitting in court are to be addressed as “Your Honour”.

FORM OF ADDRESS FOR PARTIES AND COUNSEL 5. At the beginning of a proceeding when parties or counsel introduce themselves, their client, a witness, or another person, they should provide the Court with each person’s name, title (e.g. “Mr./Ms./Mx./Counsel Jones”) and pronouns to be used in the proceeding.

Christopher E. Hinkson Chief Justice

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Supreme Court of British Columbia Practice Direction Title: Consent Adjournments of Applications and Petitions on the Chambers List Effective Date: January 15, 2024 Number: PD-65 SUMMARY This Practice Direction describes the procedure that must be followed with respect to consent adjournments of applications or petitions set for hearing on the chambers list.

DIRECTION 1. This Practice Direction replaces Practice Direction 28 – Chambers Practice dated November 1, 2010.

CONSENT ADJOURNMENTS 2. Consent adjournments of applications or petitions set for hearing on the chambers list may be made by telephone or faxed requisition (depending on the practice in the local registry) up until 9:00 a.m. on the date of the hearing.

3. After 9:00 a.m. on the date of the hearing, consent adjournments may be made only by attending in person before chambers commences and informing the clerk that the hearing of the application or petition has been adjourned by consent, or after the commencement of chambers, by speaking to the matter before the judge or associate judge.

Christopher E. Hinkson Chief Justice

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The Provincial Court of British Columbia Practice Direction Title: Intimate Images Protection Act Procedural Requirements Effective Date: January 29, 2024 Number: SMCL-04 PURPOSE To clarify procedural requirements for matters under the Intimate Images Protection Act. APPLICATION This practice direction applies to all Provincial Court locations in the Province.

DIRECTIONS 1. Unless a judge otherwise orders or directs, a claimant under the Intimate Images Protection Act must: a.

indicate on their Notice of Claim that the claim is pursuant to the Intimate Images Protection Act; and,

b.

file at least two business days before the date of a hearing in Provincial Court information about whether there is any protection order or publication ban made by the Civil Resolution Tribunal or the Supreme Court of British Columbia in relation to the subject matter of the claim.

2. Parties must also read and comply with SM CL 03 Affidavits & Exhibits and Documents For Settlement Conferences For Use in Small Claims Proceedings History of Practice Direction •

Original practice direction dated January 29, 2024.

I make this practice direction pursuant to my authority under the Provincial Court Act, R.S.B.C. 1996, c. 379, and the Small Claims Act, R.S.B.C. 1996, c. 430.

Melissa Gillespie Chief Judge Provincial Court of British Columbia

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Federal Court NOTICE TO THE PARTIES AND THE PROFESSION The Use of Artificial Intelligence in Court Proceedings December 20, 2023 The Court expects parties to proceedings before the Court to inform it, and each other, if they have used artificial intelligence to create or generate new content in preparing a document filed with the Court. If any such content has been included in a document submitted to the Court by or on behalf of a party or a third-party participant (“intervener”), the first paragraph of the text in that document must disclose that AI has been used to create or generate that content.

This Notice requires counsel, parties, and interveners in legal proceedings at the Federal Court to make a Declaration for AI-generated content (the “Declaration”), and to consider certain principles (the “Principles”) when using AI to prepare documentation filed with the Court. The Court offers below an explanation of why the Declaration and Principles are in the interests of justice, the specific type of AI to which this Notice applies, and how the Court will update its approach to the use of AI at the Court in the future.

1. Declaration for AI-Generated Content This Notice applies to all documents that are (i) submitted to the Court, and (ii) prepared for the purpose of litigation. For greater certainty, this Notice does not apply to Certified Tribunal Records submitted by tribunals or other third party decision-makers.

The Court recognizes that AI may offer substantial benefits in the preparation of documents. However, the Court also has obligations to maintain the integrity of judicial proceedings, safeguard public confidence in the justice system, and uphold the rule of law.

To ensure that the Court understands how AI has been used, any document prepared for the purpose of litigation, and submitted to the Court by or on behalf of a party or intervener that contains content created or generated

by AI, must include the Declaration.

The Declaration shall be made in the first paragraph of the document in question, for instance, the first paragraph of a Memorandum of Fact and Law or Written Representations. An example of the Declaration follows: Declaration Artificial intelligence (AI) was used to generate content in this document.

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Déclaration L'intelligence artificielle (IA) a été utilisée pour générer au moins une partie du contenu de ce document.

2. Principles on the Use of AI The Court recognizes that emerging technologies often bring both opportunities and challenges. Significant concerns have recently been raised regarding the use of AI in Court proceedings, including in relation to “deepfakes,” the potential fabrication of legal authorities through AI, and the use of generative decision-making tools by government officials. It is incumbent on the Court and its principal stakeholders to take steps to address such concerns.

Further, the Court understands that there are both ethical and access to justice issues regarding a lawyer’s use of AI when their client may not be familiar with AI and its various applications. Before using AI in a proceeding, the Court encourages counsel to consider providing traditional, human services to clients if there is reason to believe a client may not be familiar with, or may not wish to use, AI. The following principles are intended to guide the use of AI in documents submitted to the Court: Caution: The Court urges caution when using legal references or analysis created or generated by AI, in documents submitted to the Court. When referring to jurisprudence, statutes, policies, or commentaries in documents submitted to the Court, it is crucial to use only well-recognized and reliable sources. These include official court websites, commonly referenced commercial publishers, or trusted public services such as CanLII. "Human in the loop": To ensure accuracy and trustworthiness, it is essential to check documents and material generated by AI. The Court urges verification of any AI-created content in these documents. This kind of verification aligns with the standards generally required within the legal profession.

3. Explanation of this Notice Through consultations with the stakeholders, the Court has developed its Declaration and Principles concerning certain uses of AI, including large language models (“LLMs”).1 The Court will update this guidance periodically as the Court’s understanding of AI evolves.

1. The term “large language model” refers to a type of AI capable of processing and generating human-like text based on vast amounts of training data.

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The Declaration requirement only applies to certain forms of AI, defined as a computer system capable of generating new content and independently creating or generating information or documents, usually based on prompts or information provided to the system. This Notice does not apply to AI that lacks the creative ability to generate new content. For example, this Notice does not apply to AI that only follows pre-set instructions, including programs such as system automation, voice recognition, or document editing.

It bears underscoring that this Notice only applies to content that was created or generated by AI. The Court recognizes that counsel have duties as Officers of the Court.

However, these duties do not extend to individuals representing themselves. It would be unfair to place AI-related responsibilities only on these self-represented individuals, and allow counsel to rely on their duties.

Therefore, the Court provides this Notice to ensure fair treatment of all represented and self-represented parties and interveners.

The Court recognizes both the risks and benefits of AI, including “hallucinations”2 and the potential for bias in AI programs, their underlying algorithms, and data sets. The Court recognizes that counsel, parties, interveners and the administrative bodies whose decisions they may challenge may increasingly rely on — or be impacted by — AI. This guidance has benefited from feedback received from various stakeholders. The Court is committed to full transparency and continuing consultations with members of the Bar and other stakeholders on the development of future iterations of this guidance and related policies.

For its part, the Court will not use AI, and more specifically automated decision-making tools, to make its decisions or render its judgments, without first engaging in public consultation. For more information, please consult the <Interim Principles and Guidelines on the Court’s Use of Artificial Intelligence>.

Paul S. Crampton Chief Justice

1. “Hallucination” is a term used to refer to facts, citations, and other content generated by an AI that are not true, and have been fabricated by an AI in response to a prompt or request.

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Artificial Intelligence Interim Principles and Guidelines on the Court’s Use of Artificial Intelligence December 20, 2023 Federal Court will follow the Principles and Guidelines in this policy when using Artificial Intelligence (AI). The Court will not use AI, and more specifically automated decision-making tools, in making its judgments and orders, without first engaging in public consultations. For greater certainty, this includes the Court’s determination of the issues raised by the parties, as reflected in its Reasons for Judgment and its Reasons for Order, or any other decision made by the Court in a proceeding.

For information regarding the use of AI by parties, self-represented litigants and interveners, please refer to the Notice on the of Artificial Intelligence in Court Proceedings.

BACKGROUND The Federal Court’s Strategic Plan 2020-2025 references the Court’s interest in exploring the use of AI. After consultations with stakeholders, the Court has developed the following principles and guidelines to guide the potential use of AI by members of the Court and their law clerks.

The Court will begin investigating and piloting potential uses of AI for internal administrative purposes through its Technology Committee. For example, the Court will pilot a new process for translating decisions written by members of Court by using a form of AI to translate text. A translator and/or jurilinguist will review these AI-assisted translations to ensure that the translation accurately reflects the original reasons and outcome.

The Court understands the potential benefits, and risks, of using AI. In particular, the Court recognizes that AI can improve the efficiency and fairness of the legal system. For instance, it can assist with tasks such as analyzing large amounts of raw data, aiding in legal research, and performing administrative tasks. This can save time and reduce workload for judges and Court staff, just as it can for lawyers.

Other examples of potential benefits for all stakeholders in the justice system include streamlining aspects of case management, improving the accuracy and thoroughness of legal research, helping self-represented litigants to navigate Court procedures, and supporting alternative dispute resolution.

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Alongside these potential benefits, the Court acknowledges the potential for AI to impact adversely on judicial independence. The Court also recognizes the risk that public confidence in the administration of justice might be undermined by some uses of AI. The Court will exercise the utmost vigilance to ensure that any use of AI by the Court does not encroach upon its decision-making function.

The Court will continue to consult experts and stakeholders as its understanding of AI evolves.

PRINCIPLES The following principles will guide the potential use of AI by members of the Court and their law clerks: •

Accountability: The Court will be fully accountable to the public for any potential use of AI in its decision-making function;

•

Respect of fundamental rights: The Court will ensure its uses of AI do not undermine judicial independence, access to justice, or fundamental rights, such as the right to a fair hearing before an impartial decision-maker;

•

Non-discrimination: The Court will ensure that its use of AI does not reproduce or aggravate discrimination;

•

Accuracy: For any processing of judicial decisions and data for purely administrative purposes, the Court will use certified or verified sources and data;

•

Transparency: The Court will authorize external audits of any AIassisted data processing methods that it embraces;

•

Cybersecurity: The Court will store and manage its data in a secure technological environment that protects the confidentiality, privacy, provenance, and purpose of the data managed; and,

•

“Human in the loop”: The Court will ensure that members of the Court and their law clerks are aware of the need to verify the results of any AI-generated outputs that they may be inclined to use in their work.

GUIDELINES For the potential use of AI by members of the Court and their law clerks, the Court will adhere to the following guidelines: 1. The Court will not use AI, and more specifically automated decisionmaking tools, in making its judgments and orders, without first engag-

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ing in public consultation. For greater certainty, this includes the Court’s determination of the issues raised by the parties, as reflected in its Reasons for Judgment and its Reasons for Order, or any other decision made by the Court in a proceeding; 2. The Court will embrace the Principles listed above in any internal use of AI; and, 3. If a specific use of AI by the Court may have an impact on the profession or public, the Court will consult the relevant stakeholders before implementing that specific use. ЖЖЖ

Supreme Court of British Columbia Criminal Practice Direction Title: Procedure for Applications to Cary or Revoke a Publication Ban Under s. 486.51 of the Criminal Code Effective Date: January 22, 2024 Number: CPD-7 INTRODUCTION This practice direction sets out the general procedure for applying under s. 486.51 of the Criminal Code to vary or revoke a publication ban made under s. 486.4 or 486.5 of the Code. Section 486.51 was enacted on October 26, 2023, and provides that a person who is the subject of an order made under either of those provisions may request that the prosecutor apply on their behalf to have the order varied or revoked. The person who is the subject of the order may also make the application themselves, or another person may apply on their behalf.

A practice direction that is substantively identical to this one is being issued in the Provincial Court.

DIRECTION 1. This practice direction applies to an application brought under s. 486.51 of the Criminal Code to vary or revoke an order made under s. 486.4 or 486.5.

2. According to s. 486.51(1) and (2), an application may be made by: a.

Crown counsel, upon the request of a person who is the subject of the order;

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b.

the person who is the subject of the order; or

c.

another person acting on behalf of the person who is the subject of the order.

3. Generally, the application should be made to the court that made the order under s. 486.4 or 486.5, except: a.

if a trial or pre-trial proceedings have taken place in the Supreme Court of British Columbia, or are ongoing, the application should be made in Supreme Court; or

b.

if the court to which the application under s. 486.51 is made orders or directs that the application should be made to a different court because the court is unable to act in the circumstances, such as where, for example, the other court has more recently dealt with the proceedings or has dealt with the proceedings on a broader evidentiary basis.

The application will be determined by a judge as described in paragraph 11 of this practice direction.

4. An applicant may commence an application by completing the “Applicant” and “Application Details” sections of Form PCR318 (Application to vary or revoke publication ban under section 486.51) and submitting the completed form to the applicable court registry for filing. Form PCR318 is available in electronic form for download at Criminal Court Forms (gov.bc.ca) or from the registry.

5. Submission of the application by email is preferred, with the subject line: “Publication Ban – Application to Vary or Revoke”. The email addresses for all British Columbia court registries may be found at: Courthouse locations - Province of British Columbia (<gov.bc.ca>).

6. If the applicant is unable to submit the application by email, they may do so in person at the court registry counter or by fax.

7. If the applicant is a person identified in paragraph 2b or 2c above, and is submitting the application by email, the applicant will need to provide satisfactory evidence of their identity and should contact the court registry to do so.

