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DR EDWIN BLEWETT PhD Economics (UBC, ( 1982) + Qualified as an experrt in BC Supreme Court & Canada’s Specific Claims C Tribunal + Negotiations support: r values of offers and counteroffers + PID opinions for commer m cial fishers + Economic value of damages + Strategic Consultations + Economic Valuationss + Expert Opinions

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OFFICERS AND EXECUTIVES

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Ryu Okayama, President

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Entre Nous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

On the Front Cover: The Honourable Chief Justice Ronald Skolrood

By Cameron Belsher, K.C. . . . . . . . . . . . . . . . . . . . . . . . . . . .

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ON THE FRONT COVER

Read all about the remarkable (and perhaps even swan-like!) Honourable Chief Justice Ronald Skolrood of the B.C. Supreme Court, starting on page 335 of this issue.

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Rebecca Huang FCIArb, Arbitrator O: +1 416-306-8452 E: rebecca.huang@nineac.com

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ENTRE NOUS

“I think if you’re starting off on a journey, starting on a journey over the seas, you steer by the stars. You steer by stars that are always in the same place in the heavens. That’s what you do in politics. If you haven’t any stars to steer by then it’s a pretty non-descript journey.”

—Margaret Hilda Thatcher, Baroness Thatcher

T

here was a joke circulating at the time former British Prime Minister Margaret Thatcher was on a tour promoting her memoir, The Downing Street Years, that the most collectible copies were those that were not autographed. It was on this tour in 1993 when she sat down with CBC news anchor, Peter Mansbridge, to discuss the book in what he later (and often) described as his most difficult interview.1 Baroness Thatcher was in a prickly mood and seemingly took a dislike to Mansbridge, who asked her to explain Thatcherism and in particular her unwillingness to use the words “compromise” and “consensus”. She kept suggesting that Mansbridge had not read her book and he kept assuring her he had. The tension between the two was palpable and it made for good television. Thatcher’s metaphor of steering by certain stars was obviously one she had rehearsed, and it was one she kept coming back to in order to put down both Mansbridge and her political opponents. Clearly, unlike her, they simply “did not have stars to steer by”.

The metaphor of having “stars to steer by” became a catch phrase among friends used ironically whenever attempting to deflate someone with an overstated position. “Clearly,” we would declare in our best Maggie Thatcher voices, “you do not have stars to steer by!”2 Those in the know would share

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along in the giggle, enjoying the snooty put down of someone else’s position.

However, one of the more bizarre twists in getting older—some 30 years after we started making fun of Thatcher’s snootiness—is finding oneself thinking: “Damn! Mrs. Thatcher may have actually had a good point!”

Thatcher’s nautical metaphor of a sea journey is a good one. The stars are certain. They are the clear knowable and measurable things that provide a sense of place. They are also the means for a skilled captain to figure out where the ship is and to chart a course to a specific destination or, if the destination is unknown, at least manage to set off in a particular direction.

Thatcher’s suggestion, of course, was that while she and her party had stars (i.e., principles) to steer by, others did not. And so, while her journey was one of certainty and purpose, her opponents had no stars or were focused on something other than the stars (shooting stars for example) and so they pretty much got nowhere, floating about rudderless. While it is a good metaphor, Baroness Thatcher perhaps did not fully think it through.

The first part of the metaphor is sound. Having stars to steer by just means having a clear means to set a course and get on track. A ship’s captain has acquired sufficient skills to navigate, command and be fully responsible for life and cargo aboard a vessel. Certainly, the winds may change and the seas may get rough. Scilla and Charybdis may even threaten on either side. However, as long as Odysseus can see the stars, the location can be known, the direction properly established, and he can set out on another adventure. Thatcher was wrong, however, to assume that only her party had stars to steer by and others did not. The stars she concedes “are always in the same place in the heavens”. They are the points of certainty that allow any captain to navigate any ship anywhere. They might choose different courses, but a sextant and a horizon and a fixed star are going to provide only one correct reading at a time.

Of course, her metaphor was limited to the world of politics, and she might have been using “stars” to mean “core principles of the Conservative party” with the idea that the Labour party had a different set of stars, or no stars at all. But this is where the metaphor runs aground. One cannot pick and choose stars. The stars are there in the sky. They can be studied, measured, interpreted, plotted and discussed. They are not different for everyone. They are “always in the same place”.

The “stars” in Westminster style politics (as in law) are the institutions, rules and norms of a liberal democracy based on the rule of law. Somewhat like the universe, the stars are limitless and boundless, but they are there— they can be studied and interpreted, measured and discussed. They can even evolve over time (after all, stars implode and are born anew). They

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can be used to plot different courses, but they are a foundation by which everyone engaged in the process can navigate through the world. When someone simply “steers by different stars”, they are not steering at all. They are not navigating. They do not just have a “pretty non-descript journey.”

They have embarked on a journey of chaos and destruction.

Imagine if someone came along and suddenly provided the captain of a ship with “an alternative set of stars” or “no stars at all” and said: “OK, now navigate!” No amount of talk could change the laws of physics, the placement of the planets in the solar system, the curvature of the earth or the measurement of a star against a horizon over time. But if someone forceful claimed that there were different stars to steer by or falsely alleged that the captain’s measurements were wrong, they could undermine certainty and the ship might start to veer dangerously off course.

This is exactly what is happening as this piece is being written. We are being told that ideals, norms and principles that for the past 80 years have been our collective stars to steer by no longer apply. Not only is the U.S. president systematically dismantling the rules and norms of the U.S. Constitution (more specifics of which are found elsewhere in this issue), he has upended the world’s system of trade by imposing tariffs based on dubious arithmetic and an absence of rationality. At the time of writing, the world is reeling as stock markets tumble and the world order is upended.

Causing stock markets to plummet is one thing. Convincing the world that the foundational principles of Western democracy are behind us is quite another. The anxiety that permeates our lives at the moment is, in part, caused by a belief that we no longer have stars to steer by. Everything feels uncertain. The world order, we are told, has shifted and things will never be the same. However, the ideals of Western democracy have not disappeared. Similarly, the principles of an ordered world that help provide security for Canada and its allies still exist. The norms and institutions we are familiar with may well be threatened; however, the ideals and principles which inform the rule of law are the very stars by which we must continue to steer.

Fiat justitia ruat caelum is the Latin legal phrase many of us in British Columbia walked under every day when entering the law school: “let justice be done though the heavens fall.” Right now, the heavens may well be falling. Let justice be done.

ENDNOTES 1. Available online: <youtu.be/e39GTheJqQM?si=d6 h1jUmyNW7i1xGZ>.

2. Truth be known, some of us did even better than Gillian Anderson in her portrayal of Mrs. Thatcher in the fourth season of The Crown.

ЖЖЖ

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ON THE FRONT COVER THE HONOURABLE CHIEF JUSTICE RONALD SKOLROOD

By Cameron Belsher, K.C.

O

n October 15, 2024, the Honourable Ronald Arthur Skolrood was appointed as the 17th Chief Justice of the Supreme Court of British Columbia. I am now supposed to say something like, “It is the culmination of a journey …”, but if you know Ron, that is not really his style.

Chief Justice Skolrood (a.k.a. Ron or Ronnie) was born in Vancouver, but it can safely be said that he is a Lethbridge boy at heart. Ron moved with his family to Lethbridge, Alberta at the age of six when his father, Harold, accepted a position as a founding faculty member at the new University of Lethbridge and the newly minted Faculty of Education. Ron’s mother, Isabelle, was a teacher so his interest to this day in teaching and mentoring is clearly an inherited family trait.

Notwithstanding the new Alberta roots, the family’s connection to British Columbia remained. Isabelle was born and raised in Vancouver and to maintain B.C. ties, she and Harold purchased a small lot on Piers Island not far from Swartz Bay. When asked about the cottage that remains in the family to this day, Ron recalls “My parents had a contractor put up the shell, but they basically built it themselves. That is where my dad learned to be handy—something not passed down to his son unfortunately.”

The Piers Island property, together with a cottage built closer to home on Flathead Lake in Montana, became summer focal points for the Skolrood family. A very interesting read on the 100-year history of Piers aptly named Piers Island: A Brief History of the Island and Its People, 1886–1993 was authored by Ron’s father.

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Ron attended the University of Lethbridge for his undergraduate studies and majored in English literature. He was active in student government and a proud member of the Pronghorn varsity volleyball team. However, according to Ron, the most important experience of those Lethbridge years was a 2 ½-month trip to Europe between his third and fourth year with the “boys from Lethbridge”. It is a testament to his knack for building and maintaining relationships that the “boys” still get together (at last year’s Grey Cup in Vancouver, for example, where some attendees couch surfed at the Skolrood home) and reminisce about the days they could actually jump and hit a volleyball over a net.

Following completion of his undergraduate studies, Ron loaded up his car—affectionately known as the “Queen of Lethbridge” for its obvious sleek lines—and headed west to attend the relatively new University of Victoria Faculty of Law. When asked “Why UVic?”, the proximity to Piers Island and a very generous scholarship were described as determining factors. It is no secret that Ron excelled in the UVic environment, and he made lifelong friends who still get together in Merritt each May long weekend for a happy reunion. He was very successful academically, which resulted in him obtaining articles at Lawson Lundell in Vancouver and, with Robert Grant, K.C., becoming one of the two B.C.-based Supreme Court of Canada clerks to Justice William McIntyre.

The year in Ottawa had a significant impact on Ron, an experience he describes as one of the great years of his life. It certainly heightened his interest in constitutional and public law issues and in the workings of the judiciary at the very highest level. However, it was the mentoring relationship with Justice McIntyre that left the most indelible impression. Says Ron: “Mac was stern yet warm and funny. He had no airs and he and his spouse, Mimi, had no qualms about coming over to my lousy one bedroom apartment for dinner and lengthy conversation.”

Following completion of his articles at Lawson Lundell, Ron then embarked on a year-long sojourn to Queens’ College, Cambridge to complete his LL.M. The year included much travel to the continent, an inordinate amount of reading of classical literature, contemplative legal studies and, most importantly, hockey. Yes, hockey. As a Canadian, Ron was automatically a member of the Cambridge Varsity Blues hockey team. As a poorskating winger with no real shot to speak of, he fit right in with the rest of the Cambridge cannon fodder for the annual grudge game against Oxford.

However, the game that year led to one of those experiences that could only happen in 1988, which was a world with no cell phones or text messages. Visiting Ron at the time of the Cambridge/Oxford game was his arti-

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cling pal, Dennis Parolin. After convincing Dennis to join the post-game Cambridge Varsity Blues hockey team annual picture at centre ice (Dennis was Canadian and could not skate so was well qualified), the two conspired to meet in Paris in two weeks. To this day Ron swears they were to meet in front of Notre Dame. Dennis swears the meeting point was the Eiffel Tower.

After both spent their entire day waiting in front of their respective iconic sites, they were resigned to there being no reunion. Ron, having developed additional interests than those from the days of the European trip with the boys from Lethbridge, had read about the new Musée d’Orsay, which had opened only recently. Eager to expand his horizons, Ron lined up for the opening of the Orsay, only to find Dennis in the same line. Some things are meant to be. Their interest in the Orsay was short-lived and the City of Lights beckoned for a day and evening of adventure.

Following his return to Canada to join Lawson Lundell as an associate, Ron embarked on a successful career at the firm for over 25 years specializing in the areas of commercial litigation and administrative law. His briefs were numerous and varied and included much work in pension and benefits litigation, pro bono public law briefs as well as complex commercial disputes. Once again, mentorship came to the fore. He cites Brian Wallace, K.C., and Chris Sanderson, K.C., as two mentors who particularly stood out as influences. As Ron’s tenure progressed, however, it was his interest in mentoring others, whether they be peers or juniors, that became an important part of his practice. Ron was a generous partner and, in the words of managing partner Cliff Proudfoot, a significant “glue person”. Ron’s reach was throughout the firm—partners often in his office working through complex issues and strategy and junior associates and articled students not really sure what they were doing just yet but needing guidance and a shot of confidence. According to Cliff, Ron was more than accessible to all. Ron won the firm’s inaugural mentor of the year award and won it on numerous other occasions.

During his time at the bar, Ron’s commitment to service was evident: a sessional lecturer at UVic and active alumnus; course group leader at UBC; member of the executive and then president of the Vancouver Bar Association; director and then chair of the BC Law Institute; chair of the CBA constitutional law sub-section; Law Society committee member; member of the council at Ryerson United Church; and coach of numerous of his children’s sports teams. In addition, he was as active in golf as his knees and swing would allow and, with his colleagues, won the slow pitch softball title in the VBA league. In the words of then partner, Peter Behie, K.C., “Ronnie was fairly athletic for someone with the slowest foot speed ever”.

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However, the most significant development during that period was that Ron met his soon to be life partner and best friend, Jane Murdoch. Jane was also an associate then partner at the firm and recently concluded a successful career as a C-suite executive at Finning. She is fiercely intelligent.

Together they have lived, laughed and loved with unbridled curiosity and passion. They are not identical in interests or outlook, but they have a foundation of mutual respect and admiration for each other’s traits (and quirks) that we should all be so lucky to emulate.

Together, they are parents to three now adult children. Hannah, who is the eldest, is embracing the family roots this summer through her upcoming marriage to Ezra on Piers Island. She has Ron’s passion for volleyball, although with a much higher vertical leap. Sam came next, has a quick wit and charm and caused the family to trot about North America one summer as his Little Mountain Little League team won the Canadian title and played in the Little League World Series in Williamsport, Pennsylvania. The youngest, Daniel, is the inquisitive one, very comfortable attending Ron and Jane’s dinner parties and, like Ron and Jane, engaging in meaty topics with a high degree of analytical prowess.

Jane has a unique gift of reading Ron at any given point in time. For example, a number of years ago while vacationing at Ron’s parents’ property on Flathead Lake in Montana, at about midnight Ron had the brilliant idea to hit biodegradable golf balls into the lake under the bright moonlight.

Jane was watching with indifference but bemusement, positioned on a bench slightly ahead of Ron’s improvised teeing ground. Ron took one mighty practice swing and Jane quickly responded by moving from the bench to a safer locale. Ron laughed and told her that she would be totally fine where she had been positioned. A mighty lash ensued and the ball shot off the toe of the club, resulting in the ball hitting the bench precisely in the spot where Jane had been positioned. There was no “I told you so” because that is never necessary between the best of friends. However, on some evenings, they say one can still hear the loud yell of “Ron!” echoing in the midnight moonlight.

Ron was appointed to the British Columbia Supreme Court in 2013 along with Justices Donegan, Fleming, Harris and Warren. The appointments were welcomed given the then many vacancies on the court. It was an environment in which Ron thrived. Justices were asked to take on a wide variety of matters in a variety of locales. I asked Ron about the learning curve in those years. He replied, “I think you have to embrace generalism or be scared by it. I always viewed it as an opportunity to continue to grow and reinvent yourself and to learn new things.”

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Ron travelled a great deal during those years to many of the courthouses outside the Lower Mainland and particularly enjoyed meeting the court staff and others who are crucial to the operation of our courts in all corners of our province. I also asked Ron what was his most important or memorable decision during his time at the court prior to his translation to the Court of Appeal. He responded a bit like a parent who is asked to identify their favourite child: “To be honest, I don’t have one that stands out. I always thought the last decision you made was the most important.”

In canvassing his colleagues on the court, consistent themes about Ron’s style and personality emerge: “generous”, “supportive”, “enthusiastic”, “smart” and “efficient” are mentioned again and again. It is those themes together with a penchant for building relationships that stand out. Since his appointment in 2013, each year he has organized biannual get togethers with his fellow 2013 appointees—one in June and another at Christmas. It often gives Ron a chance to connect, share experiences, stay up too late and show off his cooking skills, which remains an ever-growing passion.

He recently attended and furthered his skills at a five day “boot camp” run by the Culinary Institute of America, where his hobby and career intersected. I joined him for the boot camp. In the middle of attending to a particularly intricate sauce preparation, he received a call on his cell phone from a 613 (Ottawa) area code. It was one of the few times I have seen Ronnie become flustered. Thinking it might be “the call” from the Minister of Justice, he turned to me and said, “I think I have to take this”. He promptly walked out of the kitchen, leaving the sauce behind and in my less than capable hands. Luckily for me (and the sauce) the call was a false alarm, and it was back to cooking.

Ron was appointed to the Court of Appeal in 2022 and, in his words, “loved it”. His time there allowed him to be intellectually curious and consider and weigh in on the most important issues of the day in British Columbia. His efficiency (there is that word again) served him well and the collegiality was something that he found particularly impressive.

The appointment of Ron as Chief Justice of the Supreme Court in October 2024 was an immensely popular one within the court. His first few months have been spent canvassing stakeholders and working toward meeting with all Supreme Court justices throughout the province. I asked him about the direction of the court under his leadership. As is his style, the new Chief Justice responded in a direct and easily understood manner: “The days of defaulting to how things have always been done are over.

Timely access to the courts is critical. While process is important, it cannot be the objective. People don’t come to court for process, they come for

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results. The court needs to be proactive in assisting people in obtaining those results and less reticent about being more prescriptive about our expectations of litigants and counsel. We must be more efficient” (there is that word again).

In preparing this piece, I put it to Jane, who like Ron is a close and dear friend, that the new Chief Justice of the Supreme Court of British Columbia could best be described as a duck. She looked at me puzzled: “What do you mean?” I explained that Ron has a calm and measured demeanour that has served him well but underneath the water he has always been paddling furiously and working hard to maintain his serene position on the water. As is somewhat typical of many of my discussions with Jane, from time to time, she vehemently disagreed with me: “That’s just wrong Cam. Ron is not a duck, he is not paddling furiously underneath at all. He is just as calm and measured beneath the water as he is above it. He is organized, efficient and thoughtful. He is more like a swan.” Now I am not sure many of us would describe Chief Justice Skolrood as a swan. And to be fair, probably not a duck either. But Jane’s observation is bang on. Our new Chief Justice is completely genuine. He has no airs, like his mentor, Justice McIntyre. His sense of fairness, respect, community, family first and intellectual curiosity is all very real. The Supreme Court of British Columbia is in good hands.

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CRAFTING MEDIATION BRIEFS THAT MAKE A DIFFERENCE

By David Paul, K.C.

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well-organized mediation brief serves as a roadmap, offering clarity and direction while allowing you to present your client’s position concisely and persuasively. It brings attention to key points, legal arguments and desired outcomes, keeping discussions focused on issues that matter. A carefully drafted brief can improve communication and encourage strategic thinking by both counsel and their clients, thereby boosting the overall effectiveness of the mediation process. Not recognizing the importance of an effective mediation brief can represent a missed opportunity to encourage constructive dialogue and guide discussions toward resolution.

KEY BENEFITS OF A STRONG MEDIATION BRIEF Key benefits of creating a strong mediation brief include: •

Signalling Goodwill Crafting a persuasive brief demonstrates your preparation and understanding of the relevant legal issues. A well-drafted brief can also reflect your dedication and commitment to collaboration, which fosters a more productive mediation environment.

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Enhancing Clarity and Focus By clearly articulating your key points, legal arguments and desired outcomes in a structured manner, you minimize misunderstandings, streamline discussions and help keep everyone on track.

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Prioritizing the Issues Disputes often involve complex arguments. Briefs that highlight the issues needing the most attention allow all parties to concentrate on what truly matters.

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Enabling Strategic Advantage By outlining the case clearly and anticipating potential counterarguments, you can use your brief to develop and present an effective strategy for navigating the mediation and helping your client to achieve a settlement.

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Facilitating Understanding A mediation brief that uncovers the underlying interests driving each party’s position, fosters empathy and encourages constructive dialogue.

By prioritizing interests over positions, your brief can serve as a reference guide during the mediation, keeping parties focused on what matters and discouraging participants from falling into a win-lose mentality.

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Encouraging Risk Assessment A clear and compelling brief encourages parties to assess litigation risks realistically. It also informs the mediator about the issues at hand, enabling the mediator to assist the parties in evaluating the risks by highlighting the merits of opposing arguments and facilitating more informed decision-making.

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Empowering Mediators A well-prepared mediation brief enhances the mediator’s efficiency by providing crucial background information and context in advance. This disclosure allows the mediator to tailor the mediation process and better adjust strategies as the mediation progresses. It also enhances the mediator’s ability to have productive discussions, improve communication, handle surprises and manage party dynamics.

As the primary source of background information regarding the dispute for the mediator before the mediation begins, the mediation brief also boosts the mediator’s ability to demonstrate knowledge of the case.

This increase in knowledge, in turn, enhances the mediator’s credibility, fostering trust and encouraging open dialogue.

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Encouraging Settlement A brief that engages in meaningful dialogue highlights areas of potential agreement, outlines opportunities for compromise and lays the groundwork for constructive discussions.

RECOMMENDATIONS FOR CRAFTING AN EFFECTIVE BRIEF Here are recommendations for crafting a mediation brief that effectively presents your client’s case: •

Start early: Allow time for revisions so that you can provide your brief to the mediator and opposing counsel in advance.

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Be concise: Aim for a clear, concise and direct brief while providing necessary details and avoiding unnecessary fluff. Remember that mediators often juggle multiple cases, and a lengthy and poorly written brief can overwhelm them, hindering their grasp of core issues. A well-

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organized and focused brief will make a stronger impression on the other party and ultimately serve your client better. In my experience, a well-organized brief of 5 to 15 pages, depending on the number of issues, usually suffices. If your draft brief exceeds this limit, consider editing the brief by summarizing details in a table or spreadsheet or including supporting documents in an appendix.

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Ensure accuracy: Build trust by meticulously verifying all details.

Building credibility strengthens your client’s position and encourages opposing parties to engage more constructively.

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Streamline briefs by attaching evidence: When you have essential documents, attach them as supporting evidence rather than incorporating them directly into the main brief. This practice keeps the brief focused while providing context and information for a more informed discussion.

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Maintain a professional tone: Maintain a professional tone by being respectful and considerate in your language. Do not attempt to make your point by resorting to overly aggressive, accusatory or confrontational language. Instead, aim for a balanced approach that fosters open communication and sets a positive atmosphere for discussion. Your tone should convey that you and your client will mediate in good faith and participate in settlement discussions collaboratively.

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Understand your audience: Write with the mediator and the opposing party in mind, not a judge. Focus on finding solutions instead of trying to win an argument. By striving for understanding and collaboration, you improve the chances of achieving more productive outcomes for everyone involved.

Before submitting your mediation brief to the mediator and opposing counsel, consider asking a team member involved in the matter to review the brief and provide constructive feedback. Ask your colleague to evaluate the following aspects: •

Readability: Is the brief easy to comprehend?

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Logical structure: Is the brief logically organized with clear headings and subheadings?

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Clarity of language: Does the brief include legal terms that you could simplify for better understanding?

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Conciseness: Is the content concise and to the point? Are necessary documents included without overwhelming the main text?

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Professional tone: Does the brief maintain professionalism throughout?

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Persuasiveness: Are the arguments compelling and convincing?

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Clear objectives: Does the brief clearly outline your client’s positions and supporting interests?

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Prioritization of issues: Does the brief effectively highlight and prioritize the most critical issues?

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Sound legal reasoning: Are legal arguments well-supported by the case law?

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Addressing counterarguments: Does the brief anticipate and address potential counterarguments effectively?

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Compromise identification: Are possible areas for compromise identified and clearly expressed?

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Feasibility of solutions: Are the proposed solutions practical and achievable?

By focusing on these points, you will enhance the thoroughness and effectiveness of your brief, ensuring it is comprehensive, clear and conducive to a successful mediation.

RECOMMENDED STRUCTURE FOR A MEDIATION BRIEF A structured approach to your mediation brief helps you clearly and persuasively present your client’s interests and desired outcomes. For optimal clarity, use headings to differentiate key sections. Recommended headings include the following: 1. Introduction The introduction should offer a clear and concise summary of the dispute.

It is also an appropriate place to introduce a positive and collaborative tone for the mediation process by highlighting your client’s willingness to cooperate and engage in constructive dialogue.

2. Statement of Facts This section should provide a clear, concise and objective overview of the relevant background facts. Focus on the key events and circumstances that led to the conflict. Avoid unnecessary details and emotional or inflammatory language.

3. Procedural History Provide a concise overview of the procedural steps taken before mediation.

These might include the following:

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Filing dates: Dates of initial filings by each party

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Judicial case conference dates

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List of documents: Dates when parties exchanged their lists of documents, including any outstanding document requests

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Financial statements: Dates filed

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Interim orders: Dates interim orders issued, including their details

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Formal offers: Dates and details of any formal offers made

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Discovery dates

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Trial dates and trial

4. Issues Under this heading, identify the issues that require resolution. Listing the issues in the order you want them addressed can be beneficial. It aids mediators in their process design before mediation, allowing them to tailor their facilitation strategies for optimal effectiveness. Additionally, starting with the most straightforward and least significant issues and progressing to the more complex and contentious ones can enhance the parties’ confidence in the process, generating momentum for ongoing discussions.

5. Legal Analysis This section should focus on advocating the legal and evidentiary basis of your client’s stance on each issue with reasoned legal arguments based on the facts, contractual provisions between the parties, relevant statutes and case law. Using case law to provide an insightful analysis of how a judge might interpret the issues if the case were to go to trial can motivate parties to realistically assess their risks of not settling.

6. Interests and Objectives In addition to presenting legal arguments, your mediation brief should emphasize the deeper interests behind each of your client’s positions.

These interests might include their hopes, fears, concerns, needs and desires. Understanding these underlying interests is crucial for reaching a successful resolution, as effective agreements focus on what truly matters to the parties involved and not just their stated positions. By articulating shared interests and identifying possible areas for compromise, you pave the way for constructive dialogue and more effective negotiation.

7. Proposed Solutions and Settlement Terms Use this heading to share your client’s preferred solutions and settlement terms for each issue, considering the dispute’s legal and non-legal aspects.

Aim to propose solutions and areas of compromise that are realistic and achievable and consider the interests of everyone involved.

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8. Conclusion In concluding your brief, echo the central theme you want the mediator to take into the mediation. Thank the other side for engaging in mediation, and repeat your willingness to work collaboratively with opposing counsel and the mediator to find acceptable solutions.

AVOIDING COMMON PITFALLS To ensure effective mediation, be aware of practices that detract from the process, such as ignoring a mediator’s request for a mediation brief or common drafting pitfalls.

Not Complying with the Mediator’s Request for a Mediation Brief Some counsel overlook the mediator’s request for a brief or mistakenly assume that submitting copies of pleadings or settlement offers is sufficient. In my experience, this approach hinders the efficiency and effectiveness of the mediation process. By ignoring the mediator’s request for a brief, counsel miss the opportunity to inform the opposing party and mediator of the core issues and underlying interests, leaving both less prepared to participate in the mediation meaningfully. A thoughtfully prepared mediation brief offers the mediator valuable insights into the parties’ concerns and goals and facilitates the mediator’s efforts to design a mediation process that specifically addresses the dynamics and needs of the parties and fosters more productive discussions.

Common Drafting Pitfalls While a prepared mediation brief is a powerful tool, there are specific pitfalls you should avoid. Here is what not to include in your brief: •

Inflammatory Language, Blame Games and Personal Attacks Steer clear of accusatory language, blame games and personal attacks.

These strategies often put the other side on the defensive and hinder progress. As you draft your brief, remember mediation is about finding common ground, not settling old scores. With this goal in mind, concentrate on presenting your case objectively and professionally using language that fosters understanding and collaboration.

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Lengthy Narratives Brevity is essential. A concise and focused brief will make a stronger impression and ultimately benefit your case. Avoid lengthy narratives.

Concentrate on the critical facts and legal arguments pertinent to the dispute.

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Irrelevant Information Focus on the case. Avoid irrelevant details that obscure core issues.

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Keeping your brief on point will help ensure the mediation process remains efficient and productive.

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Attachment Overload: Less Is More While well-chosen attachments can support your arguments, resist the urge to include every document you can think of. Aim to provide a clear and concise overview rather than overwhelming the mediator and opposing counsel with excessive paperwork. Summarize lengthy contracts or financial statements in your brief, emphasizing the key excerpts. This strategy will help ensure the attached documents clarify and strengthen your mediation brief rather than detract from its clarity.

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Excessive Case Law Concentrate on the most relevant and recent case law that directly applies to your dispute. Avoid overwhelming your brief with lengthy citations; briefly summarize each case’s key points and clarify its relevance to your client’s situation.

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Excessive Legal Jargon Your mediation brief should be straightforward, easy to follow and clear of complicated legal jargon. This clarity will help everyone engage more effectively in the mediation process.

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Unrealistic Settlement Offers Mediation is about compromise. Highball opening offers or lowball responses provoke tension and impede progress. Instead, consider proposing realistic settlement ranges. This approach helps manage expectations, encourages constructive dialogue and fosters effective negotiations.

Additionally, I have found it effective when counsel outlines their client’s trial position. This strategy provides valuable context and helps align both parties’ expectations. However, caution is key. I have observed instances where counsel withdraws or threatens to withdraw from mediation because opposing counsel’s brief only discusses their trial position without mentioning their willingness to work collaboratively and compromise.

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Process Micromanaging The mediator is a neutral party facilitator. It is the mediator’s job to design the process. Do not dictate the process or timeline of the mediation to the mediator.

FOLLOW-UP AND REFLECTION Once mediation wraps up, take time to reflect on the process. Think about

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what worked and what did not work for both sides. Jot down your thoughts in a journal, highlighting key takeaways, successful approaches and any areas for improvement. This will help you track your growth, deepen your understanding of negotiation techniques, and refine strategies for future mediations. Embracing continuous improvement will not only enhance your skills but lead to more successful outcomes down the road.

CUSTOMIZING YOUR APPROACH TO MEDIATION BRIEFS While this paper offers suggestions for crafting an effective mediation brief, it is ultimately up to you to decide which strategies resonate most based on your experiences and the specific issues your client needs help resolving.

Every mediation brings its unique challenges. What works in one case might not be suitable for another. By trusting your professional judgment and recognizing the unique nuances of each situation, you can customize your approach to better meet your client’s needs and navigate the dynamics of the mediation process effectively.

CONCLUSION In conclusion, crafting an effective mediation brief can significantly enhance the mediation process and help you pave the way for meaningful resolutions. By providing a clear, organized and concise presentation of your client’s position, underlying interests and proposed solutions, you demonstrate professionalism and help cultivate a collaborative environment where dialogue and negotiation can thrive. The key benefits of a wellprepared brief underscore its power as a tool for empowerment for both the parties and the mediator.

By adhering to recommended practices and avoiding common pitfalls, you can create briefs that effectively convey essential arguments while fostering understanding and cooperation among all parties. As your mediation practice evolves, adapt your strategies and customize your approach to reflect the unique dynamics of each conflict. Through continuous reflection and improvement, you will hone your skills in crafting briefs that genuinely make a difference, ultimately leading to more successful mediation outcomes and happier clients.

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ADVICE FOR NEWLY CALLED LAWYERS

By Judge Paul Meyers (retired)

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uring an appeal of a trial judge’s decision, a Court of Appeal judge turned to the lawyer and quipped, “This judge brings new meaning to the phrase learning by trial and error.” That comment stayed with me because it underscored an important truth about the practice of law—that is, mistakes are both inevitable and invaluable. Both lawyers and judges are perpetual students of the law and observers of dynamics in a courtroom. Our learning comes from triumphs, yes, but also from our mistakes. After more than two decades on the Provincial Court bench, I can tell you that the process of learning how to refine both oral and written submissions and judgments never truly ends.

I hope to share some tough lessons that other lawyers and I had to learn the hard way. Whether you are taking your first tentative steps into the courtroom or building on your early stages of practice, these insights aim to guide you to turn challenges into opportunities for growth and to help you navigate the complexities of a profession that is as demanding as it is rewarding.

TO BE OR NOT TO BE WITTY IN THE COURTROOM The short answer to this question is “not to be”. I learned this lesson a long time ago.

I was defending an accused before a jury on a very serious criminal charge. It was necessary for me to vigorously cross-examine the complainant who happened to be an elderly woman. “Vigorously” does not necessarily mean intimidating and disrespectful. At one point, she became very angry at me and shouted, “Mr. Meyers, I predict that someday you will be very wealthy but you will rot in hell!” I was always taught that in crossexamination you should never let the witness take control. I immediately shot back, “Well, I hope that you are at least half right!”

Out of the corner of my eye I caught a glimpse of the jurors who looked completely annoyed. I lost the case. I always felt that it was my attempt at wit that did my client in. I had dreams that my client would spend his full nine years in Stony Mountain Penitentiary telling other inmates that he had a very witty but terrible lawyer.

