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OFFICERS AND EXECUTIVES

LAW SOCIETY OF BRITISH COLUMBIA

Jeevyn Dhaliwal, K.C. President

Brook Greenberg, K.C. First Vice President

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

Don Avison, K.C.

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BENCHERS

APPOINTED BENCHERS

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Paul A.H. Barnett

Sasha Hobbs

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Tanya Chamberlain

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Christina J. Cook

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Jeevyn Dhaliwal, K.C.

Tim Delaney

Brian Dybwad

Brook Greenberg, K.C.

Ravi Hira, K.C.

Lindsay R. LeBlanc, K.C.

James A.S. Legh

Dr. Jan Lindsay

Michèle Ross

Natasha Tony

Benjamin Levine

Jaspreet Singh Malik

Jay Michi

Georges Rivard

Gurminder Sandhu, K.C.

Thomas L. Spraggs

Barbara Stanley, K.C.

James Struthers

Michael F. Welsh, K.C.

Kevin B. Westell

Jonathan Yuen

Gaynor C. Yeung

CANADIAN BAR ASSOCIATION

BRITISH COLUMBIA BRANCH

BOARD OF DIRECTORS

Lee Nevens

President

Mylene de Guzman

First Vice President

Patricia Blair

Second Vice President

Dan Moseley

Finance & Audit Committee Chair

Dan Melnick

Young Lawyers Representative

Dimple Kainth

Equity, Diversity and Inclusion Representative

Adam Munnings

Aboriginal Lawyers Forum Representative

Connor Bildfell

Director at Large

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Director at Large

Randolph W. Robinson

Director at Large

Nathan Bauder

Director at Large

ELECTED MEMBERS OF CBABC PROVINCIAL COUNCIL BRITISH COLUMBIA BAR ASSOCIATIONS

ABBOTSFORD & DISTRICT

Kirsten Tonge, President

CAMPBELL RIVER

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Shannon Aldinger, President

COWICHAN VALLEY

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Michael Jones, President

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NANAIMO CITY

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NEW WESTMINSTER

Mylene de Guzman, President

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Lyle Perry, President

NORTH SHORE

Adam Soliman, President

PENTICTON

Ryu Okayama, President

PORT ALBERNI

Christina Proteau, President

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Marie Louise Ahrens, President

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Bryan Crampton, President

QUESNEL

Karen Surcess, President

SALMON ARM

Dennis Zachernuk, President

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Peter Buxton, K.C., President

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Executive

Heather Doi President

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Zachary Rogers

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Niall Rand Past President

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Sofia Bakken, President

CARIBOO

Coral D. Atchison

Nathan R. Bauder

Jon Maurice Duncan

KOOTENAY

Jamie Lalonde

Christopher w. Trudeau

NANAIMO

Patricia D. Blair

Phil Dwyer, C.M.

Benjamin D. Kingstone

PRINCE RUPERT

Emily Beggs

VANCOUVER

Connor Bildfell

Erica Chow

Joseph G. Cuenca

Nicole L. Garton

Rupinder Gosal

Diane Maureen Gradley

Jennifer Khor

Bruce McIvor

Leena (Ronak) Yousefi

VICTORIA

J. Berry Hykin

Cherolyn Knapp

Anwarullah Mujtabah

WESTMINSTER

Rebecca Lee Darnell

Manpreet K. Mand

Natasha S. Nair

Matthew A.G. Somers

Gurjit Kaur Tiwana

YALE

Mark Brade

Laurel D. Hogg

Aachal N. Soll

CANADIAN ASSOCIATION OF BLACK LAWYERS (B.C.)

Cecilia Barnes, President

FEDERATION OF ASIAN CANADIAN LAWYERS (B.C.)

Fiona Wong, President INDIGENOUS BAR ASSOCIATION (B.C.)

Michael McDonald, President

SOUTH ASIAN BAR ASSOCIATION OF BRITISH COLUMBIA

Hardeep S. Gill, President

ASSOCIATION DES JURISTES D’EXPRESSION FRANÇAISE DE LA COLOMBIE-BRITANNIQUE (AJEFCB)

Sandra Mandanici, President

ADVOCATE

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VOL. 82 PART 6 NOVEMBER 2024

Entre Nous .

On the Front Cover: Lee Nevens By barbara findlay, K.C.

British Columbia’s Quiet Retreat from “Alternative Shelter” Law Underlines Need for Human Rights-Based Approach to Homeless Encampments By Stepan Wood

Remembrance By

Desmond MacMillan

Access to Justice in French By Georges Prat

Gambling with Responsibility: Time for Donoghue to Don Its Red Cape Again By Shan Malhi

Sir Thomas Beecham By David

Roberts, K.C.

The Last Capital Case — Part I By Hamar Foster, K.C.

The Wine Column .

LAPBC Notes

New Judges

ON THE FRONT COVER

Read about the remarkable Lee Nevens, who stands on the front cover before the colours of the trans flag, starting on page 819.

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

ENTRE NOUS

Who is the best lawyer in your law firm? If you are a sole practitioner, congratulations, it is you! (Although, truth be known you are also the worst lawyer in your firm, so don’t get too cocky.) If you are one of two lawyers in your firm, are you the best lawyer or is your colleague? Does such a question even make sense? Perhaps you each practise in entirely different areas with little overlap. Maybe one of you is better at some things, and your partner is better at some other things, so neither one of you is the best, or maybe you are both the best. Now expand the size of the firm. Which one lawyer is the best in the entire firm? Does it help to break it down into practice areas and say that one lawyer is the best at securities litigation and another is best at real estate conveyancing? You can probably see where this is going: who is the best lawyer in Canada? Or, more accurately, who are the best lawyers in Canada? As one astute lawyer from Toronto recently posted on LinkedIn: “50% of lawyers can’t be BEST”.

The end of August is “awards season” for lawyers when (among others) a company named BL Rankings, LLC (which operates Best Lawyers® and Best Law Firms®) announces its list of “best lawyers” in Canada. The effect is more or less immediate. Lawyers’ newsfeeds explode with law firms posting long lists of how many of their lawyers continue to be or are newly “best” while some of the more bashful members of the profession post about how humbled they are at being named Best Lawyer® by their peers. Perhaps not surprisingly, the publication announcing the news, Best Lawyers in Canada©, is the little cousin of Best Lawyers in America©, which claims the following on its website:

Best Lawyers peer-reviewed listings are now published in 76 countries around the world, and our presence has grown substantially in the international legal community. The 28th edition of The Best Lawyers in America® (2022) includes more than 66,000 lawyers in 147 practice areas,

covering all 50 states and the District of Columbia, and inclusion in this year’s publication is based on 10.8 million detailed evaluations of lawyers by other lawyers.

In other words, this is by no means small potatoes. When Americans are told to “Be Best” by their First Lady, they do not hold back. In fact, 66,000 attorneys stepped right up to be deemed “best”. More accurately, the “peers” of 66,000 of the best stepped up and nominated their fellow lawyers. Meanwhile, a Best Lawyer® in Hamilton, Ontario recently commented online about what BL Rankings, LLC describes as its Pure Peer Review® process:

Today I received an email telling me that I have been recognised by my peers in the 2025 edition of Best Lawyers in Canada in personal injury litigation and medical negligence. The email states that “inclusion in Best Lawyers is based on a rigorous peer-review survey”. I have been receiving these emails for a number of years. I have never paid the sizeable fee to use the Best Lawyer logo in marketing but in February they did send me an email enclosing a “Best Lawyers Ballot” inviting me to rate 100 lawyers. The rating was 0 to 5 with no indication of what each number represented with an option to provide additional feedback of up to 255 characters. There was no indication as to whether or for how long or how well I knew the lawyer, whether I would refer a client to the lawyer, whether I was aware of any disciplinary action against the lawyer, etc. If what I received constituted their “rigorous peer review survey” I would beg to differ.

Once enough of your colleagues have voted for you and you are declared to be the “best”, you cannot simply advertise as such without agreeing to comply with BL Rankings, LLC’s licensing requirements to use its logos and trademarks. As you might expect (or possibly, as your marketing department might have informed you), to hold yourself out as a Best Lawyer® or as a Best Lawyers: One To Watch® in your advertising materials costs a pretty penny. Licences can be purchased for a 12-month period. Using the logos without paying the fee may result in BL Rankings, LLC taking legal action against one of the Best Lawyers® out there.

To be fair, BL Rankings, LLC’s terms also include this reminder:

PLEASE NOTE that in consideration for the limited use of the marks Best Lawyers®, Best Law Firms®, Best Lawyers: Ones to Watch® and Purely Peer Review® in connection with publicity or other advertising, all awarded lawyers and/or law firms expressly agree to abide by the terms and conditions of these guidelines AND ANY APPLICABLE STATE BAR LEGAL ADVERTISING LAWS, RULES AND REGULATIONS

For lawyers in British Columbia at least, rules about advertising include Rule 4.2-5 in the Code of Professional Conduct for British Columbia, which provides:

4.2-5 Any marketing activity undertaken or authorized by a lawyer must not be:

(a) false,

(b) inaccurate,

(c) unverifiable,

(d) reasonably capable of misleading the recipient or intended recipient, or

(e) contrary to the best interests of the public.

