November 2022

OFFICERS AND EXECUTIVES

LAW SOCIETY OF BRITISH COLUMBIA

Lisa Hamilton, K.C. President

Christopher McPherson, K.C.

First Vice President

Jeevyn Dhaliwal, K.C. Second Vice President

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

BENCHERS

APPOINTED BENCHERS

Paul A.H. Barnett

Sasha Hobbs Dr. Jan Lindsay

ELECTED BENCHERS

Kim Carter

Tanya Chamberlain

Jennifer Chow, K.C.

Cheryl S. D’Sa

Lisa H. Dumbrell

Brian Dybwad Brook Greenberg, K.C.

Katrina Harry Lindsay R. LeBlanc Geoffrey McDonald Steven McKoen, K.C.

Michèle Ross Natasha Tony Guangbin Yan

Jacqueline McQueen, K.C.

Paul Pearson Georges Rivard Kelly Harvey Russ Gurminder Sandhu Thomas L. Spraggs Barbara Stanley, K.C. Michael F. Welsh, K.C. Kevin B. Westell Sarah Westwood Gaynor C. Yeung

ABBOTSFORD & DISTRICT

Kirsten Tonge, President

CAMPBELL RIVER Ryan A. Krasman, President

CHILLIWACK & DISTRICT Nicholas Cooper, President

COMOX VALLEY Michael McCubbin Shannon Aldinger

COWICHAN VALLEY Jeff Drozdiak, President

FRASER VALLEY Michael Jones, President KAMLOOPS

Kelly Melnyk, President

KELOWNA

Taylor-Marie Young, President KOOTENAY

Dana Romanick, President

NANAIMO CITY

Kristin Rongve, President

NANAIMO COUNTY

Lisa M. Low, President

NEW WESTMINSTER Mylene de Guzman, President

NORTH FRASER Lyle Perry, President

NORTH SHORE Adam Soliman, President

PENTICTON

Ryu Okayama, President

PORT ALBERNI Christina Proteau, President

PRINCE GEORGE Marie Louise Ahrens, President

PRINCE RUPERT Bryan Crampton, President

QUESNEL Karen Surcess, President SALMON ARM Dennis Zachernuk, President

SOUTH CARIBOO COUNTY Angela Amman, President

SURREY Gordon Kabanuk, President VANCOUVER Executive Jason Newton President Niall Rand Vice President

Zachary Rogers Secretary Treasurer Samantha Chang Past President

VERNON Christopher Hart, President

VICTORIA Marlisa H. Martin, President

CANADIAN BAR ASSOCIATION

BRITISH COLUMBIA BRANCH

BOARD OF DIRECTORS

Aleem S. Bharmal, K.C. President Scott Morishita First Vice President Lee Nevens Second Vice President Judith Janzen Finance & Audit Committee Chair Dan Melnick Young Lawyers Representative Rupinder Gosal Equality and Diversity Representative Randolph W. Robinson Aboriginal Lawyers Forum Representative Patricia Blair Director at Large Adam Munnings Director at Large Mylene de Guzman Director at Large Sarah Klinger Director at Large

ELECTED MEMBERS OF CBABC PROVINCIAL COUNCIL

CARIBOO

Nathan Bauder Susan Grattan Nicholas Maviglia

KOOTENAY Andrew Bird Christopher Trudeau NANAIMO Johanna Berry Patricia Blair Kevin Simonett

PRINCE RUPERT Sara Hopkins VANCOUVER Kyle Bienvenu Karey Brooks Joseph Cuenca Bahareh Danael Graham Hardy

Lisa Jean Helps Judith Janzen Heather Mathison Scott Morishita

VICTORIA Sarah Klinger Dan Melnick Paul Pearson

WESTMINSTER Anouk Crawford Mylene de Guzman Daniel Moseley Greg Palm

YALE Rachel LaGroix Michael Sinclair Kylie Walman

CANADIAN ASSOCIATION OF BLACK LAWYERS (B.C.)

Zahra Jimale, President FEDERATION OF ASIAN CANADIAN LAWYERS (B.C.) Steven Ngo, President

INDIGENOUS BAR ASSOCIATION (B.C.) Michael McDonald, President

SOUTH ASIAN BAR ASSOCIATION OF BRITISH COLUMBIA Anita Atwal, President ASSOCIATION DES JURISTES D’EXPRESSION FRANÇAISE DE LA COLOMBIE-BRITANNIQUE (AJEFCB)

Sandra Mandanici, President

BRITISH COLUMBIA BAR ASSOCIATIONS

THEADVOCATE

VOL. 80 PART 6 NOVEMBER 2022

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Entre Nous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 809

On the Front Cover: Aleem Bharmal, K.C. By Louisa Winn, K.C., and Tina Parbhakar . . . . . . . . . . . 815 Haldane

By Christopher Harvey, Q.C. . . . . . . . . . . . . . . . . . . . . . . 823

Ontario Court of Appeal Denies Preconception Medical Duties to Future Children: Why British Columbia Should Not Follow Ontario’s Lead By Aminollah Sabzevari . . . . . . . . . . . . . . . . . . . . . . . . . . 833

The Canadian Legal Genealogy of Terra Nullius – Sub Nom.: Is It Too Late to Send Terra Nullius Back to Australia (and Would They Even Take It)? Part II By Sarah Pike . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 839

Got Privilege? Things You Didn’t Know You Didn’t Know By David Wotherspoon and Alim Khamis . . . . . . . . . . . . . 851

Conscious of the Good Conscience Trust: Further Thoughts on the Constructive Trust in Wills Variation Claims By Mark Weintraub and Polly Storey . . . . . . . . . . . . . . . . . 859

The Wine Column . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 867 News from BC Law Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . 873

LAP Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 877 A View from the Centre . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 879

Announcing the 2023 Advocate Short Fiction Competition . . . 883 Peter A. Allard School of Law Faculty News . . . . . . . . . . . . . . . 885

UVic Law Faculty News . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 889

The Attorney General’s Page . . . . . . . . . . . . . . . . . . . . . . . . . . . 893 Nos Disparus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897 New Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 909 New Master . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 915

Letters to the Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919

Classified . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 923

Legal Anecdotes and Miscellanea . . . . . . . . . . . . . . . . . . . . . . . 925

From Our Back Pages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 931

Bench and Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 947

Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959

ON THE FRONT COVER

Aleem Bharmal, K.C., is the new CBABC president. Read how this kid from Scarborough went from being a Bay Street lawyer to a BBQ’d lasagna eating director of the Community Legal Assistance Society and beyond at p. 815.

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ENTRE NOUS

Is law a trade? We’ve heard the “trade” label applied again recently to our line of work. It is somewhat less common than the “law as business” characterization,1 but occasionally used as well (indeed, in some definitions, trade and business are synonymous). We reflect on the “trade” label below.

“Trade” is “the activity of buying and selling, or exchanging, goods and/or services between people or countries”, a “particular business or industry” or a “job, especially one that needs special skill, that involves working with your hands”.2

In all these various guises, there is undoubtedly something solid and reassuring about the word “trade”. Many of its connotations are positive. Goods or services that are traded can be the product of considerable skill; skilled craftspeople are the epitome of those practising a trade. Indeed, for anyone to engage in trade sustainably, the goods or services they trade should be of sufficient quality to attract both repeat and new customers.

A trade is a form of exchange. In return for the goods or services that a person provides, the provider should receive payment—a welcome prospect for many of us in law, though not necessarily always the reality, as returned to below. No one would expect a tradesperson in a conventional sense to keep extending indefinite credit; who would look down upon a tradesperson seeking payment in exchange for the goods or services traded?

At the same time, conventional trades are not necessarily known for exorbitant incomes, so the tradesperson label—no matter the reality—at least would detach us somewhat from an image of offensive wealth.

Being seen to accept, or even embrace, the characterization of our line of work as a “trade” might also do other wonders for our image. It would mean we are not elitists insisting on a highfalutin status and thinking we are better than the skilled craftspeople and business owners more commonly associated with the trading label.

Reach as we might, though, and while there are aspects of overlap, the reality is that law is not a trade. And while in some respects the trade characterization is pleasant and even positive for our image, in other respects it is dangerous.

To differentiate between the two is not to say we are better than those engaged in trade—just that we have a different role. And the differences are not necessarily ones that make our lives easier; to the contrary, the differences can make our day-to-day work less certain and more difficult.

At heart, what we offer is the exercise of judgment, including as to whether we should provide more tangible work product, and if so, what it should be and when it should be done.

For the most part, we are not in the business of selling a particular good, though sometimes, and in itself not without difficulty, we can provide some approximation of this with unbundled services. This is much to the disappointment of clients or prospective clients who contact us demanding that we take on a particular task, such as writing a letter to one of their foes. In telling that client or prospective client “Well, sorry, there’s nothing lawrelated to say” or “Strategically, that’s not a good idea” or “Well, that’s actually not lawful”, we are not exactly maximizing our volume of sales. Rather, we may talk the “customer” out of hiring us at all or recommend a nature and volume of work inconsistent with generating a return.

Even where we provide a particular category of good or service repeatedly in our practice, usually it is not an off-the-shelf kind of product in each case. Circumstances tend to call for different wording and approaches in each of our letters, contracts, pleadings and written submissions.

Of course, custom orders are far from unknown in trade. However, unlike the cabinets in a kitchen, it is not the client’s vision of what a given letter should say (or, typically, how strident it should be) that should be driving certain customization—rather, the decisions on the content and appearance of the documents that emanate from our offices at their core should rest on, or at least be consistent with, our own views of what is appropriate, though responsive to overall client interests and goals.

Every time we engage with a client, we need to consider whether—and if so, how—to do what is sought, or whether a different approach will serve the client’s interests, or if we can engage with this particular client at all.

When we do not do this, we put at risk not just the interests of that particular client in the long term, but also our reputations and potentially the public interest as a whole. We should not aspire to be like the “hired guns” who simply do the bidding of a client in court or other contexts.

No doubt a person engaged in trade may also resist or refuse a particular transaction. They may say “no” to crafting a commissioned piece with an

unlawful or otherwise offensive message, or a sale to a villainous customer, or a sale of a particular piece of clothing to someone unsuited to it. However, we expect those should be exceptions to the rule that a good or service is available for purchase.

When a solicitor-client relationship is established, the obligations we have in that relationship are fierce. The duties of loyalty and confidentiality that arise have a ferocity that the purchaser of a handicraft from a seller would find a surprising accompaniment to that act of trading.

Beyond the bilateral relationship that is also found—albeit in much less intense form—in trade, we also have broader and other obligations to courts, other lawyers and the public. Those obligations in turn inform whether we establish the bilateral relationship with a given individual as client, and if so, what that consists of.

An element of our work is public service. The service to the public that we perform does not consist simply—or may not consist at all—of providing the work that a given member of the public would like us to do. That work product may, on balance, either not be of service to that person, or be incompatible with other obligations and contrary to the public interest at large.

It is not that those in trade are immune to external influence on the relationship they have with their customers; those in trade also have obligations to the state, and indeed the quality of their wares and services may be regulated by it. However, as we may be defending clients against the state and seeking to change and improve the laws that the state otherwise imposes, regulation of the bar needs a degree of independence that regulation of a trade does not.

The notion of work being done pro bono is also somewhat at odds with the “trade” label. To trade is to exchange, conventionally a good or service for a monetary benefit, or at least for a good or service bartered in return. This is not to say that a person engaged in a trade may not occasionally donate goods or services, or offer a discount, but it is not expected. Further, the balancing that many of us do when looking at the totals to which our hourly rates have caused pre-bills to skyrocket, to determine a fair and reasonable approach and how much to write off, certainly departs at least from the notion of a standardized price list.

All this reflection and consideration are difficult, even if patterns tend to emerge that may spare us from needing to re-do it from scratch in every case. Sometimes the scenarios repeat themselves enough to have given rise to precise rules for us to apply. Others are strange and new and varied and require considerable reflection to sort through. We never know on any given day which scenario(s) we will face.

To do their work well, lawyers need various supports that may not have equivalents in trade. They need education broad enough to teach them to deal with difficult and changing circumstances in which, rather than provide a good or service, or the client’s desired good or service, a lawyer should not or cannot. Their knowledge needs to be refreshed and kept alive. They need practice advisors to assist them and regulatory structures that seek to prevent issues from arising but address them where they do. They need to know there are colleagues around whose experiences they share, and inspiring role models who weathered the same issues during their careers.

Unless equipped to do their work in the manner outlined above, ultimately there will be fewer lawyers able to provide assistance, and those who continue in practice may be less able to do their work well. They need an excellent regulator mindful of issues related to lawyers and their relationships with clients and the state, they need educational resources as well as resources that inspire collegiality and professionalism, and they need the Lawyers Assistance Program.

Whether in funding decisions or in reshaping regulation in this province, care needs to be taken to appreciate that shifting attention to one priority— and sapping the funding and energy otherwise devoted to another—may ultimately damage even the ability to achieve the objective that was favoured.

There are many issues ahead in this province, with which lawyers and others will need to grapple, regarding such matters as regulation, the nature of services to be provided by different providers, and the relative funding for different supports for lawyers in allowing them to serve the public and the public interest. We urge for consideration the matters highlighted above.

ENDNOTES

1. On what to make of the “business” label, and the intersection between business and the profession of law, see for example Ian Binnie, “Boom in the Law Business” (2007) 65 Advocate 39 (which also contains an entertaining account of the former judge’s experiences in practice); Sandra L Kovacs, “Call to

Service: Preserving Our Professionalism in the New Business Model” (2015) 73 Advocate 355; Frank Iacobucci, “The Practice of Law: Business and Professionalism” (1991) 49 Advocate 859.

2. Cambridge Dictionary, sub verbo “trade”, online: <dic tionary.cambridge.org/dictionary/english/trade>.

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ON THE FRONT COVER

ALEEM BHARMAL, K.C.

By Louisa Winn, K.C., and Tina Parbhakar

Aleem Bharmal, K.C., is unassuming in nature and, as many will attest, universally liked. But do not let that fool you. He is a skillful defender of the downtrodden. He is unflappable, methodical, principled—not easily riled, nor easily dissuaded.

Whereas for some “social justice” is construed so narrowly that it conjures up only pickets and megaphones, Aleem’s dedication to this concept is a deep, broad and enduring one. This dedication includes bringing diverse individuals together time and again to develop responses to emerging issues and polite yet persistent advocacy for policy changes until they are made.

There is much talk about “leaders eating last” these days. Well, Aleem has consistently set the stage for a shared meal and stayed behind to tidy up.

In September 2022, Aleem steps into the position of president of the Canadian Bar Association, B.C. Branch (“CBABC”). 1 Countless lawyers, members of the legal sector and judiciary, and friends from the greater community will come together and celebrate the occasion. We will be among them and are thrilled to write about this human rights lawyer and what you can expect from his presidency.

A COMMITMENT TO RESPECTFUL RELATIONS

In 1994, after growing up in Scarborough, Ontario and earning an undergraduate degree in philosophy and actuarial science from the University of Toronto, Aleem graduated from UBC Law and obtained articles at a prestigious law firm with the esteemed Gordon Turriff, Q.C., as his principal. During his articles, when a senior partner at that firm made an obviously racist joke about South Asians, Aleem called out the behaviour without a second

thought. The lawyer did not seem to see the problem. Aleem consulted those he trusted and decided to bring the incident to the attention of the Law Society. As far as Aleem could tell, his concern was minimized again. This early experience in law, over 30 years ago, set the tone for Aleem’s career trajectory.

Aleem’s parents, Shiraz and Nurjehan, were brought up in Tanzania as members of a diaspora community from the Gujarat region of India, which had settled in eastern Africa in the early 1900s. In 1971, they migrated to Canada from the United Kingdom, where they had both been studying, due to the growing anti-Asian sentiment in both eastern Africa and western Europe in the 1960s and early 1970s. Thus, his family’s experiences led Aleem to be particularly alive to the dynamics of difference, ignorance and hatred, yet also to the power of people, like his parents, who were adamant about mutual respect and dedicated to mutual assistance. They made supporting family and friends and displaced communities, like their own, an intrinsic part of Aleem and his younger siblings’ early lives.

After completing articles in Vancouver, and despite his parents’ reservations, in early 1996, Aleem took those familial values and headed off to Kigali, to work as a human rights officer for the United Nations’ High Commissioner for Human Rights. His task was to help report on the administration of justice and ongoing human rights violations, less than two years after the 1994 Rwandan genocide. Although he felt compelled to leave by the fall of 1996, given the mounting nearby fatalities from militant crossborder incursions and a government counter-offensive, Aleem returned to Toronto with even more resolve to address human rights issues.

FROM BAY STREET TO GEORGIA STREET

In the late 1990s, articles in Ontario were 18 months long. Aleem had to find “top-up” articles and was fortunate to complete them under the renowned refugee lawyer, Barbara Jackman. Next, he joined a boutique firm at the iconic Toronto Flatiron Building with the multifaceted Jerry Levitan. Aside from writing The Complete Idiot’s Guide to Winning Everyday Legal Hassles in Canada, Jerry’s claim to fame was for having, as a teen, interviewed John Lennon and Yoko Ono just prior to their 1969 “Bed-In for Peace” protest against the Vietnam War.2

In 1998, Aleem headed to Bay Street to practise employment law with Miller Thomson LLP. He became privy to billable-hour and client development pressures associated with big firm practice. On the upside, demand for associates was booming in Toronto, and that meant lots of work, competitive salaries and glorious perks. However, the novelty of fancy recep-

tions, platinum tickets to Raptors’ games and kudos for climbing the hierarchy wore off for Aleem. While at a firm event at Casa Loma, an occasion with live performers, colleagues dressed to the nines, flowing fine wine and even a chocolate fountain, Aleem felt a distinct and undisputable yearning to shift back to social justice lawyering.

Fortuitously, Aleem’s friend and former colleague, Mandeep Gill, who is now in the foreign service, suggested he consider approaching the Community Legal Assistance Society (“CLAS”) about an opening. In 2002, the newly elected provincial government disbanded the BC Human Rights Commission as a cost-cutting measure. CLAS was tasked with developing a directaccess human rights clinic to address a huge backlog of cases that the commission, which had functioned as a gatekeeper, left behind. Aleem successfully applied to join this new Vancouver clinic, once again undeterred by those who expressed reservations. Aleem has since devoted his energies to human rights claims in this province, led CLAS for over a dozen years and participated in countless social justice community initiatives.

CLAS SOCIALS, WORKING AT CLAS AND WORKING CLAS SOCIALS

The first CLAS social event that Aleem attended was a casual potluck at the home of Jim Pozer, Q.C. (as he then was), CLAS’s executive director at the time. Jim’s oven had broken down, which meant the frozen lasagna Jim planned to serve had to be cooked in his BBQ. The warmth, laughter and engaging legal conversations Aleem experienced that night confirmed for him that this was his home in the law. Aleem also fostered this CLAS culture as executive director. He enthusiastically supported events such as annual summer BBQs featuring highly anticipated team games including the water balloon toss and three-legged race, Halloween costume competitions with fiercely fought battles between CLAS programs and even karaoke nights, where Aleem belted out corny standards by Journey and The Boss.

Yet Jim did not just inform Aleem’s approach to gathering; he also mentored Aleem in leadership and litigation. As a result, Jim also came to trust Aleem with the role of interim executive director when required. In 2007, after 23 years with CLAS, Jim retired due to health issues. Aleem was chosen to be the executive director, following in the giant footsteps of past executive directors. These included Mike Harcourt, who founded CLAS in 1971 before becoming mayor of Vancouver and ultimately premier; the late Ian Waddell, Q.C., who, after leading CLAS, had an illustrious political career with the provincial and federal NDP; and, of course, Jim, under whose leadership CLAS steadily expanded and was nationally recognized for its role in precedential cases, despite a period of significant cuts to legal aid in the province.

Indeed, 2007 was a whirlwind year, with the new executive director responsibilities and the arrival of his second child. That year, Aleem, with Clea Parfitt joining him as his co-counsel, also took on a human rights case brought by over 20 South Asian veterinarians who alleged systemic discrimination by their professional association and regulator.

Menacing hurdles soon arrived with the 2008 world economic downturn and funding cuts in 2012, reminiscent of those Aleem’s predecessor had faced in 2002. The 2012 cuts reduced both salaries and staff. But Aleem steered CLAS through these tough years like “a calm sailor in rough seas,” according to a colleague. Working closely with Rita Hatina, director of administration and finance, Aleem ensured that the CLAS team endured and surmounted financial threats, ultimately emerging from them stronger.

In particular, 2015 saw the BC Human Rights Coalition merge with CLAS, returning staff numbers back to 2007 levels. The next big CLAS expansion occurred toward the end of Aleem’s term as executive director, when CLAS applied for Department of Justice funding and was awarded a multi-million dollar grant for new legal services to address workplace sexual harassment. During this period, CLAS also represented parties or intervened at the Supreme Court of Canada six times and its Mental Health Law Program grew to respond to over ninety per cent of demand for representation in British Columbia.

Aleem remained busy in his legal practice. Notably, the “Indo-Canadian Veterinarians Case” took over five years and 300 days of hearing to conclude. After multiple motions, challenges and even a trip to a higher court to deal with a reasonable apprehension of bias allegation, Aleem and Clea ultimately succeeded in convincing the tribunal about the BC College of Veterinarians’ widespread misconduct, characterized by racial bias and systemic discrimination, resulting in significant individual and systemic remedies for their clients.

As the executive director of CLAS, Aleem maintained a perpetually open door and a well-stocked mini-fridge in the boardroom. He also put on fabulous fundraisers. With Rita’s able assistance, he managed relationships with multiple funders and stakeholders with aplomb. He also continued his highvolume human rights legal practice, ever determined to give voice to those who were being silenced or marginalized. Each dimension of his work at CLAS contributed to his broader advocacy inside and outside of the nonprofit.

Throughout his career, Aleem has remained a devoted father to his two children. He made and continues to make time to mentor law students and junior lawyers and participate in initiatives that impact access to justice. He

was part of a team of concerned lawyers who created the Islamophobia Legal Assistance Hotline during a period of rising negative rhetoric and violence against Muslims or those perceived to be Muslim. He also took on the role of running the Social Justice Listserv, with over 575 subscribers from the social justice sector.

By 2019, the results of Aleem’s steady leadership at CLAS ironically set the stage for him to step away from the executive director role. He and his team had managed to expand and improve programs and advocacy, such that the organization reached a staffing level of over 40 and a budget of over $4 million. CLAS now needed a full-time executive director with non-profit management expertise. After a careful search, aided by Aleem and Rita, Jacqui Mendes ably took over the role of executive director, just as the global pandemic set in. To Aleem’s relief, Jacqui handled this challenge with grace and skill. This transition was actually ideal for Aleem, who wished to return to being a full-time lawyer and devote more time to his legal volunteer work, particularly with the CBABC. Before we close with Aleem’s CBA journey, a small detour will illustrate that Aleem has put the “social” in social justice for quite some time.

MUSIC, MIXING, FASHION, FOOD AND FAMILY

As a youngster, Aleem brought people together with his calm, encouraging and non-judgmental presence (although Aleem suggests that having one of the first computers and VCRs on the block was probably helpful, thanks to his dad’s love of new technology). They say Aleem was not shy about socializing with others who seemed far different from him, and he could walk into any room and appear completely comfortable.

Aleem’s brother, Jameel, reveals that Aleem was a wannabe fashion and intellectual rebel in his teens. Scarborough in the ’70s was a Wayne’s Worldlike setting, where a young Aleem indulged in the fashion trends of the time with a preference for ripped jeans and chokers. Evolving into a young adult in the ’80s, his aesthetics flowed from his favourite bands (he even sported a short-lived and not entirely successful “rat-tail” during this period). Aleem immersed himself in the anti-establishment lyrical poetry of British new wave bands, such as Tears for Fears. Music videos were the hot new thing. Much Music was the TV channel of choice, showcasing a continuous stream of now-classics from the Brit punk and new wave movements, including the Clash, the Police, the Cars, the Pet Shop Boys, OMD, the Smiths, the Cure, Depeche Mode and so many other acts Aleem and his friends were into.

In this context, Aleem’s brother recalls a brunch with their parents memorialized by Aleem’s announcement that he was going to become an

anarchist. He had read every single thing on the subject and was genuine in his plans to shake the establishment in some radical, far-fetched way. The rebellious attitude, coupled with a love of alternative music and funky fashion, soon (and thankfully) found some refinement and sophistication while Aleem attended university.

Nonetheless, family and close friends confirm that the earnest enthusiasm from his formative decades is still alive and well within the Aleem we know. For example, Aleem’s lovely partner, Shelley, notes that the off-duty Aleem continues to absolutely love music and is meticulously honing a passion for cooking delicious meals for family and friends. Aleem prepares his plates to the cascading sounds of his favourite opera music from a beloved CD collection, which inevitably tests the endurance of his partner and his children alike. That one minor issue aside, Shelley shares that Aleem’s default settings of empathy and positivity are intense and infectious.

Indeed, Aleem’s children get a big laugh out of not only his extensive photoshoots (“hundreds of pictures”) of all of the dishes he has prepared, but also his generous emoji use. Hannah and Noah say that every message has way too many emojis. Hannah, however, is proud to share that her dad recently volunteered to speak to her social justice class. After watching him provide a forceful opening statement on behalf of an Indigenous mother alleging egregious mistreatment at the hands of the child welfare system, Hannah was surprised to hear her dad express that he was nervous. Just as expected, her high school classmates did not catch on and instead appreciated Aleem’s passionate yet down-to-earth presentation.

BRINGING SOCIAL JUSTICE TO THE CBABC AND HIS PRESIDENCY

As a longstanding member of the CBABC, Aleem is a familiar face at CBABC events. Aleem joined the CBABC as an articling student and began to exhibit leadership in the Equality & Diversity Committees at the provincial and then national level, ultimately chairing both. He often worked closely with CBABC past-president Jennifer Chow, K.C., in these roles.

Aleem has subsequently co-chaired the Human Rights Law and Social Justice Sections for too many years to count. The annual Social Justice Section Mixer brings together social justice advocates, with the expectation that Aleem will be there, as a welcoming host and convener. Aleem also helped establish the Legal Equity & Diversity Roundtable (“LEADR”) in the mid-2010s, with memorable meetings held in the CLAS boardroom, potluck style, of course. These will resume again soon, under the leadership of Lee Nevens, current LEADR chair and newly elected CBABC second vicepresident.

After serving on various committees and sections, Aleem was first elected to CBABC Provincial Council for Vancouver County in 2016 and then to the CBABC board in 2018. He was acclaimed as second vice-president in 2020. Aleem’s presidency will no doubt be informed by his years of work in the social justice sector, especially on the ever-critical issues of equality, diversity and inclusion as well as access to justice, subjects for which his passion remains high. Aleem believes that we are at important inflection points on these matters, post-COVID. His presidency will also require response to the B.C. government’s announced move to a single regulator for lawyers, notaries and paralegals. Aleem plans to make sure the voice of our profession is heard loud and clear, especially on the issues of independence and self-regulation, cornerstones to the fundamental principle of the rule of law.

Aleem seems perfectly suited for this role at this time, and we expect that, in his calm and unassuming manner, he will bring us together to achieve great things.

ENDNOTE

1.[Asst. Editor’s Note: This article was written in advance of the events described here and we have preserved the original tenses in this paragraph.]

2.[Editor’s Note: Levitan was 14 years old when he interviewed John and Yoko on May 25, 1969 at the

King Edward Hotel in Toronto. 38 years later his efforts formed the basis of the short animated film I Met the Walrus nominated for a 2008 Academy Award and available to view online at: <https://www. youtube/watch?v-jmR0V6s3NKk>].

HALDANE

By Christopher Harvey, Q.C.*

It was said that Richard Haldane was one of “the most powerful, subtle and encyclopaedic intellects ever devoted to the public service of his country”.1 If his country is viewed only as the United Kingdom, this description does him an injustice. The thesis of this article is that he made a greater contribution to the shape of the Canadian constitution than any other judge before or since.

Haldane sat on all the major Canadian constitutional cases that reached the Privy Council between 1911 and 1928. At that time, the balance between the provinces and the Dominion was still in flux. The Fathers of Confederation had been unable to agree whether Canada should have a predominately centralist government or, as Quebec and the Maritimes preferred, decentralist with power predominately in the provinces. The resultant wording of ss. 91 and 92 of the British North America Act, 1867 (now the Constitution Act, 1867) was vague enough to allow for creative judicial interpretation. Lord Watson began the course that Haldane drove home. Both had a strong provincial bias. Critics in the immediate post-Privy Council era called them the “wicked stepfathers of confederation”.2 Economist Hugh Mackenzie of the Canadian Centre for Policy Alternatives puts it succinctly: “The framers of the Canadian constitution set out to create a centralized federation and got what is probably the most decentralized federation in the world”.3

This article will say something about Haldane as a man, a statesman, a philosopher and a lawyer. It will also address whether his constitutional judgments served Canada well or ill.

PHILOSOPHICAL UNDERPINNINGS

Richard Haldane was born into an ancient Scottish family in 1856. He had a nondescript school career in Edinburgh but came alive intellectually when he spent a term at the University of Göttingen at the age of 17. There he developed a lifelong passion for German culture and literature. He

* Christopher Harvey, Q.C., a former editor of the Advocate, delivered this article as a paper at a meeting of the 20 Club in Vancouver on April 7, 2022. He passed away in early September 2022 from COVID-19.

immersed himself in the writings of the German philosopher G.W.F. Hegel (1770–1831). Anyone who has dipped into Hegel will know that he is notoriously difficult to fathom. Haldane once told a friend that he had read Hegel’s Phänomenologie des Geistes 19 times. Hegel was a major influence in the development of his political philosophy.

Freedom is the dominant principle underlying Haldane’s philosophy of the state. One may ask how the state, which generally functions to restrain freedom so as to prevent anarchy, can be said to foster freedom. Haldane’s answer lay in the conception of the “General Will” (volonté générale for Rousseau; der allgemeine Wille for Hegel). Freedom in its highest form is attained when the laws of a state closely reflect the General Will.

General Will is the will that represents the best interests of the people as a whole as opposed to any individual person’s purely self-interested will. It is not the simple aggregate of voices that flare up from time to time stoked by populists, but is more akin to the will that is particularly evident in times of national crisis when we see a nation pulling together in remarkable ways, willing and performing acts of heroism or self-sacrifice, such as we see in Ukraine today. For Haldane, even in less extreme times, the General Will is still operative, just perhaps less easy to discern. His later judgments in the Privy Council were grounded in what he understood to be the General Will of the people affected.

Haldane wrote a dense work of philosophy entitled The Reign of Relativity. It is filled with serpentine sentences and page-long paragraphs. In it he deals with the distinction between the General Will and the will of the majority, as the following passage illustrates: It is not enough to say that in the ballot boxes a numerical majority of votes for a particular plan was found. For it may become obvious that these votes did not represent a clear and enduring state of mind. The history of the questions at such an election and the changes in their context have therefore to be taken into account. A real majority rule is never a mere mob rule … . Representative and responsible government is thus a complicated and difficult matter, and, if it is to be adequately carried out, requires great tact and insight, as well as great courage; qualities which the people of a country like our own have become trained to understand and to appreciate. No abstract rules for interpretation can take the place of these essential qualities of character in the statesman.4

That optimistic view of enlightened statesmen who control the destiny of a nation is what guided Haldane throughout his life in both politics and the law.

As the title to his treatise indicates, Haldane was to philosophy what Einstein was to physics. In fact the two men corresponded extensively and when Einstein, at Haldane’s invitation, visited England in 1921, Haldane acted as his host. Relativity for Haldane was grounded in the premise that

the principles that motivate people cannot be judged against some abstract and fixed standard. His approach was that they had equal value even though they may be fundamentally divergent. That made Haldane a very effective mediator because he could understand and value the principles motivating both sides in a controversy.

His conception of relativity also influenced his theory of the origins and legitimacy of the law, and made him a very effective judge. He saw the common law as grounded in the custom and practices of the people, not derived from the monarch or some code. It was a distinctly bottom-up approach. I will give you my favourite example of this, taken from a case called Attorney-General for British Columbia v. Attorney-General of Canada 5 The issue was whether the right to fish in the sea was vested exclusively in the Crown and exercised as a regal franchise or was a public right belonging to the people. In the hands of any other judge, it might well have been found to be a regal franchise. Not so with Haldane. Without saying so, he found the answer in the General Will of the people, whose customs and expectations informed the common law. The following passage illustrates the point: The legal character of this right is not easy to define. It is probably a right enjoyed so far as the high seas are concerned by common practice from time immemorial, and it was probably in very early times extended by the subject without challenge to the foreshore and tidal waters which were continuous with the ocean if, indeed, it did not in fact first take rise in them. The right into which this practice has crystallized resembles in some respects the right to navigate the seas or the right to use a navigable river as a highway, and its origin is not more obscure than that of these rights of navigation. Finding its subjects exercising this right as from immemorial antiquity, the Crown as parens patriae no doubt regarded itself bound to protect the subject in exercising it, and the origin and extent of the right as legally cognizable are probably attributable to that protection, a protection which gradually came to be recognized as establishing a legal right enforceable in the courts.

If this were the true interpretation of the words of Magna Charta it would indicate that the general right of the public to fish in the sea and in tidal waters had been established at an earlier date than Magna Charta, so that it was only necessary at that date to guard the subject from the temporary infractions of that right by the Crown in the rivers, as well tidal as nontidal, which were covered by the writ de defensione ripariae. But this is a matter of historical and antiquarian interest only. Since the decision of the House of Lords in Malcolmson v. O’Dea (10 H.L.C. 593), it has been unquestioned law that since Magna Charta no new exclusive fishery could be created by Royal grant in tidal waters, and that no public right of fishing in such waters, then existing, can be taken away without competent legislation. This is now part of the law of England, and their Lordships entertain no doubt that it is part of the law of British Columbia.

HALDANE, THE MAN

Richard Haldane was called to the bar in London in 1879. Eleven years later, at age 33, he became the youngest Q.C. in 50 years. In 1886, at age 29, he was elected to Parliament. In 1905, he entered the Liberal Cabinet as Secretary of State for War, a post he held until 1912. He is credited with reorganizing an army that had changed little since the time of Napoleon. The British Expeditionary Force that held off the invading German Army from Paris in 1914 was his creation.

In 1911, he became Viscount Haldane of Cloan (Cloan being his home estate in Scotland). In 1912, he was appointed Lord Chancellor—for the first time. As a Germanophile, he fell out of favour in 1915 but was re-appointed Lord Chancellor in the Ramsay MacDonald government in 1924.

On the personal side, Haldane was a large man who enjoyed his food and enjoyed company. He was described as having the mind of Socrates and the body of Nero.6 In Haldane, even the young Churchill met his match: Winston Churchill one day ran into him in the lobby of the House, tapped him on his great corporation and asked, “What is in there, Haldane?” “If it is a boy,” said Haldane, “I shall call him John. If it is a girl, I shall call her Mary. But if it is only wind, I shall call it Winston.”

That story was recounted by the founder of the Royal Institute of International Affairs, Lionel Curtis, who also said of Haldane that:

To few if any of its members does the Royal Institute of International Affairs in its early years owe such as deep a debt as it does to him. His sympathy and advice was always unfailing and also his active help when needed. He seemed to live for public service … . There never was a man whose octave was quite so wide. Was there ever before a profound metaphysician who could also give the nation the army which alone enabled it to survive the greatest struggle in history.

In light of all he did for his country, it might be thought that he had little time to devote to his practice at the bar, but Haldane was a relentless workaholic. He worked tirelessly and got by on only about four hours of sleep a night. He threw himself into his cases. By 1905, his busy practice earned him the equivalent of C$4 million in today’s value.

I will mention only one case—one that he lost, probably because he knew far too much about it and, for that reason, lost his audience. The issue concerned the union of the Free Church of Scotland with the United Presbyterian Church in 1900 to form the United Free Church of Scotland, for whom Haldane acted. Dissenting members claimed more than £2 million of the church’s money, arguing that a change in the doctrine of predestination arising from the union undermined the original constitution of the Free Church. Haldane marshalled vast scriptural knowledge for his rebuttal. The librarian of the House of Lords described the scene in court as follows:

The Chancellor [Lord Halsbury], manifestly hostile to the Free Church’s position, is red with effort, mental and physical, of finding holes in Haldane’s polished armour. Lord Alverstone, perfectly bland, with glassy eyes, is an evident Gallio, to whom all this ecclesiastical metaphysic is unintelligible and insane. Lord James of Hereford chafes under it, constantly snapping out, “I say it without irreverence but,” or “Well, well, Mr. Haldane, but in the name of common sense … ”, and Haldane, flapping back the side of his wig, replies, “My Lord, we deal not with the dictates of common sense, but with a mystery.”