8. If the applicant is a person identified in paragraph 2c above, the applicant must provide: a.

confirmation in writing from the person who is the subject of the order that the person wishes the applicant to apply on their behalf; or

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an explanation as to why it is unnecessary or inappropriate to require the person who is the subject of the order to provide such written confirmation.

The court may also require further information in order to verify that the application is being made at the request of the person who is the subject of the order.

9. If the applicant is a person identified in paragraph 2b or 2c above, the court registry receiving the application will provide a copy of it to Crown counsel. Notification of Crown counsel is necessary at the outset to ensure that the court has the information about the underlying proceedings, and any related proceedings, to determine whether varying or revoking the order that is the subject of the application may affect the privacy interests of another person as described in s. 486.51(2).

10. Within 14 days of receipt of an application, Crown counsel should complete the “Crown Counsel” section of the form and submit the form by email to the appropriate court registry. If Crown counsel cannot reasonably respond within 14 days, they may apply to extend the time for response.

11. The application will be determined by the judge who conducted or is conducting the trial, sentencing, or pre-trial proceedings, or is assigned to do so. If that judge is no longer available or where no particular judge is assigned to the underlying matter, the application will be determined by the Chief Justice, Associate Chief Justice, or their designate.

12. If the judge determines, based on the information in the form, that the order that is the subject of the application may be varied or revoked as sought by the applicant, the judge may grant the application and that order will be noted on the relevant section of the form.

13. If the judge determines that a hearing is required, the applicant will be notified, and should contact Supreme Court Scheduling to arrange for a hearing before that judge or, if that judge is unable to act or unavailable for a hearing, another judge designated by the Chief Justice or Associate Chief Justice.

14. If the applicant is someone other than Crown counsel, Crown counsel will be notified of the hearing date.

15. Crown counsel is expected to be prepared at the hearing to make submissions regarding the factor set out in s. 486.51(4).

Heather J. Holmes Associate Chief Justice

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British Columbia Court of Appeal Practice Directive (Civil and Criminal) Title: Publication Bans, Sealing Orders, and Anonymization Orders Issued: December 20, 2023 Effective: December 20, 2023 Cite as: Publication Bans, Sealing Orders, and Anonymization Orders (Civil and Criminal Practice Directive, 20 December 2023) For civil and criminal appeals, the Notice of Appeal (civil Form 1) and the Notice of Appeal or Leave to Appeal (criminal Form 1) require parties to advise the Court of Appeal of any publication bans, sealing orders, or anonymization orders in place in the court or tribunal below. When the initiating Form is filed, the appellant must immediately write to the Registrar and provide copies of those orders and an explanation of their effect.

If a publication ban, sealing order, or anonymization order applies in the Court of Appeal, the parties must indicate the existence of those orders on the cover of their appeal record, statement, factum, appeal books, and other books.

Publication bans and anonymization orders issued by the court or tribunal below typically endure in the Court of Appeal. This means there is usually no need to seek a new publication ban or anonymization order specifically for appeal proceedings.

However, when a court or tribunal below initializes or redacts party names in reasons for judgment on a discretionary basis and in the absence of a statutorily imposed publication ban or anonymization order that requires it, the Court of Appeal will not always do the same. In those circumstances, if a party wishes to have reasons for judgment initialized or party names redacted in the Court file they must apply to a justice in chambers for an anonymization order. See section 1.5 of the Court record and courtroom access policy for further information.

Sealing orders only apply to the records of the court or tribunal that issues the sealing order. If a party wishes to have materials filed in the Court of Appeal sealed, they must immediately apply to a justice in chambers for a sealing order when the materials are filed.

On request or where appropriate, the Registrar may require the appellant to file an unredacted Notice of Appeal and temporarily seal all or part of the Court file pending the outcome of an application for a sealing or

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anonymization order, or to allow the parties to promptly provide copies of such orders.

Chief Justice L.S. Marchand Court of Appeal for British Columbia

History •

Replaces the Civil Practice Directive titled Publication Bans and Sealing Orders, dated 18 July 2022 and the Criminal Practice Note titled Publication Bans, dated 24 July, 2012.

•

Replaces the Civil Practice Directive titled Publication Bans and Sealing Orders, dated 4 June 2018.

ЖЖЖ

Policy of the Provincial Court of British Columbia Bans on Publication Approved Date: January 31, 2024 Policy Code: BAN-01 Scope of Application: Applies to Provincial Court of British Columbia Proceedings PURPOSE OF POLICY To provide a general overview regarding examples of publication bans under the Criminal Code, Youth Criminal Justice Act, Sex Offender Information Registration Act, and Provincial Court Act. POLICY 1. Overview 1.1 While the media is, in general terms, entitled to publish information about proceedings in Court, there are exceptions to this right. The Court may, and frequently must, impose bans on the publication of information to protect the fairness and integrity of a trial, the privacy (viewed in relation to dignity) and safety of a victim or witness, the identity of a young offender, or other important public interests.

1.2 The presiding judge has the inherent jurisdiction to control court proceedings to ensure the fairness of the trial process. In addition, certain

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statutes contain provisions that either permit or require publication bans e.g. the Criminal Code and the Youth Criminal Justice Act. (Some statutes also contain provisions that restrict disclosure of information such as sections 24, 74(2)(e.1) and 75 of the Child, Family and Community Services Act.) 1.3 This area of law is a complex one and journalists covering legal proceedings should familiarize themselves with the subject. If in doubt, it is strongly recommended that media personnel seek legal advice on whether publication is permitted. There may be serious consequences for breaching a publication ban.

1.4 Court staff attempt to flag publication bans imposed in lengthy matters but the obligation remains on the media to ensure that they are aware of, and in compliance with, any ban that has been ordered.

1.5 Every journalist working within the court system must be constantly vigilant regarding the possibility that there is some form of publication ban in effect for the proceeding which is being covered in court. A breach of a publication ban may in some instances be an offence under legislation; other breaches can constitute a contempt of court, punishable by the court.

1.6 The following list of bans is not intended to be exhaustive, nor to replace reference to the specific statutory provisions. The Supreme Court of British Columbia also has a list of some publication bans on its website.

1.7 There are essentially three types of publication bans. First, there are automatic bans which are in effect by operation of statute and do not require any court order or application by a party to the case in order to be effective. Second, there are bans that statutes require a judicial officer to order if requested by a party (e.g.: Criminal Code, s. 517 when a publication ban is sought by the accused). Third, there are discretionary bans which must be specifically sought and ordered by the Court. Examples of each of these types of bans are set out below.

2.

Automatic Bans

2.1 Criminal Code •

Section 278.95 — makes it a criminal offence to publish, broadcast or transmit information from certain applications or hearings in cases involving sexual offences held to determine whether evidence regarding the prior sexual conduct of a complainant can be admitted during the trial. The ban also applies to the decision of the judge on the application unless the judge determines the decision can be published.

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•

Section 278.9(1) — makes it a criminal offence to publish, broadcast or transmit information from certain applications or hearings to obtain records pertaining to a complainant or a witness. A hearing under s. 278.4(1) and s. 278.6(2) may be held in cases involving sexual offences. The ban also applies to the decision of the judge on the application unless the judge determines the decision can be published.

•

Section 542(2) — makes it a criminal offence to publish, broadcast or transmit an admission or confession that was given in evidence at a preliminary inquiry unless the accused has been discharged or, if the accused is ordered to stand trial, the trial has ended.

•

Section 672.51(11) — bans the publication of any disposition information provided to the court during the disposition hearing held after a verdict of not criminally responsible on account of mental disorder or unfit to stand trial is given in respect of an accused where the information has been withheld from the accused or disclosure would be seriously prejudicial to the accused.

2.2 Youth Criminal Justice Act •

Section 110 — provides that no person shall publish the name of, or information related to, a person if it would identify that the person was a young person dealt with under the YCJA. However, publication is permitted, for example, when a person has received an adult sentence.

•

Section 111(1) — provides that no person shall publish the name of someone under the age of 18 who has been a witness or victim in connection with an offence committed or alleged to have been committed by a young person.

2.3 Sex Offender Information Registration Act (SOIRA) •

Section 16(4) — provides that, with limited exceptions, no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA.

2.4 Provincial Court Act •

Section 3(6) and 3(7) — section 3(6) prohibits publication in relation to a family or children’s matters before the Provincial Court of anything that would reasonably be likely to identify the child or party. Section 3(7) indicates that, despite section 3(6), a report, comment or analysis concerning a proceeding may be published in

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a document designed primarily to assist those engaged in the practice of law or in legal or social research.

2.5 Intimate Images Protection Act •

Section 13 — provides that in an application under s.5 or a claim under s.6 the decision maker must order a ban on publication of the name of the applicant or claimant, and the respondent in certain circumstances set out in the Act and the Intimate Images Protection Regulation.

3. Bans Mandatory on Application There are statutory bans that a judicial officer is required to order if requested by a party specified in the statute.

3.1 Criminal Code •

Section 486.4(1) — an order may be made in cases involving sexual offences to ban publication, broadcast or transmission of any information that could identify a victim or witness.

•

Section 486.4(2) — on application by the victim, prosecutor or witness an order shall be made in cases involving sexual offences to ban publication, broadcast or transmission of any information that could identify a complainant or witness under the age of 18.1

•

Section 486.4(2.2) — on application by the victim or prosecutor an order shall be made to ban publication, broadcast or transmission of any information that could identify a victim who is under the age of 18 in connection with an offence committed by an adult offender.

•

Section 517 — on application by the accused an order shall be made to ban publication, broadcast or transmission of the evidence, information or representations made to the court during a bail hearing as well as the reasons given by the judge until the accused is discharged or, if ordered to stand trial, the trial has ended.

•

Section 539 — on application by the accused, prior to commencing the taking of evidence, a judge shall order a ban that provides that evidence given at a preliminary inquiry not be published, broadcast or transmitted until the accused has been discharged or, if ordered to stand trial, the trial has ended.

1. Those who are the subject of a publication ban may have the right to apply to revoke or vary a publication ban order.

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4. Discretionary Publication Bans The following is a list of publication bans that are discretionary as an order of the court is required before such a ban is in place. As a result of a Supreme Court of Canada decision in Dagenais v. CBC, [1994] 3 S.C.R. 835, judges must weigh the competing Charter-protected interests when they are considering exercising their discretion to impose a ban on publication of information regarding a matter before the Court. (See also R. v. Mentuck, 2001 SCC 76, Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, and Sherman Estate v. Donovan, 2021 SCC 25.). They must consider arguments raised by the media (freedom of expression) and by the person seeking the ban (right to a fair trial; security of the person) and then impose the minimal ban necessary to protect the fundamental rights in jeopardy.

Common law authority of a court — the court has common law authority to govern its own processes, which permits it to ban publication of all or part of a proceeding or to exclude the public from the courtroom.

4.1 Criminal Code •

Section 486(1) — an order may be made to exclude the public from the courtroom for all or part of the proceeding.

•

Section 486.4(1)(a)(i) — an order made under this section can direct that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of an offence involving publication of an intimate image without consent.

•

Section 486.5(1) — unless an order has been made under s. 486.4, an order made under this section bans publication, broadcast or transmission of any information that could identify a victim or a witness. Pursuant to s. 486.5(6), an order can be made to direct that the application for a ban under s. 486.5 be heard in private.2

•

Section 486.5(2) — an order bans publication, broadcast or transmission of any information that could identify a justice system participant who is involved in proceedings in respect of an offence referred to in s. 486.5(2.1).

•

Section 517 — on application by the prosecutor an order may be made to ban publication, broadcast or transmission of the evidence, information or representations made to the court during a bail hearing as well as the reasons given by the judge until the

2. Those who are the subject of a publication ban may have the right to apply to revoke or vary a publication ban order.

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accused is discharged or, if ordered to stand trial, the trial has ended.

•

Section 539 — on application by the prosecutor, prior to commencing the taking of evidence, a judge may order a ban that provides that evidence given at a preliminary inquiry not be published, broadcast or transmitted until the accused has been discharged or, if ordered to stand trial, the trial has ended.

4.2 Youth Criminal Justice Act •

Section 132 — permits an order to exclude the public from the courtroom for all or part of the proceeding.

Contact: Legal Counsel

Policy History Approved by: Governance Committee History of Revisions •

Reformats but does not change content of Section 5 of “Policies Regarding Public and Media Access in the Provincial Court of British Columbia” February 2011, updated October 2011, and November 2012.

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December 16, 2020: amended further to Bill C-75 changes to the Criminal Code and other updates regarding publication bans.

Divided into 3 sections for automatic bans, bans mandatory on application, and discretionary publication bans.

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September 13, 2021: amended section 4 to reference Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 and Sherman Estate v. Donovan, 2021 SCC 25.

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August 3, 2023: amended section 3 to remove reference to section 486.4(3) of the Criminal Code further to R. v. Coban, 2022 BCSC 14.

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January 31, 2024: amended section 2 to reference the Intimate Images Protection Act and Intimate Images Protection Regulation.

Amended section 2.3 to add the wording “with limited exceptions”; added footnotes to sections 3.1 and 4.1; and amended section 4.1 to reference section 486.4(1)(a)(i) of the Criminal Code further to Bill S-12 An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act.

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NOS DISPARUS

By R.C. Tino Bella

Douglas J. Marion, K.C.

“They don’t make ’em like Doug anymore” were the words uttered by one of Douglas’s longtime colleagues after reflecting upon his sudden passing on Sunday, December 10, 2023. Those fortunate enough to know Doug appreciate exactly what is meant by that sentiment. He was the most kind, compassionate and fiercely loyal man, not to mention one of the most gifted and celebrated criminal practitioners in Vancouver Island’s history.