Is it in the interests of the public for lawyers to advertise themselves as being the “best” at something? Is being the “best” at something as wildly expansive as the practice of law verifiable? How can there be so many “best” lawyers out there? What does “best” even mean? While it might be true to say that one received a Best Lawyer® designation, is that sufficiently clear to the public as to whether the lawyer is actually “best” at practising law or “best” at marketing legal services? Please do not misconstrue what our position is. Plenty of lawyers with these designations are excellent lawyers very much deserving of recognition. But (and forgive us) is this the best way to recognize them? Advertising this way might, in fact, be contrary to the Code. The Law Society of British Columbia should weigh in on this (although many of the benchers have been recognized as some of the Best Lawyers®, so it will likely have to be some of the Not Exactly the Best Lawyers® who need to weigh in on the matter).

BL Rankings, LLC is by no means alone. The Globe and Mail has similar listings for “Canada’s Best Law Firms” and also requires the recipients to pay a hefty annual fee to legally use the Globe’s classy laurel-leaf-framed logo in marketing activities. Meanwhile, a website calling itself “canadastop lawyers.ca” offers impressive-looking plaques and trophies that can be purchased to decorate offices and reception areas with a lawyer’s name and the words “Canada’s Top 50 Lawyers” engraved on it.

There are also scams out there, preying on egos and the need for recognition. The American College of Trial Lawyers recently sent out a message to its members warning:

It has been brought to our attention that Fellows have been receiving solicitations from companies claiming to offer, for a fee, a College Registrants/Member list or a plaque for various acknowledgements. Please be aware that these emails are not from the College. The College does not sell, provide, or distribute membership information to any third parties, and we ask that you disregard any such solicitations.

The National Office has directly addressed these unsolicited scam emails with the companies involved. We have informed them that our membership lists are confidential, and their attempts to use or distribute this information has not been authorized by the College. We have made it

clear that any continued attempts to distribute or sell our members’ information will result in legal action.

Even the Advocate is not immune. One of our contributors recently received an unsolicited email from someone claiming to work at the Advocate (they don’t) offering for sale a commemorative framed work of their article featuring the Advocate’s logo. Presumably clients drawn to that law office would be impressed by such a commemorative piece hanging in the lawyer’s office. If it comes to litigation, the good news is that our editorial team contains at least three of the Best Lawyers® in Canada practising at some of Canada’s Best Law Firms® (although—and we want this to be absolutely clear—not at any of Canada’s Top 50 Law Firms®).

One of the better responses to the fanfare of humility on LinkedIn during the “awards season” came from a lawyer at a Vancouver law firm who posted a photograph of a Bernese Mountain Dog panting under the firm’s logo with the following caption:

I am honoured and proud to announce that Bernadette “Bernie”, Chief Wellness Officer at [law firm], has been recognized in the 19th edition of The Best Law Firm Dogs in Canada®.

Bernie is humbled to be recognised by her peers and congratulates her fellow recipients in the B.C. bar.

One of the law firm’s competitors responded: “I voted for Bernie.”

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“Jimmy Who?” by Kathy Traeger, acrylic on canvas, 48'' x 36'', 2024

ON THE FRONT COVER

LEE NEVENS

By barbara findlay, K.C.

To learn, to serve, to advance. That motto of the Royal Canadian Air Cadets captures Lee’s approach to life. Lee is the first nonbinary transgender lawyer to be president of a provincial section of the Canadian Bar Association (“CBA”), and they have, almost singlehandedly, transformed the legal profession’s acceptance of, and competency about, trans people and trans rights. But the legal profession continues its implacable exclusion of non-binary people.

There is nowhere to pee. When Lee goes to court, they have no washroom to use in the courthouse and are forced to pick the risk of using the women’s, the risk of using the men’s, or the risk of waiting until they can return to their office. Consider what it would mean to your daily activities if you had to calculate whether, where and when you could use a washroom.

Lee joined the Royal Canadian Air Cadets at age 13, having decided that they needed more structure in their life than their artist father thought necessary. Lee’s francophone mother and anglophone father separated when Lee was four, and Lee grew up in Burnaby primarily with their artist dad, whose hands-off parenting style was informed by his hippie roots and artistic rebellion.

Foodbanks were a way of life, and toys often came from the annual toy drive. When there wasn’t food in the house, Lee’s dad would send them to a friend’s for supper. Lee’s father shaped Lee’s outlook on the world. His art (<www.nevens.ca>) is an insouciant examination of the ordinary, featuring huge pieces out of unlikely media—bubble gum, old shoes, blood from the abattoir (turned into a Victoria Cross war medal from the dust of the dried blood).

Lee credits their father’s deep love and outsized creative inspiration as one of their main influences. “I learned from him to look deeply at everyday things, and to understand the importance of context—to not just accept things at face value,” they said. “We were pretty poor, but I didn’t know that till after I left home.”

Lee followed their nose to focus on things that interested them. As a result, their early education included both remedial and enrichment classes: their achievement was entirely a product of their interest. At age 13, about the time that most teenagers are rebelling against authority, Lee sought out the Air Cadets so that they would have more structure in their life. Lee credits Air Cadets with giving them both discipline and confidence. They never looked back.

In high school, they were on the A-list. They were part of their awardwinning debating team, Minister of the Environment in the school government, a trombone-playing member of three bands (jazz, concert and cadets), and in a choir. Oh yes, and Cadets: leadership training, teaching, drill team, survival training and flying Cessnas and gliders.

They headed to McGill at the age of 17. It was at McGill that they came out as queer. Within 18 months they were the leader of Queer McGill. They were a relative latecomer to law school, enrolling at 30 after time as a policy analyst with the Legal Services Society. In law school, they co-chaired OutLaws, and very early got involved with the CBA.

“Before law school, I prided myself on being the same person wherever I was,” said Lee. “But when I became a lawyer, I thought I had to learn a character, to be someone different depending on the context.” Lee used to listen to angry music on their way to court, in an effort to be more aggressive as counsel. “But I quickly gravitated back to relaxed, upbeat music. I am my best in court when I am myself doing my job.”

When Lee speaks to law students now, they counsel them not to learn how to fit in, but to learn how to make the profession welcoming to them as who they are. Lee is a well-respected litigator at the Department of Justice, a courtroom veteran who jokes that their first trial was 30 minutes, their second was two hours and their third was 200 days.

Lee’s understanding of themself as a trans person came as a moment of recognition that that was in fact who they had always been—a moment of epiphany shared by many trans and queer people. They identify as nonbinary, an umbrella term for people whose gender is not exclusively as a man or a woman, and may be neither.

Lee’s first move to pronoun recognition was the inclusion of their pronouns in the signature line of their emails at Justice—a now-widespread

practice of respect in the profession. Later in a complex court case, Lee provided a counsel list for the court that included everyone’s pronouns. In doing so, Lee was among the first lawyers to include their pronouns in introducing themselves to a court—a practice which is now part of court directives about counsel introductions. In their role as co-chair of SAGDA (Sexual and Gender Diversity Alliance, formerly SOGIC) at CBABC, Lee provided input to the courts on those directives.

Lee insists they are not an activist, but an advocate. For them, the difference is that an activist is someone who operates outside the system; an advocate operates inside it. “I think I am strongest from the inside,” they explained. “My focus for trans issues is on education and bringing people in.” But taking on the education of the legal profession, who like society as a whole were ignorant of the lives of trans people, has been exhausting. In explaining who trans people are, and what their legal rights are, Lee is literally putting their own body on the line.

Lee is quick to note that they are not the only trans lawyer to be doing that kind of work, and mentioned particularly Adrienne Smith, a non-binary activist and educator, who does trainings primarily in unionized workplaces.

I asked Lee what motivated them to put their body and their reputation on the line in order to do trans advocacy and education in the legal profession. They said two things: “I have not had any trans mentors in the profession, so I have had to become the person I needed.” They went on: “I am very aware that though I may be—and am—targeted for transphobia, I am at the same time insulated from some of it by my privilege as a white person, my privilege as a masculine-presenting person, and my privilege as a lawyer. I have a duty to use that privilege. Unless we lift each other up, what is equality about?”

Their trainings have been very well received. Lee commented that it is routine for them to get feedback that the training had changed someone’s life—either because they were trans, or because they had a trans friend or child. One person showed their trans teenager a transcript which included Lee’s gender-neutral “Mx” honorific (pronounced “mix”). The teen was blown away that it was possible to be visibly trans in the legal profession.

But every training session Lee has done also carries the risk of vulnerability: that someone will say something harmful, that their personal vulnerability will be misused, or that in some way their work doing trans education will be a credibility stain on their work as a lawyer.

Ken Manning has worked with Lee at the Department of Justice for more than ten years, as co-counsel and as Lee’s manager, and says there is no chance that Lee’s reputation as a lawyer can be besmirched. “They are

excellent counsel,” said Manning. “Their careful analysis, unflappable demeanour, and unfailing courtesy make them one of the best litigation lawyers at Justice.”