Haldane later lamented that the Law Lords had not been Scotsmen, to whom his arguments—he believed—would have seemed as clear as day. Nevertheless, he won on the doctrinal point, but lost on a trust point. The result was disastrous, stripping the Church of all its property and landing a huge liability for costs on the individual trustees. Most barristers would simply have moved on to the next case, but Haldane refused to let such an injustice stand. He organized a subscription to which he made the original sizeable donation. Then he brought into play his powerful political contacts. He spent a weekend at the country home of the Prime Minister, enlisting his support, followed by the support of the Archbishop of Canterbury and others, for an Act of Parliament to redress the situation—which passed with little opposition.

THE CANADIAN CONNECTION

Haldane had his first brief from Canada—an application for leave to appeal by Quebec—in 1883, when he was only four years of call. Between 1894 and 1904, he acted on behalf of Canadian provinces seven times. This was interspersed with an enviable variety of other cases from all parts of the Empire. In his autobiography, he wrote: I remember … one fortnight within which, towards the end of my time [at the bar], beginning with a case of Buddhist law from Burmah. I went on to argue successively appeals concerned with the Maori law of New Zealand, the old French law of Quebec, the Roman-Dutch system of South Africa, the Mohammedan law and then the Hindu law from India, the custom of Normandy in a Jersey appeal, and Scottish law in a case from the North.7

In 1911, while still Secretary of State for War, Haldane was appointed to the Judicial Committee of the Privy Council. Over the course of the next 17 years, he heard 32 Canadian appeals, delivering 19 of the judgments—a formidable contribution.

As I intimated earlier, the balance struck by the Fathers of Confederation in ss. 91 and 92 of the Constitution Act, 1867 ebbed and flowed through the decades of judicial interpretation. The words themselves represent a compromise between those who favoured a strong central government and oth-

ers who favoured decentralization. The resultant wording favours a centralist interpretation. The all-important residual power, for example, appears intended to reside in the “peace, order and good government” clause in s. 91 (“POGG”), and the first Privy Council cases—before Haldane’s time—interpreted it as such. Federal temperance legislation, for example, was upheld under this head, although controlling the nation’s drinking habits can hardly be said to be a national emergency or a matter of pressing national concern.8

This centralist leaning conflicted with Haldane’s view, based on Hegelian political philosophy, that the people governed are served best by government that is close to them. Everything he had heard at the bar from the provinces backed up the view that power had to get closer to the wellsprings of sovereignty: the local groups and associations that expressed the General Will. In the Canadian context, this favoured government by provincial legislatures rather than by Parliament.

Haldane did not hesitate to adapt the law to his perception of the General Will in Canada. There is little doubt that he believed that the British North America Act, 1867 in its traditional interpretation—i.e., the interpretation that prevailed before his predecessor Lord Watson—was not representative of the source from which his own authority as a judge came—being, in his view, the authority of public opinion. Speaking in Montreal to a joint meeting of the Canadian and American Bar Associations in 1913, he quoted the famous words of Justice Oliver Wendell Holmes in support of his point of view: The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intentions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.9

Haldane might have added that a nation’s constitutional development cannot be constrained by the static words of an Act of Parliament.

Lords Watson and Haldane dominated Canadian appeals to the Privy Council from 1880 to 1899 (Watson) and 1911 to 1928 (Haldane). They shared a preconceived notion about the proper form of a federal system. Haldane described the process of adapting the Canadian constitution (modestly omitting his own role in it) in a speech delivered to the Cambridge University Law Society in 1923:

At one time, after the British North America Act, 1867 was passed, the conception took hold of the Canadian Courts that what was intended was to make the Dominion the centre of the government in Canada, so that its

statutes and position should be superior to the statutes and position of the Provincial Legislatures. That went so far that there arose a great fight; and as the result of a long series of decisions Lord Watson put clothing upon the bones of the Constitution, and so covered them over with living flesh that the Constitution of Canada took new form. The Provinces were recognized as of equal authority co-ordinate with the Dominion, and a long series of decisions were given by him which solved many problems and produced a new contentment in Canada with the Constitution they had got in 1867.10

The process of favouring provincial over federal power was worked out through restrictions on the s. 91 powers relating to POGG, criminal law and trade and commerce. Think truckers occupying the streets of Ottawa when you read the following passage from Haldane’s judgment in Fort Frances Pulp & Paper Co. v. Manitoba Free Press Co.: Their Lordships, therefore, entertain no doubt that however the wording of Sections 91 and 92 may have laid down a framework under which, as a general principle, the Dominion Parliament is to be excluded from trenching on property and civil rights in the Provinces of Canada, yet in a sufficiently great emergency such as that arising out of war, there is implied the power to deal adequately with that emergency for the safety of the Dominion as a whole.11

In Toronto Electric Commissioners v. Snider, 12 Haldane returned to the POGG emergency power. He described it as applying only to “extraordinary peril to the national life of Canada”, circumstances that are “highly exceptional” and “a menace to the national life of Canada that is so serious and pressing that the National Parliament was called on to intervene to protection the nation from disaster”.13

Earlier this year the federal government, relying on its POGG power, invoked the Emergencies Act to give it control over the property and civil rights of a gaggle of truckers in Ottawa. The premier of Quebec responded by saying that the federal government should not try to apply the Emergencies Act in Quebec. One could translate that to mean that the application of the Act to the situation created by the truckers would be considered by the Government of Quebec to be ultra vires as trenching on provincial power over property and civil rights as expressed in the judgments of Lord Haldane.

CRITICISM AND DEPARTURES FROM HALDANE’S JUDGMENTS

After Haldane’s death in 1928, the Privy Council, in a series of decisions arising out of Parliament’s “Canadian New Deal” legislation, held that the Great Depression did not count as an emergency, and as a result, their lordships struck down the legislation. It is interesting to speculate as to whether Haldane’s conception of General Will would have caused him to expand the

emergency doctrine in this instance. In any event, the legislation was struck down and the Privy Council came to be viewed by leading constitutional scholars (mostly from central Canada) as a liability that had not served Canada well.14

The Supreme Court has decided that it is not bound by decisions of the Privy Council, and it has explicitly refused to follow a Privy Council precedent in at least three constitutional cases.15 Nevertheless, the main lines of authority established by the Privy Council, and especially the wide scope of provincial power over property and civil rights, have not been disturbed. The two most important federalism cases since the abolition of appeals to the Privy Council in 1949, being the Patriation Reference and the Secession Reference, actually expanded provincial powers.16

FINAL JUDGMENT

In recent decades, the criticism of Haldane’s provincial bias has cooled. The late Peter Hogg wrote that:

[W]e believe that Canada’s federal system is bound to be less centralized than those of the United States and Australia. It follows that, although the Privy Council did favour the provinces, in the end, and perhaps more by accident than design, Canada was, on the whole, not badly served by the Privy Council.17

The late Ken Lysyk went further, expressing the view that “on the whole, the Privy Council did a creditable job of interpreting our Constitution in a way which preserved a balance in the Canadian federation”.18

What both these learned men missed, however, is that Haldane’s appreciation of the need for a provincial bias in the Canadian constitution was a deliberate choice based on Hegelian philosophy and a careful assessment of the General Will in Canada. Both Hogg and Lysyk saw it as a kind of accident that Haldane got it right. Hogg said “perhaps more by accident than design”. Lysyk said:

[T]he jurisprudence passed on to us by the Privy Council, so roundly condemned as ignorant or perverse, may in fact have reflected an appreciation that an attempt to impose complete domination from the centre would have imposed strains on the Canadian federation which, quite simply, would have proved unacceptable.19

Professor Hogg appears to have thought that Haldane’s basic principle that government power is best applied at the local level is a modern invention:

Another idea that has gained adherents, especially in Western Europe (where nations struggle to accommodate a European Community), is “subsidiarity”. Subsidiarity is the principle that decision-making should be kept as close to the individuals affected as possible.20

This, I hesitate to say, ignorance does an injustice to the work done by Haldane in shaping the Canadian constitution.21 It is not at all a stretch to consider that Haldane correctly identified the forces at work in Canada and moulded the law accordingly. In doing so, he may even be credited as having preserved the unity of Canada. Pierre Trudeau wrote in 1968 (before his own conversion to centralism), “[I]f the law lords had not leaned [in the direction of the provinces], Quebec separatism might not be a threat today: it might be an accomplished fact”.22

With that thought in mind, fast forward to 1995. By a knife-edge margin of 50.6/49.4 per cent, Quebec voted against secession. As we have seen, Haldane was convinced that strong states are built on a sense of autonomy among their constituent parts. If one agrees with that, it is hard to deny the hypothesis that Haldane, through his judgments in the Privy Council, was instrumental in the preservation of a unified Canada. Had his critics in the form of Laskin, Forsey and Scott prevailed, the knife-edge margin in the secession referendum might well have been reversed.

ONE MORE THOUGHT

Is it perhaps the case that the social and political discontent that gave rise to the truckers’ rebellion in Ottawa and to the rise of Trumpism in the United States originates in a feeling that those who hold the destiny of our country in their hands have become disconnected from the General Will of those they govern? Is there perhaps a similar feeling among litigants that the courts have become inaccessible and that the judges have lost touch with the General Will of the populace?

If so, we may need another Haldane to remind us that the ultimate source of legitimacy for both government and the law is the General Will of the people.

ENDNOTES

1. Obituary of Lord Haldane, The Times (20 August 1928).

2. Eugene Forsey, “Canada: Two Nations or One?” (1962) 28:4 Can J Econ Polit Sci 485.

3. “Equalization and the Birth of a ‘Boneless Wonder’”, iPolitics (17 February 2013), online: <ipolitics.ca/ 2013/02/17/equalization-and-the-birth-of-aboneless-wonder/>.

4. Richard Haldane, The Reign of Relativity (London: John Murray, 1921) at 371.

5. [1914] AC 153.

6. See John Campbell, Haldane: The Forgotten Statesman Who Shaped Britain and Canada (Montreal: McGill-Queen’s University Press, 2020) at 2.

7. Richard Haldane, An Autobiography (London: Hodder & Stoughton, 1929) at 43.

8. Russell v The Queen, [1882] 7 AC 829.

9. Richard Haldane, Higher Nationality: A Study in Law and Ethics (Dutton, 1913) at 56–57.

10. Lord Haldane, “The Work for the Empire of the Judicial Committee of the Privy Council” (1923) 1 Camb LJ 143 at 150.

11. [1923] AC 695 at 703–04.

12 . [1925] AC 396.

13. Ibid at 412.

14. See e.g. Bora Laskin, “Peace, Order and Good Government Re-Examined” (1947) 25 Can Bar Rev 1054; Frank R Scott, “Centralization and Decentralization in Canadian Federalism” (1951) 29 Can Bar Rev 1095; Forsey, supra note 2.

15. The first case is Re Agricultural Products Marketing Act, [1978] 2 SCR 1198 at 1234. The second is Re

Bill 30 (Ont Separate School Funding), [1987] 1 SCR 1148 at 1190–96, overruling Tiny Roman Catholic Separate School Trustees v The King, [1928] AC 363. The third is Wells v Newfoundland, [1999] 3 SCR 199 at para 47, overruling Reilly v The King, [1934] AC 176.

16. Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753; Re Secession of Quebec, [1998] 2 SCR 217.

17. Peter W Hogg & Wade K Wright, “Canadian Federalism, the Privy Council and the Supreme Court: Reflections on the Debate about Canadian Federalism” (2005) 38:2 UBC L Rev 329.

18. Kenneth M Lysyk, “Reshaping Canadian Federalism” (1979) 13 UBC L Rev 1 at 5.

19. Ibid at 5.

20. Hogg & Wright, supra note 17.

21. Even in his own day, Haldane was underappreciated. When word reached him that Sir Charles Fitzpatrick CJC considered the Privy Council judgments in Canadian cases to be “perfunctory and cavalier”, Haldane responded sharply that “I have bent the whole strength of our tribunal on cases from Canada even to the sacrifice of English work in the House of Lords of two judges—which was what the Imperial Conference asked for … and it certainly never gave more time or pains to Canadian cases”. See Campbell, supra note 6 at 312.

22. Pierre E Trudeau, Federalism and the French Canadians (Toronto: Macmillan, 1968) at 198.

ONTARIO COURT OF APPEAL DENIES PRECONCEPTION

MEDICAL DUTIES TO FUTURE CHILDREN: WHY BRITISH COLUMBIA SHOULD NOT FOLLOW ONTARIO’S LEAD

By Aminollah Sabzevari*

In Florence v. Benzaquen, a majority of the Ontario Court of Appeal (“ONCA”) closed the door on a doctor owing any duty of care to future children for alleged negligence that occurred during preconception care.1 The dissenting justice would have kept the door open to a claim, if only just a crack. 2 The case curtails the development of Ontario’s tort law in this area just as the role of preconception care is increasing in importance.

Whether a duty exists to born-alive children for preconception care matters because children cannot rely entirely on their parents’ claim for compensation, particularly when they suffer lifelong injuries or when parents fail to manage their own claims in the best interests of the children. British Columbia should not follow Ontario’s lead, as there is a sound legal basis for a doctor to owe a duty of care to a born-alive child for preconception care.

THE DECISION

The majority followed and applied the reasoning from past ONCA decisions to confirm that a lack of proximity and the existence of residual policy concerns prevent the finding of a duty of care to a born-alive child.3 The ONCA identified three arguments against the proposed duty of care: (1) the necessarily indirect relationship between the child and the doctor; (2) an inherent conflict of interest for the doctor between the patient and the future child; and (3) an undesirable chilling effect on doctors.4

* The views expressed in this article are solely those of the author and do not reflect the views of the Department of Justice Canada or the Government of Canada. This article was made possible in part by a graduate fellowship provided by the Law Foundation of British Columbia during the author’s graduate studies.

As noted in the dissent, the majority’s arguments used against a preconception duty of care would similarly apply during pregnancy.5 However, these arguments do not prevent a doctor from owing a duty of care to a born-alive child for medical care provided during pregnancy. It is difficult to draw a dividing line based on the identified arguments between the following two scenarios: medical care relating to pregnancy sought by a pregnant patient (“prenatal care”) and medical care specifically sought by a patient intending to become pregnant (“preconception care”).

Analogous Category of Negligence Not Considered by the ONCA

When there is a previously established duty of care, proximity is normally present and the second stage of the Anns/Cooper test will rarely need to be addressed.6 The difficulty in distinguishing between prenatal care and preconception care indicates that the former may be an analogous category that may be relied upon in establishing a duty of care in the latter scenario. If a court still proceeds with an Anns/Cooper analysis, the existence of the prenatal care category helps to lessen the gap in establishing a duty of care for preconception care by showing that the three arguments identified by the ONCA do not preclude recognizing the proposed duty of care.

Necessarily indirect relationship

The necessarily indirect argument fails to distinguish preconception care from prenatal care and in some ways post-birth care given to infants in the custody of their parents. As noted by the B.C. Supreme Court (“BCSC”), during the entire pregnancy the “mother acts as ‘intermediary’ between physician and fetus, and makes medical decisions for the fetus and herself”.7 There is nothing inherently problematic about this intermediacy in the prenatal situation. The doctor is not in a position to give instructions to or advise a fetus or even a newborn child; instead, the doctor must rely on conveying information to the child’s parents.

The patient is under no duty before pregnancy or during pregnancy to the future child, but their shield from liability is not a bar to the doctor’s duty to the future child, whether for preconception care or prenatal care. The doctor’s reliance on the patient in relation to following medical advice is reflected in the standard of care, not the formation of a duty. In relation to post-birth care, parents owe duties to infants, while doctors and the state do have legal means of gaining custody of the child and providing medical care in the child’s best interests. However, the vast majority of infant medical care still involves doctors relying on parents, a reliance reflected in the standard of care involved in meeting the duty owed by the doctor to the newborn child.

An inherent conflict of interest

In Paxton v. Ramji, the ONCA referenced the Supreme Court of Canada (“SCC”) case of Syl Apps Secure Treatment Centre v. B.D. as an example of an inevitable conflict of interest.8 In Syl Apps, the SCC identified the potential for conflicting duties as a policy consideration and the deciding factor preventing a relationship of proximity in that case.9 The issue was whether a treatment centre, which was treating a child apprehended by the Children’s Aid Society, owed a duty of care to the family of the child in addition to the statutory duty owed to the child. The SCC found there would be an inevitable conflict of interest if the treatment centre owed a duty of care to the family. The ONCA similarly classified the proposed duty of care owed to a future child as creating an irreconcilable conflict of interest for the doctor, who already owes a duty of care to the patient seeking preconception care.10

This classification can be challenged in two ways: by distinguishing Syl Apps and by restricting the nature of the proposed preconception duty. On the first point, the service provider was the agency with power in Syl Apps, in an “inherently adversarial” context where conflict was inevitable in many (if not most) cases, and the finding of lack of proximity was reinforced by legislative policy.11 The BCSC distinguished Syl Apps from the prenatal medical care context, which arguably distinguishes it from preconception medical care as well:

[Syl Apps] did not involve potential conflicts between the interests of mother and fetus ... Since the parents were in an inherently adversarial relationship with the child protection authorities, such a duty would have created an intolerable conflict. As both case authorities and obstetrical medicine recognize, the relationship between mother and fetus is entirely different. Its potential to interfere with a physician’s ability to fulfill a duty of care to the fetus is no different from that of a mother’s role in relation to the medical care of her infant child, to whom the physician undoubtedly carries a duty of care.12

An undesirable chilling effect

The ONCA’s reference to an undesirable chilling effect on doctors is not an argument in itself. Rather, a chilling effect is a symptom of conflicting duties, as the fact that a doctor faces conflicting duties may negatively affect the autonomy and freedom of informed choice of the patient in their medical care.13 When there is no conflict of interest or conflicting duties, there is no chilling effect.

REMOVING THE POTENTIAL CONFLICT: DEFINING POTENTIAL CO-EXTENSIVE DUTIES

While the context of preconception care is different from the adversarial

context in Syl Apps, there could still be a conflict of interest if the duty of care owed to the future child required a different outcome than the situation where the doctor owes a duty only to the patient. The potential conflict disappears when the duty owed to the child is a co-extensive duty restricted by the court to parallel the duty already owed to the patient.

A co-extensive duty owed to a future child does not conflict with the duty of care owed to the patient if it is defined to have the same standard of care as the duty owed to the patient. It is only when the potential standard of care is different that the issue of conflicting duties and a chilling effect comes into play. As long as the standard of care is identical, there is no conflict of interest and the duty owed to the future child reinforces the duty already owed to the patient.

The proposed formula for a co-extensive duty applies when the patient has made an informed decision to undergo a preconception-oriented treatment (whether immunization, drug therapy, surgery or other treatments) with the intent of conceiving, protecting or benefitting the future child. In doing so, the doctor owes the duty to the patient to take appropriate care during treatment and may owe a co-extensive duty to the future child without causing a conflict of interest. This approach matches the situation in prenatal care where the pregnant patient seeks fetal-related healthcare and the doctor may be liable to both patient and future child for negligently provided treatment.

Co-extensive Informed Consent Duty

The dissenting justice in Florence agreed with the majority that there is no informed consent duty owed to the future child for preconception care.14 However, as in prenatal care, there is room for a co-extensive informed consent duty owed to future children during preconception care, as long as the standard of care simply requires the physician to properly inform the patient, matching the standard of the duty of care already owed to the patient. It is in the best interests of both the patient and the future child that the patient be properly informed. The proposed co-extensive duty owed to the future child reinforces rather than detracts from the patient’s autonomy.

Co-extensive Preconception Duty for General Medical Care

A co-extensive preconception duty to future children may also be suitable for general medical care (i.e., medical care sought by a patient unrelated to pregnancy, but still affecting the health of the patient’s future children). This scenario is limited in range by reasonable foreseeability, remoteness and the problem of pronatalist bias.15 However, if a duty is already owed to the patient concerning their future children, a co-extensive duty may exist

because the duty owed to the patient would have already cleared the same hurdles faced by the co-extensive duty.

THE IMPORTANCE OF PRECONCEPTION DUTIES

Preconception care is a growing area of medical care that will continue to attract the attention of law broadly and tort law specifically in the future. Assisted reproduction technology is already a significant medical development. Preconception genetic counselling is also growing in importance, as science unravels information that will be vital in preventing or treating genetically inherited diseases. The growing impact preconception care may have on a person’s health for their entire lifetime emphasizes the importance of leaving room for the development of preconception duties of care. Like prenatal care, preconception care can sustain an emerging system of co-extensive duties.16

CONCLUSION

The infant plaintiffs in Florence filed an application for leave to appeal to the SCC, which was dismissed in March 2022.17 The leave dismissal does not mean the law is settled in the rest of Canada, and the SCC may be waiting for other appellate courts to consider this issue. British Columbia should not follow Ontario’s lead and should leave the door open for trial courts to find that preconception duties are owed to future children in the appropriate circumstances.

ENDNOTES

1. Florence v Benzaquen, 2021 ONCA 523 at para 90 [Florence].

2. Ibid at para 156.

3. Bovingdon v Hergott, 2008 ONCA 2; Paxton v Ramji, 2008 ONCA 697 [Paxton]; Liebig v Guelph General Hospital, 2010 ONCA 450 [Liebig].

4. Florence, supra note 1 at paras 47, 71–73, 87–90, 137–38.

5. Ibid at para 153. The direct reference was to labour and delivery (the tail end of pregnancy), but the reasoning applies throughout pregnancy.

6. Nelson (City) v Marchi, 2021 SCC 41 at para 19; Florence, supra note 1 at paras 105–06; Liebig, supra note 3 at para 8.

7. Ediger v Johnston, 2009 BCSC 386 at paras 211–12 [Ediger].

8. Paxton, supra note 3 at paras 64–66; Florence, supra note 1 at paras 71–73, 137.

9. Syl Apps Secure Treatment Centre v BD, 2007 SCC 38 at para 41 [Syl Apps].

10. Ibid at paras 41–43; Paxton, supra note 3 at paras 65–66.

11. Syl Apps, supra note 9 at paras 2, 42–43, 59–62.

12. Ediger, supra note 7 at para 205.

13. Florence, supra note 1 at para 137; Paxton, supra note 3 at para 68.

14. Florence, supra note 1 at para 101.

15. For a consideration of pronatalist bias, see Louise Langevin, “The Compensation of Wrongful Pregnancy in Quebec Civil Law” (1999) 14 Can JL & Soc 61 at 78. See also Aminollah Sabzevari, Preconception Medical Duties: A Co-extensive Duty of Care Framework (LLM Thesis, University of Alberta, 2014) at 110–14, online: <era.library.ualberta.ca>.

16. For a more detailed analysis of the proposed coextensive duty of care, see Sabzevari, supra note 15 at 70–146.

17. 2022 CanLII 21667 (SCC).

THE BGUILED DEBATE (TRY-OUTS)

|  �FRI NOV 25� | BEAUMONT STUDIOS

Marvel, through tears of laughter, at courageous members of the legal community as they debate the maxim “Be it resolved that no one should own the moon,” as humorously and persuasively as they possibly can. Where? At the annual BGuiled Debate Try­Outs, of course! Find us at the Beaumont Studios on November 25, 2022; doors open at 6:30 pm.

All proceeds to Access Pro Bono.

Tickets will sell out fast!

For ticket link and other information, see our valiant attempt at a website: www.bguileddebate.com

THE CANADIAN LEGAL GENEALOGY OF TERRA NULLIUS

SUB NOM.: IS IT TOO LATE TO SEND TERRA NULLIUS BACK TO AUSTRALIA (AND WOULD THEY EVEN TAKE IT)?

PART II

By Sarah Pike*

THE CANADIAN LEGAL GENEALOGY OF TERRA NULLIUS

As set out in Part I of this article, published in the September 2022 issue of the Advocate, in June 1992 the High Court of Australia issued judgment in its pivotal Aboriginal title decision, Mabo v. Queensland (No. 2), in which Justice Brennan engaged extensively with what he called “the enlarged notion of terra nullius”.1 As of that date, no Canadian judgment had ever referred to terra nullius 2 The first one to do so—from the Quebec Court of Appeal in R. v. Côté in May 1993—referred to Mabo once in passing. However, the second Canadian judgment to refer to terra nullius—the B.C. Court of Appeal’s in Delgamuukw in June 1993—referred to Mabo 46 times. Between 1996 and 2014, the Supreme Court of Canada referred to terra nullius in four decisions (even though the term appears in only one of the eight lower court judgments).3 Just this year, in January 2022, the B.C. Supreme Court issued a judgment with the longest analysis of terra nullius in Canada to date.

In total, 17 Canadian decisions have referred to terra nullius. Many do so because they quote an oft-cited paragraph from Tsilhqot’in or documents containing the term.4 Ultimately, as discussed below, there are only 17 substantive references to terra nullius in all of the reported Canadian jurisprudence. 5 While terra nullius came in to Canadian jurisprudence from Australia, I contend that our jurisprudential treatment of the term has not been the same and, indeed, is now on a different trajectory—one that, I suggest, is largely unhelpful to our collective understanding of our legal past.

*

I thank Hamar Foster, K.C., Stephanie McHugh, Dr. S. Ronald Stevenson and Dr. Timothy Brook for their reviews and helpful feedback on drafts of this article. Any errors are mine, as are the views I express.

Jurisprudence

Côté (QCCA and SCC)

The Quebec Court of Appeal and the Supreme Court of Canada both referred to terra nullius in judgments in R. v. Côté, in which the Supreme Court ultimately upheld the appellants’ Aboriginal right to fish.6

In May 1993, the majority of the Court of Appeal referred once to terra nullius, in the title of a 1938 article by James Simsarian, “The Acquisition of Legal Title to Terra Nullius”, cited as support for the proposition that “modern authors quite clearly dismiss the principle of the right of discovery as a means of acquiring territory”.7 In the article, published when Simsarian was a student with the Columbia Joint Seminar in International Law (a seminar discussed in Part I of this article), Simsarian had reviewed all empires from the 15th century to the 20th century. He assumed that all territories acquired by the empires had, in fact, been terra nullius and asked how the empires had justified taking possession. He concluded that discovery and symbolic acts had been sufficient to establish title prior to 1700.8

At the Supreme Court of Canada in 1996, Chief Justice Lamer, for the majority, dealt with the term terra nullius differently, using the term in a more literal way to describe an area devoid of Indigenous occupation: “In one of the mysteries of the history of New France, the Iroquois people who occupied the region at the date of Jacques Cartier’s visit in 1534 had simply disappeared by 1603. The French colonists thus claimed and occupied this particular area as terra nullius.”9

Delgamuukw (BCCA)

In June 1993, one B.C. Court of Appeal judge treated terra nullius in almost the same way as the judges in Mabo treated the concept. Although the Court of Appeal’s decision in Delgamuukw would be eclipsed by the Supreme Court of Canada’s several years later in the same case—in which no judge referred to terra nullius10—Justice Lambert (dissenting and writing only for himself on a five-judge bench) effectively incorporated the Mabo analysis into his own.11 He concluded that terra nullius had been used in British Columbia to justify a failure to recognize Aboriginal rights (and had resulted from the type of colony England had established):

In my opinion the decision of the High Court of Australia in Mabo v. Queensland decides this point in the same way as I have decided it and in the way first referred to by Professor Slattery as the Doctrine of Continuity. In my opinion the area in central British Columbia claimed in this case was no more “terra nullius” when the first colonizers arrived in that part of British Columbia than the Murray Islands were when the first colonizers arrived there.12

Justice Lambert accepted Crown sovereignty, as had the Mabo court. His “point” was that if the Crown asserted sovereignty and “adopted the common law as the law of the territory over which Sovereignty was claimed”, then the common law itself recognized, adopted and affirmed the rights and titles of the indigenous people in relation to land and in relation to their own customs and practices for control of land and for control of their other rights, except to the extent that their rights were inconsistent with the concept of Sovereignty itself, or inconsistent with laws clearly made applicable to the whole territory and all of its inhabitants, or with the principles of fundamental justice.13

Thus, British sovereignty was a given, the doctrine of terra nullius ought not to have applied and the common law ought to have recognized Aboriginal title, with the qualifications Justice Lambert set out.

Van der Peet (SCC)

The Supreme Court of Canada first referred to terra nullius on August 21, 1996, in an appeal by an Indigenous woman found guilty under B.C. fishing regulations for selling fish caught under an Indigenous food fish licence, contrary to the licence terms. (The court released its decision in Côté some six weeks later.) Ms. Van der Peet sought an acquittal on the basis that the regulatory section infringed her constitutional rights under s. 35 of the Constitution Act, 1982. In upholding the conviction, Chief Justice Lamer, for the majority, analyzed the Mabo judgment without referring to terra nullius The two dissenting judges, however, referred to terra nullius a total of three times.

Justice L’Heureux-Dubé did so while setting out the historical background of the case, referring to Indigenous peoples’ finding a “terra nullius” when they first arrived in North America, some 12,000 years before.14 Justice McLachlin, as she then was, quoted from Justice Brennan’s judgment in Mabo, summarizing that “[o]nce the ‘fictions’ of terra nullius are stripped away”, then, according to Justice Brennan, “[t]he nature and incidents of native title must be ascertained as a matter of fact by reference to [the] laws and customs” of the Indigenous people.15 She then turned to the Canadian context, declaring that the Royal Proclamation—which “expressly recognized” that British sovereignty did not deprive Indigenous peoples in Canada of their “pre-existing rights”—was evidence that “the maxim of terra nullius was not to govern here”.16 She would reiterate this 18 years later, writing for a unanimous court in Tsilhqot’in.

Marshall; Bernard (SCC)

The Supreme Court of Canada next mentioned terra nullius once, only incidentally, in a 2005 case from Nova Scotia involving Aboriginal title.17 In

Marshall; Bernard, two concurring judges again tried to come to terms with the basis on which British sovereignty had been extended and its implications for Indigenous peoples. Their only reference to terra nullius was in a quote from an article by Australian law professor Samantha Hepburn, in which Hepburn had referred to the rejection in Mabo of the enlarged notion of terra nullius 18

Tsilhqot’in (SCC)

In 2014, the Supreme Court of Canada made its most recent and most contentious reference to terra nullius—mentioning the term only once—in Tsilhqot’in, a unanimous decision written by Chief Justice McLachlin, in which she effectively repeated what she had said in Van der Peet in dissent:

A. The Legal Characterization of Aboriginal Title

The starting point in characterizing the legal nature of Aboriginal title is Dickson J.’s concurring judgment in Guerin, discussed earlier. At the time of assertion of European sovereignty, the Crown acquired radical or underlying title to all the land in the province. This Crown title, however, was burdened by the pre-existing legal rights of Aboriginal people who occupied and used the land prior to European arrival. The doctrine of terra nullius (that no one owned the land prior to European assertion of sovereignty) never applied in Canada, as confirmed by the Royal Proclamation of 1763. The Aboriginal interest in land that burdens the Crown’s underlying title is an independent legal interest, which gives rise to a fiduciary duty on the part of the Crown.19

Thomas (BCSC)

Only one judgment since Tsilhqot’in has analyzed terra nullius in any detail. In January 2022, B.C. Supreme Court Justice Kent, in Thomas v. Rio Tinto Alcan Inc., set out the longest discussion of terra nullius in the history of Canadian jurisprudence.20 He granted the First Nation plaintiffs partial relief, declaring a constitutionally recognized Aboriginal right to fish that had been significantly impaired by the regulation of the Nechako River for the purposes of hydroelectricity.21

In a section entitled “Background to Aboriginal Rights Jurisprudence in Canada” and a subsection entitled “Legitimacy of Crown Assertion of Sovereignty”, Justice Kent reviewed the Supreme Court of Canada’s 1973 Calder judgments’ analyses of the Royal Proclamation and the doctrine of discovery as articulated in two 19th-century U.S. Supreme Court decisions.22 He then inserted terra nullius into the analysis: “The doctrine of ‘discovery’ combines with the related concept of ‘terra nullius’ to bestow upon European settlers title to and sovereignty over the ‘empty lands’ which they ‘discovered’.” 23 Perhaps unintentionally, Justice Kent did two things other Canadian and Australian judges have done: he introduced terra nullius into

a history in which it did not play a role, and he conflated sovereignty over a territory with title to or within a territory.24

In this obiter dicta, Justice Kent prodded the “rationale for Crown sovereignty over land formerly owned and occupied by Indigenous peoples”, which, he noted, “has in recent decades come under scathing academic, political, and legal criticism”.25 He laid out the case that the legal justification for European sovereignty over Indigenous peoples and lands is highly problematic:26

Some argue, in my view correctly, that the whole construct is simply a legal fiction to justify the de facto seizure and control of the land and resources formerly owned by the original inhabitants of what is now Canada: see Borrows 2015, above at para. 182, and John Borrows, “Sovereignty’s Alchemy: An Analysis of Delgamuukw v. British Columbia” (1999) 37:3 Osgoode Hall Law Journal 537.27

But the First Nation plaintiffs in Thomas did not challenge Crown sovereignty “per se”; rather, they challenged “the efficacy of legislation, licences, and contracts issued or made by the Crown in a tort lawsuit against a nongovernment entity”, asserting that these were “‘constitutionally inapplicable’ as any defence to their claim”.28 Of this line of argument, Justice Kent concluded that two “harsh realities” barred the plaintiffs’ way: First and foremost is the fact that the system of law and government imported by settlers into British Columbia and superimposed upon Indigenous peoples has become firmly and intractably entrenched. It is the foundation for Canadian society as it exists today. The laws relating to ownership of land are the basis for this country’s wealth and the very foundation for its economy. It is these same laws which provide legitimacy to this Court.

The second harsh reality, closely related to the first, is that this Court is bound by the doctrine of precedent, which requires it to apply the law enunciated by the Supreme Court of Canada. If that construct or analytical framework attracts academic or political criticism, no matter how justified, this Court is nevertheless bound to apply it, subject only to incremental changes not prohibited by precedent or legislative change … 29

Justice Kent ultimately concluded that “when Crown sovereignty was asserted in British Columbia in 1846, the lands bordering the Nechako River, the Stellako River, and Fraser Lake were not terra nullius”, because they were “owned, occupied and used” by the Dakelh.30

Commissions

Two important Canadian commissions of inquiry have referred to terra nullius, asserting that it underpinned the establishment of Canada and persists in Canadian law and society today.

Royal Commission on Aboriginal Peoples (1996)

In 1996, the Royal Commission on Aboriginal Peoples (“RCAP”) issued its final report, comprising some 4,000 pages and 440 recommendations intended to enact sweeping changes to the relationship between Indigenous and non-Indigenous people and governments in Canada. The report referred several times to terra nullius as a doctrine on which Canada was settled and the basis on which Britain extended sovereignty over Canada. One definition of terra nullius that RCAP gave was a “concept … used by Europeans to suggest that they came to empty, uninhabited lands or at least to lands that were not in the possession of ‘civilized’ peoples, that were not being put to ‘civilized’ use”.31

Ultimately, RCAP made these recommendations:

The Commission recommends that 1.16.2

Federal, provincial and territorial governments further the process of renewal by

(a) acknowledging that concepts such as terra nullius and the doctrine of discovery are factually, legally and morally wrong;

(b) declaring that such concepts no longer form part of law making or policy development by Canadian governments;

(c) declaring that such concepts will not be the basis of arguments presented to the courts;

(d) committing themselves to renewal of the federation through consensual means to overcome the historical legacy of these concepts, which are impediments to Aboriginal people assuming their rightful place in the Canadian federation; and

(e) including a declaration to these ends in the new Royal Proclamation and its companion legislation.32

Truth and Reconciliation Commission (2015)

Canada’s Truth and Reconciliation Commission made similar recommendations in its final report in 2015, referring explicitly to terra nullius in four of its final Calls to Action (Nos. 45–48), including these:

45. We call upon the Government of Canada, on behalf of all Canadians, to jointly develop with Aboriginal peoples a Royal Proclamation of Reconciliation to be issued by the Crown. The proclamation would build on the Royal Proclamation of 1763 and the Treaty of Niagara of 1764, and reaffirm the nation-to-nation relationship between Aboriginal peoples and the Crown. The proclamation would include, but not be limited to, the following commitments:

i. Repudiate concepts used to justify European sovereignty over Indigenous lands and peoples such as the Doctrine of Discovery and terra nullius.