Doug is survived by his two sons Christopher and Timothy, his three grandchildren Lucas, Alyssa and Ariana, his three sisters Joyce, Enid and Laura, and many nieces and nephews. He was predeceased by his parents Catherine and George, brother Keith and nephew Larry Jr. Doug was a proud, loving father and grandfather and a selfless and loving brother and uncle. He enjoyed thoroughly exploring, sharing and writing about his family’s genealogy so they could understand their history and honour their ancestry. He wrote extensively researched biographies of the war histories of many of his close and extended family members. He was particularly interested in the war history of his father, who was a chief petty officer on the Uganda ship during World War II. He was able to capture the adrenaline, fear and touching moments of battle (including love letters from his father to his mother from the battlefield).

Since being called to the bar in 1984, Doug was involved in criminal litigation, principally as criminal defence counsel on northern Vancouver Island. He proudly conducted the first criminal jury trial ever held in Campbell River. In fact, by the time of his passing, he had rarely lost any of the countless criminal jury trials he conducted. Like most people who encoun-

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tered Doug, jurors seemed to experience a sort of gravitational pull toward him. He possessed a unique interpersonal appeal that could instantly ease tension and create a sense of connection. Simply put, everyone wanted to be on his team.

Doug was a mentor to many young lawyers. He would habitually spend hours reviewing cases with junior counsel nervous about their upcoming trials. He was a willing participant in mock cross-examinations, teaching his mentees how to respond to the unexpected answer. He happily observed innumerable bail and sentencing hearings in order to provide feedback on how to improve. He was on speed dial for countless lawyers when they encountered tricky procedural or substantive issues mid-trial. He took pride in being the “go-to guy” and had an exceptional ability to instill confidence even when his students metaphorically fell flat on their faces. Most of these contributions were carried out quietly, outside of public attention.

For decades, Doug had been essential to the administration of legal aid on Vancouver Island. He served as the local agent facilitating, in the most tangible of ways, access to justice for low-income accused in the northern part of the Island. As one of the most sought-after counsel on the Island, he was committed to serving legal aid clients and refused to shirk what he viewed as a duty to uphold the rights of the most socially and economically disadvantaged members of our society. The practice of law was never a profit-driven endeavour for Doug.

Outside of his professional life, Doug’s fondest memories were of travelling winding roads on his motorcycle around the United States and Canada with his lifelong friends, wind blowing past his face and music blaring through his headphones. He would film his rides and set them to music on his return. A “RoadKill Production” was a treat to enjoy, as you could feel the thrill of being on the ride with him, set to songs such as “Born to Be Wild”.

Doug will be remembered as larger than life and as a truly unique individual who made the world better for those whose lives were touched by his.

Sarah Runyon and Enid Marion

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The Honourable Selwyn Reginald Romilly

Selwyn Reginald Romilly was born to Reginald and Thelma Romilly in Trinidad on … well, ordinarily, a date of birth would appear here. However, Selwyn and the concept of “ordinary” were, happily, not well acquainted. In his quite remarkable curriculum vitae, following the words “date of birth”, and exposing the kind of twinkle-eyed cheekiness he was so loved for, he inserted, “too long ago to remember”. It seems Selwyn, whose love for gardening was well known, was more of a perennial than an annual.

In Trinidad, Selwyn attended the prestigious Queen’s Royal College, whose motto, “Certant omnes sed non omnibus palmam [All strive, but the prize is not for all]”, inspired his lifelong passion for working hard to succeed, despite the many obstacles he faced. Selwyn was one of only about 100 students who qualified for a full academic scholarship at this prestigious school. Selwyn excelled in his studies. That much is likely not surprising to those who knew him later in life. What you may find more compelling, given his well-earned reputation as a legal scholar, was that he was also known for his prodigious athleticism. Selwyn was fast. He would consolidate his talent as a sprinter when his mother would send him to the market at an impossibly inconvenient time. When he was late for school he would make up lost seconds by jumping over fences and running through yards, his blazing heels deftly avoiding a nip by some cantankerous canine. Unlike most of us who simply tell exaggerated tales of youthful athletic glory, Selwyn actually lived them. While he was in school, Selwyn was the last junior to beat the famed Trinidadian sprinter Wendell Mottley. Mottley would use the defeat as fuel to go on to hold three world indoor sprint records as well as taking home two Olympic medals at the 1964 Olympics. Selwyn had other mountains to conquer.

Selwyn’s father, a school principal, had always insisted that his children obtain a high level of education. Selwyn’s first choice was to study in England. However, reports of dreary bone-chilling winters would soon persuade him he was more suited for Vancouver’s dreary (simpliciter) winters.

He obtained a bachelor of arts degree from UBC in 1963. He would soon be admitted into the law school at UBC. At the time, he was only the fourth black person to be admitted into the law school. He would be the second to

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actually graduate (after the first, J.S. Donaldson, who graduated in 1963).

Selwyn was followed into law by his brother, Valmond, who would also go on to become a judge. Mervyn, their youngest brother, and Althea, their sister, would eventually join their siblings in Vancouver to attend school.

There was a group of West Indians attending UBC during that time. Legend has it that International House was famous (infamous?) for the parties that would be held there. The intoxicating rhythms of calypso, mento, ska and rocksteady music would bring revellers from all over campus and beyond. It was here where Selwyn, no doubt flashing that cosmic smile and employing his considerable charm, would steal the heart of his future wife, Lorna. It would take a little longer to persuade her very conservative Mennonite family that he was a worthy suitor. He would, of course, eventually meet this challenge. For those in the know, this successful campaign was quite a feat for the times.

After graduating from UBC law school in 1965, he found that no law firm in the area would offer him articles. This was a time, after all, when there were still jurisdictions in North America where interracial marriage was a criminal offence. Selwyn travelled to Kamloops to complete his articles.

Later, he found himself travelling to Prince Rupert to see about a position there when he stopped in Smithers and took a meeting with the only lawyer in the area. That lawyer was retiring and asked Selwyn to consider taking over his practice. Selwyn quickly accepted this offer. Eagerly, he called the love of his life, Lorna, and asked her to move with him to Smithers and get married. The question, infused with excitement and the promise of a golden future, would be met with a long pause and the decidedly less enthusiastic response “I will get back to you.”

Of course, as the story goes, Lorna did agree. In Smithers, as the only lawyer for miles around, Selwyn would quickly become conversant with many areas of the law. The presence of a black man living with a blonde white lady would tempt local children to ride their bicycles by their house just to catch a glimpse of this unique spectacle. They would later fill their tiny house with the addition of two beautiful children.

Clearly, Selwyn’s talents were not going unnoticed. In 1972, Deputy Attorney General Dave Vickers was in the process of reorganizing the judicial system and replacing all of the lay magistrates with trained lawyers. Selwyn was offered a position on the bench, an offer that he initially rejected.

After all, he was in his early 30s and was enjoying the fruits of a thriving legal practice. Eventual acquiescence to repeated requests followed in 1974 when he became the Honourable Provincial Court Judge Selwyn Romilly and assigned to sit in Terrace. He was a mere 34 years old. Selwyn was the

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first black person appointed to any court in British Columbia. The local newspaper ran the headline, “First Negro judge appointed for B.C.” Hard to believe but true. He served in Terrace until, in 1978, he was transferred to the Burnaby Provincial Court to preside there.

Being the only black judge in the province came with certain challenges.

One day, while Selwyn was sitting in the old Burnaby Provincial Courthouse, a prosecutor possessed the temerity to ask Selwyn if he would like to recuse himself from dealing with the next accused scheduled to appear. That accused happened to be a black man. Selwyn paused, waiting for more details on this unusual request but none were to come. Essentially, the inference was being drawn that there existed some inherent bias that might taint the perception of justice being done. Selwyn’s quick wit did not fail him when he immediately pointed out that, if that logic were to apply broadly, he would be the busiest judge in the province as he would be required to conduct every trial for every Caucasian accused. Incredible times.

Selwyn distinguished himself on the Provincial Court. He was so well respected that in 1995 he was elevated to the Supreme Court of British Columbia in Vancouver. He was the first black person to be named to this court. His contributions to the legal profession and to legal education were profound. He conducted seminars and workshops for judges, and he presented papers to the Canadian Bar Association, the National Justice Institute, the National Criminal Law Program, the Federation of Law Societies of Canada and many other groups.

Selwyn was known for his prolific research skills, an encyclopedic knowledge of the law and, invaluably, his ability to set out the law on a particular matter that captured the historical context of the issue. There is likely not one judge or lawyer in the province who has not turned to a Romillypenned judgment in order to educate themselves on a point of law.

It is remarkable statement, and quite illustrative of the measure of the man, that there may never be another who can claim the honour of serving the community as a judge for as long as he did. Over 40 years. It is just not possible in this day and age. He was an incomparable force.

Over the years, Selwyn received numerous distinctions and awards for his contributions to diverse communities. He was a tireless educator of the young. He mentored numerous students and clerks of the court and participated as a guest instructor in articling courses for new lawyers.

In stark contrast to his days spent toiling within the boundaries of an understandably sober and formal justice system, Selwyn could light up an old-fashioned fête like no one else. His annual trips to celebrate Carnival in Trinidad were eagerly anticipated. Substituting his judicial robes for a mesh

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tank top and white shorts (the length accommodating a proper display of his enduring muscular limbs), he would dance until the morning replaced the night.

When Selwyn retired in 2015, it was not by choice. The mandatory retirement age of 75 was a rule that the eminent jurist could not escape. To those who were perpetually fascinated by his perpetually youthful appearance, they now knew his chronological age. Of course, he maintained the hope that folks would eventually forget the undeniable math and he could go back to being the ageless wonder that he was.

One of Selwyn’s proudest achievements was being involved in the creation of the St. Pierre, Romilly, Nathanson Entrance Award in Law for Black Students at the Peter A. Allard School of Law. The entrance award goes to three domestic students entering the J.D. program who identify as black, demonstrate financial need and have a history of community service or volunteerism.

When institutions and societies progress toward a measure of real inclusivity, someone has to be the first. Selwyn was accustomed to being the first. The many that have followed stand on his broad shoulders. Nonetheless, he never felt like he was owed a debt or deserved recognition for his accomplishments. He was a humble man, legitimately unaware of the oversized space that he occupied in vastly different communities. His trailblazing, friendships, mentorship, advocacy, support and just simple kindness have led to important advancements in legal jurisprudence, in the diversity of the bench and bar and in the development of young lawyers in British Columbia. There is no hyperbole in saying that his simple existence in this world has enhanced the health of our entire community.

Upon Selwyn’s passing hundreds of well-wishers sent messages explaining how they were impacted by his larger-than-life presence. Dignitaries, from the prime minister of Canada, to Trinidadian diplomats, to legal professionals from around North America, all took the time to personally express their condolences. Just as important though, to Selwyn, would have been the many messages from the regular folks he came into contact with on a daily basis. For instance, a message was delivered to the family by someone who did not even know Selwyn’s last name. They explained that they had met Selwyn on their respective daily walks around the seawall.

Selwyn would always take the time to stop, inquire about their day, tell a funny joke and, of course, laugh mischievously at that joke. They had seen the announcement in the newspaper and recognized his smiling face. They expressed surprise that he was also an eminent retired judge. To them, he was just an incredibly kind soul and a warmly anticipated interaction in an

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otherwise busy city where people have forgotten how to slow down and uplift a stranger’s day.

Selwyn certainly made the best of his time on this spinning rock. He was a rare gift, the kind of gift that will keep on giving. They say that the dear departed never really depart at all. They live on in the memories, the hearts and the souls of those who were fortunate enough to know them. I like that sentiment, and I think that Selwyn would too.

The Honourable Judge David St. Pierre ЖЖЖ

Kelly Connell, K.C.

“I saw a picture of you ... those were the best days of my life.”

—“Back on the Chain Gang”, Chrissie Hynde, 1982 Although Kelly sang this song with verve and passion—she was no “pretender”—seeing a picture of Kelly does bring a smile and harkens back to the “happiest days”. Kelly truly lit up the lives of everyone she met—and what a life she had.

Born in 1959, in the “Royal City” of New Westminster, to William and Katherine Connell, Kelly was a welcome addition to her sister, Kim (Moscato). Kelly and Kim remained close throughout Kelly’s life.

In keeping with its Britannic roots, New Westminster has long celebrated May Day, including the crowning of the May Queen. The first May Queen in New Westminster was crowned in 1870 and today New Westminster is the only location outside the United Kingdom that continues this tradition.

Needless to say this is a big deal in New Westminster and Kelly was crowned Queen of the May in 1972. Kelly was a bright student and graduated with honours from New Westminster Secondary School. From there she attended at UBC, ultimately entering the law school in 1982.

She immediately endeared herself to the student body at UBC Law, charming her way into a band with her classmates. This band, then known as the “Negligents”, included Howard Mickelson, Neil Melliship, Paul Seale, Ray Gill and Zack Werner (he would later have fame as a judge on “Canadian Idol”). In less politically correct days, Kelly was known as the “Negligee”! The band performed at various events, such as the Law Follies, and

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for a brief time, its members considered collectively pursuing a career in music (check out their performance on the 1982 CBC talent show “With It”).

However, common sense prevailed and the law won!

Following her articles with Burke Tomchenko (as it then was), Kelly bravely opened a practice with Theresa Stowe in Gastown and carried on as Connell Stowe. At this point, early in her career, a handsome bicycle courier, Al Kleininger, came into her life. Kelly met Al at the old Marine Club in 1988. Maybe it was his dreadlocks (long since gone) or their mutual love of alternative rock music that brought them together for what was an enduring 34-year romance. Kelly and Al welcomed their son, Liam Connell, into the world in December 1997, followed in 2000 by another son, Eamon Connell. Kelly was a very supportive mom. For a while she home-schooled both boys before they enrolled in Stratford Hall in East Vancouver, where Kelly was to be actively involved in its parents’ association. Liam has now followed in his mother’s footsteps pursuing his law degree and Eamon is pursuing a career in construction.