Lee is passionate about the role of a public-sector lawyer. “In my view, unless we have a strong and nonpartisan legal department advising whichever government may be in power, democracy itself is weakened,” they said. “In addition to their duties to their client and as officers of the court, public-sector lawyers have DoJ-mandated extra ethical duties as public servants.”

In their role at Justice, Lee has worked on some of the most consequential cases of the last decade, including the Cambie Surgeries case, about the delivery of private medical care in British Columbia; Ahousaht Indian Band and Nation, about the articulation of Aboriginal commercial fishing rights and federal fisheries regulations; and the ongoing Cowichan Tribes case with respect to declarations of Aboriginal rights and title around the Fraser River.

Lee says that their litigation skills were honed in the context of working as a junior for senior lawyers with diametrically opposing styles, forcing them to adapt to and learn both top-down and bottom-up ways of thinking. “I had to switch back and forth between being the details person and being the big picture person. Though I found it tough, I couldn’t have asked for a better experience as a junior litigator.”

Lee is an adventurer. They have visited six of seven continents, most recently spending four weeks in South America and Antarctica. They have an insatiable intellectual curiosity, and a deep interest in how the law functions across cultures and countries. They have clerked for the Nunavut Court of Justice and interned at the International Criminal Tribunal for the former Yugoslavia, United Nations.

From the time they were called to the bar, Lee has been deeply involved in issues of equality and diversity, both for queer and trans people and more generally. From 2018 to 2023, they were the co-chair of the SAGDA section of the CBABC. They represented SAGDA BC at the CBA National SAGDA section. They joined the board of directors of the CBABC in 2020. And they co-chaired the Legal Equity and Diversity Roundtable, a collaboration of equity-seeking groups in the legal profession including SAGDA, the Aboriginal Lawyers Forum, the Canadian Association of Black Lawyers, the Faculty of Asian Canadian Lawyers, the South Asian Bar Association and the Women Lawyers Forum.

Lee has personally trained large parts of the legal profession about the lives and legal rights of trans people through their presentations for lawyers, administrative tribunals, law societies, law schools, judges and continuing legal education. And they were part of the creation of the two trans-affirming motions at this year’s annual general meeting of the CBA.

The first motion condemns the use of the notwithstanding clause to immunize legislation which denies equality rights of trans youth by requiring their teachers to “out” them to their parents. Says Lee, “The use of that clause against the tiny minority of people who are trans youth is a move that involves a political calculation that there will be fewer people who support equality rights than there are who want to target trans youth. That’s scary.”

The second motion calls on the CBA to adopt the comprehensive recommendations in the 2022 report “Access to Justice for Trans People”, including advocating with governments to combat transphobia and homophobia.

Lee’s work to do trans competency training and to get the support of the profession to support work against transphobia could not be more timely. The current tsunami of transphobia in the United States (the American Civil Liberties Union is tracking 530 anti-LGBTQ bills in the United States in 2024) is spilling into the Canadian context, where provincial policy and laws are directed at limiting the rights of trans youth.

The CBA both provincially and nationally has provided a bulwark against transphobia and homophobia in Canada, and Lee has had a major role in formulating their positions. They have held practically every position possible in CBABC and nationally relating to queer and trans issues.

They were co-chair of SOGIC (now SAGDA) in British Columbia, then of SAGDA nationally. During his tenure as CBA president, Steeves Bujold established and named Lee as chair of the Presidential Advisory Group on Inclusion of and Access to Justice for Trans, Non-Binary and GenderDiverse People, whose mandate is to advise the CBA on the initiatives, programs and policies the CBA should be putting forward to address the issues faced by the members of trans, non-binary and gender diverse communities in Canada. Now in its third and final year, the group is producing an online training course to be used to develop lawyer competency about trans issues.

Lee also has a deep understanding of how oppressions compound each other. All of their work is informed by an intersectional approach. They have an unusual-for-white-lawyers understanding of Indigenous issues, beginning with their clerkship in Nunavut, where they went on circuit to Kinngait and saw firsthand what reconciliation means in remote courts. And their DoJ legal work has given them a deep understanding of the complex legal environment for Indigenous peoples.

In 2022, Lee was awarded the CBA’s Touchstone Award, given annually to a lawyer who has made a significant national contribution to equality in the legal profession. Lee has also been deeply involved in equity work at the DoJ. Ken Manning says “Lee has made a very significant contribution at Justice as a co-chair of the employee-led Diversity and Inclusion Action Committee, which supports employees of the BC Regional Office by provid-

ing spaces for dialogue and connection around equity issues and advocates for systemic and cultural change within our office.” And Lee co-chairs the DoJ national advisory committee on SOGIE.

Lee’s success at their advocacy for trans recognition and inclusion is due to their excellence at collaboration—a skill of some rarity in the adversarial legal profession. Lee’s personal resilience was tested when they were diagnosed with cancer early in the pandemic. While undergoing chemotherapy in the isolation of COVID restrictions, they took to writing haikus to text to friends and family so they would know Lee was OK and feel more connected. Among their favourites, which speaks to much more than cancer, is:

air-born

jump, trip, push – the air didn’t care how I got there; so I learned to fly

Lee is rumoured to live with their partner, two cats and a part-time dog. (They are home so infrequently on account of their long hours that the rumour is hard to confirm.) In their “spare” time, their favorite activities are power lifting, camping and kayaking around British Columbia, and taking random classes at community centres.

Outgoing CBABC president Scott Morishita says, “Lee brings a distinctive and diverse skill set to the role of CBABC president, shaped by their experience as both a litigator and an educator. In the courtroom, Lee is a fierce advocate, who speaks with substance and conviction. In a learning setting, they are a patient, soft-spoken teacher who fosters understanding. Regardless of the role or the setting, Lee’s warmth and openness naturally draws people in. The CBA has already benefited immensely from their passion, wisdom, and keen judgment, and those of us who’ve had the privilege of working with Lee at CBABC are excited to see them take the helm. Lee will lead by example and will work tirelessly to create a safe, inclusive space where everyone can thrive.”

That they have reached the pinnacle of the CBABC as a proud, out, nonbinary trans person is a testament to Lee’s skill, their personality and their wisdom. Of this achievement, Lee says, “I hope that my work in the profession will mean that other trans and queer folk do not have to be brave just to be here.”

Steeves Bujold says, “Lee is a pioneer and a role-model for many generations of trans and non-binary law students and lawyers. I learned a lot from Lee. They are a true hero for our community and a leader at the Canadian Bar Association.”

To learn, to serve, to advance: Lee Nevens.

BRITISH COLUMBIA’S QUIET RETREAT FROM “ALTERNATIVE SHELTER” LAW UNDERLINES NEED FOR HUMAN RIGHTS-BASED APPROACH TO HOMELESS ENCAMPMENTS

By Stepan Wood

In July 2024, the British Columbia government quietly shelved the new law on homeless encampments that it passed in haste in November 2023.1 This decision marks the end—for now—of one of the province’s most troubling recent responses to homeless encampments. It is an opportunity for the province and municipalities to go back to the drawing board and develop a human rights-based policy response to encampments in partnership with people with lived experience of homelessness and their trusted allies.

This is not just a B.C. story. It has implications for governments across Canada and around the world that continue to resist putting the rights, interests, dignity and agency of society’s most marginalized members front and centre in efforts to resolve the crisis of homelessness.

BILL 45: IGNITING A CONTROVERSY

The new law on encampments took the form of amendments to the Community Charter and Vancouver Charter, the main statutes governing local government powers in British Columbia. The amendments added the following new section to each statute, right after an existing section authorizing local governments to obtain court injunctions to enforce their bylaws:

Availability of shelter

For the purposes of enforcing … a bylaw against a person who is sheltering at an encampment while homeless, alternative shelter is reasonably available to the person and meets the basic needs of the person for shelter if

(a) the person may stay overnight at the shelter,

(b) the person has access to a bathroom and shower at or near the shelter,

(c) the person is offered without charge one meal a day at or near the shelter, and

(d) the shelter is staffed when persons are sheltering at the shelter.2

The amendments were tucked into Bill 45, an omnibus statute amendment bill introduced in the B.C. legislature in early November 2023. The government claimed the bill was intended to provide clarity and consistency around the shelter standards that cities must meet in order to be able to decamp a homeless encampment. Premier David Eby claimed that the bill “reflects existing court decisions around removing encampments so that municipalities ‘meet a minimum standard of moving displaced people into shelter that’s dignified and safe’.”3

The bill left key terms (“homeless”, “encampment” and “near”) undefined and ambiguous. It failed to specify the legal consequence of meeting or failing to meet the statutory criteria. But most significantly, it exposed deep disagreements about the minimum shelter standards that municipalities must meet before they can ask a court to evict encampments from municipal land.

On one hand, the First Nations Leadership Council, British Columbia’s Human Rights Commissioner, the Federal Housing Advocate, researchers and other housing rights advocates slammed the bill for trampling on the human rights of unhoused people and making evictions too easy.4 They argued that the bill lowered the standard for injunctions set by the courts, ignored Indigenous peoples and their rights, disregarded the multiple intersecting barriers that make shelter spaces practically inaccessible to many unhoused people, denied unhoused people’s pressing need for daytime shelter and storage, and was drafted without consulting those affected by it.