47. We call upon federal, provincial, territorial, and municipal governments to repudiate concepts used to justify European sovereignty over Indigenous peoples and lands, such as the Doctrine of Discovery and terra nullius, and to reform those laws, government policies, and litigation strategies that continue to rely on such concepts.33

Academic Analysis

In January 2022, Justice Kent felt compelled to take British sovereignty over Canada as a given, something that, as he recognized, Canadian legal academics have been challenging for decades. Some 30 years ago, Professor Hamar Foster, K.C., described the problematic foundation for this sovereignty in this way: “How the act of discovery or mere words on paper can be transformed into rights and jurisdiction over Aboriginal nations remains a mystery”.34

Canadian lawyers, judges and legal academics now employ terra nullius almost exclusively as part of efforts to expose what Justice Kent called sovereignty’s “legal fiction”.35 Many scholars shine the spotlight on Chief Justice McLachlin’s statements in Tsilhqot’in that, on the one hand, terra nullius did not apply in Canada; but that, on the other, “[a]t the time of assertion of European sovereignty, the Crown acquired radical or underlying title to all the land in the province”.36 After the Supreme Court of Canada’s decision in Delgamuukw—which did not refer to terra nullius—Professor John Borrows called this “sovereignty’s alchemy”. 37 After the Tsilhqot’in decision, he framed what he and many others38 saw as an apparent contradiction in this way:

[i]f that land was owned by Indigenous peoples prior to the assertion of European sovereignty, one wonders how the Crown acquired title in the same land by merely asserting sovereignty, without a version of terra nullius being deployed. The Crown’s claim to underlying title on this basis “does not make sense.” Some kind of legal vacuum must be imagined in order to create the Crown’s radical title. The emptiness at the heart of the Court’s decision is disturbing.39

Professor Gordon Christie also challenged the Supreme Court’s “fictional legal history”, asserting that the court’s statement concerning terra nullius was “disingenuous on several levels”, including because “[t]erra nullius – in its most insidious form – functioned to discount the very possibility that an Indigenous community could have anything like a separate, legitimate system of authoritative rule generation, one that should bind all (including the colonizers who came to it)”.40

Borrows and Christie (and others) make important points deserving of more attention. But, as Professor Douglas Sanderson recently acknowledged while continuing to challenge that sovereignty “mystery at the heart

of Canadian law”, terra nullius, “although widely used by historians in reference to legal claims made in the early modern period, did not, in fact, appear in legal documents linked to the settlement of the Americas before the nineteenth century”.41

CONCLUSION

During the colonial period (prior to 1871) and after British Columbia joined Confederation, this province’s history discloses marked examples of both Crown acknowledgement and Crown disregard of Indigenous laws and interests in land. This history does not reflect the application of terra nullius. But it is a legal history that ought to compel all B.C. lawyers (at the very least) to learn more, investigate further and reflect deeply.

In January 1873, the newly appointed, sole federal representative for Indigenous matters in British Columbia, Israel W. Powell, wrote his first lengthy report to Ottawa, describing the past 15 years of British colonial policy toward Indigenous peoples in this way: “[B]eyond giving Indians the protection of the law, and reserving certain lands for them in the settled part of the Province … no efforts have been put forth with a view to civilizing them, it having been considered that the best mode of treatment was to ‘let them alone’”.42

At the end of that year, after visiting with a Vancouver Island nation, Powell reported that they had asked “that a Treaty may be made with them and compensation allowed [for their lands]”, and he asked for instructions to do so.43 Two months later, Canada appointed Powell to a three-man Board for British Columbia tasked with arranging “under the directions of the Superintendent General all negotiations and Treaties with the Indian Tribes”.44 But Powell never received the instructions he sought.

Instead, just a few months afterward, Canada passed an order-in-council asserting that it was now “assumed that the Government does not contemplate giving the Indians of British Columbia any compensation for their lands, as has been done with the Indians of the North West”.45 A month later, Powell’s Ottawa boss, the Minister of the Interior, telegrammed to say that “no treaties or special negotiations [are] now necessary” to be made with Indigenous peoples in British Columbia.46

Are you curious? Do you have questions? I hope so.

Yet, even with this decision not to pursue treaties in British Columbia, five years later, in 1879, Powell still acknowledged and recognized Indigenous laws, particularly in relation to land. In the context of trying to determine when Indian reserves for coastal Indigenous peoples should be allotted, he cautioned:

the expense of substituting our own regulations in lieu of theirs, would be greater than the necessities of the country require – at least for the present. Indian tribes all over the coast claim hereditary rights to certain places, perhaps a hundred miles or more from where they reside.

To adjust all of these at once… before there are different and superior arrangements to enforce other than native regulations, would pretty certainly give rise to trouble. ….

[I]t would be a large and needless expense, and one of doubtful utility to proceed at once to define and allot all their reserves, especially in the wilds of the country … , with no existing machinery of the Government to supersede their own time-honored customs and regulations as to the division of territory 47

The following year, Powell reiterated his position, asserting that the federal and provincial governments did not have enough resources “to substitute their authority and provide for peace among distant or remote Indian tribes, as yet, left mostly in the enjoyment of their own laws and customs. … The different bands of Indians … on the Coast have the whole country marked out and divided, and do not allow encroachments within their boundaries by other tribes without compensation”.48

Today, a significant scholarship investigates the role that law played in empire, including by examining colonized territories for signs of “strong” and “weak” legal pluralism.49 Such examinations, among other things, allow the identification of “transformative moments”: “[s]ubtle but important shifts in the definition of colonial state law and its relation to other law [that] … occurred at various moments in the long nineteenth century, in patterns replicated across a wide array of colonial and postcolonial settings”.50 For Yale professor Lauren Benton, this identification is not only of historical interest; it also may help us, today, “to make space for other frameworks that would allow for greater legitimacy for alternative political authorities without threatening the rule of law”.51

British Columbia’s history is both shared and unique. Our colonial and provincial beginnings share commonalities with other British colonies and Canadian provinces. Yet, of course, our precise path is our own. Might it not be that by engaging in the kind of examination Benton suggests, we could identify our province’s own “transformative moments”, particularly the ones we now regret?52

My point is not that we have collectively failed to discover a utopian, legally plural society in 19th-century British Columbia. We have not. Yet should not we at least look at that society, its legal systems (both Indigenous and settler) and its use and misuse of law? Ultimately, we may discover details far worse than those in a picture painted with the broad brush of

terra nullius. But to achieve the monumental reconciliatory task at hand and account for the legal and historical injustices the state has perpetrated on Indigenous peoples in this country and province, the first step, as the Truth and Reconciliation Commission said, is to acquire an “awareness of the past”.53 This awareness—and, especially for lawyers, this legal awareness— just might allow us to imagine and construct contemporary alternatives that free us from our legal and political pasts.

ENDNOTES

1. Mabo v Queensland (No 2), [1992] HCA 23 [Mabo].

2. To the best of my research skills.

3. See R v Van der Peet, [1996] 2 SCR 507 [Van der Peet]; R v Côté, [1996] 3 SCR 139 [Côté (SCC)]; R v Marshall; R v Bernard, 2005 SCC 43 [Marshall; Bernard]; Tsilhqot’in Nation v British Columbia, 2014 SCC 44 [Tsilhqot’in].

4. See e.g. Saik’uz First Nation v Rio Tinto Alcan Inc, 2015 BCCA 154 at paras 65–66, leave to appeal ref’d 2015 CanLII 66255 (SCC). See also Ross River Dena Council v Canada (Attorney General), 2015 YKSC 33 at para 31; Uashaunnuat (Innus de Uashat et de Mani-Utenam) c Compagnie minière IOC inc (Iron Ore Company of Canada), 2016 QCCS 1958 at para 66; Uashaunnuat (Innus de Uashat et de Mani-Utenam) c Compagnie minière IOC inc (Iron Ore Company of Canada), 2016 QCCS 5133 at para 56; West Moberly First Nations v British Columbia, 2020 BCCA 138 at para 162; Procureur général du Québec c Aumont, 2021 QCCS 4081 at para 30. One court has quoted portions of the Truth and Reconciliation Commission’s 2015 Calls to Action, several of which refer to terra nullius: R v Sayers, 2017 ONCJ 77 at para 51. Courts have also quoted pleadings or argument in which references to terra nullius are made: Giesbrecht v British Columbia, 2018 BCSC 822 at para 3; Law Society of Ontario v Bogue, 2019 ONLSTH 53 at para 34.

5. I have also omitted from this analysis the Provincial Court of Saskatchewan’s reference to terra nullius in Canada (Minister of National Revenue - MNR) v Ochapowace Ski Resort Inc, 2002 SKPC 84, a matter concerning a company’s failure to file tax returns.

6. R v Côté, 1993 CanLII 3913 (Que CA) [Côté (QCCA)]; Côté (SCC), supra note 3.

7. Côté (QCCA), supra note 6 at 110.

8. Andrew Fitzmaurice, Sovereignty, Property and Empire, 1500-2000 (Cambridge: Cambridge University Press, 2014) at 320–21.

9. Côté (SCC), supra note 3 at para 47.

10. Delgamuukw v British Columbia, [1997] 3 SCR 1010.

11. Delgamuukw v British Columbia (1993), 104 DLR (4th) 470 (BCCA).

12. Ibid at para 661.

13. Ibid at para 655.

14. Van der Peet, supra note 3 at para 106.

15. Ibid at para 265.

16. Ibid at para 270.

17. Marshall; Bernard, supra note 3 at para 134.

18. Samantha Hepburn, “Feudal Tenure and Native Title: Revising an Enduring Fiction” (2005) 27 Sydney L Rev 49 at 78.

19. Tsilhqot’in, supra note 3 at para 69 [emphasis added].

20. Thomas v Rio Tinto Alcan Inc, 2022 BCSC 15 at paras 187–200 [Thomas].

21. Ibid at para 16. The plaintiffs filed a notice of appeal on February 3, 2022. At the date of the writing of this article, the appeal has not been heard.

22. Ibid at para 187.

23. Ibid

24. On this point, see Hamar Foster, “Forgotten Arguments: Aboriginal Title and Sovereignty in Canada Jurisdiction Act Cases” (1991–1992) 21 Man LJ 343 at 363–64 (discussing Felix Cohen’s analysis of the United States’s sovereignty over Louisiana but not its title to the lands, which it then had to purchase from Indigenous owners).

25. Thomas, supra note 20 at para 189.

26. Ibid at paras 194–98.

27. Ibid at para 198.

28. Ibid at para 199.

29. Ibid at paras 201–02, 204.

30. Ibid at para 335.

31. Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples (Ottawa, 1996) [RCAP Report], vol 1 at 661. See also references in vol 1 at 7, 47, 239, 584 and in vol 2 at 1, 83, 545.

32. Ibid, vol 1 at 662 [emphasis added].

33. Truth and Reconciliation Commission of Canada [TRC], “Calls to Action” (Montreal: McGill-Queen’s University Press, 2015) [emphasis added]. See also the many references to terra nullius in the TRC’s other reports.

34. Foster, supra note 24 at 385. See also Brian Slattery, “Aboriginal Sovereignty and Imperial Claims” (1991) 29:4 Osgoode Hall LJ 681. Even in Australia, where the “doctrine of terra nullius” has been denounced, concerns still exist over the justification for British sovereignty: see e.g. Daniel Lavery, “No Decorous Veil: The Continuing Reliance on an Enlarged Terra Nullius Notion in Mabo [No 2]” (2019) 43:1 Melbourne UL Rev 233.

35. Thomas, supra note 20 at para 198.

36. Senwung Luk, in his 2014 article discussing Tsilhqot’in, used terra nullius in much the same way that the Mabo court had: Senwung Luk, “The Law of the Land: New Jurisprudence on Aboriginal Title” (2014) 67 SCLR (2d) 289. Contrary to Chief Justice McLachlin’s statement, Luk described how, “[i]n effect, as a matter of policy, the Crown decided to deal with the lands of most of British Columbia as if they were terrae nullius” (at 297). He seemed to go further than this when he concluded: “[t]he denial of Indigenous land rights through the legal fiction of terra nullius is the exceptional case, most notably being the fiction under which the settler state operated in British Columbia. … The decision in Tsilhqot’in Nation decisively charts a course away from the fiction of terra nullius” (at 306).

37. John Borrows, “Sovereignty’s Alchemy: An Analysis of Delgamuukw v. British Columbia” (1999) 37 Osgoode Hall LJ 537 at 558.

38. See e.g. Felix Hoehn, “Back to the Future: Reconciliation and Indigenous Sovereignty after Tsilhqot’in” (2016) 67 UNBLJ 109; Michael Asch, “From Terra Nullius to Affirmation: Reconciling Aboriginal Rights with the Canadian Constitution” (2002) 17:2 CJLS 23; Bradford Morse, “Aboriginal and Treaty Rights in Canada” (2013) 62 SCLR (2d) 569; Robert Hamilton & Joshua Nichols, “The Tin Ear of the Court: Ktunaxa Nation and the Foundation of the Duty to Consult” (2019) 56:3 Alta L Rev 729; Felix Hoehn, “The Duty to Negotiate and the Ethos of Reconciliation” (2020) 83:1 Sask L Rev 1.

39. John Borrows, “The Durability of Terra Nullius: Tsilhqot’in Nation v. British Columbia” (2015) 48 UBC L Rev 701 at 703.

40. Gordon Christie, “Who Makes Decisions Over Aboriginal Title Lands?” (2015) 48 UBC L Rev 743 at 769–70.

41. Douglas Sanderson, “The Residue of Imperium: Property and Sovereignty on Indigenous Lands” (2018) 68:3 UTLJ 319 at 319, 322, paraphrasing Anthony Pagden, The Burdens of Empire: 1539 to the Present (Cambridge: Cambridge University Press, 2015) at 138.

42. IW Powell to Deputy Superintendent General of Indian Affairs W Spragge, 13 January 1873, printed in “Report of the Superintendent of Indian Affairs for British Columbia for 1872 and 1873”, Sessional Papers, vol 5, 2nd Parl, 1st Sess, 1873 (36 Victoria, Sessional Papers (No 23) A 1873).

43. IW Powell to Minister of the Interior, 10 December 1873; RG 10, vol 3583, f 1062.

44. PC 1873-14 (16 June 1873) and PC 1873-1625 (9 February 1874).

45. PC 1874-582 (19 May 1874).

46. As quoted in Delgamuukw v British Columbia (1991), 79 DLR (4th) 185 at 357 (BCSC).

47. IW Powell to Superintendent General of Indian Affairs, 26 August 1879 [emphasis added]; Paper No 49 in Annual Report of the Deputy Superintendent-General of Indian Affairs for 1879 at 131.

48. IW Powell to Superintendent General of Indian Affairs, 23 April 1880; RG 10, vol 3700, f 16,692, pt 2.

49. Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400-1900 (Cambridge: Cambridge University Press, 2004) at 11. See also Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 17881836 (Cambridge: Harvard University Press, 2011); Lauren Benton & Lisa Ford, Rage for Order: The British Empire and the Origins of International Law, 1800-1850 (Cambridge: Harvard University Press, 2016). In Canada, see e.g. Hamar Foster, “International Homicide in Early British Columbia” in Jim Phillips, Tina Loo & Susan Lewthwaite, eds, Essays in the History of Canadian Law, vol V: Crime and Criminal Justice (Toronto: University of Toronto Press, 1994) 41; Sidney Harring, “Indians and the Law in British Columbia” in White Man’s Law: Native People in Nineteenth-Century Canadian Jurisprudence (Toronto: University of Toronto Press, 1998) 186; Tina Loo, “Bute Inlet Stories: Crime, Law, and Colonial Identity” in Making Law, Order and Authority in British Columbia, 1821-1871 (Toronto: University of Toronto Press, 1994) 134.

50. Benton, supra note 49 at 9.

51. Ibid at 29–30, 264–65.

52. Professor Philip Gerard did this recently in “The Contrasting Fates of French Canadian and Indigenous Constitutionalism: British North America, 17601867” (2020) 7:1 L & Hist Rev 1 at 5 (concluding that “Lauren Benton’s distinction between ‘strong’ and ‘weak’ legal pluralism assists in explaining the differing constitutional outcomes for French Canadians and Indigenous peoples” after the fall of New France).

53. TRC, “Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada” (Winnipeg: Truth and Reconciliation Commission of Canada, 2015) at 7–8. Andrew Fitzmaurice, as well, provided this reason for conducting his “genealogy”: Andrew Fitzmaurice, “The Genealogy of Terra Nullius” (2007) 38:129 Austl Historical Studies 1 at 2.

GOT PRIVILEGE?

THINGS YOU DIDN’T KNOW YOU DIDN’T KNOW

By David Wotherspoon and Alim Khamis*

There are many terms of art and arcane concepts in the legal profession; lawyers toss them around as part of daily professional life. Some of those terms and concepts are not fully known despite their frequent use. This article on privilege is the first of four within the theme “Things You Didn’t Know You Didn’t Know”. Some readers, many perhaps, will know that privilege comes from the Latin word privilegium, meaning a law just for one person, or that time being of the essence has nothing to do with doing things quickly. But we hope that in reading the “Things You Didn’t Know You Didn’t Know” series, you will learn something new while refreshing your knowledge on a few terms of art and arcane concepts.

BACKGROUND

The Cambridge English Dictionary defines “privilege” as (1) “an advantage that only one person or group of people has, usually because of their position”; (2) “an opportunity to do something special or enjoyable”; or (3) “the special right that some people in authority have that allows them to do or say things that other people are not allowed to”.1 It is no surprise that the term “privilege” is often associated with some form of socioeconomic privilege.

Nevertheless, “privilege” is used in a variety of contexts. People refer to parliamentary privilege, clergy-penitent privilege, medical professional privilege, reporter privilege, absolute and qualified privilege and socioeconomic privilege. This article is concerned with categories of legal privilege—the right not to disclose protected communications in a legal context.

IS LEGAL PRIVILEGE ONLY FOR THE PRIVILEGED?

The common use of “privilege” is not the same as legal privilege. Legal priv-

* The authors wish to thank Mila Ghorayeb for her contributions to this article.

ilege identifies and classifies relationships and communications that are presumptively protected from disclosure, including communications between a lawyer and client, communications and documents prepared for the dominant purpose of litigation and communications between parties exploring settlement.2 While the derivation of these terms may be common, their use is not. Certainly, however, one need not be wealthy to enjoy legal privilege.

SOLICITOR-CLIENT PRIVILEGE

The most common form of legal privilege is solicitor-client privilege. It originates from English law during the reign of Elizabeth I. Historically, solicitor-client privilege was thought to be based in the honour and professionalism of lawyers and subsequently focused on the importance of clients being able to speak freely to their lawyers.3 The original doctrine of privilege focused on a lawyer’s duty to refrain from testifying about their communications with their clients, but over time the doctrine took on a broader scope, covering all communications (including documentary communications) between a lawyer and client intended to be confidential.4

In Canada, solicitor-client privilege was recognized in the early 20th century. The Supreme Court of Canada adopted John Henry Wigmore’s definition of privilege, in Howley v. The King. 5 This remains dominant in Canada today and is paraphrased below:6

the client must be seeking legal advice from a legal professional acting in that capacity. These communications, relating to a legal issue, are made confidentially and are protected from disclosure. The exception is if the privilege is waived.7

Solicitor-client privilege never ends unless terminated by the client.8 In other words, solicitor-client privilege continues beyond the lifetime of any litigation or transaction or the particular issue on which legal advice was sought.

Solicitor-client privilege moved beyond a rule of evidence over the past few decades and has been interpreted such that it may be protected under ss. 7 and 8 of the Canadian Charter of Rights and Freedoms. In Solosky v. The Queen, 9 the Supreme Court of Canada described privilege as a fundamental right. In contrast with the word’s Latin roots denoting a law just for one person, any Canadian can claim this privilege over confidential communications with their lawyer under the right circumstances.

While zealously protected, solicitor-client privilege can be waived, most commonly in two circumstances. The first is when the client puts the communication at issue in a legal proceeding.10 This can apply to other forms of privilege, discussed below. Privilege can also be waived when communica-

tions are disclosed to a third party not integral to the solicitor-client relationship.11

There are exceptions to the client’s right against disclosure:

•If a lawyer believes non-disclosure would compromise public safety, safety prevails.12

•If an accused’s innocence is at stake, a successful McClure application sets privilege aside.13

•Illegal communications or those made for the purpose of committing criminal activity are not protected by privilege.14

•Solicitor-client privilege may not apply in wills and estates cases when the court needs to determine the capacity or intent of a testator.15

•Legislation creates some narrow exceptions. For instance, British Columbia’s Legal Profession Act dictates that a lawyer, if required under the Act to provide information to the Law Society, must do so despite privilege. This would be in the context of an audit or investigation.16

Solicitor-client privilege does not apply simply because a lawyer is included in communications; the communication must be made for the purpose of giving or receiving legal advice. Therefore, it applies to some, but not all, in-house counsel communications with internal clients. Many in-house counsel hold different, concurrent roles within an organization (e.g., senior management positions). Solicitor-client privilege does not apply to business or policy advice that lawyers may give while performing non-legal functions within a business.

Best Practice

First, it is prudent to clearly mark documents “Confidential – Subject to Solicitor-Client Privilege” to clarify that documents are intended to be protected from use beyond the legal advice being provided. It may also be prudent to label them “Do Not Copy or Transmit” or otherwise identify restrictions as may be appropriate in the circumstances.

Second, for in-house lawyers, consider separating legal and policy/business advice into separate documents and files in order to clearly distinguish between privileged and non-privileged communications. This may be inconvenient in practice, but may save sensitive documents from later unwanted disclosure.

Third, limit the circulation of legal advice by distributing it on a need-toknow basis and on the informed understanding that it is privileged.

LITIGATION PRIVILEGE

Litigation privilege applies to communications created for the dominant purpose of litigation when litigation is contemplated, anticipated or ongoing. In many ways, it is like solicitor-client privilege, but it differs in material ways.

Litigation privilege requires that (1) the documents or communications have been prepared, gathered or annotated by counsel or individuals under counsel’s direction; (2) the preparation, gathering or annotating is done in the context of litigation; and (3) if there are multiple purposes for the documents or communications, the documents must have been created for the dominant purpose of litigation (or a reasonable prospect of litigation).17

Unlike solicitor-client privilege, litigation privilege ends when the litigation ends, absent related proceedings that would continue the privilege.

While they often overlap, litigation privilege can be established while solicitor-client privilege is not. This may be the case if the communications are not in the context of a solicitor-client relationship, but still for the dominant purpose of litigation: collections of documents for cross-examination, for example.18 It may also be because litigation privilege does not carry a key requirement that solicitor-client privilege does—namely, confidentiality.19 In other cases, both privileges are claimed concurrently,20 or in the alternative.21

Best Practice

The dominant purpose test is essential in internal investigations. Here, litigation privilege can apply regardless of whether the investigator is a lawyer, as long as the dominant purpose of that investigation is litigation.22 Consider retaining external counsel to direct or conduct any such investigation, and confirm their opinion that litigation is a reasonable prospect through documentation.23

Litigation privilege will not apply if litigation is not a reasonable prospect for the parties at the time of the communication, or if there is no evidence that litigation is being contemplated.24 Litigation is a reasonable prospect when a reasonable person, aware of all circumstances, would conclude that it is unlikely a claim will be resolved without litigation.25 It is also prudent to clearly mark documents as “Privileged – prepared for the purpose of litigation” or “Privileged – prepared in anticipation of litigation”.

Can Litigation Privilege Be Waived?

Litigation privilege may be waived when (1) litigation documents are disclosed to an outside party for purposes other than the litigation; (2) the communication between counsel and a client or related third parties is

connected to a separate communication, where selective disclosure could mislead the other party; or (3) if fairness and consistency require disclosure on account of other disclosures made by the party.26

SETTLEMENT PRIVILEGE

Settlement privilege protects settlement agreements and communications in an attempt at settlement. Its purpose is to encourage full and frank discussion between parties, whether that takes place in informal negotiations or mediation, without the fear that any admissions made or concessions given will later be held against them. This would typically include offers of settlement, and may include admissions of fact, which have been recognized by courts as attempts to compromise during settlement negotiations: “[if] the compromise fails the admission of the facts made for the purpose of the compromise should not be held against the maker of the admission and should therefore not be received in evidence”.27 This way, if negotiations fail, the communications made for the purpose of settlement will not be used against their maker.28

Settlement privilege applies in circumstances where (1) a litigious dispute exists or is otherwise contemplated; (2) parties negotiate in an attempt to settle the dispute; and (3) it is expressed or implied that the negotiations will not be divulged to the court in the event that negotiations fail.

Best Practice

While it is common to include one, do not rely on a “without prejudice” label—your correspondence (or correspondence that you have received from others) may not be privileged even if it bears that label. Further, the phrase’s absence does not prevent the relevant communication from being covered by settlement privilege.

Consider whether correspondence meets the three-part test for settlement privilege described above. If it does, the communication is likely to be privileged. If it does not, it is unlikely to be protected regardless of label.29

COMMON INTEREST PRIVILEGE

Common interest privilege applies where two or more parties have a common interest in litigation or the prospect of litigation. This often arises in respect of co-defendants. For instance, it may be raised where co-defendants intend to advance a common defence or cooperate regarding witnesses or documents. For common interest to apply, an underlying privilege (usually solicitor-client or litigation privilege) must first be established.

Best Practice

Parties regularly enter into a common defence or common interest privilege agreement to minimize the likelihood of disputes about the application of common interest privilege.

Can Common Interest Privilege be Waived?

Some cases suggest that common interest privilege, rather than being a privilege in itself, is an exception to waiver.30 Common interest privilege applies in a scenario where a lawyer confidentially discloses an opinion to another party with “sufficient common interest in the same transactions”, in which case waiver does not apply.31

That said, common interest privilege can be waived if a party who possesses it does so clearly and unequivocally with knowledge that the waiver is final.32 Before determining whether common interest privilege has been waived, it is important to first establish that an underlying privilege actually applies to the record in question.33

REPUTATION MANAGEMENT PRIVILEGE – AN EMERGING TREND?

There are circumstances where legal disputes overlap with reputation issues. For example, in a defamation claim, hiring a public relations (“PR”) specialist may benefit the client who alleges they were defamed. Where legal and PR advice intersect, can PR advice be protected by privilege?

In the United States, Martha Stewart’s lawyers hired a PR firm so that media coverage would not encourage prosecutors to charge her during criminal investigations. The firm specialized in “litigation public relations”, and its involvement would make the case controversial in an unexpected way: Could the prosecutors access communications among Stewart, her lawyers and the PR firm? The court made a groundbreaking decision: most of these communications were, in fact, protected by privilege.34

Stewart’s lawyers successfully argued that the target of the PR advice was not the public, but the prosecutors and regulators she was facing. The advice was for the purpose of creating a media environment that would not unduly prejudice her case.

Canada has had no such case, but will the law here follow the same trajectory? The starting point, of course, is that solicitor-client privilege protects legal advice between a lawyer and client. However, if giving reputational advice is integral to the lawyer-client relationship, mitigation of harm being a central concern, that would arguably make the PR firm an agent of the lawyer and extend the privilege. This may be contingent on whether the reputational manager is performing a role that the client can-

not reasonably perform. This, along with the need for the reputational manager’s advice to be essential to seeking legal advice, limits the type of PR advice that would be covered by privilege.35 The advice sought cannot be more concerned with a party’s PR or reputational management strategy than with obtaining legal advice.36 The media strategy must be a component of the legal advice itself.37

Litigation privilege may more effectively protect reputation management advice than solicitor-client privilege because its objectives are different. Litigation privilege exists to ensure the efficacy of the adversarial process and prevent premature disclosure.38 If the reputation management advice is necessarily connected to the litigation in question, it may well be protected.39

It is also possible that reputational management advice can be established as a class privilege under the Wigmore criteria if the advice meets the following requirements:

1.The communications must originate in a confidence that they will not be disclosed.

2.This element of confidentiality must be essential to the full and satisfactory maintenance of the relations between the parties.

3.The relation must be one which, in the opinion of the community, ought to be sedulously fostered.

4.The injury that would inure to the relation by disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation.40

While this criteria can plausibly be met in some cases, the courts will be reluctant to establish a class privilege if the court contemplates that privilege resulting in “occasional [injustices]” in the future.41 However, the law should be extended to cover reputation management in appropriate circumstances. Perhaps Canada will have its own Martha Stewart case that will inform the landscape of privilege.

ENDNOTES

1. The Cambridge English Dictionary, sub verbo “privilege”, online: <dictionary.cambridge.org/dictionary/ english/privilege>.

2. R v Nguyen, 2015 ONCA 278 at para 16.

3. Robert A Kastling, “Recent Developments in the Canadian Law of Solicitor-Client Privilege” (1978) 24:1 McGill LJ 115 at 115–16.

4. Ibid at 116–17.

5. [1927] SCR 519.

6. See Adam M Dodek, “Reconceiving Solicitor-Client Privilege” (2010) 35:2 Queen’s LJ 493 at 498.

7. Ibid.

8. Blank v Canada, 2006 SCC 39 [Blank]. See also R v Gruenke, [1991] 3 SCR 263.

9. (1979), [1980] 1 SCR 821.

10. See R v Shirose and Campbell, [1999] 1 SCR 465. This is a predominant theme in recent case law on privilege: see e.g. Matthews, Dinsdale & Clark LLP v 1772887 Ontario Limited, 2021 ONSC 2563; R v Smithen-Davis, 2021 ONCA 731; R v Bartel, 2021 ABPC 201; Rumacik v Hardy, 2021 ABQB 374; Ohlhauser v Kasian, 2021 BCSC 892; R v NNH,

2021 BCPC 127; Boucher v R, 2021 CanLII 27332 (NBCA).

11. Imperial Tobacco Canada Ltd v The Queen, 2013 TCC 144.

12. Smith v Jones, [1999] 1 SCR 455 at para 77.

13. R v McClure, 2001 SCC 14.

14. See R v Campbell, [1999] 1 SCR 565.

15. Goodman Estate v Geffen, [1991] 2 SCR 353.

16. Legal Profession Act, SBC 1998, c 9, s 88.

17. Raj v Khosravi, 2015 BCCA 49 at para 7 [Raj].

18. Leclerc et Banque Laurentienne du Canada, Re, 2018 CIRB 869.

19. Lamey (Litigation Guardian of) v Rice, 2000 CanLII 30189 at paras 9–10 (NBCA).

20. Huang v Silvercorp Metals Inc, 2017 BCSC 795; Gale v Halton Condominium Corporation No 61, 2020 ONSC 5896; R v Hartman, 2017 ONCJ 968.

21. Apotex Fermentation Inc v Novopharm Ltd, 1994 CanLII 16680 (MBCA); R v Codina #7, 2018 ONSC 1096.

22. Practical Law Canada (Employment), “Practice Note: Conducting an Internal Workplace Investigation” (2018), online: <ca.practicallaw.thomsonreuters. com/w-010-1347?transitionType=Default&context Data=(sc.Default)&firstPage=true>.

23. Ibid

24. McCarthy v City of North Vancouver, 2021 BCSC 2517 [McCarthy]; Salvation Army v Dhaliwal, 2022 ONSC 1447.

25. See McCarthy, supra note 24.

26. S & K Processors Ltd v Campbell Ave Herring Producers Ltd, [1983] 4 WWR 762 (BCSC).

27. Middlekamp v Fraser Valley Real Estate Board, 1992 CarswellBC 26 (CA); Hoghton v Hoghton (1852), 15 Beav 278; Scott Paper Co v Drayton Paper Works Ltd (1927), 44 RPC 151.

28. R v Delchev, 2015 ONCA 381.

29. Re Bella Senior Care Residences, 2019 ONSC 3259; Leonardis v Leonardis, 2003 ABQB 577.

30. Pitney Bowes of Canada Ltd v R, 2003 FCT 214 at para 14.

31. Igillis Holdings Inc v Canada (Minister of National Revenue), 2018 FCA 51, leave to appeal ref’d 2018 CanLII 99657 (SCC).

32. Canmore Mountain Villas Inc v Alberta, 2009 ABQB 348.

33. Power v RGMP, 2021 ABQB 877.

34. Re Grand Jury Subpoenas, 265 F Supp 2d 321 (SDNY 2003).

35. Canadian Pacific Ltd v Canada (Director of Investigation & Research), 1995 CarswellOnt 695 at para 22 (Gen Div); Hoy v Medtronic Inc, 2001 BCSC 944 at paras 42–43.

36. Andersen v St Jude Medical Inc, 2007 CarswellOnt 9590 at para 21 (SCJ).

37. Ibid at para 28.

38. Blank, supra note 8 at para 27; Raj, supra note 17 at para 7.

39. Kaymar Rehabilitation Inc v Champlain Community Care Access Centre, 2013 ONSC 1754 at para 59.

40. Slavutych v Baker, [1976] 1 SCR 254 at 260.

41. M(A) v Ryan, [1997] 1 SCR 157 at para 32.

CONSCIOUS OF THE GOOD CONSCIENCE TRUST: FURTHER THOUGHTS ON THE CONSTRUCTIVE TRUST IN WILLS VARIATION CLAIMS

By Mark Weintraub, K.C., and Polly Storey*

In our previous article in the May 2022 edition of the Advocate, 1 we identified deficits in the current dependants’ relief legislation under the Wills, Estates, and Succession Act (“WESA”),2 commonly known as wills variation claims, which permit will-makers to frustrate the reach of the legislation. This type of legislation originated in New Zealand3 and exists across jurisdictions. It permits courts to make changes to a will in favour of prescribed individuals. In British Columbia, the courts may vary a will in favour of a spouse or child (biological or adopted) when the will is deemed to be less than equitable as defined by contemporary moral standards. In our article, we noted that there were no anti-avoidance provisions in the statute, an oft-repeated criticism, such that wills variation claims can only touch assets that devolve to the estate and not, for example, assets that are transferred to trusts or otherwise the subject of legitimate estate planning. The consequence can be grave in that long-time spouses and faithful children, who have abided by the family compact, can be can effectively disinherited. As every estate litigator has no doubt encountered, a potential wills variation claimant may by all accounts succeed on the merits, but may nonetheless be confronted with an estate with no assets.

To address this situation, we considered the potential use of the constructive trust, which has at its core the concept of “good conscience”, as a remedy where will-makers structure their estates to avoid their obligations to their surviving spouses and children in unconscionable circumstances. In doing so, we noted briefly that one case had argued the “good conscience” constructive trust in the wills variation context, but that the facts did not

* The authors wish to thank Aaron Pearl for his significant contributions to the development and drafting of the initial article and response piece. We also wish to thank Alex Bogdan, articled student, for his assistance.

support a successful application.4 In addition, while the judge in that case expressed the view that Soulos v. Korkontzilas5 had not opened the constructive trust remedy to situations where there had been no wrongful conduct and the claimant could not succeed in unjust enrichment,6 we also noted that it appeared as though other case law that had considered this issue, including BNSF Railway Company v. Teck Metals Ltd., 7 and that had reached a contrary conclusion, had not been brought the attention of the judge. The landscape therefore was still barren of any considered application of the principle. As such, we endeavoured to start a discourse regarding the possible use of the good conscience constructive trust as a means of giving effect to the rights of a spouse or child deprived of a practical wills variation remedy. We therefore thank our friend, Joel Nitikman, K.C., for his contribution to the discussion through his reply to our article, appearing in the July 2022 issue of this journal.8

Our friend, after considering our analysis, concluded that a good conscience wills variation constructive trust likely could not succeed. We understand his position to be based in part on his view of the policy underlying s. 60 of WESA and on the nature of the constructive trust. We take this opportunity to comment briefly on our friend’s analysis, and to articulate why, in our view, the remedy remains due for consideration by the court in the appropriate circumstances.

POLICY UNDERLYING SECTION 60 OF WESA

In expressing concern regarding the potential use of the constructive trust, our friend refers to the policy underlying s. 60 to argue against its availability. Our friend appears to rely on two primary concerns in support of this position: (1) the “fundamental notion” of ownership, being the right to dispose of one’s property; and (2) the unworkability of reviewing transactions years later. Our view is that these issues need not bar the imposition of a good conscience constructive trust. In analyzing these matters, it assists to briefly consider how this concern is addressed in other areas of the law and in other jurisdictions.

In considering the policy basis underlying s. 60 of WESA, our friend relies on what he says is the fundamental right of an owner to dispose of property as they choose, noting that s. 60 is limited to a will-maker’s estate for good reason—namely, because British Columbia does not have a “community of property” as between spouses for family law purposes. He notes, for example, that spouses may give away or sell their assets however they choose before a separation or divorce and alludes to the “chaos” that would result if a spouse were required to justify their handling of property years later.