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At one time, it was an unwritten rule that no one should be witty or humorous in the courtroom except for the judge. Now, even the judge should not use humour in the courtroom. The reason? Litigants, accused people, parents, friends or members of the public may be present in the courtroom. The people in the courtroom are likely to be puzzled by humour or wit and they are likely to misunderstand it or take offence. This is understandable given that most of the people in the courtroom are navigating a highly stressful legal proceeding. They will interpret humour in different ways, including outrage that a judge or lawyer was not taking the case seriously, or even worse, was mocking the litigants. A trial is supposed to be a solemn search for the truth. This purpose is eroded by any frivolity coming from the judge or counsel that is made in the presence of others. It is also important to remember that if a transcript is ever ordered, your comment will appear in the transcript and, no doubt, the Court of Appeal will not find it amusing.

A STICKLER FOR PUNCTUALITY Surprisingly, when I canvassed judges about their biggest irritations, a common complaint was “lawyers who come late to court”. Later, when I spoke with a number of trial lawyers, their most common response was, “Why come on time? My case never starts on time anyway!”

In fairness, the lawyers have a point. Trial, remand and application lists are often overbooked and there are too few other judges available to handle the overflow in addition to the cases already assigned to them. This is one of the main reasons why, much to the frustration of judges, counsel and litigants alike, many cases do not start on time. Just the same, lawyers are directed to be in the courtroom on time. Better yet, you should aim to be there even before court starts.

Arriving early gives you an opportunity to speak with the court clerk in advance and explain why your case should be given some priority. Just before court commences, the court clerk will discuss priorities with the judge. The judge will then decide how to triage the cases. This discussion happens minutes before the judge enters the courtroom. Arrive late and you will miss your chance to tell the court clerk why your case should be heard early and thereby risk the judge not giving your case priority. Perhaps your witnesses came from out of town, or your case may have already been adjourned multiple times. These are valid reasons for requesting priority.

Fortunately, courts often run on time. If you keep the court and the witnesses waiting, the judge may move another case ahead of yours and your matter could be adjourned to another day, likely months down the road.

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WHEN DOES YOUR COURT CASE ACTUALLY START? My first principal, Harry Walsh, Q.C., a renowned Manitoba criminal lawyer, once said to me: “Your court case starts the moment you leave your home to go to the courthouse and ends only when you arrive home at the end of the day.” He meant that when you speak with your client, another lawyer or anyone else whether before, during or after court, you must always be mindful of your surroundings and be aware of who is within earshot of your conversation. If you are not vigilant, you may end up in a lot of trouble!

Let me give you an example. On my way to the courthouse one day, I stopped for a coffee. From the booth behind me I could not help but overhear a lawyer advising his client how to better answer certain questions the Crown counsel was likely to ask. Each time his client answered an anticipated question, the lawyer would suggest a “better way” to respond. This routine went on for about five minutes.

I finished my coffee and we both ended up in line at the cashier. I proceeded to the courthouse. Who should be counsel on the first case called?

You guessed it: the lawyer from the restaurant. The moment he recognized me he turned completely pale. I recused myself without explanation and asked one of my sister judges to hear the case. Later that day, the lawyer called me to ask if I was going to report him to the Law Society. I told him that I would not because I was confident that he would never make that mistake again.

Please remember that you should always be mindful of your surroundings when you are discussing your case in a public place.

THE WALLS HAVE EARS Here is something you should know about the courtrooms. While you are waiting for court to start, the judge is often just behind the back door of the courtroom and they can hear everything, including any comments you might make about them. Judges are professionals and will do their best to ignore what they overhear. Nevertheless, I am sure that you would much rather avoid the awkwardness and embarrassment of knowing that the judge overheard your conversation.

ADDRESSING THE COURT How do you properly introduce yourself to the court? First, counsel for the claimant, plaintiff, applicant or Crown introduce themselves and their respective clients. Next, counsel for the defendant or accused introduces themselves and their respective clients. You should speak slowly and spell

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your last name for the court. Each counsel should remember to advise the judge how their client wants to be addressed.

After introductions, the claimant’s counsel or Crown counsel should rise and ask the judge if they want them to make an opening statement. If the judge says “yes,” provide a summary of the case, the issues and the proposed evidence and advise the judge which evidentiary issues will or will not be contested. Be sure to also mention how many witnesses will be called and the estimated length of the trial or hearing.

The respondent or defence counsel are next to address the judge but only to confirm the issues in dispute, the contested evidence, the number of witnesses they will call and the time required to complete the application or trial. If they wish, they may also provide a summary of the defendant’s arguments and, although less common, the arguments the accused will be advancing.

Another important step is to take a moment to look around the courtroom to ensure that any witness who is to be called is not inside the courtroom. You should also ask the judge to make a formal order excluding all the witnesses.

This is particularly important. Often, in the afternoon, witnesses who were not in the courtroom in the morning would not have been there to hear the exclusion order and might have unknowingly entered the courtroom.

DO NOT ASSUME THE JUDGE IS OMNISCIENT Every judge in British Columbia presides over criminal, civil and family cases. Most come from practices focused on only one or two of these areas of the law. It is fair to expect that not all judges, particularly newly appointed judges, are equally knowledgeable and experienced in the specific area of law relevant to your case.

Do a little research [most judges are recognized in the Advocate when they are appointed – Ed.]. Talk to your colleagues to determine whether your judge has expertise in the area you will be litigating. Do not hesitate to “spoon feed” until the judge tells you to move on. Most judges do not take offence if you systematically walk them through the law, provided you do so in a respectful manner. Indeed, most judges will appreciate this approach.

I am reminded of a true story in the Court of Appeal. One of the justices leaned forward during counsel’s opening submission and said, “Counsel, please give us credit for knowing at least a little bit of law!” Counsel replied, “Very well, but that’s the mistake I made in the court below!”

Notwithstanding this story, I stand by my advice that carefully guiding the judge through the law is usually a good plan.

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NEVER INTERRUPT OPPOSING COUNSEL In any hearing or trial, do not interrupt opposing counsel. There is no need to interrupt. You will get your turn. Remember as well, you should not be standing while opposing counsel is speaking.

This is an important protocol to follow because it displays courtesy to everyone: the judge, the court, opposing counsel, witnesses and members of the public who might be observing that day. You only need to have watched any of the recent American political debates or interviews on TV to see how uncivilized, obnoxious and unhelpful constant interruptions are to the moderator, adjudicator and audience. There is also a more strategic reason to avoid interrupting. As the adage goes, “Never interrupt your opponent when they are inadvertently helping your case!”

THE ART OF THE OBJECTION During a trial, there will be times when you must object. The proper way to do so is to rise and say, “Objection, Your Honour (or Judge),” then wait a second or two for the judge to signal you to proceed. State the basis for your objection clearly, then sit down and allow opposing counsel to respond.

Make sure your objection is both important and necessary for your case.

Few things annoy a judge more than constant, unnecessary or frivolous objections. And if you are dealing with a self-represented litigant on the other side, tread even more carefully because repeated inconsequential objections will irritate the judge even more!

If the opposing counsel wants to offer a rebuttal they should stand and do so. As for sur-rebuttals, counsel must first ask the judge for permission. Surrebuttal is a privilege, not an automatic right.

Finally, it is common for newer counsel to face and argue with each other while making their submissions, seeming to forget the judge is even in the room. Do not make this mistake. The judge, not opposing counsel, is the only person you need to convince.

BUT JUDGE, YOU ARE WRONG! Whenever you disagree with what a judge said, first, pause and ask yourself if the correction is truly worth making. Never interrupt the judge. Wait until they are finished. If you have decided that it is important to correct what the judge said, do not begin with, “I object to your Honour’s statement that … ”. You are not allowed to object to what a judge says but rather you can seek to clarify what may have been a “misunderstanding” by the judge.

Instead, always preface your remarks with these simple words, “With respect, Your Honour (or Judge), I submit that … ”.

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The late H.A.D. Oliver, Q.C., an outstanding courtroom lawyer, once told me you can say virtually anything to a judge provided you preface with the words “With respect, Your Honour … ”. He added if the judge said something extremely incorrect, preface it with the words “With the greatest respect, Your Honour … ”. However, if the judge said something truly outrageous, preface it “With the greatest conceivable respect, Your Honour …”.

TO WRITE OR NOT TO WRITE Written final submissions are often more helpful than oral submissions at the end of the case. Remember, judges hear many cases between the time your case ends and when the decision is rendered, possibly six months later. The written submissions are read in peace and quiet and often serve to refresh the judge’s memory of what was significant in the case. It also allows you to provide more case law, which is always helpful to a judge.

Although it is much easier to make an oral final submission directly from the counsel table rather than having to set aside a considerable amount of your time to carefully craft a written submission, I would suggest you make your final submission in writing.

BEFORE YOU LEAVE THE COURT After the judge has made their decision or order, it is time for you to stop arguing. No arguing or grimacing: just be silent and gracious, bow and leave the courtroom.

As you navigate the early years of your legal career, remember that your courtroom experience is all about learning how you can become an even better barrister. Mistakes will happen but they can be invaluable teachers if you take the lessons you learned to heart.

Whether it be to arrive early, always be courteous or keep your wit in check, the small details matter. Over time, these habits will help you build the skills, confidence and reputation needed to thrive in this profession.

I hope the observations and insights that I have shared with you will make your courtroom journey smoother and perhaps more enjoyable.

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POSITIVE COVENANTS AND THE INHERENT INSTABILITY OF ALTERATION AGREEMENTS WITHIN CONDOMINIUM: THE OWNERS, STRATA PLAN NW 2476 v. JENSEN

By Douglas C. Harris1

P

ositive covenants—contractual obligations to do things that touch and concern land—are not recognized as property interests at law or in equity. A positive covenant, including the requirement to maintain or repair a building, only binds the parties that contract to be bound.2 The obligation is personal to the contracting parties and does not run with the land; future owners are bound only if they agree to be bound. The Supreme Court of Canada confirmed as much in 2020 in a dispute between owners of air space parcels over an obligation to pay parking fees: “Where positive covenants are concerned, the general rule is that they do not run with the land.”3 In The Owners, Strata Plan NW 2476 v. Jensen,4 the British Columbia Civil Resolution Tribunal (the “CRT”) ruled that Trevor Jensen, the owner of Strata Lot 1 in a duplex-style complex with nine buildings and seventeen strata lots, was responsible for the cost of replacing two skylights that a former owner had installed in the roof under an alteration agreement with the strata corporation.

The strata corporation’s bylaws allowed alteration agreements to permit such modifications to common property (including the roofs of strata lots), but only if the owner agreed “to take responsibility for any costs relating to the alteration as well as the future repair and maintenance”.5 In this instance, the former owner had agreed to assume future costs associated with the skylights, and thus to indemnify the strata corporation. Moreover, the alteration agreement purported to bind the owner’s “heirs, successors and assigns”, i.e., future owners, to costs associated with the alteration in the common property.6 Under the Strata Property Act, a strata lot owner must disclose to prospective purchasers any agreements in which the owner has taken responsibil-

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ity for costs relating to an alteration.7 Owners make this disclosure in a Form B Information Certificate by answering the following question: Are there any agreements under which the owner of the strata lot described above takes responsibility for expenses relating to alterations to the strata lot, the common property or the common assets? __no __yes [attach copy of all agreements]8

In this instance, Jensen acknowledged that he had received the completed Form B and the alteration agreement.9 There was no doubt he had notice that the former owner had indemnified the strata corporation for costs related to the skylights. During the CRT process, he also accepted that he was bound under the alteration agreement for those costs,10 although in doing so he inadvertently conceded the principal legal issue.11 Instead, Jensen argued that the strata corporation had undertaken an unnecessary repair.12 The CRT ruled that the combined effect of the bylaw, which requires indemnification of the strata corporation as a condition of an alteration agreement, and the provisions in the Strata Property Act, which compel a seller to disclose these agreements, “is that a purchaser may become a party to an indemnity agreement about common property as long as the indemnity agreement is properly disclosed on a Form B Information Certificate and includes language about binding future owners.”13 In short, Jensen had notice of the alteration agreement and was bound by its terms. The CRT accepted the strata corporation’s assessment of the need for the repair and ordered him to reimburse the cost of replacing the skylights.14 The doctrine of notice, labelled “the polar star of equity”, has played a leading role in the development of property law. In particular, notice, or the absence of notice, has the capacity to upend the priority usually accorded to property interests that are first in time.15 This is why title registration systems purport to abolish the doctrine of notice.16 The registration of interests is to determine priority, not whether a purchaser has notice of a prior unregistered interest. But whether or not the doctrine of notice still has a role in determining priorities among property interests, notice does not create property interests.

There is one important exception to this rule. In 1848, the English Court of Equity in Tulk v. Moxhay, a dispute over whether building could occur in Leicester Square, ruled that a restrictive covenant—an obligation not to do something that touches and concerns land—bound an owner who was not a party to the original covenant, and who had not agreed to be bound by its restrictions, because he had notice of the prior covenant.17 This decision forms the basis for the judicial recognition of restrictive covenants as property interests in which the burden of the restriction—the obligation not to

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do something—extends to subsequent owners of a property whether or not they have agreed to be bound. Restrictive covenants can attach to the property and, when they do, are said to run with the land. Put another way, the obligation is not just personal to the party who agreed to be bound, but binds future owners as well.

The same property status does not extend to positive covenants; at law and in equity, the burden to do something, such as to maintain and repair property, will bind only those who agree under contract to be bound. Statutory intervention to alter this rule is always possible. Indeed, one of the important functions of condominium legislation, such as British Columbia’s Strata Property Act, is to create a framework in which strata corporations may compel unit owners to pay regular fees or special levies. This positive obligation attaches to individual strata lots and binds all owners without the need to secure consent by contract.

However, there are no provisions in the Strata Property Act that bind the owner of a strata lot to a former owner’s agreement to take responsibility for alterations to common property.18 The requirement to disclose these agreements through a Form B does the important work of providing a buyer with notice of the agreement, but that disclosure does not do the additional work of converting positive covenants into property interests that run with the land. Neither a strata corporation bylaw which requires indemnifying the strata corporation for future costs related to the alteration as a condition of approving the alteration, nor an alteration agreement that purports to extend the obligation to future owners, converts a contractual obligation into a burden that binds future owners.

Strata property is a creature of statute, but the statutory framework is built on a legal foundation that includes property law.19 Property doctrine still matters, and the CRT overlooked the rule that positive covenants are not property interests when it compelled Jensen to pay for repairs that a former owner agreed by contract to undertake. This oversight is understandable in the context of a statute that compels owners to assume positive obligations, including the payment of strata fees, irrespective of contracted obligation. Nonetheless, the decision in Jensen is wrong: without clear statutory direction, positive covenants do not run with the land. Moreover, subsequent reference to that ruling should serve as a reminder for CRT tribunal members to be cautious when turning to prior CRT decisions for guidance.20 Consistency is an important virtue in administrative tribunal decision-making, but not when it reproduces errors.21 Alteration agreements that compel owners to assume future costs related to the alteration of common property do not indemnify strata corporations

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for those costs as fully as the CRT decision in Jensen suggests. The agreements will bind the owners who have contracted themselves to be bound, but not others. If strata corporations are prepared to enter alteration agreements, but only if indemnified against future costs, then one option is to include a provision in the agreements that requires an owner to secure a purchaser’s consent to be bound by the alteration agreement as a condition of the sale of a strata lot. In this regard, the BC Strata Property Practice Manual recommends: “An alteration agreement should include a covenant by the owner to make the sale of their strata lot subject to the assumption of the alteration agreement by the purchaser.”22 However, relying on the owners of strata lots to secure assumption agreements from purchasers is a partial solution at best. Strata corporations are not involved in the transfer of strata lots and so have limited capacity to ensure that owners will secure a purchaser’s agreement to be bound by an alteration agreement. At a minimum, strata corporations should maintain careful records of the chain of contracts in which owners agree to assume responsibility for costs associated with alterations, but record keeping does not ensure that the chain continues. Alteration agreements that purport to indemnify a strata corporation for future costs related to an alteration are inherently unstable in the long term, notwithstanding the CRT decision in Jensen.

Beyond the instability of these agreements, assigning individual responsibility for a portion of the common property can produce significant challenges between owners when the whole requires work. Indemnification agreements that outlast the parties also have the potential to add an undesirable degree of complexity to property in strata lots.23 Just as strata corporations should be cautious about alteration agreements, the province should act carefully if it were to consider statutory amendments to facilitate the conversion of these positive covenants into property interests.

ENDNOTES 1. The author thanks Jennifer Neville of Hamilton & Company, Samuel Beswick, Adam Hofri-Winogradow and Drew Yewchuk for comments on earlier drafts.

2. Eran Kaplinsky, Malcolm Lavoie & Jane Thomson, Ziff’s Principles of Property Law (Toronto: Thomson Reuters, 2023) at 480.

3. Owners, Strata Plan LMS 3905 v Crystal Square Parking Corp, 2020 SCC 29 at para 18.

4. 2023 BCCRT 623 [Jensen].

5. Southlake Townhomes NW-2476 Bylaws, s 6(2), as amended 18 May 2011, Land Title & Survey Authority, Doc # BB1325995.

6. Jensen, supra note 4 at para 20.

7. Strata Property Act, SBC 1998, c 43, s 59(3)(c).

8. Strata Property Regulations, BC Reg 43/2000, Form B [italics in original].

9. Jensen, supra note 4 at para 22.

10. Ibid at para 20.

11. This concession is understandable. Katie Sykes et al, “Civil Revolution: User Experiences with British Columbia’s Online Court” (2022) 37:1 Windsor YB Access Just 161 at 183 point out that the simpler processes of the CRT, which are intended to enhance access to justice by restricting use of legal representation, “cannot completely mitigate the complexity of the underlying law”.

12. Jensen, supra note 4 at para 23.

13. Ibid at para 21.

14. Ibid at para 46.

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15. In particular, the bona fide purchaser for value of a legal interest without notice of a prior equitable interest takes that legal interest unburdened by the prior equitable interest. See Kaplinsky, Lavoie & Thomson, supra note 2 at 532–37.

16. Douglas C Harris & May Au, “Title Registration and the Abolition of Notice” (2014) 47 UBC L Rev 535.

17. Tulk v Moxhay, [1848] EWHC Ch J34. See Bruce Ziff, “Bumble Bees Cannot Fly, and Restrictive Covenants Cannot Run” in Anneke Smit & Marcia Valiante, eds, Public Interest, Private Property: Law and Planning Policy in Canada (Vancouver: UBC Press, 2015).

18. The Strata Property Act, supra note 7, s 90.3(1)(b), as introduced by the Strata Property Amendment Act, SBC 2023, c 21, s 7, provides that an owner who requests alterations to common property to accommodate electric vehicle infrastructure will be “responsible for any expenses associated with making the alteration, unless otherwise agreed between the owner and the strata corporation”. The amendments are silent on whether this responsibility might

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extend to purchasers of the strata lot held by the owner who entered the alteration agreement.

19. See the frequently cited statement by Justice Cromwell, then of the Nova Scotia Court of Appeal, in 2475813 Nova Scotia Ltd v Rodgers, 2001 NSCA 12 at para 5.

20. See Therrien Investments Ltd v The Owners, Strata Plan VIS 7041, 2023 BCCRT 931 at para 53.

21. Douglas C Harris & Sophie Marshall, “An Error of Law and the Credibility of the Civil Resolution Tribunal” (24 April 2018), CanLII Connects, online: <canlii connects.org/en/commentaries/61913>.

22. BC Strata Property Practice Manual (2024 Update), Chapter 4 Common Property, VIII Alternations to Common Property, D Indemnity Agreements Related to Alterations [§4.33]. See also Jennifer Neville, “Bylaws: What a Council Needs to Know” (2023) Fall CHOA Journal 5 at 6.

23. On the challenges of complexity, see Douglas C Harris, “Volumetric Subdivision and the Architectures of Property” (2025) 9 J Prop L Soc 1.

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JUSTIN, WE’VE SHRUNK THE CANADIAN CONSTITUTION!*

By Jim Reynolds

I “

t’s Bateman, not to be confused with Bartleman,” thought Alexander Boris de Pfeffel Johnson (“Boris” for short) as he leaned back in his leather chair overlooking Downing Street. He wanted to get the name of his Minister for Brexit straight before he placed his call to Justin Trudeau to tell him of a slight problem that had arisen in his rush to get Brexit done. In the process, Bateman had reversed Canadian independence, restored Canada to colonial status and repealed the Canadian Charter of Rights and Freedoms and the provisions protecting Aboriginal and treaty rights. All through an unfortunate oversight.

Boris had recently won a landslide electoral victory using the slogan “Get Brexit Done!” to remove the United Kingdom from the European Union—a campaign full of union jacks, spitfires, jingoism and imperial nostalgia. A prominent theme was the impact of European bureaucracy and the need to repeal thousands of regulations. Some of them had been made in Brussels but many others were made in the U.K. to harmonize U.K. law with that of the rest of the E.U. His party had promised a bonfire of those U.K. statutes, regulations, orders in council, proclamations and court decisions.

He smiled as he thought back on his campaign. There was a great deal of creative licence employed in developing Euro-myths. It was all a jolly bit of fun.

He especially liked his denunciation of the (wholly fictitious) regulation to compel British fish and chip shops to make each chip a uniform size not exceeding prescribed specifications in millimetres for thickness and length and to describe them as “frites”. The requirement for bananas to have a prescribed bend to them was also a favourite. Of course, it was all piffle and nobody believed any of it. That was not the point. He had effectively shown that politics was a performance art. With his carefully maintained unkept hair giving him a clownish appearance, his brand was humour. He left horror to others.

Once elected, he wanted to carry out his promise to repeal all the U.K. laws that had implemented E.U. law. Although a journalist and not a lawyer,

* This story won first place in the 2024 Advocate Short Fiction Competition.

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he saw no difficulty with this. The House of Lords, then the highest court, had confirmed that Parliament could make or unmake any law it wished.

The court had specifically confirmed Parliament’s ability to repeal any prior statute used to introduce E.U. law. Indeed, another of his campaign slogans had been “Make Parliament Supreme Again.” The court had also upheld socalled “Henry VIII clauses” named after that monarch’s preference to do away with parliamentary meddling. They allowed a minister to repeal certain existing legislation by a stroke of the pen without any express parliamentary approval or review. The power had already been used to repeal some E.U. laws. What could go wrong?

Boris had first asked his Attorney General, James Bartleman, to prepare and sign the necessary regulation to repeal the offending legislation. Bartleman was a decent sort. Like most of the other members of Cabinet, he had the right background—parents of the right class, exclusive private school education followed by an Oxbridge education. He was a prominent barrister (a “silk”) in a leading set of commercial barristers with their chambers adjoining Fountain Court at the Middle Temple. Momentarily, Boris lapsed into his customary day dreaming and thought of the words of Charles Dickens writing of the fountain in Martin Chuzzlewit, “merrily the tiny fountain played and merrily the dimples sparkled on its sunny face … softly the whispering water broke and fell; and roguishly the dimples twinkled.”

Awakening, he thought of how Bartleman had raised all types of problems with repealing the U.K. statutes. To do it properly would take months, even a couple of years. An army of civil servants would be required. There were literally thousands of pieces of law to review to ensure that all the relevant material was captured and no unintended consequences occurred.

Bartleman really was a girly swot, just like former prime minister and fellow Etonian David Cameron although, at least, Cameron had also been a fellow member of the Bullingdon Club at Oxford, known for the wealth, breeding and bad behaviour of its members. Bartleman had refused to join.

Boris knew then that he could not be entirely trusted to do what had to be done. Unlike their hero, Margaret Thatcher, he was not prepared to take bold action and reverse years of consensus politics to achieve their ambition of returning to the Victorian laissez-faire (now renamed libertarian) era when Britain ruled a quarter of the world.

After becoming frustrated with the delays and endless (unread) memos from Bartleman, Boris turned to his Minister for Brexit, Joseph St. John Grosvenor Plunkett Bateman. Despite their similar early backgrounds and names, their personalities were very different. Bateman had become an investment banker and beneficiary of Thatcher’s Big Bang deregulating

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financial markets. He had a big picture of her next to his bed. Her stern demeanour reminded him of his beloved nanny. Deregulation had worked out very well for him and his colleagues although the financial system had melted down a couple of times since. His exaggerated upper-class manner of talking and dressing in striped shirts and double-breasted suits made him somewhat of a caricature figure. This anachronistic style had led to descriptions of him as the Right Honourable Member for the British Empire. But he didn’t mind—all publicity was good for a politician. The daring of his imperial ancestors ran in his blood. They had added thousands of square miles to the Empire by treaties signed with so-called chiefs, sometimes appointed by the British, written in unintelligible legalese and in a language not understood by the Indigenous signatories, often in the shadow of a fearsome Maxim gun conveniently demonstrated nearby. Sometimes, a treaty of only a paragraph or two purported to transfer vast territories. At best, treaties had been “an amiable farce” in the words of one imperial representative and described as “make-believe” and “naked deception” by another. If Bateman’s ancestors could acquire an empire through such lawfare, he could certainly end European dominance by one equally bold stroke.

He knew that there was always a simple answer to a complex problem and, in this case, it would be using the Henry VIII powers in the Spent Legislation Act. The Act clearly stated that a minister could repeal by a simple regulation any legislation that he considered spent. After all, there was no point in taking up parliamentary time to discuss obsolete legislation such as the provision repealed in 1960 requiring every Englishman to practise with a longbow. The task could safely be delegated to a minister. Brexit had reasserted the supremacy of Parliament. Therefore, any U.K. laws that limited Parliament’s powers was obviously now spent and could be repealed. It would not take a bonfire to repeal the E.U. related laws—a metaphorical matchstick, a stroke of the pen, would do the job. He would call it The Supremacy of Parliament Regulation to honour the traditional supremacy of the U.K. Parliament that had been tarnished by the European Union. The necessary wording came to him in an instant and he wrote it down on a yellow Post-it note: “Any statutes that limit the supremacy of Parliament are hereby repealed in their entirety and, for greater certainty, are of no force and effect.” For good measure, he added “and they should be immediately removed from the Parliamentary Archives.” No point in cluttering up the bulging shelves of the parliamentary archives with repealed legislation.

He looked over his work with satisfaction. His boldness had achieved what months of fussing around by Bartleman had failed to achieve. He was a religious man and the simplicity and elegance of the wording made him

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think of the Ten Commandments. Why go on for pages about murder and theft when they could be effectively forbidden in a couple of sentences?

Why try to list all the specific provisions to be repealed as Bartleman had insisted? You were bound to miss some and they would live a ghostly life clanking their chains and throwing doubt on the law. “Any” meant “any”. No restriction on Parliament’s supremacy could remain. Quick and simple. He sent a WhatsApp to the chief parliamentary draftsman telling him to put the wording on the necessary form and have it on his desk the next day where it duly appeared. He signed it and, once it had been put on the internet, it immediately took effect under the Spent Legislation Act. He and Boris celebrated at their club but nobody else noticed it or gave it a second thought.

A few months later, Professor Joe Jacobs was in the Parliamentary Archives in London waiting for the originals of some of Canada’s constitutional documents to be retrieved from the basement storage. He taught law at the University of British Columbia and wanted to view as many as he could. It was frustrating and humiliating to him as a proud Canadian that he had to go to England to view the original documents setting out the supreme law of Canada.

There were about 25 documents listed in the Constitution Act, 1982 as forming the Constitution. A couple were Canadian, but most were statutes passed by the U.K. Parliament. In particular, these included the British North America Act, 1867 (renamed the Constitution Act, 1867), the Statute of Westminster 1931 and the Canada Act 1982. These statutes were known, at least by name, to most Canadians although few knew their details or that they were U.K. and not Canadian laws. The first confederated the British colonies and set out the basic constitutional structure based on that of the U.K. Most people wrongly thought it had something to do with independence and it was celebrated each year on July 1. It had been passed by U.K. parliamentarians who were somewhat bored by its ponderous prose, enacted it rapidly without much debate and then turned in relief to the next piece of legislation dealing with dog taxes. The Statute of Westminster did have much more to do with independence although it was still not completely clear whether it conferred that status. In particular, it had said no U.K. legislation would apply to Canada and the other white dominions such as Newfoundland unless it expressly stated that they had consented. It also said that those dominions would no longer be considered colonies.

The Canada Act 1982 was a bit more complicated. Passed by “the Lords Spiritual and Temporal and Commons” at the request of the Canadian Senate and House of Commons, it was chapter 11 of the U.K. statutes of that year, sandwiched between chapters 10 and 12 which covered industrial

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training and travel concessions. It had only four sections. The first stated, “The Constitution Act, 1982 set out in Schedule B to this Act is hereby enacted for and shall have the force of law in Canada and shall come into force as provided in that Act.” The second that “No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law.” The third gave the French version set out in Schedule A effect in Canada and the fourth gave its short title. To find the Canadian Charter of Rights and Freedoms and s. 35 (the provision protecting Aboriginal and treaty rights), you had to go to Schedule B. Jacobs was a bit embarrassed by seeing these fundamental statements of Canadian liberties shoved to the back of an appendage to a statute of what was now a foreign country, a country to which he felt no real connection.

He resented being forced to accept the hereditary British monarch as Canada’s head of state despite his beliefs in democracy and meritocracy.

As he waited to receive the documents, Jacobs could not help but envy the citizens of India who had insisted on having their own head of state and a Constitution made in the name of the People of India. Their Constitution had been beautifully illustrated and was kept in a special helium-filled case in the Indian Library of Parliament and not the dark and dusty basement of the archives of a foreign country. If only Canadian politicians had done the same. That would, indeed, have amounted to “patriation” and been worthy of an independent state. No matter, he would soon have in his hands key parts of the Canadian Constitution and especially the Canadian Charter of Rights and Freedoms and s. 35, upon which so much of the liberties of Canadians now depended. His thoughts were interrupted by the return of the clerk who had gone to look for the documents. With great politeness, he apologized for not being able to find them all. The British North America Act, 1867 was there but not the Statute of Westminster or the Canada Act 1982. In their place, he found handwritten notes to say that, in accordance with The Supremacy of Parliament Regulation, they had been repealed since they limited the supremacy of the U.K Parliament and so had been removed from the Parliamentary Archives. Jacobs burst into tears.

Boris had been told of the mix-up. Of course, it was understandable. Bateman was a bit dim but he could not be expected to think of Canada. Nobody could. It had long ceased to be the Great Dominion, a cornerstone of the British World and junior owner of the Empire. But he still had to tell Justin, a good sort with the right pedigree and exclusive schooling. One of his ancestors had even been a founder of Singapore. But Justin was a bit woke, especially those flamboyant socks. Perhaps he would see the funny side. He might even agree that it was for the best. The U.K. had abandoned the

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Empire to join Europe in the 1960s, leaving Canada somewhat bereft and in an arrested state of constitutional development, languishing in a sort of halfway house, not quite a real country with its own head of state and constitution but not a colony either. Lapsing again into daydream, Boris dared to think that, now that the U.K. was free of Europe, it could resume its role as the mother country of the Empire. It could, at least, revive the original commonwealth of white settler states without the bothersome Indians and Africans banging on about independence. Boris recalled the impassioned speech to the Empire Club of Canada by R.B. Bennett (later Canadian prime minister and, even later, a member of the House of Lords) who had extolled the virtues of the Empire and pronounced, “How can you and I think of independence, how can we be concerned about an independent Canada?

[Applause]” Justin might agree and, when his time as prime minister was up, perhaps might like to follow Bennett into the Lords. Their colourful robes would look good on him and go well with those socks.

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“Winchel Sea I” by Magdalena Johnson, Acrylic on Canvas, 36'' x 36'', 2025 Available at Kurbatoff Gallery, 2435 Granville St., Vancouver Visit the website: kurbatoffgallery.com

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

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THE WINE COLUMN

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

VINI BIANCHI! A SAMPLING OF ITALIAN WHITE WINES Everyone loves an underdog, but this is not always the case in the world of wine, particularly in the world of white wine. Consumers tend to flock to the “favourites”—Chardonnay, Sauvignon Blanc, Pinot Gris—and avoid wines that do not carry these familiar names on their labels. And when it comes to Italian wine, the average North American consumer tends to stay away from white wine altogether, preferring the more widely known Chiantis, Brunellos and Barolos. If there is an underdog in the wine world, it is the underrated white wines of Italy. In this column we discuss some of the best white wines Italy has to offer—and perhaps a few you have never heard of or tried. As such, we will not be talking about the ubiquitous Prosecco or the mass-produced Pinot Grigio, but rather the relatively unknown indigenous grapes like Vermentino, Turbiana, Carricante and Arneis, and the way in which the Italians have used viticulture and blending techniques to impart a unique quality to some of the classic French varietals.