As the BC Civil Liberties Association told the CBC, the bill tried “to impose a very low level, one-size-fits-all solution on a group of people that have very diverse needs that are often not met by these bare bones thresholds.”5 Opponents also pointed out that the bill, as drafted, did not even require shelters to provide any place to lie down and sleep. The absurd implication was that in principle, a 24-hour coffee shop could qualify as “reasonably available alternative shelter” for purposes of a decampment injunction.6

I co-wrote an open letter to the government from lawyers, activists, volunteers, community workers, researchers and people with lived experience of homelessness,7 urging the government to withdraw the bill and develop a policy response that adopts the rights-based approach set out in the National Protocol for Homeless Encampments in Canada.8

On the other hand, local government organizations claimed that Bill 45 would make encampment evictions practically impossible and encourage more encampments. 9 They complained that no B.C. municipality has enough shelter facilities that meet the bill’s standard, pointing to the huge

disparity between the number of unhoused people and the number of available shelter spaces throughout the province.

They argued that the bill would make injunctions highly unlikely, depriving municipalities of a key tool to manage encampments and forcing them to bear the burden of the province’s failure to provide adequate shelter spaces, which is a provincial, not municipal, responsibility.

HOMELESS INJUNCTIONS AND BELONGINGS

Coincidentally, the bill was introduced just days after the public launch of two research reports on homelessness by UBC legal researchers. In October 2023, my report of the first systematic study of homeless encampment injunction decisions in British Columbia was released.10 The study revealed that B.C. courts have granted an astounding eighty-five per cent of applications for interlocutory injunctions against homeless encampments on government-owned land. These injunctions are granted before the government has proven its case on the merits, and almost always bring the lawsuit to an end, since encampment residents are dispersed.

The study also showed that B.C. judges sometimes apply a relaxed approach to interlocutory injunctions that minimizes or ignores issues of irreparable harm and balance of convenience; often discount encampment residents’ evidence of the benefits of encampments, the harms of displacement and the barriers to alternative shelter; routinely resolve complex and contested legal and evidential issues on the basis of affidavit evidence alone; and never apply the “strong prima facie case” threshold that should apply to these cases.

On the other hand, the study also showed that applications for final injunctions against encampments have succeeded only twenty-five per cent of the time, indicating that courts are more likely to favour encampment residents when the issues and evidence are developed and explored carefully.

Furthermore, the study documented how, in recent years, courts have become more reluctant to grant injunctions and more sensitive to the benefits of encampments, the harms of continual displacement, the need for 24/7 shelter and storage, the practical inaccessibility of existing shelter alternatives for many encampment residents, the futility of a “whack-amole” approach to encampments, the intersection between homelessness and colonial oppression of Indigenous peoples, and governments’ tendency to exaggerate the risks of encampments.

A week later saw the launch of a major report and website on the law’s treatment of precariously housed people’s belongings by researchers at UBC, Simon Fraser University and the University of Ottawa.11 The Belong-

ings Matter report documents how the laws and rules that apply in various public and private spaces effectively strip unhoused and precariously housed people of their right to own their own personal belongings.12 It details how the complex and byzantine rules and regulations that govern sidewalks, parks, shelters, transitional housing, storage facilities, rooming houses, single-room accommodations and insecure rental housing routinely result in the seizure and destruction of unhoused and precariously housed people’s belongings, almost always without effective remedies.

Unfortunately, neither these reports nor any of the many other examples of policy-relevant research documenting the ways in which legal systems contribute to the crisis of homelessness13 appear to have informed the drafting of Bill 45 in the slightest degree.

THE PROVINCE BACKS DOWN—OR DOES IT?

Evidence-based research may not have stopped the government from pushing a regressive statute through the legislature, but it informed the public pressure campaign that led to the government’s decision to backpedal.

Faced with intense opposition from municipalities and other stakeholders, the government blinked. But instead of withdrawing the bill, as all critics demanded, the Premier promised to push it through the legislature but delay bringing it into force to allow further consultations.14 The government accordingly rushed this and several other important housing bills through the legislature with little debate, but inserted a provision that the “alternative shelter” amendments would come into force by regulation at an unspecified future date.15

The promise to consult further with relevant stakeholders before bringing the law into force was another matter. As I wrote with colleagues in an op-ed piece, “Passing a bad bill but holding off implementing it is no solution.”16 What was the point of consultation if the law was already on the books and would not change? Expressing the same sentiment, opposition MLA Michael de Jong called the government’s approach “highly presumptuous” and “a disservice to the notion of true consultation”.17

More importantly, the government was rather selective about whom it consulted. It consulted high-level organizations and officials including the Federal Housing Advocate, the BC Human Rights Commissioner, the Union of BC Municipalities and the First Nations Leadership Council. These are certainly important stakeholders, but there is little evidence that the government consulted individuals with lived experience of homelessness or the frontline advocates and service providers they trust to advance their interests—many of whom signed our open letter.

Shortly after the bill passed, I sent a follow-up message to the Premier, Attorney General and Housing Minister on behalf of an updated list of 161 open letter signatories from 31 organizations that advocate for and work with unhoused people, along with 12 post-secondary institutions and 9 law offices. We emphasized the importance of consulting people with lived experience and those they trust, and invited the government to use our list of signatories as a starting point.

In a reply email, the Premier’s office said they had asked the Ministry of Housing to follow up with us directly and assured us that the appropriate ministry official would respond at their earliest opportunity.

That was the last we heard for two months, during which none of the signatories or their organizations reported being consulted by the government about the bill.

Then in early February 2024, we received a letter from the Housing Minister stating that the consultations promised by the government were already underway and would finish in early 2024.18 The letter did not suggest that any of our signatories or their organizations would be consulted.

THE FEDERAL HOUSING ADVOCATE WEIGHS IN

A week later, Federal Housing Advocate Marie-Josée Houle issued her longawaited final report on homeless encampments.19 The report powerfully reinforced housing rights advocates’ critiques of Bill 45. It emphasized that encampments are an effort by unhoused people to “claim their human right to housing” and “are often people’s only housing option, or the only option that meets their needs for safety, security and dignity”.20

The report called on governments to immediately end all forced evictions of encampments, which it characterized unequivocally as a violation of human rights. To be clear: Bill 45 authorizes forced evictions of encampments via court injunctions. It is thus contrary to the Federal Housing Advocate’s report.

The report urged governments instead to support encampments with basic necessities, including clean water, sanitation, food, heating, cooling, accessibility, health care and harm reduction; and co-develop encampment-related policies with encampment residents. Further, the report insisted that laws and regulations must not further destabilize encampments or expose residents to greater risk of harm, and that police, bylaw officers and emergency services should halt surveillance, harassment and confiscation of belongings. It called on senior levels of government to ensure that municipalities have the resources and powers they need to uphold encampment residents’ rights and fulfill their urgent needs—not to obtain injunctions evicting them.

The report also called on all governments to apply a human rights-based approach to encampments that “recognizes and addresses the distinct needs of First Nations, Inuit and Métis individuals, Black and other racialized individuals, women, 2SLGBTQQIA+ individuals, people fleeing gender-based violence, youth, seniors and people with disabilities”.21

Finally, the report called on all governments and service providers to work to remedy the structural barriers that render existing emergency shelters inaccessible or inappropriate for many unhoused people—quite the contrary of Bill 45’s effort to authorize decampment injunctions despite these well-known barriers.

INCREASING THE PUBLIC PRESSURE

Frustrated with the lack of meaningful engagement and galvanized by the Federal Housing Advocate’s report, the loose coalition I was part of launched an online letter-writing campaign demanding that the government “sit down with precariously housed people and those they trust to create a policy framework that seeks to fulfill their rights to life, health and housing instead of seeking to justify forcibly evicting them from their homes”.22 The letter emphasized that this means meeting with encampment residents and the organizations and individuals they trust.

The letter insisted that the “alternative shelter” law must go, and summarized its faults:

It facilitates forced evictions of tent cities. It ignores the barriers many precariously housed people face to obtaining shelter, and the profound harm they suffer by having to pack up and move their homes and belongings every day. It says nothing about how evictions are carried out. It does nothing to ensure that tent cities meet residents’ basic needs. It allows outcomes that infringe residents’ rights and dignity. And it ignores the rights of Indigenous peoples, who are disproportionately represented in the unhoused population.23

Once again, it called on the government to take the rights-based approach proposed by the National Protocol for Homeless Encampments in Canada and now officially endorsed by the Federal Housing Advocate.24 The letter closed by emphasizing that precariously housed people and those they trust were ready and waiting to sit down with the government.

At least 286 individuals eventually sent copies of this letter to the government before we closed the campaign in July 2024. But still, none of the organizations or individuals in our group reported being consulted about Bill 45.