While it is correct that no interest in family property under the Family Law Act (“FLA”)9 crystallizes until separation, this does not mean that a spouse’s prior disposition of property is ignored by the court. To the contrary, s. 95 of the FLA addresses such situations, allowing the court to order an unequal division of family property, debt or both if it would be significantly unfair to divide the remaining property equally. In considering whether to reapportion property in favour of a spouse, the court will have regard to factors including whether the other spouse, other than in good faith, “disposed of, transferred or converted property that is or would have been family property, or exchanged property that is or would have been family property into another form, causing the other spouse’s interest in the property or family property to be defeated or adversely affected”.10 The court also has other means of addressing a spouse’s disposal of property, such as requiring a spouse to pay compensation if property has been disposed of, transferred, converted or exchanged, pursuant to s. 97(2)(c). In conducting this review, the court undertakes the kind of retrospective analysis contemplated by our friend.

In addition, as recognized in our initial discussion, the court similarly reviews certain prior dispositions of property in the dependants’ relief context in other jurisdictions. For example, in Ontario,11 anti-avoidance provisions have been adopted by statute to prevent the unjust disposition of estate assets, allowing a court to scrutinize dispositions of property by a will-maker and, depending on the circumstances, to recapture the value of such property in considering dependant relief claims.12

It therefore appears that analyzing a spouse’s prior dealings with property, whether during a spousal relationship on separation or during one’s lifetime on death, is neither foreign nor troublesome. Moreover, from a broader perspective, any difficulty in tracing assets occasioned by the willmaker’s wrongful conduct in seeking to avoid their obligations to their surviving spouse or children ought not to bar recovery by a meritorious wills variation claimant. Equity originated as a court of conscience, and will seek to do what is just in the circumstances. To allow a will-maker to succeed in undermining the very purpose of the wills variation provisions, being to require adequate, just and equitable provision for one’s surviving spouse and children, on the basis that it is complicated or time-consuming, would be to facilitate the unconscionable conduct that equity developed to remedy.

As fundamentally, however, and regarding our friend’s concern that tracing an individual’s disposition of property would run roughshod over the right to dispose of an asset as one chooses, we note that since the 19th century, dependants’ relief legislation has done exactly that—testamentary

autonomy has been required to yield to the interests of spouses and children to provide them with an inheritance that is “adequate, just and equitable in the circumstances”.13 Giving effect only to the right to dispose of property as one chooses, to the exclusion of the will-maker’s obligations, ignores the other policy interest protected by s. 60 and affirmed by the Supreme Court of Canada in Tataryn v. Tataryn. 14

THE NATURE OF THE CONSTRUCTIVE TRUST

The nature of the constructive trust is indeed a vexing question. As noted in our original piece and by our friend, the history of the constructive trust is complex, with its development going so far as to divide the Supreme Court of Canada on more than one occasion and to provoke uncertainty regarding whether the substantive trust even continues to exist in Canada.

Our friend reviews, and takes issue with, the use of a resulting trust, remedial constructive trust and substantive constructive trust in the wills variation context. We propose to deal briefly with each in turn.

Regarding resulting trusts, we respectfully disagree that such a trust could not be imposed in the wills variation context over a donee who received property from a testator. To the contrary, the jurisprudence confirms that such claims may succeed, serving to enlarge the value of the estate available for variation.15 The issue in each case is what was intended by the transferor. As our friend anticipates, a resulting trust claim could not succeed if the donor truly intended to vest beneficial title in the donee. This may be the case where the donor transfers property intending to make a gift to the donee precisely for the purpose of defeating the wills variation claims of their surviving spouse or children. It is this situation, where an established remedy is not available, with which we are concerned, and where a constructive trust based on good conscience may be engaged.

Our friend’s view is that a remedial constructive trust would not be warranted in the wills variation context. Though he correctly observes that such trusts are often imposed as a remedy for unjust enrichment, it is established that constructive trusts are not limited to remedying claims in unjust enrichment. Furthermore, unjust enrichment may serve a different role in estates cases, including to ground a separate claim for fraudulent conveyance16 or a legal (as opposed to a moral) obligation in wills variation cases.17 Where available on the facts, these may provide a plaintiff with an established remedy.

Our friend is also skeptical of the use of a remedial or substantive constructive trust on the assumption that the donee is an innocent third party, in part on the basis that it is the conscience of the donee that is at issue in

considering whether a constructive trust is available.18 We note, however, that an “affected conscience” on the part of a constructive trustee holding title to property is not required.19 In his authoritative text, Waters goes so far as to note that a trust may be enforced against “a totally innocent donee or heir who knows nothing of the source of the property”.20 Indeed Moore v. Sweet was such a case, with Justice Côté observing at the outset of her majority reasons that the case involved a “contest between two innocent parties”.21 Our view therefore remains that, as contemplated by our proposed framework, it is the donor’s conduct that could give rise to a constructive trust in the wills variation context.22 We agree with our friend, however, that the interests of third parties are relevant. Recognizing that the interests of innocent parties have historically been of concern to equity, our proposed framework incorporates such consideration. Furthermore, the reach of a good conscience wills variation trust will not exceed the entitlement of the claimant under statute, determined with reference to the will-maker’s legal and moral obligations.

Our friend also considers that imposing a substantive constructive trust over property so that s. 60 of WESA would apply implies a number of requirements. Certain of these, such as the need for a donee to have received property wrongfully, accord with established constructive trust law principles and with our proposed test for invoking the good conscience trust in a wills variation case. It is less clear to us, however, that other proposed requirements must be met, such as the need for the donee to have reported income associated with the property on their tax return. Furthermore, though our friend’s view is that a claimant seeking a constructive trust must establish that monetary damages are insufficient, the pronouncements cited in support of this position were made in the context of unjust enrichment,23 where it is not disputed that such requirement must be met. In Soulos, however, the court held only that a plaintiff must show a legitimate reason for seeking a proprietary remedy, either personal or related to the need to ensure that others like the defendant remain faithful to their duties.24 In our view, the unavailability of “estate” assets to satisfy meritorious claims made pursuant to social welfare legislation, in the presence of unconscionable circumstances as contemplated by our proposed test, should constitute a legitimate reason.

In considering when a constructive trust may be imposed, it is essential to maintain focus on the modern foundation of the constructive trust, as conceptualized by Lord Denning: such a trust is imposed “whenever justice and good conscience require it”. 25 This mandate was affirmed by McLachlin J. (as she then was) in Soulos 26 The constructive trust is a “liberal process, founded upon large principles of equity, to be applied in cases where the

defendant cannot conscientiously keep the property for himself alone”.27 Though the case law has developed frameworks for when the constructive trust may be imposed in specific instances, such as to remedy unjust enrichment, it remains a flexible equitable construct to be invoked based on good conscience.

Our view is that a constructive trust in the wills variation context follows from this core concept, and from judicial recognition that the constructive trust will be recognized beyond established circumstances. The criteria developed to consider whether such a trust may be imposed in circumstances of, for example, breach of confidence may need to adapt to fit the wills variation context. While it would be convenient for wills variation claimants to be able to invoke the established causes of action, the reality of the current legislative landscape is that the existing legal framework lags behind the needs of contemporary society, as it did for common law spouses who, until the coming into force of the FLA in 2013, had no family property rights in British Columbia under statute. In those circumstances, the court developed the constructive trust remedy to give effect to the rights of a separating spouse who otherwise would not have had recourse. As it has done for centuries, and as invited by the courts, “the law of constructive trust [will] develop … as time and experience may dictate”,28 and “it is open to a Court, ‘where good conscience so requires’ … to develop the law in this area on an incremental or a case-by-case basis”.29 Equity may therefore continue to evolve to do justice in a particular case.

There are indications that this development is already underway. Following Moore v. Sweet, courts are beginning to consider the expanded availability of the constructive trust. For example, the Ontario Superior Court of Justice recently considered the good conscience constructive trust in Hrvoic v. Hrvoic 30 There, Justice Steele considered a case involving a determination of former spouses’ interests in a company they had built together, with each having worked in the company and received equal compensation and dividends. When the couple separated, the business was not divided. Some time later, the parties’ relationship further deteriorated, and one spouse terminated the employment of the other. By that time, the limitation period for seeking an equalization of family property had expired. A trial was held to determine what percentage of the company was owned by each spouse. On the evidence, the judge found that the shares were owned equally, notwithstanding that the corporate records showed that Mr. Hrvoic held seventy per cent and Ms. Hrvoic thirty per cent.

In rendering her decision, Justice Steele took the opportunity to comment on the good conscience constructive trust. She would have held, as an

alternate basis, that twenty per cent of the shares held by Mr. Hrvoic be impressed with a constructive trust in favour of Ms. Hrvoic. The judge recognized the disagreement in the case law as to whether a constructive trust may be imposed in situations other than wrongful act/gain and unjust enrichment, and observed that “[t]he case law is unclear as to whether these two situations [of wrongful act/gain and unjust enrichment] exhaust the ‘broad umbrella of good conscience’.” She went on to set out her view that “good conscience” should encompass more than these two limited situations in appropriate circumstances,31 and noted as follows: The remedial constructive trust is an equitable remedy. I see no reason why it should be confined to only unjust enrichment or wrongful acts like breach of fiduciary duty. There are certainly other cases where good conscience may require the imposition of a remedial constructive trust, and this case is one of them.32

As such, in a case where there would have been no remedy available and where good conscience would have required, Justice Steele would have invoked a constructive trust to give effect to Ms. Hrvoic’s rights.

A similar situation may yet confront the courts of British Columbia in the wills variation context. An application of the test we propose would be a progressive and incremental development consistent with the principles animating the constructive trust and underlying dependants’ relief claims. Equity has long served as a tool to do justice in response to the changing needs of society. The wills variation context presents another opportunity for it to do so, having regard to “[t]he search … for contemporary justice” mandated by Tataryn 33 Recognizing a constructive trust based on good conscience in favour of a wills variation claimant, in egregious circumstances that require the court to act to provide a remedy, gives effect to both the principles of Tataryn and the constructive trust.

At present, resort to a constructive trust in these circumstances is occasioned by the legislature not having acted to bring British Columbia dependants’ relief law into step with other Canadian jurisdictions by introducing anti-avoidance provisions.34 Regardless of any action (or inaction) by the legislature, however, the court retains its equitable jurisdiction such that equity may nonetheless have a role to play to do justice in the individual case, mitigating the harsh results that may flow from a strict application of the law.35

We thank our friend, Mr. Nitikman, K.C., for taking the time to respond to our article. We look forward to seeing how the law may develop to give effect to “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards”36 and having regard to good conscience.

ENDNOTES

1. Mark S Weintraub, QC, & Polly Storey, “Binding the Will-Maker’s Conscience: Is It Time to Use the Good Conscience Substantive Trust in Wills Variation Cases?” (2022) 80 Advocate 357.

2. SBC 2009, c 13 [WESA].

3. Tataryn v Tataryn, [1994] 2 SCR 807 at 813 [Tataryn].

4. Mayer v Mayer Estate, 2018 BCSC 2225 [Mayer].

5. [1997] 2 SCR 217 [Soulos].

6. Mayer, supra note 4 at para 174.

7. 2016 BCCA 350 [Teck].

8. Joel Nitikman, KC, “Some Thoughts About the Wills, Estates and Succession Act and Constructive Trusts: A Reply to Weintraub and Storey” (2022) 80 Advocate 499.

9. SBC 2011, c 25 [FLA].

10. Ibid, s 95(2)(g).

11. Succession Law Reform Act, RSO 1990, c S.26, s 72.

12. In response to our friend’s point, we note that Ontario is also not a community of property regime such that family law considerations ought not to confine dependants’ relief claims to an “estate” in British Columbia.

13. Tataryn, supra note 3 at 815.

14. Ibid at 815–16.

15. See e.g. Inch v Battie, 2007 BCSC 1249; Zukanovic v Malkoc Estate, 2011 BCSC 625; Mawdsley v Meshen, 2010 BCSC 1099.

16. Antrobus v Antrobus, 2009 BCSC 1341.

17. Tataryn, supra note 3 at 822.

18. Our friend appears to base this view on paragraph 109 of BNSF Railway Company v Teck Metals Ltd, 2021 BCSC 1559, being supplemental reasons as to costs. We note, however, that this does not appear to have been the basis upon which the trial judge declined to declare a constructive trust in the circumstances: BNSF Railway Company v Teck Metals Ltd, 2020 BCSC 1133.

19. Teck, supra note 7 at paras 43–44.

20. Donovan WM Waters, Mark R Gillen & Lionel D Smith, eds, Waters’ Law of Trusts in Canada, 5th ed (Toronto: Thomson Reuters Canada Limited, 2021) at 513.

21. Moore v Sweet, 2018 SCC 52 at para 1.

22. That said, in our experience, it is not uncommon that the conscience of the donee is also implicated. Estate litigators will be familiar with cases where a determined parent or spouse crafts and executes a plan to avoid rightful claims with the involvement of a third party. Not infrequently, that third party is also aware of, and facilitates, the donor’s intent not to make adequate provision for their dependants, and participates for their own undeserved benefit.

23. Nouhi v Pourtaghi, 2019 BCSC 794 at para 26, citing Kerr v Baranow, 2011 SCC 10 at para 50; ProSys Consultants Ltd v Microsoft Corporation, 2013 SCC 57 at para 92; Li v Li, 2017 BCSC 1312 at para 227 (relying also on conversion).

24. Soulos, supra note 5 at para 45. It is acknowledged that in Teck, supra note 7, the court indicated at paragraph 83 that an applicant for any form of constructive trust must establish that a monetary award would be inadequate or inappropriate. This was based on an absence of any authority to the contrary, per paragraph 60.

25. Hussey v Palmer, [1972] 1 WLR 1286 at 1289–90 (Eng CA) [Hussey].

26. Soulos, supra note 5 at para 34.

27. Hussey, supra note 25 at 1289–90.

28. Soulos, supra note 5 at para 43.

29. Teck, supra note 7 at para 55.

30. 2021 ONSC 7537.

31. Ibid at para 45.

32. Ibid at para 52.

33. Tataryn, supra note 3 at 815.

34. Succession Law Reform Act, RSO 1990, c S.26, s 72; Dependants of a Deceased Person Relief Act, RSPEI 1988, c D-7, ss 19–20; Dependants Relief Act, RSNWT 1988, c D-4, s 19; Dependants Relief Act, RSY 2002, c 56, ss 20–21.

35. For a review of the doctrinal tension between the common law and equity, see Moore v Sweet, 2017 ONCA 182 at paras 144–52.

36. Tataryn, supra note 3 at 820–21.

THE WINE COLUMN

By Michael Welsh, K.C.*

Food without wine is a corpse; wine without food is a ghost; united and well matched they are as body and soul, living partners.

—Andre Simon

WINE & FOOD

A small conundrum of life is pairing wine with food. We all know the adage about never serving red wine with white fish, or white wine with steak or a green salad. Even those seemingly basic rules have exceptions. So how do you decide when your food and wine will be “body and soul, living partners” rather than a badly mismatched couple? Given we are in the season of large meals, especially with Christmas on the horizon, it seemed timely to contemplate.

The first question is whether you want a complementary/contrasting pairing or a congruent pairing of the two. By this I mean a pairing where there are contrasting tastes and flavours (say a crisp sparkling wine with a rich, creamy cheese) versus a pairing where the food and wine share characteristics (say rich red with a grilled sirloin steak or a lighter, more acidic red with a tomato pasta dish). Most often, white wines work best with contrasts, while red wines work best congruently. However, with contrasts one must be careful that the food is not more acidic than the wine, for the wine then tastes flat and the food bitter. This is why it is so hard to pair wines to green salads with vinaigrette dressings. Chardonnay is likely a disaster, but New Zealand Sauvignon Blanc or a bubbly may carry the day.

* Michael Welsh, K.C., carries on a litigation and ADR practice in the South Okanagan and is a bencher. The views expressed here are his own and not those of the Law Society.

Also remember that too many congruent pairings of rich foods with rich wines will tire the palate, so keep the number of courses down to two or three at most. Contrasting pairings work best with multi-course meals.

Another issue is the intensity of aromas and flavours in the food. A poached white fish does well with a lighter wine like a Sauvignon Blanc or Pinot Gris. Asian foods with their panoply of spices and heat need a wine that will cool them, which is why sweeter wines like an off-dry Riesling or Gewürztraminer are best. (A lesson I learned some years ago when accidentally biting into a large hot pepper in Thailand is to drink the sweetest thing you can find, in that case Coca-Cola, even though I hate Coca-Cola. It did the trick where water could not cut the bite.) The saltiness and spice will emphasize the sweetness and flavours of those wines, especially with East Asian curries.

Simplify a dish down to its basic dominant tastes. For example, baked macaroni has two primary components: fat and salt. So a crisp Pinot Gris or a Loire Valley Chenin Blanc or Sauvignon Blanc could be considered for a complementary pairing or a Viognier or lighter Chardonnay for a congruent pairing. Something like barbecue ribs or steak with a spicy rub are a bit more complex, as they include fat, salt, sweet and spice and perhaps a little acid. So perhaps a peppery Gamay or Syrah for congruent pairing, or a Sangiovese or Tempranillo for a complementary one. Even dishes without meat can be simplified. For example, a green salad offers acidity and bitterness; creamed corn offers fatness and sweetness. As said, the former needs a brighter, lighter wine while the latter works well with a richer wine like Chardonnay. That is why you will see suggestions of Chardonnay as the best wine with popcorn!

Another promising idea is to think regionally. If you are going to serve Spanish tapas, go with a complex Spanish red, or with your pasta, go Italian.

There is also the middle of the spectrum. Roasted or grilled salmon goes well with lighter reds like Pinot Noir or Gamay or Grenache. But it also is made for a rich Chardonnay from California.

Here are some basic rules I cribbed:

1.The wine should be more acidic than the food.

2.The wine should be sweeter than the food.

3.The wine should have the same flavour intensity as the food.

4.Red wines pair best with bold-flavoured meats like beef or lamb.

5.White wines pair best with light-intensity meats such as fish or chicken.

6.Bitter or tannic wines (most often red) are best balanced with fat.

7.It is better to match the wine with the sauce than with the meat.

8.More often than not, white, sparkling and Rosé wines create contrasting pairings.

9.More often than not, red wines will create congruent pairings.1

If you are eating at restaurant, a good idea when perplexed is to consult the sommelier, who may have selections you would not have considered. At home, once you consider the basic rules, then experiment! For, as you can tell by now, the 19th century French author Alexandre Dumas was right when he called wine “the intellectual part of the meal”.

And in a pinch, remember a good bubbly will go with just about anything (except chocolate).

Here is a selection of wines to match different foods.

DOMAINE DE LA CHAISE 2018

AOC Touraine Chenonceaux, Loire Valley, France #15350 $26.99

This Sauvignon Blanc is from plots along the ridges above the river Cher around the Loire chateâu of the same name as the appellation, Chenonceaux. The nose is perfumed with white flowers, with full-bodied notes of citrus and exotic fruit, while the flavours are wet stone and diesel minerality, lemongrass, green apple and lemon lime on the slightly leesy palate (no doubt from its extended lees contact in barrel). It is perfect for shellfish, or smoked salmon or oysters, white fish, or pastas in a creamy white sauce or perhaps a pork roast or tenderloin. You can also consider a Christmas ham.

SERGE DAGEUNEAU & FILLES POULLY FUMÉ TRADITION 2020

AOC Pouilly Fumé, Loire Valley, France #874537 $35.99

I added this as it is quite different from the La Chaise. Fans of New Zealand Sauvignon Blanc will not recognize this big and complex version (fourteen per cent alcohol). The nose is a mix of citrus fruit, particularly lime and white grapefruit, and, again, white flowers (think acacia), with some wet stone minerality. The palate is loaded with white peach, gooseberry and the same citrus, offset with a slight smokiness from barrel aging, and more streaks of minerals plus a trace of herbs. It has a lovely greeny gold hue. It will age well for another three to four years and is again perfect for shellfish, white fish and lighter poultry dishes or paired with hard cheeses. (Do not confuse it with Pouilly-Fuissé, a Chardonnay from Mâcon in the south of Burgundy.)

WILLIAM FEVRE CHAMPS ROYAUX CHABLIS 2019

AOC Chablis, Burgundy, France #25270 $37.99

Speaking of white Burgundy, this fresh and refined Chardonnay comes from vineyards in the heart of Chablis, more than half of which are Premiers Crus and Grands Crus. The wines are aged in a mix of tanks and older neutral oak barrels. It has lifted aromas of green pear, apple and lemon curd, mixed with spice, vanilla and minerals, leading on the light and fresh palate to peach, red apple, lemon-lime citrus, a touch of tangerine and more minerality in a long, smooth and clean finish. If you are an oyster fan, it has a touch of brine that will pair well with them freshly shucked, or with other seafood or a poached chicken breast.

ESSER CHARDONNAY 2018

Monterey County, CA #103820 $35.00 (approx.)

This is a very different California take on Chardonnay. It has lovely golden hue and has rich aromas of tropical fruit, yellow peach and honeysuckle with a splash of vanilla. The long and smooth palate is of fully ripe stone fruit and pineapple with a dollop of spice and more vanilla. The winery suggests having it with seafood and pasta dishes. We had it with a light lasagna filled with squash and goat cheese and ricotta, an excellent choice. Other food ideas include richer white fish like halibut, chicken with a creamy mushroom glaze or soft cheeses. Also try it with your turkey. I recently found a cache of the 2015 vintage at a local liquor store and was impressed with how well it holds up. You can order at private wine stores such as Everything Wine.

CHÂTEAU BARBELLE ROSÉ FLEURI 2019

AOC Aix-en-Provence, France #150519 $19.99

One of my favourite reasonably priced Provence Rosés, from the Aix area, this wine has a bit more structure than those from the Côtes de Provence area. Its nose is a mix of red berries and notes of honeysuckle and on the palate is a mix of light red fruit, strawberry and raspberry predominating, along with a bit of peppery spice and with a backbone of minerality and a clean and dry finish. It will go well with a Niçoise or chicken salad, pre-dinner charcuterie, soft cheeses and poached salmon, or again with ham or turkey.

HARPER’S TRAIL THADD SPRINGS VINEYARD PINOT NOIR 2019

BC VQA Thompson River Valley #271692 $26.00 (approx.)

The vineyard is named after Thaddeus Harper, the rancher who once ran

his cattle over the vineyard area in the European pioneering days of Kamloops. It has two to five years aging potential. It is a lovely pale red, with a nose displaying ripe strawberry, violets, red currant and a bit of sour cherry pie topped with vanilla. On the medium-weight palate are raspberry, more currant, strawberry jam and spice leading to medium-long finish with wellintegrated tannins. The winery suggests it be served with salmon, duck breast, chicken or classic Mediterranean cuisine such as olives, cured meats, and medium to strong cheeses. Good ideas all. Over the holiday season it will make a good sipper or again, like most pinot, match your turkey. Available in select BC Liquor Stores or online from the winery or at private wine stores. The winery lists the outlets where you can find it.

TANTALUS MAIJA PINOT NOIR 2019

BC VQA Okanagan Valley #348755 $35.00 (approx.)

Tantalus Winery in East Kelowna has made its name on Pinot Noir and this version shows why. It is fruit forward and approachable. The wine is aged 11 months in a mix of new and older neutral French oak. The nose opens with bright red berry fruit, particularly raspberry, and notes of vanilla, while the flavours are of red plum, red cherry and berries mixed with notes of cigar box and another lashing of vanilla. We had it with grilled salmon and a mix of steamed and roasted vegetables. Other ideas are duck, a mixed bean or again Niçoise or chicken salad, roasted fowl (squab, guinea hen or of course turkey) or a pork tenderloin. Find it online or in person at the winery, possibly at the Save-On-Foods wine section, or private wine stores like Everything Wine.

MONTE ANTICO 2016

IGT Toscana, Italy #907519 $18.00 (approx.)

Rated 90 points by James Suckling, this blend of eighty-five per cent Sangiovese, five per cent Merlot and ten per cent Cabernet Sauvignon fits well within the “Super Tuscan” category. Aged three years in French barriques, it is a deep ruby colour with garnet reflections, with intense aromas of red currant, raspberry, red plum and vanilla. It also has overtones of leather on black cherries and plums, with notes of green tea and tobacco leading to a long, lean finish. It has enough structure for short-term cellaring but is ready now and works best paired with food. Try it with spaghetti and meatballs, or with grilled lamb with mushroom risotto. This wine is available online from private wine stores such as Everything Wine.

ONE FORMATION SHIRAZ, GRENACHE, VIOGNIER 2018

WO Paarl, South Africa #380525 $29.99

Matured in oak for 14 months, this well-made South African blend has a deep rich colour and a nose of black plum and black currant and cherry with hints of vanilla and white pepper. The Viognier, added to fix the brightness of the colour, gives some floral notes on the nose. On the full and vibrant palate there is more dark fruit, soft spiciness with spicy notes of white pepper from the Shiraz and black cherry from the Grenache, underscored by black tea tannins and a slight nuttiness. Altogether it is complex and has a lingering finish. The winery suggests pairing it with smoked meats, venison, steak or pork. It will also go well with richer Italian dishes like Osso Bucco or southern French ones like a cassoulet.

GOLD HILL GRAND VIN FAMILY RESERVE 2015

B.C. VQA Okanagan Valley #69104 $60.00 (approx.)

From a small winery on the Golden Mile just north of Lake Osoyoos. The wine has huge alcohol (15.9 per cent). It is a Meritage blend led by Cabernet Franc and Cabernet Sauvignon (thirty per cent each), followed by Merlot and Malbec at twenty per cent each. It is a powerful wine, but from its aging has a smooth round profile with full aromas of dark fruit like blueberry, black currant, plum and cherry, mixed with tobacco, spice and hints of cocoa and vanilla. The rich flavours are predominated by black plum along with black cherry and raspberry with cigar box tobacco, a bit of ash and more spice leading to a very full and round, ripe finish. With this richness it needs a prime rib or steak or rack of lamb. The wine is available online or in person from the winery, or at BC VQA and other private wine stores.

ENDNOTE

1. Madeline Puckette, “Food and Wine Pairing Basics (Start Here!)”, Wine Folly, online: <winefolly.com/

wine-pairing/getting-started-with-food-and-winepairing/>.

NEWS

FROM

BC LAW INSTITUTE

By Tejas Madhur*

It is with great pleasure that I provide this update as the newly appointed chair of the BC Law Institute (“BCLI”). I take on this position at a time when BCLI and the legal profession are witnessing a renewed recognition of the importance of law reform in our society and a greater focus on looking at laws from a pluralistic lens. There are many new challenges and opportunities to address vital questions such as: How do we identify gaps in the law? How do we ensure that laws meet the needs of people who are not afforded power in decision making? How do laws enhance or detract from the work that we are trying to accomplish in communities?

It was these questions that first inspired me to pursue a law degree, and to deepen my commitment to law reform. I started my career as a legislative drafter with the Government of Nunavut, I was honoured to work with the Tsawwassen First Nation and I now work as an associate at JFK Law. These experiences have informed my view that the law is ultimately meant to be about interpersonal relations. Above all, outside of the dispute resolution space, the law needs to support people to make good decisions together. It is crucial that our approach to our legal work progresses as our societal needs evolve. I will lead BCLI in being forward-looking in all of its work.

As a member of the board of BCLI since 2018, I am well aware of the immense benefits of BCLI’s methodology of convening experts to work through complex legal issues. The Canadian Centre for Elder Law, a division of BCLI, has shown the value of collaborating with those who are affected by how the law operates. By learning from the lived experience of communities, our work is stronger.

We know that legal research is a major aspect of law reform work. Our staff produce rigorous, well-respected research that provides clear and

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

actionable insight on how to improve B.C. laws. In the past year alone, BCLI has produced a guide to assist lawyers in gender-diverse legal writing, a periodically updated online practical guide on elder abuse and neglect law in Canada, and study papers on a variety of topics, from public hearings to modernizing British Columbia’s child protection legal framework. We do not want BCLI’s guides and reports to sit on shelves. We are working hard to raise awareness of BCLI as a valuable resource for the profession and others engaged in legal and policy work.

Aligning British Columbia’s laws with the United Nations Declaration on the Rights of Indigenous Peoples (the “UN Declaration”) is one of the most significant law reform issues of our time. In British Columbia, the provincial government committed to the UN Declaration when it passed the Declaration on the Rights of Indigenous Peoples Act (“DRIPA”) in 2019. It will be necessary to conduct deep, transformative legal work and education to implement the adjustments required by DRIPA. We have a responsibility as lawyers and as citizens to assist with the massive law reform program to which the B.C. government has committed itself.

As Indigenous governments and the Crown work to implement DRIPA, BCLI is launching its Reconciling Crown Legal Frameworks Program. Designed to address systemic issues, the program will collaborate with a range of experts and lawyers practising in this area to explore and design solutions for DRIPA implementation. It aims to identify barriers to the flourishing of Indigenous laws and governance systems, and develop ways that the Crown legal frameworks can deconstruct and adjust in order to reconstruct and align with Indigenous self-determination. Within BCLI, the knowledge gained from this program will also reframe our approach and inform us on how to address uneven distributions of power in all of our law reform projects in the future.

It is promising to see how members of the legal community are increasingly aware of and focused on the Truth and Reconciliation Commission Calls to Action. There is much that we need to do to align our thinking as lawyers with the UN Declaration. It is time that we look at laws from a more pluralistic perspective. Moving forward as board chair of BCLI, I am excited about applying BCLI’s methodology with a fresh lens that constantly questions how we can contribute to strengthening our profession at large and to increasing awareness of the UN Declaration for the people of British Columbia. We want to become a more accommodating space that will encourage more people to come to the table and discuss law reform work with us.

2022 also marks 25 years since the founding of BCLI. Our work would not have been possible without the support of the Ministry of the Attorney Gen-

eral, the Law Foundation of BC and other funders who play an active role in advancing law reform in British Columbia and beyond. In the next 25 years, we hope to continue to build on this foundation and move toward being a more well-resourced organization. This process starts with greater support from those in the profession that rely on our materials, and we encourage all those who do to consider making a donation at <canada helps.org/en/dn/4259>.

We encourage you to keep up to date with regular news on BCLI projects by visiting our website at <bcli.org>. We also urge you to consider subscribing to our mailing list and to follow us on our social media channels. If you have any thoughts or would like to get in touch with either me or our executive director, Karen Campbell, you can reach out to us at <tmadhur@jfk law.ca> and <kcampbell@bcli.org>, respectively.

LAP NOTES

By Shari R. Pearlman*

TIPS FOR USING COGNITIVE BEHAVIOURAL TECHNIQUES TO FEEL BETTER

Cognitive behavioural therapy (“CBT”) was developed by Aaron Beck in the 1960s to help people gain perspective on unhelpful, toxic, distorted thoughts. Through CBT, individuals examine situations, thoughts, physical feelings and behaviours to help them sort through emotions, distorted thoughts and actions. CBT is often used to help people deal with depression, anxiety, anger or other strong emotions, and with relationships challenges. CBT is often used by those with clinical diagnoses such as depression, anxiety, certain eating disorders and obsessive-compulsive disorders.

One of the tenets of CBT is that negative thoughts can be protective in origin but debilitating for our mood and ability to act in healthy, helpful ways. Participants in CBT are taught to examine unhelpful thoughts, recognize distorted thinking and become solution-focused on more helpful, realistic outlooks on a situation. This allows participants to calm, feel hope and find a more balanced state of homeostasis.

Participants in CBT practised in a group or individually with a therapist can expect a short-term course of therapy, often three to six months, filled with lots of tasks and techniques to try, together with the therapist and also on their own. Participants find relief from anxiousness and depressive thoughts. Although CBT is not a cure-all for depression and anxiety, it is especially useful for lawyers because we are naturally analytical problem solvers who at least like to attempt mastery of our own challenges.

A popular CBT technique called a mood log (by CBT psychiatrist and author, Dr. David Burns), or similar exercises by other CBT specialists, has participants look at a negative or intrusive thought and determine to what

* Shari R. Pearlman, L.C.S.W., J.D., is assistant director of the Lawyers Assistance Program of British Columbia (“LAPBC”) and a lawyer counsellor there.

percentage they believe it. Then the participant will write the thought down and start to have the ability to look more objectively at the thought. Thoughts often lose their power once out of a participant’s head. Participants will rate the written intrusive thoughts as much less believable. From a list of distortions on a list the participant is given, the participant will pick what type of distortive thinking they used in first having the thought. Distortions might be catastrophizing, having black and white thinking, minimizing and more. By analyzing the thought, participants will learn to recognize distorted thinking. They will then be asked to find more helpful, positive and realistic thoughts. Over time, participants can more quickly deal with intrusive and negative thoughts and replace them with more helpful thoughts. Participants’ anxiety and depressive moods will shift.

Here are Tips on How to Use CBT Techniques

1.Expect to practise techniques throughout your day and week to establish a healthy habit and to evaluate the effects on your overall well-being. Use the same one or two techniques so that they become second nature to you.

2.Make sure that the therapy you are obtaining is from a reputable source. The CBT skills group is available to all people in British Columbia with MSP, online at <cbtskills.ca>. LAPBC is offering a four-week Cognitive Behavioural and Mindfulness workshop for depression and anxiety in November 2022—see the event page at <www.LAPBC. com> to sign up. Certified therapists in the community can be recommended by trusted sources like medical doctors and LAPBC. There are also books and resources by reputable therapists.

3.Set aside a few minutes throughout your work day to enhance your well-being. If those times are when you are most distracted or when you are switching gears and moving from one activity to the next, they will not feel like time taken from work but rather time used to help refocus back to work.

4.Infuse self-compassion into your experience to remind yourself that the tools will be helpful but that it is extremely hard to feel anxious and is extremely painful or numbing to feel depressed. Both types of feelings can be overwhelming and self-defeating. Self-compassion teaches us to be kind to ourselves as we would be to others. Gently reminding yourself that it is hard to feel anxious and depressed, and that tools can be employed but may not achieve perfection, will help you stay with the CBT practices.

In a nutshell, with a few minutes a day of practice, lawyers can learn to more objectively lessen the burden of negative thoughts and find relief from anxiousness and depressive moods.

A VIEW FROM THE CENTRE

By Richard C. Levin, Esq., C.Arb*

RESOLVING INTERNET DOMAIN NAME DISPUTES: UDRP AND THE ROLE OF INFERENCE

The Vancouver International Arbitration Centre’s subsidiary organization, the Canadian International Internet Dispute Resolution Centre (“CIIDRC”), was approved in late 2019 by the Internet Corporation for Assigned Names and Numbers (“ICANN”) to become the sixth global provider of domain name dispute resolution services. It is only the second such provider in the Western Hemisphere and the only one in Canada.

ICANN was incorporated as a non-profit organization in 1998 to establish a set of rules of procedure and protocols to address conflicts arising from an incredible new invention called the internet, particularly for trademark owners and domain name registrants. Headquartered in Los Angeles, California, ICANN has a board of directors drawn from multiple stakeholders and has developed a set of rules and procedures known as the Uniform Domain-Name Dispute-Resolution Policy (“UDRP”).

UDRP now applies to disputes involving all generic top-level domains (“gTLDs”), such as .com, .org, .edu, .net and .gov. These comprise the great majority of domain names and thus attract the majority of disputes. Some country code-specific top-level domains, like .ca domains in Canada, have adopted their own dispute resolution procedure, which is similar to UDRP.1

Without question, the issues presented by these disputes are central to the integrity of the internet. Trademarks, as online identifiers, are vitally important with the growth of e-commerce transactions. Protection of marks against cybersquatters and abusive or bad faith registrants of domain names is critical. That said, abuse of trademarks is not uncommon, but unlawfully

* Richard C. Levin, Esq., C.Arb, is the principal of Richard Levin Arbitration based in Dallas, Texas and focuses on international arbitration. He is a member of the Vancouver International Arbitration Centre’s roster of arbitrators.

overreaching trademark protection can present substantial injury to an innocent domain name holder.

UDRP is an important dispute resolution procedure that has its mechanics first in bilateral contracts between all stakeholders, including between the registrar and the registrant that acquires the domain name. That contract requires the domain name registrant to submit any third-party challenge to its domain name to a UDRP arbitration.2 UDRP and other domain name proceedings are not traditional “arbitrations” as there is not a contract between the disputing parties; rather, the obligation to submit to the proceeding is imposed on the domain name registrant by contract with the registrar.

In most jurisdictions, an entity that is injured by an abusive domain name registration actually has a choice between filing a court proceeding, such as for trademark infringement, or a domain name arbitration, such as a UDRP proceeding. Most of the time, however, the choice is not too difficult as the UDRP-type arbitration is extremely fast, streamlined and relatively inexpensive. If the claimant prevails, this results in what is essentially a mandatory injunction transferring the domain name back to the claimant. This most innovative process was designed to provide a quick, inexpensive and simple alternative to court litigation in order to protect the integrity of the internet.