On a recent visit to Puglia—the heel of “the boot”—we made inquiries of the restaurant manager at our seaside hotel, Fabio Tesoro, about local white wine that we could enjoy with our meal. We explained how in Vancouver most of the Pugliese wines at our wine stores were red wines, made from Primitivo or Negroamaro grapes. Eager to provide us with an education on the quality of the white wine in his native region, Fabio proceeded to tell us about the increased attention given in recent years to their “vino bianco”, both in the vineyard and at the winery. With no shortage of enthusiasm, he quickly brought out two perfectly chilled wines to prove his point. One was

* Paul Daykin, K.C., is associate counsel of the firm Daykin Walker Kaderly Wahid LLP. Bruno De Vita, K.C., is a partner at Alexander Holburn Beaudin + Lang LLP. Friends since the age of 10, they sipped their first wine from a gallon in the cantina of Raffaele De Vita, Bruno’s dad. They have been enjoying wine together ever since, although not from a jug.

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a wine made from a grape called Minutolo, a local varietal which had come close to extinction before being revived a few decades ago by a small group of dedicated growers. For a region known for its extreme summer heat, the wine displayed a refreshing acidity, alongside its notable aromatics. The second came from a well-known producer, San Marzano. The wine was called “Edda”, meaning “She” in the local dialect, a delicious blend of Chardonnay and an undisclosed combination of indigenous Pugliese grapes which apparently compete each vintage for inclusion in the blend. The point here is that even in a region where you might least expect white wines to prosper, the Italians are producing wines of superb quality. About a year after our visit, we located the Edda wine in one of the local private stores and it is featured in our tastings below. Unfortunately, we have not found the Minutolo.

It would be impossible to feature all the white wines of Italy in the space allotted for this column, so we will focus on the places in Italy where we have found the white wines to be particularly good and generally available at local wine stores.

The Islands: Sicily and Sardinia Over the centuries, Sicily has been occupied or settled by the Phoenicians, Greeks, Romans, Arabs, Normans and Spaniards and throughout this grand isle, the traditions of these cultures are evident in various aspects of life, including gastronomy and the Sicilians’ devotion to wine. It is said that Julius Caesar’s favourite wine, known as Mamertino, came from Sicily and was served to his guests during the celebration of his third Consulate.

While the Sicilian climate can be hot and dry, the coastal influences of the island and cool Mediterranean breezes provide an ideal place to produce white wine. Likewise, in the area surrounding Mount Etna on the eastern side of Sicily, vineyards grow on steep hillsides and take in the moderating influences of elevation and the nearby Ionian Sea. Sicily remains devoted to its indigenous grapes. Of the white variety, this includes Catarratto, still the most widely planted grape in Sicily, which in the past was the base for many mass-produced and often bland wines, but in recent years has blossomed due to much improved and innovative viticultural methods. There is also the Grillo grape, known for its aromatic quality and good value, and Inzolia (or Insolia) which provides a rounder, less acidic wine. In the foothills of Mount Etna, the Carricante grape abounds and is used to produce the bright and zesty Etna Bianco. The volcanic soil, rich in minerals, yields white wine that is reminiscent of Chablis in its texture, minerality and acidity. It is known for its fresh citrus notes and ability to pair almost perfectly with shellfish, or just about any seafood.

Indeed, there have been contests to see which wine is best suited to oysters—Etna Bianco or Chablis. Such is the quality and popularity of the wines

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of Etna that the brilliant Piemonte winemaker, Angelo Gaja, was drawn to the region, and opened a winery called “IDDA” where he produces an excellent but pricey Bianco.

Many regions in Italy introduced Chardonnay vines several decades ago with the goal of gaining more prominence and favour in the world marketplace. Sicily is no exception. Planeta, one of the largest producers in Sicily, began growing its Chardonnay in Menfi, a growing zone located on the northwest coast of the island, in 1985. The Planeta Chardonnay is typical of the quality Sicily is putting out with this noble varietal. Rich in flavour and intensity, it has a full body and creamy texture, distinct from the zestier wines coming from Carricante and Grillo.

Next to Sicily, Sardinia is the second-largest island in the Mediterranean Sea. Like Sicily, the vineyards of Sardinia benefit from a Mediterranean climate that provides hot, dry summers and short winters that are mild but blessed with sufficient rain. Its soils, which consist of granite, limestone, sandstone and mineral-rich clay, lend a diversity of expression to Sardinian wines.

When it comes to white wine, Sardinia is all about a grape called Vermentino. Indeed, it has become known as the jewel of Sardinia and, at its finest, produces one of the best white wines in Italy. Vermentino produces a perfumed and textured wine that is crisp and refreshing. Generally fermented in stainless steel to ensure optimal aromatic potency and freshness, Vermentino will often display flavours of citrus and melon and a hint of salinity, no doubt from the vast ocean influences surrounding the island.

Some of the best Vermentino comes from the region of Gallura located at the northeastern tip of the island. Gallura means “stony area”. Indeed, its soil is built on a foundation of granite and is derived from the erosion of its granite hillsides. It is believed that these soils and the briny nature of the strong sea air in Gallura lend complexity to the Vermentino wine. The vineyards of Gallura are sun-drenched during the day but cooled by maritime influences resulting in wines with abundant fruit and vibrant acidity.

Unfortunately, the selection of Sardinian Vermentino is quite limited in British Columbia. However, look for producers like Argiolas (two of its wines are reviewed below), Terre e Mare and, if you can find it, Capichera, which produces a Vermentino di Gallura of outstanding quality.

Northern Italy: Piemonte, Veneto and Alto-Adige Piemonte sits at the foot of the western Alps in northwest Italy. It is known worldwide for its spectacular red wines—particularly Barolo and Barbaresco. However, the quality of its white wine has grown markedly over the last several decades. In the wine region of Roero, located north of the Tanaro River and the town of Alba, the Arneis grape grows in abundance, with over 800 hectares dedicated to its vines. The soils found in the hills of

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Roero are a product of its prehistoric past, having been submerged millions of years ago in the Mediterranean Sea before tectonic movement brought them above sea level. The soils are of clay and sand and marine fossils are still found within the Roero hillside. The wines of Arneis are intriguing.

They have an aromatic bouquet and are laced with flavours of stone fruit built on a backbone of refreshing acidity. It is another one of those grapes that was on the verge of extinction back in the 1970s but has made an impressive comeback. Look for Arneis made by producers such as Vietti, Sordo and Massimo Rivetti.

Arneis has arguably surpassed in popularity and quality Piemonte’s other prominent white wine, known as Gavi. Gavi is made from the Cortese di Gavi grape. It is grown predominantly in the Province of Alessandria located close to the Ligurian border and thus the Mediterranean Sea. It is a bone-dry wine with crisp acidity and citrus fruit, best enjoyed when it is young. Fine examples of Gavi that can be found locally are from Villa Sparina, Picollo and Michele Chiarlo.

Much of the best Italian Chardonnay is found in Piemonte where the climate is similar to France’s Burgundy, the home of the Chardonnay grape.

On a recent visit to Vancouver by the Piemonte producer, Pio Cesare, we were introduced to two of its Chardonnay wines, both of which were outstanding. The owner of Pio Cesare, Federica Boffa, took over the reins of the winery in 2021 at the young age of 23 following the tragic and premature death of her father Pio from COVID-19. In impressive fashion, she introduced us to the history, philosophy and wines of Pio Cesare. This included two of their white wines. The first was a wine called “L’Altro” made from Chardonnay and a small bit of Sauvignon Blanc. It is vinified in stainless steel and spends only a brief amount of time in barriques before bottling. It is a fresh, fruit-forward Chardonnay that provides great drinking pleasure.

Federica’s premium Chardonnay is known as “Piodilei”. Made from one hundred per cent Chardonnay grapes sourced from family-owned vineyards, the grapes are basket-pressed and aged for eight months in French oak, one-third new. The result is a wine of finesse with a balance of ripe fruit, fresh acidity and a touch of vanilla from the limited oak contact. It is one of the best examples of the quality of white wine in Piemonte.

Travelling east from Piemonte, we pass through the region of Lombardia and enter the Veneto, landing just south of the breathtaking Lago di Garda (Lake Garda). Here, we find the little-known wine region of Lugana and some of the best white wine on the peninsula. Elegant, structured and delicious, Lugana, as the wine is called, was for many years consumed mostly by local residents and the citizens of nearby Verona. More recently,

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Lugana’s fame has spread beyond Northern Italy and fortunately a few of its wines have made their way to British Columbia.

Lugana is made from a single and unique indigenous varietal known as Turbiana. Wine made from the Turbiana grape offers pronounced aromas of ripe peach, lingering flavours and crisp acidity. It is a wine worth seeking out. Look for labels such as the Zenato San Benedetto Lugana (reviewed below), Tommasi and Masi.

Alto Adige is the northernmost region of Italy. It borders Austria and this is evident in the cuisine of the region and even the language as many of the inhabitants are German-speaking. The region is often called “Sudtirol” or South Tyrol, which was taken from Austria and ceded to Italy following the First World War. Alto Adige is blessed with stunning alpine landscapes, spectacular valleys and steep hillside vineyards. The grapes grown in high altitude vineyards tend to reflect the Germanic influence of the region and consist of Riesling, Sylvaner and Gruner Veltliner, whereas in the lower valley vineyards one will find Pinot Bianco, Sauvignon Blanc and Chardonnay.

About sixty-five per cent of the wine made in Alto Adige is white and much of it is outstanding. Some of the better-known producers are Alois Lageder, Abbazia di Novacella, Elena Walch and Cantina Terlano. Cantina Terlano is of particular interest as it is a cooperative representing about 140 family growers in the region. Their offerings include varietal bottlings of Chardonnay, Sauvignon Blanc and Pinot Blanc and a delicious “Cuvée” blend of all three.

We would be remiss if we did not mention the delicious white wines produced in the region of Friuli. It is home to wines made from the Friulano and Ribolla Gialla grapes, both of which are distinctly rich and aromatic and worth seeking out. Two producers to look for are Jermann and Schiopetto.

Tuscany From Chianti Classico to Brunello di Montalcino to the many exquisite Super Tuscans, like Sassicaia, Ornellaia and Flaccianello, Tuscany produces some of the best red wine in the world. Its reputation in the production of white wine, however, has not been so stellar, at least not until recently. Historically, the white wines of Tuscany were, with one notable exception, quite bland and unidimensional, made mostly from the Trebbiano grape (Trebbiano Toscano was once described by leading wine journalist and Master of Wine, Jancis Robinson, as “tart mouthwash”—but it has made a remarkable comeback in recent years). The exception was the white wine grown and produced in an area just west of Chianti around the town of San Gimignano, called Vernaccia di San Gimignano. In the past, it became known as one of the best white wines in Italy. Vernaccia is a crisp wine with

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pleasing floral and citrus aromas. It is good wine, but given the advances made over the last several decades in other parts of Italy and Tuscany itself, one could hardly call it today one of Italy’s leading white wines.

Other white grapes are currently making their mark in Tuscany and the two that are most prominent are Vermentino and Chardonnay. Grown mostly toward the Tyrrhenian coast, Vermentino has become one of the more dominant white wines in Tuscany. In the words of one winemaker, “it flies off the shelves”. It is particularly prominent in the Maremma appellation which extends along the Tyrrhenian coast from around Livorno to just north of Rome. Tasted side by side with Sardinian Vermentino, one will find that the Vermentino from Sardinia is slightly more full-bodied and fruit-forward. However, the Tuscan version has its own attributes with floral aromas, delicate fruit and a refreshing acidity that makes it go down easily with just about any seafood dish.

In our view, where Tuscany truly excels in the white wine world is what they have done with Chardonnay. Rather than trying to duplicate the flavour profile of a Cote d’Or, they have made it their own. Certainly, different soils and micro-climates contribute to the uniqueness of Tuscan Chardonnay, but the thoughtful use of blending with other varietals also distinguishes these wines. A perfect example is the extraordinary Batàr from the Maremma producer, Querciabella. The Chardonnay is blended with Pinot Bianco to produce a brilliant wine that even Chardonnayloathers would love. Unfortunately, the only thing that is possibly more extraordinary than the Batàr is its price tag. There are, however, much more reasonably priced wines that also exhibit the unique quality of Italian Chardonnay. For a small fraction of the cost of the Batàr, the Brunello producer, Castiglion del Bosco, makes an elegant one hundred per cent Chardonnay which is vinified in a fresh and fruit-forward style and provides great drinking pleasure. We have suggested this wine to friends who refuse to drink Chardonnay and have instantly converted them.

2023 Argiolas Costamolino Vermentino di Sardegna, $22 at BC Liquor Stores If you are looking for a delicious, versatile mid-week white, look no further.

With notes of melon and orange rind on the nose, a silky-smooth start and a tangy, almost effervescent finish of stone fruit and a little pineapple, this affordable Vermentino from sun-kissed Sardinia is eager to please. Pair it with a cheese plate or a seafood salad, or sip it on its own on your patio.

2022 Argiolas Vermentino di Sardegna “Merì” 2022, $37 at Sutton Place Wine Merchants From the same producer as the Costamolino comes this vibrant and deli-

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cious Vermentino. The Merì is somewhat more refined and less fruit-forward than the Costamolino but still delivers intense aromas and flavours in a more tightly knit and structured profile. This is a balanced and layered wine with a delightful tanginess and just a tinge of salinity. We really enjoyed it. It would be a perfect accompaniment to tuna tartare or ceviche.

2022 Sordo Garblet Sue Arneis, $35 at Sutton Place Wine Merchants Sordo is a venerable Piemonte produced known for Barolo. This impressive Arneis comes from Vezza d’Alba in Roero, just a short bike ride north. It is a pale straw colour in the glass and offers a whiff of fresh lawn, flowers and honey. This is a very dry white, tart at the start but with a long rewarding finish of peach and apricot and a pleasing minerality. Arneis is very food-friendly and goes well with seafood of any kind. The next time you are having lunch with your colleagues, impress them by choosing a bottle of Arneis instead of that predictable Kiwi Sauvignon Blanc to which you often gravitate.

2022 Querciabella Batàr, price withheld to avoid shock We had the pleasure of being introduced to this near-perfect white wine by the sommelier at Il Pellicano one summer. Querciabella is an award-winning producer of primarily red wines from its vineyards in Chianti Classico and Maremma. Batar could be described as a white wine equivalent of a “Super-Tuscan”—an Italian wine from French varietals—in this case, Chardonnay and Pinot Blanc. We drank this with our primi piatti and fell in love with it. If one tasted it blind, you would think it was Corton-Charlemagne. You may find it at Marquis Wine Merchants and on many better wine lists. If you get the chance, pick up a bottle of Camartina, the estate’s signature red Super Tuscan.

2021 Donnafugata Anthilia, $32 at New District Wines If you are watching Netflix’s The Leopard, you may have enjoyed an episode in which Don Fabrizio, the Prince of Salina, leads his family and their entourage from Palermo to their Palazzo in the hilltop town of Donnafugata, to escape the suffocating heat of the city and the arrival of General Garibaldi and his “red shirts”. This popular wine from the producer of the same name is made from the Lucido (Catarratto) grape that comes from the Contessa Entellina estate in southwestern Sicily. It is best described as a lemon tart in a glass—dry and bright with a zippy acidity. Drink it with a lobster roll or any other rich, buttery food.

Zenato San Benedetto Lugana 2023, $33 at Everything Wine The first thing that hits you with this wine from the shores of Lake Garda is the intense bouquet of peach preserves. Smelling this wine is almost as enjoyable as drinking it. Made from the Turbiana grape, the Lugana is beau-

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tifully fresh and shows off delicate flavours of pear and apricot. There is nothing terribly complex about it. It is just plain delicious. Not surprisingly, Lugana is a favourite choice at the many restaurants along the Garda lakeshore where grilled fresh trout is served daily. It would also pair well with spaghetti alla carbonara.

San Marzano “Edda” Bianco Salento 2022, $44 at Marquis Wines As described above, this is a wine from Salento in the region of Puglia. The Edda is a blend of predominantly Chardonnay and small amounts of indigenous white grapes to provide more complexity and aromatics. This is a medium-bodied wine that offers vibrant stone fruit flavours along with a hint of vanilla. It paired perfectly with a baked salt-crusted sea bass, but if you do not have three pounds of salt lying around, enjoy it with just about any grilled white fish or with seafood risotto.

Tenuta delle Terre Nere Etna Bianco 2022, $54 at Sutton Place Wine Merchants This Sicilian white from the volcanic hills of Mount Etna really impressed us. It opens up with a toasty and fragrant bouquet, reminiscent of Chablis, and has a flavour profile of tangy citrus that lingers and satisfies. It is made from a blend of mostly Carricante with some Catarratto and other indigenous grapes mixed in. Fresh and vibrant, this is a wine that is far too easy to drink. Freshly shucked oysters or steamed mussels would be a perfect accompaniment to this crisp Etna Bianco or quaff it alongside some spaghettini with anchovies.

Cantina Terlano Terlaner Cuvée 2021, $47 at Sutton Place Wine Merchants From a cooperative in the region of Alto Adige, just south of the Austrian border, this blend of sixty per cent Pinot Bianco, thirty per cent Chardonnay and ten per cent Sauvignon Blanc is a winner. It is bright golden in colour and has aromas of apple and citrus. The wine is aged in large casks which along with the inclusion of Chardonnay imparts a touch of roundness and depth to the wine. The Pinot Bianco provides a backbone of acidity while the ten per cent Sauvignon Blanc adds aromatics. The result is a harmonious and delicious wine.

Podere San Cristoforo Luminoso Vermentino 2023, $35 at Everything Wine The “Luminoso” is from the wine region of Maremma on the Tuscan coast.

Brilliant golden in colour, this wine has a bouquet of freshly cut red apple and subtle flavours of peach and apricots. To maintain its freshness, it is fermented in stainless steel tanks and remains there for seven months before bottling. Although our preference is the more fruit-forward Vermentino of Sardinia, this is a lovely wine for the dinner table which would pair well with soft cheeses or a creamy seafood risotto.

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NEWS FROM

BC LAW INSTITUTE

By Ed Wilson*

This update from the British Columbia Law Institute (“BCLI”) shares news on the release of a new publication and information about a project that is underway.

REPORT ON RENOVATING THE PUBLIC HEARING BCLI is pleased to announce the publication of its latest report, the Report on Renovating the Public Hearing. This report is the culmination of BCLI’s Renovate the Public Hearing Project, which since fall 2022 has been examining reforms to the law on public engagement on local land-use bylaws.

Public hearings give people a forum in which to express their views on proposed changes to local land use. For about 100 years, public hearings have been a part of B.C. legislation that creates a legal framework for local governments. Within this framework local governments can exercise their decision-making authority on regulating land use.

For most of this 100-year period, public hearings have enjoyed a favourable reputation. They have been seen as a unique aspect of local government law, which enhanced local governments’ land-use decisions through direct contact with their citizens’ views.

But recently people have expressed discontent with the public hearing.

Critics have said that public hearings do not really put local governments in touch with a broadly representative range of local opinion. Responding in part to these criticisms, British Columbia enacted legislation in late 2023 to restrict the use of public hearings. Yet public hearings remain the leading form of public engagement that B.C. legislation requires for land use changes.

* Ed Wilson is the chair of BCLI.

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This report contains eight recommendations for reforming this legal framework. These recommendations tackle the scope of the legislative requirement to hold a public hearing by considering when a public hearing should and should not be held, the encouragement of local governments to consider other forms of public engagement through principles-based guidance from the provincial government and the maintenance of current legislation on timing of and procedures for public hearings.

The Renovate the Public Hearing Project has also explored how reforms to the law on public hearings can be aligned with Indigenous governance.

In 2019, British Columbia passed the Declaration on the Rights of Indigenous Peoples Act, which requires that all Crown legislation be aligned to be consistent with the UN Declaration on the Rights of Indigenous Peoples.

Throughout our work on this project, BCLI sought to identify ways to integrate Indigenous considerations into law-reform approaches for public hearings so that recommended legislative changes can function in a legally plural context.

The project was designed to support a Reconciliation and Community Listening Exploration Series, which allowed BCLI to engage with these issues directly and to provide input from that engagement to the project committee. Findings from the Listening Series have been integrated into the report.

BCLI carried out the Renovate the Public Hearing Project with the assistance of an expert project committee, with project funding from the Canada Mortgage and Housing Corporation (“CMHC”), and in partnership with the Simon Fraser University Wosk Centre for Dialogue. BCLI thanks committee members, CMHC and SFU Wosk Centre for their vital contributions to the project.

You may download your own copy of the Report on Renovating the Public Hearing at <www.bcli.org>.

UNDERSTANDING ECONOMIC ABUSE THROUGH FAMILY BUSINESSES IN FAMILY LAW CASES BCLI plans to release a study paper that examines the issues related to the role of family businesses in family breakdown, and how these can be used by parties in family law disputes as a form of violence.

While family violence is often primarily viewed through the lens of physical and sexual abuse, the law is increasingly understanding family violence through other means. One such lens is that of economic abuse, where a violent person interferes with a victim’s economic resources, limiting their ability to act independently. Economic abuse is particularly damaging as it

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can reduce options and reinforce dependence on a violent person. Recent proposed changes to the Criminal Code, such as Bill C-332, which pertains to coercive control in intimate partner violence, are a recognition of the many ways in which the law needs to adjust to recognize these realities.

A family business can become a tool of coercive control. How this may present will change as the relationship changes—a victim may be forced to work without pay or be excluded from decision-making roles, despite their contributions. On relationship breakdown, a victim may be removed from positions of authority, such as director or shareholder, without their consent. Post-separation, it might be that assets are hidden or transferred elsewhere, restricting access to financial resources or reducing the value of a family asset, which will have implications for family law equalization, or support obligations.

The role of family businesses in family breakdown is not well understood in the legal context, presenting challenges in individual cases, and case law often struggles to deal effectively with these issues. Through a combination of legal research, case law review and key informant discussions, this study paper will provide a clearer understanding of economic abuse, its relationship with family businesses and the challenges that legal systems face in addressing it.

Information and updates on this project can be found online: <www.bcli.org/family-business/>.

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BEACH AVEnUE BARRISTERS

HEnRY WOOD, KC Direct Line: 604-718-6888

JAIA RAI Direct Line: 604-629-0429

Beach Avenue Barristers is a boutique law firm with an emphasis on professional regulation. We represent both regulators and licensees in matters related to admission, investigations and disciplinary proceedings.

The firm is pleased to welcome Gurprit Bains who has just joined the practice. Gurprit has over 15 years of regulatory experience gained at the Law Society of British Columbia where she was the Deputy Chief Legal Officer and Senior AML (anti-money laundering) Specialist, overseeing the conduct of serious investigations for the last several years.

Henry, Jaia and Gurprit each have extensive and highly regarded backgrounds from which to provide informed, pragmatic and effective representation.

GURPRIT BAInS Direct Line: 604-910-5452

Suite 401 - 34 West 7th Avenue Floor 4R, Buzzer 451 Vancouver, B.C. V5Y 1L6 www.beachavenuebarristers.com

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NEWS FROM

CLEBC SOCIETY

By Adam Simpkins*

UPCOMING COURSE: MENTAL HEALTH FORUM FOR LEGAL PROFESSIONALS 2025 On May 7, 2025, the Law Society of British Columbia and the Continuing Legal Education Society of British Columbia (“CLEBC”) will co-host the Mental Health Forum for Legal Professionals 2025. This half-day webinar is an essential opportunity for the legal community to engage in meaningful discussions about advancing mental health within the profession.

The forum will begin with an overview of Phase II of the National Study on the Health and Wellness Determinants of Legal Professionals in Canada, with a focus on B.C.-specific findings and recommendations. Participants will also hear from the Law Society about their response to mental health and wellness issues impacting legal professionals.

Interactive panel discussions will feature legal and mental health professionals sharing practical strategies to address burnout and vicarious trauma.

With 3.5 CPD hours available, including professional responsibility and ethics, this event is suitable for all learning levels and open to all legal professionals and service providers.

For more information and to register, visit <cle.bc.ca/mhf25>.

NEW ON YOUTUBE: ACCESS TO JUSTICE IN THE AI ERA: INNOVATION VS. RISK CLEBC is proud to support Access to Justice Week 2025 by co-hosting the thought-provoking event Access to Justice in the AI Era: Innovation vs. Risk.

This session, originally held on February 5, 2025, brought together experts to explore the balance between the potential and pitfalls of artificial intelligence (“AI”) in the legal sector.

* Adam Simpkins is the marketing manager at CLEBC.

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Featuring insights from Professor Amy Salyzyn (University of Ottawa) and Michael Litchfield (University of Victoria), with moderation by Tina Parbhakar (Access to Justice BC), the event delved into practical use cases, regulatory considerations and the broader implications of AI on access to justice. Watch, learn and join the conversation on how AI could reshape the legal landscape. The full recording is now available on our YouTube channel: <youtube.com/@clebc/videos>.

NEW 2025 UPDATES FROM THE CLEBC LIBRARY Annotated Estates Practice 2025 Your portable estates law library CLEBC’s Annotated Estates Practice has been updated for 2025, offering wills and estates practitioners a comprehensive and portable compilation of B.C. statutes, rules and regulations. This annually updated resource features expert annotations of key statutes and Supreme Court Civil Rules, along with practical tools such as former statutes and a concordance table. The latest updates include new case law on probate applications and will rectification, additional commentary on Trustee Act applications and expanded insights under the Power of Attorney Act. Family Law Agreements: Annotated Precedents 2025 Your time-saving tool for drafting family law agreements The latest edition of Family Law Agreements: Annotated Precedents offers updated guidance for lawyers and mediators drafting family law agreements. This resource provides a robust collection of sample clauses, legal commentary and tax advisories. The 2025 update includes new clause language, insights into recent legislative changes and expanded commentary on pension division. Key additions include guidance on the Budget Measures Implementation Act, the international recovery of child support and case law developments affecting family law agreements.

Company Law Deskbook 2025 Your legal support staff’s step-by-step guide to corporate filings and record keeping The Company Law Deskbook continues to support corporate legal support staff with updated step-by-step guidance on preparing and filing corporate documentation under the B.C. Business Corporations Act. The 2025 edition introduces significant changes, including the shift from Corporate Online to Business Registry, revised procedures for share transactions and corporate conversions and updated practices for maintaining corporate records.

These updated titles are available in print or through an online subscription. For more information, visit <cle.bc.ca/publications>.

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NEWS FROM

LAWYERS’ RIGHTS WATCH CANADA

By Gavin Magrath*

TRUMP ADMINISTRATION UNDERMINES DEMOCRACY BY IGNORING THE RULE OF LAW Lawyers around the world have been shocked and dismayed by recent actions by the U.S. government that undermine the rule of law by threatening the constitutional separation of powers and the independence of judges, prosecutors and lawyers in the United States and abroad.1 Actions Targeting the Independence of the Judiciary Judges have been discredited and have faced moves for impeachment in retaliation for rulings the government deems unfavourable. On February 27, 2025, impeachment proceedings were launched in the U.S. House of Representatives targeting Justice Amir Ali,2 who had ordered an end to the president’s freeze on foreign aid.

Impeachment motions have also been brought against Judge Paul Engelmeyer of the U.S. District Court for the Southern District of New York, who temporarily blocked Elon Musk’s Department of Government Efficiency (“DOGE”) team from accessing Treasury systems;3 U.S. District Court for District of Columbia Senior Judge John Bates, who ordered health agencies to stop deleting information labeled “gender ideology” by the administration;4 and Chief Judge of the U.S. District of Columbia James Boasberg, who ruled against the administration’s deportations of Venezuelan migrants.5 Following her preliminary ruling in favor of Perkins Coie, a law firm specifically targeted for reprisals, the U.S. Department of Justice accused Justice Beryl Howell of being biased and called for her recusal.6

* Gavin Magrath is a Toronto-based lawyer and a director of Lawyers’ Rights Watch Canada, online: <www.lrwc.org>.

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These attacks on judges are a direct threat to the rule of law, as the judiciary is a co-equal branch of government and the only branch currently performing its role as a safeguard against the unconstitutional use of power by state authorities or their agents.

Actions Targeting the Department of Justice On January 28, 2025 Ed Martin, then interim U.S. Attorney for the District of Columbia, dismissed all remaining cases arising out of the January 6, 2021 attack on the U.S. Capitol and fired over a dozen lawyers involved in working on those cases.7 President Trump had already issued pardons to more than 1,500 people convicted of January 6 offences, sending an unmistakable promise of impunity for the president’s supporters accused of criminal acts.

On February 28, 2025, after obtaining a permanent appointment to his position, Mr. Martin demoted at least eight other senior prosecutors to entry-level positions. Several others have resigned, including Denise Cheung, who refused an order to start a grand jury investigation into unevidenced allegations of fraud in the Biden administration’s climate funding.8 On February 10, 2025, the Acting Deputy Attorney General Emil Bove issued a memo instructing federal prosecutors to drop their corruption case against New York City Mayor Eric Adams,9 following his agreement with the Trump administration to allow increased access to U.S. Immigration and Customs Enforcement (“ICE”) agents and to employ the NYPD in support of immigration action, again demonstrating that those who serve the administration’s agenda will be above the law.

In protest against this instruction at least six prosecutors have resigned.

In her resignation letter10 to the U.S. Attorney General, Danielle Sassoon, then interim U.S. Attorney for the Southern District of New York, stated that there was no legal justification for dismissing the case, and noted that the instruction “raises serious concerns that render the contemplated dismissal inconsistent with my ability and duty to prosecute federal crimes without fear or favor and to advance good-faith arguments before the courts”.

Other lawyers and lawmakers are likely to face further legal action for their involvement in investigating or prosecuting January 6 crimes, including Special Counsel Jack Smith. Although President Biden took the extraordinary step of issuing pre-emptive pardons to Smith and to the January 6 Select Committee, President Trump baselessly claimed on March 17, 2025 that those pardons were void11 and promised to target the recipients with investigations for unnamed crimes.

Actions Targeting Lawyers and Law Firms On February 25, 2025, an executive order was signed revoking security clearances held by employees of Covington & Burling,12 a prominent Washington,

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D.C., law firm, because it had provided pro bono services to former Special Counsel Jack Smith, who had overseen federal criminal investigations into the events of January 6, 2021 and alleged concealment of classified documents, cases which were closed following Trump’s re-election in November 2024.

A similar executive order was signed on March 6, 2025, ending security clearances and restricting access to federal buildings by lawyers for Perkins Coie, which is representing clients in cases challenging the administration’s actions relating to transgender rights. That order also instructed the government to halt any dealings with the firm’s clients, effectively forcing those clients to choose between their lawyers and any chance of doing business with the federal government.

The firm of Paul Weiss Rifkind, Wharton & Garrison was also targeted because one of its lawyers was involved in building a criminal case against Trump while that lawyer was with the Manhattan DA’s office. Disturbingly, the executive order targeting this firm was rescinded on March 19, 2025 after a representative of the firm met privately with President Trump and promised $40 million in free legal advice for his administration.13 Seemingly encouraged by this success, on March 22, 2025 the president issued a memo titled “Preventing Abuses of the Legal System and the Federal Court”,14 which baselessly accused lawyers, in particular immigration and pro bono counsel, of rampant dishonesty and misconduct in Federal Court litigation and ordered Attorney General Pam Bondi to sanction lawyers engaging in “frivolous, unreasonable, and vexatious litigation” against the president or his administration. As the legal system already has tools in place to prevent and to sanction frivolous and vexatious cases, this order implicitly gives unlimited and unaccountable powers to the Attorney General to engage in political interference with cases, lawyers and firms that represent clients adverse to the administration, depriving those litigants of effective representation contrary to the most basic requirements of our adversarial system.

A further presidential memo issued March 25, 2025 targeted the law firm Jenner & Block by revoking security clearances, terminating contracts and attacking its diversity, equity and inclusion (“DEI”) policies, apparently because the firm re-hired counsel Andrew Weissmann after his time working with Robert Mueller’s investigation.15 Yet another similar presidential memo was issued on March 27, 2025 against WilmerHale, once again based on its pro bono work, its DEI policies and the hiring of lawyers involved in the Mueller investigation.16 Both of these firms have chosen to hit back with lawsuits seeking to block those orders,17 with Jenner & Block calling them unconstitutional breaches of 1st amendment rights to free speech and association, 5th amendment rights to due process, and 6th amendment rights to effective counsel.