THE PROVINCE SHELVES THE LAW

That was how things stood until July 2024, when the Ministry of Housing

quietly sent letters to selected stakeholders announcing that the government had decided not to bring the alternative shelter law into force at this time, 25 because it had learned that “the amendments did not provide enough clarity for a common understanding of ‘reasonably available alternative shelter’ and the contexts under which the description should or could apply”.26

The Ministry’s letter claimed that the government had engaged with partners to better understand issues and concerns, including Indigenous partners and First Nations, local governments, community organizations, national and provincial advocacy groups, law enforcement and communities.27 As far as I know, these consultations did not include any of the signatories of the November 2023 open letter.

The announcement was welcomed by the UBCM, which reiterated that “no one really has that type of shelter. Also, they don’t have enough, or the quality, that is specified in that legislation.”28 This admission simply reinforces how far British Columbia is from having a defensible approach to encampment injunctions. Municipalities cannot even satisfy the bare bones standard of Bill 45, let alone the standard of practical accessibility increasingly demanded by the courts, much less a human rights-based standard.

Bill 45 is not dead, however. The province could still bring it into force at any time.

AN OPPORTUNITY TO RETURN TO THE DRAWING BOARD

I can only hope that this episode demonstrates to the province and municipalities the importance of going back to the drawing board to craft a policy response to encampments with the people who live in them and their trusted advocates, not just with stakeholders that governments pick themselves or feel they cannot afford to ignore.

The letter announcing the shelving of the alternative shelter law noted that “the province is developing a Provincial Encampment Response Resource in collaboration with BC Housing, First Nations, Indigenous and community organizations, Local Governments, and people with lived experience”. This resource will summarize provincial policies, good practices and resources for communities responding to encampments, “with a focus on coordination, partnership, and ensuring people-centered, culturally safe responses”.29

The development and issuance of this resource will be the next test of the province’s willingness to adopt a rights-based, consultative approach to tent cities that gives unhoused and precariously housed people a lead role in the development and implementation of policies that affect them.

Let us hope it does better this time around.

ENDNOTES

1. Rob Shaw, “B.C. Backs Down from Homeless Shelter Legislation”, CHEK News (15 July 2024), online: <www.cheknews.ca/rob-shaw-b-c-backs-downfrom-homeless-shelter-legislation-1214398/>.

2. Miscellaneous Statutes Amendment Act (No 4), 2023, SBC 2023, c 49, ss 1–2, amending Community Charter, SBC 2003, c 26 by adding s 274.1; and Vancouver Charter, SBC 1953, c 55, by adding s 334.1.

3. Sarah Grochowski & Katie DeRosa, “As Opposition Grows, B.C. Puts Brakes on Homeless Camp Eviction Bill”, Prince George Post (23 November 2023), online: <www.princegeorgepost.com/news/localnews/opposition-grows-to-b-c-bill-spelling-outwhen-municipalities-can-dismantle-homeless-en campments>.

4. See e.g. First Nations Leadership Council, press release, “FNLC Calls on BC to Defer Amendments to Bill 45; Urges a Human Rights Approach to Encampment Legislation” (28 November 2023), online: <www.bcafn.ca/fnlc-pr-bill-45>; Letter from Federal Housing Advocate Marie-Josée Houle to Housing Minister Ravi Kahlon (21 November 2023), online: <allard.ubc.ca/sites/default/files/2024-07/Fed %20housing%20advocate%20letter%20to%20Min_ Kahlon_Bill_C45_Nov2023.pdf>; Alexandra Flynn, Estair Van Wagner & Stepan Wood, “Comment: B.C.’s ‘Alternative Shelter’ Bill Tramples on the Rights of Unhoused People”, Vancouver Sun (24 November 2023), online: <vancouversun.com/opinion/op-ed/ bc-s-alternative-shelter-bill-tramples-on-the-rightsof-unhoused-people>.

5. Moira Wyton, “B.C. to Push Forward Encampment Injunction Changes Despite Backlash from Municipalities, Says Housing Minister”, CBC News (23 November 2023), online: <www.cbc.ca/news/ canada/british-columbia/bc-moves-forward-withcontroversial-changes-to-encampment-injunctions1.7038536>.

6. Ibid; Grochowski & DeRosa, supra note 3.

7. Open letter to Premier David Eby, Attorney General Niki Sharma and Housing Minister Ravi Kahlon (21 November 2023), online: <bit.ly/Bill45opnltr>.

8. Leilani Farha & Kaitlin Schwan, A National Protocol for Homeless Encampments in Canada (The Shift, 2020), online: <www.make-the-shift.org/wp-content /uploads/2020/04/A-National-Protocol-forHomeless-Encampments-in-Canada.pdf>.

9. Union of BC Municipalities, “UBCM Asks the Province to Withdraw Bill 45” (23 November 2023), online: <www.ubcm.ca/about-ubcm/latest-news/ ubcm-asks-province-withdraw-bill-45>; Trish Mandewo, “Comment: Proposed B.C. Law Could Lead to More Homeless Camps”, Vancouver Sun (24 November 2023), online: <vancouversun.com/ opinion/op-ed/comment-proposed-bc-law-couldlead-to-more-homeless-camps>.

10. Stepan Wood, Rush to Judgment: A Critical Survey of Court Injunctions Against Homeless Encampments in BC, 2000-2022 (Vancouver: Centre for Law & the Environment, 2023), online: <bit.ly/Rush2Judgment>. For further details of the study, see Stepan Wood,

“Reconsidering the Test for Interlocutory Injunctions Affecting Homeless Encampments: A Critical Assessment of BC Case Law” (2024) 61:1 Osgoode Hall LJ 161, online: <digitalcommons.osgoode.yorku.ca/ohlj /vol61/iss1/4/>.

11. Nicholas Blomley et al, Belongings Matter: Possessions of Precariously Housed People (October 2023), online: <belongingsmatter.ca/>.

12. Ibid. See also Nicholas Blomley, Alexandra Flynn & Marie-Eve Sylvestre, “Belongings Are Essential to Personhood. Why Would We Deny This Dignity to Homeless People?”, The Globe and Mail (12 April 2023), online: <www.theglobeandmail.com/opinion /article-belongings-are-essential-to-personhoodwhy-would-we-deny-this-dignity/>.

13. See e.g. Homeless Hub, “About the Homeless Hub”, online: <homelesshub.ca/about-us/>.

14. Katie DeRosa, “Transformative B.C. Housing Bills Being Forced Through with Limited Debate: Critics”, Vancouver Sun (28 November 2023), online: <van couversun.com/news/local-news/transformative-bc-housing-bills-being-forced-through-with-limiteddebate-critics>.

15. Miscellaneous Statutes Amendment Act (No 4), 2023, supra note 2, s 42.

16. Flynn, Van Wagner & Wood, supra note 4.

17. Legislative Assembly of British Columbia, Official Report of Debates (Hansard), 4th Sess, 42nd Parl, Issue No 375 (30 November 2023), online: <lims.leg.bc.ca/hdms/file/Debates/42nd4th/2023 1130pm-Hansard-n375.html#tt6045>.

18. Letter from Housing Minister Ravi Kahlon to Stepan Wood and others (5 February 2024), online: <bit.ly/KahlonBill45ltr>.

19. Office of the Federal Housing Advocate, Upholding Dignity and Human Rights: The Federal Housing Advocate’s Review of Homeless Encampments – Final Report (Ottawa: Office of the Federal Housing Advocate, 2024), online: <www.housingchrc.ca/en/pub lications/upholding-dignity-and-human-rightsfederal-housing-advocates-review-homeless>.

20. Ibid at 6.

21. Ibid at 21.

22. Form letter to Premier David Eby, Attorney General Niki Sharma and Housing Minister Ravi Kahlon (March 2024), sample available online: <bit.ly/ Bill45formltr>.

23. Ibid

24. Office of the Federal Housing Advocate, supra note 19 at 19, 25.

25. Paul James, “Province Backs Down on Homeless Decampment Demands, According to UBCM”, RadioNL (16 July 2024), online: <www.radionl.com /2024/07/16/120360/>.

26. Letter from Assistant Deputy Minister Meghan Will to “Local Government Partner” (10 July 2024), online: <www.ubcm.ca/sites/default/files/2024-07/ADMHousing-Letter-Bill45_0.pdf> [“Meghan Will Letter”].

27. Ibid

28. James, supra note 25.

29. Meghan Will Letter, supra note 26.

REMEMBRANCE

By Desmond MacMillan

This year’s Remembrance Day will mark 79 years since the end of World War II and well over 100 years since the end of World War I and the inaugural Armistice Day of November 11, 1919. In that time over 80 British Columbian lawyers and law students have made the ultimate sacrifice and lost their lives in defence of Canada. The Law Society of British Columbia has a plaque listing each one, dedicated to their memory.

In the first part of this century and prior to, British Columbia’s lawyers and law students have made significant contributions to Canada and the Canadian Armed Forces (“CAF”). They continue to do so. They routinely deploy throughout the Indo-Pacific and around the world. Closer to home, they serve in both legal and non-legal roles in reserve units across the province. Their service is most visible to the public during the forest fires, and sometimes floods, that frequent British Columbia.