The UDRP process is summary and, as noted above, streamlined, with relatively straightforward submissions by the parties (the trademark holder and the domain name registrant) and a fast turnaround by the UDRP panellists or arbitrator. The rules attendant to UDRP call for only one round of submissions for each party with evidence attached, unless the panel orders otherwise, and no in-person hearing except in extraordinary cases. Thus, there is a heavy burden on both the parties to make a strong submission (“fire your best shot”) with no benefit of discovery and a heavy burden on the panellist/arbitrator to make the best decision on a relatively limited record in a very short period of time.

The trademark itself, registered or common law, establishes a complainant’s standing under UDRP. The trademark need not be famous or distinctive; a weak mark, however, will be more difficult to assert as establishing superior rights and an unregistered mark must be accompanied by evidence of reputation or secondary meaning. The trademark will not establish relief under UDRP; irrespective of its trademark, the complainant must then establish each of the next three prongs of UDRP: (1) the domain name of the registrant is confusingly similar to the trademark; (2) the registrant has no legitimate rights in the domain name; and (3) the registrant has engaged in both abusive registration and bad faith use.3 The reg-

istrant can keep its domain name if it satisfies one of the defences in s. 4(c) of UDRP (to rebut the second prong relating to its rights and legitimate interests), essentially showing it is operating in commercial good faith.

Providers like CIIDRC provide templates for the two submissions, following rules of URDP, specifying what should be alleged and supported with annexes to support the truth of what is alleged and allow for favourable inferences. Allegations must be supported by evidence. The UDRP process is not intended to reach innocent behaviour; a registrant should, however, demonstrate its benign behaviour via documents, such as business plans showing an intention to use the domain name in good faith, or legitimate free speech rights that do not cross the line of playing unfairly in a commercial way. While the burden is high on both parties in this summary proceeding to provide proof of the touchstones in UDRP, registrant respondents appear infrequently, such that UDRP rules provide that if a registrant does not appear, “in the absence of exceptional circumstances, the panel shall decide the dispute based upon the complaint”.4 The other party’s failure to respond does not relieve the complainant of its burden of proof and is not a default as in court litigation, but failure to respond or deny facts asserted will allow the panel to make all reasonable inferences from the complainant’s alleged facts. Thus, if a complainant is the only party filing submissions, it will have a huge advantage. But when a respondent does indeed respond, its chances improve dramatically by reason of the fact that the complainant bears a significant burden of proof. Indeed, if a complainant asserts merely bald legal conclusions, its case will fail.

The process becomes not only very interesting, but also extremely innovative when looked at closely. Inference is at the heart of UDRP proceedings. Although inference is mentioned in UDRP Rule 14(b) as applying only to “defaults” (a failure to perform according to the rules—to provide evidence, for example, as specified in the rules—then a panel is allowed to make such inference as it deems “appropriate”), inference seems to pervade decision-making as the process is so speedy, streamlined and without any discovery or information exchange. One example is the above-mentioned failure to respond, and the inferences allowed in the complainant’s favour provided it has supported its complaint with evidence.

Another common example of the role of inference relates to proving the third prong of UDRP: the requirement to show bad faith registration and use of the domain name. A key area on which panels focus may be the very content of the website involving the disputed domain name and whether that content targets the complainant, such as the use of hyperlinks to a competitive product. In that case, an inference of bad faith can be made that the

registrant respondent used the complainant’s mark as leverage to play unfairly in the competitive marketplace. An inference of bad faith against the respondent is proper if it is plausible to infer that the domain name targets the complainant. The inference is all the more proper if the complainant’s mark is strong and if, for example, the registrant does not respond in the case or fails to provide its contact details in response to a demand letter.5 However, if the complainant is asserting a weak mark or if there is no competition between the parties and no evidence of targeting, leading to divergent or competing circumstances on making bad faith inferences (i.e., a flip of a coin), the case should fall in the registrant’s favour and the complainant’s case would fail.

It is logical that inference is central in these proceedings as there is no discovery, the submissions are not voluminous and the proceedings are quick. The burden is therefore that much higher on counsel not only to distill the facts and the documents, but also to come up with a short, powerful punch as their only salvo. As noted in the above-cited treatise regarding this process: “The record from which inferences can be drawn can be thought of as a combination of statements and silences. … Credibility is a significant factor in weighing statements. What a party omits [if in its control] can be equally as important as what it includes. … The party with the burden either bares its hand or fails to persuade the Panel that it should prevail.”6

To an arbitration practitioner, it is fascinating that this process was developed to provide a speedy and streamlined procedure given the importance of maintaining an internet on which we can rely. The alternative of filing a trademark complaint in court seems less attractive given the time and expense, as well as jurisdictional and discovery issues involved in that. Thus, because the complainant’s burden is significant to make a showing on each element, and because in the majority of cases there is no response, the procedure boils down to a quick, relatively inexpensive process to “flush out” bad actors or cybersquatters. But if the respondent is bona fide in its behaviour, it needs to show up.

ENDNOTES

1. The Canada Internet Registration Authority (“CIRA”) has adopted its dispute resolution policy called CIRA’s Dispute Resolution Policy (“CDRP”). As it happens, CIIDRC is a designated dispute resolution service provider for both UDRP cases and CDRP cases.

2. Registrars (such as Go Daddy) are bound by contract with ICANN to require its registrants to adhere to UDRP dispute resolution and in country code toplevel domains, as the registrar’s contract is with selfadministering authorities in each country. ICANN approves and contracts with providers, such as CIIDRC, for domain name dispute resolution services.

3. Interestingly, the Canadian CDRP requires a showing of bad faith registration for only the third prong.

4. Rule 5(f). A respected treatise reports that registrant respondents appear in only fifteen per cent of the cases: Gerald M Levine, Domain Name Arbitration, 2nd ed. (Legal Corner Press, 2019) at 551.

5. Telstra Corp v Nuclear Marshmallows (WIPO 2000, Case No D2000-0003), online: <www.wipo.int/ amc/en/domains/decisions/html/2000/d20000003.html.

6. Levine, supra note 4 at 562–63.

ANNOUNCING THE 2023 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 1, 2023. Submissions will not be returned, so authors should maintain copies of their work.

FORMAT FOR SUBMISSIONS

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

ADDRESS FOR SUBMISSIONS

Advocate Short Fiction Competition c/o D. Michael Bain, K.C., Editor The Advocate #1918 – 1030 West Georgia Street Vancouver, B.C. V6E 2Y3

JUDGES

David Roberts, K.C., Anne Giardini, K.C., and Peter Roberts, K.C. The decisions of the judges as to the literary merit of the contributions shall be final.

PRIZES

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

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

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

Winning entries will be selected by, at the latest, February 15, 2024. Contest judges may award fewer than three prizes if, in their judgment, they consider it appropriate.

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

TRANSFER OF RIGHTS

In consideration of having their fiction reviewed for: (a) possible selection as winning entries; (b) possible publication in the Advocate; and (c) possible inclusion in a selection of submissions to be published in book form;

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

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

PETER A. ALLARD SCHOOL OF LAW FACULTY NEWS

By Heidi Wudrick*

THE RIPPLE EFFECTS OF ALLARD LAW’S NEW AWARD FOR BLACK LAW STUDENTS

Recognizing the urgent need for more Black lawyers and judges in the legal profession, the Honourable Judge David St. Pierre, the Honourable Selwyn Romilly (retired justice of the B.C. Supreme Court), Vancouver lawyer Matthew Nathanson and two anonymous donors established Allard Law’s first-ever award to support incoming Black J.D. students in June 2021.

We spoke with the recipients of the inaugural award—Ateshia Irabor, Nonye Ngwaba and Stephanie Okeke—about their first year of law school, their career aspirations and the award’s impact.

NONYE NGWABA

What did receiving this award mean to you?

Receiving the award of course came with an immense sense of relief, in knowing the financial burden of my first year had been entirely alleviated.

There was also an immediate sense of enthusiasm in my pursuit of my law degree. It’s an indescribable feeling to know honourable judges in such esteemed positions believe in this cohort and are prioritizing the success of the next generation of Black legal professionals. This scholarship for me is a relief—it’s a burden lifted and it’s affirmation that I can do this.

What did you enjoy most about your first year of law school?

The first year of law school was undoubtedly challenging, but building community with my peers, particularly my Black peers, was the most enjoyable part and provided necessary support in my first year. From collaborating

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

with the Black Law Students’ Association members on the Black Pre-Law Conference to meeting for socials, I felt so honoured to be among a group of incredibly intelligent, highly confident, unwaveringly determined future Black lawyers. In the short time we have all known each other, I have found support, friendship and empowerment in my peers.

What advice would you give to prospective Black law students who are thinking about law school?

My advice to prospective Black law students would be to consider yourself always. It’s fairly easy to be immersed in grand ambitions to change the world and the legal landscape, and while I cannot overstate how important it is to be a catalyst for change, it is also important to remember that personal interest, genuine passion and your well-being should be of focus.

I would also add that with being a law student, particularly a Black law student, comes an insurmountable amount of pressure to excel, but on the other side of that is also immense reward for success. Consider your support system, ensure you have people to lean on in times when you are doubting your abilities and who will celebrate with you when you triumph over your biggest challenges.

It may seem daunting at first, entering a profession in which it seems lawyers who look like you may be scarce. I assure you, though, that there is an incredibly supportive network of Black legal professionals rooting for you and championing your success.

STEPHANIE OKEKE

What was your favourite class in your first year?

Contract Law was one of the classes I was initially most afraid of, but Professor Erez Aloni made it so enjoyable that it ended up being one of my favourite classes. I’m not sure if I would have enjoyed it as much if it weren’t for him. Even when the content wasn’t that enjoyable—simply because some of the contracts cases were so old—he had such an engaging teaching style that he made it fun!

He’d ask really interesting questions that went beyond the facts of the case. He also did what’s called “soft calling”, so you would know if he was going to call on you that day and could make sure you were well prepared. That made me want to really understand what I was reading.

What initially inspired you to go to law school?

I wanted to go to law school to make a positive change. I’m from Nigeria, and Nigeria has not always been the best in terms of justice and upholding the law. At first, I thought the way to make a positive change would be to go

into politics, but growing up I didn’t have any politicians who I looked up to. But I did know lawyers who had gone on a different path and were able to make a change. So I decided on law.

Right now I’m undecided about exactly what I will be doing after I graduate, but my end goal is to make a difference.

ATESHIA IRABOR

What did receiving this award mean to you?

Considering a lot of the systemic factors affecting Black people, it meant a lot that there was an award that recognized Black students. Law school is expensive, and that can disincentivize people from going into the legal field. This award can encourage people who are Black to pursue a legal career, if that’s something they’re interested in.

On a more personal level, I don’t even know how to describe what I felt! When I got the email, I just took such a deep breath. It really helped just knowing that first-year tuition was taken care of.

As a recipient of this award, you had the opportunity to meet with two judges who were among the award’s donors, the Honourable David St. Pierre and the Honourable Selwyn Romilly. What was it like getting to know them? It was so nice getting to talk to them and thank them for contributing to the award!

It was also nice to meet them to just see that they were normal people. That made me feel much better about looking ahead to my future. Judges, lawyers … they’re not these inaccessible people—they’re everyday people just like us, and that made my goals feel a lot more reasonable and possible. Tell us about your mentor during your first year of law school.

One of the things that Allard does is connect you with different mentorship programs. I was connected with Robert Hanson, a lawyer who works at Norton Rose Fulbright. As my mentor, he very much brought the legal world down to earth. It was another reminder that the legal field is not out of reach. It’s for everyday people!

I think mentorship is really important because you get to see what it’s like working in a specific area and whether or not that’s what you want to do. Unlike with other fields, you can’t really volunteer at a law firm. Getting specific details about how the everyday will look allows you to see if that’s something that you would enjoy.

UVIC LAW FACULTY NEWS

By Ivan Watson*

INAUGURAL GRADUATING CLASS OF J.D./J.I.D. PROGRAM

We are delighted that our inaugural cohort of 23 students from our unique joint degree program in Canadian common law and Indigenous legal orders (J.D./J.I.D.) graduated in June. Our new graduates are now poised to make an immediate and transformative impact on the legal landscape in our province and beyond.

In April, the class of 2022 gathered with family and friends to celebrate their upcoming graduation at a special recognition event hosted at the Songhees Wellness Centre in Victoria. Greetings and congratulatory messages were sent by prominent leaders from across the country, including Governor General Mary Simon, Minister of Justice and Attorney General of Canada David Lametti, British Columbia’s Advanced Education Minister Anne Kang and former senator and chief commissioner of the Truth and Reconciliation Commission Murray Sinclair.

“Congratulations to the graduating students in this unique program. They are leading the change that we hoped for when we issued the TRC Report,” said Sinclair. “I encourage them to go out into the world and to be bold and creative with their unique legal skills and knowledge.”

Interim Dean of Law and J.D./J.I.D. co-founder Val Napoleon hosted the recognition event, and expressed great enthusiasm for how the new graduates are poised to positively impact law and society.

“Indigenous law is an essential part of Indigenous peoples being peoples, and it is foundational to Canada’s multi-juridical system,” she said. “Law is an essential ingredient of every society because it is a part of governance, it is a part of how we manage ourselves and it is a part of how we are responsible to ourselves, to each other and to our global community. I hope our

* Ivan Watson is the communications officer for the University of Victoria Faculty of Law.

graduates will take with them the ability to centre Indigenous law in the world as a collaborative and principled way to solve problems, so that it is never reduced to just words on paper, because it is so much more than that.”

Looking ahead, UVic is continuing to build upon its position of leadership and will be home to the National Centre for Indigenous Laws in the coming years, with a groundbreaking event anticipated for late fall 2022.

DISTINGUISHED PROFESSOR GERRY FERGUSON RETIRES AFTER 45 YEARS

After 45 years of exemplary service, Distinguished Professor Gerry Ferguson retired this year from the UVic Faculty of Law.

“Professor Ferguson is a hugely productive and greatly impactful scholar, whose research has, over his long and distinguished career, advanced substantially our understanding of the criminal law in Canada and abroad,” note Interim Dean of Law Val Napoleon and Professor Jeremy Webber. “In addition to everything else, his research production is a model of knowledge mobilization. Not only has he greatly advanced our scholarly knowledge of the criminal law, but his research continues to shape, each and every day, to an extent beyond that of any other scholar we can think of, the administration of the criminal law in Canada. He has been a treasured mentor to a large number of his junior colleagues.”

Gerry earned his LL.B. at the University of Ottawa in 1971 and his LL.M. at New York University the following year. He began his career as a research officer at the Law Reform Commission of Canada, and as an assistant professor in the Faculty of Law at the University of Ottawa.

In 1976, Gerry joined UVic Law during its very first year in existence as an associate professor, recruited by founding dean Murray Fraser. Gerry was promoted to full professor in 1981 and served as associate dean for two terms in the 1980s. His scholarly interests have been broad, encompassing criminal law, criminal procedure, sentencing, global corruption and mental health law. He has published an Annual Review of Criminal Law now in its tenth edition, and his most recent book, Global Corruption: Law, Theory and Practice, widely cited internationally, is currently in its fourth edition. With the Continuing Legal Education Society of B.C. (“CLEBC”), he has, since 1987, overseen and co-authored the publication Canadian Criminal Jury Instructions (“CRIMJI”), and developed it from a purely print publication in its early days to an accessible, online and fully searchable publication consisting of 156 individual instructions and over 2,400 pages. This July, he retired from the CLEBC board of directors, where he had served with distinction for more than three decades.

With a reputation for fairness and integrity, Gerry has been relied on by successive deans as the “go-to person” when important tasks had to be

accomplished or sensitive issues need to be managed with tact, discretion and good judgment.

Gerry led the creation of UVic Law’s Co-operative Education program, the first co-op program at any law school in Canada. He is also pleased with his role in the renaming of UVic’s Law building from the “Begbie” building to the “Murray and Anne Fraser building” in 2001, on the occasion of the law faculty’s 25th anniversary.

Gerry deeply admires the values that the Frasers helped to instill into the law school when he started in the 1970s and that carry on to this day, including a commitment to social justice. In the early 1990s, he wrote a report and helped to establish what became the Law Society of British Columbia’s Equity and Diversity Committee, which was the first such committee for any law society in the country. He also served the profession in national and international leadership and membership roles in the National Advisory Council, Law Commission of Canada, International Society for Reform of the Criminal Law, and International Centre for Criminal Law Reform and Criminal Justice Policy, among other organizations.

Looking ahead, Gerry is both proud of all that he has achieved during his time at UVic Law and looking forward to retirement. “I’ve tried to contribute to the law faculty in every way I could through my scholarship, teaching and impact on the faculty and community,” he says. “I’d like to be remembered as someone who was respected for his integrity and selflessness. My goal has always been to contribute as fully as possible, to the best of my ability, to do things in the faculty interest rather than in my individual interest.”

JOSEPH ARVAY LEGACY FUND

Joseph Arvay, O.C., O.B.C., Q.C., who sadly passed away in 2020, was widely recognized as one of the most brilliant and successful constitutional and civil liberties lawyers of his time with a passion for public interest law and the public good. He was a great friend and supporter of UVic Law and excellent role model for students. The Joseph Arvay Legacy Fund was created in his memory to encourage and support law students who have an interest in following his visionary work in pursuing public law activities, and who show the aptitude and talent for this specialized area of law. This year, third-year law student Nick Sayed was the first internship fund recipient.

Over summer 2022, Sayed worked for four months at the B.C. Civil Liberties Association (“BCCLA”), with funding for his public interest internship provided in its entirety by the Joe Arvay Legacy Fund at UVic.

“Nick has taken on a range of assignments, including research on solitary confinement and assessing the new federal bill proposing oversight of

Canada Border Services Agency. He has also immersed himself in our community engagement work by participating alongside BCCLA counsel in a number of coalitions,” says Mara Selanders, staff counsel (policy) at the BCCLA. “He is creative, insightful and such an asset to our organization.”

Arvay Legacy Fund committee chair Gerry Ferguson, who was a close friend and colleague of Arvay, is pleased to see a student like Sayed honouring Arvay’s legacy.

“I can see Joe’s values of humanitarianism and public interest advocacy exemplified in Nick and his approach to the law,” Gerry says. “He is a passionate, articulate, dedicated and very well deserving recipient of the internship funding. I look forward with anticipation to following his career path in the years to come.”

The BCCLA is one of the oldest and most active civil liberties and human rights group in Canada. For 60 years, the BCCLA has been working in the courts, legislatures and communities to advance human rights and civil liberties. The BCCLA’s work spans a range of civil liberties issues, including police accountability, prisons and criminalization, Indigenous rights, national security and surveillance, privacy rights, patients’ rights, freedom of expression and equality rights.

Arvay advanced the work of the BCCLA throughout his career. He represented the BCCLA fearlessly on a pro bono basis for three decades in many of the most groundbreaking cases in Canadian legal history. He fought to achieve full equality for the LGBTQ+ community, established the constitutional right to physician-assisted dying for the seriously ill, and represented the BCCLA in its successful constitutional challenge to prolonged, indefinite solitary confinement in federal prisons.

The Arvay Legacy Fund committee is actively fundraising to ensure that funding is available in the years ahead to continue to support exemplary law students like Sayed, honouring Arvay’s legacy by supporting the next generation of lawyers to do the legal work that aims for equity and access to justice, and to advance the public good.

THE ATTORNEY GENERAL’S PAGE

By the Honourable Murray Rankin, K.C.*

ADVANCING RECONCILIATION THROUGH IMPROVEMENTS TO THE JUSTICE SYSTEM

As this is my first column as Attorney General to appear in the Advocate, I was asked to provide a bit of personal background by way of introduction. I have been the Minister for Indigenous Relations and Reconciliation since shortly after the 2020 provincial election. And now, with David Eby, K.C., resigning his post in an effort to become our next premier, I am honoured to have been appointed British Columbia’s Attorney General.

I studied law at the University of Toronto and Harvard and taught at the UVic Faculty of Law for over a decade before co-founding the law firm of Arvay Finlay. My practice was primarily focused on Aboriginal, administrative and environmental law matters.

In 1994, I was appointed lead treaty negotiator for the province and negotiated the first agreement in principle under the British Columbia Treaty Commission with the (then) Sechelt Indian Band. I also represented the Blueberry River First Nations in the negotiation of the first economic benefits agreement relating to natural resources revenues in British Columbia. In 1999, I was appointed Queen’s Counsel and was later a partner at Heenan Blaikie LLP.

From 2012 to 2019, I served as Member of Parliament for Victoria. In 2017, I was appointed to the newly formed National Security and Intelligence Committee of Parliamentarians and two years later, after I decided not to seek re-election, Prime Minister Trudeau asked me to chair the newly established National Security and Intelligence Review Agency, which oversees all national security and intelligence activities carried out by the Government of Canada.

* The Honourable Murray Rankin, K.C., is British Columbia’s Minister of Indigenous Relations and Reconciliation as well as Attorney General and Minister Responsible for Housing.

In 2020, I ran to become the Member of the Legislative Assembly for my community of Oak Bay-Gordon Head and was subsequently honoured to serve as the Minister of Indigenous Relations and Reconciliation. It will not be a surprise that in my first column, I would like to touch on some of the work underway to address reconciliation, particularly in the justice system.

In 2019, a unanimous Legislative Assembly passed the Declaration on the Rights of Indigenous Peoples Act (“DRIPA”). British Columbia was the first jurisdiction in North America to enact this United Nations instrument. DRIPA serves as a roadmap for transformative change; it is intended to secure a brighter future for Indigenous peoples across our province. My primary responsibility as Minister of Indigenous Relations and Reconciliation has been to ensure that the solemn commitments contained in DRIPA are translated into real action. In partnership with First Nations, Métis and Inuit peoples, we are making reconciliation a reality, with significant progress on important work, such as revenue sharing, education and skills training, culturally safe and accessible health services, affordable housing and language revitalization.

This past spring, the former Attorney General introduced the Directives on Civil Litigation involving Indigenous Peoples (the “Directives”). They are an important part of our work to implement DRIPA. The Directives were co-developed with Indigenous peoples and are aimed at supporting negotiated resolutions over adversarial court processes. When litigation is unavoidable, the Directives instruct counsel to engage honourably and to assist the court constructively, expeditiously and effectively.

The over-representation of Indigenous peoples in the criminal justice system has its roots in longstanding systemic racism and poverty; addressing this reality head-on is another key aspect of advancing reconciliation. That is why I am very glad to see continuing advancement on the BC First Nations Justice Strategy, which was developed by the BC First Nations Justice Council (“BCFNJC”), B.C. First Nations and the province, as well as the Métis Justice Strategy, which was developed by Métis Nation BC and Métis citizens. The strategies outline Indigenous-led approaches to transforming the existing criminal justice system, to provide better outcomes for Indigenous peoples.

There is much work ahead to implement these strategies, but a strong foundation has been built, based on mutual understanding and commitment to implement Indigenous-led solutions that will bring meaningful change for Indigenous peoples.

As part of the First Nations Justice Strategy, the responsibility to prepare Gladue reports is now in the hands of the BCFNJC. These reports are used

for bail, sentencing, appeals, long-term offender hearings, dangerous offender hearings and parole hearings. Ensuring Indigenous peoples have access to Gladue reports is a key part of improving access to justice, promoting Indigenous self-determination and addressing systemic racism.

In addition, the province supports eight Indigenous courts, including the court in Hazelton, which recently celebrated its first year in operation. In the last year, it had 11 sittings and sentenced ten participants. Indigenous courts offer a restorative sentencing option for Indigenous peoples involved in the criminal justice system. The courts aim to restore balance and create pathways to healing by incorporating Indigenous knowledge, cultural traditions and restorative justice practices. Providing this option for Indigenous peoples in the criminal justice system to connect with Elders in the court system and within their culture has been proven to reduce recidivism and have a life-changing impact on the individuals concerned, their families and their community.

Another way to address the over-representation of Indigenous peoples in the justice system is to make sure Indigenous peoples know their rights and are able to access the legal services that meet their needs. Indigenous Justice Centres offer free, culturally relevant legal services, primarily for criminal and child protection issues. These issues were identified as priorities by First Nations leadership. Staff at Indigenous Justice Centres take a holistic approach to helping people with legal issues, by connecting them with supports such as housing, mental health and addiction supports, employment services and health care. There are currently three operational Indigenous Justice Centres (located in Prince George, Merritt and Prince Rupert), as well as one virtual centre. Two more physical Indigenous Justice Centres will open by early 2023.

I am proud of the work that has been done to date to bring about meaningful justice reform for Indigenous peoples. I want to thank the BCFNJC, Métis Nation BC and all the Indigenous partners who have worked together to help us get here. I recognize that there is much more work ahead, but I know that by continuing to work together, we can change the trajectory of history and redress the harms done to Indigenous peoples since the advent of colonialism.

We are a well-respected, long established law firm in Nanaimo, BC. We have occupied the same location since 1973 and have a large and loyal clientele.

We are looking for a family law practitioner or practitioners to join our team. The ideal candidate(s) would have an established practice and be interested in growing it and supplementing it with referrals. We would also consider candidates who do not yet have established practices, but are intent on growing one. We offer a modern, well designed office building which contains a boardroom and newly renovated kitchen/lounge. All IT infrastructure is in place. The atmosphere is collegial and co-operative.

IF INTERESTED, PLEASE CONTACT

Iain McIver, Fabris McIver Hornquist & Radcliffe at 250-753-6661

Trevor, Jackson and Chuck E. Todd providing excellent legal services in contested wills, trusts and estates for over 50 years.

disinherited.com rttodd@disinherited.com t. 604.264.8470

NOS DISPARUS

By R.C. Tino Bella

David Arthur Shrimpton

My father passed away peacefully on May 24, 2022, having mentored many young lawyers, including me, during his several decades as a solicitor in Vancouver. David leaves behind his three sons and eight grandchildren. He was pre-deceased by his wife, Gudrun (Gudy), four years ago.

David had been born into a lawyerly family 93 ½ years earlier, in South London, England, to parents wed during the great General Strike in 1926. His father, Alfred (Fred) Shrimpton, had articled at Withers & Co. there, immediately after serving four years in the trenches during WWI, when that firm had only a handful of employees, in contrast to the over 1,000 now in 17 countries. Fred enjoyed an illustrious legal career, and eventually became chair of the Woolwich Equitable Building Society, one of Britain’s largest. He was also the lead drafter of revised building society legislation upon the conclusion of WWII, all of which led to dramatically increased home ownership in post-war Britain. David’s mother, Muriel, was one of 16 children born to Arthur Rampton, one of the founders of Freemans, Britain’s leading mail-order catalogue business. Ironically, it was fashion super-model Twiggy and not Jean Shrimpton—no relation— who was prominently featured in those catalogues in the 1960s.

Their middle son’s early years in Bromley, Kent were ones of privilege and comfort. As was the custom at the time, David was sent away to boarding school at age eight. That was when he dutifully started his weekly letter writing to his mother until her death at age 97. Dulwich Prep School was thought to be too close to possible German bombing when the war started in September 1939, so the school was relocated to the fields of Kent. The realization that the students were then right under the flight path of enemy

bombers resulted in another relocation, this time to the North Wales resort town of Betws-Y-Coed, in the shadow of England and Wales’ highest spot, Mount Snowdon. David once told me that, after he had climbed that peak, anything seemed possible, and thus began a lifelong love of the outdoors, and of mountains in particular.

For most of his teenage years, David boarded at Berkhamsted School in Hertfordshire’s countryside, where the author Graham Greene, as well as British Columbia’s 20th Lieutenant Governor, George Pearkes, had preceded him. He recalled practising marching with the Officers’ Training Corps in the school quadrangle, carrying replica wooden rifles and wearing uniforms left over from WWI.

With WWII ending as he entered his final year at school, David was spared the horrors of the battlefield. After being conscripted, he was trained as a radio mechanic with the infantry. After eight months of studies, he was shipped out to Tobruk, Libya, with the British Occupation Forces for the compulsory two years. At the Benghazi army base, he was careful to avoid the painful sunburns suffered by so many of his colleagues, as well as the food poisoning resulting from experimental sampling of local products to supplement the meagre military rations. It was there that he bought from a German prisoner of war a small treasure box in which he kept his valuables for the rest of his life, made entirely from aluminum parts of shot-down aircraft littering the desert.

Encouraged by his father, upon his discharge from army service, David began his five years of articles at a south London law firm (at the time a much more common means of being called to the bar than attending law school). Qualifying as a solicitor in early 1957, he surprised and disappointed his parents with his announcement that he wanted to be a lawyer overseas. While researching Vancouver, where a distant relative lived, David discovered to his delight that both the climate and the laws were almost identical to those of his native England.

It took David 18 months to fulfil the transfer requirements by “articling” at a small downtown firm at $125/month. He observed years later that his principal could never see clients in the afternoons, due to the consumption of various libations stored in his cavernous oak desk. David took his talent for wills and estates work first to Canada Trust and then the Royal Trust, places which at that time apparently paid more than the downtown law firms. The mountain peaks of southern British Columbia and Washington State received repeated visits, and David was very proud later in life of the “most useful of gardening tools”, being the ice pick he had used on the more challenging glacier traverses.

Gudy soon came into David’s life. They wed on New Year’s Eve, 1960. Three sons were then born in under four years while they rented a house on Beach Avenue in Vancouver’s West End. David had a short commute to the Kingsway and Knight law offices of Boucher & Sauer, where he headed up their estates division. With his house on the demolition list to make way for another mid-1960s high-rise, David noticed an advertisement for the brand new Hollyburn Country Club in West Vancouver’s British Properties. Realizing the value of such a family-oriented club (his father had been the longtime president of Bromley Cricket & Tennis Club back home), he and Gudy purchased a newish home less than a block away from it. Perhaps as a result of his experience growing up, David decided to stay at home more and took a breather from the practice of law to help Gudy raise three very active young boys. We sons can recall him always being around to help us learn to skate, swim or play racquet sports. He also took the opportunity to finally obtain a university degree, at UBC, and became active in Kiwanis and in the Cub Scout movement.

In 1970, David moved his young family to Germany for a year where he studied German at the University of Frankfurt before returning to Vancouver. The marine accident specialist firm of Macrae, Montgomery, Hill & Cunningham needed a solicitor to balance the practice, and David was soon commuting downtown.

However, a further year later, he again relocated the family, this time to his hometown of London. David was quickly accepted at a firm of solicitors there, but when he found out how low the salaries were for associates, he decided to continue his university studies, this time at the London School of Economics.

In 1975, the siren call of the British Properties brought David and his family back, and he enrolled his three sons at St. George’s School. The tuition dues necessitated a return to work, and after a decade away, he reverted to Mervyn Boucher’s Kingsway firm. David continued to exhibit an enviable work-life balance, leaving the office at 5 p.m. sharp daily in order to pick up his sons from their extracurricular activities after school. He also held executive positions at the Hollyburn Sailing Club and was an ardent supporter of St. Anthony’s Parish Catholic Church, both in West Vancouver.

Soon after Merv Boucher was elected mayor of Sechelt in 1977, David decided that it was finally time to take over his boss’s thriving practice. His associates he mentored in subsequent years included James Chow, Deborah Law, Tim Stokes, James Peters and most significantly Andrew Wlodyka, who benefitted greatly from David’s mentorship through most of the 1980s from articled student to his appointment as assistant deputy chair of the

appeal division of the Immigration Appeal Board of Canada. It was Andrew’s departure that precipitated the interruption of my world travels and return to Vancouver to become David’s right-hand man at what then became Shrimpton & Company.

There are many parent-child law partnerships, but surely few as well endowed with such pervasive harmony, mutual respect and cheerful cooperation as the one between my father and me. In the ensuing decade as we worked together, I can recall only one instance of minor disagreement with him, being in 1988 when the investment of several thousand dollars in a device then exploding in popularity, a standalone fax machine, was deemed an unnecessary expense. His compendious knowledge of many areas of solicitor’s practice was eagerly and gratefully passed on to me. At the usual retirement age of 65, he turned over his law firm to me, but without too much pressure he continued practising, albeit part-time, for 15 more years. Long vacations in his beloved VW Vanagon around the Pacific Northwest with Gudy, interspersed with tours around the world and in particular in Europe, morphed upon full retirement at age 80 into extensive cruising of the world’s oceans.

David’s long career in the law was marked by an undiminished dedication to his clients and the highest integrity in his dealings with colleagues and co-workers. He was universally well liked for his gentlemanly manner and his modesty. His advice was to the point and unerringly accurate. David had an impressive and understated ability to distill complex legal matters into sound and succinct opinions. He personified the archetypal “English gentleman” with his politeness, thoughtfulness and patience. I don’t recall a single instance when he swore or even raised his voice. David never spoke ill of anyone or anything. The worst he would say about someone was that he “didn’t care for him”.

As dedicated and conscientious as David was in the practice of law, his family members always came first—and it must be said, they often returned the favour. Gudy would occasionally join his commute to work on short notice to pinch-hit for a sick staff member, though she did get caught out answering the phone at least once using her former employer’s name from decades ago, “British European Airways”! One of David’s proudest moments was in 1997 when he and his sons whistled and cheered as Gudy made her way across the Chan Centre for the Performing Arts stage to receive her first-class university degree at age 67, after a decade of him having encouraged her through post-secondary schooling. In sharp contrast to his privileged upbringing and extensive educational opportunities, Gudy had ended her schooling before her teen years, thanks to the requirements of the Nazi war effort, and now she too finally had her UBC degree.

With the sudden passing of his lifelong best friend, constant travel companion and irreplaceable love in 2018 after almost 60 years together, life just wasn’t the same without Gudy. David slowed down noticeably, despite the excellent care at the long-term care facilities. COVID most certainly had an impact, with the enforced isolation for lengthy periods, and then there were the consequences of catching the virus at least once, and likely twice. Gudy’s wait for David ended on May 24 of this year, with the return to her side of her British gentleman, proud Canadian and longtime cherished member of our profession.

Peter Shrimpton

Robert Harry Spring

Bob Spring died on June 30, 2021. This obituary has been written by a miscellany of people: David Roberts, K.C., his one-time law partner; Linda K. Robertson, who was general counsel at the Insurance Corporation of British Columbia (“ICBC”) when Bob worked in its corporate law department; his children; and Bob himself. To the best of our knowledge, Bob is one of only two members of the bar who wrote their own obituaries for the Advocate *

Bob was born in Vancouver on September 29, 1935. His father was Harry Spring, a well-known Vancouver lawyer who was the last surviving member of the B.C. bar to have appeared before the Privy Council (Sigurdson v. British Columbia Electric Railway, [1952] 7 W.W.R. (NS) 35). His mother, Connie, was a woman with wide interests; she was a member of the Vancouver Board of School Trustees from 1961 to 1970 and its chair in 1964.

Bob earned his law degree from UBC in 1960. He went on to article to one of the partners at the firm then known as Bull, Housser, Tupper, Ray, Guy and Merritt. He was called to the bar on September 29, 1961 and immedi-

* The other of whom we are aware was Jack Potter: (2006) 64 Advocate 570.

ately went into practice with his father. The very next day, Harry Spring went on holiday for three weeks in Mexico, leaving his son to run the practice in his absence.

Bob inherited a large part of his father’s practice, which consisted of a very viable corporate/commercial practice, along with some insurance defence work, though Bob himself was never known to have crossed the threshold of any courtroom since the occasional chambers application when he was a student. Knowing that litigation was not his long suit, if he saw a case heading for trial, he would brief one or other of the counsel in the firm whom he knew would do a better job. Bob was knowledgeable, diligent and superlatively conscientious, and he built up a great following of grateful clients. Like his father, he was totally incapable of panic.

Bob’s own contribution: Bob lived in the Dunbar and Kerrisdale suburbs of Vancouver until 2001, when he and his spouse Janice (née Gibson) moved to “the farm”, their retirement home in Maple Ridge.

Janice was the love of his life. She predeceased him in 2005 and was remembered every day. He is survived by his loving children, Steven (Susan), Bruce and Janene (Pierre), as well as his four wonderful grandchildren, Gordon, Sarah, Greg and Allison.

Bob was quietly proud of his accomplishments during his life, starting with qualifying as the first scout to reach the level of King’s Scout in the 52nd St. John’s (Shaughnessy) Scout Troop in Vancouver, in his teens. The day he enrolled in his first year of post-secondary studies at UBC, he enlisted in the Canadian Officers’ Training Corps. Later in his years in the Army Reserve, he attained the rank of captain and was the adjutant of the 15th Field Artillery Regiment, Royal Canadian Army (“RCA”) in Vancouver. Following retirement from his professional career, he became a volunteer, and in later years, a trustee of the 15th Field Artillery Regiment RCA Museum & Archives Society. Bob developed a fascination for reading and learning as much as he could about the participation of Canadian Armed Forces in 1943 in the Joint U.S./Canadian operation to take back the island of Kiska in the Aleutian Islands, occupied by the Japanese Imperial Army in 1942. His interest and research over a number of years focused in particular on the history and training of the 24th Field Artillery Regiment, RCA, the regiment in which his father, Harry, served as an officer during the invasion of Kiska.