Following the recommendation of a working group in 2005, the government of British Columbia endorsed the creation of a new court on the Downtown Eastside. This court was to take an integrated approach to the delivery of justice in an effort to better access and manage offenders. The Downtown Community Court (the “DCC”) provided not only legal counsel but also partnered with health and social agencies to take a problem-solving approach to crime in an effort to address the underlying problems that often brought the offenders into the criminal law system to start with. To provide counsel for these offenders was going to require a lawyer who was not only good in the law, but also compassionate for their clients and diligent in pursuing assistance for them.

Kelly was selected to be the lead defence counsel of the DCC. She performed the job with her usual diligence and enthusiasm, helping those in the Downtown Eastside navigate the justice system and access outside assistance. The approach by the judges, including Judges Gove, Burgess and Werier, as well as Crown counsel, was truly a team approach. Judge Burgess said about Kelly that she was the heart and soul of the DCC and always tried to remind everyone of the original intentions of that court. She was the one to whom everyone turned with questions and she always seemed to have the answer. As counsel she dealt with all sorts of people, ever compassionate, but with a firm hand, to steer them right. She remembered everyone’s name and their stories. She maintained her sense of humour, despite being in an environment where the circumstances of those she represented were challenging and, more often than not, pretty grim. Outside of the court-

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room the judges, lawyers and other professionals maintained a wonderful atmosphere of collegiality. Kelly often entertained the crew with stories from her musical exploits. She mentored many new lawyers (you know who you are) who have gone on to give of themselves to those far less fortunate. It should be noted that even following her diagnosis of breast cancer, the disease to which she ultimately succumbed, Kelly kept her spirits and those of her family, friends and colleagues high.

Kelly had a passion for sewing and crochet, making clothes for herself and flannel pajamas for Al. Who doesn’t love flannel pajamas? Kelly took up Tai Kwan Do, competing in a local tournament in 2004 winning bronze in her division. Her love of sports also included following the BC Lions. Kelly was a long-time season ticket holder (even in the team’s down seasons) and wore her black and orange with pride. And then there was Iceland. Kelly loved Iceland. She went there multiple times with family and friends. Iceland was always a favorite topic of conversation and many of those friends visited there because of her encouragement. As always, expecting the unexpected with Kelly, in 2015 she developed a passion for hunting, and in 2019 she went on her first moose hunt.

In 2017, Kelly was appointed Queen’s Counsel. Her appointment was well received by all of her colleagues and well deserved given her work in the “trenches” at DCC. In the same year she travelled to Vienna to present at the Union Nations regarding drug policy and the DCC system of delivering community justice and rehabilitation.

Coming full circle, there was the music. Kelly held her own hanging out with “the boys” (some of us lawyers), putting up with us at band practices and gigs with charm, wit and patience. She brought warm harmonies to our old-school classic rock numbers and then took the lead on songs to give us (and the audience) a break. Kelly particularly loved the Pretenders. She was a member of the band Still Living At Home (“SLAH”), which was the inaugural winner of the CBA Benevolent Society’s “Battle of the Bar Bands” (“BOBB”) in 2002. (SLAH was also fortunate to be crowned the winner of the BOBB in 2023, and dedicated its performance to Kelly.) She had a true joy in performing live and her spirit lives on with those who performed with her.

A celebration of life for Kelly was held in March 2023 at Famee Furlane Hall. The room was filled to overflowing with friends, family, colleagues, lawyers, sheriffs, court staff and the judiciary. Even previous clients attended to celebrate her memory. Many people spoke of the difference Kelly had made in their lives. As we said, “What a life.” She remains sorely missed by all who knew and, inevitably, loved her.

Howard Mickelson, K.C., and Mark Slay, K.C.

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NEW JUDGES

By R.C. Tino Bella

The Honourable Justice Jennifer Lynn Whately

A great judge must, of course, have a first-rate legal mind. A great judge must also balance this attribute with other qualities. As Chief Justice McLachlin observed in Judging in a Democratic State: “To judge, one must be human and humane. One must be capable of empathy.”

Justice Jennifer Lynn Whately has the makings of a great judge.

Jennifer was born and raised in the northern B.C. community of Smithers. Her childhood gave her insight into life outside the urban centres of Victoria and Vancouver that she later called home. Despite being a small town, Smithers was blessed with a thriving artistic culture and exposed Jennifer to dance, music and art at a young age. It also gave her many lifelong friends, early evidence of the warmth that has characterized her relationships with others. She is very proud of her Smithers roots.

Jennifer took the first steps in her journey to the bench during her childhood. She had the great fortune of having a lawyer, and later a judge, as her stepfather. Indeed, she credits Judge Mark Takahashi with being the reason she became a lawyer. She frequently visited his law office growing up and followed him into court, getting early glimpses into the inner workings of the law. Most importantly, Judge Takahashi’s cross-examinations of Jennifer and her sister over the dinner table allowed her to accumulate many hours of CPD credits in advocacy at an early age. She has carried on this home-schooling tradition by cross-examining her husband Chris and their children Sam and Tessa. We send them our thoughts and prayers now that her new day job has deprived her of an outlet for her cross-examination skills.

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Jennifer developed a strong connection to Victoria after leaving home.

She attended the University of Victoria for her undergraduate and law degrees. She obtained a bachelor of arts degree in English (honours) with a focus on James Joyce (happily, her decisions to date have been much easier to read than Ulysses). She thought she would become an English professor after being accepted into graduate school at the University of Toronto for a master’s degree. But fortunately for the legal profession, she deferred attending graduate school for one year and ultimately never attended.

While completing her undergraduate degree at UVic, she landed her greatest non-law job at Munro’s Books, where she got to meet some of her heroes like Alice Munro, Margaret Atwood and Paul Theroux. Given this background, it will surprise no one that Jennifer has always loved good writing, an interest that will serve her well as she authors her decisions.

After completing her B.A., Jennifer turned her sights on the law. To make it more challenging, she began her first year at UVic law school four months after giving birth to her son, Sam. Despite this challenge, she enjoyed law school and liked all of her classes, with the possible exception of Secured Transactions (which surely nobody enjoyed).

Her favourite part of her legal education was the clinical law term at the Law Centre. This started her on the journey of becoming a litigator. She loved the on-your-feet training and courtroom experience, despite being yelled at by judges and having to be in three different courtrooms at once.

But most of all, she loved listening to and helping those on the margins. On the first day of Law Centre, then director Glenn Gallins, K.C., wrote “BE COURAGEOUS” on the board. Jennifer considers it to be the most important advice for a lawyer. She now shares this advice with law students, law clerks, articling students and junior lawyers.

Jennifer excelled at law school. After graduating, she moved to Vancouver with her then preschool-aged son to start her clerkship at the B.C. Supreme Court. She clerked for Justices Davies, Blair, Melnick, Dillon, Taylor and Ballance. She found clerking to be an excellent experience and was impressed by how hard the judges worked, and how much they cared about coming to a just result. This impression has been renewed after her short time on the bench.

Jennifer articled at Guild Yule and met Lisa Andersen, who would become one of her best friends despite telling Jennifer matter-of-factly that she would never be hired back. This prediction proved to be incorrect as she was hired back, but she left to join the Vancouver litigation firm of Lesperance Mendes a short time after. Signs of her future calling as a jurist were already on display. She quickly earned a reputation within the firm as a

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lawyer whom other lawyers would use to test their arguments. Despite the demands of running a busy downtown practice while being a mother, Jennifer was unfailingly courteous. She kept her head when all those around her (even senior counsel) were losing theirs.

Although it was difficult to leave good friends and colleagues at Lesperence Mendes, Jennifer never regretted making the next move in her legal career when she joined the B.C. Securities Commission. She began as litigation counsel and moved up the chain until becoming manager of the litigation department—her role at the time of her appointment to the bench. She is very proud of her time at the Commission. She loved the complexity of securities law and acting in the public interest—which, intertwined with the human element of giving the victims of financial misconduct a voice, made for challenging and rewarding work. Jennifer got the chance to hone her advocacy skills internally before the executive director, chair and the board; before tribunal panels; and externally before the Court of Appeal.

She also enjoyed working with the investigators, the policy makers, and other regulators and law enforcement across Canada and the United States. One area of securities law she particularly enjoyed was the fast-moving litigation of proxy battles and shareholder disputes that required careful consideration of policy and legislation, along with litigation strategy and oral and written advocacy.

Her last year at the Commission was the “best year”. She loved being the manager of litigation and felt she was surrounded by a stellar team. It gave her the opportunity to use her experience to help junior litigators, to offer strategic advice and writing assistance, to be a sounding board for complex arguments and problems, and to be a support and advocate for the senior litigators. This made it hard for her to leave when the Minister of Justice and Attorney General called. Although she would never admit it, Jennifer was very popular at the Commission. She was a smart, kind and considerate colleague with a great sense of humour. In short, “everyone loves Jennie.”

When not dispensing justice, Justice Whately will usually be with her family. Her husband Chris is the best of partners and has “unceasingly supported” her goals and career. He has also learned to deter cross-examinations by turning the conversation to esoteric issues in video game development, like why the programming language Rust is superior to all other languages. Jennifer is a genuine foodie and loves to cook and bake. She booked dinner at the French Laundry restaurant a year in advance of her honeymoon and shortly after getting engaged. She has passed on her love of fancy restaurants and love of movies to her son Sam. She also passed on her love of dance to her daughter Tessa, an accomplished dancer, and considers herself a proud “dance mom”.

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She insists that dance moms get a bad rap and are nothing like they are portrayed on television. She also loves musical theatre (Hamilton is a favourite) and competitive baking shows, but only Tessa shares these interests with genuine enthusiasm.

Jennifer is also a history buff and even had a Winston Churchill poster on her bedroom wall as a teenager. As a result, she would approve if we conclude by quoting Churchill for some inspiration while on the bench: Courage is what it takes to stand up and speak; courage is also what it takes to sit down and listen.

We have no doubt that Justice Whately will be a courageous judge on the bench and that her appointment will benefit all British Columbians.

ЖЖЖ

The Honourable Justice David K. Jones

David K. Jones was appointed as a judge of the Supreme Court of British Columbia on August 14, 2023. It is not surprising to anyone who knows David that he received the “judicial appointment call” from the Minister of Justice and Attorney General while sailing across the Salish Sea after a week in the Gulf Islands with his family. After all, David was at the time of his appointment one of the leading maritime lawyers in the country, an experienced sailor and, most importantly, a dedicated father and husband.

In hindsight, David’s voyage to the bench, while long, seems rather predictable. David was born and raised in the Vancouver area, spending most of his youth on the North Shore where he attended Ridgeview Elementary School and West Vancouver Secondary, graduating in 1978. He was an active participant in extracurricular activities, including swimming, rugby, football, basketball, wrestling and cross-country running. His international travels started early, including a school excursion behind what was then the “iron curtain” in 1977, visiting Moscow and Leningrad (now St. Petersburg), before going back to the comforts of the West in Copenhagen. He was said to be a decent trumpet player in the 1970s, playing for the West Vancouver Youth

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Band. Band trips took him to England, Belgium and the Queen Charlotte Islands (now Haida Gwaii) and resulted in a very brief appearance in the 1975 movie, Russian Roulette, starring George Segal. Not surprisingly, he was also keen on working in his youth, rising early every morning for a Province paper route from age 12 for a number of years, and working at the “Golden Arches” while in high school, rising to the position of crew chief. He moved on after graduation to work as a lifeguard and swim instructor at the West Vancouver Aquatic Centre and Eagle Harbour beach over a number of summers.

Following high school, David started his sailing (marine) side career in earnest, actively crewing on racing sailboats, including a number of Swiftsure and Southern Straits races. He attended what is now Capilano University and Simon Fraser University, ultimately earning a bachelor of arts degree in political science and economics from SFU in 1989. It is notable that it took 11 years following high school graduation for David to earn his first university degree. During that lengthy period, he spent time travelling to far-off locations including Nepal, Thailand and the Caribbean. In 1985/86, he took a hiatus from his studies to crew on a larger sailboat, sailing from Vancouver down the west coast of North America, through the Panama Canal, across the Caribbean visiting many of the islands, and then crossing the Atlantic Ocean to the Azores, Ireland, England, France and Spain. We are not sure what it was, but something called him back to the real world to complete his B.A. Even then, he continued advancing his marine career starting in the summer of 1987 by working for the Canadian Coast Guard, first as crew and then as coxswain on inshore rescue boats at temporary summer stations in Victoria, the Gulf Islands, Pender Harbour, Cortes Island and Alert Bay, to list a few. David continued this work for a number of summers until 1994, his enjoyment of the summer Coast Guard job one factor in the length of his university studies. As an important side note, working for the Coast Guard is where he met his wife, Jody, although it took almost ten years for that relationship to crystallize.

As for his studies, after finishing his first degree, he pursued his interest in politics by working for six months as a legislative intern in the B.C. legislature, which, when combined with a semester of graduate studies at SFU, earned him the course credits for an M.A. degree. Following his first year of what would normally be a two-year M.A. program, he applied to law school, and—as seems a clear trend—in May 1990, after his first year of law school, he crewed on a sailboat from Fort Lauderdale to Annapolis on the east coast of the United States.

Uncharacteristically, David completed his law degree in the usual threeyear time period. While at UVic, he was a research assistant to Professor

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Gerry Ferguson, worked as a lifeguard at UVic and took a break from the Coast Guard for a summer student position at Campney & Murphy in 1992.