LAW STUDENTS

The inaugural University of British Columbia Faculty of Law class in 1945 had over 70 students, both men and women, in uniform. This is no coincidence as World War II officially ended on September 2, 1945 and class started three weeks later.

I am confident that every faculty of law in British Columbia has at least one CAF member or veteran within its current student ranks. At Thompson Rivers University we have numerous students every year, generally from the neighbouring reserve infantry unit, the Rocky Mountain Rangers. In recent years we have also had a naval reservist and even a regular force CAF member embarking on the initial step of their legal officer training.

Thankfully, due to the lessening scale of conflict Canada is involved in, it is my understanding no lawyer or law student has died in service of Canada since World War II.

POSTHUMOUS BAR CALL CEREMONY

Due to the efforts of many, spearheaded by E. Patrick Shea, MStJ, K.C., a partner at Gowlings WLG in its Toronto office, the Law Society of

Ontario and numerous other provinces have held posthumous bar call ceremonies.

The minimum age for admission to be a law student in Ontario in 1914 was 16.

Almost a century after they died in combat, the Law Society of Ontario held a ceremony for all the World War I students who fought and died for our country. Each one was called to the bar on an honorary basis. Newfoundland followed suit, taking it a step further by including all the students who never completed their legal studies due to the impacts of war. Shea was so inspired by this that while conducting his research, he began identifying soldiers with similar stories from Ontario. The result was posthumous calls, and more, for former World War II survivors like Wing Commander Byron Rawson.

Twenty-three-year-old Rawson took his own life three months after returning from the war. Shea wrote to the Commonwealth War Graves Commission asking them to recognize Rawson as one of the “war dead”. Seventythree years later, the Royal Canadian Air Force unveiled a commemorative marker for Rawson in recognition of his service. His nephew traveled from Maryland to witness the event he wishes his grandfather could have attended.

Shea says for some in the profession, the honorary calls mean a lot. But to the families of the fallen, they mean so much more. Shea recalls:

There was a woman who attended the World War Two ceremony in Ontario. She was in her late 80s, I guess, and was just standing there, staring at one of the plaques (that I made). And I went up to her and politely asked her who she was. She was the baby sister of one of the lawyers. The picture I chose was a picture of him just before he went overseas, and that was the last time she ever saw him alive. So for her, it was closure.

In 2018 I was honoured to attend the “We Have Not Forgotten” Call to the Bar and Remembrance ceremony in Calgary, Alberta. It was held in the Ceremonial Courtroom, and presided over by, as they were at the time, Chief Justice Mary Moreau, Associate Chief Justice John Rooke and Justice Blair Nixon. The ceremony had current law students take the oath on behalf of the fallen law students.

Shea also notes:

The legal profession is a little bit unique, in the sense that we bring students in as a member to the profession. Engineers don’t have this, accountants don’t have this. Teachers don’t have this. And these projects let us provide closure, let us provide recognition, let us correct the record.

This Remembrance Day when looking at the names of the fallen on your local cenotaph, know that there likely is a lawyer or law student on the roll of the fallen.

ACCESS TO JUSTICE IN FRENCH

By Georges Prat*

In Canada, official language rights are an essential part of access to justice. Indeed, they are sacrosanct in the Canadian constitutional order. Section 16 of the Canadian Charter of Rights and Freedoms enshrines French and English as the official languages of the country, with equal status, rights and privileges in all institutions of Parliament and the government of the country. Section 19 permits any person to use either English or French in any court established by Parliament, and s. 23 grants a right to all parents whose first language is either English or French to have their children educated in the same language.

The Charter contains the “notwithstanding clause”, which permits legislatures to pass legislation that operates notwithstanding ss. 2 and 7 to 15 of the Charter by expressly declaring it. Those sections contain rights that are fundamental to a free and democratic society. For example, s. 2 includes freedom of conscience, s. 11 includes the presumption of innocence and s. 12 prohibits cruel and unusual punishment. By contrast, language rights protected by the Charter were considered so important by the framers of the Charter that they are not subject to derogation under the “notwithstanding clause” in s. 33.

Access to justice is vital in the criminal context, where the stakes of litigation are high. Official language rights protections are found in s. 530 of the Criminal Code. Anyone accused of a crime may have their proceedings in either French, English or both. Crucially, s. 530(3) requires judicial officers to advise accused persons of their official language rights before setting trial dates. If they fail to do so before this deadline, a judicial officer, of their own motion, can still order that the proceedings must take place in the language of the accused if that language is either French or English and it would be in the best interests of justice. “The best interests of justice” will often favour making the order.

It is sometimes said that a represented accused has only two choices that are theirs alone to make in their defence: whether to plead guilty and whether to testify. In the recent decision of R. v. Tayo Tompouba , 1 the

* The opinions in this article are those of the author and do not reflect the opinions of the BC Prosecution Service.

Supreme Court of Canada, in essence, ruled that a third fundamental and personal choice exists for the accused alone: their choice of an official language at trial.

Before an accused can choose their preferred official language, they must first know they have this right. It is not only their lawyer’s responsibility to advise them of it, but the court’s as well, and it must do so on the record. A failure of the court to advise an accused of this right amounts to an error of law that creates a presumption of appellate intervention (generally, a new trial). Appellate courts can only decline to intervene if the Crown rebuts this presumption by demonstrating the accused suffered no substantial wrong in failing to be advised of their language rights. However, “substantial wrong” is a lower bar than it might seem at first glance.

The facts of Tayo Tompouba illustrate this point. The accused and complainant went out on a date, which ended with the complainant and the accused stripping to their underwear in the complainant’s bed. According to the complainant, the accused proceeded to have intercourse with her without consent while she pretended to sleep. Shortly after his arrest, the accused gave a statement to police in which he admitted that he had intercourse with the complainant when he knew she was asleep.

The accused was from Cameroon and his first language was French, but he was tried in English and was never advised of his right to be tried in French. However, his English was strong. He understood the proceedings and participated meaningfully in them by testifying, though his testimony was rejected because it contradicted the initial confession to police, which the Crown had tendered at trial.

Given the facts of Tayo Tompouba, the accused’s conviction was safe, but the prejudice to him was not a matter of trial fairness or the reliability of the verdict. It was due to the violation of his fundamental right to have a trial in the official language of his choice, a right which he had not properly been informed of.

The Supreme Court in Tayo Tompouba ruled that official language rights exist to give equal access to public services that are responsive to Frenchspeaking or English-speaking Canadians’ linguistic and cultural identities. They cannot be ignored simply because an accused is fluent in the other official language than his official language of choice. Failing to advise an accused of this right, and to give effect to it, is a substantial wrong even if it would ultimately have had no effect on the verdict or sentence.

It should be noted that accused persons may speak a variety of languages other than the one in which they are tried. Where an accused has a poor understanding of an official language, court interpreters will communicate

the proceedings between the accused and other court participants. This is protected under s. 14 of the Charter and distinct from the requirements of s. 530 of the Criminal Code

Ideally, an accused who chooses a trial in French in British Columbia should have participants with the same level of knowledge and comfort with French as if the accused had chosen to be tried in English. Unfortunately, given the number of participants involved (defence counsel, Crown counsel, the presiding judge, sheriffs and court clerks), that will rarely be the case.

Currently, there are too few French-speaking judges for the number of cases they are called on to handle. French-speaking sheriffs, court clerks and criminal lawyers are also in limited supply. Of those that have competence in French, many will not wield it as smoothly as English speakers would at an English trial.

For many accused, electing to be tried in French risks violating another right: the right to be tried within a reasonable time under s. 11(b) of the Charter. In 2016, the Supreme Court of Canada ruled that Crown delay could not exceed 18 months in provincial court and 30 months in superior court, above which an accused is entitled to a stay of proceedings (charges dropped) unless the Crown can show that exceptional circumstances justify the delay. These ceilings apply no matter how serious the charges.

While delay may sound advantageous to the defence if it exceeds the ceiling set by the Supreme Court of Canada, many cases may still be tried in French under the ceiling but much more slowly than if the proceedings had been in English. For accused who are detained in custody awaiting the outcome of their trial, such delay is especially prejudicial. In sum, choosing a French trial in British Columbia means second-tier justice.

Other limitations to access to justice for French speakers exist, despite the robust language rights in our constitutional order. Provincial statutes are rarely translated into French, and disclosure in criminal cases is not provided in French without a court application. There is no presumptive right to translated disclosure, but an application can engage the right to make full answer and defence under s. 7 of the Charter

Francis Lamer, partner at Kornfeld, Shapray & Partners, advises that in the realm of family law, the federal Divorce Act was amended to allow for divorce proceedings to be heard in French. Section 23.2 of the Divorce Act operates much like s. 530 of the Criminal Code. It will come into force by order-in-council in British Columbia and has been in force in Yukon, Manitoba and Nunavut since March 1, 2021, and in Ontario and Saskatchewan since February 1, 2022.

There are considerable logistical difficulties to be faced before one can contemplate having divorce proceedings in French. The right to a trial in French involves ensuring that litigants who wish to conduct divorce proceedings in French are not prejudiced by that choice or forced, due to lack of resources, to resort to pleading in English or using forms available only in English (there are over 100 forms).