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Universities and Law Schools Subject to Intimidation At Columbia and other universities, the Trump administration has taken unprecedented steps to shut down protest and free speech, threatening to withhold $400 million in federal funding if the schools refuse to act against pro-Palestine protesters and hand over the personal information of students that participate in the protests.

Groups representing faculty have now launched a lawsuit against these measures, which they describe as an “unprecedented effort to overpower a university’s academic autonomy and control the thought, association, scholarship, and expression of its faculty and students.”19 The administration is also using anti-DEI policies20 to target law schools, issuing a February 17, 2025 letter to Georgetown advising that no students would be considered for internships or jobs with the federal government as long as the school continued to “promote and teach” DEI.21 Georgetown’s dean, William Traynor, pushed back in a March 6 letter, stating that “[t]he Supreme Court has continually affirmed that among the freedoms central to a university’s First Amendment rights are its abilities to determine, on academic grounds, who may teach, what to teach, and how to teach it.”22 While the administration paints DEI initiatives as being racist preferences for women and minorities contrary to “merit-based” hiring, in fact the administration’s policies send a clear message that active discrimination against women and non-white people is now not only normalized but legally required. The administration’s policies have resulted in the removal of online references to the Navajo code talkers,23 baseball legend Jackie Robinson,24 and even to the Enola Gay,25 the first aircraft to drop an atomic bomb in warfare, to name only a few. Some of these references have been restored after public outcry.

American Bar Association under Attack On February 10, 2025 the American Bar Association (“ABA”) issued a statement condemning what it called “wide-scale affronts to the rule of law”, including attacks on constitutional birthright citizenship, the dismantling of U.S. Agency for International Development (“USAID”) and other departments created by Congress, and attempts to criminalize DEI policies and programs.26 The ABA was founded in 1878 and is the largest voluntary professional association in the world. It is non-partisan and is committed to advancing the rule of law across the United States and globally.

On February 14, 2025, the Federal Trade Commission (“FTC”) hit back with a memo denouncing the ABA.27 The FTC chairman called the ABA’s statement a “breathless screed” against President Trump, called its involvement with USAID “deceptive and unethical”, and attacked what he called

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the ABA’s history of partisan Democrat advocacy. The memo prohibited FTC appointees from participating in ABA activities and even renewing their memberships, an obvious affront to place loyalty to the administration above the constitutional right of freedom of association.

On March 3, 2025, the ABA issued a statement28 that detailed the disturbing, hostile environment that now exists for legal professionals in the country, which has resulted in reported personal attacks, intimidation, firings and demotions for Justice Department lawyers and assistant U.S. attorneys simply for doing their jobs. The ABA has also pushed back on the administration’s calls to impeach judges, rather than pursuing judicial review, and the targeting of state and local bar associations for investigations into DEI initiatives.

Only two days later, Attorney General Pam Bondi announced that, unless the ABA backed off from its opposition to the administration’s anti-DEI policies, its status as an accrediting body for law schools would be removed.29 Attacks on Legal Independence Are Contrary to U.S. and International Law In accordance with Principle 16 of the UN Basic Principles on the Role of Lawyers (“UN Basic Principles”), lawyers must be able to perform all their professional functions without intimidation, hindrance, harassment or improper interference; and shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

Further, pursuant to Principle 18 of the UN Basic Principles lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.

The administration’s attacks on DEI initiatives in the public and private sectors are contrary to the United States’ international obligations under the Universal Declaration of Human Rights30 and the International Convention on the Elimination of all forms of Racial Discrimination.31 Chief Justice John Roberts of the U.S. Supreme Court has affirmed that threats of impeachment are “not an appropriate response to disagreement concerning a judicial decision,”32 and has urged the administration to follow the usual appeal procedures rather than engaging in highly personal and public attacks on judges ruling against them.

Many observers, however, blame Chief Justice Roberts for his role in expanding presidential immunity,33 drawing a direct line between that ruling and the administration’s willingness to bend or break the law in service of its agenda.

Jamie Raskin, a top Democrat, has noted that the judicial impeachment proceedings detail no “crimes or misdemeanors”, but only the “crime” of judges upholding the law and ruling against unlawful acts of the administration. That message is clear: “either rule in Trump’s favor or face impeachment.”34

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Threats to the Rule of Law Threaten the Republic The actions of the current administration demonstrate a contempt for the independence of the legal profession and violate longstanding international standards to ensure legal professionals can conduct their vital work without interference. Lawyers must be able to represent their clients without fear of retaliation and must not be punished because of who their clients are.

Judges must be permitted to rule on the law without threats of impeachment, harassment or violence.

The independence of the legal profession is fundamental to ensure respect for human rights and is a crucial element of the rule of law. Especially when Congress is controlled by narrow Republican majorities, the judiciary represents the only effective constitutional check and balance on an increasingly authoritarian administration. If the Trump administration succeeds in undermining its independence, he will have effectively brought the United States’ 250-year experiment in democracy to an end.35 Canadian lawyers and legal associations need to take a firm stand in support of the rule of law and the independence of lawyers and judges, and against authoritarianism, and unilateral threats to sovereignty. We have a duty to our cross-border clients to resist calls to dismantle DEI initiatives or adopt copy-cat anti-DEI measures, which would be contrary to the Charter and provincial human rights codes. Ultimately, our U.S. colleagues putting themselves at risk by standing up for the rule of law36 must know that as they stand against threats, harassment, discrimination and retribution, they do not stand alone.

ENDNOTES 1. “An Open Letter to the Legal Community Regarding the President’s Attacks on the Legal Profession and the Federal Judiciary”, online: <oag.ca.gov/system /files/attachments/press-docs/Open%20Letter% 20to%20the%20Legal%20Community%20Regard ing%20the%20President%27s%20Attacks%20on%20 the%20Legal%20Profession%20and%20the%20Fed eral%20Judiciary.pdf>.

2. “H.Res.174 - Impeaching Amir Hatem Mahdy Ali, a judge of the United States District Court for the District of Columbia, for high crimes and misdemeanors”, online: <www.congress.gov/bill/119thcongress/house-resolution/174/text>.

3. Nate Raymond, “US judge temporarily blocks Musk's DOGE from accessing payment systems”, Reuters (10 February 2025), online: <www.reuters. com/legal/us-judge-temporarily-blocks-musksdoge-accessing-payment-systems-2025-02-08/>.

4. Sean O’Driscoll, “Judge John Bates Faces Impeachment After Order Against Trump”, Newsweek (25 February 2025), online: <www.newsweek.com/ judge-john-bates-faces-impeachment-order-againsttrump-2035718>.

5. Jonah Goldberg, “Congress wants to impeach judges instead of doing its job”, Los Angeles Times (25 March 2025), online: <www.latimes.com/opin ion/story/2025-03-25/boasberg-venezuela-trende-aragua>.

6. Andrew Goudsward, “Judge spurns Trump administration request to recuse from law firm case”, Reuters (26 March 2025), online: <www.reuters.com/world/ us/judge-spurns-trump-administration-request-recuse -law-firm-case-2025-03-26/>.

7. Kyle Cheney and Josh Gerstein, “DOJ fires dozens of prosecutors who handled Jan 6 cases”, Politico (31 January 2025), online: <www.politico.com/news/ 2025/01/31/doj-purges-prosecutors-january-6cases-00201904>.

8. Ryan J Reilley, “Veteran federal prosecutor resigns over bank freeze order from Trump appointee”, NBC News (18 February 2025), online: <www.nbcnews. com/politics/justice-department/veteran-federalprosecutor-resigns-bank-freeze-order-trumpappointee-rcna192619>.

9. Online: <apnews.com/article/eric-adams-mayorcorruption-investigations-new-york-b3c31bd839 e461db42f1d9d447e21997>.

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10. Michael R Sisak, “Newly unsealed memo sheds light on Justice Department’s rush to drop NYC mayor’s corruption case” (25 March 2025), online: <www. documentcloud.org/documents/25526537-sas soon-bondi-letter/>.

11. Louis Jacobson and Amy Sherman, “Fact Checking Trump’s Claim that Biden Pardons Are Void Because He Used an Autopen” (18 March 2025), online: <www.pbs.org/newshour/politics/fact-checkingtrumps-claim-that-biden-pardons-are-void-becausehe-used-an-autopen>.

12. Mike Scarcella, “Trump's orders targeting law firms raise constitutional concerns, experts say”, Reuters (10 March 2025), online: <www.reuters.com/ world/us/trumps-orders-targeting-law-firms-raiseconstitutional-concerns-experts-say-2025-03-08/>.

13. “Law Firm Bends in Face of Trump Demands”, New York Times (22 March 2025), online: <www.ny times.com/2025/03/20/us/politics/paul-weissdeal-trump-executive-order-withdrawn.html>.

14. Presidential Memoranda: Preventing Abuses of the Legal System and the Federal Court (22 March 2025), online: <www.whitehouse.gov/presidentialactions/2025/03/preventing-abuses-of-the-legalsystem-and-the-federal-court/>.

15. Executive Orders: Addressing Risks from Jenner & Block (25 March 2025), online: <www.whitehouse. gov/presidential-actions/2025/03/addressingrisks-from-jenner-block/>.

16. Executive Orders: Addressing Risks from WilmerHale (27 March 2025), online: <www.whitehouse. gov/presidential-actions/2025/03/addressingrisks-from-wilmerhale/>.

17. Carrie Johnson, “In back-to-back rulings, federal judges rule against Trump orders targeting law firms”, NPR (28 March 2025), online: <www.npr. org/2025/03/28/g-s1-56890/law-firms-suetrump>.

18. Online: <static1.squarespace.com/static/67d44 00d37a2b91e3aba58d5/t/67e69ee67a2e4516b 4a3d748/1743167207551/Complaint.pdf>.

19. Brendan Pierson & Jonathan Allen, “Columbia faculty groups sue Trump administration over funding cuts, academic demands”, Reuters (25 March 2025), online: <www.reuters.com/world/us/columbia-fac ulty-groups-sue-trump-administration-over-fundingcuts-academic-2025-03-25/>.

20. “Ending Illegal Discrimination and Restoring MeritBased Opportunity” (21 January 2025), online: <www.whitehouse.gov/presidential-actions/2025/ 01/ending-illegal-discrimination-and-restoringmerit-based-opportunity/>.

21. Online: <www.ncronline.org/files/2025-03/3.7.

24%20Ed%20Martin%20letter%20%20to%20George town%20law.pdf>.

22. Online: <www.ncronline.org/files/2025-03/3.7.2 4%20Georgetown%20%20law%20dean%20response %20to%20Ed%20Martin.pdf>.

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23. Josh Marcus, “Military slices out web pages about WWII Native American code talkers to comply with Trump order to eradicate DEI”, Independent (18 March 2025), online: </www.independent.co.uk/ news/world/americas/us-politics/military-trumpdei-code-talkers-b2716915.html>.

24. “Article on Jackie Robinson’s military career restored to defense department website”, The Guardian (19 March 2025), online: <www.theguardian.com/sport /2025/mar/19/jackie-robinson-article-removeddepartment-defense>.

25. Brett Mills, “Enola Gay’ pilot’s granddaughter in ‘absolute disbelief’ that photos targeted in DEI purge” (24 March 2025), online: <www.nbc4i.com /news/local-news/columbus/enola-gay-pilotsgranddaughter-in-absolute-disbelief-that-photostargeted-in-dei-purge/>.

26. Online: <www.americanbar.org/news/abanews/ aba-news-archives/2025/02/aba-supports-therule-of-law/>.

27. Online: <www.ftc.gov/system/files/ftc_gov/pdf/ aba-letter_ferguson.pdf>.

28. Online: <www.americanbar.org/news/abanews/ aba-news-archives/2025/03/aba-rejects-effortsto-undermine-courts-and-legal-profession/>.

29. Karen Sloan, “US Attorney General presses ABA to drop law school DEI rule or risk losing accreditor status”, Reuters (5 March 2025), online: <www.reuters. com/legal/government/us-attorney-general-presses -aba-drop-law-school-dei-rule-or-risk-losing-202503-05/>.

30. Online: <www.un.org/en/about-us/universal-de claration-of-human-rights>.

31. Online: <www.ohchr.org/en/instruments-mechanisms /instruments/international-convention-eliminationall-forms-racial>.

32. Aysha Bagchi, “Chief Justice Roberts' rebuke marks growing Trump showdown with judiciary”, USA Today (20 March 2025), online: <www.usatoday. com/story/news/politics/2025/03/20/chief-justice -john-roberts-trump-supreme-court/82541520 007/>.

33. Aysha Bagchi, “‘Democracy turns into a dictatorship’: Experts warn about SCOTUS presidential immunity ruling”, USA Today (11 July 2024), online: <www.usatoday.com/story/news/politics/elections /2024/07/11/donald-trump-immunity-supremecourt-powers/74332048007/>.

34. Online: <democrats-judiciary.house.gov/news/do cumentsingle.aspx?DocumentID=5587>.

35. Alexander Panetta, “U.S. could lose democracy status, says global watchdog”, CBC (18 March 2025), online: <www.cbc.ca/news/world/trump-democracy -report-1.7486317>.

36. Online: <societyfortheruleoflaw.org/stand-up-forthe-legal-profession-and-the-rule-of-law/>.

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Frank Borowicz, K.C.

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LAPBC NOTES

By Derek LaCroix, K.C.*

A LETTER TO THE LEGAL COMMUNITY Dear Community, It has been such an honour and privilege to serve the legal community as the Executive Director of the Lawyers Assistance Program of BC (“LAPBC”) for these past 28+ years.

LAPBC began in 1989 as the result of a meeting between Art Vertlieb, Q.C. (now K.C.) and Dr. Ray Baker. The physicians had a program to help distressed doctors and Art thought lawyers should have such a program. In 1990, a meeting was held to gather and train volunteers and Russ Mackay was brought in as the part-time program coordinator. In the beginning the program was essentially a 12-step outreach program. It was very successful in helping addicted lawyers and in creating a network of lawyers in recovery. The Law Society provided a small amount of funding and the organization grew. It soon became apparent that there were more mental health issues that needed support and more people in the legal community to assist than a part-time commitment could handle.

Russ returned to the practice of law in 1996, and the LAP Committee asked the ABA Commission on Lawyer Assistance Programs (“CoLAP”) to do an evaluation of LAPBC. The evaluators determined that the organization needed to grow and to assist more people, province-wide. To do this, a full-time, professionally trained executive director was required. The ensuing search resulted in retaining me as the first executive director.

Armed with the CoLAP report, a plan and an executive director, the board asked the Law Society for funding to secure my position as the full-time executive director, obtain office space and have a travel budget. On Friday, December 6, 1996, LAPBC received that funding and development of the current comprehensive program began.

* Derek LaCroix, K.C., is the executive director of LAPBC.

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I was very excited to take on this new challenge. Having practised law as a partner in my own law firm, doggedly working on and overcoming anxiety and addiction issues, being active in the 12-step recovery program, having a broad lived experience of a number of problems that lawyers face and also running a business, having studied therapeutic counselling with a wide range of training, and having led many workshops at the Haven Institute for Personal and Professional Development, this position seemed like the perfect place to integrate and apply my unique life experiences of the past 20 years. The thought of sharing my healing experience for the benefit of other colleagues in the legal profession was an inspired calling.

I set out to make LAPBC a province-wide program to help members of the legal community with a broad variety of personal and professional problems. I began to execute my vision with only a part-time office assistant, reaching out to lawyers across the province. LAPBC has grown to a staff of four full-time counsellors, three of whom are, or were, lawyers. Additionally, three part-time lawyer counsellors and an office administrator round out the hardworking team, all of whom engage with the more than 300 peer-volunteers from around the province.

My vision was to bring an integral and holistic approach that involves multiple modalities of counselling, looking at the whole person and their life including their professional work and their emotional, intellectual and physical well-being—an approach that I, and now LAPBC, bring to helping distressed lawyers. I have been truly blessed to have had an opportunity to bring all my life experience—the good, the bad, the ugly and the beautiful—to my life’s work.

LAPBC is an occupation-specific helping organization. We are knowledgeable about the legal profession and the intricacies and difficulties of working within it. We are available to all members of the legal community.

There are so many good people and organizations who have contributed to LAPBC’s success over the years. The entire legal profession has been supportive with each lawyer contributing a portion of their fees to LAPBC. This reliable financial support has allowed me, and the organization, to focus on our mission of helping people and to grow organically and with confidence. This is truly a blessing that we trust has been returned tenfold to the well-being of the legal community. The Law Society has been supportive in collecting those fees for LAPBC. As well, the Law Society has consistently confirmed and supported LAPBC’s policy to provide confidential services; LAPBC never discloses information on any of our clients.

Over the years, as we have grown, we have developed more and more expertise in our organization. Over the years, we have been blessed with many good lawyer counsellors. We currently are blessed with a great team and I especially note Shari Pearlman, my assistant executive director, who shares the vision, passion and calling for helping members of the legal community. We are in a strong and stable position to continue our valuable services with ever-increasing scope and expertise.

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The board and I are moving forward with our continuation plan. To that end, we have begun a formal search for a new executive director, as I will be stepping back. Our plan is for me to continue as co-executive director until the end of 2025, in order to ensure a smooth transition, and then continue as an ambassador for an additional period of time.

I am extremely grateful for the opportunity I have had to serve the legal community. I have now been a lawyer for 50 years, and with LAPBC for over 28 of those years. I love the profession and all its members.

I have had the privilege of working with thousands of lawyers who have shared their pain and troubles with me and hopefully I have been able to make a positive difference. I have been able to interact with hundreds of volunteers, many of whom have received help and are rewarded by the experience of paying it forward to other members of their community. It has been a pure joy to watch the passion and caring with which these members are available to help distressed members.

While travelling the province, dealing with law firms and the various legal profession organizations, giving presentations and workshops, I have had contact with many thousands of lawyers. I can say, based on extensive experience over many years, the legal community is filled with good, caring and, of course, competent people. We can be a force for good in the world.

It has been gratifying to witness the significant progress we have made over the past 28 years. Mental health and addictions are now acknowledged as a problem requiring assistance rather than as behaviour requiring punishment. We have farther to go in shifting worldviews. We need deep culture change and we are working on that. Our theme at LAPBC for 2025 is Creating Community. To that end I am confident that our staff is committed and well equipped to move that forward. LAPBC is moving to train and empower our volunteers to promote, create and support community.

There is some uncertainty about the potential shift in the regulatory system. We will be working to make sure we do not lose momentum and the progress we have made in supporting lawyer well-being.

Thank you to the entire legal community. To the various board members over the years, to the staff I work with and have worked with over the years, to the volunteers who have been ready and available to help, to the various legal organizations who have supported us by hosting presentations and workshops for them, and to the clients who have shared so vulnerably. This has been a journey of love, and I am grateful to be so blessed.

With thanks, Derek LaCroix, K.C. 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 2025 ADVOCATE SHORT FICTION COMPETITION ELIGIBLE CONTRIBUTORS Any person who is now, or has been, a member of the Law Society of British Columbia (including lawyers, judges and masters) or who is an articled student. Contest judges and the “staff” of the Advocate are ineligible to contribute.

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

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

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

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

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

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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 a local restaurant and possible publication in the Advocate

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

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

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

possible selection as winning entries;

(b)

possible publication in the Advocate; and

(c)

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

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

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

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PETER A. ALLARD SCHOOL OF LAW FACULTY NEWS

By Heidi Wudrick*

DR. JOCELYN STACEY AWARDED UBC KILLAM ACCELERATOR RESEARCH FELLOWSHIP On March 11, 2025, the University of British Columbia announced that Peter A. Allard School Law professor Dr. Jocelyn Stacey has been awarded a UBC Killam Accelerator Research Fellowship. Each year, the Killam Accelerator Research Fellowship is awarded to six exceptional UBC researchers in the early career stage from across the university. The fellowship recognizes outstanding research achievement and the potential for significant impact in their fields of scholarship.

As one of Canada’s leading scholars on disasters and Canadian law, Dr. Stacey’s expertise has been widely sought by leaders in government across Canada, including British Columbia’s Auditor General and the First Nations Leadership Council. Her work has been cited by the Supreme Court of Canada, and in 2022, she served on the Research Council for the Public Order Emergency Commission. At the centre of her work is a long-standing research partnership with the Tŝilhqot’in National Government on issues including T ŝilhqot’in laws and authority and the conflicts between T ŝilhqot’in and Canadian law during and after disasters.

Through the Killam Accelerator Research Fellowship, Dr. Stacey has been awarded $50,000 to develop three interconnected projects that will help bridge the gap between the reality of climate change disasters and law and policy.

“Judges and government decision-makers have been thrust into grappling with climate change equipped with legal tools developed for a different era,” says Dr. Stacey. “Recent climate-amplified disasters, such as fires

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

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and floods, illustrate the increasingly complex legal and governance challenges facing our communities.”

For example, Canadian law currently empowers governments to order evacuations with little legal constraint on the assumption that evacuation will be temporary, but this does not match the recent experiences of many B.C. residents. In 2023, The Tyee reported that British Columbians who were forced to evacuate their homes were displaced for 22 days on average, with other survivors being displaced much longer. Residents of Lytton remained under an evacuation order for nearly two years after their village was devastated by wildfires in 2021.

Through the B.C. Atlas of Disaster project, Dr. Stacey will be working with a cross-disciplinary team to provide tools and data to communities that will support them in advocating for climate adaptation and disaster risk reduction. As part of the project, Dr. Stacey is developing a public legal education series that will offer explainers on citizens’ rights and government obligations during an emergency, as well as legal tools for holding government accountable.

Building on Dr. Stacey’s record of community-engaged research, the fellowship will also support Dr. Stacey in her work to complete a groundbreaking new book on Canadian disaster law—the first of its kind in Canada.

“At a time when lawyers, judges and government decision makers must face the legal challenges of disasters, we need principles to guide disaster management,” says Dr. Stacey. “This book will explain why disaster law cannot be conceptualized as separate legal issues, but rather as a roadmap for systematic reform that prioritizes the experiences of those impacted.”

In a third project, Dr. Stacey is developing a new course on climate disaster law and justice, which she plans to teach internationally, starting at the Jigme Singye Wangchuck School of Law in Bhutan. The course will explore a series of core legal issues related to climate disasters from around the world, including case studies from British Columbia and B.C. First Nations.

“British Columbia has already experienced significant climate disasters in recent years and, as a result, is at the forefront of legal change,” says Dr. Stacey. “As other jurisdictions increasingly confront many of the same legal challenges posed by the climate crisis, it is critical that we share what we have learned.”

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TRU LAW FACULTY NEWS

By Ryan Gauthier*

It has been a busy spring at TRU Law. Despite spending much of the winter term in a deep freeze by Kamloops standards, faculty and students still found plenty of energy to engage in advocacy, in research presentations and with law students across the country.

ADVOCACY ACTIVITIES The 4th Annual Dean’s Cup Moot, presented by the Trial Lawyers Association of BC, took place through January and February. Following an introductory workshop, 16 teams of mooters argued a constitutional law issue in various rounds of the competition. The final round was judged by Chief Justice Leonard Marchand, Judge Louis P. Strezos of the Ontario Court of Justice, and the Honourable David Watt, K.C. The winning team was the team of Cam Carter and Henry Stagg-Tanner. Alishah Khaki and Angad Bhalla took second place.

The inaugural Chris Harvey, QC Advocacy Workshop took place at the Kamloops courthouse on January 25. Named in the memory of esteemed advocate Chris Harvey, Q.C., the workshop saw seven TRU Law students conduct a mock direct examination of a witness during a trial over a commercial dispute. The students received feedback from Justice Lauri-Ann Fenlon, Justice David Harris, Bob Wickett, K.C., and Richard Olson. The witnesses being examined were played by Rigel Tessmann and Bonnie Macdonald of the BC Prosecution Service.

The 2nd Annual Mock Bail Hearing Competition took place at the Kamloops courthouse on February 3. Teams of Crown and defence argued for

* Ryan Gauthier is an associate professor at the TRU Law Faculty of Law. He recently finished a “learn to curl” program, and was the only one who (a) read the waiver and (b) wore a helmet. This is less so because he teaches tort law, and more so because the last time he curled in Canada, he managed to receive a concussion.

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bail in front of five sitting judges. Each courtroom had its own competition, with a variety of winners.

The Annual Dentons Negotiation competition took place on March 3.

The competition focused on the negotiation of the breakup of a local newspaper partnership. Thirty-two students participated in the competition.

The winners were Alexis Colias and Aneesha Gill. Matthew Follett and Natalie Knoll took second place, while Thomas Leathem and Jasmin Dhaliwal took third place.

ONGOING FACULTY RESEARCH EVENTS The Annual TRU Society of Law Students conference took place on February 6 and 7. The theme for the 2025 conference was “Criminal Justice System Reform in Canada”. Topics included sentencing reform, rehabilitation and the overrepresentation of Indigenous people in the criminal justice system. Condesa Strain, Matt Ford, Viktoriya Ipatieva and Janessa Atsma spoke on a panel at the conference. Judge Michelle Stanford and David Milward each provided keynote speeches.

February also saw TRU Law’s Access to Justice Week panels and events.

This year’s theme was “The Future of Law, Equity, and Technology”. The week highlighted topics such as technology and inclusivity and how artificial intelligence platforms can enhance accessibility. Matthew Fischer, Gerry Akkerman and Odette Dempsy-Caputo all provided insight on the role of artificial intelligence in the justice system, and on issues such as cybersecurity. Robert Diab and Law Librarian Michelle Terriss also led sessions during the week.

Various research presentations also took place in the midst of these conferences. Professor Katie Sykes shared insight into laws that make it difficult to investigate factory farming, known as “ag gag” laws. She discussed Ontario’s Security from Trespass and Protecting Food Safety Act, which was struck down by a court in 2024, and what is to come next. Meanwhile, Professor Craig Jones, K.C., provided an overview of his research on the nations of the B.C. Interior in the years from 1790 to 1859. His work relies on the journals, letters and narratives of the earliest fur traders and missionaries, taken alongside recorded accounts of Indigenous elders and historians. His research provides insight into the genesis of modern British Columbia, and may challenge some assumptions underlying Canadian jurisprudence on Indigenous rights and title.

Georges Erasmus also visited the TRU Law faculty to present his book “Hòt’a Enough”. Georges Erasmus led the Royal Commission on Aboriginal Peoples, and was later chair and president of the Aboriginal Healing Foundation. The book tells the story of his life’s work.

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TRU LAW STUDENT COMMUNITY ENGAGEMENT A contingent of eight students represented TRU Law at the Law Games in January 2025. This year’s edition took place at Dalhousie. Michelle Agoston, Brendan Bone, Rachel Getz, Elaina McKoen, Sean Moynahan, Noah Stothart, Jude Tarasenko and Sarah Warsh made the trip out east. This year’s games featured a variety of sporting competitions and a moot. A team including TRU Law members, TRUWest, took first place in pickleball, and Sarah Warsh and Sean Moynahan each took third place for both the men’s and the women’s events in tail-tag. More importantly, TRU Law students made connections with other law students across the country. They are keen to build off the momentum of this year’s event and return next year with an even larger contingent.

TRU Law students also sent a club to the Kamloops Bob Trudeau Memorial Spring Run-Off. The TRU Law club was the largest club present at the event.

Six TRU Law students finished first, second or third in their age category.

Finally, the TRU Law Rugby Club hosted its inaugural Spring Scrimmage.

Approximately 45 TRU Law students and 15 University of Alberta students participated in touch rugby and contact rugby. TRU Law rugby will also be hosting the Western Canadian Law School Rugby Championship this October.

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“Nootka Island III” by Sandra Garris, Acrylic on Canvas, 40'' x 30'', 2025 Available at Kurbatoff Gallery, 2435 Granville St., Vancouver Visit the website: kurbatoffgallery.com

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

JUSTICE FOR CONSUMERS: STRENGTHENING CONSUMER PROTECTION LAWS IN BRITISH COLUMBIA Consumer protection is fundamental to a just and fair marketplace. In our increasingly complex marketplace, British Columbians have been left vulnerable to misleading contract terms, hidden fees and predatory sales practices. In online transactions, people often sign contracts they barely understood, face auto-renewals they never agreed to or were pressured into purchasing high-cost household products through aggressive sales tactics. It is clear that the laws related to consumer contracts needed to be updated.

To address these issues, I introduced significant amendments to the Business Practices and Consumer Protection Act (“BPCPA”) on February 25, 2025.

These changes, developed through extensive public and stakeholder consultation, will bring greater transparency to contracts, strengthen consumer rights and modernize our laws to meet the realities of today’s marketplace.

The Legal Community’s Role in Consumer Justice As legal professionals, you are often the first point of contact for individuals facing consumer disputes. These legislative amendments provide new avenues for justice, ensuring fairer contracts and more accessible legal remedies. Whether advocating for clients in contractual disputes or advising businesses on compliance, your role in upholding consumer rights is more critical than ever.

One of the most significant changes is the prohibition of contract terms that require costly private arbitration or restrict participation in class-action lawsuits. Historically, businesses have used these clauses to prevent consumers from accessing the courts, forcing them into lengthy and expensive

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

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arbitration processes. By eliminating these barriers, we are reinforcing the fundamental principle that access to justice should not be dictated by corporate fine print.

Key Reforms: A Closer Look A lack of clear contract terms has led to consumer frustration and financial hardship. Under these amendments, businesses will be required to disclose essential contract terms upfront, including renewal, cancellation and refund policies. This requirement is particularly vital in the realm of online transactions, where vague refund policies and unexpected charges have become commonplace.

Consider the example of streaming service subscriptions. Many British Columbians have found themselves locked into auto-renewing contracts without proper notice. Under the new law, businesses must notify customers before an automatic renewal and provide clear opt-out options.

These measures give consumers the power to make informed decisions about their financial commitments.

Another area we are focusing on is the aggressive and deceptive door-todoor sales tactics that target seniors and vulnerable individuals, often leading them into long-term financial burdens. Our amendments will ban direct sales of high-cost household products such as furnaces, air conditioners and water treatment systems, and prohibit the offering of credit as part of a direct sale.

By eliminating these high-pressure sales tactics, we are shielding consumers from exploitation and ensuring they have the time and space to make informed purchasing decisions.

For consumer protections to be effective, there must be meaningful consequences for non-compliance. The new amendments empower the Civil Resolution Tribunal (“CRT”) to adjudicate alleged damages for breach under the BPCPA, giving consumers a more accessible and affordable means of seeking redress.

Additionally, businesses that fail to comply with the new regulations will face significant penalties, up to $50,000 for corporations and $5,000 for individuals. These measures will deter unethical business practices while ensuring that consumers have a viable pathway to compensation when wronged.

The Impact on Businesses Reputable businesses that already prioritize transparency and ethical practices will benefit from increased consumer confidence. Moreover, by reducing disputes and legal challenges, businesses will find that clear and fair contract terms create stronger relationships with their customers.

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Consumer Protection BC will play a critical role in educating businesses about their new responsibilities, ensuring a smooth transition to compliance. We are committed to working collaboratively with industry stakeholders to support these changes while maintaining a level playing field in the marketplace.

A Step Forward in Consumer Justice These legislative reforms mark a turning point in consumer rights in British Columbia. No longer will unfair contract terms, deceptive sales tactics or hidden fees be tolerated. These changes ensure that individuals, regardless of income or background, have the information and legal protections necessary to make sound financial decisions.

For the legal community, this legislation presents an opportunity to strengthen advocacy for consumers, challenge unfair practices and contribute to a legal landscape that prioritizes fairness and accountability.

Whether advising clients on their rights under the new laws or representing them in disputes, your expertise will be instrumental in enforcing these protections and shaping a more just marketplace.

British Columbians deserve to engage in transactions with confidence, knowing they are protected by laws designed with their best interests in mind. With these changes, we reaffirm our commitment to justice for consumers and a fair economy for all.

Your Input on Enhancing Access to Justice I am focused on working with all actors in the justice system to improve timeliness and access to justice. We all know that improving access to justice requires effective engagement with key stakeholders and innovative approaches to dispute resolution. By modernizing citizen-oriented processes and leveraging technology, we will make our justice system more accessible, efficient and cost-effective.

I also recognize the vital role that legal professionals play in shaping access to justice and improving timeliness of disputes. Your insights and experiences are invaluable in ensuring that our justice system continues to evolve to meet the needs of British Columbians. I encourage you to share your suggestions on how we can further enhance access to justice by reaching out to my office at <ag.minister@gov.bc.ca>.