A longtime goal (even obsession) for Bob was to ensure that a plaque containing correct information was placed beside a Japanese naval gun his father’s artillery regiment brought back from Kiska to the Vernon, B.C. army

camp in early 1944. The gun had been designated a memorial to the four Canadian soldiers who had died on Kiska. He spent a number of years persuading the authorities to correct the information on the plaque.

During the youth and teen years of his children, of whom he was extremely proud, Bob was active in the Dunbar Soccer Association, and held the position of referee-in-chief for seven years.

Professionally, he practised law, first in partnership with his father (who taught him well to treat all clients with respect and never to overcharge), and then with David Roberts, Robin Brammall and Hugh Ladner, primarily in the fields of insurance, corporate and commercial law for 30 years. His firm merged with McRae Montgomery, and then when it closed its doors, he and Robin Brammall practised together in premises next to the Arts Club Theatre in south Granville. He was also a member of the bar of the Yukon for a number of years and served as a member of the Discipline Committee of the Law Society of the Yukon. Shortly after retiring from private practice in 1991 he joined the corporate law department at ICBC, where he was a solicitor for ten years until the then-mandatory age for retirement. For a portion of that period, he was deputy general counsel of ICBC (the first person appointed to that position). In 2011, Bob was honoured by the Law Society of British Columbia at a reception for members of 50 years’ standing in the society.

Bob maintained a membership in the Medical Legal Society of B.C. throughout the 1960s and into the mid-1970s, when the society became inactive. He was one of four or five lawyers and physicians who in 1980 succeeded in resurrecting interest in that society and he became its secretary. He served the society in that position for 18 years, before he asked to be relieved of those duties. During that period, he was one of the two individuals who founded a national (unincorporated) body of medical legal societies, known as the Canadian Association of Medical Legal Societies, and was its secretary for ten years. On retiring from the executive of the Medical Legal Society of B.C., Bob was delighted to be made an honorary life member of the society. He kept up his interest in it for the rest of his life.

For seven years he was an appointed member of the Board of Variance for Bowen Island, where he owned a summer cottage. Prior to that appointment, he served a number of years on the executive of the Bowen Island Improvement Association.

He was an alumnus of the Alpha Omega chapter of the Phi Kappa Sigma fraternity.

Bob’s credo in life was to live it with love, compassion, honesty and humour, but most of all, fully. This became evident as Bob collected up a wide variety of lifelong friends.

Linda K. Robertson’s contribution:

Bob Spring was closing up his law practice in south Granville in 1991, planning on retiring early, when he was asked by John Leighton if he would be interested in working in the corporate law department at ICBC. John, the second employee hired to work for the brand new corporation back in 1972, was retiring from ICBC and thought corporate law could benefit from having another more senior lawyer to balance out the younger lawyers working there.

Bob was intrigued and came in for an interview. He had worked in his own law firm along with other lawyers, having taken over his father’s practice after his father retired. When asked why he was closing his practice and retiring, he said it was because it wasn’t fun anymore. When asked how long he might want to continue practising law, he said, “I will stay as long as I’m having fun.” Well, lucky for us, he had fun and he stayed for ten years until retiring at age 65.

Bob was the perfect addition to the corporate law team. He was kind, generous with his time, hardworking—an excellent lawyer with a broad legal background. He loved all his ICBC clients, and he never got stressed or in a flap about anything. We loved him. And he loved working as a lawyer and senior mentor as part of a team who all shared the same client.

Private practice as a lawyer can sometimes be lonely, and you must solve all the day-to-day business issues yourself. At ICBC he was amazed that when he had a computer problem, there were dozens of people available in IT who would come immediately to solve it. If he had a question about an unfamiliar area of law, there was another lawyer next door who also worked on similar issues. If he needed help searching for something, a legal assistant would come to his aid. Younger lawyers wandered in to bounce ideas off him.

He took over managing the department for six months when I abruptly and unexpectedly left one day to have a baby. And though he had only been with us for less than a year, he moved smoothly into that role. He formed a particularly strong bond during that time with corporate law’s then vice president, Don MacLean. They were of a similar age, and Bob looked forward to their weekly meetings. And Bob always sent me a happy birthday message, every year on my son’s birthday, to mark the day I suddenly “deserted him”, leaving him in charge.

Bob never missed the twice-yearly ICBC alumni lunches held in North Vancouver.

One of Bob’s more interesting habits was that he needed only four hours sleep a night. He arrived at work every morning (night?) at 4 a.m., having

gotten up at 2 a.m., and then worked through to 5 p.m. every day. We told him he didn’t need to arrive so early—“Sleep in, Bob, to maybe 5 a.m.,” we used to urge. But Bob said, “I’ve always arrived at my office at 4 a.m., so I can’t change now.” The benefit was that Bob always had fresh coffee ready every morning before 8 a.m. when others arrived.

Bob also grew hyacinths over the winter in his greenhouse, and early every March pots of sweet-smelling hyacinths appeared on desks to announce the new season. Whenever I see one, I think of Bob. I always thought his last name of “Spring” was well chosen.

Bob was a gentleman in all the best meanings of that word—a prince of a man. We were lucky to have him as our friend and colleague. He will be missed.

K. Robertson, David Roberts K.C., Bob Spring, and Steven, Janene and Bruce Spring

George Perrin Cassady, RCN(R), Q.C.

George (Skip) Perrin Cassady was born on December 12, 1931 and after living a full and productive life passed away on February 17, 2022.

When I first joined Cassady, Insley, Lauener & Burgess in 1989, I asked Mr. Cassady how he earned the nickname “Skip”. He told me that because his father, George L. Cassady, DSC, K.C. was a grand mariner and skipper in the Navy, he was often referred to as the “Skipper”. When George P. Cassady was born, his father and his father’s friends dubbed George P. as the “little skipper”. Throughout his life, George Perrin Cassady was affectionately referred to as “Skip” or “Skipper”. In addition to both being naval officers and lawyers, Skip and his father shared a beautiful, infectious and distinctive smile. Many of our clients who see Skip and his father’s portraits proudly displayed in our boardroom comment on how they both look like the Hollywood movie stars of old.

Linda

Skip was born in Vancouver, but he lived most of his life in the City of New Westminster. He and his family were dedicated in every way to serving the community. Skip once told me how his parents established a soup kitchen on their back porch, offering soup and whatever extra food they had to the many destitute individuals who lived and passed through the city during the Depression. It was obvious to me that Skip learned to be a good and generous citizen at the knees of his parents.

Skip graduated from Duke of Connaught High School and, in 1956, from UBC law school. He loved to travel and spent the next year travelling throughout Europe and into the Kingdom of Jordan on his motorcycle before returning home to commence his legal career with his father and F. Craig Munro (later Mr. Justice C. Munro) at the law firm of Cassady & Munro.

Skip attended Royal Roads University in Victoria for naval training. There, he received the Royal Naval Sword presented by HRH Prince Philip as the top cadet in western Canada. Before retiring in 1962 from the Navy, Skip was promoted to Lieutenant (RCN, R) and became a Gunnery Officer on the HMCS Discovery (Vancouver).

In 1958, Skip and James Insley became partners of the firm. He later partnered with John P. Lauener and Edward (Ted) Burgess. Ted remembers Skip fondly and with respect: he recalls Skip as a loyal and hardworking partner. In 1983, Skip was appointed Queen’s Counsel. He was also selected as the Official Administrator for the County of Westminster.

Skip always set a high example for myself and the other young lawyers. It was common to find Skip at his desk in the office on Saturday mornings putting in the extra hours for his clients. When the firm celebrated its 100th anniversary in 2011, it was with great pride. It was a testament to Skip that many former lawyers and staff members, along with many clients and colleagues in the legal profession, attended this celebration. To this day, I meet with clients (some of whom are third and fourth generations with the firm) who comment on how Skip had personally assisted them and their family as their lawyer and through his and Marilyn’s active contributions in the community.

Skip married Marilyn Elizabeth Pipes on April 22, 1960. He affectionately referred to Marilyn as the “love and anchor of [his] life”. Skip and Marilyn had three children: Timothy, Jane and Michael. They also had five grandchildren: Perrin Finlay, Siena Cassady, Maya Cassady, Claire Cassady and George Cassady. Skip enjoyed the affection, wit and intelligence of all of his offspring—they made him very proud.

Skip’s community involvement was vast. It included being the president of several local groups including the New Westminster Bar Association, the

New Westminster Chamber of Commerce, the Hyack Festival Association and the Westminster Club. He was a member of the Queensborough Bridge Authority, the New Westminster Gyro Club, the New Westminster Tennis Club and the Vancouver Golf Club (Coquitlam). He was a 40-year member of the New Westminster May Day Dancers, a life member of the Nature Conservancy of Canada, a longtime member of the Vancouver Lawn & Tennis Club and a member of the New Westminster Police Commission. He was an active member of Holy Trinity Cathedral and served as the “morning greeter” for many years even after moving away from New Westminster. He would often volunteer to chauffeur the elder members of the congregation to church on Sunday.

Skip was an athlete who loved and supported all manner of sports. He was a longtime season ticket holder of the Canucks. He played an active role in the BC Senior Games in New Westminster.

Skip and Marilyn were both very active tennis players. They both played regularly at the Vancouver Lawn & Tennis Club well into their senior years, and by all accounts were very good players! Skip frequently told me that Marilyn was a better player than he was. They would often travel to Palm Springs during the winter months to play golf and tennis. They also enjoyed attending both the French Open and the US Open.

Skip’s love of travelling continued throughout his life. Marilyn and Skip travelled the world together seeing attractions on five out of the seven continents.

In addition to being devoted to his family and community, Skip loved good red wine, quality chocolate and cars. One of his favourite pastimes was to try to locate the best-tasting red wine for the lowest possible price. On occasion, when I entered Skip’s office, I would find him enjoying a piece of chocolate—always in moderation. I knew him to keep a ready stash in his desk drawer. I recall that both Mr. Cassady, Sr. and Skip’s vehicles were often featured in local parades, as well as used for weddings and various other social events. One of Skip’s favourite vehicles was his 1962 Lincoln Continental.

Skip retired from the practice of law in 2000, but that did not stop his dedication to British Columbia and Canada. Skip continued unselfishly to give and support his family, friends and community. His warm and cheerful personality brightened every social occasion he attended. His legacy is strong and will not be forgotten. He will be remembered as a wonderful gentleman. He had an unassuming manner and was always attentive to those who engaged him. Thank you, Skip, for everything!

Leggett

Dorie-Anne

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NEW JUDGES

By R.C. Tino Bella

The Honourable Judge Scott Mulder

On January 31, 2022, Scott Mulder was appointed as a Provincial Court judge, to sit in Quesnel. Due to pandemic delays, his welcoming ceremony was not held until July 12, 2022.

Scott grew up in Kitimat where he lived with his parents and two sisters. He graduated from high school with a heavy emphasis on the hockey curriculum sprinkled with some thespian interludes in Shakespearian drama. He went on to attend the University of British Columbia, transferred to McGill and graduated with a bachelor of commerce degree. From Montreal, he returned to British Columbia to attend the University of Victoria Faculty of Law, from which he graduated in June 1997.

Following graduation, Scott returned to northwest British Columbia and articled with Warner Bandstra Brown in Terrace. He remained at the same firm for the balance of his practising tenure. His professional experience was typical of smaller community litigators in that he dealt with a wide variety of clients and practice areas. This included a smattering of civil litigation, as well as extensive family and criminal practices in both the Provincial and Supreme Courts of British Columbia. His experiences included acting as counsel for the director on child protection cases, as counsel with a local First Nations community and as counsel on some human rights matters.

Scott’s practice style was thorough, and if matters ended up in court, it was understood that settlement was not an option. He was efficient and pointed in both his examination of witnesses and submissions.

The real interests of his life are his spouse Rachel (also from Kitimat) and their three active children, the youngest of whom just graduated from high

school. They are all gifted athletes in their own right and appear to be eclipsing their father’s hockey aspirations, in no small measure due to their parents’ endless support.

Scott has played hockey for most of his life, and from that flowed his significant contribution to community life. While maintaining a busy legal practice and raising a family, Scott coached an estimated 25 different hockey teams, and approximately nine community rep-travel teams. In his last year of coaching in Terrace after having been appointed to the bench, he coached the U-18 team to a provincial gold medal; his son scored the final winning goal. In addition to coaching hockey, Scott also coached soccer and softball.

The travel commitments required to coach hockey, especially rep teams in small northern communities, are difficult to appreciate. Most hockey seasons run from September through March, and Scott was usually on the road every other weekend for coaching obligations. This commitment and dedication to coaching built countless relationships with young people for whom he was both example and teacher. His competencies put him on the local hockey association executive for many years.

Scott’s practice, family and life experiences, along with a sharp mind and conscientious attitude, make him an exemplary resource for the Provincial Court and those appearing before him.

The Honourable Judge Susan Sangha

Our partner and dear friend, Susan Sangha, was appointed as a judge of the Provincial Court on March 7, 2022. Upon learning of her appointment, we were initially delighted, until being struck by the realization that our firm had just lost part of its soul. No longer would we have Susan to impart her sage advice during troublesome times. Gone is the sight of Susan filling a dance floor with reluctant hoofers at the firm holiday party. Watching Susan single-handedly eject intruders at our firm retreats would now be a thing of the past. Our only consolation was that we knew the Provincial Court was about to be blessed with an extraordinary talent.

Susan was born on May 20 in a year not to be revealed. What can be revealed is that Susan appears about twenty years younger than her age. Her formative years were spent in the east side of Vancouver, back in the days when East Van wasn’t “hip”. It was there that she developed her street smarts and the ability to stand up to just about anyone. She attended Killarney Secondary School, where she excelled academically and began to develop the leadership traits she has become known for. In her senior year, she served as student council president and was the recipient of numerous scholarships, including the award for top all-round student, the highest and most prestigious award offered at Killarney. After graduation from high school, Susan attended the University of British Columbia for her undergraduate studies, majoring in political science. Of course, she was on the dean’s list. After acing the LSAT, she moved on to UVic Law School, where she graduated in 1996.

During her time at UBC, a 22-year-old Susan was looking for part-time work and sought the assistance of a friend whose younger brother worked in the services department of Alexander Holburn Beaudin + Lang LLP. Money was tight, so Susan was not too particular about the nature of the work, as long as it brought in the extra dollars needed to fund her education. And so, in 1992, Susan began working in the photocopying room and as a receptionist at Alexander Holburn. Her starting wage was a whopping $10 per hour. However, as her ambition was to become a lawyer, working in the surrounds of a downtown law firm was a bonus for her. Little did she know that she would end up spending close to 30 years of her life at the same place.

Following Susan’s graduation from law school (where she was yet again the recipient of several academic awards), she clerked with the Supreme Court of British Columbia and then began her articles. Not surprisingly, she excelled. In November 1997, she was called to the bar and became an associate of the firm, working in a combined practice of insurance litigation and labour and employment law. She was loved by her clients almost immediately. They saw in Susan not only a lawyer of the highest intelligence but also one who cared deeply about their problems.

Susan is a self-described perfectionist, and this trait was never more clearly exemplified than when she conducted her first summary trial shortly after her call to the bar. As always, Susan was meticulously prepared for the hearing, but the supervising lawyer had perhaps not adequately warned her of the high hurdle faced by defendants in convincing a court to dismiss an action summarily. She did not succeed and was devastated by the loss. Upon her return to the office, she decided to write a lengthy note to her mentor expressing how horribly she felt for disappointing both him and the client. Of course, neither the client nor Susan’s mentor were the least bit disap-

pointed in her. Her reaction merely demonstrated the extent to which she cared about her work and her clients. This particular client became one of Susan’s biggest fans, and to this day she extolls Susan’s talents and virtues. Indeed, she was one of Susan’s references in her judicial application.

Susan became a partner at Alexander Holburn in 2004. Over the course of her career, she developed a reputation as being one of the top insurance litigation lawyers in the province, as well as a leading practitioner in the areas of employment law and human rights. She has always been meticulous in her organization and preparation of cases and handled them with the utmost care and efficiency. It was rare to see more than one file on Susan’s desk. She is a clear thinker and strategist and always thoughtful and decisive in giving out advice. As counsel, her advocacy, both written and oral, was impeccable. Her ability to engage and entertain an audience with her public speaking was and remains extraordinary. Clients respected her not only for her abilities but also for her commitment to excellence in service and the precision of her advice. Several years ago, on a visit by firm management with a major client to conduct a self-assessment of our client service, the client singled out Susan for her case handling and client care.

In addition to her client work, Susan was, among all our lawyers, perhaps the most valuable contributor to the social fabric and administration of the firm. She served for many years on the firm’s executive committee and was normally the first person the managing partner would look to for advice and counsel on matters of a sensitive nature. Susan’s communication skills and impeccable judgment made her one of our firm’s greatest assets. We will miss her leadership and the compassionate way in which she approached and solved the problems of others and the firm generally.

At a firm retreat in 1998 when Susan was an associate, a few of us could not help but notice the amount of time Susan was spending with another associate, Larry Kyle. Over the course of the following months, it became apparent that the two of them had become a couple. On October 13, 2000 (Friday the 13th), Susan and Larry were married. On February 9, 2007, Susan gave birth to Lauren. On December 5, 2008, a second daughter, Devon, was born. Susan is a loving and devoted mother to her daughters, now 15 and 13 years of age, and she and Larry enjoy an active and rewarding family life at their home in North Vancouver. Upon the birth of her children, Susan made it very clear to everyone where her priorities would lie. She became a role model to the other young mothers at our firm and was always willing to provide her thoughts and wisdom on the appropriate balance to be struck between career and family. The role she played at the firm in mentoring younger lawyers in matters of law, business and family became legendary.

Our province is indeed fortunate to have Susan presiding in its Provincial Court. Her wisdom, compassion and decisiveness will serve her well in her new role. Perhaps more importantly, Susan brings to the courts a healthy dose of humility—a virtue that has shaped her in becoming the beloved leader she is in all aspects of her life. There is no doubt in our minds that Susan will bring honour to the judiciary and to the administration of justice in British Columbia.

Meanwhile, here at Alexander Holburn, we will have to find someone else to fill that part of our soul that went missing after Susan’s departure. We’re still looking.

The Honourable Judge Michael Munro

When Michael Munro first approached me about an articling position, it would be another year before I was called to the bar long enough to act as a principal under the Law Society rules of the time. Exactly one year later, there was a knock at my door.

Mike was born and spent most of his youth in Vancouver. His family then lived for ten years in Ottawa, where Mike’s father worked as a political historian and where Mike graduated from Grayson High School.

Growing up, Mike always enjoyed organized sports and played shortstop in baseball and goalie in hockey; he also shoots a pretty good golf game.

Mike attended the University of Victoria and earned his undergraduate degree in classical studies with a particular interest in Alexander the Great and Philip II of Macedon. In 1990, he received his law degree from the University of Victoria and as part of his course selection he enrolled in the Law Centre Student Program. It was there that we first met.

With Mike being a husband with a young family, it was a financial struggle to live on the meager wage I paid, so with my blessings, and the approval of the Law Society, he got a part-time job on weekends. Mike worked at the very first Cold Beer and Wine store in Victoria. I recall him telling me that working one long weekend (with overtime) earned him as much as I paid

for an entire month. The job also proved to be good for future client development as many of the patrons happened to be our clients.

When Mike was called to the bar on August 31, 1991, he decided to strike out on his own and developed a practice along my model as a sole practitioner. Because I knew Mike to be personable, hardworking and very bright, I had no doubt that he would quickly develop a client base. However, I felt I owed it to him to grubstake him with some clients. Within a few months Mike was a very busy defence lawyer up and down Vancouver Island. “Let’em go Munro” became his moniker. In fact, I received a call once asking me if I could help contact a lawyer known only as “Let’em go”. Mike quickly developed a reputation for his surgical approach and his “less is more” focus on the real triable issues. This approach earned him much success as a prominent criminal defence lawyer for over 30 years.

The first time Mike appeared before the Supreme Court of Canada was R. v. Reitsma, [1998] 1 S.C.R. 769, where he helped establish a precedent that remains an important arrow in every defence lawyer’s quiver. The next time he appeared before the Supreme Court of Canada was on R. v. Araujo, 2000 SCC 65. There were nine appellants represented by a rogues’ gallery of seven defence counsel (including Sid Symons and three who are now B.C. Provincial Court judges: Adrian Brooks, Mayland McKimm and now Mike Munro).

Throughout his career, Mike was an active and contributing member of the legal community. He sat on the Legal Services Society criminal tariff advisory committee for five years, and he taught the very popular Advocacy Course at UVic Law for the past 12 years. Together with his son, he organized a baseball tournament for the local criminal Crown and defence bar and he mentored his own articled student. Mike was always respectful and thoughtful of all the courthouse staff. Every year, around Christmas, he would have pizzas delivered to the sherriff’s staff room (a tradition someone has had to carry on).

Mike led by example, garnering the respect of the judiciary, prosecutors, police, his clients and his peers. An example of his wisdom is a story shared by a prosecutor. This prosecutor was having a conflict with a particularly difficult defence lawyer. Mike’s suggestion was to approach the matter “as a facilitator, not an obstructionist”. This advice, the prosecutor tells me, has served them well throughout their career.

It is no overstatement to say that Mike’s appointment to the bench has been met with universal approval and optimism. I often say that the contribution to the law of which I am most proud are my articled students, and I could not be prouder of His Honour Judge Michael Munro.

NEW MASTER

By R.C. Tino Bella

Master Susanna Hughes

Susanna Hughes, the newest master of the Supreme Court of British Columbia, was appointed May 2, 2022. This was quickly followed by expressions of approval and confidence that the Attorney General had made an excellent choice. Susanna was destined for the bench.

Born in England, Susanna’s parents, Jim and Ingrid, moved the family to Canada, near Toronto, when Susanna was one. When Susanna was seven, Susanna’s family moved to Coquitlam, where she grew up with her two younger siblings, Annabel and Mark.

Susanna obtained many of her qualities from her parents, who provided all of their children with the support, encouragement and skills to be their very best. These traits include Susanna’s family values and strong work ethic. She was the first in her family to graduate from university, but not the oldest. Her father did not have the opportunity to have a post-secondary education in his youth, yet he became a journalist and started to pursue his university education in the 1970s. This effort took about 30 years while working full-time and raising a family, but in 2005, at the age of 70, he obtained his bachelor of arts degree.

Susanna’s mother was a full-time parent who provided encouragement in each of her children’s educational, musical, creative and athletic pursuits. Later, “Oma” cheerfully helped out caring for her grandchildren, whenever she was needed.

It is not clear if Susanna’s impeccable writing talent is a result of nature or nurture, for Susanna’s impressive writing skills were honed early, having had her early stories and essays mercilessly slashed and critiqued by her very supportive and encouraging journalist father. This familial experience

also appears to have impacted Susanna’s sister, Annabel, an acclaimed Canadian author and creative writing professor. There is no doubt that Susanna’s father is extremely proud that another of his children has inherited or acquired the talent of purposeful, organized writing, that will now also be published from time to time! Counsel appearing before Master Hughes ought to be aware that there is beauty in being clear and concise, as among the lessons learned from her father is not to use three words when one will do.

Susanna ponders whether her appointment was, in part, owing to lessons learned from her brother, Mark, who was born with Down syndrome. Mark is athletic, charming, funny and a voracious reader. However, Mark can be stubborn sometimes and has shown Susanna that persistence pays off.

Susanna began her post-secondary education in science at Queen’s University. Having spent high school focused on science, her eventual plan was to attend medical school and become a surgeon. However, after struggling with second-year organic chemistry, Susanna abandoned her thoughts of medical school in favour of law school, and switched to arts. She obtained a law degree from UBC in 1989. So, despite law being her “Plan B”, Susanna’s choice was easy, and she has never looked back. Susanna’s father again seems to have foreshadowed this outcome: when in high school, he encouraged Susanna to participate in competitive debating, where she had success and enjoyed the challenge. She articled at a boutique firm in Vancouver and was called to the B.C. bar in 1990.

Susanna married her high school sweetheart, Mike, during her second year of law school. After practising in Metro Vancouver for a couple of years, Susanna took time away to have two children: her son Michael, born in 1992, followed by her daughter, Victoria, in 1993.

When she returned to practice in 1995, Susanna very capably balanced growing her practice and being fully present for her family. Susanna’s youngest child, Ian, was born in 1997, and she took only three months off before returning to practice with baby in tow. Sitting under her desk in his baby seat, Ian would be a pleasant distraction for others in the office. Susanna was a firm believer in exposing children early to a good work ethic.

Susanna started practising family law during her articles. As she developed her own practice, Susanna continued her commitment to family law, along with wills and estates and other civil matters. Susanna worked with clients from all walks of life, and instead of being daunted by the emotional nature of this work, she expressed privilege that her clients entrusted her with these very personal aspects of their lives. From the start, legal aid clients were a component of her practice.

In 2010, Susanna was contracted by Legal Aid BC to be full-time lead family duty counsel in New Westminster. This opportunity allowed Susanna to commit fully to helping self-represented litigants with matters in both the Provincial Court and the Supreme Court. Susanna’s leadership, mentorship and legal services were invaluable to her colleagues, judiciary and court staff, but most of all the self-represented litigants. Susanna has a deep understanding of the immense barriers these litigants face, including literacy, limited understanding of English, poverty, cognitive impairment, mental and physical health issues, addictions, adverse childhood experiences and family violence. Not one to shy away from a high volume of work, it was not unusual for Susanna to advise and assist several clients a day, many with urgent family matters. Motivated by making a real difference for some of society’s most vulnerable and marginalized, Susanna’s patience, compassion, humility and grace resulted in each and every one of these litigants being treated with dignity and respect, and feeling heard.

In 2015, with the prospect of making a broader difference, Susanna became the coordinator of family law services at Legal Aid BC. There, among her other duties, she oversaw the provision of family duty counsel services and a province-wide telephone legal advice service, Family LawLINE, and assessed requests for legal aid coverage.

Susanna earned deep respect for being accessible and listening, and for her intellect, legal analysis, writing skills and ability to explain things in plain language. Understanding the empowerment of knowledge, she provided legal presentations to a wide spectrum of lawyers, legal professionals, advocates and lay people, and gave valuable mentorship to colleagues. Aware of how challenging this work and life can be, Susanna regularly checked in with staff and others to see how they were doing, which during the pandemic and remote working conditions, became even more important.

Susanna includes her sisters-in-law among her friends. With varied legal careers, the women of this very supportive group enjoy spending time together and sharing laughs, meals and wine—although, admittedly, not often enough. These women know Susanna can be counted on to select great wine and stylish shoes. Susanna recently shared that an advantage of virtual chambers appearances is that no one can see she is not wearing black shoes (as we were once expected to do).

Susanna has a lot of energy. Susanna attended many legal conferences burning the candle at both ends. Long days started with an early morning run with a friend, attending the conference, shopping, socializing, drinks and dinner, sightseeing and some musical entertainment along the way, before doing it all over again the next day.

Connecting with people from all walks of life, her community contributions include volunteering with her church for meal programs for those experiencing food insecurity and isolation. On the board for British Columbia’s Creative Problem-Solving Society for ten years, she oversaw the society’s competitions for children. Susanna saw firsthand how amazingly creative children could be, and she believed supporting this creativity would help them become better members of society.

As an example of Susanna’s perseverance (and maybe her pain tolerance), she is an accomplished runner, having completed several halfmarathons and a couple of marathons. In their bliss when outdoors, Susanna and Mike raised their children to appreciate natural surroundings while they snowshoed, camped, hiked and travelled all over British Columbia, the western states and Hawaii. Susanna and Mike appreciate time outdoors together doing these things they love, and travel when they can, locally and abroad. She likes reading for pleasure, but that will be put on hold while she becomes intimately more familiar with the court rules and legislation. Susanna enjoys theatre, but not by counsel appearing before her.

Susanna is grateful for all the support her husband Mike, a true partner, has provided throughout her legal education and career, and credits him in part for the person she has become. She is extremely proud of each of their children, who have themselves been supportive when work kept her away from home longer than she wanted, and who have each chosen the path right for them.

Susanna has built a reputation within the legal community for being pragmatic, solution-focused, fair, understanding, reliable and purposeful in her decision-making.

Susanna’s commitment to access to justice has been demonstrated by her career path dedicated to helping people. She is well equipped for her new role in public service where she can continue this legal journey.

LETTERS TO THE EDITOR

By R.C. Tino Bella*

Dear Editor, Re: “Legal Anecdotes and Miscellanea—The Trial of the Century” (2022) 80 Advocate 615

Mr. Bain had his own particular vantage point in 1995 from which he regarded the phenomenon of the O.J. Simpson murder trial. Here is mine.

By the summer of 1995, I had finished my articles on North Vancouver Island, I was not kept on, I had just been called to the bar and I was unemployed and looking for my first associate position. Some friends/Harley-Davidson enthusiasts from the North Island had just moved to the area of Ashcroft, B.C. and invited me to stay with them for the summer while I rebooted my life and career, as they were doing. I also house-sat for them for a time while they and their fellow Harley riders did a trip to the

southern United States. We were all at loose ends. Being Ashcroft, it was hot outside, and at the house the bar was always open. We tended to congregate in the cooler basement during the day, usually to “watch O.J.” We’d all give our two bits of commentary as we watched, mostly along the lines of which of the participants we liked or didn’t like, which lawyers or witnesses impressed us, which irritated us— that sort of banter. We all could not stand Mark Fuhrman. I remember O.J. would sit there, his various lawyers on either side of him. From time to time, he would slouch in his chair, smirk, shake his head. I found that annoying. If he had been my client, I would have taken him into an interview room at the next stand-down and told him to knock it off.

In October 1995, I had recently started my first associate job in Ter-

* Letters to the editor may be e-mailed to <mbain@the-advocate.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.

race, B.C. What I remember from the day of the verdict was that I was walking back to the office from court in the rain, which it does a lot in October in Terrace. I was walking because I did not own a car. I was renting an apartment with very little furniture. I had no TV and a lot of student debt. As I walked by the now long-gone Sears catalogue store on Kalum Street, I remembered that I had heard that the jury had reached a verdict and would soon deliver it to the court. I ducked into the store just in time to watch the verdict being given on a bank of about 20 to 25 stacked new 1995 TV sets. I was shocked that he was acquitted. Over the years, I have become less shocked upon reflection and reframing of how things came to that point.

Yes, that trial was one of the most hyped, picked-apart and overanalyzed media events of my life, but also included were illustrations of some very basic courtroom advocacy lessons. One was the one about never asking a question you do not know the answer to. That was illustrated by the prosecutor Chris Darden getting O.J. to try on the leather glove. Among other things, Darden may not have considered that O.J., albeit no Olivier, had some acting experience and sold that moment like it was a world of pain. An illustration of another very basic technique was when F. Lee Bailey during cross-

examination got Mark Fuhrman to paint himself into a corner with a question that provoked his absolute—later demonstrated to be untrue—answer that he had never used the “n” word.

In my life, I choose to try and be curious and interested in anything in the world at large, time permitting. Even what may seem like the most crass and “cheap” ephemera of this world often reveal some essential truths. Some more complicated and troubling issues that the trial shone a light on include the plague of domestic violence in our society and whether justice can be done and be seen to be done when issues of race and class figure into the equation. That conversation goes far beyond a letter to the editor.

Andrew S. Roth Terrace, B.C.

Dear Editor, Re: “Entre Nous” (2022) 80 Advocate 649 and “Ukraine and the Unfinished Crime of Aggression” (2022) 80 Advocate 661

I very strongly appreciated the overall thesis in the “Entre Nous” editorial related to the importance of evidence, as aptly summarized in its last sentence:

The next time people— even lawyers—are getting worked up about something, maybe ask whether

there is an evidentiary basis for what is being said. Perhaps there is only rhetoric designed to exploit emotions and create a frenzy for some political purpose. Frankly, if it’s the latter, it’s bullshit.

However, overall, I felt the editorial was somewhat of a caricature of its own main message.

Dismissing fraud allegations as “bullshit”, “unsupported by specific evidence” or “ridiculous” simply ignores the very long history of cheating in elections worldwide, including in the United States. During the rise of computer-based voting and election infrastructures in the United States in particular, mountains of proof have been adduced by independent sources that material malfeasance could be enabled by such technologies.

Moreover, allegations of election fraud were made as recently as the aftermath of the 2016 U.S. elections, including by then-presidential candidate Hillary Clinton. Those were amplified by the mainstream media then, and (seemingly) buttressed by a sincediscredited “assessment” by the “intelligence community”. Although the allegations arguably turned out to be “bullshit” “unsupported by specific evidence” and “ridiculous”, they (rightly) weren’t dismissed out of hand.

As with the run-up to the war in Iraq, and with the full participation

of the mainstream media, discussion of the (absence of) evidence in 2016 was replaced with a constant stream of editorial opinion, and a years-long period of “not my president” protestations unfolded. As with the case of Iraq, it was not journalism’s finest moment and trust in basic institutions was eroded.

Post-2016, many who favoured paper-based, simple, transparent and tangible election infrastructures were hopeful that reforms might put an end to what had become, effectively, the privatization of elections via the outsourcing of key governmental functions to private technology companies. Obviously, such basic reforms did not occur. Instead, many who had alleged malfeasance in 2016 became, post-2020, loud voices dismissing such allegations as “bullshit”, “unsupported by specific evidence” and “ridiculous”, again with the mainstream media providing the bullhorn.

The frequent misconduct of the mainstream media is a massive ingredient here. Beyond Iraq, there are many examples to mention of its pernicious influence. Given this, the fact that the “Entre Nous” editorial descends into base political rhetoric by citing favourably a well-known but virtually evidencefree Washington Post serial political hit-piece is regrettable.

The “Entre Nous” editorial is also marred by a tone that results in

unfortunate sentences like: “Barr was merely saying what anyone with even a modicum of knowledge about democracy and how democracy ought to work has been thinking for years now”. Knowing “how a democracy should work” is pretty useless when ignoring things like the inherent insecurity of computer-based elections, or the specific allegations and evidence of malfeasance related to the U.S. 2020 election, boatloads of which have come out in alternative media sources.

The arrogant tone of “Entre Nous” ironically set the table for “Ukraine and the Unfinished Crime of Aggression”. Given that Ukraine is at least the Iraq-level issue of our time, it was unfortunate to read about things being “obvious”, having “no ambiguity” or being “clear-cut” while omitting, for example, mention of the 2014 U.S.-led coup of Ukraine’s thendemocratically elected government, as well as the 14,000 and 16,000 mostly ethnic Russian and Russian-speaking Ukrainian citizens killed as a result of shelling by its own government, right up to the time Russia invaded. Such omissions can lead only to literary lead

balloons such as the following: “There is no ambiguity about the nature and seriousness of the armed conflict and a continuing occupation in Ukraine since February 24, 2022”.

Face it: people, including lawyers and others who like to think they’re pretty smart, often begin “analyses” with assumptions dressed up as proven facts, usually borrowed or accepted (unthinkingly) from the usual mainstream media narratives. Why? Our basic fallible humanity aside, for the most part we want to be seen to be respectable and supportive of the current cause supported by “respectable” sources like The New York Times. So there’s some snobbery there, as well as a desire to avoid controversy and unpopularity.

As we slide deeper into what is looking a lot like World War III, I would submit that becoming “evidence-based” is more important than ever. We need to do better. The fate of the world quite literally depends on it.

Sincerely, Trevor Wiebe (retired member of the Law Society of British Columbia)

GEIGER LAW PRACTICE SALES

British Columbia and Alberta

SURREY PRACTICE

This busy practice has been in operation for over 50 years. The present practice mix is RE (including Municipal/Expropriation), Corp/Comm, Wills/Estates, Family Law and Litigation. The sellers have excellent reputations individually and as a firm, and are prepared to assist the buyer with a transition plan that ensures client retention.

TRI-CITIES SOLICITOR’S PRACTICE

This long-established practice would suit a firm wishing to expand to the Tri-Cities area, or a local resident wishing to avoid the commute downtown. Real Estate forms 60% of this practice with the remainder evenly split between Wills/Estates and Corporate/Commercial. The practice is presently turning away work so there is lots of room for expansion.

COMOX VALLEY GENERAL PRACTICE

Over 20 years’ in operation with a mix of Real Estate, Wills/Estates, Family Law and Civil Litigation. Solid and consistent billings. Seller is flexible about transition and willing to mentor a junior lawyer with at least five years' experience.