The most important issue regarding access to justice for French speakers involved in family law proceedings is the translation of the B.C. Family Law Act (family proceedings are often conducted under both federal and provincial statutes) as well as all family law forms enacted under provincial family law statutes that have been adopted exclusively in English. That is the situation in British Columbia, where no statutes or forms are translated and, a fortiori, no translation can be viewed to be “official”. Official translations remain a work in progress and will likely take years of cooperative work to become a reality.

An organization working towards improving access to justice for French speakers in British Columbia is the Association des juristes d’expression française de la Colombie-Britannique (“AJEFCB”). Its activities include workshops, seminars and outreach. Its president, Sandra Mandanici, is heavily involved with the AJEFCB’s board members in organizing a major event set to take place on February 5, 2025: a gala with keynote speaker the Right Honourable Richard Wagner, Chief Justice of the Supreme Court of Canada. Those interested in attending can register at <ajefcb.ca/gala25/>.

ENDNOTE

1. 2024 SCC 16.

GAMBLING WITH RESPONSIBILITY: TIME FOR DONOGHUE TO DON ITS RED CAPE AGAIN*

By Shan Malhi

On the 50th anniversary of M’Alister (or Donoghue) v Stevenson, 1 Justice Allen M. Linden paid tribute to the decision, celebrating the vitality of Lord Atkin’s “neighbour principle”,2 declaring it to be “not only alive and well, but thriving, vigorous, lusty, youthful, and energetic”.3 He opined that “the dominant sweep of history in negligence law has been toward expanding the neighbour principle into every nook and cranny of negligence law”.4 Justice Linden was right, of course: despite its vintage, the neighbour principle remains the lodestar for establishing novel duties of care.5 This paper will argue that the neighbour principle can be applied to address the challenges the burgeoning online gambling industry poses.

Donoghue marked a pivotal moment in negligence law, providing the foundational framework for establishing a duty of care.6 Lord Atkin’s “neighbour principle” posits that a duty of care exists between parties close enough to reasonably foresee how their actions—or inactions—might harm one another.7 These principles, originally applied to shield consumers from the harms arising from defective products, are equally applicable in the realm of online gambling.

Thus, it will be argued that online gambling platforms should owe consumers who enter self-exclusion agreements a duty of care to ensure the proper functioning of such self-exclusion regimes. Given the inherently dangerous and addictive nature of online gambling, operators must impose and rigorously maintain limits to mitigate the financial harm that consumers may suffer due to addictive behaviour. By applying the framework established in Donoghue (as currently interpreted by the Supreme Court of Canada), online gambling operators can be held accountable, thereby helping to mitigate the individual and social harms associated with online gambling.

* This piece was the winning paper in the 2024 Paisley Irregulars Essay Competition.

THE PROBLEM

The expansion of Canada’s legal online gambling market has led to a rapid increase in betting activity across the country.8 For example, in Ontario, where online gambling has been permitted since April 2022, data from iGaming Ontario, a subsidiary of the Alcohol and Gaming Commission of Ontario (“AGCO”), reveals that Ontarians placed a staggering $14 billion in wagers between April to June 2023, far surpassing previous years.9

Not surprisingly, the rise of Canada’s online gambling industry has coincided with a rise in the manifestations of gambling addiction.10 In a cautionary report, Professors Nigel Turner, Lindsay Sinclair and Flora Matheson highlight the negative repercussions of the spike in online gambling.11 This surge, they explain, was spurred by the introduction of new provincial regulatory frameworks, which expanded the legal online gambling market, allowing commercial entities to enter the market.12 A 2022 poll sheds light on a notable shift in gambling behaviour: for the first time, online casino gambling had surpassed in-person betting in popularity.13 The number of Canadians who report in-person casino visits at least once per year decreased from forty per cent to twenty-six per cent pre- and postpandemic,14 while online betting participation hit thirty per cent during the same period.15

Professors Turner, Sinclair and Matheson emphasize the correlation between the expansion of legalized gambling and the upswing in gambling advertising, as well as user encouragement through personalized notifications, bonus offers and in-app promotions.16 This has triggered a notable increase in calls to helplines for gambling-related issues, as online platforms continuously encourage users to place more bets, perpetuating a cycle that fosters addictive behaviour.17 A 2022 Statistics Canada study found that approximately 304,000 Canadians were at moderate to severe risk for gambling-related problems, with Professor Robert Williams stressing that “fifteen percent to 50 percent of gambling revenue comes from that one percent to four percent of problem gamblers”.18

The ramifications of problem gambling extend far beyond the individual, impacting both their families and society.19 Gambling Disorder (“GD”) manifests when individuals engage in problematic gambling for monetary gain, characterized by increased tolerance of risks, loss of control and a compulsive urge to “chase losses”.20 The harm caused by GD is significant, on par with that of major depressive disorder or alcohol misuse and dependence.21 Its effects can be profound, resulting in marital breakdowns, financial ruin, suicidal tendencies, involvement in criminal activities, compromised physical health and increased consumption of alcohol and other substances.22

THE CURRENT LEGAL FRAMEWORK

The provincial regulatory frameworks that govern online gambling require operators to follow responsible practices, such as self-exclusion programs. These programs are designed to help individuals manage their gambling behaviour and mitigate potential harm.

For instance, in Ontario, the regulatory standards governing self-exclusion programs are delineated in s. 2.14 of the AGCO’s Register’s Standards for Internet Gaming (“RSIG”), establishing specific requirements to safeguard participants.23 Upon a gambler initiating self-exclusion, operators must promptly disconnect that person’s account, thereby preventing further participation for the exclusion period.4 Additionally, operators must cease all marketing communications to the self-excluded individual and promptly terminate any existing wagers.25 Operators are responsible for maintaining a register of excluded individuals and actively monitoring and removing those found in breach of their agreements.27 However, even with these requirements, s. 2.14 of the RSIG lacks explicit provisions regarding an operator’s liability in the event of their failure to prevent self-excluded individuals from accessing its site, or stipulating the procedure for handling any related losses incurred by such individuals upon accessing the platform.

Voluntary self-exclusion (“VSE”) is a widely adopted self-help strategy in managing GD to reduce gambling-related harm and in prompting individuals struggling with gambling practices to cease gambling altogether.27 Nevertheless, one study found that breaching self-exclusion agreements is a common occurrence among individuals with gambling problems, particularly prevalent in heavily online-dominated gambling markets. 28 Their research indicates that, since the introduction of self-exclusion services, thirty-eight per cent of participants who had self-excluded had circumvented their agreement.29 Another study found that, on average, over 6.1 years, only thirteen per cent of gamblers who were under a lifetime exclusion agreement had refrained from gambling entirely since enrolling.30

Professor Ludwig Krause and colleagues argue that self-exclusion agreements transform into ineffective “toothless tigers” in the absence of consistent enforcement of coherent regulations, both by the state and by the industry.31 Despite operators and the state being aware that addicted patrons will attempt to bypass these agreements due to their GD, they persist in framing the issue as an issue of the gambler’s motivation rather than addressing the faulty enforcement of the harm reduction tool on which the gambler is relying.32

Individual-level measures targeting gamblers have gained political traction due to their low cost to casinos, deflecting attention from industry practices, incentives and the inevitable societal risks of gambling.33

Unfortunately, industry bodies, gaming operators, venue licensees and their agents currently bear no civil responsibility to act on and uphold selfexclusion requests.34 Professor Krause and colleagues assert that the state has a social duty to protect gamblers from harm.35 However, they observe that there is little incentive for gambling operators to enforce self-exclusion agreements, as both they and the government benefit financially from allowing problem gamblers to continue betting.36

Notably, no duty of care has been formally established for online gaming platforms. Nevertheless, legal precedent regarding the duty of care owed by physical casinos to those enrolled in self-exclusion programs indicates a growing recognition of such obligations.

In Ross v. British Columbia Lottery Corporation, 37 the plaintiff participated in the defendant lottery corporation’s VSE program but continued to gamble undetected, resulting in losses of $78,000.38 She subsequently initiated legal proceedings against two defendant casinos, alleging unjust enrichment, negligence and breach of fiduciary duty.39 Regarding the negligence claim, Justice Truscott recognized a limited duty of care, concluding that, while the defendants did not have a duty to prevent the plaintiff from gambling or indemnify her losses, they were obligated to implement an efficacious VSE program to preclude her involvement in casino activities.40

In Ross, the court held that, despite occasional lapses in employee oversight, the defendants fulfilled their duty of care by adhering to prevailing industry standards and implementing the VSE program as mandated by the British Columbia Lottery Corporation.41 The plaintiff’s principal responsibility for managing her gambling conduct was emphasized, with the program viewed as a supportive mechanism that did not absolve her of personal accountability.42 The court noted that granting the plaintiff restitution for her gambling losses would contravene public policy, as it might incentivize the misuse of the self-exclusion program for monetary gain.43 This stance is problematic: acknowledging a broader duty of care for the negligent enforcement of self-exclusion agreements among gambling vendors, particularly online operators, not only aligns with tort principles but also promotes sound policy.