He was well liked and highly regarded by the lawyers at Campney, and was offered an articling spot following his graduation. David, however, had a slightly different plan. Rather than commence articles after his graduation in 1993, he travelled to Wales to study maritime law at the University of Wales, completed his thesis and was awarded an LL.M. in 1995. He then returned to Vancouver to commence his articles at Campney that same year and focused his attention on the firm’s litigation and maritime law practice.

Needless to say, David was an obvious fit for the maritime law practice, having a great understanding of the rules of the road (sea) and practical aspects of marine adventures, along with a solid grounding in the law. He began work as a litigation associate at Campney following his call to the bar in 1995.

After David began his litigation and maritime law practice at Campney, where he was an associate from 1995 to 2002, he left with the maritime group to set up what was then known as Bernard & Partners. He initially joined the new firm in 2002 as an associate but on the understanding he would become a partner commencing in January 2003. Before making the commitment to partnership, David wanted to complete one last major international sailing adventure, taking leave from the new firm for five weeks to crew on a large sailing yacht from Tahiti to Moorea, Bora Bora, the Cook Islands, Tonga and Fiji in late 2002. On his return, he became a partner and focused on settling down to life in Vancouver.

Wisely, David rekindled his friendship with Jody on his return to Vancouver, and they eventually married in 2005 and began a family shortly afterward (his two boys are now aged 14 and 17).

In the meantime, David carried on with his litigation and maritime law career. He was counsel in many of the more significant marine casualties on Canada’s west coast, such as cases involving a local ferry operator well known to British Columbians, collisions (including between a Chilean submarine and a local sailboat), groundings and ship-source pollution incidents. In addition to the marine casualty work and litigation that flowed from it, David assisted clients with their environmental, insurance, and occupational health and safety problems. David regularly appeared in all levels of court in British Columbia, and in the Federal Court, including trials and appeals. His work in the fields of maritime law, environmental law and occupational health and safety also resulted in appearances before various tribunals including the Transportation Appeal Tribunal of Canada, the British Columbia Environmental Appeal Board in respect of contaminated

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sites legislation, WorkSafeBC’s Review Division and the Workers’ Compensation Appeal Tribunal. In addition to his counsel work, David has written and presented on various topics and has been an active member of the local maritime bar and the Canadian Maritime Law Association, where he was most recently vice president (west) and would have likely been president, but for his appointment.

Throughout his practice, David has worked to achieve a well-balanced lifestyle, focused on both his family and his career. He was a dedicated and committed law partner, someone who could be relied upon for sound guidance and collaboration when dealing with more complex legal issues. He has been a valued teacher and mentor to many junior lawyers, both as principal and as a senior member of the firm. His support and guidance will be missed at the firm, but will, no doubt, be appreciated in his new role as Mr. Justice Jones.

At home David is a dedicated father, husband and the proud caregiver of his two large dogs he walks every morning before getting the rest of the household ready for the day. David likes his routines and spends many hours in his garden doing some of his other favourite work: moving rocks and landscaping. Of course, he is still an active sailor, spending many of his summer weekends with his family cruising and racing his own sailboat, Spero.

I cannot conclude without mentioning “Davy Jones’s locker”. Given his work in the maritime realm, I have heard, over the years, many clients and lawyers make a connection between David and Davy Jones’s locker. While there is uncertainty about the origins of the phrase, the one that best fits David is probably not the British pirate or the London pub owner, but rather the “Davy” that was inspired by St. David, the patron saint of Wales, which is part of David’s heritage and where he became learned in maritime law. It is also worth mentioning that St. David is the patron saint of poets, which helps explain the trial judge’s introductory seafaring poem in a case in which David was counsel: Rough Bay Enterprises Ltd. v. Budden, 2003 BCSC 1796.

David’s dedication to the law, broad legal experience, thoughtfulness and compassion will serve him, and the litigants appearing in his court, well.

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LETTER TO THE EDITOR

By R.C. Tino Bella*

Dear Editor, Re: “Nos Disparus: Mathew Good” (2024) 84 Advocate 114 Called in 1957, retired in 1993, I still maintain an interest in British Columbia’s legal fraternity, mostly through receiving the Advocate regularly from my son-in-law, Todd Harvey of Baker Newby (Chilliwack). I first turn to Nos Disparus to see if I recognize any member of the bench and bar who has passed away. Their number is increasingly rare.

In the January 2024 issue, I was touched by the piece about Mathew Good. Such an accom-

plished fine-looking man. Life is certainly not fair.

I am a longtime subscriber to the National Post, reading each issue from cover to cover. As such, I was intrigued by the comment of an observer of Mathew’s dancing to Balkan brass music, remarking to his wife: “Your boyfriend looks like he reads the National Post.” What do readers of the National Post look like exactly? Could I, a non-dancer, at age 92, be taken for such a reader? Not likely.

Sincerely, Barry Speton Chilliwack

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

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GRUMBLE

By R.C. Tino Bella*

Dear Editor, Re: The Advocate’s Editorial Policies I am a fed-up retired member of the Law Society. I continue to receive the Advocate and pay for it out of my own dwindling resources.

When I open each edition of your magazine, I always turn to Nos Disparus first, just to make sure I am not mentioned there (always a relief). Next, I look to see who among my old friends in the profession has passed away. There are too many of those nowadays, but I guess I can’t blame that on you.

After that, I go to Bench & Bar. It is always interesting to know who has moved from where to where, even though most of the names aren’t very familiar to me anymore. Still, I like to have a look.

Unfortunately, to find those names

I have to pick like a rag and bone man through all kinds of rubbish to find what I’m really looking for.

Someone at the Advocate has run amok over the last few years and keeps cluttering up Bench & Bar with a lot of silly nonsense. They must think that this annoying stuff is funny. I’ve checked with a few of my retired lawyer friends (even one who is in his fifties) and none of them think it’s funny. Is it you who’s putting in all those fillers in Bench & Bar? I sure hope not.

Reading the November 2023 edition was the last straw. There were 73 separate announcements in Bench & Bar and 42 of them were about frogs. That’s fifty-eight per cent! Whoever is burying all the important information about lawyers on the move in that quagmire of juvenile baloney should be shown the door. Put your editor’s foot down.

* Grumbles may be e-mailed to <mbain@hhbg.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.

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Then there’s the Beatles. Somebody over there seems to have an obsession about the Beatles. The Advocate has become the personal playground of somebody who can’t think about anything else except the Beatles. I believe most readers of the Advocate (a legal magazine) are about as interested in the Beatles as they are in frogs. Good grief, Charlie Brown! Enough already!

Here’s a challenge for you. If you can find more than two editions of the Advocate published in the last three years that don’t say anything about the damn Beatles, then tell your subscribers that in one of your famous editor’s notes in the next edition. I promise I’ll then make a donation of $100 to the Lawyer’s Benevolent Society.

I’m pretty sure my hundred bucks is safe.

If you can get through all of 2024 without mentioning any of the Beatles in any of your editions (good luck!), then I’ll donate $250 to the Lawyer’s Benevolent Society. Over to you.

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Otherwise, you’re doing a pretty good job. The editorial in the November edition (about the SCOTUS) was damn good, and not a frog or a Beatle in sight.

Yours sincerely, A FED-UP RETIRED MEMBER [Famous Editor’s Note: More than two editions? How about 10? The Beatles did not appear in the September 2023, January 2023, September 2022, July 2022, May 2022, March 2022, January 2022, September 2021, July 2021 or March 2021 issues of our magazine. Please send us a copy of the receipt confirming your donation to the Lawyer’s Benevolent Society.

We would not have said anything about the Beatles in 2024, but you seem to have brought them up yourself and insisted we print your letter and this note, thereby frustrating your own commitment to pay the Lawyer’s Benevolent Society even more. Did you notice the Beatles were number one in the U.K. the month you sent us your Grumble? All You Need Is Love! – Ed.]

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LEGAL ANECDOTES AND MISCELLANEA

By D. Michael Bain, K.C.*

“Harmony and understanding Sympathy and trust abounding No more falsehoods or derisions Golden living dreams of visions Mystic crystal revelation And the mind’s true liberation Aquarius!”

— James Rado and Gerome Ragli, from the musical Hair!

BROTHER XII – PART I: THE DAWNING OF THE AGE OF THE AQUARIAN FOUNDATION The next time you find yourself puttering about a new-age bookstore in your Birkenstocks with the 5th Dimension’s song “Aquarius” drilling itself unnecessarily into your head, as your hands test the healing powers of the various crystals on display and your mind ponders the books available with titles like Becoming Ghandi or The Rooted Woman or Applied Polyvagal Theory in Yoga, consider the precursor to the New Age Movement: Theosophy.

Theosophy is largely based on the writings of a 19th-century RussianAmerican mystic Helene Balatsky (known to her followers as Madame Balatsky). Borrowing liberally from eastern religions and occult practices, the Theosophist Society (founded in New York in 1875 and extant today) teaches about a secret brotherhood of ascended Masters whose instructions include the “three truths”: the unity of all life, the immortality of the soul and the law of karma. Upon these three truths, a new world order will be

* D. Michael Bain, K.C., is the editor of the Advocate, and for this two-part article he is indebted to the good work of John Oliphant, Brother XII: The Strange Odyssey of a 20th Century Prophet (Halifax: Twelfth House Press, 2006) and Justine Brown, All Possible Worlds: Utopian Experiments in British Columbia (Vancouver: New Star Books, 1995).

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built, but not before an era of destruction and chaos. Only after such upheaval will there be a dawning of the Age of Aquarius in which the new world will emerge. Sounds pretty good, right?

It (or something rather close to it) certainly sounded pretty good to a number of European, American and Canadian followers of Brother XII, the reincarnated 12th ascended Master, who founded a colony on Vancouver Island and the islands of Valdes and De Courcy, just off the coast of Nanaimo in the 1920s. Brother XII’s story is fascinating particularly where it intersects with the legal system of British Columbia. It was widely reported in the press of the day, for example, that Brother XII used black magic in a B.C. courtroom to make counsel for the opposing party lose his memory (and therefore his closing argument) and caused the judge to lose the ability to speak altogether. But just how did the Ascended Master, Brother XII, end up in a B.C. courtroom?

This article is part I of the story of the Aquarian Foundation and its relationship to British Columbia. Part II (detailing the legal implications for the foundation and its founder, Brother XII, and the fate of the society) will be printed in a subsequent issue.

Edward Arthur Wilson was born in Birmingham, England in 1878 into a family of strict religious devotion. He claimed to have had visions of angels as a child, then spent his young adulthood travelling the world as a sailor, reaching British Columbia in 1907 and working for a time as a baggage clerk for the Dominion Express Company, and as a pilot on lumber schooners and coastal steamers plying routes between San Francisco and Alaska.

Although he married in Victoria, Wilson deserted his Kiwi wife and three B.C.-born children (a son and two daughters) in about 1912 when he sailed away to Asia. This desertion he later described as a “Ceremony of Dedication”. He wrote: It was then that I understood I had a work to do, but I did not know anything of its nature or when it was to be. This was followed by twelve chaotic years of testing and wandering in all parts of the world. Outwardly, I was unsuccessful in everything I did, but the inner work of preparation must have been going quietly on.

Wilson travelled widely, sailing around Cape Horn, along the coasts of Africa and South America and throughout the Pacific. He served as a navigator during World War I on merchant ships traversing the North Atlantic.

Throughout his travels, he visited shrines, temples and sacred sites and studied the world’s religions in India, China, Mexico and Egypt. For a brief time he resided in California and, after being nursed from poor health in Tahiti by a Scottish woman named Elma, in Italy where he studied astrology. By 1924, he was retired and living in a small village in the south of

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France. Once again he was unwell and Elma was by his side. Awaking from a fever one night, he saw a tau or Egyptian ankh suspended in mid-air at the foot of his bed, some eight or nine feet high. It “was like soft golden fire, and it glowed with a beautiful radiance”, he wrote. Alongside the ankh was a five-pointed star. A few days later, Wilson was visited by a voice that spoke to him (in capital letters and King James English according to his letters): THOU WHO HAS WORN THE DOUBLE CROWN OF UPPER AND LOWER EGYPT, OF THE HIGH KNOWLEDGE AND THE LOW, HUMBLE THYSELF, PREPARE THY HEART, FOR THE MIGHTY ONES HAVE NEED OF THEE, THOU SHALT REBUILD, THOU SHALT RESTORE. THEREFORE, PREPARE THY MIND OF THAT WHICH SHALL ILLUMINE THEE.

It was clear to Wilson that the voice belonged to one of the Dhyanis, a group of powerful Egyptian deities. Going into a trance, he engaged in “automatic writing” where he transcribed received messages from another realm, finishing a 4,000-word manuscript in 1926 which he saw as the blueprint of a new world order. The manuscript was published in England as A Message from the Masters of Wisdom and spoke of the coming Age of Aquarius, a period lasting 2,000 years. It concluded: This is the Message of the Masters, the Message of Brotherhood. It is simple and easy to understand; the issue is perfectly clear. By every man to whom this Message comes, it must be either accepted or rejected. No neutral position is possible, for this Message shall divide the Wheat from the Chaff; it is a sword that shall pierce the heart of every earnest man— the sword of Truth.