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NOS DISPARUS

By R.C. Tino Bella

The Honourable Allan Stewart

Allan was born and raised in East Vancouver. He graduated from UBC law school in 1968. He was called to the bar in 1969 and practised civil litigation with Swinton & Company until 1973, when he and his wife left Vancouver for an eight-month road trip in Europe.

On his return in 1974, Allan was hired by the newly appointed Vancouver Regional Crown Counsel, Al Melvin (as he then was), to join the new Provincial Crown Counsel Office, which had recently taken over from the Vancouver City Prosecutor’s Office. Al, as he was known at work, quickly found a home in what was referred to in Crown language as the “Black Tower” (a.k.a. the TD Tower), conducting County and Supreme Court criminal trials. In short order, however, his intelligence and encyclopedic knowledge of criminal law and procedure positioned him as the provincial Crown’s lead counsel in the Court of Appeal and the Supreme Court of Canada.

Al engaged deeply in his work. He had an inviolable moral compass and a resolute understanding of the Crown’s duty to act fairly and impartially.

His incisive and succinct arguments quickly earned the respect of the profession and the judiciary, who relied heavily on his submissions. He argued many cases that had an important role in developing the criminal law in British Columbia and in Canada, including the leading cases that interpreted the Canadian Charter of Rights and Freedoms in its early days. As well, his wonderful sense of humour and unique ability as a raconteur attracted lasting friendships.

Al was greatly admired in the Crown office. His skills made him an ideal mentor, and junior Crown sent on rotation to the Black Tower were eager to

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seek his assistance. It was well known, however, that assistance was given on his own terms. These were encapsulated by what he called his “twentyfive-cent lecture”, which went along these lines: “You went to law school; you were taught how to do legal research; you are called to the bar; it is unprofessional to ask a colleague for help before you have explored the issue yourself as you were trained to do.” Once the supplicant performed his or her end of that bargain, Al was a ready advisor, a wonderful mentor, and a kind and generous friend.

In 1988, Al was appointed to the Supreme Court of British Columbia in Vancouver, where he served until his retirement in 2011. An astute judge of people, he was a fine judge. We understand some found it intimidating to appear before him. Adept at sorting the wheat from the chaff, he did not suffer fools gladly. Well-prepared counsel, however, could expect a civilized and intelligent discussion of the issues and a timely and fair judgment.

Al was a popular judicial colleague. His sense of humour was appreciated in the coffee room, and his ready criticism of appellate judgments with which he disagreed provided salve to those who had been overturned. He customarily circulated what one colleague euphemistically described as “refreshing” critiques of important appellate judgments that were enjoyed for both their educational value and their wry humour.

Al was an innately modest man, humble to a fault. He was never boastful about being a lawyer and a judge and did not rely on his professional accomplishments to buttress his self-worth. His idea of fine dining was a burger at Denny’s. He drove a 23-year-old Toyota Corolla. His sartorial choices at home ran to aging T-shirts and baggy pants. Throughout his life he focused on those less fortunate than himself. Despite his successful career, Allan (as he was known at home) viewed his family as his primary achievement and the one that brought him the most satisfaction. In introducing them we cannot do better than adopt this paragraph from his daughter Jennifer’s elegant obituary: In 1966, Allan met Joan. They married in 1970. After living briefly in Burnaby, they settled in Point Grey in 1979, where they raised a family and built strong community ties. It was clear to all who knew them that, for Allan, the sun rose and set on Joan. He was a terrific dad to Jennifer (Tom), Matthew (Jana), and Jim (Adrienne). Thrilled when grandchildren arrived, he doted on Elliott, Gretchen, Lillian, and Clara. He was a devoted servant to a succession of pets: Puss, Georgy Girl, Pumpkin, Bogie, Moe, and Flo.

Anyone who knew Al knew how deeply he loved his family. Joan (affectionately referred to as “the wife”) continued her nursing career and captained a busy household as Jennifer, Matthew and Jim arrived within 28 months of each other. Al drew a clear line between his family and his work.

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He never brought work home. Instead, he came home for family dinners and then returned to the office when professional obligations required long hours. He adored his children and, later, his grandchildren. As they became young adults his love was coupled with pride and admiration for the paths they chose and their accomplishments. Today, Jennifer, who graduated from UBC law school in 2005 and subsequently clerked for the Court of Appeal, works as an independent editor. Matthew, who obtained an engineering degree at Queen’s, is employed with Seaspan. Jim, who received his LL.B. at the University of Saskatchewan, is a Crown Counsel in Edmonton. On their 25th wedding anniversary, Allan and Joan celebrated their love and commitment by renewing their vows.

Retirement brought Al more time for the things he enjoyed—family, friends, books, bridge and sports (watching not playing). He was a prodigious reader and had an encyclopedic knowledge of many topics, especially American history and politics. Over the last ten years he read every book published on Donald Trump. His commentary on the present Trump presidency would have been unmatched. Al and Joan were devoted bridge players and long-time members of two duplicate bridge groups. They supported many charities and for decades delivered Meals on Wheels. As well, Al, who hated shopping, regularly volunteered to accompany elderly women who needed assistance with grocery shopping. He kept in touch with friends by circulating curated jokes and stories, and lunches at Denny’s continued, with friends gathering to enjoy his views on the latest political developments and family updates.

Six years ago, Al received a cancer diagnosis. His family remained central to him during his final years, and last August gathered to celebrate his 80th birthday. When his condition became intolerable, Al, with characteristic fortitude and pragmatism, said his farewells and departed this world with medical assistance.

Before he died, Joan told Al the family planned to hold a memorial event for him. He scoffed, telling her she could hold it in a phone booth because no one would come. When that event took place several weeks later, an overflow crowd of family, friends and admirers attended to mourn the loss of a man of integrity and decency, a great criminal lawyer and judge, an exemplary husband, father and grandfather, and a fine friend. A long-time friend and colleague effectively summarized our loss: It’s going to be tough going without [Al]. Among all his other qualities just knowing he was there, able to bat off the nonsense all around us, was a huge comfort.

Kathy Neilson, Cathie Ryan and Austin Cullen

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John Graeme Robertson Third

John Graeme Robertson Third died on Monday, November 13, 2023, leaving behind his wife Paula Third, former wife Betty Third, sister Eleanor Third, sons Noah (Sarah) and Lucas (Courtney), daughter Serena (Jeremy), and grandchildren Milla, Levi, Mikaela, Isla, Seth, Beatrix and Jax. John was born on August 20, 1947, in Penticton, the youngest of three children of parents John Alexander Third and Agnes Mary “Nan” Third, née Robertson. Penticton was not only home, but the location of the family orchard, this being before the region’s venerable fruit trees were displaced by upstart vines. John’s bucolic childhood ended abruptly at the age of nine when his much older brother Sandy left to get married. This put John into a lead role for many of the tasks associated with managing an orchard. While most children rejoice at the end of the school year, John dreaded the tolling of the final bell because it signalled the start of months of hard labour. Cherry picking season starts in June in the Okanagan, and is followed in quick, hot, sunburnt succession by peach picking season, and then apple picking season. On the plus side, wresting an endless succession of heavy boxes bulked up John’s slim young frame with no need to resort to the ads that had made Charles Atlas a household name.

Those years also developed in young John an extraordinary work ethic that served him well during his many years of legal practice. Another benefit, John later said, was an opportunity to work side-by-side with his father.

Between them there developed a deep relationship that few young sons are afforded. This inspired John’s determination to form strong, lasting personal relationships with his own children and grandchildren.

After graduating from Penticton Secondary in 1965, John purchased a much-loved Volkswagen Beetle and followed in his older sister Eleanor’s footsteps to take up studies at the University of British Columbia in Vancouver. At UBC, John majored first in engineering and then in psychology, but his marks reflected the greater appeal of drinking beer and playing chess.

Unsure of his direction, he applied for admission to the Faculty of Law, vowing that if accepted he would become a lawyer, and if not, he would ride around Europe on a motorcycle. This was in the days when Europe really could be seen on $5 a day. John’s application to study law was accepted and his dollars went to the UBC bursar instead of to Italian hostels. At 21, John married Betty on a Friday and started law school three days later.

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Legal studies won out over beer and chess. John graduated from law school in 1971 and was called to the bar in May 1972. He joined Guild, Yule and Company, articled to G.R. Schmitt, Q.C., and continued as an associate with a combined practice of real estate and commercial law, together with some civil litigation. From the start, John had a deep understanding of how law should work. He expressed disdain for those who slavishly overprepared or sought to succeed by memorizing the law rather than by understanding it. Many of his solicitor colleagues would be surprised to learn, however, that during his first years as a young articling student and later associate at Guild Yule, he sometimes threw up in the men’s room before appearing in court. Given this, it is perhaps not surprising that John’s true calling became solicitors’ work.

In 1974, John moved to Dunhill Development Corporation Ltd. to work as in-house counsel. This was a time of great change in housing and property ownership and management in British Columbia. A few months earlier, Michael Audain had been appointed Special Advisor to the Minister of Housing by then-Premier David Barrett and tasked with setting up a new housing ministry. Audain led a process that resulted in a significant increase in social and cooperative housing in British Columbia and included the purchase of Dunhill Development Ltd., which became the Housing Corporation of British Columbia, part of what is today known as BC Housing.

John found himself at the centre of extensive real estate development transactions and the implementation of provincial government housing policy throughout the province. His duties grew to include providing and supervising legal services for real estate acquisitions, construction and development and giving legal advice to the new Ministry of Housing.

In 1977, John joined Bancorp Financial Ltd. as corporate solicitor to Bancorp and its associated companies. They were engaged in construction financing and mortgage brokerage, together with land acquisition, and the development and marketing of residential and commercial projects in British Columbia, Alberta and Washington state. John negotiated, prepared and coordinated various projects, including joint ventures, investment syndication projects, acquisitions and conveyances for the group; participated in lending committee decisions for interim construction financing; and supervised mortgage security and loan administration services.

In 1981, John returned to practice with a new firm, Mawhinney and Kellough (after several mergers now Dentons Canada LLP), where he headed the Vancouver real estate practice group with an emphasis on real estate development. He also served as a member of the firm’s national real estate practice group. He had reached the level of expertise that led to his being listed in LEXPERT®/American Lawyer Media Guide to the Leading 500 lawyers in Canada and being called on to provide evidence in solicitors’

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practice matters in real estate-related litigation. One client wrote recently to say that “John acted as far more than a lawyer to me when I was trying to run a couple of complex organizations based in Vancouver. He could simplify the legal options, explain strategic choices and make it so much easier for us to do what was best. His calm, cool, polite demeanour put everyone involved into a problem-solving state of mind. Angst was banished!”

John contributed in many ways to the profession, the industry and his communities. He was active as a member and leader of the real property section of the CBABC, chaired a joint CBA/Law Society closing procedures committee, served as a non-bencher appointee to the Law Society’s Professional Standards Committee and Solicitor’s Practice Committee, was a member of Planning and Priorities Committee for the CBABC and a member of a CBA Task Force on Member Dispute Resolution, taught Continuing Legal Education and other seminars relating to real estate matters and served on the board of directors of Urban Development Institute, among many other activities. He also served on the board of Norgate House Society, a non-profit society that developed a 36-suite adaptable living rental facility for senior citizens in North Vancouver, and as counsel to The Mel Jr. & Marty Zajac Foundation, a charity engaged in development of inter-generational facilities and fundraising activities for youth and seniors.

John was also valued for, and proud of, his role as mentor to countless young lawyers and paralegals whom he encouraged by imparting his understanding of the real purpose of the law: to solve problems, something at which he was extraordinarily skilled. He was known for his calm and unflappable demeanour, and one of his mantras became famous among his younger associates and paralegals: “Don’t worry until I tell you when to worry. It’s not time to worry yet.” John himself, after his early years, never panicked. This was particularly useful in negotiating, where it was his practice to simply sit quietly while others ranted and raved. He listened politely and then, when the others had had their say, he responded quietly—and everyone else listened. He usually carried the day.

He and Betty welcomed sons Noah and Lucas and daughter Serena. As a devoted father, John and his young children all learned to ski together on day trips to Whistler. The children liked the skiing more than the driving.

They huddled in the back seat for the harrowing trip up and back on the highway. Although outwardly a gentle man, John always loved the thrill of a fast car on a twisting highway.

In the years that followed, the pressure of work gradually gave way to the pressure of curing a wayward slice and mastering the topspin backhand.

His children all graduated from UBC and went on to pursue graduate programs. John sometimes proudly noted that he was the only one in the fam-

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ily with only one degree to his name, since he had left undergraduate studies for law school after only three years, one short of an undergraduate degree.

After the end of his marriage to Betty, in August 1998, John married fellow lawyer Paula Grahame, who then became Paula Third. (Friend and former Mawhinney and Kellough law partner Mary Newbury, later of the B.C. Court of Appeal, officiated.) John and Paula were finally able to embark on that long-postponed but first of many trips to Europe and beyond, albeit without the motorcycle. After several years in West Vancouver, the two of them moved to Gibsons, where they purchased a beautiful house on the water, and a winter home in the Palm Springs area, and in both locations enjoyed not only each other’s company but also the company of many devoted friends and family and the pursuit of athletic mediocrity in such endeavours as golf, tennis, bocce and outrigger canoe paddling, the latter of course in Gibsons, not in the desert.

During a challenging last couple of years with cancer, John retained his grace, charm and dignity. He was grateful for his beloved family and for a throng of friends, clients and colleagues. In July 2023, a few months before his death, he and Paula hosted the entire family, who came from near and far for a week-long family reunion. John enjoyed introducing the seven grandkids to tennis, supervised scavenger hunts and, never one to let children win just because they were children, soundly trounced all challengers at chess. A few weeks later, on a lovely summer’s day in August, Paula surprised John for their 25th anniversary by arranging for David Crosby, who had served as best man at their wedding, to arrive dressed as a town crier, swinging a bell as he ushered in Mary Newbury, who had graciously conspired with Paula to officiate over a renewal of their wedding vows. John’s initial surprise gave way to delight as the ceremony unfolded on their terrace overlooking the sea, concluding with a “paddles up” salute as members of the Gibsons Paddle Club floated by in a six-person outrigger canoe.

On November 13, 2023, John asked Paula to dial up the exuberant song “End of the Line” by The Travelling Wilburys on his iPhone playlist, closed his eyes and listened to the song’s reminder that it’s all right to live the life you choose, to help others, to forgive, to have someone to love and to be happy, since we are all heading in the same direction—to the end of the line. With Paula lying on one side, and his daughter Serena holding his hand on the other, John was able to leave this world under Canada’s medical assistance in dying law. John left this world, as he had lived in it, with courage, conviction and quiet dignity.

Gentle, wise, thoughtful, loving. John is so greatly missed.

Anne Giardini, K.C., and the Honourable Mary Newbury

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Peter Parsons

The unique Peter Parsons was born in Montreal on June 1, 1945 and died suddenly and unexpectedly on January 11, 2025 at Peter Arch Hospital in Surrey.

Peter grew up in Montreal and Labrador City.

After graduating from Dorval High School and working a short while in the aircraft industry, he moved to Vancouver. Peter attended UBC and graduated with an honours English degree before attending UBC law school. Following his graduation in 1974, Peter articled at Farris, Vaughan, Wills & Murphy (now Farris LLP). He practised there until 1979, then left for a six-year respite with the labour group at Russell & DuMoulin (as it then was known).

Peter returned to Farris in 1986 and joined the partnership in 1988. He remained at Farris until his retirement.

Early in his Farris career, Peter met Farris real estate paralegal Bev Messina, beginning a 32-year relationship that ended with Bev’s untimely death in 2011. Bev was the creative lifeforce responsible for “Hot Air”, a lip sync band that performed across and outside the Lower Mainland for years, to the delight of its many fans. Peter was the highly regarded and always entertaining emcee of Hot Air. At the start of his legal career with Farris, the firm was run by Frank Murphy, Q.C., together with his two cohorts Peter Butler, Q.C., and Jack Giles, Q.C. Despite being in the infancy of his legal career, from the outset, Peter had great confidence in his “place” in the firm. He was not intimidated by the power of the Farris managing trio. That confidence, combined with his formidable wit, was in plain sight when he installed an aquarium in his office and added three piranhas named Frank, Peter and Jack respectively.

Fancying himself a mentor for students and new hires, Peter dispensed advice wherever he thought necessary. He suggested that new lawyers should purchase two identical cheap tweed sport jackets from the Hudson’s Bay in the mall below the office, one to actually wear and the other to drape across the desk chair so that Frank Murphy would assume continued attendance when he did his late afternoon checks of associate offices. Peter was also frequently heard reminding associates that “billings is not just a city in Montana”.

Peter frequently acted as junior counsel to the colourful Peter Butler, a media darling who continually bemoaned his constant newspaper atten-

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tion, saying “They can’t leave me alone”. On one occasion, during a break in cross-examination, a member of the Vancouver Sun media team, apparently awed by Butler’s skill and ability, approached Peter to ask for the name of senior counsel, saying that he had never seen such skill in a courtroom. “Oh yes … he is one of the best,” said Peter, “and his name is Peter Parsons.” The next day Peter told Butler that he had managed to solve his media attention problem.

In the main, Peter worked as a labour lawyer on the management side, acting for clients from a variety of industries including forestry (both pulp and hardwood), food service, retail and gaming. His list of clients was impressive and he worked hard for all of them. Peter negotiated many collective agreements and attended hundreds of hearings before labour boards (federal and provincial), arbitrators, human rights tribunals and the courts.

In his 45 years of practice Peter was a dominant personality whose hearings were always characterized by humour, irreverence, sometime eloquence and frequent unintended malapropisms.

In a culminating incident dismissal case, he began closing argument by asking: “It’s time Mr. Chair … it’s time, isn’t it? …. [long pause] Arbitrator: Time for what Mr. Parsons?

Parsons: It’s time for this grievor to take his sorry little act and visit it upon some other employer.”

The arbitrator ultimately agreed.

Outside of work, Peter spent his time caring for his collection of Chevrolet Corvettes (at one point, six in number) and a succession of small white West Highland Terriers. He obtained his flying licence and purchased an airplane in the mid-1980s, somehow convincing a physician that his failing eyesight should not be an obstacle to his ability to fly.

In later years, Peter took to vacationing in Mexico where he owned property. He loved the country and was learning to speak and read Spanish.

Although he was never one for computers (he did not have one in his office at any point in time at Farris), he recently took up cooking (including but not limited to Mexican food) and marveled at the fact that one could learn to cook just by looking at the internet. Peter’s last visit to Mexico was in December 2024.

Peter was an intelligent, kind and generous person who loved animals and supported his friends, family, colleagues and the community at large.

He is missed by all of us.

Alan Hamilton, K.C.

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Hemas Kla-Lee-Lee-Kla Chief William Lane Wilson

Bill was born to Charles William Wilson and Ethel Christine Johnson (Pugladee) on April 6, 1944, in Comox. He was from the Musgamagw Dzawad_a’ enu_ xw and Laich-Kwil-Tach peoples, part of the Kwakw_ak_a’wakw Nation and a member of We Wai Kai (Cape Mudge). His mother, Pugladee, which means “a good host”, is the highest-ranking name in the Eagle Clan.

In 1992, he was given the name Hemas Kla-Lee-Lee-Kla, which means “Number one among the eagles, the Chief that is always there to help”. He was our hereditary chief.

Bill was known from an early age as being very talkative—a reputation that carried with him throughout his life. His mother used to remark that she may have made a mistake by giving him a chief’s name, as chiefs are supposed to sit and listen.

Through the efforts of his parents, Bill was able to attend Comox Elementary, Robb Road and Courtenay Senior High School, where he was one of the first First Nations students, if not the first. In high school, he met Sandra Raylene Wilson (née Hindle), to whom he was married for nine years.

Bill worked from an early age, when at the age of 12 he began to help manage his father’s fishing plant in Comox. At 13, at his father’s insistence, Bill went gillnetting in Rivers Inlet as the captain of his own fishing boat.

Bill’s parents ignored his wish to quit school at age 15 and become a fulltime fisherman. Rather, they insisted he carry on his schooling. After graduating from the University of Victoria in 1970, Bill went on to become the second First Nations person to graduate from UBC law school in 1973. The first was his first cousin, the late Judge Alfred Scow, who graduated in 1961.

While in his early life Bill worked many jobs—including as a fisherman, logger, labourer, taxi-driver, carnival barker, pulp mill worker, bartender, bouncer, poker player, stock promoter, car salesman and even a professional soccer player—his main calling was always to leadership.

In 1958, at age 13, Bill began his work in advocacy for the rights of First Nations when he joined the Native Brotherhood. Among the other leadership roles he would play were president of the UBC Native Students Association, president of the University of Victoria Native Students Union,

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executive director of the Union of BC Indian Chiefs, director of the Native Indians and the Law Program, president of the UBC Law Students Association, vice-president of the Native Courtworkers & Counselling Association of BC, founding president of the United Native Nations, co-founder of the Aboriginal Council of B.C., vice-president of the Native Council of Canada, a liaison member of the Special Committee on Indian Self-Government (which produced the 1983 Penner Report), chair of the First Nations Congress and a task group member of the First Nations Summit.

Bill perhaps remains best known for his leadership during the constitutional conferences around s. 35 of the Constitution Act, 1982, which recognized and affirmed the rights of Indigenous peoples. As the vice-president of the Native Council of Canada, now the Congress of Aboriginal Peoples, he was their spokesperson at the 1983 First Ministers Conference. At that conference, Bill and other Indigenous leaders successfully negotiated constitutional amendments to s. 35 that confirmed, as treaty rights, rights acquired through modern land claims. At the same time the amendments confirmed gender equality. During these negotiations, Bill famously sparred with Prime Minister Pierre Trudeau and stated, as seen on Canadian national television, how his daughters could well become prime minister.

In 1988, Bill helped found the BC First Nations Congress, whose aim was to facilitate land claims negotiations and was elected its chairman. The congress was superseded by the First Nations Summit in 1990. In 1990, in the wake of the Oka crisis, B.C. First Nations came together and met with Canada and British Columbia to discuss a “made-in-B.C.” approach to settling the land question. On behalf of the “Indians of B.C.”, Bill signed an agreement with Prime Minister Mulroney and British Columbia that led to the creation of the BC Claims Task Force, and which led to the establishment of the modern treaty negotiation process in British Columbia.

Reflecting back on these accomplishments, and the expansive way in which s. 35 of the Constitution had evolved, Bill remarked: “The work we did changed this province and the country.”

Beyond advancing changes to laws, policies and practices, Bill was a leader because he gave people hope, never backed down and inspired people to try their best. He was a compelling orator: fierce and precise, funny and charming. Whether in a community meeting, or debating a prime minister, you would laugh, learn and be challenged. He always felt we all could and must do better, and he demanded that we do so.

Never one to slow down, Bill continued his work for change right until his last days. His loving, three-decade partnership with Bev Sellars saw them support one another, and work on important projects together, as they

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both fulfilled their leadership responsibilities to their communities and peoples. His guidance has also been instrumental to the many public, and continuing, accomplishments of his daughters Kory and Jody.

Throughout his life, Bill loved traveling and spending time in communities. Indeed, he endeavoured to visit every First Nations community in Canada, the last one he visited being Seton Portage in 2022.

Bill’s pride in being First Nations was boundless, and that pride was contagious for others. In all his work he upheld the foundations that Indigenous peoples were as good and as accomplished as any peoples, and, moreover, that only we know what is best for us. He always conveyed that the solutions to the injustices we face must come from our own ways, teachings, laws and traditions, and in upholding our sovereignty.

Bill’s pride in being First Nations was matched by his confidence in our people. He always upheld the belief that “if you can dream it, together we can do it”. Throughout his life, Bill had big dreams for himself, his kids, his grandkids, his community, all First Nations people and Canada.

In helping realize some of those big dreams, he inspired and taught us that we can accomplish whatever we set our minds and hearts to. For that, we are forever grateful for Hemas Kla-Lee-Lee-Kla and his presence in our lives. With deep love and respect, always and forever.

Jody Wilson-Raybould, K.C., and Kory Wilson With two postscripts: Dean Ngai Pindell of the Peter A. Allard School of Law gave a tribute, in which he said in part: Chief Wilson is remembered as a powerful advocate for the rights of Indigenous peoples and a force for change, and his commitment to Indigenous rights has left an indelible mark on our institution and Canadian constitutional law. His central and powerful role in the Constitutional Conferences, following the entrenchment of section 35 of the Constitution Act, 1982, inspired later Indigenous lawyers and political leaders to press for a more expansive reading of section 35, enshrining Indigenous title to traditional lands and treaty rights and challenging and expanding the prevailing interpretations of Indigenous rights in Canadian law.

A masterful orator, Chief Wilson challenged those around him to be their best and to never accept the status quo. His intellectual rigour and passionate advocacy not only advanced the discourse on Indigenous sovereignty, but also inspired generations of Indigenous legal scholars, practitioners, advocates and allies. Chief Wilson’s legacy continues to influence our curriculum, our Indigenous Legal Studies community and our ongoing commitment to justice and equality as we set a path toward reconciliation.

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Despite his many obligations during law school, Chief Wilson lamented the lack of a social culture. His solution was to take on the role of president of the Law Students’ Association, running on the campaign slogan “I am going to turn this place into a more fun place for people.” He fulfilled that promise by securing funding and permission for social activities—some of which continue to this day—including the renowned Trike Race. “The place became a little more friendly, even though I was very seldom there,” he reflected.

In addition to his contributions to law, politics and our law school, we also take pride in acknowledging that Chief Wilson’s dedication to justice and education is carried forward by his daughters, Jody Wilson-Raybould and Kory Wilson, and his wife, Bev Sellars, each of whom graduated from our law school.

Bill was passionate about education, and knew that how we educate the generations to come was the foundation of our future. To carry on Bill’s legacy, the family has established the Hemas Kla-Lee-Lee-Kla Scholarship Fund, which will support First Nations students attending law school at University of British Columbia. For more information about the fund, and to donate, please visit: <http://give.ubc.ca/memorial/hemas-kla-lee-lee-kla>.

Gilakas’la.

And from Mike Harcourt, former premier of British Columbia: Chief Bill Wilson and I knew each other for many decades.

First, in the 1970s, at UBC, where we both graduated with law degrees.

Then while I was in elected office in Vancouver. And provincially, from 1986 to 1996 when I was Leader of the Opposition, then Premier.

From my retirement till his recent death we stayed in touch, particularly on how to bring about recognition of Aboriginal rights and title, self government and economic self sufficiency.

What impressed me so much about Bill was his unwavering commitment to to recognition, self-government and economic self-sufficiency.

He was fierce, articulate, patient. He believed Canada was a country that recognized the potential for every citizen to have opportunities, and the ability to realize them.

Our task now is to make that positive vision of Canada happen.

ЖЖЖ

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The Honourable John Evan Spencer

After a life well lived, John left us peacefully at the age of 94, with family by his side. He was predeceased by his parents George and Esther, beloved wife Joan, brother David, and sisters-in-law Margaret and Maureen. Left to cherish the memory of all he was and did are his children Kathryn (Lassaad), Keith (Sheryl) and Susan (John); grandchildren Hannah (Ben), Jesse, Bridget and Virginia; nieces, nephews, grandnieces /nephews and one brand-new great grandniece.

John was born and grew up in Ilford, Essex, a suburb of London, England.

In the summer of 1933, he made his first trip to Canada on a three-month family holiday to visit his “Aunt Lou”, who had previously immigrated to Canada and managed a rooming house in Mill Bay, British Columbia. It was a trip with great significance yet to unfold.

John attended Forest School in the London Borough of Waltham Forest, where he excelled at academics and football. As a Londoner and boarder at Forest during his mid-school years, he witnessed the opening days of the Second World War, the Battle of Britain (as with all young children living in London at the time, he possessed an impressive collection of shrapnel, including highly sought-after “fuse caps” from German bombs and British flak guns), the Allied Forces build-up to D-Day, the V-1 “Doodle Bug” and V2 Rocket attacks that took place in London from the summer of 1944 through to the spring of 1945 (one of which made a direct hit on and destroyed the entire junior school, fortunately landing during the summer break with no loss of life), and the V-E Day celebrations that took place in front of Buckingham Palace on May 8, 1945, marking the end of World War II in Europe (he is perched on his father’s shoulders somewhere in the mass of people captured in the widely published “palace balcony” photograph from that same day).

Upon graduating from Forest in the spring of 1947, and as was required of all young men in Britain at that time, he was conscripted into the military to perform his National Service. After attending officer training school in England, where he acquired such life-skills as “firing Bren guns” and “throwing Mills Bombs”, he became a junior commissioned officer in the Bedfordshire and Hertfordshire Regiment. He was subsequently shipped off to Greece via Egypt to join the rest of his regiment, which was at the time

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deployed in support of the Greek National Government during that country’s civil war. While in northern Greece, he observed some of the last shots fired during the closing days of the Greek civil war.

Upon completing his National Service in August 1949, he returned to England where he gained admission to King’s College, Cambridge on a scholarship that he had earned during his last year of exams at Forest. At Cambridge for three years, he studied English literature (a lifelong passion) and then law. Some of his time at King’s was spent rowing at Henley and Cambridge in the bow seat of the King’s College’s First VIII boat. Rowing was a sport which he followed throughout his life, and we are happy to report that Cambridge is still leading Oxford in “The Boat Race” win column, 87–81, with Cambridge also a heavy favourite to win the 2025 race.

After graduating from Cambridge in the spring of 1952, John and his brother made life-changing decisions to pursue their futures beyond England and applied to join the British Administrative Service in Malaysia.

While waiting to hear back on the outcome of their applications, they again travelled to Canada and spent the summer of 1952 visiting their Aunt Lou, who had retired to Vancouver. Upon arriving in Canada for the second time in their lives, John and his brother fell in love with the country which they would later come to call home, and chose to become proud Canadians.

During his first full year in Canada, John came to the important decision that his future lay with the law. To earn money for law school, he spent the next year selling “white good” appliances at the Woodward’s Department Store in Vancouver. John entered law school at UBC in September 1953, graduating with the Class of 1956, where he finished in the top three in each of his three years. His classmates included 14 later judges, two of whom served on the B.C. Court of Appeal. Although reported to have been keenly studious, John fondly remembered times spent outside of class with Thomas Berger, Tom Braidwood, Ron Basford, Hamish Cameron, Stuart Clyne, Robert Guile, Chuck Lew, Sefton Levine and Rafe Mair. Gerry Lecovin and many others called to the bar became lifelong friends.

John’s three years at law school were funded by various part-time and summer jobs, including being the camp cook for a geological survey crew mapping the Chilcotin (a summer of moose meat, mosquitos, pack horses and tents), a record-keeper at a fish packing plant in Prince Rupert, and an inspector at the City of Vancouver Motor Vehicle Inspection Station, then located at Georgia and Bidwell.

On finishing law school, John articled with Tysoe, Harper & Company in Vancouver and was called to the bar in 1957. By then he had met and married Joan, a nurse he encountered while a patient in the surgical ward at

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VGH. Joan’s tender nursing care, independent thinking and beautiful dark eyes sealed the deal for John, and they were married in 1956 and remained happily so until Joan’s death in 2020.

Once called to the bar, John accepted a position with Fulton & Company in Kamloops, where he became its general litigator. He became a partner in 1958. Early on, he was retained by the Crown to prosecute a well-known provincial government official with a reputation for fast driving who had been flagged down by two Royal Canadian Mounted Police and charged with overtaking them on a bend at high speed. Public interest in the case was keen. Instructions came by phone: “Spencer, the Government doesn’t care whether it’s a conviction or an acquittal. Just don’t f*** it up!” True to instructions, he secured a conviction and sustained it on appeal.

In 1962, John, Joan and their growing family moved back to Vancouver.

He joined Bourne, Lyall, Shier & Davenport, where he became the firm’s general litigation partner and took on all manner of corporate and commercial, employment and criminal matters. He enjoyed his time there immensely, and had wonderful partners in Jack Bourne, Gordon Lyall, Phil Shier, David Davenport, Don Risk, Bill Randall, Gary Catherwood, Bruce Bell, Avon Mersey and Norm Trerise. In those “early days”, partnership meetings were held around a table at a coffee shop next to their office in the Royal Bank Building at the corner of Granville and Hastings. He remained a partner there until 1975, when he was invited to become a judge in the County Court of British Columbia. In 1981, he was elevated to the Supreme Court of British Columbia and remained there until retiring in 1999. As a judge, John had a reputation among counsel for being a “good pick”. He was always prepared to listen carefully to counsel’s argument, but if he grew impatient with the pace of the submissions or examination of a witness, he hid it well or buried his views in the margins of his bench book. He was conscientious and timely in writing his decisions and always took great care to write in a way that would provide a roadmap for the next lawyer or court wrestling with a similar set of facts or legal issue.