CENTRAL ALBERTA GENERAL PRACTICE

This practice started 100 years ago and is located in the historic downtown core of this Central Alberta city. Practice mix is about 50% RE, Wills/Estates and Corporate/Commercial; the remainder is Family law/litigation as well as Commercial litigation. Billings are in the high six figures. The practice boasts fantastic staff and the premises have space for a second lawyer.

CENTRAL ALBERTA GENERAL PRACTICE

2 lawyer practice established in 1984. Consistently billing 8-900K. 70% Solicitor’s work and 30% Family/General Litigation. Trained staff and congenial sellers who are willing to mentor incoming lawyer(s).

CALGARY MULTI-LAWYER SOLICITOR’S PRACTICE: New on market

LEGAL ANECDOTES AND MISCELLANEA

By D. Michael Bain, K.C.*

DEMISE OF THE CROWN

I recently hired a new legal assistant who, during our first substantive meeting, asked me what the K stands for in K.C. I told her it was a reference to the King. “Wait, you’re a King’s Counsel?” she asked. “I am,” I told her. “Oh!” she said, “I’ve heard of Queen’s Counsel, but not King’s Counsel.” I was tempted to tell her that King’s Counsel was obviously one better than a Queen’s Counsel, as if a mystical constitutional chess board were in play, but instead I explained to her that when Her Majesty Queen Elizabeth II died, Charles became King, and at that moment all Q.C.s became K.C.s. “In fact,” I offered, “someone recently told me that the precise moment of the change was at that point between the Queen’s last breath and the King’s next breath.” The profundity of this imagery was apparently entirely lost on my new assistant, who, having turned inquisitor, went on to grill me on what activities I might have done that could possibly have qualified me for the appointment at all!1

Exactly two weeks earlier, on September 8, 2022, I had not been as knowledgeable (or as poetically prepared) on the topic when I learned the Queen had died. I was in a meeting, which I brought to an abrupt end on learning the news because … well, because she was the bloody Queen, that’s why! Literally within 12 minutes of her death, I received the first of dozens of emails from Q.C.s across the province asking me what would happen to their post-nominals now. As the editor of the Advocate, one is apparently supposed to know All Things Affecting Lawyers in British Columbia.

While the poor woman’s (sorry, rich woman’s) body was still warm, my colleagues were wondering if they had to fork out for new letterhead. My

* D. Michael Bain, K.C., is the editor of the Advocate

advice might directly affect the economy of the province. I knew that I would be attending a dinner that evening at which people smarter than me would simply know the answer, but, having decided what the answer must be, and committed to some non-billable time while I started to grieve, I decided to poke about to see if the law agreed with me.

My first stop was the Queen’s Counsel Act, 2 which I noted did not refer to the expression “Queen’s Counsel” in any part other than the title and headings within the statute. Under the heading “Power of Lieutenant Governor in Council to appoint Queen’s Counsel” the power is described as follows: 2(1) On the recommendation of the Attorney General, the Lieutenant Governor in Council, by letters patent under the Great Seal, may appoint, from among the members of the Bar of British Columbia, Provincial officers under the names of Her Majesty’s Counsel learned in the law for the Province of British Columbia. [Emphasis added.]

I decided to look at the letters patent I received where “ELIZABETH THE SECOND, by Grace of God, of the United Kingdom, Canada and Her other Realms and Territories, Queen, Head of the Commonwealth, Defender of the Faith” (but sadly not also Mother of Dragons) did “constitute and appoint” me “to be one of Our counsel learned in the Law, during Our pleasure, with all and every the rights, fees authority, profits, emoluments and advantages unto the said office of right and by law appertaining” (emphasis added). Again, there was no mention of “Queen’s Counsel”, just “counsel learned in the Law”.

The Interpretation Act3 was my next stop, and I went to s. 29 where I found the following “Expressions defined”:

“Her Majesty”, “His Majesty”, “the Queen”, “the King”, “the Crown” or “the Sovereign” means the Sovereign of the United Kingdom, Canada, and Her other realms and territories, and Head of the Commonwealth[.]

I reasoned that the appointment had been to an office of the Sovereign, and that the post-nominals Q.C. were but a convention. Surely, it automatically changed to K.C. on the death of the Sovereign, since Her Majesty’s counsel learned in the law was holding a provincial office and was therefore now His Majesty’s counsel learned in the law. I shared some of my musings with a group of interested people, one of whom wrote back and pointed out s. 21 of the Interpretation Act, which provides:

Demise of Crown

21 On a demise of the Crown, it is not necessary to renew a commission or appointment by which a person in British Columbia held or exercised their office or profession during the previous reign, but all persons who held or exercised an office or profession under the late Sovereign continue in the exercise of the duties and functions of their respective offices

and professions as fully as if newly appointed by commission or appointment from the Sovereign for the time being from the date of his or her accession, and it is not necessary for those persons to take an oath of allegiance to the new Sovereign.

It was nice of the Interpretation Act to catch up with my reasoning. But this was only the start of the deep dive. A judge (with evidently more time on her hands than me) located and sent me an article by Thomas Irvine titled “Demise of the Crown: An Historical Review of the Law in Canada”,4 which canvassed the common law in Britain surrounding the demise of the Crown. In the late medieval period, for example, public officeholders were all personal appointments by the monarch, serving at the pleasure of the monarch. When the monarch died, they lost their appointments. Legal actions in the courts were automatically discontinued and had to be restarted by issuing new writs. If Parliament was sitting or prorogued, it was automatically dissolved.

Turning to Blackstone, Irvine provided the following quote to address how “demise” of the Crown refers not to the death of the monarch, but to the transfer of the Crown to a new monarch:

A THIRD attribute of the king’s majesty is his perpetuity. The law ascribes to him, in his political capacity, an absolute immortality. The king never dies. Henry, Edward, or George may die; but the king survives them all. For immediately upon the decease of the reigning prince in his natural capacity, his kingship or imperial dignity, by act of law, without any interregnum or interval, is vested at once in his heir; who is, eo instanti, king to all intents and purposes. And so tender is the law of supposing even a possibility of his death, that his natural dissolution is generally called his demise; dimissio regis, vel coronae: an expression which signifies merely a transfer of property; for, as is observed in Plowden, when we say the demise of the crown, we mean only that in consequence of the disunion of the king’s body natural from his body politic, the kingdom is transferred or demised to his successor; and so the royal dignity remains perpetual.

The impact of a sudden demise on Parliament, the courts and officeholders was obviously problematic for the colonies, who sometimes might not learn of a monarch’s death for some time. Through a series of statutes, both the federal and provincial governments (as seen in our Interpretation Act) addressed the legal implications of a demise of the Crown so as to allow the smoothest of transitions to the new reality. Upon the demise of the Crown, the Courts of Queen’s Bench in Alberta, Saskatchewan, Manitoba and New Brunswick became Courts of King’s Bench. The forms of those (and other courts) had to be changed to refer to His Majesty instead of Her Majesty and Rex instead of Regina. The Queen’s Printer, meanwhile, became the King’s Printer. When it came to Q.C.s and what might happen to them (“off with their heads!”, I suggested to one colleague), Irvine addressed the matter head-on:

Since the position of Queen’s Counsel is in law an office, not simply an honourary designation, the provisions in federal and provincial laws which continue office-holders in their offices regardless of the demise of the Crown, outlined earlier in this article, will apply to the designation of Queen’s Counsel as well. There will be no need to reappoint current Queen’s Counsel as King’s Counsel. … Overall, the nature of the office of Queen’s Counsel and the provisions of the Interpretation Acts indicate that there would be no need for Queen’s Counsel to be reappointed, nor their patents be reissued as “King’s Counsel”. The term “Queen’s Counsel” is simply the designation of the office. Queen’s Counsel are office-holders and continue in office notwithstanding the demise of the Crown. Their title will automatically change on the accession of a king.

Case closed. Websites, business cards, letterheads updated. Some of us did it right away because the law made it thus. Others waited for a period of mourning. Still others have become so attached to seeing Q.C. after their names that it has become a part of their identities and they are heartbroken to give it up. They are out there, parading as Q.C.s, even though by the end of the day the Law Society had weighed in on the issue and explained that they were now K.C.s.

The demise of the Crown was something we all knew was coming. Nevertheless, it also came as something of a shock. While the Queen had been frail, it was only a few months earlier that she was waving from her balcony at a military flyover, riding her pony at Windsor and having tea with Paddington Bear at Buckingham Palace for her Jubilee. She was seeing out her 14th British prime minister and swearing in the 15th on a Monday, resting on the Tuesday and gone by the Wednesday.

I was one of 50 or so lawyers who attended a ceremony at Government House in July 2022 recognizing Queen’s Counsel appointees from 2019, 2020 and 2021 (I was in the middle group). The ceremonies were combined because they had been delayed owing to the COVID-19 pandemic. Later still, they were cancelled altogether. Some smartass5 decided to write to then Attorney General, David Eby, Q.C., to say that the decision to cancel the ceremonies was contrary to the terms of the provincial health orders then in effect. Others followed suit, and about a month later, the Honourable Mr. Eby did the honourable thing and announced the ceremonies would be combined and would take place after all. I am glad he changed his mind, for these were the final three groups of Queen’s Counsel appointees in British Columbia made by Her Majesty Queen Elizabeth II in the 68th, 69th and 70th years of her reign. It was the last time most of us ever sang “God Save the Queen”.

On the day of the Queen’s death, I did indeed attend that dinner with people smarter than me. I sat next to David Roberts, K.C. (he, like me, had

been a Q.C. when he woke up that morning). I remarked at how amazing it was that the Queen was on her 15th prime minister at the time of her death. “How interesting,” he said, “Charles is my fifth monarch!” God Save the King.

ENDNOTES

1. The story deteriorates at this point (or gets distressingly hilarious, or possibly both), and I cannot publish it, but if you buy me a drink, and grant me certain undertakings, I will happily tell the tale.

2. RSBC 1996, c 393.

3. RSBC 1996, c 238.

4. (2019) 12 J Parl & Pol L 695.

5. It was me.

OKANAGAN VALLEY – WILLS/ESTATES AND CORPORATE PRACTICE: New on market

Operating in the North Okanagan Valley since 1995, this practice is unique in its highend mix of Wills/Estates and Corporate Commercial law. There is a significant Wills bank and approximately 250 corporate clientele.

The practice can easily expand to incorporate Real Estate and Litigation work, which are currently referred out. The main premises can accommodate up to 3 lawyers while a nearby satellite office can accommodate up to 2 lawyers. The seller owns the main office which the buyer can either lease or purchase.

The Okanagan boasts a sunny climate with a network of lakes and rivers surrounded by rolling hills. This is a fantastic opportunity to enjoy world class skiing, golfing and other outdoor sports, with numerous wineries at your doorstep, without sacrificing an urban lifestyle with excellent commercial and municipal support services.

ESTABLISHED SOLICITOR’S PRACTICE – WEST KOOTENAY REGION: New on market

This busy established practice is almost equally divided between Real Estate and Wills/Estates with about 5% corporate commercial work. There is a significant Wills Bank and Estate Administration work is in a growth phase. The area is underserviced in all areas of law including family and litigation, such that there is almost unlimited expansion potential. The right buyer would enjoy living in a smaller, affordable community with a friendly, eclectic vibe and easy access to adventure in the surrounding mountains, lakes and rivers.

FROM OUR BACK PAGES

By D. Michael Bain,Q.C. THE CRACKED

MIRROR: HOW “JUDICIAL NOTICE” BEAT HISTORIC EVIDENCE IN THE 19TH CENTURY DECLINE IN WOMEN’S CONSTITUTIONAL RIGHTS†

By Li Xiu Woo*

This paper was written before the Supreme Court of Canada split along gender lines to decide that child care expenses were not allowable as business deductions in Symes v. Canada, [1993] 4 S.C.R. 695. Symes affirms the continuing relevance of the concerns raised in this paper. Professional standards of evidence and statute interpretation remain the best protection for human rights and the courts’ willingness to deviate from basic principles is based on sociological rather than legal considerations.

The public has not complained much about Symes. Those most affected, business women with young children, are too busy and people expect legal reasoning to be obscure and out of touch with everyday experience. How-

* Reprinted from (1994) 3 Advocate 349.

† At the time of original publication, Li Xiu Woo worked at the Immigration and Refugee Board in Vancouver. All the views expressed in this paper are those of the author only, and do not represent the policies of the Immigration and Refugee Board.

ever, those of us with a legal education share the concern expressed by Madame Justice L’Heureux-Dubé in the women justices’ minority reasons. Two important legal principles were violated by the male majority. The first should have solved the case: ambiguities are to be resolved in favour of the taxpayer. The second violates the constitutional obligation to interpret statutes in a way that is consistent with the equality provisions in the Charter 1 The evidence presented in this paper suggests that this differential standard for interpreting women’s issues arose in the 19th century.

In many respects Symes puts us back where we were before Lord Sankey gave us the “living tree analogy” discussed below. A glimmer of hope remains with the discovery of supportive cross-gender judicial decisions in the past. Perhaps we can revive that climate to develop a richer and more varied profession in the future. It remains important to distinguish popular myth from history. Failure to do so deprives us of a factual basis for our reasoning and prevents us from discovering the issues that need to be resolved if we are to rectify current problems.

THE FALSE REPUTATION OF WOMEN IN LEGAL HISTORY

The cases examined in this paper will show how the misuse of history in legal decisions has exacerbated recurrent difficulties with the legal status of women. Those who would save us from the thralls of our oppressive past are usually misinformed. Women have never been personalty under English or Roman law as was recently claimed by a “legal commentator” on television. The issue of status is thorny and complex2 so I will not explore it here, but neither Justinian (A.D. 483–564) nor Bracton (d. 1262) show any indication of doubting that women should be classed as “persons”.

The relatively recent humiliation women suffered by being forced to go all the way to the Privy Council in London to confirm we are “persons” (Edwards v. A.G. Canada3) appears to be an anomaly.4 This anomaly was caused, in part at least, by a lapse in established professional standards for dealing with historical information.

Lord Sankey’s “living tree” analogy in Edwards is a valuable guide to constitutional interpretation and an interesting reflection on the way societal and legal needs change over time. However, as far as the status of women is concerned, Edwards was not a breakthrough in legal reasoning. It represents instead a return to previous norms and to a standard based on statutory interpretation that had already been applied 150 years earlier in Rex v. Stubbs 5

Edwards cites Stubbs but does not recognize it as a major precedent. Instead, Lord Sankey slighted Roman law and early English decisions commenting that exclusion of women from all public offices was “a relic of days

more barbarous than ours”.6 Actually this exclusion appears to have arisen during the reign of Queen Victoria (1837–1901).

An analysis of decisions cited in Edwards reveals that the older cases supported women’s right to hold office. It was only by turning their backs on both legal precedent and documented history that the courts were able to produce a series of cases barring women from public life. Indeed, the differences between the 18th-century cases and those that followed are so striking that one cannot help but wonder whether the rise of the women’s movement in the 1800s was a reaction to aberrant judicial reasoning.

THE PROBLEM OF PSEUDO HISTORY

In the cases cited in Edwards the opponents to women’s rights made generous use of judicial notice to prove women were subject to a legal incapacity barring service in various offices. When they did support their findings with legal or documentary evidence they tended to use information found between the lines which has lingered in popular knowledge to colour our perception of past relations with a monolithic antagonism that may not have entered judicial reasoning until the 19th century. Some ancient authors might be quite surprised by the use that has been made of their comments.7

One particularly striking piece of misinformation about the past is the belief that women have only recently acted as attorneys. There are instances of women attorneys and judges in early records predating the emergence of legal apprenticeships and the Inns of Court.8 Nevertheless we are often confronted with a quote saying that in this period “any free and lawful person, excepting women, infants and serfs” could act as an attorney. This is said to come from the Mirror of Justices 9 cited by Lord Coke (1522–1664) as an account of laws before the Norman Conquest.10

Lord Coke lived 500 years after the Conquest. He was as far removed from the conquest as we are from him. He is an excellent source of information on law as it was understood in his own time but, like us, he had to depend on historic documents for all his information on pre-Conquest society. He appears to have been misled by the Mirror of Justices. 11 Reputable legal scholars who investigated this work found it was a piece of satire of dubious antiquity and authenticity.12 Unfortunately it has been treated as valid authority by respected Canadian courts13 and this old joke continues to make the rounds as a serious reference to this day.

THE DISSOLUTION OF WOMEN’S STATUS THROUGH CASE LAW

We all make sexist assumptions, no matter our gender. The issue is whether our assumptions are based on sound perceptions. The Edwards cases reflect

a change in attitude towards women that clouded judicial reasoning. Challenges easily dismissed in the 18th century as violating simple principles of statutory interpretation elicited acrimonious debate in the late 19th century. Unfortunately, habits of reasoning established during this debate persist, both in the consideration of women’s issues and in our uncritical approach to historical evidence.

Eighteenth-Century Enlightenment

The oldest case cited in Edwards that dealt specifically with women’s rights is Olive v. Ingram (1738).14 In an election for the office of sexton, Sarah Bly received 169 votes from men and 40 from women who contributed to the financial support of a church. After receiving 174 male and 22 female votes her male opponent decided to challenge both women’s right to vote and women’s right to hold public office, arguing that women were under a legal incapacity.

At first Lee C.J. appears to have been very excited about this case. He foresaw extensive consequences if it was determined that a right could be lost through non-use15 and offered his own evidence to show that a “feme sole freeholder” could return members to Parliament.16 He adjourned more than once to elicit more argument, but in the end gave up on his quest for precedent-setting reasons and confined his decision to the particular sexton’s office in question.

All four justices spoke in favour of the women’s votes and of Ms. Bly’s capability of holding this particular office. Lee C.J. hedged the issue of whether or not women could hold public office, saying he thought the office of sexton might be in the nature of a private trust. Chapple J. commented that women were different from infants because they were sui juris17 until married. Probyn J. said “they who pay ought to chuse whom they will pay” and the matter became dormant for several decades.

One amusing argument used by counsel for the plaintiff against women in this case was that “it is fitted for men to clean and wash the church”,18 leaving us to wonder when and where the doctrine of divinely ordained domesticity arose.19 He also argued that “it would be servile work for a woman to dig a grave”. Already arguments in favour of women were supported by legal and historic precedents, whereas the challengers’ arguments were based largely on sentiment.

R. v. Stubbs, 20 the next 18th-century case cited in Edwards, is similarly supportive of women’s rights. In 1788 the court found the widow Alice Stubbs was competent to serve as overseer of the poor. Again long lists of authorities showed women were capable of holding “almost all offices in the kingdom” including judge.21 Counsel for the plaintiff argued that women

had only held ministerial or partially judicial hereditary offices and that they had relied on the appointment of a deputy to perform some functions.

Ashurst J. for the court expeditiously dismissed arguments against Alice Stubbs, pointing out that the Act creating the position made no reference to sex and the only qualification required was to be a substantial householder, which she was. He also found there was nothing in the nature of the office that would make a woman incompetent to discharge it and that women had previously held offices involving trust and requiring judicial capacities.

The case did, however, raise an argument that consciously or unconsciously dogs women to this day. In the course of distinguishing a previous case which had excluded a woman from office, Ashurst J. mentioned that qualified men had been available to serve.22 Stubbs might thus have been used to confine women’s right or duty to hold office to situations in which qualified men were not available, but both Stubbs and Olive v. Ingram became authority for much, much more.

Nineteenth-Century Deviation

The turning point for women’s rights seems to have been the Court of Common Pleas’ decision in Chorlton v. Lings, 23 which set the tone for decades to follow.

At this point it is worth remembering that 19th-century England was marked by tremendous social change. Industrialization and colonialism had produced a new elite and an increasingly powerful middle class. The Reform Act24 of 1832 reduced property requirements and extended the franchise to a large number of “male persons” who had previously been excluded.25 In 1867, the same year that our Constitution Act26 was passed, the franchise was extended still further to effectively include skilled unionized workers27 through the Representation of the People Act, 1867. 28

In 1868 Marry Abbott, a 21-year-old unmarried woman, claimed the right to be put on the voters’ list for the borough of Manchester. Her appeal, consolidated with those of 5,346 other women, was refused on the grounds that women were subject to a legal incapacity to vote for Members of Parliament and that the word “man” in the Representation of the People Act, 1867 did not include women. This marked the beginning of extensive deliberation over the meaning of Lord Broughton’s Act, 29 which included measures meant to shorten Acts of Parliament. The statement that “words importing the masculine gender shall be deemed and taken to include females” was consistent with previous usage.30 However, as women tried to adapt their roles to changing circumstances it took on revolutionary connotations.

Coleridge, Q.C., whose father was a nephew of the famous poet,31 acted for the women in Chorlton, citing legal and historical references to show

that women had always had the right to vote. He argued that sending a representative to Parliament had once been seen as a burden from which religious men and women were exempt by statute32 rather than as a privilege they were prohibited from exercising. He also argued that because Lord Brougham’s Act stated that masculine words should be taken to include their feminine connotations the Representation of the People Act, 1867 had extended the right to vote to women, if such right had not existed before.33

Bovill C.J. was not persuaded by the historic evidence, saying that Coleridge’s documented instances were “of comparatively little weight, as opposed to uninterrupted usage ... for several centuries”. This allowed him to find a “strong presumption” that it was illegal for women to vote.34 Superficially this part of his reasoning appears to maintain the status quo. However, it was, in effect, the very “extensive determination” Lee C.J. feared 135 years earlier in Olive v. Ingram. 35 The startling proposition underlying his decision would seem to be that any act is illegal unless there is legislation authorizing it or it has been done frequently during the last 300 years! This directly contradicts the hard-won doctrine that because the English constitution is law, not fact, it can be found only in enactments and reported cases.36 Thus conservative instincts planted the seeds for a massive erosion of constitutional rights.

The other justices agreed with Bovill C.J. Willes J., who had interjected with speculations deprecating Coleridge’s authorities, was held in the highest regard by those who later considered this decision.37 He found women were under a “legal incapacity to vote at elections”, explaining away early legal precedents on the basis of popular contemporary historians.38 He also misstated the reasoning of Lee C.J. in Olive v. Ingram, claiming he had “satisfied himself that women could not vote for members of parliament”39 though this issue was not before Lee C.J.’s court.40

Byles J. followed this lead, holding that “women for centuries have always been considered legally incapable of voting for members of parliament” but giving no factual or legal references. Keating J. declared there was “no evidence of women ever having voted for members of parliament in cities or boroughs”,41 which, of course, was not surprising given the wording to the Reform Act discussed below. In short, this court appears to have wanted women to prove their right to vote for Members of Parliament beyond any imaginable doubt!

The strongest argument in Chorlton was based on statutory interpretation and may have been valid until the Privy Council in Edwards set standards for interpreting constitutional statutes. The decision that the word “man” in the Representation of the People Act, 1867 did not include women was to have

far-reaching implications though it was based on an isolated set of circumstances. Section 59 of this Act stated it was to be construed as one with the Reform Act, where “male” persons were specified. On this basis the court found that the word “man” in the 1867 Act must also be restricted to male persons and that Lord Brougham’s Act did not apply. This narrow technical argument was misunderstood in several later decisions.

By 1889 Coleridge, Q.C., had become Lord Coleridge C.J. in the Court of Appeal where he presided over a case in which almost all authority except Chorlton v. Lings had been abandoned. When Lady Sandhurst’s election as county councillor was questioned the trial judgment of Stephen J. extended Chorlton’s incapacity to vote for Members of Parliament to a general incapacity to vote based on the principle of “uninterrupted usage of many centuries”.42 On appeal Lord Esher, M.R. went even further, extending women’s incapacity to the exercise of “any public function” and stating that unless a statute dealing with public functions expressly gives power to women the powers are confined to men.43

Lord Coleridge reasoned there could be no common law regarding an office newly created in 1888, so he used principles of statutory interpretation to disqualify Lady Sandhurst.44 Section 11 of the Municipal Corporations Act 188245 made no mention of sex among the qualifications required of councillors. Section 63 expressly extended the right to vote to women, thus overriding the recently discovered legal incapacity to vote.46 The Stubbs plain meaning approach could have been applied to uphold Lady Sandhurst’s election, but Coleridge C.J. read a sex disqualification into the Act. He appears to have relied on Lord Esher’s extended legal incapacity. This allowed him to interpret the failure to grant the right to be elected in s. 63 as an indication that this right was not included.47 Cotton, Lindley, Fry and Lopes L.JJ. agreed.

This decision did not prevent the election of women to county council. In 1891 Lord Coleridge C.J., Lord Esher M.R. and Fry L.J. held a woman who had been elected to the London County council was liable to penalties for acting when disqualified.48

British Columbia Follows Suit

The effect of the widening spheres of legal disability imposed by the judiciary on women spread far beyond England. In 1905 Miss Mabel P. French had completed all requirements for admission to the Barrister’s Society of New Brunswick. The matter of her admission was referred to court where Chorlton v. Lings and Sandhurst headed a list of authorities said to hold that women were barred from holding offices such as attorney-at-law.49 Counsel for Ms. French objected that these were only about voting but to no avail.

By this time the myth of uninterrupted usage promoted by this line of cases appears to have completely displaced historic evidence to the contrary. Through ignorance or desperation counsel in support of the admission of women argued, “Why delve into the dark ages for a precedent to justify holding them incompetent?”50 Relying in part on American jurisprudence the court unanimously found Ms. French could not be admitted to the bar.

The hard simple logic used in 1788 to interpret the statute in Stubbs had been completely displaced. The court found the word “person” in the governing act could not have been meant to include women because in earlier times no one contemplated women attorneys. No reference was cited in support of this assertion. Women, it was felt, were required to provide specific statutory authority in order to be called.51 Ms. French appears to have been well respected by the New Brunswick bar. An act was promptly passed allowing women to be called as barristers and attorneys on the same terms as men.52

A few years later, when she applied for admission to the bar of British Columbia Ms. French was required to go through the same rigmarole. This time she was refused on the basis of cases that were “inferentially against” her application.53 Irving J.A. ventured boldly into legal history citing the Mirror of Justices and stating that women could not be articled because they were not sui juris. No authorities were given for this intriguing proposition that ignored established differences between single and married status, but then perhaps none were needed for even in England common practice had become common law. Prompt lobbying on behalf of the University Women’s Club by Mrs. J.W. deB. Farris, whose husband was a senator, led to the enactment of enabling legislation. Ms. French was called to the B.C. bar on April 1, 1912.54

Try and Try Again

Meanwhile the struggle was continuing in England. In 1909 the House of Lords, in Nairn v. University of St. Andrews, decided on the basis of “unwritten constitutional law” that women were not allowed to vote with other graduates for the university’s representative in Parliament.55 Naturally, since the issue turned on unwritten law, the only precedent needed for their judgments was Chorlton v. Lings. Miss Macmillan and Miss Simson carried on the long and futile habit of citing legal and historic references in support of their cause. The House did not even call on counsel for the respondents.

Lord Loreburn L.C. did not use the phrase “judicial notice” in his reasons, but one cannot help but wonder whether the refusal to hear responding

counsel was calculated to bolster his claim that it was “notorious that this right of voting has, in fact, been confined to men”. So, once again, proper research was sidestepped. The Chorlton v. Lings “legal incapacity” was also applied. The huge constitutional blow that had been dealt to women was overlooked. Lord Loreburn felt Parliament would not have used “so furtive a process” to effect such a “momentous and far-reaching” constitutional change.56

In 1913 Miss Bebb brought an action against the Law Society asking for a declaration that she was a “person” within the meaning of the Solicitors Act, 184357 and mandamus directing the Society to allow her to write their admission examination.58 The case includes a lengthy discussion of the development of the legal profession. As in Stubbs counsel for Miss Bebb argued that there was nothing in the Act to deprive a person of the right to practise on the basis of sex,59 but this simple approach to statutory analysis had long gone out of fashion when women’s rights were involved so the case was decided on the basis of “inveterate usage”. Heavy weight was placed on Lord Coke’s use of the Mirror of Justices despite detailed scholarly analysis discrediting this source.60 Corrective legislation was not passed for several years.

After World War I the British barriers started to crumble. In 1919 the Irish Court of Appeal, Chancery Division, took an independent tack when considering the application of a woman for the office of Petty Sessions Clerk. Moloney C.J., Ronan L.J. and Shandon L.C. agreed unanimously that the case turned on statutory interpretation and that Lord Esher had overstepped the mark with his “sweeping statement”.61 Ronan L.J. applied an obscure and complex analysis of seven related statutes to maintain exclusion of women, but the majority found the applicant qualified. Lord Shandon observed that until recently it would have been difficult to find women with enough education to fill even humble offices and stated: When one finds a woman fully qualified for public duties, I for my part must be shown a clear rule of the common law or a statute to exclude her.62

The Sex Disqualification (Removal) Act63 was passed in England later that year, but women still encountered difficulties. In 1922 the Committee for Privileges64 decided 22 to 4 that this Act did not give Margaret Haig, Viscountess Rhondda a right to sit in the House of Lords. Viscount Haldane, who wrote a dissent, determined very quickly65 that the holder of peerage had a right to attend the House of Lords unless subject to a legal disqualification “such as infancy, felony, bankruptcy or what sex entailed prior to December 23, 1919”.66 He claimed the Sex Disqualification (Removal) Act was

based on the words of Lord Esher in Sandhurst and was thus intended to allow women access to all public functions.67

Lord Wrenbury, also writing in dissent, noted that he too could find nothing in the statute to “curtail the perfect generality of the words ‘any public function’”.68 But just as Lady Macbeth could not wipe the damned spot from her conscience so too the House of Lords had difficulty wiping the stains of “unwritten constitutional law” from British judicial practice. Perhaps the majority was persuaded by a technical argument that suggested that peeresses might be able to vote for a member of the House of Commons while sitting in the House of Lords thus benefitting from “a double qualification enjoyed by no male peer”.69

In Canada we seem to have been incapable of tearing down the final barriers to public office on our own. In 1927 Henrietta Muir Edwards, Nellie McClung, Louise C. McKinney, Emily F. Murphy and Irene Parlby signed a petition to the Privy Council requesting a reference to the Supreme Court of Canada to determine whether women could be admitted to the Senate. Again, Lord Esher’s stretched version of the Chorlton disability was influential in coming to the rather far-fetched decision that women could not be “qualified persons” within the meaning of s. 24 of the B.N.A. Act 70 This aberration was promptly corrected by Lord Sankey L.C. writing for the Privy Council in Edwards v. A.G. Canada 71

Despite the deprecation of history implicit in his “living tree” analogy, Lord Sankey’s reasons represent a refreshing departure from the habit of taking judicial notice of the past. After a brief review of the English case law that led to the exclusion of women from public office, he distinguished Chorlton’s exclusion of women from the generic use of “man”, pointing out that it had relied on specific wording in the Representation of the People Act, 1867. 72 He went on to summarize Canadian legislative history, noting that women had voted in Trois Rivières in 1820, but were expressly disenfranchised by acts passed in 1834 and 1849.73 He cautioned against speculating about the intent of past legislatures,74 shifted the burden of proof back on to those who would exclude women from “persons”,75 and stated that if Parliament had intended to limit s. 24 to male persons it would have done so expressly as it had done in ss. 41 and 84.76 So Edwards put us back where we were in 1788. But now one may ask, is that progress?

One hopes readers will not dismiss this as a “women’s paper”. If we are to enjoy the political safeguards provided by an independent judiciary we must also suffer setbacks when the highest authorities err at law. In retrospect, a century removed from the pressures and prejudices of the time, there appear to be two major errors in the reasoning used in the Chorlton v. Lings line of cases. The first error was to treat constitutional questions as

issues of fact.77 The second was to ignore both legal and documentary evidence by taking judicial notice of a very speculative version of history.

It is encouraging to note that our legal and social institutions were strong enough to overcome the tortured reasoning that prevailed for the few decades these cases span, but the exercise of ploughing our way through to Edwards has left us with a bitter legacy. The process legitimized attempts to disqualify women from every new role on the basis of sex. The habit, developed during this period, of handling historic materials in a sloppy and unprofessional manner has unleashed mischief in other areas as well such as race relations and native rights.

HOW TO WEIGH HISTORIC EVIDENCE

If we wish to maintain the integrity of our courts we should not forget that the problem of establishing facts in history is as demanding as that of establishing any facts. We must recognize that there is a lot about history that we cannot know. None of us can be honestly sure of anything we have not experienced in our own lifetime and, unless we are to start accepting the evidence of spiritualists, no witnesses can be called. Judicial notice should only be taken of facts that are readily verifiable or so generally known and accepted that they cannot reasonably be questioned.78 Our culture has no tradition of oral history. To be counted as fact an assertion about history should be provable on the basis of documentary or archaeological evidence. Otherwise we are just speculating or weaving myths.

It is worth remembering that the admission of documentary evidence was originally allowed as an exception to the hearsay rule.79 When dealing with historical documents admissibility should not be taken for granted. They must be authenticated like any other documents. If a document has been kept in a public archive and is part of the public record admission should be no problem.80 Otherwise, we must delve into the realm of antiquarian scholarship. In considering whether the Mirror of Justices was a forgery or a recent fabrication Maitland weighed a number of factors including the provenance of the oldest manuscript, the ink, the handwriting style and the consistency of the contents with what was known about the period from other sources.81

Most of us have learned what we know about history from secondary materials. Standard historical works are admissible only as the opinions of the authors, not to prove facts.82 This is more reasonable than one might think. Anyone who has tried to write history knows how easy it is to introduce misconceptions. There are times when it is impossible to complete a sentence without using one word or another that imports a shade of mean-

ing for which no supporting evidence is available. There is an example in this paper. When the Mirror of Justices was characterized as a joke a lot of other possible motivations that the experts who studied the work mentioned were glossed over. In these circumstances any opinion about the author’s motive can be nothing more than speculation, and the word “joke” imputes a motive.

Once a document or opinion about history has been admitted in evidence all the standard considerations that can affect weight apply. As lawyers we are especially familiar with the quirks and vagaries of human belief and memory. Advocates for a particular point of view tend to be blind to their own assumptions as they sneak past established rules of evidence to propound theories based on hearsay and embellished by an active imagination.83

Court reports can be relatively good documentary sources of information, not only because they were made in the normal course of business, but also because the circumstances involve particular care to ensure that the facts determined were correct. Of course, they should be used with some discretion. For example, the cases cited in this paper are an excellent source for the names of the participants in the disputes described, but completely unreliable for information on Roman or Teutonic law.

Similarly, secondary historical works should be examined as if their authors were expert witnesses. Other sources can be referenced in lieu of cross-examination. We should consider what sources of information were used84 as well as the authors’ training, education, background and opportunity to know what they wrote about. Much has been written here to discredit the Mirror of Justices as an historical source, but some ancient authors were excellent historians. Livy (59 B.C. to A.D. 17) was a conscientious Roman historian who recognized that some of his sources were unreliable.85 Szuma Chien (146 to 86 B.C.) set exceedingly high standards for written history, verifying all his facts by consulting official records and travelling to the far corners of China to compare conflicting versions of events.86 Two thousand years later we should try to do as well.

History is a very political field, as Szuma Chien discovered to his detriment. (He was castrated for writing a favourable account of a general who had surrendered to the Huns.87) If strict standards of historical proof are applied one does not always come to a “politically correct” conclusion. This is as true for male conspiracy theory today as it was a century and a half ago for the theory that according to unwritten law women were legally disabled from holding public office.

In our profession we should not be afraid of unpopular cases. It is the task of a lawyer to be on guard against human fallacies that can bias decision-

making. The whole history of the development of our elaborate rules of evidence and court procedures can be seen as a search for a means of ensuring that the final verdict speaks the truth. Our conclusions will be only as good as the methodology we apply.

ENDNOTES

1. Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (UK), 1982, c 11.

2.People often misunderstand ancient terms derived from societies with extended family and tribal obligations or from feudal organization. When considering European sources we tend to forget that both male and female were born under the “potestas” of a father or grandfather and could become sui juris See Justinian’s Institutes, available in many editions; T Mommsen, P Kreuger & A Watson, The Digest of Justinian (Philadelphia: University of Pennsylvania Press, 1935); Samuel E Thorne, Brackton on the Laws and Customs of England (Cambridge, Mass: Belknap Press of Harvard University Press, 1968).

3.[1930] AC 124 (PC) [Edwards].

4.Anecdotal accounts about the dehumanized status of women in other cultures also tend to collapse in the light of proper anthropological analysis.

5. Rex v Stubbs (1788), 2 TR 395.

6. Edwards, supra note 3.

7.FW Maitland agrees: Wm J Whittaker, ed, The Mirror of Justices (London: B Quartich, 1895) at xiviii.