The publication of the message in The Occult Review in London was attributed to “Brother XII”, which was the persona adopted by Wilson from the voice he had heard in the south of France. It resulted in a flood of letters to the editor, including from no less a luminary than Sir Arthur Conan Doyle, creator of Sherlock Holmes. While Doyle criticized the work for its attack on spiritualism (thereby inviting a written response from Wilson), the article also found many supporters, and to these people Wilson sent an invitation for a journey of transformation: We are called to serve as the Pioneers of a new Race and a new Ideal, and pioneering calls for vision, for courage, and for the strength of selfsacrifice. We are called to the mighty task of laying the foundations of the new Order, and a better civilization, the Aquarian. For this reason, the Masters have decided that Their Work shall be known as THE AQUARIAN FOUNDATION.

The editor of The Occult Review endorsed Brother XII’s message and coupled it with his warning that Armageddon would take place in 1928. Several individuals responded. They joined the Aquarian Foundation and received

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missives that Brother XII would mail out. They attended the lectures he would deliver. He began advising followers to liquidate their securities, and follow him to safety in Canada. Brother XII sent a “Special Urgent Letter” to members of his new foundation where he told them: A small settlement is to be prepared in British Columbia. There are others, but this is the nearest and most suited to English people. It will be the first to be developed. Instructions as to ways and means will be given to those who are prepared to act … You should ACT now, and save what you can. If to sell now means considerable loss, not to sell means total loss in the near future.

By March 1927, Edward Wilson (with his companion Elma) was in Canada speaking as Brother XII to a meeting of the Ottawa Lodge of the Theosophical Society about the Aquarian Foundation (a branch of the “Great White Lodge”1) and its work to become a potent force in the world. Membership was for the select few. He followed this talk with one in Toronto, then Hamilton, London and Windsor, Ontario and brought together a large influx of members willing to support his endeavours in western Canada. Wilson next travelled by train to the promised land of British Columbia.

From Vancouver, Wilson took the Princess Louise across the Strait of Georgia to Nanaimo. From there, Wilson sent a telegram to a Vancouver lawyer, Edward Lucas (who had written to Wilson in the U.K. offering him a place to stay should he arrive in British Columbia). Lucas took the same ship to Nanaimo the next day and met with Brother XII advising him to incorporate the Aquarian Foundation as a society under the Societies Act. Once the two were back in Vancouver, Lucas helped in the drafting of the constitution and by-laws of the organization.2 A board of seven directors known as Governors was established. Where decisions were not unanimous, the final say resided with the president of the society, Edward Arthur Wilson, who was appointed for life.

Wilson stayed overnight with Lucas, his wife Marion and their five children, discussing with excitement the work of the Aquarian Foundation (the “Work”). Lucas was thrilled that British Columbia had been chosen by the Ascended Masters as the cradle of the sixth sub-race and birthplace of a messianic figure known as the “Avatar”. He also seems to have been somewhat smitten with Brother XII himself, writing: Strange how we feel like protecting this man from harm. With me, it is a strange uprush of love and loyalty such as I have not experienced in years—forty-three the other day—and I don’t give in to so many raptures as I used to. But now, it’s as though I were seventeen again and had just met my best high-school friend.

Wilson told Lucas that “for occult reasons” he would need the signatures of the actual Governors on the incorporation documents and within a

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month of arriving in British Columbia, he set off (by ship) for San Francisco and Santa Cruz, seeking prominent individuals to populate the board of the Aquarian Foundation. He signed up Coulson Turnbull, a former Chicago policeman and one of the foremost astrologers in North America. Through Turnbull, Wilson convinced Baron Maurice Von Platen, a wealthy GermanAmerican lumber baron (whose hobby was building pipe organs) to join the board. While he had his detractors too, individuals who were suspicious of the Work and the man, Wilson considered his journey to the States a successful one returning with a full slate of new Governors, more recruits, more donations and more sales of his articles and books.

Together with Lucas and followers who had arrived from England, Wilson purchased a car in Vancouver and set about looking for land on Vancouver Island. The group finally settled on 126 acres in Cedar-by-the-Sea, just south of Nanaimo. On May 17, 1927, Wilson signed a contract with Western Fuel Corporation to purchase the land for $20 per acre. The Aquarian Foundation was incorporated the day before the purchase, and two of Brother XII’s followers put up the money for the purchase.

Brother XII announced the land acquisition through a newsletter to his followers, asking for money to help establish a “Center Building”, which he anticipated would cost at least $4,500. Cheques or drafts were to be directed to Maurice Von Platen in Pasadena, California, or to J.S. Benner in Akron, Ohio. Of course, the Aquarian Foundation itself could receive the funds at a post office box in Nanaimo, B.C. The appeal for funds resulted in generous donations and construction proceeded rapidly.

Edward Lucas, meanwhile, moved with his family from Vancouver to Cedar-by-the-Sea at least for the summer, putting up two large tents while building continued. Brother XII also had two 28-foot sailboats built in Victoria from his own design as he considered himself “the dean of naval architects”. Funds began to pour in, especially from bored socialites with both money and daydreams in abundance. Lucas and his wife helped with the correspondence, while the colony grew with the addition of a personal cabin for Wilson named the House of Mystery. While it was forbidden for others to approach the house, Wilson would use it to experience samadhi, the highest state of consciousness achievable by an individual.

On July 25, 1927, the board of Governors of the Aquarian Foundation assembled for their first general meeting at Cedar-by-the-Sea. It was Wilson’s 49th birthday. The Center Building was almost complete and Brother XII was now the leader of one of the fastest growing spiritual groups in North America. At the meeting, Brother XII outlined that the destiny of mankind was guided by an association of highly evolved Spiritual Beings collectively known as the Great White Lodge, 12 of whom were concerned

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with human affairs. All 12 would materialize as earthly beings. Brother XII announced that 7 of the 12 had already taken human physical bodies and they were the 7 Governors now assembled. They would, he explained, as a result of the meeting each have their consciousness raised and extended.

The Earth had waited for thousands of years for this moment.

“Sun in Leo trine Saturn in Sagittarius; Sun and Saturn trine the conjunction of Jupiter and Uranus in Aries—a Grand Trine.” It was indeed an auspicious start. The Aquarian Foundation had chosen this small spot near Nanaimo, British Columbia, from which to face the most terrible and rapidly approaching conflict in the history of mankind. For the final battle between good and evil was coming in 1928: Armageddon.

By winter, soon after the Aquarian Foundation bought a further 400 acres on nearby Valdes Island in which a separate community would be built for select disciples, Brother XII decided that one of his missions on behalf of mankind was to travel once again to the United States to help create a third political party to rival both the Democrats and Republicans and thereby prevent a Roman Catholic from becoming president and avoid a civil war.3 The third party did not have the impact he had hoped for, but nevertheless, something of monumental importance had taken place during his several months away from Cedar-by-the-Sea. While aboard the Great Northern passenger train, the Oriental Limited, travelling from Seattle, Washington to Chicago, Illinois, Brother XII fell into conversation with Myrtle Wells Baumgartner, the wife of a physician in Clifton Springs, New York. Her life was a bit of a shambles; she was in a loveless and sexless marriage since her husband was injured and had become an invalid. The conversation soon turned to the Work and Brother XII’s important spiritual mission. It was a swift seduction, and the two spent the night together in Wilson’s sleeping compartment (this was still the 1920s and therefore completely scandalous).

Over the course of the three-day journey, Brother XII was able to explain to Mrs. Baumgartner that there was no shame in what they had done, for they had merely renewed a relationship that had originated in Egypt thousands of years before. As it turned out, he explained, he was, in fact, the reincarnation of the Egyptian god, Osiris, and (what were the chances?) she, Myrtle Baumgartner, was the reincarnation of the goddess Isis. Their destiny, Brother XII explained, was to conceive a son, the “Avatar”, the reincarnation of the god Horus. This miraculous child would become a World Teacher in 1975 and, what is more, he was destined to lead humanity into a new spiritual age that would usher in the Millennium. He would do this from the headquarters of the Aquarian Foundation based in British Columbia!

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Brother XII returned to Cedar-by-the-Sea in the summer of 1928 together with Mrs. Baumgartner late at night when everyone was asleep. One of the Governors overheard their voices and would later report: I recognized Wilson’s voice, but not the woman’s. I never saw her. The next morning, she was gone. He hustled her over to Valdes Island to give birth to the next Christ.

This was the dawning of the age of Aquarius. Cue the 5th Dimension.4 ENDNOTES 1. The word “white” as used here does not refer to race, but rather to a white light emanating from the heavenly realms. Nevertheless, it should be noted that the “great race” that Brother XII was promoting was decidedly racist, anti-Semitic and also anti-Catholic.

2. The purposes of the Aquarian Foundation were: (1) to give teaching and instructions to its members upon philosophical and occult subjects, and upon all matters concerning their physical, mental and spiritual welfare, and to print and publish such books, magazines or documents as may be necessary for that purpose; (2) to form and operate one or more central communities to be conducted upon mutually beneficent and fraternal principles, and to provide for the education of its members and their children in accordance with the general principles herein laid down; (3) to provide for the pursuance and carrying out of such actions and policies as may be deemed advis-

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able for the welfare of the society and its members; (4) to cooperate directly or indirectly with all other societies, orders or organizations which are activated by the same principles of Truth, Justice, Brotherhood and mutual service, and to the end that all may share in that greater strength and solidarity which is the outcome of unity of effort and purpose.

3. Wilson’s mission to the States included anti-Jewish, anti-Catholic and anti-black rhetoric and focused on his support of a racist senator from Alabama with ties to the Ku Klux Klan.

4. The 5th Dimension won a Grammy Award for Record of the Year with their 1969 recording “Medley: Aquarius/Let The Sunshine In (The Flesh Failures)” which sat at number one on the Billboard Hot 100 for six weeks that year. They have been an active recording and performing group since 1966 until today.

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FROM OUR BACK PAGES

By R.C. Tino Bel

For fans of Bench and Bar, here are some vintage entries for your amusement, from the 1976–1979 period.

Heard in a Vernon Court room:1 Bar:

“And if the Plaintiff is not able to get on the property quickly, snow will prevent him from digging his well.”

Bench: “It is not going to snow in Vernon this winter.”

Bar: “That’s not what they’re saying in Kelowna.”

Bench: “Well, they have a different judge down there.”

The following note was appended to the door of the Barristers’ Room on the fifth floor of the Pacific Centre in Vancouver: “Those Barristers who have locks on lockers will be sawed off.”2 The Hon. Mr. Justice Frank Collier recently spent some time in New Zealand where he discovered some curious things going on in the bar.3 He sent us a clipping from a Christchurch newspaper announcing that the Canterbury District Law Society was criticizing a scheme designed to bridge the chasm of misunderstanding across which lawyer and layman suspiciously peer. Called “Lawyers for Lunch” the organization was set up to enable members of the public to have their lunch cooked for them in their own home by a lawyer who will turn up armed with a volume of “French Provincial Cookery” and prepare a delicious light meal. Critics of the scheme pointed out that it appeared to be based on a Canadian experiment “Tree Surgeons for Tea” which flourished briefly and failed dismally in the 1960s.

The inventor of the scheme dismissed the criticism. “Tree Surgeons for Tea” failed he said because tea was a boring meal and tree surgeons are boring people. Lawyers on the other hand are fascinating and a well-cooked lunch is the purest expression of the nobility of the human spirit. A spokesman

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for the Law Society was not enthusiastic. “We are of course in favour of anything which helps the profession’s public relations, but we are by no means sure that this is the way to go about it. We see dangers arising out of confusion in the public mind between the role of the lawyer and that of the chef.

For example the public may start turning to chefs for legal advice. And lawyers who ruin a lunch may find themselves being sued for negligence.

What’s more, the last thing the Law Society Disciplinary Committee wants is to start to receiving complaints about burnt saucepans and impressionable young persons being introduced to garlic.” The inventor of the scheme is said to be a Christchurch lawyer, Mr. I. B. Prolix. Mr. Justice Collier did not disclose whether or not he ran into Gerry Lecovin in Christchurch but that news item bears similarities to the product of the burlesque intellect of SMALL. [SMALL] has been carrying things too far, again.4 One G. Lecovin now appears in the Family Law Reports as appearing for one of the parties in an action entitled Small v. Small. We wrote Mr. Lecovin about this impropriety.

He replied in a lengthy and obfuscating letter … and he ended by recommending the editor of the Advocate would improve his looks tremendously if he would crouch a bit.

John Smith of Russell & DuMoulin attended a Tax Seminar in Banff in October.5 The Banff Springs Hotel rather curtly announced that breakfast was served at 7:30 and those who were unable to attend at that time would do without it. Smith thought that the hotel might, since its memorandum was designed for tax lawyers, have couched its announcement in more appropriate terms and accordingly he drafted a notice for the hotel which read as follows: Notwithstanding any other provisions relating to accommodation hereat, including, without limitation, the provisions of the Innkeeper’s Act, where an attendee at a course or seminar seeks to be billed within the provisions of the arrangements made for determination of the regular fee for attendance thereat, the attendee shall ingest breakfast in prescribed form and manner at such place as shall be designated in Regulations to be passed from time to time, and at such time or times as shall be prescribed from time to time, which previously aforesaid time or times shall be a time or times which is neither the earliest nor the latest of: (a)

the time of the last retiree from the night before;

(b)

the time of the commencement of the first lecture to be given on the day in question; and

(c)

a reasonable time, which reasonable time is hereby deemed to be 7:30 a.m.

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In the event that the said breakfast was not ingested by the said attendee in and at the said prescribed form, manner, place and time, the said attendee shall be levied, in addition to the regular fee, an amount which is an amount equal in proportion to the excess of the cost of such breakfast over that proportion of the said regular fee which is reasonably applicable thereto, unless in the opinion of management it is reasonable to assume that none of the main purposes of non-attendance at breakfast was the avoidance thereof.

From the July 1899 Scientific American: “The improvement in city conditions by the general adoption of the motor-car can hardly be over-estimated.