John was a hardworking man of many talents, with a deep-seated belief in fairness, social justice and giving back. Among his many volunteer contributions were nine years as registrar of the Anglican Diocese of New Westminster and eleven years as its chancellor. During his time as chancellor, he supported the diocese and Bishop David Sommerville in the 1976 decision to commence ordaining women to the priesthood, and later as an advisor to the dioceses, in the 2002 decision to begin blessing same-sex marriages. He also held numerous positions with St. Mary’s Kerrisdale Anglican Parish and the National Anglican Church. He personally participated in develop-

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ment work in Central America and supported Joan in her very many activist endeavours (Don’t Make a Wave Committee, Greenpeace, Amnesty International, Canadians for an Independent Canada, Society Promoting Environmental Conservation, etc.). Yet with all that going on, he found time to come out and watch his children’s and grandchildren’s soccer and rugby games. He also coached and managed both girls’ and boys’ soccer teams and enlisted many of his friends in doing the same. In 1973, he helped start and became the founding president of the Vancouver Girls Soccer League—perhaps his volunteer commitment that he was most proud of.

A contented gardener and coming from a long line of accomplished carpenters and general handymen, John happily passed his knowledge on, at home and at the family cabin on the Sechelt Peninsula. Secret Cove was a special place for John, where he could spend time with Joan and the kids, free from the distractions of a busy legal career and all the “in between work time” requests that come with caring and volunteering. He took great joy in writing and sharing his short stories, even winning the odd writing competition in the Advocate. He was also known to provide a suitable piece of poetry for any occasion from his vast store of knowledge, and spent time in his later years quietly volunteering to teach English to children of new immigrants to Canada.

John’s many life experiences provided him with much wisdom to pass on to those around him, but among his best was to one of his children, at the outset of a legal career: “Your reputation is all that you have control over at the end of the day. Never sacrifice it.” A better father and role model there could not be. We miss you every day.

ЖЖЖ

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NEW JUDGES

By R.C. Tino Bella

Reintroducing the Honourable Justice Lisa Hamilton

It is rare for a sequel to be as good as the original, let alone better: The Godfather II, Empire II, Aliens and Christmas Vacation 2. Justice Lisa Hamilton’s new role as a judge, following her distinguished career as a lawyer and mediator, promises to be another example of the second instalment surpassing the original.

Equally, this article will be an improvement on the factually inaccurate cover story about Lisa from the January 2022 issue of the Advocate.

For example, contrary to the assertions of the authors of the prior article, while Lisa was born in Alert Bay, she actually resided in the small town of Sointula, British Columbia. Her father was a fisher and her mother was an elementary school teacher. Sointula is a close-knit, friendly community, known for its natural beauty, which laid a solid foundation for Lisa.

Moving to North Vancouver, another instance of improving on the original (at least from the authors’ perspectives), at age five along with her younger brother Alan and her parents, Lisa quickly made her mark as a vibrant and empathetic student. Her early years were defined by her bright disposition and inclusive nature. She was not only an excellent student, but also an avid competitive figure skater. Even as a child Lisa was an advocate.

A particularly memorable anecdote from her early school years involves a young Lisa standing up for a classmate who was being bullied. The two became lifelong friends. This early display of compassion set the tone for Lisa’s future endeavours and her commitment to advocating for others.

Lisa’s academic journey began at the University of British Columbia, where she pursued a bachelor of arts degree in psychology. Initially, Lisa had no intention of becoming a lawyer. Instead, she was motivated by a

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desire to support a friend studying for the LSAT. As fate would have it, Lisa’s excellent mark on the LSAT led her to the University of Victoria’s Faculty of Law, where she earned her LL.B. in 1994. During law school, Lisa had twin boys, Spencer and Keenan. Balancing the demands of law school with the responsibility of raising her twins was no small feat. Nevertheless, Lisa’s perseverance and dedication to both her family and her studies were evident, and formed the basis for her future success.

On being called to the bar in May 1995, Lisa quickly established herself as a formidable presence in the legal field. She began her career at Baker Newby in the Fraser Valley, practising criminal law as agent for the federal Crown as well as civil litigation and family law. During her time at Baker Newby, Lisa gave birth to her third son, Alex. Lisa was able to balance raising her three boys while maintaining a busy law practice. Practising at Baker Newby instilled in Lisa the importance of volunteerism and community involvement.

As a follow-on to Baker Newby, Lisa moved to Vancouver in 2000 to work with Karen F. Nordlinger, K.C. It was while working with Karen that Lisa honed her litigation skills, figuratively transforming herself from the Sarah Connor of the Terminator to that of T2. Lisa was highly regarded as a skilled advocate and a persuasive litigator. She was counsel in V.J.F. v. S.K.W., 2016 BCCA 186, one of the first leading decisions regarding property division under the Family Law Act. In 2008, Lisa co-founded Hamilton Fabbro, a boutique family law firm in downtown Vancouver. The firm quickly gained a reputation not just for its legal expertise but also for its supportive and positive workplace culture.

Lisa mentored countless associates through her time at Hamilton Fabbro, creating numerous spinoffs in the process. Her standards for excellence were high, and she was not afraid to use her red pen to mark up the work of her protégées. She was known for her “marvelous” way of revising drafts to perfection with hand-written paragraphs snaking up and down the page in the margins and creating a ribbon that wrapped the entire document. She instilled the values of hard work and dedication through her mentorship, but she also insisted on self-care and attending to mental health and wellness. As a leader in the profession, she was not afraid to be vulnerable and supportive of important initiatives such as improving the mental health of lawyers. Lisa has also been open and willing to share her own experiences in this regard, setting an admirable example for the profession.

Lisa’s legal career has focused primarily on family law, but she also practised in the area of solicitor’s negligence. Later in her career, she became a family law mediator, parenting coordinator and certified family law arbitrator. Lisa assisted countless families to resolve their disputes out of court and was revered by her colleagues as one of the best family law mediators in the

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province, often traveling to other parts of the province to assist parties with consensual dispute resolution.

Lisa has been a dedicated volunteer throughout her career. She was appointed Queen’s Counsel in 2017. She has held various leadership positions within the CBABC and has been a board member for the Continuing Legal Education Society of BC. She served as a member of both the Provincial Court Family Rules committee and the Supreme Court Rules committee. Lisa was part of the Health and Justice Alliance, which brought doctors and lawyers together to help families who are going through separations.

While Lisa is not always the most technology-savvy person in the room, she always has innovative ideas, and she was able to turn those ideas into projects that helped both the profession and the public. Her pioneering spirit assisted in the creation of the Family Law Organizer, an online community designed to facilitate the sharing of ideas and precedents among family law professionals across British Columbia. Lisa’s visionary approach also led to the creation of the Virtual Mediation Project in 2021, providing online pro bono mediations to low-income families.

Lisa is a leader in the legal community. She followed in the footsteps of three of her mentors, David Renwick, K.C., Karen Nordlinger, K.C., and Martin Finch, K.C., and became a bencher of the Law Society of British Columbia in January 2016, and subsequently the president of the Law Society in 2022. Lisa brought the wisdom and insight of Yoda in The Empire Strikes Back to the bencher table. She is now a life bencher. While at the Law Society, Lisa demonstrated a commitment to improving the profession and mentoring young lawyers. Her tenure as president was marked by her efforts to foster transparency and enhance the profession’s overall integrity.

While her professional accolades are impressive, it is Lisa’s blend of warmth, kindness and inclusivity that truly sets her apart. From her early days as a budding lawyer to her new role as a judge, Lisa has been a beacon of support, excellence and leadership in the legal community.

Outside of her professional accomplishments, Lisa is known for her devotion to her children, Keenan, Spencer, Alex, her special relationship with Lisa (the other Lisa) and her grandchildren, Lucy and Wyatt, her love of her two perfectly groomed pups, Eddie (Van Halen) and Sugar, as well as an appreciation of music, watching hockey and adventures which she shares with her partner Zoran.

As Lisa assumes her new role, her skills as a hardworking, empathetic and intelligent professional will enrich the judiciary and the public whose cases she presides over. We are confident this next stage of Lisa’s career will be more Canada versus the United States in the finals, and less Canada versus the United States in the round robin—to the benefit of us all.

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The Honourable Justice Alison Latimer

Alison Latimer, K.C., was appointed as a judge of the Supreme Court of British Columbia on May 27, 2024 after practising law in Vancouver since 2009.

Alison was born in Philadelphia and moved to Kelowna at age four when her parents relocated so her father could open a psychiatric practice in the growing community and they could raise their family surrounded by the Okanagan valley’s beautiful mountains and lakes.

She grew up on a small hobby farm, the middle of three close siblings, and there began her lifelong love of nature and the outdoors as the family spent much of their time swimming, hiking, skiing and working together on their property. Animals of all sorts were also brought into the household on regular rotation—dogs and cats as well as more unusual creatures including peacocks, a horse and a beloved baby skunk. Alison bonded with them all.

During her middle and high school years, Alison and her sisters got the chance to be entrepreneurs, learning about hard work while managing the family’s one-acre raspberry farm. Though they sometimes complained, she now looks back fondly on idyllic summers when July days started early in the raspberry patch picking and selling fruit alongside her sisters and their friends before they all raced to the lake when the Okanagan sun got hot.

Alison names her parents as her two most important early life influences for the way they modeled care in the family, the community and through their work in helping professions. Thanks to her mother’s background in nursing and her father’s work as a psychiatrist, both spoke early and often about the complex social determinants of health and the difficulties many people face when dealing with disadvantage and mental health challenges.

When Alison and her siblings were out of the house, her mother moved to Nunavut to work as a community nurse. During her years there, she shared often about the unique challenges faced by Indigenous communities in the north. From both her parents, Alison learned it is a privilege to listen, learn and attempt to situate individual problems within larger social contexts. This early life exposure to the complexity of the human condition remained with her and informed much of her work within her own legal career.

Alison’s journey into law was not a linear one. When she finished high school, she moved to Vancouver Island and enrolled at the University of

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Victoria where she earned a bachelor of fine arts in theatre. She loved every minute of it.

As a stage manager, Alison was able to travel and work all over Canada and abroad including stints in Barkerville, Stratford, Toronto, Vancouver, Winnipeg and several seasons aboard cruise ships in the Mediterranean and Caribbean. She thoroughly enjoyed the productions, the opportunity for travel and the many new people she met along the way. She also credits her career in theatre and its nomadic lifestyle with forcing her out of her introverted comfort zone and teaching her the valuable life skill of adaptability.

One winter, while working in Winnipeg on a production of Much Ado About Nothing, Alison found some nights there was not a lot to do backstage.

She kept her mind engaged with crossword puzzles until she came across an LSAT prep book in the greenroom and started doing the practice tests to fill the time. She soon discovered she had an aptitude for them.

Alison had a few weeks off work that February which she had planned to spend snowboarding. But with her curiosity piqued, she decided she would also use the time to keep practising and write the LSAT before beginning her next production. The test went very well and she changed her life’s course, returning to the University of Victoria where she began law school that September.

At that point, Alison was several years out of school and her background in theatre had not provided her with any baseline knowledge of the legal system. She did not know any lawyers, so was forced to ask her basic questions aloud in class. She describes struggling in a deep way with imposter syndrome during that time.

She now says the single best thing she did during her law school years was manage to get hired as a research assistant to two of her professors, Ben Berger and Gillian Calder. Working for these mentors, she was able to earn some needed money, but more importantly, these were the first legally trained people she came to know in her adult life.

Years later, she remains grateful for their generosity as they included her in the legal thinking behind their research, which dealt with civil liberties and public law and examined how the law treated difference along religious and gender lines. Her connections with both were tremendously influential as she chose her own legal direction.

Alison’s journey into law took another significant turn when she accepted an articling position at the boutique law firm Arvay Finlay LLP. She eventually joined the firm as an associate in 2009 and became a partner in 2017.

At Arvay Finlay, she worked closely with legendary constitutional lawyer Joseph Arvay, O.C., O.B.C., Q.C., a tireless defender of civil liberties and

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human rights. Alison spent most of her career working with him. To this day, she credits Joe with “teaching her every single thing” she knows about being a lawyer, including the responsibility to work to make the world a more equal place.

As a lawyer at Arvay Finlay, Alison represented clients from all walks of life, ranging from people who were wrongfully accused to the children of anonymous sperm donors.

She served as counsel on landmark public interest cases, including those establishing the right to physician-assisted dying and limiting prolonged solitary confinement in federal prisons. Alison frequently represented vulnerable clients, skillfully translating their experiences into forms the court could understand, always situating their plight within a broader social context and advocating for more humane laws.

She brought her boundless imagination and grit to numerous hard fought legal battles on a wide range of public interest issues, including defending against a challenge to the public health system brought by a private health care advocate. Alison quickly becoming known as a star litigator, brilliant appellate lawyer and nationally recognized expert on constitutional law and Charter litigation. She appeared before the Supreme Court of Canada more than a dozen times on behalf of both appellants and interveners.

In 2020, Alison established her own firm, continuing her diverse practice on behalf of people and public institutions. She also served as associate commission counsel to the Cullen Commission of Inquiry into Money Laundering in British Columbia. Her practice developed to include acting on behalf of administrative tribunals, which she credits with enlightening her about the endless competing demands and constraints placed on public resources, as well as the pressing need to make decisions and processes accessible and transparent to the public.

Alison was repeatedly recognized for her superb record of accomplishment and commitment to the legal system. Her many accolades include being named a Benchmark Litigation Star and one of the Top 50 Women in Litigation in Canada (2020), being appointed Queen’s Counsel (now King’s Counsel) (2021) and being accepted as a fellow of the Litigation Counsel of America (2022).

Throughout her career, Alison had the opportunity to collaborate on a wide range of constitutional, administrative and criminal law cases with some of the finest lawyers and academics in the country. These collaborations brought her tremendous joy. She is widely admired by these colleagues for her brilliant legal acumen, tireless work ethic, prodigious output, and boundless enthusiasm and good humour.

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Pro bono work was central to Alison’s career and her vision of the law as a vehicle to promote equality. She represented a wide range of public interest organizations, including the British Columbia Civil Liberties Association, the Queen’s Prison Law Clinic, the Criminal Defence Advocacy Society, the David Asper Centre for Constitutional Rights and the John Howard Society. One of her pro bono institutional clients praised her exceptional service to the public over many years, adding, “Alison embodies the ideal qualities of a judge—her temperament, intellect, and unwavering dedication make her perfectly suited for the role in every conceivable way."

Throughout her career, Alison also demonstrated her dedication to scholarly work and the advancement of legal knowledge, publishing extensively on a variety of issues related to her practice.

Working with students and mentoring younger associates is another avenue that energized Alison and allowed her to give back to the profession.

As an adjunct professor at the University of Victoria, she taught courses on the Charter and strategic rights litigation. She was frequently called on to serve as faculty at legal conferences and as a guest speaker at law schools.

For several years, she served as a coach for the Wilson Moot and the Allard Law School, where she found it gratifying to work with smart and idealistic young people, sharing with them her love for the legal profession and her commitment to using the power of the law to make the world a better place.

Beyond her career, Alison is devoted to her family and friends. She and her partner enjoy their home along with their two pampered cats and continue to spend as much time as possible in the outdoors, hiking, skiing, traveling and spending time with family.

Alison’s life and career, her exceptional qualifications, integrity, deep compassion and profound commitment to justice make her an outstanding judicial appointment for the people of British Columbia.

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The Honourable Justice Shannon Ramsay

Shannon Ramsay, K.C., was appointed as a judge of the B.C. Supreme Court on Monday, May 27, 2024.

Over the preceding weekend, there were suspicions that she had already received the “judicial appointment call” from the Ministry of Justice and Attorney General when one of her colleagues attempted to engage her in benign discussion on a file, only to uncharacteristically receive no response. After passing perhaps the first test of being a judge—that is, maintaining the integrity of the judicial appointment process—the official news of Shannon’s appointment to the court was cheered by all those who have been fortunate enough to travel the path with her to that moment.

Shannon was born and raised in Kelowna, the daughter of Jim Ramsay and Donna Sheppard. She grew up with a passion for dance, particularly jazz, tap and ballet, and also for ski racing. Even at a young age, Shannon demonstrated a personality perfect for the law: not only was she always one of the top students but late in her elementary school years, when a teacher handed out an assignment that seemed too onerous, she spoke up against it on behalf of her fellow classmates in the name of fairness. Shannon was also a voracious reader, able to read and process new information quickly.

This was verified by her father Jim, who, when Shannon was not yet in her teens, thought it would be a good idea to test her by purchasing a magazine at an airport stand and, on the flight, assigned her an article on a topic neither of them knew anything about. Not only did she finish the article before he got through the first page, she was “bang on” with her responses to the questions that Jim posed to her about it.

This anecdote is at the same time less surprising (i.e., the testing) and even more impressive (i.e., how quickly she processed the article) when you consider that Jim was at the time a solicitor and named partner of Porter Ramsay LLP, a full-service firm that has operated in Kelowna since 1963. That said, a career in the law was never pre-ordained. Shannon’s brother Todd, step-sister Kate, step-mom Sheryl and mother Donna are all artists whom Shannon greatly admires for the work that they do.

Although she became a lawyer like her father, Shannon was prepared to forge her own path. After graduating from Mount Boucherie Secondary School in West Kelowna, she completed her undergraduate studies at the

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University of Alberta, graduating with a bachelor of arts in anthropology with distinction, before attending UVic’s Faculty of Law. Shannon spent her 1L summer at Porter Ramsay LLP. While she was well liked by everyone at the office, Shannon disappointed many when she decided not to return and demonstrated no interest in taking over Jim’s solicitor’s practice (a matter which she hopes can now be forgiven).

Shannon excelled at UVic, winning a list of academic prizes, scholarships and medals that would not fit within the Advocate’s word limits. Suffice it to say, counsel appearing before her should make sure they are fully prepared in matters of employment, taxation, evidence and contracts. All of that however pales in comparison to the most significant event of Shannon’s law school experience: meeting her husband Michael on his first day of classes.1 After graduating from UVic in 2001, Shannon clerked for the B.C. Supreme Court including for now Associate Chief Justice Holmes, who presided over both her private and public swearing-in ceremonies. Up until her appointment to the court, Shannon considers the clerkship to be the best job she ever had.

Shannon began her legal career at Alexander Holburn, where she had summered, working closely with Bill Holburn, Q.C., and Todd Davies. She practised primarily as litigation counsel in the areas of occupier’s liability, product liability and insurance coverage disputes.

In September 2005 Shannon joined a new litigation boutique law firm in town, Hunter Voith, which shortly thereafter became Hunter Litigation Chambers. It was there that Shannon, following the example of its founding counsel, developed a generalist litigation practice that included extensive experience as counsel before all levels of court and at many arbitrations and administrative hearings. She would encounter and develop varying degrees of expertise in (and this is an inclusive list) commercial contract disputes, negligence law, administrative law, Indigenous rights litigation, forestry law, gaming law and access to information law. Notably, she helped lead the counsel team representing the British Columbia Lottery Corporation before the Commission of Inquiry into Money Laundering from 2019 to 2021.

Along the way, she worked closely with the likes of Peter Voith, K.C., John Hunter, K.C., Michael Stephens, K.C., Jacqueline Hughes, K.C., Claire Hunter, K.C., and Mark Oulton, many of whom she is delighted to be reunited with as judicial colleagues.

Recently retired Justice John Hunter said that “hiring Shannon was definitely one of my best hiring decisions ever”. From the beginning, she showed exceptional intelligence, was always reliable and hardworking, and had impeccable judgment and instincts as well as exceptional litigation

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skills. On complex, document-intensive litigation disputes often with thorny evidentiary issues and novel issues of law, she was always able to effectively find a path through the chaos. Her approach to advocacy was nononsense and driven by an overarching desire to be helpful to the court.

What her colleagues, opposing counsel, clients and witnesses note was particularly admirable was that she did so in a way that put the human element at the fore, always placing a high premium on collegiality and civility. One witness, whom Shannon helped guide through the unfamiliar and stressful experience of trial, was so struck by her thoughtful preparation and care that he thanked her, sent her flowers and years later still asks about her and recalls how skillfully she led him through that process.

In 2021, she joined the B.C. Ministry of Attorney General, Legal Services Branch, as a Deputy Supervising Counsel in the Litigation Group. There, she was responsible for overseeing and advising legal teams who conduct litigation across a broad range of subjects, including many cases of paramount importance to the law, broadening her experience to include constitutional litigation, government liability in tort and judicial reviews arising out of a wide range of administrative decision-making bodies.

In September 2023, Shannon returned to Hunter Litigation Chambers and was appointed King’s Counsel shortly thereafter.

Shannon comes to the court with a wellspring of admiration from the many members of the legal community she has positively impacted and who hold her in the highest possible regard. One former colleague described Shannon as having “unassuming humility with no basis for being humble”. Another remarked that she is “effortlessly scrupulous”. Much of the praise comes from those she has mentored, all while carrying on the demanding work of senior counsel. Crediting the benefit of excellent mentorship she has received throughout her career, Shannon has paid that good fortune forward, and then some, to countless others. The clear consensus is that she has a gift for connecting with others, listens, cares and always keeps an open mind. She is “fairness personified”. This author would regularly walk into Shannon’s office with a case, often cold, and invariably walk out with an insight he did not have before. Shannon has always had a great gut for getting to the nub of the issues.

The wider community has also profited from Shannon’s invaluable contributions and volunteer time. From 2018 to 2023, she was a member (and from 2020 the chair) of the CBABC’s Advisory Committee to Judicial Council, where she played a critical role in the process by which Provincial Court judges are vetted and appointed. Her passion for mentorship and peer support extended outside of the law. In 2018, she co-founded a small, local com-

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munity group that helps build connections among women who find it difficult to meet other neighbourhood parents because of work schedules and is a space for women to support each other through the challenges and rewards of parenting as high-achieving professionals. Shannon has also been a CLEBC faculty member, and was co-author of the “Civil Procedure Court Rules” chapter of CLEBC’s Annual Review of Law and Practice from 2005 to 2014. Before appearing before Justice Ramsay at a pre-trial conference or at the start of trial, counsel would be well advised to review “Organizing Your Evidence (Including Documents)”, which she updated and presented at CLEBC’s Civil Litigation Basics 2018.

Despite her many professional accomplishments, Shannon makes time for things that matter most to her outside of law: her friends, her husband Mike,2 her children Matthew and Paige, and the most recent addition to the household, their dog Ozzie. As many of us can appreciate, this is easier said than done. When she is not going for forest walks close to her home, Shannon is an avid traveller, and favours trips to Europe, and specifically France.

She will travel to tropical places, while carefully avoiding contact with the sun, carrying with her a wide range of powerful sunscreens and comically large hats which can all somehow be crammed into a carry-on bag. In her spare time, Shannon enjoys what can be charitably described as “light fiction”. She is also an enthusiastic gardener, but not necessarily a good one, which means many may encounter her at the local gardening store investing in replacement plants.

In sum, Shannon’s broad life and legal experience, and her passion for the justice system and the people it serves, will aid her well in this next chapter of her story.

ENDNOTES

1. Michael, a native of Edmonton (and long-suffering Oilers fan), also attended the University of Alberta at the same time as Shannon, but the two never met during that period in their lives.

2. Although there is no question of Shannon and her husband Mike’s mutual commitment to one other, there has been some degree of uncertainty of their marriage from a purely legal perspective. They were married at a resort in Mexico, and although the all-

inclusive resort included, at no additional cost, a document entitled “Acta Certificada de Matrimonio” which purports to be the local marriage licence, the actual legal effect of the document and the authority of the resort to grant that licence were rather less certain. This issue appears to have been laid to rest when the judicial appointment process accepted a notarized and translated copy of the document as proof of the marriage.

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NEW BOOKS AND MEDIA

By R.C. Tino Bella*

P.W. Bridgman, The Four-Faced Liar: Short Stories & Flash Fiction (Victoria, Ekstasis Editions, 2021); and P.W. Bridgman, Idiolect (Victoria, Ekstasis Editions, 2021) Reviewed by Leslie Palleson

P.W. Bridgman’s background as both psychologist and lawyer permeates these works that highlight a keen perception of human behaviour beside a sophisticated and precise use of language. This runs through both his short story / flash fiction collection The Four-Faced Liar and his book of poetry Idiolect.

In one of the final stories of the eponymous collection, “The Four-Faced Liar”, a prominent clock in a small town shows a different time on each of its four sides, an inauthenticity that causes confusion and conflict in some situations and, in others, is embraced to justify further deception. While those striving after the authenticity of love, at least in its carnal sense, follow more reliable sources of time in “The Four-Faced Liar”, overall, the clock, the liar, contributes to the foundational underpinning of the lives of the inhabitants of this town, a juxtaposition that carries throughout the collection as intensely human characters grieve and strive against a backdrop of inauthenticity.

Bridgman shines best in his longer pieces, where characters are brilliantly sketched through rich details. For instance, in “Bells for Geordie: 1962”, the complex Mrs. Gavin, a divorced mother clearly out of place in small-town Ontario, speaks “like a flouncy starlet” in a town “best known at the time for its big concrete moose”, and comes to life with one brilliant description: “And yes, we could smell something astringently medicinal when she bent down to hug us after the Christmas pageant, wearing what

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our clucking mothers condemned as her ‘fire-engine-red dress with the plunging neckline’.” Unfortunately, the mother is abusive. As her son Geordie is driven away by social workers “in the rear seat, clutching a small, government-issued toy bear” and she throws herself at the car, her desperation heartbreaking, the complexity underpinning human nature is on full display.

Alongside desperate heartbreak, irony permeates The Four-Faced Liar, particularly utilized to expose the ersatz fabric of our lives. In “Win, Win: A Mini Tragicomedy” the protagonist, who longs for authenticity, finds himself immersed in deceit in all aspects of his life, from relationship, to career, and even house design and neighbourhood. As he strolls his new surroundings in Douglas Park he cannot find comfort: “his mind riffed uncharitably on thousand-dollar cappuccino makers defiled with Nabob grounds, SubZeros stocked with frozen pizza and no-name tonic water, the granite countertops, the kitchen TVs locked onto CNN and the Wolf ranges that grilled processed cheese sandwiches and reheated cottage-roll hams bought in sixpacks at Costco.” This protagonist ultimately tackles inauthenticity head on, and while there does run a thread of resolution among these stories that smack of pedantry, Bridgman’s characters and their plights remain with the reader long after the read.

The flash pieces in this collection often read as less finished than the short stories, and are eclectic in terms of style and quality, some being the flash equivalent of a comedy sketch, and others veering towards morality tales and do not always achieve the depth found more readily in the longer pieces. (This reviewer particularly struggled with a somewhat glib description of childbirth in a ramshackle East Van cottage, a fairytale of sorts describing a birth as follows: “with two or three firm pushes, Diane emerged—forced out with ease like an edamame bean from its soft, salty green shell…”.) Still, the courage to play and experiment also reaps rewards and some of these short pieces, such as “Is It an Algorithm, or Is It a Human? Does It Matter?”, achieve an irony and truth so compelling as to be unmatched by most entries found in the New Yorker “Shouts and Murmurs” column.

Overall, The Four-Faced Liar offers a good read, particularly for lawyers as so many of our noble profession populate the pages of this collection. It is an overall compelling commentary on authentic lives navigating an ersatz world, juxtaposing irony and heartbreak, easy to read in short and entertaining, or perhaps devastating, bursts.

The themes present in The Four-Faced Liar also permeate Bridgman’s poetry collection Idiolect. Witty, erudite, playful and poignant, Bridgman tit-

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illates on one page and dives deep into the human soul on another. A master of language and purveyor of wit, Bridgman also shows himself capable of rendering a narrative with judicious use of well-chosen details that place the reader in the middle of a human drama, such as in “Could You Please be More Specific?”, or “Dream, Interrupted”, where the reader experiences a moment in another life with all its emotional depth in only ten lines.

Often narrative in form, sardonic and satirical, this eclectic collection dissects the human for all its foibles and lays each out for examination, placing longing for love and humanity beside the dehumanizing forces of patriarchy, power, technology and, well, kitsch. At other times, the collection just has fun, such as the nonsense poem “Why the Ferryman’s Mum Will Never Be Queen (a Nonsense Poem)” based loosely on Louis NacNeice’s “Bagpipe Music”. Unlike some collections of poetry, this collection can be easily deciphered by the rational mind, but do not be fooled. You may find yourself googling references or looking up words you are unlikely to encounter again as Bridgeman shows off his literary prowess and wizardly power over language throughout.

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LETTERS TO THE EDITOR

By R.C. Tino Bella*

Dear Editor, Re: “LAPBC Notes” (2025) 83 Advocate 243, “News From BC Law Institute” (2025) 83 Advocate 237, and George Macintosh & Martin Taylor, “Nos Disparus: Peter Ballem” (2025) 83 Advocate 263 I do take the Advocate for granted, assuming it will appear on my desk periodically and it will be interesting, informative and humourous. Accordingly, this is not a letter of complaint. Rather, I am writing about several articles in the most recent edition.

Firstly, Derek LaCroix, K.C.’s call to action concerning “Culture Change in the Legal Profession” is long overdue and as many of us as possible should get involved.

Secondly, a confession: I read Marie Ong’s “News From BC Law Institute” and specifically her discussion of “the need for trauma-

informed legal writing”. Reading the title I thought this has to be a joke since the whole practice of law is all about trauma of one kind or another, so how can writing make a difference? I was about to move on but decided to check out the “Guide”. It can be found on the Law Institute’s website. It is about 50 pages long, and is a 20-minute read to absorb its content. Well, I was DUMBFOUNDED, which I interpret to mean I was DUMB and now I’ve FOUND that out and am now educated. The discussion of “trauma”, the different types, the different manifestations of same is enlightening to say the least. How to recognize and deal with trauma is a valuable and essential tool all lawyers and judges should have and use. I strongly recommend all lawyers and judges read the guide.

Thirdly, I will say a few words about Peter Ballem. My dealings

* 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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with Peter are exactly as depicted

by George Macintosh and Martin Taylor in their excellent obit. I first met Peter after Brian Coleman talked me into running for the executive of the VBA. Brian arranged for me to be elected.

Peter was the president I met at our first executive meeting. Those meetings occurred at The Mark, Hornby and Dunsmuir, usually on Wednesday evenings. At my first meeting Peter presided. The rule was that all VBA business had to be completed before dinner and drinks. The agenda had about 12-15 items to be dealt with. I groaned to myself that my hunger would go unsated for hours. As Peter called the meeting to order it became apparent I was being subjected to “Robert’s Rules of Order”, Ballem edition. Peter would read out each agenda item, “Question?” Silence.

“All in favour?”, “Opposed?”

Passed.” There was then a race to be the quickest to move that the meeting be adjourned: “All in

favour?” In very short order the business was done. On to dinner and what I recall was a lot of wine.

That first night, after dinner, Peter invited whoever wanted to for more drinks and specifically invited me. We became good friends. A wonderful guy!

Regards, Glen Orris, K.C. Vancouver Dear Editor, Re: “Constitutionality” I was recently provided with the agenda for a strata council meeting, for a six-unit, bare land strata, that is self-managed.

Item #1 was to call the meeting to order.

Item #2 was “confirm we are dually constitutional”.

I eagerly await the minutes reflecting the discussion.

Yours truly, Margaret Sasges, K.C.

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LEGAL ANECDOTES AND MISCELLANEA

By Ludmila B. Herbst, K.C.*

TREASON IN THE AGE OF SLAVERY1 In or about 1754, a mixed-race slave named Billy (or Will or William), who had no known last name, was born in Richmond County, in the “Northern Neck” of the English colony of Virginia.

Colonists in that area at that time included the Tayloe family, who became established there in the 1600s. By 1747, when John Tayloe II inherited the Tayloe estate from his father, the estate included around 20,000 acres of land, along with industrial enterprises such as an ironworks. John Tayloe II was a member of the Virginia Governor’s Council, which was the upper house of that colony’s legislature. He built Mount Airy, a graceful home that was the first example of colonial Georgian architecture, and was where, prior to the American War of Independence, he hosted Lord Dunmore, who became governor of Virginia in 1771.