8.Attorneys: F Pollock, F Maitland, The History of English Law Before the Time of Edward I, 2nd ed (Cambridge University Press, 1952) at vol i 482; H Kirk, Portrait of a Profession (London: Oyez Publishing, 1976) at 3. Judges: F Hargrave, C Butler eds, Coke Upon Littleton, at 325. Examples from primary sources include: Juliana who acted as attorney for her husband Roger (Year Book 13 Edward lll Rolls Series at 186); Christiana de Weare who acted for her sister Lucy against Ralph de Sparkford (Seldon Society, Select Civil Pleas vol 1 [1200-1203] plea 141 at 56).

9.WJ Whittaker ed for Seldon Society, The Mirror of Justices (London: Bernard Quartich, 1895); WH transl The Mirror of Justices (Washington DC: John Byrne, 1903).

10.The Mirror has also been cited as authority showing that a woman had acted as justice of the peace. Kettleby for the plaintiff in Olive v Ingram 7 Mod 263 at 267.

11.Perhaps not. Bebb v Law Society [1914] Ch 286 at 291 nl.

12.F Pollock, F Maitland, supra, note 8, vol i 28, vol ii 478n; A Pulling, The Order of the Coif (London: Wm Clowes & Sons, 1897) at 8n; but see especially F Maitland’s introduction, supra note 7.

13. Re Mabel French (1912), 1 DLR 80 at 82.

14.(1738) 7 Mod 263.

15.See ibid at 264. He lived at a time when property holdings determined voting rights and he seems to

have feared that loss of voting rights through non-use by women could be applied to anyone.

16.See ibid 14 at 265.

17. Sui juris is a term taken from Roman law meaning “of full legal capacity”. In English law it meant a person who was able to contract validly and who was not under the control of another. J Burke, Osborn’s Concise Law Dictionary, 6th ed (London: Sweet & Maxwell, 1976).

18.Counsel for the defendant responded with a kneejerk argument saying a woman would be better at keeping the church clean. See supra note 14 at 266–67.

19.See In Re Mabel P French (1905) 37 NBR 359 at 365, citing Bradwell v State of Illinois 16 Wall 130.

20.See supra note 5.

21.Ann, Countess of Pembroke, Dorset and Montgomery, had sat with the judges on the bench at the Assize of Appleby. Supra note 5 at 397.

22.Referred to only as “16 Vln. Abr. 415” and “VIn. tit. Poor, 415.”

23.(1868) LR 4 CP 374.

24. Reform Act (2 Wm 4, c 45).

25.See supra note 23 at 385; F Schevill, A History of Europe (New York: Harcourt, Brace, 1925) at 571.

26. Constitution Act, 1867 (UK), 30 & 31 Vict, c 3 (formerly British North America Act, 1867).

27.Schevill, supra note 25 at 574.

28. Representation of the People Act, 1867, 30 & 31 Vict, c 102.

29. Lord Brougham’s Act, 13 & 14 Vict, c 21, s 4.

30.See for example Lord Coke, Co Litt 128a.

31. Dictionary of National Biography, vol 1 (London: Oxford University Press, 1953) at 261.

32. Chorlton v Lings (1868), LR 7 QB 374 at 375 referring to the Statute of Marlbridge, 52 Hen 3, c 10.

33.In retrospect, it is interesting to note that he did not make a very strong constitutional argument though he seems to have recognized this was a constitutional issue, citing chapter 13 of Hallam’s Constitutional History and other constitutional references. Ibid at 375 and 378.

34.See supra note 23 at 382.

35.Living at a time when property rights determined voting rights he feared the right to vote could be lost through non-use. Olive v Ingram, supra note 10 at 264.

36.8 Hals 4th 805, citing Entick v Carrington (1765) 19 State Tr 1029 at 1068.

37.For example Viscount Haldane called him “one of the most learned and accurate exponents of the law of England who ever sat on the Bench” in Viscountess Rhondda’s Claim [1922] 2 AC 339 at 386.

38.He suggested that abbesses who signed at the Gemot were just observing and that women were no admitted to Saxon councils because they did not bear arms. See supra note 23 at 388–89.

39.See supra note 23 at 390.

40.Nevertheless Lee CJ appeared keen to consider the issue of women’s right to vote in Parliament. He gave evidence himself, mentioning a manuscript he had seen that said a “feme sole freeholder may claim a voice for Parliament men, but if married her husband must vote for her” (Holt v Lyle 4 Jac.l.), then adjourned for more argument. After the adjournment the court focused on the particular proceeding at hand, leaving us to wonder what pressures may have been brought to bear on him in the meantime. Olive v Ingram, supra note 10 at 271 et seq. Bovill CJ took this to mean that the manuscript mentioned could not be found. See supra note 23 at 382.

41.See supra note 23 at 394.

42. Beresford-Hope v Lady Sandhurst (1889), 28 QBL 79 at 83.

43.See supra note 42 at 95–96. Lord Esher’s misstatement of Willes J’s opinion was commented on by Ronan LJ and Molony CJ in Frost v The King [1919] 1r.1 Ch.81 at 105 and 113.

44.See supra note 42 at 91.

45. Municipal Corporations Act, 1882, 45 & 46 Vict, c 50.

46. Ibid. Section 63 says “For all purposes connected with and having reference to the right to vote at municipal elections words in this Act importing the masculine gender include women.”

47.See supra note 42 at 93.

48. De Souza v Cobden, [1891] 1 QB 687.

49.In Re Mabel P French (1905), 37 NBR 359.

50. Ibid.

51. Ibid, per Hannington J at 363 and Barker J at 364. McLeod and Gregory JJ agreed.

52. Act enabling Women to Practice Law, SNB 1906, c 5.

53. Re Mabel French (1912), 1 DLR 80.

54.After practising in BC for a few years Ms French married Mr Hugh Travis Clay in London, England then moved to Seattle. A Watts QC, History of the Legal Profession In British Columbia 1869–1984 (Canada: Evergreen, 1984) c 11. Unfortunately, Mr Watts gives us no description of her career.

55. Nairn v University of St Andrews, [1909] AC 147 at 155.

56. Ibid at 161.

57. Solicitors Act, 1843, 6 & 7 Vict, c 73.

58. Bebb v Law Society, [1914] 1 Ch 286.

59. Ibid at 289.

60.Maitland’s introduction (see supra note 7) is mentioned. Ibid at 293.

61.Shandon LC in a letter entered into the record as his judgment in Frost v The King [1919] lr.R. 1 Ch 81 at 85; Ronan LJ at 105 and Laloney CJ at 113.

62. Ibid, at 85–86.

63. Sex Disqualification (Removal) Act, 1919, 9 & 10 Geo 5, c 71.

64.The Committee of Privileges advised the King but lacked the authority of a court of law because it included lay members of the House of Lords. See note 66 at 376–77 and 401.

65.Viscount Birkenhead LC complained that he decided in only three hours. See note 66 at 379.

66. Viscountess Rhondda’s Claim, [1922] 2 AC 339 at 388.

67. Ibid at 386–87.

68. Ibid at 396.

69. Ibid at 390.

70. Reference re Meaning of Word “Persons” In S 24 of the BNA Act, 1867, [1928] SCR 276.

71. Edwards v AG Canada, [1930] AC 124 (PC).

72. Ibid at 130.

73. Ibid

74. Ibid at 140.

75. Ibid at 138.

76. Ibid at 141. Sections 41 and 84 of the BNA Act have since been repealed.

77.If this had been recognized the problem of deciding historical facts might not have arisen in the first place.

78.AF Sheppard, Evidence (Vancouver: Carswell, 1988), at para 1187 citing R v Potts, 26 CR (3d) 252 at 259; leave to appeal to SCC refused [1982] 1 SCR xi Ont.

79.17 Hals 4th 206 nl.

80.17 Hals 4th 75.

81.WJ Whittaker ed The Mirror of Justices (London: Bernard Quartich, 1895) at introduction.

82.“Standard authors may be referred to . . . as shewing the opinions of eminent men on particular subjects, but not to prove facts.” 17 Hals 4th 206 citing (1856) 1 H & N 1 at 8. This case also involved Willes J. It unsuccessfully appealed his exclusion of documents tendered by the defendant in a trial in which the jury awarded a customs officer damages for libel after he was called a traitor for belonging to a Roman Catholic organization.

83.Francis L Wellman, The Art of Cross-Examination 4th ed 1936 (New York: Collier, 1962) Ch 8.

84.And of course, it never hurts to check a reference to see if it actually says what the author quotes it for. Macdonald CJA‘s cite in Re Mabel French (BCCA), supra, led me to Pulling’s critique of the Mirror, supra.

85.DeLloyd Guth, Sources of the Common Law (UBC Faculty of Law, 1989).

86.Yang H-Y, G Yang transl, Selections from Records of the Historian, Szuma Chien (Peking: Foreign Languages Press, 1979), Preface at iii.

87.Preface at ii.

BRITISH COLUMBIA CHAPTER

NAME

Frank Borowicz, K.C.

Joseph Boskovich

Hon. Mary Ellen Boyd

Barb Cornish

Nick de Domenico

Brian L Gibbard

Paul D. Godin

Jeffrey A. Hand

Janice F. Hansen

Bryce Jeffery

William E. Knutson

Dean P. J. Lawton, K.C.

John Logan

Simon Margolis, K.C.

John Moshonas

Christopher O’Connor, K.C.

Vincent R. K. Orchard, K.C.

Carol Roberts

Alan Schapiro

Kerry Short Scott Snider

Paul D. Taberner

Mark L. Tweedy

James D. Vilvang, K.C.

BASED IN

Vancouver

Vancouver Vancouver Vancouver Port Moody N. Vancouver Victoria Vancouver Victoria Langley Vancouver Victoria Vancouver Vancouver Vancouver

Nanoose Bay Burnaby Vancouver Vancouver Vancouver Vancouver Vernon Vancouver Vancouver

PHONE

(604) 351-7755 (604) 669-5500 (604) 639-3172 (604) 639-3174 (604) 492-2690 (604) 492-2690 (778) 587-4499 (604) 449-3830 (250) 216-2420 (604) 530-3141 (604) 684-0727 (250) 381-7188 (604) 681-6564 (604) 639-3173 (604) 682-5466 (778) 229-1708 (604) 240-8589 (604) 915-5222 (604) 221-1660 (604) 639-3175 (604) 281-4808 (604) 351-3270 (604) 341-8980 (604) 661-9262

CALENDAR

BENCH AND BAR

The lion (representing England) and the unicorn (representing Scotland) are found on not only the United Kingdom’s royal coat of arms, but also the royal coat of arms for Canada (though they are not wearing crowns in the latter). The U.K. royal coat of arms is the coat of arms that has traditionally, though not invariably, appeared in B.C. courtrooms. The lion and the unicorn have also found their way into reasons for judgment and law firm advertising—not just in the Commonwealth. See how many lionhearted colleagues and “legal unicorns” you can find below.

Harninder Dhillon leaves Buckley Hogan Law Office to join Legacy Tax + Trust Lawyers. Tevia R.M. Jeffries departs Dentons to join Farris. Kevin Chen joins Lawson Lundell from Wiebe Wittmann Robertson. Liyan Wu also finds herself at Lawson Lundell, having moved from across the street at Clark Wilson. Mark C. Guiton takes on the role of chief executive officer at the IWA–Forest Industry Pension Plan and the IWA–Forest Industry Long Term Disability Plan. He was previously general counsel, a role now taken on by Brandon J. Wiebe, who moves from his role as legal counsel to the plans. Mary Buttery, K.C., is now with Osler’s Vancouver office, moving from Cassels Brock & Blackwell to get there. Janina M. Kon moves on from her position as senior legal counsel and leader, regulatory and health law at Vancouver Coastal Health Authority, to senior legal counsel at TELUS, where she will be dedicated to TELUS Health. The Honourable Richard B.T. Goepel, K.C., joins Watson Goepel as senior counsel. Vicki L. Tickle has taken her antipodean ways from McMillan to Cassels Brock & Blackwell. Jes-

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.

sica Chung leaves Pryke Lambert Leathley Russell and the liquefactionprone Richmond for higher ground in Vancouver with Lawson Lundell. Mitchel J. Cunningham joins Watson Goepel after leaving Hammerco LLP. Also now at Watson Goepel are Ben Ling (Linda) Chen, who was at DSAvocats, and Alexandra Levine, who came from KPMG Law. Lauren E. Cook moves to become in-house counsel with Teck Resources Ltd., having previously been with Lawson Lundell. Dan W. Melnick moves to Vancouver to join Clark Wilson, leaving behind life in Victoria at Cook Roberts. Winkie Chan also joins Clark Wilson, moving from Hammerco Lawyers. Blair Hobkirk is now at Lawson Lundell, having said goodbye to Bennett Jones. Stephanie Wong moves from Lawson Lundell to Terra Law. Peter Cross moves from Dolden Wallace Follick to become in-house counsel at Zurich. Narwal Litigation welcomes Alexandre Giroux from Peck and Company along with Shanna Gu from Alan D. Gold Professional Corporation in Toronto. Margaret De Marre has moved her tax litigation practice from Legacy Tax + Trust Lawyers, and Rebecca Cynader has moved her tax planning practice from Farris, to join the partnership at Scion Law LLP.

Kyle Hyndman starts up at MKS Immigration Lawyers in Vancouver after moving from McCrea Immigration Law. Dahl & Connors merge with Winright Law to become Winright Connors. Hakemi & Ridgedale joins MLT Aikins. Kaitlin Hardy joins HHBG Lawyers from Sugden McFee & Roos LLP. Justin Fekete departs Fillmore Riley in West Saint Paul, Manitoba to move west and join Legacy Tax + Trust Lawyers in Vancouver.

The Honourable Michelle O’Bonsawin was appointed as a justice of the Supreme Court of Canada. She is the first person of Indigenous heritage to sit on that court. Her appointment fills the vacancy created by the retirement of the Honourable Michael J. Moldaver.

The Provincial Court website explains the lion-and-unicorn coat of arms displayed at all levels of court in this province, noting that “[w]hen the British arrived on the west coast of North America in the 19th century, they brought their traditional judicial icons with them. Those icons included red or black robes, powdered wigs – and the Royal Arms of the United Kingdom. In 1856 an order in council prescribed the use of this coat of arms in British Columbia and our courts have continued to use them ever since.” For those interested in more detailed historical review and commentary, see Murray Blok, “Honi Soit Qui Mal Y Pense: Heraldry in the Courtroom” (2004) 62 Advocate 869; John deP. Wright, “A Mari Usque Mare: More Heraldry in the Courtroom” (2005) 63 Advocate 353; and C.S.T. Mackie, L.R.H.S.C., “Man-

isty, You Fool: Constitutional Confusion Over Heraldic Display in British Columbian Courtrooms” (2010) 68 Advocate 683.

In determining whether a Crown witness, a police constable, could testify at trial via videoconference, the B.C. Supreme Court considered how he fared when appearing in that manner on the Crown’s application to allow video testimony. Justice Duncan remarked that the constable “described a fairly clear view of the courtroom, apart from a few blind spots, which I am satisfied can be fixed by changing the camera angle. The worst that can be said about the constable’s perception of the courtroom is that he mistook the unicorn on the coat of arms above the bench as a horse”: R. v. Zamora, 2020 BCSC 1259.

According to the National Museums Scotland website, “[u]nicorns did once roam the earth”: “Elasmotherium Sibericum, a distant relative of the modern rhinoceros, disappeared less than 40,000 years ago”. CNN reported in 2016 that Elasmotherium Sibericum (a.k.a. the “Siberian unicorn”) unfortunately “looked nothing like the mythical creatures portrayed in so many fairy tales”. In this regard, “[i]t was fatter and furrier, and in reality more rhino than stallion. It did, however, have a huge horn.” For more about rhinoceroses, see “Bench and Bar” in our September 2022 issue.

Andrew R.T. Pendray was reappointed as a part-time member of the Civil Resolution Tribunal for a term ending December 31, 2025. C. Chad McCarthy was reappointed as a full-time member for a term ending January 2, 2025. Kristin B.W. Gardner and Sherelle Goodwin were both reappointed as full-time members for terms ending April 7, 2028.

The Court of Appeal of Alberta has noted that it is not a breach of the Charter for the Crown to fail to “produce what does not exist … . The defence cannot manufacture a breach by demanding that the Crown ‘disclose’ a full list of all its unicorns”: R. v. Dias, 2010 ABCA 382 at para. 41.

Lewis Carroll’s Through the Looking Glass and What Alice Found There features sparring between the lion and the unicorn, traditionally reflective of tensions between England and Scotland. As a messenger proclaims to the White King and Alice, who run to watch, “They’re at it again!” When Alice asks whether the one who wins gets the crown being fought over, the White King says, “Dear me, no! … What an idea!”

The CBABC announced its new board of directors in September. The 2022/23 term will be guided by: Aleem S. Bharmal, K.C., President; Scott

Morishita, First Vice-President; Lee M.G. Nevens, Second Vice-President; Judith Janzen , Chair of the Finance and Audit Committee; Randy W. Robinson , Aboriginal Lawyers Forum Representative; Rupinder Gosal , Equality Representative; Dan Melnick , Young Lawyers Representative; Patricia Blair, Director at Large; Mylene de Guzman, Director at Large; Sarah L. Klinger, Director at Large; and Adam Munnings, Director at Large.

“The appellant seems to think she had what some clients dream of, a retainer agreement in which all duties are owed to the client, but no duties are owed by the client; especially not any obligation to pay the lawyer. That is like a unicorn or a perpetual motion machine: no one has found one yet”: MacPherson Leslie & Tyerman LLP v Moll, 2014 ABCA 45.

Kory Wilson was appointed to the special advisory committee of the Board of Education for School District No. 57 (Prince George), for a term ending July 28, 2023.

With the death of Queen Elizabeth, our world has changed in many ways. Most immediately for the legal profession, all Q.C.s are now K.C.s (see “Legal Anecdotes and Miscellanea” starting on page 925 of this issue). The “Queen’s Printer” is now the “King’s Printer”. And Regina is gone in favour of Rex in all styles of proceeding for civil or criminal matters involving the government. HMTQ or “Her Majesty the Queen” becomes HMTK or “His Majesty the King”. It will be a long time before the Q ever comes back. We think it will be missed, for many reasons.

The National Trust notes that “[t]he lions which we see on the English coat of arms are Barbary lions, with which some English people would have been familiar if they had been to the Royal Menagerie at the Tower of London, where a few were kept.”

England’s King Richard I was and is also known as Richard the Lionheart or Lionhearted, at least in part in recognition of his formidable military skill.

E. Blair Lockhart was reappointed as a commissioner to the British Columbia Utilities Commission for a term ending November 26, 2025.

In February 2023, Beverly J. Froese will be reappointed as a member of the British Columbia Human Rights Tribunal for a term ending February 28, 2028.

The Washington State Court of Appeals has noted that “[t]he use of animal analogies at trial is problematic”, but “there is no hard and fast rule”. In this regard, “not all human-animal comparisons are racist or dehumanizing. Some analogies are positive. It is a compliment to say someone is lionhearted, eagle-eyed, or busy as a bee”: In the Matter of the Personal Restraint of Joseph Andrew Richmond, No. 37057-7-III (2021).

Senior Justice Law Firm, a U.S. law firm that focuses on lawsuits against nursing homes and other facilities for elder abuse and neglect, has a lion logo. Its website explains: “The lion is one of our planet’s most majestic and awe inspiring animals. We chose the lion as our logo because it is strong, protective and just. A lion does not fight arbitrarily. When it does engage, it prevails … . Let a Lion Defend Your Pride”.

The U.N. Declaration of Human Rights was drafted in 1947–48 and proclaimed by the United Nations General Assembly in Paris on December 10, 1948. It is the most translated document in the world, available today in over 530 languages.

The unicorn is the official national animal of Scotland. This is likely the only instance of a mythical animal being an official national animal of a country. According to the National Trust of Scotland, “[t]hese proud, untameable creatures are fiercely independent and famously difficult to capture or conquer, which will sound familiar to anyone who has read their Scottish history”. Prior to the Union of the Crowns in 1603, the Scottish coat of arms featured two unicorns.

In Eveready Canada v. Duracell Canada Inc., 1995 CanLII 7328, the Ontario Supreme Court (General Division) considered a dispute over whether the defendant was breaching contractual and statutory obligations in broadcasting a commercial claiming that its batteries were superior to the batteries of the plaintiff. The court noted the commercial, called “Staying Alive”, showed a party with costumed partygoers, in which “[a] unicorn, which has the defendant’s battery strapped to his back and is therefore powered by it, outdances all other dancers until at the last, he dances with a masked dancer in a blue dress. He dances vigorously, she dances more languorously. She collapses in a heap, her mask falls away revealing a pink bunny whose eyes close as she expires. The unicorn then dances up the stairs.” The court added that “[t]here was some debate over whether or not the pink bunny was actually dead or not, but I regard this as a somewhat esoteric debate. The implication is very clear that the battery of the defen-

dant powering the unicorn is far superior to the battery of the plaintiff powering the pink bunny.”

The ranks of membership in the Order of British Columbia were recently added to with the appointment of Professor Maureen Maloney, K.C., P. Geoffrey Plant, K.C., Hon. Jody Wilson-Raybould, P.C., K.C., and Bruce M. Wright, K.C., among others.

Recently, the Vancouver Bar Association undertook a clearing out of old lockers at the Barristers’ Lounge at the Vancouver courthouse. Among the items located in one locker was the robe bag of Ken McEwan, K.C., and the trousers and suspenders of the Honourable David Crossin. Mr. McEwan had occasion to reflect favourably on the return of his beloved robe bag, which was a gift to him from his brothers. He had always thought it had gone missing during a lunch with opposing counsel, the Honourable Jon Sigurdson (long before he became Honourable). Suspicion has now been lifted from Mr. Justice Sigurdson as the items were not squirreled away by him as some sore loser gesture, but were simply stored in the same locker … for 32 years! The Advocate has no information on whether Mr. Justice Crossin has yet been reunited with his trousers and suspenders.

The logo for Harmon Hayden Law, in Kamloops, is “the Lion of Lucerne”, which as the firm’s website describes, “was carved into the rocks by Bertel Thorvaldsen in a former sandstone quarry in Lucerne, Switzerland, in 1820 and measures 10 metres by 6 metres. It was created in honour of the 700 Swiss Guard who fought in the French Revolution and were subsequently killed by the revolutionary mobs. Above the lion are sketched the Latin words: “HELVETIORUM FIDEI AC VIRTUTI”. This means: “To the loyalty and bravery of the Swiss.” The website notes that “[m]ore broadly, we use the logo not only to honour the brave Swiss, but brave warriors throughout history.”

On a motion to enforce a settlement pursuant to Rule 49 of the Ontario Rules of Civil Procedure, Justice Perell noted that “this particular Rule 49 motion is a unicorn, rare and peculiar in a nice way”. The matter was unusual in that a party against whom enforcement was sought admitted breach of the settlement, that he had no defence and that he wanted the settlement to be enforced—simply at a later date. He was unsuccessful: GMBR Capital Corp. v. Parmar, 2021 ONSC 7798.

Lion Legal Services—“Roaring to the Rescue!”—is a law firm in Arkansas. Under the heading “Meet The Pride”, the firm’s website notes: “A pride of

lions includes hunters, protectors, and nurturers. Their specialties may be clear, but they cooperate to maintain the health of the pride. Our pride of Lion Lawyers is similar. We work as a team, not as individual hero[e]s, to get the best possible results for our clients.” It also assures the audience: “The Law of the Jungle is changing! Lion Legal Services is making it happen.”

The phrase “OK” comes from the mid-19th century and is probably an abbreviation of orl korrect, a humorous form of all correct popularized as a slogan during the presidential re-election campaign of U.S. lawyer Martin Van Buren in 1840. His nickname was Old Kinderhook, derived from his place of birth, and “OK” was used both as a reference to his nickname and his slogan. Van Buren served as the eighth president of the United States, between 1837 and 1841. He was not re-elected. It is not clear whether he was OK with that or not. Likely not as Van Buren was listed by Time magazine in 2014 as one of the “Top 10 Forgettable Presidents”.

Rational Unicorn Legal Services is a law firm that describes itself as providing “personalized, relationship-oriented legal services to small businesses, nonprofits, artists, and entertainers in Washington, Oregon, and California”. The firm’s owner and principal attorney notes: “There’s nothing inherently pretentious, scary, stuffy, inaccessible, or abrasive about practising law. To prove it, we take great pride in demonstrating that there’s a better way: one that’s attainable, collaborative, inclusive, connected – and, yes, magical … We’d love to support your legal-services needs so you can get back to being your confident, fabulous, frolicking, sparkling, glittering, dazzling self – and sharing your own magic with the world.”

You have seen increasing numbers of them tearing around on streets and sidewalks: the electric kick scooter. The B.C. government is running the Electric Kick Scooter Pilot Project, which authorizes their use on roads (but never sidewalks) only in participating communities that have passed enabling bylaws. At present, that is only Kelowna, Richmond, Nanaimo, Vernon, Vancouver, West Vancouver and the City and District of North Vancouver.

Scotland celebrates National Unicorn Day on April 9th every year.

The website “Georgia Law Lions” describes a personal injury firm whose members are “ferocious litigators on the hunt for justice!”

The Lion’s Law Office, PC, in California, notes on its website: “we help people. That’s what we do. People who are in great need of help, and have

nowhere else to turn. We give strength to the weak, courage to the discouraged. We look for justice against those who would try and escape it.” “[A]ggressively representing the injured and the innocent since its very inception”, the firm is named after its founder’s “family’s Irish shield [which features a lion] … and we serve as a shield for our clients against unscrupulous insurance adjusters and negligent parties that intend to do them harm.”

Legal Unicorn Society, in the United States, describes itself as “[a] collective of socially-conscious lawyers providing a full-service client experience at affordable rates”; readers of its website are invited to contact the society “to find a nearby legal unicorn for your specific needs”.

Lionheart Legal is a law firm in California focusing on estate planning, trust and estate litigation, probate and conservatorships.

“Like the unicorn, or perhaps more charitably, like a subatomic particle that would lie beyond the ability of science to detect, it [a limitations exception to litigation privilege] is a concept whose existence has been theorized but it has never actually been seen”: Langley (Township) v. Witschel, 2015 BCSC 123.

Robert G.W. Lapper, K.C., was appointed as a member of the 2022 Judicial Compensation Commission.

The first place in the British Empire to grant women the right to vote was in Lower Canada in 1792, some 136 years before all women over 21 gained that right in Britain. See also Ludmila B. Herbst, K.C., “The Curious Case of the Disappearing Vote – Legal Anecdotes and Miscellanea” (2016) 74 Advocate 619, and “From Our Back Pages”, starting at page 931 of this issue.

Legal Unicorn & Partners is a law firm in India.

Lionheart Lawyers is a law firm in Sydney, Australia.

Early in the COVID-19 pandemic, Justice Steven Seeger of the U.S. District Court for the Northern District of Illinois, Eastern Division, lost patience with plaintiffs seeking to obtain the court’s assistance to stop possible counterfeiting of their unicorn-themed designs. As the judge wrote on March 18, 2020 in Art Ask Agency v. [Various], 20-cv-1666 (2020): This case involves counterfeit unicorn drawings. The complaint includes a few examples of products that allegedly infringe Plaintiff’s trademarks, which offer “striking designs and life-like portrayals of fantasy subjects.”

… One example is a puzzle of an elf-like creature embracing the head of a unicorn on a beach … Another is a hand purse with a large purple heart, filled with the interlocking heads of two amorous-looking unicorns … There are phone cases featuring elves and unicorns, and a unicorn running beneath a castle lit by a full moon … Meanwhile, the world is in the midst of a global pandemic. The President has declared a national emergency. The Governor has issued a state-wide health emergency. As things stand, the government has forced all restaurants and bars in Chicago to shut their doors, and the schools are closed, too. The government has encouraged everyone to stay home, to keep infections to a minimum and help contain the fast-developing public health emergency.

The United States District Court for the Northern District of Illinois took action last week to protect the public, issuing General Order No. 20-0012 entitled IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY. See www.ilnd.uscourts.gov (last visited March 16, 2020) (bold and all caps in original). On March 16, the Executive Committee issued an amended Order that, among other things, holds all civil litigation in abeyance. Id. Last week, Plaintiff filed a motion for a temporary restraining order (Dckt. No. 11) against the Defendants (who are located abroad) and requested a hearing. See Dckt. No. 1, at ¶ 12. This Court thought that it was a bad time to hold a hearing on the motion. So, this Court moved the hearing by a few weeks to protect the health and safety of our community, including counsel and this Court’s staff. See Dckt. No. 19. Waiting a few weeks seemed prudent.

Plaintiff has not demonstrated that it will suffer an irreparable injury from waiting a few weeks. At worst, Defendants might sell a few more counterfeit products in the meantime. But Plaintiff makes no showing about the anticipated loss of sales. One wonders if the fake fantasy products are experiencing brisk sales at the moment.

On the flipside, a hearing – even a telephonic one – would take time and consume valuable court resources, especially given the girth of Plaintiff’s filings. See Dckt. Nos. 1, 6-7, 11-18. And the proposed temporary restraining order would require the attention of innocent third parties, and create a cascade of obligations. Plaintiff wants to force financial institutions to lock down accounts, and require domain name registries to shut down websites, for example. See Dckt. No. 12. Plaintiff requests an order forcing innocent third parties – such as Amazon, eBay, PayPal, Alibaba, Western Union, plus social media platforms such as “Facebook, YouTube, LinkedIn, [and] Twitter,” plus internet search engines such as “Google, Bing and Yahoo,” among others – to spring into action within two or three days. Either the order would be a nullity, or it would distract people who may have bigger problems on their hands right now.

In response, Plaintiff Art Ask Agency and its counsel filed a motion for reconsideration. See Dckt. No. 20. They ask this Court to re-think its scheduling order. They want a hearing this week (telephonically if need be). Plaintiff recognizes that the community is in the midst of a “coronavirus pandemic.” Id. at ¶ 3. But Plaintiff argues that it will suffer an “irreparable injury” if this Court does not hold a hearing this week and

immediately put a stop to the infringing unicorns and the knock-off elves. Id. at ¶ 4. To top it off, Plaintiff noticed the motion for a hearing on March 19, 2020, a day that has been blocked off on the Court’s calendar – as revealed on its webpage – for several weeks. See www.ilnd.uscourts.gov (last visited March 16, 2020) (“The Honorable Steven C. Seeger will not be holding court on Thursday, March 19, 2020 . . . .”).

Meanwhile, the Clerk’s Office is operating with “limited staff.” See Amended General Order No. 20-0012, at ¶ 5. “[P]hone conferencing” is available “in emergency situations and where resources permit.” Id. at ¶ 1. The Court can still hear emergency motions, but resources are stretched and time is at a premium. Id. at ¶ 4. If there’s ever a time when emergency motions should be limited to genuine emergencies, now’s the time.

Thirty minutes ago, this Court learned that Plaintiff filed yet another emergency motion. They teed it up in front of the designated emergency judge, and thus consumed the attention of the Chief Judge. See Dckt. No. 23. The filing calls to mind the sage words of Elihu Root: “About half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop.” See Hill v. Norfolk and Western Railway Co., 814 F.2d 1192, 1202 (7th Cir. 1987) (quoting 1 Jessup, Elihu Root 133 (1938)).

The world is facing a real emergency. Plaintiff is not. The motion to reconsider the scheduling order is denied.

The Unicorn Law Firm is the name of a law firm in Nigeria that describes itself as focusing on “startups, technology, creators, and investment”. Its website notes that “we are able to provide each entrepreneur, creator, and investor with dazzling excellence with adequate, value-driven legal solutions”.

“If there are instances of commercial leases that do not require the timely payment of rent, they must occur with the frequency of unicorn sightings”: Midland Plaza Inc. v. Midland Medical Services Inc., 2015 ONSC 7608.

In 2017, “The End” café in Brooklyn sued Starbucks for trademark infringement after the latter released its limited edition “Unicorn Frappuccino”. The End café had earlier developed, started selling and applied for a trademark for its “Unicorn Latte”. Both seemed rather garish in colour. CBS explained that at the time “many unicorn-themed foods [were] popular on social media, including a recent rage for ‘unicorn toast,’ which is toast spread with rainbow-colored cream cheese”. With respect to the drinks themselves, CBS noted that while Starbucks’ concoction was “made with ingredients including sugar and natural and artificial flavours”, The End’s was “whipped together with artisanal ingredients like dates, ginger root and algae that might appeal to hipster enclaves. Neither drink contains coffee.” The suit was settled a few months after being commenced.

“Defendant class actions are so rare they have been compared to ‘unicorns’”, an analogy that “is apt insofar as it relates the infrequency of defendant class actions and unicorns. But after that, the analogy breaks down. A survey of literature reveals that unicorns are often majestic and even magical creatures with attributes superior to those of traditional animals … In contrast, the attributes of defendant class actions are, at least at times, not so noble. In fact, the inherent risks of such proceedings are likely the reason for their rareness”: Bell v. Brockett, No. 18-1149 (4th Cir. 2019).

Thought du mois

:

The light of democracy must be kept burning. To the perpetuation of this light, each of us must do his own share. The single effort of one individual may seem very small. But there are 130 million individuals over here. And there are many more millions in Britain and elsewhere bravely shielding the great flame of democracy from the blackout of barbarism. It is not enough for us merely to trim the wick, or polish the glass. The time has come when we must provide the fuel in everincreasing amounts to keep that flame alight.

—Franklin D. Roosevelt (1882–1945), 32nd President of the United States

WYER IN VICTORIA

rporate disputes. Our practice is province wide and involves significant numbers of trials, appeals, mediations and arbitrations. This is an excellent opportunity for a junior to intermediate lawyer to work in our Victoria office with respected senior practitioners to develop their liti ation skills in a rogressive firm with an enviable client base.

What you will bring:

• 2 to 8 year call with litigation experien

• personable lawyer with excellent research, writing and practise management skills;

• capable of collaborating with our senior lawyers as well as managing their own case load.

Please email cover letter and resume to: Eric Stanger at estanger@dhsmlaw.ca

CONTRIBUTORS

Christopher Harvey, Q.C., B.A., Dip. Law, LL.M., Ph.D., was a fisherman, a basketball player, a marathon runner, an elite canoe paddler, a skier, a husband, a father, a stepfather, a grandfather, a scholar and, of course, a barrister. He was also a former editor of the Advocate. Chris passed away shortly before Her Majesty the Queen, making him, possibly, British Columbia’s last Queen’s Counsel. He will be remembered in a future issue.

Alim Khamis is a partner in the Construction, Infrastructure and PPP and Litigation and Dispute Resolution practice groups at Dentons. He is called to the bars of British Columbia, Ontario and Australia. He previously worked in Dentons’ Dubai and Sydney offices.

Tina Parbhakar is a family law practitioner from and based in North Vancouver at North Shore Law. After working in Uganda on early childhood development, she cofounded the Children’s Law Section within the CBABC. Called to the bar in 2010, Tina is the 2020 recipient of the CBABC’s Equality and Diversity Award and is a current program co-facilitator of the North Shore Restorative Justice Society.

Sarah Pike is a sole practitioner at Spike Law, specializing in advising lawyers and law firms with Indigenous legal clients and mainly in relation to British Columbia Aboriginal title litigation or specific claims. In her spare time, Sarah is a legal historian. See if you can crack the cypher on her firm website that yielded “Inconceivably signify vaporize Goth fracas Kamloops thread almond fracture”.

Aminollah Sabzevari works as counsel at the Department of Justice Canada. He clerked at the Provincial Court of Alberta and completed a master of laws degree at the University of Alberta. He is teaching the bankruptcy and insolvency course at the Allard School of Law this year. Aminollah has volunteered for the past 15 years as a judge for high school science fairs in British Columbia and Alberta.

Polly Storey is an associate at Clark Wilson LLP, practising in the areas of estates, trusts and elder law. She knows how to pick a title, with recent writing credits including “A Tale of Two Spouses” and “Better Late than Never”.

Mark S. Weintraub, K.C., a Q.C. when last featured on this page, is a senior litigator at Clark Wilson LLP practising in the field of estates and trusts.

Louisa Winn, K.C., is Crown counsel with the BC Prosecution Service, first prosecuting cases involving violence and property offences (“blood and guts”) and then prosecuting commercial crime offences (“paper cuts”). Volunteering for organizations such as the Federation of Asian Canadian Lawyers (British Columbia) and the Canadian Bar Association, British Columbia Branch, she is also co-director of the documentary But I Look Like A Lawyer.

David Wotherspoon is a partner at Dentons Canada LLP, with a focus on corporate and commercial disputes. He also engages extensively in pro bono cases.

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