Streets clean, dustless and odorless with light rubber-tired vehicles moving swiftly and noiselessly over their smooth expanse would eliminate a greater part of the nervousness, detraction and strain of metropolitan life.”6 Bon mots by drivers explaining accidents to attending police officers7 include “Coming home I drove into the wrong house and collided with a tree I don’t have.” “I pulled away from the side of the road, glanced at my mother-in-law and headed over the embankment.” “An invisible car came out of nowhere, struck my vehicle and vanished.”

We reprint a passage of arms between Dermod Owen-Flood (of the Irish Bar in Victoria) and an imprudent police officer.8 Q

And you swore under oath that the accused’s eyes were bloodshot and glassy, didn’t you?

A

Yes, Your Honour, I did.

Q

And that officer with all due respect to you was a lie, wasn’t it?

A

No, Your Honour, that was not a lie.

Q

Were both his eyes bloodshot?

A

Yes, Your Honour, his eyes were bloodshot.

Q

You are sure of that?

A

Yes, Your Honour.

Q

You can recall that as you stand there?

A

Yes, Your Honour.

Mr. OWEN-FLOOD: Hand me your eye, please. (Mr. Belton the accused hands what appeared to be a glass eye to his counsel.)

Q

You are lying about the bloodshot eyes aren’t you officer? You will notice, Your Honour, the accused has a glass eye. And you swore under oath that both his eyes were bloodshot and you are lying, aren’t you?

A

No, Your Honour, I am not lying.

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Q

Look officer, you know your duty to the Court is to tell the truth? Was this eye bloodshot? Did you ever see a glass bloodshot eye?

A

Your Honour, I may have been mistaken.

The origin of the word “fuzz” for police officers comes from the name of Sir Edwin Fuzz who was chief of the London police force immediately preceding Sir Robert Peel. Whereas Peel’s officers were known as “bobbies” and “peelers” almost immediately, Sir Edwin had to wait a century or so for a recognition he would probably prefer to do without.9 Heard in an English country courtroom:10 Judge: Witness: Judge: Witness:

“What are those oonty-toomps you keep referring to?”

“What be oonty-toomps? They be the toomps the oonts make.”

“What are oonts?”

“Why, they as make the toomps.”

Research disclosed that the witness was discussing mole hills. [We would have bet on anthills, but so be it! – Asst. Ed.] C.G. Green of Nanaimo, retained in a hurry by the Van Alstine firm, sent them the following account:11 Re: Ad Hoc Juvenile Prosecutions To whirlwind attendance at Nanaimo Provincial Court To receipt and perusal of file in a lateral pass from your secretary on the Courthouse steps To receipt of instructions from probation officer at dead run down courthouse corridor, To breathless expounding of law to His Honour Judge Melvin, To reporting to you; Our fee herein ENDNOTES 1.

2 3.

4.

5.

6.

(1977) 35 Advocate 75 at 77.

(1976) 34 Advocate 134 at 135.

(1976) 34 Advocate 215 at 216–17.

(1978) 36 Advocate 157 at 158.

(1976) 34 Advocate 463 at 463–64.

(1979) 37 Advocate 453 at 455.

7. (1979) 37 Advocate 49.

8. (1978) 36 Advocate 363 at 365.

9. (1979) 37 Advocate 551 at 552.

10. Supra note 1.

11. Supra note 6 at 50.

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

• SURREY SOLICITOR’S PRACTICE • WEST KOOTENAY SOLICITOR’S PRACTICE • ALBERTA – SOLICITOR/FAMILY LAW PRACTICE FOR SALE • CENTRAL ALBERTA SOLICITOR’S PRACTICES

FOR INFORMATION ON ADDITIONAL PRACTICES FOR SALE PLEASE VISIT geigerlegal.com Contact Kathy Geiger regarding succession planning, practice sales and valuations at

geiger@lawyer.com 613-864-4701

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BENCH AND BAR

O

n these pages we have previously invoked Wordsworth’s golden daffodils, but daffodils are not all that is golden in the spring. “Spring gold”, or Lomatium utriculatum, is a perennial with lacy leaves and bright yellow flowers that blooms around this time. The Gold Standard Act, which defined the value of the U.S. dollar with reference to gold, became effective in March 1900. And of course, various of our colleagues at bench and bar have pursued golden opportunities—or perhaps received a golden handshake. See if you can find a pot of gold or two below.

Kristina A. Davies joins Harper Grey, coming from Koffman Kalef to do so.

Flora Wu leaves Lawson Lundell to join Miller Titerle. Lia Moody is now with HHBG Lawyers, having previously been with Samfiru Tumakrin.

Mario Garcia Chavez joins Ratcliff LLP after working in-house with CarbonCure Technologies. Brenda M. Lightbody moves to the Lanyard Group after many years with Lawson Lundell. Pamela Connolly comes from West Coast Workplace Law to join Nixon Wenger in Vernon. David Claassen sets out on a new venture, Claassen Mediation, after a long stint with Jenkins Marzban Logan. Donna Yamazaki and Andrea Swabuk-Moe move to YSM Family Law from Hamilton Fabbro. Andrew J. Stainer jumps from Norton Rose Fulbright Canada to Owen Bird. The Honourable Russell Brown is now doing arbitrations at Arbitration Place.

In a more seismic shift, the firms of Hamilton Duncan and Peterson Stark Scott join together and will continue as Hamilton Duncan. Moving into Hamilton Duncan’s Surrey office are John B. Peterson, G.C. (Scottie)

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

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Scott, Jalal Jaffer, K.C., J. Bruce Melville, Rodney B. Yates and Ralph Krikke. Lastly, the former Chief Justice of British Columbia, the Honourable Robert J. Bauman, K.C., joins Cornish Margolis Boyd where he will set aside his conclusory and judgmental past to offer mediation services to parties in need of them. “[P]erfect laws, like all the other absolutes, are as fabulous as the pot of gold at the rainbow’s end”: Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559 (1953).

Shelley Meghan Lucinda Lopez was appointed as acting chair of the Civil Resolution Tribunal for a term of six months. “[T]he golden rule is for the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and a fair trial”: R. v. Côté, [1978] 1 S.C.R. 8.

“Some 2500 years ago, Aesop warned of the dangers of wanting too much, too soon, by killing the goose that lays golden eggs”: Re Sullivan, 2018 NSSC 334.

Norman M. Tarnow was appointed as a member of the Environmental Appeal Board, the Forest Appeals Commission and the Energy Resource Appeal Tribunal for a term ending December 13, 2025.

“Although not paved with gold, the streets of central Winnipeg are lined with parking meters”: R. v. Joe, 1993 CanLII 14678 (M.B.C.A.), per Twaddle J.A. The Government of Manitoba website describes the “Golden Boy”, the “magnificently gilded” figure atop the dome of the legislative building, as “[e]mbodying the spirit of enterprise and eternal youth … he faces the north, with its mineral resources, fish, forest, furs, hydroelectric power and seaport, where his province’s future lies”. The government website continues: “The boy is a runner, like the messengers in Greek mythology. He carries a sheaf of golden grain in his left arm, while his right hand holds high a torch, calling youth to enter the race.” Sculpted in France, the Golden Boy was cast in 1918 at a foundry that “was partially destroyed by bombs during the First World War, but the Golden Boy emerged unharmed. The figure was rushed to a seaport and put aboard a French ship carrying wheat. Before the ship could put out to sea, it was commandeered for the transport of troops.

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The boy lay in the hold of the ship, travelling many miles, constantly in danger. When the war was over, the figure arrived at Halifax and was shipped to Winnipeg”.

Paul A.H. Barnett, Sasha Hobbs, Natasha Heughan-Tony, Michèle A. Ross and Dr. Janis E. Lindsay were reappointed as benchers of the Law Society of British Columbia.

“When lawyer and client throw litigational prudence to the wind and go after the pot of gold and the pot won largely turns out to be plate, the matter of attorneys fees and legal expenses often produces unseemly acrimony”: Gilchrist Machinery Company, Inc. v. Ross, 493 So. 2d 1288 (1986) (Sup. Ct. Miss.).

In December 2023, the Honourable Robert J. Bauman, Peter Grant, Carol Baird Ellan, Gregory J. Nash, Anders Ourom, Heidi-Ann Mason, Brad Dixon, Veeda Victoria Shroff, Julie Williams, Stephen Ballard, Kinji Bourchier, Jason LeBlond, Gurminder Sandhu, Marc Kazimirski, Shannon Ramsay, Rubinder Dhanu, Susanne Elliott, Theresa Iandiorio, Miranda L. Lam, Karrie Wolfe, Lindsay LeBlanc, Josh Paterson, Kasari Govender, Shannon Salter and Joven Narwal were all appointed as King’s Counsel (K.C.) for exceptional contributions to the legal profession in British Columbia.

The Honourable Steven L. Point, OC, OBC, was invested as an officer of the Order of Canada.

The United States Mint notes that the United States Bullion Depository at Fort Knox, Kentucky stores precious metal bullion reserves for the United States, including 147.3 million ounces in gold holdings. (It also holds other valuables.) Its highest historic gold holdings were 649.6 million ounces on December 31, 1941.

Jeremy A. Burgess was appointed as a member to the board of Camosun College for a term ending July 31, 2025.

In considering whether Maryland would recognize as a valid cause of action the tort of intentional infliction of emotional distress, the court noted that “[p]erhaps the earliest forerunner of the tort was Nickerson v. Hodges, 84 So. 37 (S.Ct. La. 1920) widely known as the ‘pot of gold’ case. The victim of a practical joke obtained damages for emotional distress resulting from the

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planting of an old copper kettle in an area where plaintiff was digging for ‘buried treasure’ believed by family tradition to have been hidden by an ancestor”: Jones v. Harris, 35 Md. App. 556 (1977).

Sharleen L. Dumont was appointed as vice chair to the Hospital Appeal Board for a term of four years.

Richard J.S. Rainey and Adam C. Whitcombe, K.C., were reappointed to the board of directors of the British Columbia Assessment Authority for terms ending February 15, 2025 and February 15, 2026, respectively.

Anyone may pan for gold for “recreation purposes” in a watercourse in British Columbia using only a hand shovel and a gold pan except in or on a claim/lease, park, protected area, reserve or heritage site, private property or First Nations land. The Mineral Tenure Act defines hand panning to mean “to wash mineralized earth and gravel by agitation in a hand held pan so as to separate and recover those minerals or placer minerals having the greatest specific gravity”.

“When one searches for something for a long time, perhaps not knowing if it will ever be found, one may reasonably expect to be excited when one finally finds it. This is like panning for gold. Discovery may to one degree or another be expected; but it is always exciting”: United States of America v.

Moore, 791 F.2d 566 (7th Cir. 1986).

In Muehler v. Land O’Lakes, Inc., 617 F.Supp. 1370 (1985), the U.S. District Court for the District of Minnesota noted: We as members of the judiciary must be ever watchful to avoid being isolated from the experience of those who are actively engaged in the practice of law. It is difficult to evaluate the effort it takes to successfully and ethically prosecute a large plaintiffs’ class action suit. It is an experience in which few of us have participated. The dimensions of .the undertaking are awesome. The time and effort expended test the ability of many lawyers to survive during the lifetime of the action. Some plaintiffs’ lawyers have worked on cases before me for as long as ten years and spent a substantial portion of their billable time each year on the effort.

At the end they may have received a fee in the millions of dollars. However, averaged out over the years and subtracting taxes and the expenses of a law office, it averages out to a very moderate payment. It certainly does not equate with any bonanza or pot of gold.

Darwin I. Hanna was appointed as a member to the board of Nicola Valley Institute of Technology for a term ending December 31, 2025.

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Golden is a town in southeastern British Columbia. First established in 1882 as a camp for survey crews putting the railway through the Rockies, it was known as McMillan’s Camp. In 1884, to one up the nearby lumber camp called Silver City, the camp changed its name to Golden City, later dropping the “city”. Golden is home to the Kicking Horse Pedestrian Bridge which, at 150 feet, is the longest freestanding timber-framed bridge in Canada.

“This case reminds us of stories from the Klondike gold rush of partners who willingly shared danger, cold and starvation in the search for gold and then fought (sometimes to the death) for sole possession of the gold strike with which fortune favored them”: McLouth Steel Corporation v. Jewell Coal and Coke Company, 570 F.2d 594 (6th Cir. 1978).

Lorna A. Pawluk, K.C., was recently appointed to the Workers’ Compensation Board.

The blog of New Hampshire-based personal injury lawyer Charlie Donahue notes that “[i]njury lawyering is like wrestling with a wild cat for its young.

The insurance companies don’t want to part with the bucks. They throw nick[els] around like manhole covers … Recently, I got some very nice compliments from some folks who saw me in action on their behalf, and I want to share them with you: ‘KNUCKLES OF BRASS … HEART OF GOLD’…”.

Madisun V. Browne was appointed as a member and designated as a vice chair of the Property Assessment Appeal Board for a term of three years.

The 17th-century “Cradle Song” is a poem by Thomas Dekker, an Elizabethan dramatist and pamphleteer. Its first stanza inspired a later song named “Golden Slumbers” composed by Apollo C. Vermouth.

Golden slumbers kiss your eyes, Smiles awake you when you rise; Sleep, pretty wantons, do not cry, And I will sing a lullaby.

In 1612, Dekker was imprisoned over a debt of 40 pounds. He remained in the King’s Bench Prison for seven years.

Bodie is the official state gold rush ghost town of California.