When John Tayloe II inherited the Tayloe estate, it also had around 320 slaves—a staggering number, but modest relative to the scale of the trade and tradition of slavery in the British Empire. Between 1662 and 1807, “British and British colonial ships purchased an estimated 3,415,500 Africans”, of whom “2,964,800 survived the ‘middle passage’ [their weeksor months-long voyage, in inhumane conditions, from Africa to the Americas] and were sold into slavery in the Americas”.2 Thomas Jefferson, who was (like Tayloe) born into Virginia’s “planter class” and who became the third president of the United States, “owned more than 600 slaves during his adult life”.3 Although no specific information is available on Billy’s parents, he is described as “Mulatto”. This is now regarded as a deeply offensive term, which was used to signify mixed-race ancestry or, more particularly, that

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

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one parent was black and one white. In Virginia and other English colonies in the Americas, children of enslaved mothers took their legal status,4 so presumably Billy’s mother was an enslaved black woman.

A “light coloured Mulatto man named BILLY or WILL” was described as “the Property of the Honourable John Tayloe, Esquire” in an advertisement placed in April 1774 by Tayloe’s iron agent (that is, the agent employed by Tayloe at the Tayloe ironworks). This advertisement sought the return of Billy after he had run away, offering a reward to readers for their assistance in his recovery: “Whoever apprehends the said Mulatto Slave, and brings him to me, or to his Master, the Honourable John Tayloe of Mount Airy, or secures him so as to be had again, shall have double what the Law allows, and all reasonable charges paid.”

According to the advertisement, Billy had, in his youth, “for many Years, used to wait on [the agent] in [his] Travels” and “by his Pertness, or rather Impudence, was well known to almost all [the agent’s] Acquaintances”. The agent nonetheless determined it was appropriate to provide an updated description in the advertisement, “as [Billy] is now grown to the Size of a Man, and has not attended [the agent] for some Time past”. The agent was at once angry and admiring of Billy’s stature and talents, which appeared prodigious and were described in the advertisement in these unsettling terms: …[Billy] is a very likely young Fellow, about twenty Years old, five Foot nine Inches high, stout and strongly made, has a remarkable Swing in his Walk, but is much more so by a surprising Knack he has of gaining the good Graces of almost every Body who will listen to his bewitching and deceitful Tongue, which seldom or ever speaks the Truth….From his Ingenuity, he is capable of doing almost any sort of Business, and for some Years past has been chiefly employed as a Founder, a Stone Mason, and a Miller, as Occasion required; one of which Trades, I imagine, he will, in the Character of a Freeman, profess. I have some Reason to suspect his travelling towards James River, under the Pr[et]ence of being sent by me on Business.

It is not clear if Billy returned (or was returned) to John Tayloe II in response to this advertisement or not. We next hear concrete news of Billy— that is, of a “Mulatto Slave” who is presumed to be the same Billy—in 1781, as described below. According to at least one source which suggests Billy ran away multiple times, it is possible that for parts of the interim 1774-1781 period he was in and out of Tayloe’s control.

By 1775, tensions were mounting between the colonists and the British.

The first battles of the American War of Independence occurred in April 1775. At this time, the population of the Thirteen Colonies (approximately 2.5 million in total) included approximately 500,000 slaves.5

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In November 1775, Lord Dunmore, who was still the royal governor of Virginia, issued the Dunmore Proclamation, in which he declared martial law in the colony and said that “all indent[ur]ed Servants, Negroes, / or others, (appertaining to Rebels,) free that are able and willing to bear Arms, / they joining His MAJESTY’S Troops as soon as may be, for the more speedily / reducing this Colony to a proper Sense of their Duty, to His MAJESTY’S / Crown and Dignity.”

The Dunmore Proclamation purported only to free slaves “appertaining to Rebels”, if those slaves joined the British cause, not slaves held by proBritish landowners. It was only in 1807 that the Slave Trade Act made it unlawful for any British ship or British subject to trade in enslaved people, and only through the Slavery Abolition Act in 1833 that slavery was abolished in most British colonies.

In 1772, Lord Mansfield had determined in Somerset v. Stewart that a slave could not be forcibly removed from England and returned to slavery in Jamaica, given the absence of positive law in England supporting this outcome,6 but while this decision was a cause for celebration among some abolitionist Londoners, Benjamin Franklin—then visiting England—juxtaposed this celebration with the broader reality: “Pharisaical Britain! To pride thyself in setting free a single Slave that happens to land on thy coasts, while thy Merchants in all thy ports are encouraged by thy laws to continue a commerce whereby so many hundreds of thousands are dragged into a slavery that can scarce be said to end with their lives, since it is entailed on their posterity!”7 The Virginia Convention (an assembly of delegates) struck back at the Dunmore Proclamation, declaring that slaves who conspired to “rebel or make insurrection” would be executed. Slaves who surrendered after taking the “unlawful and wicked step” that Lord Dunmore had urged would be pardoned.

In the end around 800–2,000 slaves nonetheless reached Lord Dunmore, who formed the “Ethiopian Regiment”. The regiment’s battlefield success was mixed and its members were ultimately struck by smallpox. Lord Dunmore left Virginia in 1776 with about 300 black soldiers accompanying him.9 Addressing potential dangers to the cause of American independence more generally, in 1776 the Virginia Treason Act was passed. The statute “defined treason as going to war against the Commonwealth of Virginia or providing its enemies with ‘aid and comfort’ or other support. Conviction required either a confession in court or testimony by two eyewitnesses.”

The Treason Act “granted the power to issue pardons in cases of treason to the General Assembly, not to the governor”,9 which became important to Billy’s story below.

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On July 4, 1776, the Second Continental Congress issued the Declaration of Independence. However, the war with Britain continued for several years. Britain only formally recognized the establishment of the United States through the Treaty of Paris in 1783.

By April 1781, for reasons unknown, Billy found himself aboard a British warship. He was captured and was indicted in the County Court of Prince William County in northern Virginia; the county, still bearing that name, lies beside the Potomac River and is now part of the Washington, D.C., metropolitan area. The indictment alleged that Billy, described as a “Mulatto slave” (like the person whose return was sought in the 1774 advertisement), had “feloniously and traitorously” waged and levied war against the Commonwealth.

Billy claimed that he had been forced to board the British warship against his will. Certainly he did not suggest he had been swayed by the Dunmore Proclamation or any broader pro-British sentiments, nor was there any apparent evidence—beyond his presence on the warship—to indicate proBritish leanings.

However, on May 8, 1781, Billy was convicted of treason in the Prince William County Court and sentenced to death on the following terms: The said Slave Billy, Alias Will, alias William, let of the sd. [County] of Prince William being brought to the Bar of the Court, and Indicted for Treason, in Joining the Enemies of this Commonwealth, upon his Arraignment, Says he is not Guilty, Upon hearing the Several Witnesses, it is the opinion of the Court that he is Guilty, & that he Suffer Death, And be Executed agreeable to the Act, Declaring what Shall be Treason And the Said Sheriff of the Sd. County on the Twenty fifth of this Inst. Between the Hours of Eleven & two of the Same day, do Execution thereon at the Common Gallows of the Sd. County, by Causing the Sd. Slave to be hanged by the Neck until Dead, & his head to be Severed from his Body & Stuck up at Some Public Cross Road on a pole….

In setting out his conviction and sentence, the court also noted Billy’s considerable monetary value: “And the Sd. Court do Say that the Sd. Slave is worth Twenty Seven Thousand Pounds Current Money”.

Six judges (or justices of the peace) presided over Billy’s case. Two of the six dissented: Henry Lee II and William Carr. Lee’s son Charles became the Attorney General of the United States from 1795 to 1801, and his grandson was Confederate general Robert E. Lee. About Carr little is known, although he may have served as postmaster and in various other, minor, church, military and government roles.

On May 11, 1781, Lee and Carr wrote to Thomas Jefferson, who was at that time Virginia’s governor, seeking a pardon for Billy. They argued that a slave, “not being Admited [sic] to the Priviledges [sic] of a Citizen owes the

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State No Allegiance and that that Act declaring what shall be treason cannot be intended by the Legislature to include slaves who have neither lands or other property to forfiet [sic]”. Lee and Carr also noted that “there was no Positive Proof before the Court that the said Slave went Voluntarily on board of the Enemy’s Vessel and took up arms”.

Jefferson granted a reprieve to Billy until the end of June 1781 but, given the terms of the Treason Act, was not able to grant a pardon.

Here, Mann Page took up the cause. John Tayloe II himself had died in 1779 and Mann Page was the executor of his estate. Page was also Tayloe’s son-in-law and a member of another prominent Virginia family. Page asked that the Virginia legislature pardon Billy. The legislature seems10 to have done so on June 14, 1781.

As one commentator notes, “[t]he motives of Mann [Page] and the two dissenters [Lee and Carr] are unclear. It would not be surprising, of course, if— rather than an act of mercy…—the efforts to have Billy pardoned were merely intended to prevent the loss of a valuable slave by execution.”11 Unlike Billy, certain other slaves during these years were convicted of treason and executed.

What happened to Billy after his apparent pardon is not known. In 1782, the year after the above events, the Tayloe estate included several men whose name was listed as Billy.

ENDNOTES 1. This piece is based on various articles and webpages including “A Petition on Behalf of an Enslaved Person Accused of Treason, 1781”, online: <edu.lva/virginia. gov/dbva/items/show/187>; “Billy (fl 1770s1780s)”, online: <encyclopediavirginia.org/entries/ billy-fl-1770s-1780s/>; “The Slave Rebellion”, online: <slaverebellion.info/index.php?page=pro ceedings-of-court-and-terminer-may-8-1781>; “African American Service During the Revolution” (2 April 2019, updated 4 January 2024), online: <www.battlefields.org/learn/articles/african-amer ican-service-during-revolution>; “Billy (Will the Traitor)”, online: <www.encyclopedia.com/history/ encyclopedias-almanacs-transcripts-and-maps/ billy-will-traitor>; “Mann Page”, online: <en.wiki pedia.com/wiki/Mann_Page>; “John Murray, 4th Earl of Dunmore”, online: <en.wikipedia.org/wiki/ John_Murray,_4th_Earl_of_Dunmore>; “Shaping the Constitution”, online: <edu.lva.virginia.gov/ oc/stc/people/billy-(fl.-1770s-1780s)>; “Prince William County Office of Historic Preservation’s Post”, online: <www.facebook.com/pwhistoric/ posts/william-carr-is-one-of-the-more-obscure-fig ures-involved-in-prince-william-count/864520 572379431/>; “Somerset v Stewart”, online: <en. wikipedia.org/wiki/Somerset_v_Stewart>. I have attributed somewhat greater certainty to the same

2.

3.

4.

5.

6.

“Billy” being the person born in 1754, the subject of the 1774 advertisement, and the accused in the 1781 trial, than some sources might suggest.

Royal Museums Greenwich, “How Did the Slave Trade End in Britain?”, online: <www.rmg.co.uk/sto ries/topics/how-did-slave-trade-end-britain>.

“Thomas Jefferson and Slavery”, Wikipedia, online: <en.wikipedia.org/wiki/Thomas_Jefferson_and_ slavery>.

“Partus Sequitur Ventrum”, Wikipedia, online: <en. wikipedia.org/wiki/Partus_sequitur_ventrem>.

Derick C Moore, “Revolt Against Taxation Without Representation Led to American Revolutionary War, US Constitution and First Census Population Count” (December 2023), citing the American Battlefield Trust, online: <www.census.gov/library/stories/2023 /12/boston-tea-party.html>.

(1772) 98 ER 499. Lord Mansfield held: The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: it’s so odious, that nothing can be suffered to support it, but positive law.

Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed

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or approved by the law of England; and therefore the black must be discharged.

7. “The Sommersett Case and the Slave Trade, 18–20 June 1772”, Founders Online, National Archives, online: <founders.archives.gov/documents/Frank lin/01-19-02-0128>. [Original source: The Papers of Benjamin Franklin, vol. 19, January 1 through December 31, 1772, William B. Willcox, ed (New Haven and London: Yale University Press, New Haven and London, 1975) at 187–88], online: <founders.archives.gov/documents/Franklin/0119-02-0128>.

8. In 1779, the Dunmore Proclamation was succeeded by a broader proclamation, the Phillipsburg Proclamation, which purported to free revolutionaryowned slaves throughout the rebel states without requiring them to join the British forces.

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9. “Can an Enslaved Person Commit Treason? The Case of Billy”, online: <lva.omeka.net/exhibits/show/ law_and_justice/citizenship/can_a_slave_commit_ treason>.

10. Some doubt on this is cast in Matthew Steilen, “The Legislature at War: Bandits, Runaways and the Emergence of a Virginia Doctrine of Separation of Powers” (2019) 37 Law & Hist Rev 493 at 528, n 136: “Mann then petitioned the House for a pardon, and a bill of pardon was ordered prepared; whether it passed out of the House, and whether it ever went to the Senate (or was required to), is unknown.”

11. Christopher Michael Brown, “Seditious Prose: Patriots and Traitors in the African American Literary Tradition” (2012) 24 Law & Literature 174 at 183 [endnotes omitted].

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FROM OUR BACK PAGES

By R.C. Tino Bel

THE HUMAN BRAIN AND THE ELECTRONIC COMPUTER: SOME SIMILARITIES AND SOME DIFFERENCES* By the Honourable Mr. Justice A. Derek Guthrie†

T

he electronic computer is made up of crystalline, solid-state semi conductors. The atoms in a crystal are arranged in rigid arrays known as lattices. The inter-atomic forces that hold the lattice together usually make crystalline materials very strong.

Most metals, for example, are crystalline. The human nervous system, in contrast, is made up of colloids, i.e., amorphous, often jelly-like materials in which atoms and large molecules are suspended at random. There is no lattice structure in a colloid.

Electronic computers carry information as a flow of electrons between atoms in the crystal lattice. Crystalline “brains” are therefore very fast. The human brain codes its information as a relatively slow flow of atoms and molecules distributed haphazardly throughout the colloidal mass. The movement of these atoms can be enhanced or inhibited by chemicals. Information transfer time is slower because it is chemical in nature rather than atomic. It may involve the movement of electric charges from ionized gelat-

* Reprinted from (1990) 48 Advocate 39. † Mr. Justice Guthrie was, at the time of writing, justice of the Superior Court of Quebec. This paper was first presented at the conference on Technology, Law and the Courts, sponsored by the Canadian Institute for the Administration of Justice in Vancouver in August 1989.

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inous molecules to others, or the movement of ionized molecules within the gelatinous mass. Or it may consist simply of the chemically-induced movement of molecules from point to point. Our nerves use two types of data carrier: large molecules called neurotransmitters that flow across the synapse (or gap) between nerve cells, and charged atoms called ions that move along the nerve to generate an electrical impulse.

The brain is presently one million times slower than computer hardware and this time-response gap is likely to increase in the next few years as faster hardware is developed! While the energy demands of hardware are decreasing as hardware response time gets shorter, human beings continue to require enormous amounts of energy for information transfer because of the slowness and massive nature of the molecular information carriers.

There is an important similarity in the way crystalline and colloidal systems transmit information. Both seem to operate using the binary code.

Data in a computer are broken into “bits”. An electronic circuit is switched on or off, and all information, no matter how complex, is recorded in this two-unit code. Similarly, a neuron in the nervous system either fires an electrical impulse or it does not. There are no in-betweens.

However, crystalline and colloidal brains process information very differently because of their contrasting structures. Because nerve cells operate by the movement of large, slow atoms and molecules, their reaction times are measured in milliseconds (i.e., thousandths of a second). The fastest nerve cells carry electric code impulses at approximately twenty meters per second. The modem crystalline computer operates in picoseconds (i.e., a thousand billionths of a second). This is a difference of a billion times, or nine orders of magnitude! This is why a single computer can operate in a “time sharing” mode in which many humans work with it at the same time.

Furthermore, a billion times per second is no longer considered to be the upper limit of computer processing speeds. Recent observations indicate that on the surface of the newest semi-conductor materials, tiny magnetic elements can be seen switching (admittedly in an uncontrolled way) at rates approaching one trillion times a second. Computers are now becoming so fast at calculating that the signals leaving the central processor and travelling at roughly the speed of light, simply cannot get away quickly enough, and are overtaken by the onrush of fresh calculations, i.e., an electronic “log jam”!

As the electrons flow through computer circuitry at these awesome speeds, the speed of computation is limited only by the speed of light, i.e., 298,117,000 meters per second. For this reason, lasers and computers have their future linked in several ways because lasers can transmit data as quickly as computers can generate it.

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On the other hand, the interaction between a computer and the world of human beings proceeds at an excruciatingly slow rate. The computer is both much faster than its input and output devices and much faster than the human being who is working with it. From the human view point, a computer seems to operate instantaneously; push the button and the answer appears, even though the computer may have gone through a million calculations. From the point of view of a computer, communicating with a human being takes a long time. Even if it had a direct link to the human nervous system, a computer must still send its information a billion times slower than it is capable of doing, and then wait the human equivalent of six years for a reply!1 Although digital electronics presently dominate computing, it is not the only way that machines handle data. Optical devices process information by manipulating beams of light. The attractions of optical circuits are that they are faster and they can process data in parallel. Electronic switches are slower than the fastest optical type. However, a more serious limit on the speed of electronic circuits is the time it takes electrons to move from point to point. Light travels more quickly through air and optical fibers than electronics can through wires. Light can also travel a more direct path between two points than electrons, which often follow circuitous routes to prevent interference between circuits. Virtually all electronic computers are sequential — they perform one operation at a time. A single optical device, such as a lens, can process information from many inputs at once. Optics also allows circuits to have more connections because photons do not carry any charge. Light signals — unlike electrical currents — do not interfere with one another if their paths come close or cross.

If the computer is to become an effective intellectual tool for the judiciary and the legal profession, the “interface” between the computer hardware and the judge or lawyer will have to be greatly improved. Otherwise, these professionals won’t be able to use fully the speed and infallible memory of the hardware. At the present moment, the most used means of communication with the computer is still through a keyboard consisting of a series of keys or switches, each of which sends a single symbol to the hardware circuitry. The keyboard serves to instruct the hardware to add to or draw from a memory peripheral such as a disk or tape. This is extremely slow when compared to the capability of most computers to assimilate data.

Today, a simple personal computer is capable of accepting data at a rate of at least one hundred thousand bytes per second. By punching a keyboard as quickly as possible, an expert typist can create an input rate of perhaps ten (10) bytes per second, considering that each key depression generates

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eight (8) bits. On the average, it might run one (1) byte per second over a period of several minutes while the person keying in the information stops, thinks, reviews and corrects in their own mind before entering another symbol into the computer via the keyboard. Thus, a key operator in a sense utilizes only a one hundred thousandth of the computer’s potential!

Although the input of data to computers from the exterior world is at present in a very primitive state, there will eventually be a proliferation of input devices that will permit the computer to detect sounds, smells and visual images. The range of sensory input will more and more closely approach that of human beings.

A “bit” is a measure of amount of information, just as a litre, a kilogram and a metre measure volume, weight and length respectively. One bit is simply a choice between two equally probable messages. It is a “yes” or “no” answer to the hypothetical question: “Is it this one?” The answer “yes” resolves all uncertainty in the mind of the person receiving the message because he or she knows which of the two possible messages is the actual one. The answer “no” also resolves his uncertainty, because he or she knows the actual message is not the first but the second alternative. This is a highly versatile code because it needs only two symbols: “1” for “Yes” and “0” for “No”. A “byte” is a sequence of eight bits.

A human being is trapped with an eye-brain-hand system circuitry and its associated long-action times. The reception of a visual stimulus from a computer screen requires about twenty milliseconds. Its transmittal through the nerve fibres and synapses to the brain takes about two milliseconds. The excitation of the brain’s cortex by the stimulus requires about another thirteen milliseconds, i.e., it takes a person a total of approximately thirty-five milliseconds just to realize that something has been seen! Under less than ideal conditions, i.e., with background noise, distractions and stress, this delay can be as much as one hundred milliseconds.

Although the eye-hand reaction is perhaps the fastest reaction mode of the brain, from the time a visual stimulus is presented to a human being approximately one hundred and ninety-five milliseconds elapse before the hand of that person can move in reaction to the stimulus. In that same time, a personal computer can perform about one million operations and deliver twenty-five thousand bytes of information to an output port! If the computer hardware could somehow be linked more intimately with the user, it appears that the hardware would still have little trouble keeping up, except perhaps when engaged in heavy calculations or large-scale retrieval from outside data bases. In fact, it could do this with lots of time left over for conducting its own housekeeping operations.2

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Despite the relative slowness of the human eye-brain-hand circuitry, judges and lawyers can convert information into knowledge more quickly by using both their eyes and their hands than by using their eyes only. Attorney Ken Chasse puts it this way:3 You think better by using your hands. If you write while you think, your thinking is clearer, more exact, and progresses more smoothly. This is the case because your eyes see a physical representation of your thoughts, and use of your hands places ideas more firmly in your memory, and your thinking is more logical because of the structures imposed by language. But, hand writing is often too slow for one’s thinking. The speed of a good word processor is therefore ideal for thinking and composing.

On my word-processor I can type as fast as I can compose my thoughts into words. And because I can see what I compose as I compose it, I can correct and amend my thinking and my words — the mechanisms for making corrections on a word-processor are very fast. You think better using your hands; and you can think best if you use your eyes while you use your hands — hands for information creation; eyes for information feedback. The hand-eye coordination makes the brain more powerful and more creative; the word processor makes it all the more possible.

Many judges write their first drafts of lengthy judgments by hand instead of dictating them. While writing by hand is clearly slower than dictating, it frequently offers significant advantages. Among these is the ability to reflect on what has been written in order to contextualize what needs to be done. Some judges have now taken the next step by typing their own draft on a word processor or personal computer. Work product is delivered in a faster and neater manner, and the ability to “see” in type what the judge is trying to say often helps shape his or her thoughts. As a result, the work requires far fewer drafts. The gains achieved by avoiding additional drafts often outweigh the extra time consumed in composing the first draft in this fashion.

For lawyers, it should be noted that if the signals flowing to the brain for decision making end before the signals involved with action based on the decision begin, probability is high that the person will take the correct action. However, if the decision-making signals persist after the action signals begin, the probability of error is high. In other words, if a lawyer is not sure he or she has made the right decision, he or she will continue to worry about it while taking whatever action seems to be immediately appropriate.

As already mentioned, computer hardware usually works by serial technique, i.e., on-off data bits follow one another in a sequence in the channel or wiring between one part of the hardware and another in accordance with the instructions from the software. The brain also operates on a similar binary or on-off system, but on a different level. The operating module of organic systems is the neuron or nerve call which can be made to “gate” or

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“burst” once; then it requires time to relax and renew its charge. The response time (or relaxation time) of a neuron is about 20 milliseconds. It transmits one bit of data, then can’t transmit another until about twenty (20) milliseconds have passed and it has had time to reload or recock itself.

The basic gate element of the brain is the neuron. It is significantly different from the solid-state crystalline semi-conductor gate because a neuron can be gated by many other neurons and can itself gate or inhibit gating of multiple neurons. This is the basis for the incredible parallel operating complexity of the brain. A signal that is too big or too complex to be sent down the strictly limited information channel of a single neuron chain is split into a number of smaller signals. These are transmitted down parallel or side-by-side channels simultaneously (or nearly so) and are recombined at the other end of the channel. The net effect is that a person can view a pattern in its entirety, making decisions based on the whole as well as the parts.

Nerve cells are not all alike. Their very differences constitute the coding system by which the brain processes information. This multichannel system is the secret of the nervous system and differentiates it from all our communication artifacts such as the telephone, the television, and the computer. Brain programs are only partly like the algorithms of computer software in which every step is logical.4 Scientists are now learning some lessons from the fact that the brain processes information in ways which are peculiarly (even perversely) human, rather than mechanical in the old sense. For example, they have made the paradoxical discovery that forgetting serves a very important function and is a by-product of learning. As a result, computers are now being programmed to forget selectively just as the brain does, rather than store every item of information in their memory.

Human memory does not store information infallibly and reproduce it impeccably merely by organizing it according to uniform and highly constrained sets of rules. At first sight, it seems incredibly inefficient of evolution not to have developed an autonomous mechanism of that sort, i.e., one unaffected by context, use and personal meaning. On further consideration, however, such a type of memory has only surface conveniences.

Human beings are not designed to function uniformly. Their success as a species arises in part from their lack of specialization. Mechanical accuracy is not what humans are best at, and it is not what most people want to be best at. The brain is not a device for processing information in a one-dimensional, linear fashion only. Unlike the computer, which is subject to very little “noise” in the form of electrical interference and which works by

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performing a long chain of simple operations at high speed, the brain is both “noisy” and slow. However, it uses its colossal number of components to pass information along many different channels at the same time. The brain is probable rather than certain in its action, arriving at many answers, some more nearly correct than others, and these answers are modified continually by feedback of new information.

Unlike the highly uniform parts of a computer, nerve cells are highly individual. No two cells are exactly the same, nor do they respond to the same incoming information in the same way. The system is extremely redundant, yet extraordinarily diverse.5 The more complex is any system, the more likely it is that one of its parts will malfunction. Redundancy is a means of keeping the system running in the presence of malfunction. To understand a complex system such as a large computer or the human brain, one cannot use ordinary formal logic, which deals with events that definitely will happen or definitely will not happen. A probabilistic logic is needed, one that makes statements about how likely or unlikely it is that various events will happen. The reason for this is that computers and living organisms must function reliably as a whole, even though each of their component parts cannot be expected to perform perfectly all the time. The parts function correctly only with a certain probability, and this probability must be built in to the logic of the system.

The aim is to ensure that even if single parts are very likely to malfunction, the chance of the entire system breaking down is reasonably small. As systems become more complex, this statistical property of overall reliability as opposed to the reliability of individual parts, becomes increasingly important.6 When communications between the centres in the brain break down, it may be due either to direct damage to a centre of grey matter or to damage to the wiring between the centres. However, the connections between centres are often redundant, so that when damage occurs, messages can be sent through alternate connections. Thus the brain has an amazing adaptive capacity that is sometimes referred to as “plasticity”. When the brain is working at its usual busy level of performance, it can be thought of as a three-dimensional layout of electrical switchboards in which many different areas are receiving messages, “lighting up” and sending messages back in response.7 As the brain becomes better understood, its special ways of generating knowledge are seen as being quite dissimilar to those of computers in many important respects. Computers are good at swift, accurate computation and at storing great masses of information. The brain, on the other hand, is not as efficient a number cruncher and its memory is often highly fallible; a

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basic inexactness is built into its design. The brain’s strong point is its flexibility. It is unsurpassed at making shrewd guesses and at grasping the total meaning of information presented to it.8 The qualitative superiority of the brain over today’s computers is even more striking than its compactness. Every cell in the brain is directly connected to many other cells, in some cases to as many as 100,000. As a result, when we send a conscious impulse down to the recesses of memory to summon forth a point of information, the cells in which this information is stored communicate on a subconscious level with thousands of other cells, and a wealth of associated images pours out at the conscious level of thought. The fruits of this subconscious activity are intuitive insight, flashes of perception and creative inspiration, all made possible by countless connections among the cells.9 The human mind reflects, i.e., it processes knowledge and is aware of the fact that it is doing so; today’s computer still only processes data. There is a correspondence between knowledge and data but they must not be confused. Failure to establish this distinction leads to an informal identification of computers with humans. This identification appears in our every day language, where the same words are used to designate both functions of the human mind and functions of the computer.

Programming codes are often called “languages”. The computer is said to “read” data. In fact, reading is a process of the intellect, the process which transforms the read data into knowledge. By contrast, the computer only stores data. The computer is said to “write” data, but writing is a human activity. The writer expresses a part of his knowledge in a static language, while the machine is capable only of printing data. Similarly, it is said that the computer has “memory”. In fact, it has only storage units which are capable of storing quantities of data, and retrieving it with almost perfect reliability. In contrast, the human memory has an extraordinary ability to associate new knowledge with the knowledge it already has but is often quite unreliable.

One speaks of “smart” terminals when in fact such devices are merely connected machines capable of a certain amount of data processing. One speaks of mechanical “brains” when in fact we are talking about mere circuitry, however complex. Only humans have brains and intelligence, and only humans can be stupid and mistaken. A computer can break down, be given an incorrect program, or given incorrect data, but it cannot be stupid or mistaken.10 It would appear that it is impossible to construct correct and highly efficient solutions to computing problems without using a strictly logical

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approach. It is also quite clear that human beings are incapable of completely logical behaviour. Indeed, strict logic in the context of human behaviour is often the exact opposite of reason and common sense. It must also be remembered that there is a fundamental difference between the actual knowledge possessed by a human being and the written expression of that knowledge. The nature of a human being and the nature of a machine are fundamentally different. Computers deal with data, frozen and static, while human beings think, discover the world around them and share ideas and feelings by many means other than language. The result is the creation of schools of thought, of cultures and of civilizations. The study of individual human beings will never be sufficient to completely explain the life and evolution of the human species.

Why are human beings incapable of acting and reasoning in a strictly logical way? There appear to be at least two reasons and these reasons are entirely independent of each other. Firstly, the universe in which humans live is constantly changing. Although it is not always noticeable, the world is evolving, and the saying that “There is nothing new under the sun” is quite incorrect. Secondly, human beings are only partially aware of the framework in which our lives are lived, and this framework is constantly evolving.

These reasons oblige human beings to live with risk. There are no actions which are logically necessary. Decisions are not taken having considered all of the facts (as lawyers and judges sometimes say). If full knowledge were required for every decision, no decision would ever be made. Humans do not live according to logical precepts, but rather using intelligence and common sense. While these may sometimes make use of a certain amount of logic, it has nothing to do with rigorous mathematical logic. All human activity begins and develops as a result of decisions made with human objectives and motivations in mind.

Decisions are made by human beings who use their knowledge to evaluate a given situation and then decide what to do. A decision is never strictly logical and is often reached in a way that does not obey the laws of probability. The person who makes a decision can never prove (in a rigorous sense) that the decision is not mistaken. It is only possible to justify the decision by describing the reasons that led to it.

It is highly unlikely that it will ever be possible to automate the process of decision making. All decisions are to some extent arbitrary, and their correctness forever open to discussion. Controversy among historians about the correctness of decisions taken centuries ago is proof of this, e.g., it is still reasonable to ask whether Caesar was right in invading Gaul! All decisions,

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because they are made by human beings, include an emotional component.

Indeed, the value of decisions comes from the very fact that they can be made only by human beings and that they are intelligent acts not strictly in the logical domain, although they may (and should) be the result of careful thought and reflection.

As to the possibility of the judiciary using computers for judicial reasoning:11 ... the judge’s unconscious “philosophy”, (even if he does not know he has a philosophy, or tries to suppress it), is the decisive fact. His insight of desirable consequences will generally “fill the gap”. He cannot, after his long experience, fail to have a pretty accurate pattern intuitive (not emotional) of relationships in his mind — have a truer view about law than any other person in the system as it heads towards development. He remains human and is no computer. Insights govern his “dynamic knowing” — improving with time — leading to higher and higher insights as time goes on. It was Holmes J. who declared “I care nothing for the systems, only for the insights”. They increase the probability that, at least, no one could do any better. We can grasp meanings because we have a “common memory” of a sound pattern of legality.

Insights include qualities that are purely human such as compassion, desirable human goals, honesty, intuitions based on cultural traditions.

One appalling new peril is that the technocrats are trying to fix “concepts” at a non-human level of what the computer can be instructed to employ as an instrument for deciding “desirable” goals and ideals. Many Americans are hoping to make computers “artificially intelligent”, so that they alone could solve our major political, social and philosophical problems.

That means, of course, that the programmer imposes his own view of what is desirable and scientific. He needs ironclad terms that will not vary — as with the behaviourists — yet his personal bias can affect his programming.

Wisdom is ignored or deprecated — as are our ideas of the “just”, the “decent”, the “good” by those who regard human beings as highly complex machines. Donoghue would not have been decided as it was by such mechanical reason: it included our old ideas of concern for “neighbours” and common sense. There is nevertheless a mania in some quarters for the rigid concept, the rigid linear thinking process, the abolition of paradoxes and the random. One expert on computers, Joseph Weisenbaum, vigorously assails this “scientific arrogance”. He cites the sensible response of a wise English commentator of the perils of ignoring value insights. Lawyers must be aware of computerized law in this respect, of the concepts and language and subtle reasoning which are in danger of being destroyed for the convenience of computer planners acting on their own materialistic ideas of good and bad.

A logical choice cannot really be executed by a human being, since the human is always free to make a decision opposite to that indicated by purely logical considerations. Logical choices can be programmed; decisions cannot. This is of fundamental importance because the computer technologist and the lawyer and judge using the computer must together make the

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decisions leading to the creation of computer systems that will implement these decisions. The decisions are implemented by the computer system by executing the logical choices that govern the storage, transmission and transformation of the data in the system. This data, made available at the appropriate time and place and in the appropriate form, will be used to provide information needed by judges and lawyers in order to make yet other decisions. In short, human beings decide, while machines execute instructions and logical choices.12 With the advent of the digital computer, it is not difficult to understand the confusion that has arisen between decisions and logical choices. However, it is crucial that human beings rid themselves of this confusion and keep constantly in mind the fact that the logical choice is always the result of a prior decision. This clearly shows the subordinate position of the computer: the computer is not responsible.13 The computer revolution is essentially an extension of the left-brain evolution. Computers are actually extending the ability to do abstract logical thinking. While computers are still inadequate for the kind of thinking done by the right brain, they can do most left-brain tasks a million times faster than the human brain and have already made obsolete many pure left-brain clerical jobs. Any job that only requires following well-defined logical rules is generally better done by a computer. Since computers “think” in digital words, they are subject to the same limitations as people thinking in words; the words must be handled sequentially one at a time so that no flexible process similar to intuition is possible.14 Just as mankind’s great leap from the stone age was based on the synergy of the left and right brains, further progress in the computer age will be based on a new kind of synergy of humans and computers. This new order will require a new kind of thinking and a new emphasis in education and professional training. The present verbal emphasis in legal education has always produced a few creative individuals and a large majority of people who are uncreative, but strong in left brain skills. This has historically been acceptable because there were a large number of uncreative clerical jobs that required these skills.15 In the future, however, those jobs will be done by computers. Formal professional training must therefore change its emphasis and concentrate more on development of those particular skills that are poorly done by computers. Development of creativity and holistic thinking ability should have top priority. While routine calculation skills are no longer important, the left brain’s ability to translate the right brain’s intuitive insight into logical verbal sequences remains extremely important.16

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The right brain has the creativity to bridge gaps and make intuitive breakthroughs, but it cannot test that intuition or communicate it to other people or to computers. The left brain has access to the intuitions of the right brain and can test them and convert them to human language and to the logical language of computers. The computer augments the abilities of the left brain with great accuracy and with speed a million times faster.17 As computers continue to improve speed and capacity it becomes more and more important for judges and lawyers to fill the creative roles of (1) analyzing the computer-stored information, (2) creating knowledge and (3) applying innovative solutions to people’s problems. With routine linear thinking left to computers, litigants and clients will have little need for “human computers” with atrophied right brains.18 The creative human personality has a number of common psychological traits that are shared by both artists and scientists, indeed, by all creative people: 1.

A strong commitment to a personal aesthetic. This is the drive to wrest order, simplicity, meaning, richness or powerful expression from what is seemingly chaos. Creators have a high tolerance for complexity, disorganization and asymmetry. They often enjoy the challenge of cutting through chaos and struggling toward resolution and synthesis.

2.

The ability to excel in finding problems. By asking the right question and finding the right problem, creators can define and “see” the boundaries of their fields that can be extended or broken.

3.

Mental mobility. This allows creative people to find new perspectives on and approaches to problems. Creative people have a strong tendency to think in terms of opposites and contraries while they seek a new synthesis of ideas. They often think in analogies and metaphors and challenge assumptions.

4.

The willingness to take risks. Creators constantly seek excitation and stimulation. Along with risk taking come the acceptance of failure as part of the creative quest and the ability to learn from such failures.

5.

Objectivity. Creative people not only scrutinize and judge their ideas or projects, they also seek criticism.

6.

Inner motivation. Creators are involved in an enterprise for its own sake, not for school grades or pay cheques. Their catalysts are the enjoyment, satisfaction and challenge of the work itself.

These traits are hardly the stuff of computers!

Compensatory brain mechanisms enable older professionals to perform as well as younger ones — if the work involves intense concentration rather than

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memory, sensory skills or rapid motor movements. Although the brain forms plaques and lesions as a person ages — effectively reducing the actual amount of the nerve cells present — it compensates for that loss by increasing the connections among the remaining cells. Therefore, a sixty-year-old lawyer is able to sustain the same attention span as his thirty-year-old colleague.

The brain actually suffers “software” degradation as a result of idleness and lack of inputs. Lack of stimuli causes humans to exhibit “serisory” deprivation syndromes. On the other hand, computer hardware can wait on standby indefinitely as long as it is provided with energy.

Automating any job in a law office or courthouse requires that the entire task and all its constituent elements and variables be totally understood by a human brain at the start. It must be possible to “write the mathematical model”. Every part of the task, i.e., everything that changes or might change, and every possible failure must be known and understood so that the task can be reduced to a mathematical equation. Such equation is basically a written analog or shorthand expression relating to the real world.

Nothing can be properly automated unless all the variables and their mutual effects on one another are first totally understood by a human being. There are still very few tasks, operations or techniques respecting the processing of information and the developing of knowledge in the legal professions that are yet understood completely enough to entrust them entirely to a computer.

Computers cannot straighten out a system or organization by simply taking over the management of that system. A computer is merely an intellectual tool to permit the use of the mind more efficiently and effectively. If humans are having trouble operating or controlling a system, that usually means they don’t yet fully understand the system. Use of a computer under these circumstances will simply speed up the error rate because the computer software will contain all of the non-understandings, misunderstandings, prejudices and incorrect or incomplete data that is causing a problem with the system in the first place.

Computers store data very effectively. However, as very few people have yet written intelligent software to organize the data, retrieving useful information is sometimes no easier than the old way of going through the files with a good file clerk. The legal profession and the judiciary need software with a new and more efficient approach. Lawyers and judges today need programs that the software industry is still not yet prepared (or able) to create. This is the reason why so many law offices and courthouses are exasperated by their own data processing departments. Software developers currently must anticipate all the uses of that software ahead of time.

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It should be remembered that today’s computers don’t know what they know, i.e., the content of data means nothing to the machine. Without an artificial intelligence capability the computer has a great deal of information but no knowledge. However, the initial enthusiasm surrounding the possibility of developing computers with “artificial intelligence” has recently been somewhat tempered by the realization of the enormity of the task. Most of these efforts are now being concentrated on developing “expert” systems.

There is an important distinction between intelligence and expertise. As these terms are generally used, they connote related but quite different things. Intelligence has to do with ability to learn; expertise connotes knowledge that one has already acquired. Intelligence refers to general intellectual competence; expertise connotes in-depth understanding of a specific domain. Intelligence rests on a set of cognitive abilities for abstraction, classification, generalization, drawing inferences and analogies; expertise is the ability to access and apply information about a given topic on demand.

The following should be included among things that an expert should be able to do:19 —Assimilate new information and revise or enlarge one’s knowledge base in one's area of expertise.

—Tell the difference between other experts and non-experts in the area.

—Discriminate among levels of certainty with respect to elements in one’s knowledge base; qualify one's answers to questions with reliable judgments of their dependability.

—Use information inferentially to answer questions the answers to which one has stored only implicitly.

—Recognize contradictions within one’s own knowledge base or between one’s knowledge and new information.

—Perform adequately under conditions of uncertain or incomplete information.

—Recognize when one needs additional information in order to solve a particular problem, and, usually, know whether that information is obtainable.

—Know whether a problem one has been asked to solve is sufficiently unambiguous and well formed to be approachable.

—Explain what one is doing and why.

—Understand the limits of one’s own expertise.

To amplify on the last item: one very important type of knowledge that an expert has is knowledge of his own knowledge vis-a-vis his area of expertise.

He knows not only what he knows but, in a sense, what he does not know. Further, he can distinguish, within limits, between what he does

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not know and what is not known. The expert has a model of his area of expertise, of his own knowledge, and of how the one relates to the other.

For example, with respect to questions he cannot answer, he should be able to distinguish among (a) nonsensical questions, (b) questions that do not relate to the domain, (c) meaningful questions the answers to which are likely to be known by other experts within the domain, and (d) meaningful questions the answers to which are not (yet) known by anyone that is, questions that exceed the knowledge base of the domain. In short, an expert should be able to make judgments of meaningfulness, relevance, difficulty and answerability.

The ability to modify rapidly its own software may be one of the most important factors in an entity’s intelligence. The manner in which the system’s software has been written will affect the entity's capacity to adjust to novel happenings in its environment. The more efficient a software is (i.e., the more quickly it runs, the less prone it is to errors and breakdowns and the less “program space” it occupies), the more intelligent the entity. The bigger and wider the range of programs with which a system is equipped and with which its central processor can cope, the more intelligent is the creature.20 Doubts about the computer as the guiding model of human thought stem from the two principal considerations. Firstly, the community surrounding a cognizing individual is critical. From those around them human beings come to understand which sorts of views are considered acceptable, which are false or dangerous, justified or unjustified. Such judgments cannot initially be made by an individual but must stem from a collectivity. Because all people belong to communities, it makes sense to indicate that a computer can make a mistake or is unjustified in its beliefs. The computer is simply executing what it has been programmed to execute, and standards of right and wrong do not enter into its performance. Only those entities that exist within, interact with and are considered part of, a community can be so judged.

Secondly, there is a deep difference between biological and mechanical systems. It is difficult to conceive of human beings apart from their membership in a species that has evolved over the millennia, and as other than organisms who themselves develop according to a complex interaction between genetic proclivities and environmental processes over a lifetime.

To the extent that thought processes reflect these biodevelopmental factors and are suffused with regressions, anticipations, frustrations and ambivalent feelings, they will differ in fundamental ways from those exhibited by a nonorganic system. It did not have to be this way—biological systems might have been just like inorganic (mechanical) systems—but it is clear that they are not.21

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Regardless of developments or the rate of accelerating change, one thing remains constant. The world’s smallest yet most efficient high capacity computer weighs less than four pounds, is smaller than a football and has a capacity equivalent to ten billion logic circuits. Nothing yet made can match it. It is the seat of all creativity. Each person has one and many people have the services of several others. It is the human brain!

ENDNOTES 1. The Omni Book of Computers & Robots, (1978), ed Owen Davies, Toronto, General Publishing Co Limited, pp 44 and 45. [We reproduce, here and below, the endnotes in their original form, not modified to our current style requirements – Asst. Ed.] 2. Stine, G Harry, (1984), The Silicon Gods, New York, Dell Publishing Co, Inc, p 113.

3. “Centralized Legal Research is for Every Law Office”, (1985) 1 Canadian Computer Law Reporter, p 22.

4. Young, J Z, (1978), Programs of the Brain, New York, Oxford University Press, p 6.

5. Campbell, Jeremy, (1982), Grammatical Man, New York, Simon & Schuster, Inc., p 227.

6. Ibid., p 104.

7. Andreasen, Nancy C, (1984), The Broken Brain, New York, Harper & Rowe, p 91.

8. Campbell, Jeremy, op cit, supra, note 5, p 190.

9. Jastrow, Robert, (1981), The Enchanted Loom: Mind in the Universe, New York, Simon & Schuster, p 143.

10. Warnier, Jean-Dominique, (1986), Computers and Human lntelligence, New Jersey, Prentice Hall, p10.

11. Maher, Frank, "Words, Words, Words", (1984) 14 Melbourne University Law Review, p 468 at 504.

12. Warnier, Jean-Dominique, op cit, supra, note 10, p 44.

13. Ibid., p 102.

14. Blakeslee, Thomas R, (1980), The Right Brain, New York, Berkley Books, p 111.

15. Ibid., p 112.

16. Ibid.

17. Ibid., p 113.

18. Ibid.

19. Nickerson, Raymond S, Using Computers: Human Factors in Information Systems, (1986), Cambridge, The MIT Press, p 305.

20. Evans, Christopher, (1979), The Micro Millennium, Simon & Schuster, Inc, New York, p 191.

21. Gardner, Howard, (1985) The Mind's New Science, New York, Basic Books Inc, p 388.

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“Blue Beauty II” by James Wiens, Oil on Panel, 36'' x 24'', 2024 Available at Kurbatoff Gallery, 2435 Granville St., Vancouver Visit the website: kurbatoffgallery.com

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BENCH AND BAR

R

esisting the urge to fulfil an amusement park fix by travelling south (to the country and amusement parks that shall remain unnamed)? Not content with the roller coaster of current events? In desperate need for the rush of a helter skelter?

Wanting to park yourself somewhere amusing? Sense a theme developing?

Well, then look no further than the following pages for tips on more welcoming amusement park destinations than those to the south, or just let the theme park travel to you. Of course, catch up as well on the twists, turns and pivots of colleagues at bench and bar.

Shawn B. Hatch and Colin P. Galinski form Hatch & Galinski LLP combining over 60 years of pension and benefit experience. Having recently retired as a justice, the Honourable Mary Newbury is now with McEwan Partners.

David E. Gruber moves from Bennett Jones to join McEwan Partners as well. Also new to McEwan Partners is Julian Wierenga, who moves from the U.S. Attorney’s Office in Indianapolis. Carey Veinotte is now with Bojm, Funt & Gibbons after a long stint at Cassels Brock & Blackwell. Josef M. Schwarz of DBW Schwarz Law moves to entirely retired status after 45 years of practice. Peter S. Senkpiel, K.C., moves from Nathanson, Schachter & Thompson (where Peter J. Reardon is reputed to make excellent coffee) to join Andrew Crabtree, Leah T. Plumridge and Medina E. Abdelkader, all of Crabtree Law but now under the new firm name of Crabtree + Senkpiel Litigation. Nicholas Cosulich moves from Terra Law to Norton Rose Fulbright. Heather Frost starts a new position with Samfiru Tumarkin, leaving

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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Kane, Shannon & Weiler to do so. Gabrielle Trahan leaves Norton Rose Fulbright to join Polygon Homes Ltd. as general counsel.

A jet boat used for amusement rides on the Niagara River “is no more a passenger service than is a Ferris wheel”: Niagara River Coalition v. Niagara-OnThe-Lake (Town), 2009 CanLII 25982 (Ont. S.C.).

The Honourable Lisa A. Warren was appointed a justice of the Court of Appeal for British Columbia replacing Chief Justice Ronald A. Skolrood on his translation to the Supreme Court. The Honourable Andrew P. Mayer was appointed a justice of the Court of Appeal in place of Justice Susan A. Griffin, who elected to become a supernumerary judge as of December 13, 2024. Lastly, the Honourable Heather MacNaughton was also appointed to the Court of Appeal to replace Justice David C. Harris, who became supernumerary on January 1, 2025.

The Honourable C. Richard Hewson and the Honourable Lorianna Bennett, both formerly of the Provincial Court, were appointed as justices of the Supreme Court in Kamloops and Kelowna, respectively. Justice Hewson replaces Justice G. Weatherill, who went supernumerary as of October 1, 2023, and Justice Bennett replaces Justice S.A. Donegan, who was elevated to the Court of Appeal. Richard S. Fowler, K.C., was appointed a justice of the Supreme Court, replacing Justice N.P. Kent, who resigned effective February 3, 2025. John N. Walker was also appointed a justice of the Supreme Court to replace Justice K.M. Ker, who went supernumerary as of January 2, 2025. From Victoria, Mark G. Underhill, K.C., was appointed a justice of the Supreme Court to replace Justice E.D. Crossin, who retired on February 19, 2025. Rounding out recent appointments, Julia E. Lawn was appointed a justice of the Supreme Court to replace Justice Heather MacNaughton who, as noted earlier, was appointed to the Court of Appeal.

Beacon Hill Park in Victoria is not an “amusement park”: Victoria (City of) v.

Capital Region Festival Society, 1998 CanLII 6836 (B.C.S.C.).

Looking for theatrical amusement? Well you are in luck because the Lawyer Show is back! The 2025 Lawyer Show in support of Touchstone Theatre takes the stage with The Addams Family Musical from May 28 to 31, 2025 at the BMO Theatre Centre. Over 30 of Vancouver’s sharpest legal minds will swap the courtroom for the stage as they showcase their incredible acting and singing talents. Get ready to be wowed as they bring everyone’s favourite delightfully macabre family to life! Tickets and details are available at <touchstonetheatre.com/2025-lawyer-show/>.

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The Provincial Court welcomed the appointment of four new judges: Ariana Ward, James C. Henry, Brian B. Dybwad and Mylene C. de Guzman.

Judge Gurmail Singh Gill was appointed as a senior judge of the Provincial Court for a term of one year.

Women now make up 50.6 per cent of active judges on the Provincial Court and 59 per cent of judicial justices.

According to the Ontario Court of Appeal in Mallais v. D.A. Campbell Amusements Limited, 2007 ONCA 82, a person who operates an amusement park ride is not a “common carrier”. In this regard, “[p]assengers place themselves in the care and control of a common carrier in the expectation that they will be conveyed safely to their destination. Safety is paramount and the common carrier assumes complete control to ensure safety.” By contrast, “[t]he patron of an amusement ride, like the Sky Master, expects a thrill from the extremely unusual movement produced by the device. A safe thrill, no doubt, but a safe thrill is inherently more risky than a safe ride. The amusement ride patron is certainly as entitled to expect that the operator will ‘take such care as in all the circumstances of the case is reasonable’ to ensure his or her safety. However, to go beyond that and impose on the operator the higher duty owed by a common carrier would be inappropriate.”

The CBABC recently held elections for Provincial Council. Elected from Vancouver County were Rupinder K. Gosal, Brian Yuen and Sonali Sharma. Elected from Westminster County were Manpreet K. Mand, Grace C. Cleveland and Gurjit K. Tiwana. They begin their three-year terms on September 1, 2025.

In Burlingham v. Morrell, 1983 CanLII 2316 (Sask. C.A.), the bankrupt listed among his assets “midway or amusement equipment” including “a rocket ride;… a merry-go-round; and a flying saucer”. The trustee “took possession of the merry-go-round and the flying saucer”. Context is everything!

A passenger carrying unit on a bumper car must be fitted with an encircling buffer as described by the manufacturer’s specifications: Elevating Devices Safety Regulation, B.C. Reg. 101/2004.

At the April 10 CBABC Women Lawyers Forum Gala, well-deserved hardware was handed out to three worthy recipients: Sara Forte received the WLF Award of Excellence; Rose Keith, K.C., was given the Debra Van Ginkel, QC Mentoring Award; and Caroline L. Senini was awarded the Kathryn Sainty, KC Rising Star Award.

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Canada’s Wonderland, in Vaughan, Ontario, is Canada’s largest theme park and officially opened on May 23, 1981.

The city of Niagara Falls is home to various attractions including the Niagara SkyWheel, which is a Ferris wheel of just over 53 metres in height.

The Lawyers Inn Society hosted a trivia night for those vying to become “The Smartest Law Firm in Vancouver!”1 Diamond & Diamond markets itself as dealing with amusement park injuries, and includes on its website FAQs including “which theme park has the most deaths?” (one in New Jersey, apparently, which has closed). “[T]he word ‘park’ can evoke different concepts when accompanied by an adjective, like an industrial park, a business park or an amusement park”: Montréal (City) v. Old Port of Montréal Corporation Inc., 2021 FC 806.

La Ronde, on a 59-hectare site on Saint Helen’s Island in Montreal, is Canada’s second largest amusement park. It was originally constructed for Expo 67, then sold in 2001 to the American Six Flags chain.

Alison L. Dempsey was reappointed to the board of the Association of British Columbia Forest Professionals as a lay member for a term ending April 3, 2026.

“An intention that the administrative decision maker decide the matter at first instance cannot give rise to an endless merry-go-round of judicial reviews and subsequent reconsiderations. Declining to remit the matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

Joshua M. Prowse was reappointed to the Immigration and Refugee Board of Canada for a five-year term.

“Bois Blanc Island, commonly known as Boblo Island, is a 79-hectare… island located in the Detroit River between Canada and the United States of America, and is part of the Town of Amherstburg….The island was wellknown for nearly a century for its amusement park, which closed in 1993”: Boblo Developments Inc. v. Essex (County), 2018 CanLII 116172 (ON LPAT).

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Boblo Island is on the Canadian side of the border, and was used by people fleeing the United States through the Underground Railroad. It also was a crossing point for Americans fleeing the Vietnam War draft. For all we know, it may well be in use again.

Marineland is “an amusement park, zoo, and aquarium, … that features animals, rides, and other attractions for the general public”: Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America v Marineland of Canada Inc. o/a Marineland, 2021 CanLII 134945 (Ont L.R.B.).

“In the last five months of 2008, the North American financial markets plummeted markedly. The world was on fire as far as the securities industry was concerned, with no end in sight. All players were looking around frantically for ways to staunch the bleeding, which would not take place until the end of the second quarter of the next year. The carnage, to mix metaphors, was almost legendary, spawning no end of essays, commentaries and treatises attempting to explain what had happened and how it could possibly be avoided yet again in the future as the rollercoaster resumed its ascent into its now stratospheric levels”: 1426505 Ontario Inc. v.

Jovian Capital Corporation, 2019 ONSC 3799.

Hasan Alam and Denese Caroline Espeut-Post were both recently appointed to the new 11-member Provincial Committee on Anti-Racism.

This committee is intended to tackle systemic barriers that hinder racialized people from accessing government services in British Columbia.

Beatrix Josephy is the 2025 recipient of the CBA Legal Aid Leader Award for embodying the principles of access to justice through her unwavering commitment to providing exceptional legal aid services, her leadership in advancing systemic change and her compassionate advocacy for marginalized communities.

The COVID-19 pandemic involved a “public health rollercoaster of disturbances to domestic and economic life in Ontario and around the world”: Gracias v. Dr. David Wait Dentistry, 2022 ONSC 2967.

Alison J. Carstairs was reappointed as a public member to the board of the College of Pharmacists of British Columbia for a term ending February 28, 2026.

The Justice Education Society (“JES”) will again be running its Camp Justice summer camps for high school students in Vancouver. Camp Justice is a fun

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week-long camp that provides hands-on experience in the law, including a mock trial. Camp Justice sessions will be offered in July and August. Parents are encouraged to register their kids early. For more detail see <www.lawlessons.ca/camp>. Those interested in supporting the bursary program for this camp, so all students regardless of economic status have this opportunity, are encouraged to visit <www.lawlessons.ca/camp-support>.

In Crichton v. The Queen, 2013 TCC 96, the Tax Court of Canada determined “Charlies Pride Ponies” to be an outdoor amusement ride business rather than a farming operation (which was relevant to the treatment of losses).

The court described the operation as involving a spoke harness apparatus with a pony being attached to the end of each spoke, which moves in circles, by a bridle; “[o]n each pony, when business is brisk, sits a small child, whose parents or guardians pay for the little one’s joy of the pony ride. In short, it is a merry-go-round or carousel one sees at agricultural fairs and exhibitions throughout Canada. The sole difference is that the beasts of burden which carry the delighted child are not wooden, but alive.” The court noted the creatures’ animate state (and corresponding need for “feed, stalls, harness, shoes, pasture and enclosed transportation” rather than “petroleum, warehousing, fasteners, struts, crating and racking”) seemed to have caused the Canada Revenue Agency and minister to believe the undertaking was a farming business. The court was skeptical: With respect, 100 years ago such an assertion would have engaged every bakery, dairy, construction company or other business, requiring animal power to “drive” its enterprise, in farming. These ponies reside on a farm because they must live in a barn, eat hay and oats, be groomed and otherwise tended. This is not for the purposes of selling them in trade, raising them for propagation or exhibiting them at competitions or racing them, but simply to keep them alive so they can power the carousel thereby generating ride revenue. This method of “pony propulsion” may be anachronistic and archaic, but factually it is simply that. It is not farming.

“In 1889, the Province of British Columbia…granted approximately 162 acres of land known as Hastings Park to the City of Vancouver…upon a trust for the use, recreation and enjoyment of the public. Hastings Park became the site of, among other things, an annual fair called the Pacific National Exhibition…”: Hastings Park Conservancy v. Vancouver (City), 2008 BCCA 117.

An amusement park known as Happyland operated at Hastings Park starting in the late 1920s. New facilities were constructed for Playland, which opened in 1958.

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At the 35th annual BIV Forty Under 40 Awards in February 2025, Christine H. Arnold and Jessie N.E. Ramsay were both recognized for their excellence in business and community leadership. Anne M. Stewart, K.C., a past Forty under Forty recipient, was honoured with a Lifetime Achievement Award.

For those looking for thrills provided by the outdoors, Roller Coaster Ridge is located at the head of Iceworm Creek and to the west of Snowcap Lake in Garibaldi Provincial Park. Jeopardy Slide can be found just west of the Incomappleux River between Slick Creek and Bain Brook (and actually comprises several slide paths). “‘Thrill rides’ are generally considered by the amusement industry to be very large, fast and exciting rides which exert strong and unexpected forces on the rider participants”: Triple Five Corp. v. Simcoe & Erie Group, 1994 CanLII 9186 (Alta. Q.B.).

“One of the reasons that many family proceedings degenerate into an expensive merry-go-round ride is the all-too-common casual approach to compliance with court orders”: Gordon v. Starr, 2007 CanLII 35527 (Ont. S.C.). In another round of that same case, the court noted that cross examination on reply affidavits in family law matters could avoid at least in part a “merry-go-round” of correspondence and other communications otherwise seeking information: Gordon v. Starr, 2007 CanLII 19137.

Advocating for a Unified Family Court in Toronto, Judge Bean noted the volume of family law cases he had stayed because he did not have jurisdiction to deal with part of the proceeding, and commented, “The amount of money and energy wasted by litigants, counsel and the courts in these jurisdictional merry-go-rounds is incalculable, but in my opinion, the waste of time is even more scandalous”: D.T. v. J.T., 1991 CanLII 6944 (Ont. C.J.).

Maureen Ann Maloney, K.C., was appointed a member and the chair of the Forensic Psychiatric Services Commission.

Julie E. Akeroyd was reappointed as a public member to the board of the British Columbia College of Oral Health Professionals for a term ending March 31, 2026.

Describing a jet boat “thrill ride” at the Reversing Falls in Saint John, the court noted it “includes violent manoeuvres in extremely rough water….

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Unlike a rollercoaster or other amusement park rides, the jet boat does not run on rails”: Emmerson v. Hargo Jet Boat Tour Inc., 2000 CanLII 47014 (N.B. Q.B.).

William A. Duvall was reappointed as a voting member and chair to the Vancouver Coastal Health Authority for a term ending March 31, 2026.

A landowner’s “property rights are subject to both Provincial and Municipal laws and jurisdiction….There are a great many municipalities across Canada which regulate things like style of home, colour, shingles/ cladding/roofing, and use of open space, to name a few subjects. I expect the regulations are mostly driven by neighbours’ concerns their property values will be decreased by a neighbour’s tasteless or even ghastly choices – like an Andy’s Dummies theme park”: Miltonvale Park v. Pyke & Gallant, 2016 PESC 36. (CBC reported on “Andy’s” death in 2014: “Humourist Andy MacDonald, a unique personality who occupied a special spot along the Trans-Canada Highway in New Brunswick, has died. / The 96-year-old was the self-appointed artist in residence at Andy’s Dummy Farm in Baie Vert en route to the P.E.I. ferry. The property there was home to hundreds of homemade dummies made to look like people.”)

“Beyond the everyday world, both counsel have explained to us, lies the world of value added tax (VAT), a kind of fiscal theme park in which factual and legal realities are suspended or inverted”: Royal and Sun Alliance Insurance Group plc v. Commissioners of Customs & Excise, [2001] STC 1476, as quoted in Blais v. The Queen, 2005 TCC 417.

Sarah Beth Hutchison was appointed as a member and designated as a vice chair of the Property Assessment Appeal Board for a term of three years.

The London Eye is “a tourist attraction on the south bank of the Thames near to the Royal Festival Hall. It consists of 32 passenger-carrying pods attached to a wheel that rotates around the central hub. The pods are constructed of glass, metal and wood. They are not individually manned by any crew. However they are connected to a control room on the ground by closed circuit television and an intercom. In normal service the wheel takes 30 minutes to complete one revolution. The speed is low enough to ensure that passengers can step into and out of the pods from ramps on the ground whilst the wheel is in motion. Even at top speed it takes approximately seven and a half minutes for a pod to reach the ground from the highest point of its travel”: R. v. Cakmak & Ors, [2002] EWCA Crim 500.

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Donald J. Avison, K.C., was appointed to the board of Emily Carr University of Art and Design.

Each of Ning Alcuitas-Imperial, Vicente Asuncion Jr., Dulce Amba Cuenca, Joseph Cuenca and Winston Sayson, K.C., were presented with Awards of Excellence at the first awards dinner of the Filipino Canadian Lawyers Network held February 22, 2025.

Joyce M. Johner recently joined the board of the Rise Women’s Legal Centre.

Verkhovets Law in Toronto is a firm that describes itself in part as having “amusement park injury lawyers”. Its website notes that “there are various possible amusement park injury claims – so going it alone can feel like stumbling through a House of Mirrors.” In terms of that variety of claims, they add, “[w]hile it might feel like riding a roller coaster is your last day on earth, the odds of dying are one in 750 million. [We presume this statistic is limited to time spent on the roller coaster?] Indeed, fatalities do happen – so it rarely becomes a news story. But, while deaths are few, there are a range of amusement park injuries….It’s not all about the rides – even concession stand food poisoning can lead to short-term lost income or become longterm…” Take note: “Don’t let anyone take you for a ride over your damages.”

Shelley S. Ball, Man Lin Chang and Alana K. Hughes were all appointed as members of the Health Professions Review Board for terms of three years.

“This litigation fills me with despair….The first extraordinary aspect of this bitterly-fought litigation is that the claimant has spent some £60,000 on it to date, the defendants £25,000; £85,000 in all, over a claim worth at most £23,500. Now, litigation must be fun if the parties are prepared to spend that much on a rollercoaster ride to judgment without pausing, either of them, to suggest that mediation would be a more sensible way to resolve their differences”: Tavoulareas v. Lau, [2007] EWCA Civ 474, per Ward L.J. Craig T. Munroe was reappointed as a member of the board of directors at the Vancouver Fraser Port Authority and chairs the Governance and External Relations Committee.

“In my respectful view, the course of criminal proceedings ought not to be a roller-coaster ride. Our citizens, including those charged with offences, expect that court proceedings will be conducted in accordance with the

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community’s sense of fair play”: McEachern C.J.B.C. in Rogers v. R., 1981 CanLII 4932 (B.C.S.C.). “[T]he Covid-19 pandemic…fundamentally enhanced the bail merry-go round”: R. v. Kovacevic, 2023 ONCJ 72.

CBABC president Lee L.M.G. Nevens was recently awarded the King Charles III Coronation Medal in recognition of their work promoting equality in the legal profession and justice system for trans, non-binary and gender-diverse people.

John E. A. Chesko, Mona M. Muker, Kenneth W. Thornicroft and Shafik Bhalloo, K.C., were all reappointed to the Employment Standards Tribunal.

“Important labour relations issues should be litigated and resolved with efficiency and dispatch. The [Ontario Labour Relations] Board’s proceedings are not to be turned into a legal merry-go-round”: Landini v. Marble, Tile and Terrazzo Union, Local 31, 2006 CanLII 16925 (Ont. L.R.B.).

Thought du mois: I look just like the girls next door... if you happen to live next door to an amusement park.

—Dolly Parton, singer, songwriter, actress, philanthropist and “philosopher”, 1946– ENDNOTE 1. In matters of trivia, that is.

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CONTRIBUTORS Cameron Belsher, K.C., is co-head of McCarthy Tétrault’s Mergers and Acquisitions Group. He is the long-suffering golf buddy of the Chief Justice of the Supreme Court of British Columbia.

Douglas C. Harris is a professor and Nathan T. Nemetz Chair in Legal History at the Peter A. Allard School of Law. He is the author of Fish, Law and Colonialism: The Legal Capture of Salmon in British Columbia and Landing Native Fisheries: Indian Reserves and Fishing Rights in British Columbia.

Judge Paul Meyers (retired) spent 23 years as a Provincial Court judge in British Columbia and 25 years as a lawyer. He has been a peer counsellor with the Lawyers Assistance Program for 23 years assisting lawyers with a variety of issues including emotional turmoil, financial issues and addiction. He is currently a lawyer and mediator based in Vancouver.

David Paul, K.C., born, raised and based in Kamloops, is a family law mediator and arbitrator as well as a parenting coordinator.

Leslie Palleson is also a mediator with extensive experience resolving conflicts involving relationships, including child protection, family separation and workplace disputes. She teaches conflict resolution at the Justice Institute of British Columbia and is currently pursuing a master’s degree in creative writing at UBC. Jim Reynolds is a retired member of the Law Society of British Columbia and former general counsel for the Musqueam Indian Band in Vancouver.

He practised, taught and has written about Aboriginal law for almost 40 years.

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“Life Journey – Humbled By Love” by Sue Daniel, Oil on Canvas, 48'' x 36'' Visit the website: artworksbc.com

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