The Court of Appeals of California described a party and her counsel as “undoubtedly driven by hopes of winning the jury lottery—by dreams of the pot of gold some juries find in the deliberation room and bring forth to bestow

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upon the lucky few”: Gonzales v. MetPath, Inc., No. B03777 (Second Appellate District, Division Two, September 28, 1989, per Roth P.J. for the majority).

“During the period prior to completion of the railroad from the East to the West Coast in 1869, travel from San Francisco to New York was principally by steamer to Panama, by train across the Isthmus of Panama to the port of Aspenwall, and then on to New York by steamer. Much of the gold mined in California following the gold rush of 1849 shipped or carried by passengers to the East was by the above route”: Columbus-America Discovery Group v.

Sailing Vessel, 742 F.Supp. 1327 (E.D. Va. 1990).

Carol Ann Marie Brewer was reappointed as a commissioner of the British Columbia Utilities Commission for a term ending January 31, 2026.

The largest gold production in British Columbia was from mines in the Bralorne/Bridge River area. To date, in excess of 4.1 million ounces have been refined from mines like the Pioneer Gold Mine and the King Mine. In a seven-year period in the 1930s, the mines of the Bridge River produced $370,000,000 in gold, which at today’s prices translates into over $22 billion.

This area remains one of active gold mining though at far lower volumes.

Nicholas U. Smith was appointed as a member of the board of Langara College for a term ending July 31, 2025.

“The golden rule lies at the heart of many religions. It is good social policy, not theology”: Muslim Association of Canada v. Attorney General of Canada, 2023 ONSC 5171.

“There is a ‘golden rule’ in the jurisprudence applicable to the interpretation of wills which states that, where there are two interpretations which can be applied to a will, it is the interpretation which favours testacy, rather than intestacy, that should be applied”: Re: Estate of Constance Evelyn Stevenson, 2022 ONSC 6416 “The golden rule is that the sentence imposed must not be disproportionate to the offence committed”: R. c. McQueen, 2023 QCCQ 4646.

Patricia M. Barkaskas was appointed to the Multicultural Advisory Council for a term ending June 30, 2024.

In Metro-Goldwyn-Mayer v. American Honda Motor Co., 900 F. Supp. 1287 (C.D. Cal. 1995), the court enjoined the defendant car company and its

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advertising agency from displaying a Honda del Sol commercial that “feature[d] a young, well-dressed couple in a Honda del Sol being chased by a high-tech helicopter. A grotesque villain with metal-encased arms jumps out of the helicopter onto the car’s roof, threatening harm. With a flirtatious turn to his companion, the male driver deftly releases the Honda’s detachable roof … , sending the villain into space and effecting the couple’s speedy get-away.” The court noted “there is substantial similarity between the specific protected elements of the James Bond films and the Honda commercial”, including the involvement of “a handsome hero who, along with a beautiful woman, lead a grotesque villain on a high-speed chase”, the fact “the male appears calm and unruffled”, the “hints of romance between the male and female”, and the fact “the protagonists escape with the aid of intelligence and gadgetry”. Among the Bond films to which the court referred as being similar to the commercial was “Goldfinger”, where “Bond’s sports car has a roof which Bond can cause to detach with the flick of a lever. In the Honda commercial, the Honda del Sol has a detachable roof which the Honda man uses to eject the villain.”

After a distinguished career teaching (2013–2023) at Peking University, Beijing Foreign Studies University School of Law and the University of International Business and Economics in Beijing, Thomas R. Manson, K.C. ( ) – – recently retired as a “foreign expert” (wàiguózhuanji a) in China.

The first gold records were awarded by RCA Victor to Glenn Miller and His Orchestra in 1942 for the sale of 1.2 million copies of the song “Chattanooga Choo Choo” and, in 1956, to Elvis Presley for selling one million copies of “Don’t Be Cruel”. Since 2016, an artist in Canada needs to sell only 40,000 units to achieve gold certification. In the United States it is now 500,000 and in the United Kingdom it is 200,000.

Gold River is a small village at the head of the Muchalat Inlet on the West Coast of Vancouver Island and is the geographic centre of Vancouver Island.

It is not far from “Friendly Cove” (or Yuquot) where British explorer Captain James Cook first set ashore in 1778 and met Chief Maquinna. The village is in the traditional territory of the Mowachaht and Muchalaht people of the Nuu-chah-nulth First Nation. Gold River takes its name from the original Spanish name of “Rio del Oro”. The Spanish first visited the area in the 1780s.

In State of Vermont v. Kirchoff, No. 87-603 (1989), an irate dissenting judge of the Supreme Court said that the majority, in its findings on a warrantless

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search, had “chosen the possible prestige with which it may be honored by law reviews and other constitutional activists among the courts, and legal writers …. But all that glitters is not gold; in this case it is dross, although it may take years to discover the fools gold that lies just below the surface.”

Graeme V. Keirstead, K.C., was reappointed to the Data Stewardship Committee as vice chair and as the College of Physicians and Surgeons of British Columbia representative for a term ending December 31, 2026.

“As Auric Goldfinger, the infamous James Bond villain, said, ‘Once is happenstance. Twice is coincidence. The third time it’s enemy action’”: De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009), citing Edward J. Imwinkelried, “An Evidentiary Paradox: Defending the Character Evidence Prohibition by Upholding a Non-character Theory of Logical Relevance, the Doctrine of Chances”, 40 U. Rich. L. Rev. 419 (2006), quoting Ian Fleming, Goldfinger (Berkley Publishing Group, 1959).

Ian Fleming named “Goldfinger” after an architect neighbour at his Hampstead home. The character first appeared in Fleming’s 1959 novel of that name. Fleming also owned a house named Goldeneye in Jamaica. The film Goldfinger was released in 1964 and featured an eponymous title song belted out by Shirley Bassey. The film Goldeneye was released in 1995 and featured a title track sung by Tina Turner.

“One of popular culture’s most notable vanity plate depictions appeared in the 1964 James Bond film Goldfinger, in which the antagonist drove a vehicle bearing the vanity plate ‘AU 1,’ representing the chemical symbol for gold.

Internet Movie Database, Goldfinger Trivia, IMDB (2015)…”: Mitchell v. Motor Vehicle Administration, No. 713 (Court of Special Appeals of Maryland, 2015).

“The maxim silence is golden is not simply a goad to good manners at the local movie theater, it is good advice in many realms of life. For example, those are truly words of wisdom when you are not under a duty to speak and someone asks you a question that potentially touches upon information that you would rather not divulge”: Corporate Property Associates Incorporated v. CHR Holding Corporation, C.A. No. 3231-VCS (10 April 2008) (Court of Chancery of Delaware).

“Whether ‘silence is golden’ is not nearly as clear as the proverb suggests, and determination of when a defendant’s silence is indeed ‘golden,’ or when it is incriminating, has bedeviled state and federal courts”: State of New Jer-

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sey v. Tucker, Docket No. A-4772-03T44772-03T4 (Superior Court of New Jersey, Appellate Division; not for publication [sorry!] opinion).

Andrea Ruth Jones was reappointed as a public representative to the Drug Benefit Council for a term ending December 31, 2025.

The Gold Range is a narrow strip of mountains along the west shore of the Upper and Lower Arrow Lakes and the Columbia River from about Revelstoke south.

“All that glitters is not gold, especially internet match-making services”: Bilinski v. Bilinski, 2009 SKQB 285.

March 2024 has been declared Amyloidosis Awareness Month. Amyloidosis is a rare disease that occurs when a protein called amyloid builds up in organs. Roughly 12 in 1 million people will suffer this disease.

“Neither civil rights plaintiffs nor their lawyers should be permitted to view a civil rights case as a pot of gold”: Scott v. Bradley, 455 F. Supp. 672 (E.D. Va. 1978).

As the United States District Court for the Northern District of California summarized, “Statements of value also are matters of opinion, not fact. Gentry v. eBay, Inc., 99 Cal. App. 4th 816, 835 (2002) (the ‘vague, highly subjective’ phrase ‘worth its weight in gold’ is a nonactionable opinion)”: Vazquez v. Datarobot, Inc., Case No. 22-cv-07619-LB. Lyall Knot, K.C., was appointed to the board of the Canada West Foundation James Goulden, K.C., won a spelling bee at Captain John Palliser Elementary School in Calgary, Alberta in 1975.

James Eason is, according to the biography on his law firm’s website, “a former Golden Gloves Boxer” who “fights until the final bell with skill and strength, and has aggressively fought for the recoveries of personal injury victims in St. Louis since 2003.” He apparently “strikes hard and fast when defending your claim”.

“To paraphrase a golden oldie of the law, a defendant with a hard case is just as much entitled to adequate representation as anyone else and much more in need of it”: People v. Smith, 38 Cal. 3d 946 (1985), per Bird C.J., dissenting.

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“Appellate courts see reasons for decision that do not address the evidence and the arguments and are criticized as conclusory, on the one hand, and decisions that leave nothing out, on the other hand. The task of a trial judge is to find the golden mean, to ‘decant and simplify,’ to synthesize the evidence and make the necessary findings; the task is not to be a court reporter”: Welton v. United Lands Corporation Limited, 2020 ONCA 322.

“Aristotle observed in The Ethics that a virtue is often the golden mean between vices of excesses or deficiencies, and there is something of that Aristotelian idea in clause 57.01 (f) [of Ontario rules of procedure], in its tainting caution with the adjective ‘excessive.’” G.M. v. Alter, 2008 CanLII 45402 (ON SC). Clause 57.01(f) provided that “[i]n exercising its discretion… to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing, . . . (f) whether any step in the proceeding was, (i) improper, vexatious or unnecessary, or (ii) taken through negligence, mistake, or excessive caution”.

The Court of Appeal of the State of California praised “the law of California procedure” as “strik[ing] a golden mean” in the case before it: Peterson v.

Bank of America, G048387 (2014).

“It is the Hearing Panel’s view that this penalty fits in the golden mean of being neither excessive nor de minimis”: Baird (Re), 2019 IIROC 19.

Ten musicals in which Ginger Rogers co-starred with Fred Astaire, “beginning with ‘Flying Down to Rio’ in 1933 and concluding with ‘The Barkleys of Broadway’ in 1949, established Fred Astaire and Ginger Rogers as the icons of elegant ballroom dancing during Hollywood’s Golden Age. This famous pair became so well known that the term ‘Fred and Ginger’ has come to be a metaphorical symbol for fine ballroom dancers and is frequently used in the press as a shorthand term for elegant dancers and dancing”: Rogers v. Grimaldi, 695 F.Supp. 112 (S.D.N.Y. 1988).

The official short title of Ontario’s Act to amend the Planning Act, S.O. 2019, c. 1, Sch. 5 is the Golden Girls Act, 2019. As stated in the Act’s preamble, “[a]ll levels of government should recognize that Ontario has an aging population and should encourage innovative and affordable housing solutions for seniors. Local municipalities should not deter seniors from choosing affordable housing options and should recognize that unrelated seniors living together can reap significant health, economic and social benefits. It is [desirable] to provide clarity to municipalities that the Planning Act should be interpreted

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in a way that encourages and permits home sharing by unrelated seniors as a housing solution.”

Ned McGowan was an American lawyer who stirred up trouble wherever he went. Born in Philadelphia, he was elected to the Pennsylvania House of Assembly, and there got into a fight where he hit his opponent over the head with a chair. After other escapades he wound up as a judge of the Court of Quarter Sessions for San Francisco County, a then-violent place from which he eventually fled. By 1858 he was in Yale, in search of gold (and likely more trouble). When the Royal Engineers were dispatched to suppress his supposedly rowdy behaviour, McGowan’s supporters fired on them (evidently without causing injury), in the “bloodless” “McGowan’s War”. McGowan himself returned to the United States in 1859. A view of Yale – including some of the buildings that still remain today – from the goldfields a few years later (1866-1870) is below, courtesy of the City of Vancouver archives (AM1376-: CVA 3-4):

Thought du mois: Truth, like gold, is to be obtained not by its growth, but by washing away from it all that is not gold.

—Lev Nikolayevich Tolstoy, writer (1828–1910) ЖЖЖ

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Bralorne Gold Mine [19-?] – City of Vancouver Archives, AM360---: CVA 472-16

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CONTRIBUTORS Giuseppe (Joe) Battista, K.C., was called to the bar in 1977 and is one of the founding partners of Murphy Battista LLP. Among his many accomplishments, he specializes in authoring Advocate cover stories about Chief Justice Hinkson, having co-authored the 2014 version as well.

Joseph C. Bellows, K.C., is the longest serving full-time Crown counsel in the province, having started at the provincial courthouse at 222 Main in 1976 after completing his articles. We offer this as evidence corroborating the story he tells at page 199 of this issue about his law school class having an upcoming 50th anniversary.

David Edinger is a partner at Singleton Urquhart Reynolds Vogel LLP. He employs his broad range of experience to assist clients with their various legal issues (local and multijurisdictional) and his firm with its (multijurisdictional) practice. He has some of the best hair in the business.

Kailey Graham is an associate at Singleton Urquhart Reynolds Vogel LLP. She maintains a broad commercial litigation practice, primarily handling disputes in employment, construction, professional liability and entertainment law, and provides pro bono services to low-income individuals and non-profit organizations.

Gordon Hilliker, K.C., has authored numerous publications including Liability Insurance Law in Canada, which has been referred to by trial and appellate courts across Canada. In this issue of the Advocate, he turns his attention away from the world of insurance to a troubling yet fascinating chapter in local legal history.

Thomas S. Woods, K.C., is a former editor of the Advocate, former editor in chief of the Commonwealth Judicial Journal, and—now that we have satisfied our editing priorities—a former judge of the Provincial Court of British Columbia. He spends a lot of time hanging out with author P.W. Bridgman.

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