THE GAP

Notwithstanding the precedent established by Ross, a glaring gap persists within the legal framework regarding the liability of online gaming operators for individuals enrolled in self-exclusion programs. In Ross, the court acknowledged a limited duty of care accompanied by a notably lenient standard of care, where enforcement hinged on security personnel’s ability to

memorize and recall excluded individuals.44 Expert testimony presented in Ross highlighted this challenge, revealing the rarity of surveillance employees consistently remembering more than 100 individuals.45

These concerns simply do not apply to the distinct challenges posed by online gambling, where each user is required to log in with a unique account linked to their personalized identification credentials. By leveraging their technological capabilities, online casinos can seamlessly and costeffectively deploy software and coding mechanisms to enforce exclusion agreements. Despite this apparent advantage, instances of non-compliance and predatory practices persist.

For instance, Apollo Entertainment Ltd. incurred a meager penalty of $100,000 from the AGCO for failing to provide a well-publicized, easily accessible and efficient voluntary self-exclusion mechanism.46 Similarly, PointsBet faced a modest fine of $150,000 following a player’s staggering loss of $500,000 over four months.47 Notwithstanding being identified as a high-risk gambler, the venue persisted in depositing credits totalling $35,500 into the player’s account and offering various complimentary items, including free tickets to sporting events.48 Additionally, PointsBet neglected to enforce the mandatory 24-hour cooling-off period when the high-risk gambler attempted further deposits after significant losses.49

In summary, the fines levied on online gaming operators for breaching responsible gaming legislation accentuate a noteworthy challenge within the industry. Despite regulatory penalties, operators often gain net profits by neglecting to enforce self-exclusion agreements and other responsible gaming regulations. This situation effectively incentivizes predatory practices, empowering online casino operators to amass substantial profits from addicted gamblers when at their most vulnerable. The pursuit of profit by casinos fuels harmful behaviour, leading to widespread societal consequences.

DUTY OF CARE?

Rather than adopting the industry narrative, and contrary to Justice Truscott’s characterization of problem gamblers in Ross , 50 self-excluded online gamblers cannot be characterized as the architects of their misfortune. Unlike physical casinos, where individuals may attempt to conceal themselves or rely on the possibility of security personnel failing to recognize them, self-excluded gamblers in online settings lack such evasion tactics. Upon accessing an online casino website or mobile application, there is no way to avoid detection if one has self-excluded. The casino’s coding or software typically prohibits entry. However, in negligent enforcement of

self-exclusion cases, the online gambler may be erroneously allowed back onto the platform due to inadequate measures by the casino.

In contrast to the situation in Ross, self-exclusion agreements for online casinos often lack disclaimers, indicating the absence of explicit limitations or waivers of responsibility regarding their enforcement and effectiveness—leaving the door open to a potential novel duty of care being acknowledged by courts in the future. As a result, many of Justice Truscott’s considerations for limiting the duty and standard of care for physical casinos do not directly apply to online counterparts. This sharp disparity necessitates a novel duty of care analysis within the context of online gambling. In this regard, I propose framing the duty of care as an undertaking, drawing inspiration from the foundational principles outlined in Donoghue and Hedley Byrne & Co Ltd. v. Heller & Partners Ltd., 51 to establish the appropriate scope of such duty.

The principles from Donoghue and Hedley Byrne have undergone several refinements in Canada, most recently in the Supreme Court of Canada’s decision in Deloitte & Touche v. Livent Inc. (Receiver of). 52 In that case, Justices Brown and Gascon observed that “[i]n cases of pure economic loss arising from negligent misrepresentation or performance of a service, two factors are determinative in the proximity analysis: the defendant’s undertaking and the plaintiff’s reliance”.53 They further expounded that “[a]ny reliance on the part of the plaintiff, which falls outside of the scope of the defendant’s undertaking, necessarily falls outside the scope of the proximate relationship and, therefore, of the defendant’s duty of care”.54

In the domain of online gambling, regulatory bodies mandate that online casinos offer self-exclusion options to gamblers.55 Here, the defendant—the online casino—undertakes to provide a service: self-exclusion mechanisms that invite the plaintiff, the gambler, to reasonably rely on it for their wellbeing. The very existence of these self-exclusion agreements implies a commitment by the casino to prioritize the safety and responsible gambling habits of its users. These mechanisms are expressly designed to assist problem gamblers in managing their behaviour and mitigating harm. The defendant’s purported dedication to this purpose is evident in its policies, advertising materials and terms of service, emphasizing the implementation of effective measures to prevent excluded individuals from accessing gambling services.56 Moreover, akin to licensed alcohol providers, casinos can implement and maintain protocols to avoid harm.57

Given the defendant’s explicit commitment to providing self-exclusion mechanisms for this purpose, any reliance by the plaintiff on these mechanisms falls within the scope of the defendant’s commitment. Consequently,

when gamblers activate a self-exclusion feature, they do so with the expectation that the casino will uphold its obligation to prevent them from accessing their gambling services during the exclusion period. This expectation is especially crucial for problem gamblers grappling with GD, who must confront the distressing realization that they are unable to control their behaviour due to addiction.

Therefore, the element of proximity is established. The reliance exhibited by a self-excluded plaintiff, who incurs economic losses due to an online gaming operator’s negligently enforced self-exclusion agreement, unequivocally falls within the scope of the proximate relationship. The inherent purpose of the undertaking—to safeguard the financial well-being of plaintiffs in response to their addictive behaviour on the defendant’s site—ensures that any losses suffered by a plaintiff are encompassed by the scope of the duty of care owed by defendant casinos. The limited scope of liability is based on the premise that defendant casinos are only responsible for the risk of injury they undertook to prevent.

A reasonable foreseeability inquiry for the negligent performance of a service is relatively straightforward, as “[a]n injury to the plaintiff will be reasonably foreseeable if the defendant should have reasonably foreseen that the plaintiff would rely on his or her representation and such reliance would, in the particular circumstances of the case, be reasonable”.58 The foreseeability stage of this duty of care analysis is then twofold. Firstly, it requires the online casino to reasonably anticipate that gamblers will rely on the self-exclusion tools provided. Given the nature of these mechanisms and their intended purpose to aid in responsible gambling practices, such reliance is foreseeable. Secondly, it demands that gamblers’ reliance on these self-exclusion features be deemed reasonable in the circumstances. For individuals contending with GD or compulsive gambling tendencies, the decision to rely on these tools (which have been offered by the casino) represents a logical step toward mitigating potential harm.

In light of the well-documented harms outlined earlier in this paper, operators that offer self-exclusion agreements should reasonably anticipate that individuals entering into such agreements may suffer from GD and may struggle to control their gambling impulses. Accordingly, these casinos ought to foresee the potential ramifications of permitting these individuals to re-enter their website or application to gamble again, mainly if the exclusion agreement is not adequately implemented or enforced. This includes the potential financial losses stemming from such actions.

Establishing a duty of care for online casino operators to effectively enforce exclusion agreements would not create an insurance scheme for all

patrons.59 Instead, the focus is on those vulnerable individuals who have entered into self-exclusion programs with the casino. Liability would be restricted to specific criteria, such as self-excluded gamblers who attempt to enter the site and suffer losses due to the operator’s negligence in enforcing the exclusion agreement. Likewise, liability would only be triggered in cases of conduct falling below the established standard of care.

As Justices Brown and Gason emphasized in Deloitte, “it is very difficult for liability of an indeterminate character, so understood, to survive a robust analysis of proximity and foreseeability”.60 In the case of online casinos, the commitments made to patrons who enter into self-exclusion agreements and the potential financial losses stemming from the negligent enforcement of such agreements are strictly bound to these undertakings and those impacted by them. Thus, based on Livent, the economic losses suffered by a plaintiff due to an online casino’s negligent enforcement of their selfexclusion agreement are both determinable and foreseeable.

While a negligence-based duty of care offers plaintiffs a strong and effective path for addressing an operator’s failure to adequately enforce a VSE agreement and the resulting foreseeable financial harm, contract claims face significant challenges. The absence of consideration from the gambler raises doubts about the enforceability of self-exclusion agreements as valid contracts.61 Moreover, exculpatory clauses often restrict contract claims, mainly when dealing with sophisticated parties like online gaming platforms.62

CONCLUSION

Ensuring online gambling operators are held accountable for implementing effective exclusion mechanisms is crucial for supporting addicted gamblers in addressing their addiction and minimizing the negative impacts of GD on individuals, families and society. Imposing civil liability for an operator’s negligent undertaking can incentivize it to prioritize responsible gambling measures, thus contributing to a safer gambling environment. This is a policy outcome that is supported by the legislative regime in several provinces. By drawing on the principles outlined in Donoghue and acknowledging this proposed duty of care, courts can continue to foster both good law and sound policy. As Justice Linden observed, “[despite efforts] to restrict the scope of the neighbour principle”,63 it has remained a valuable tool in the judicial arsenal.64 His acknowledgment of the enduring influence of this principle underscores the imperative of marshalling tort law for both individual and societal welfare. Recognizing this proposed duty of care aligns with Justice Linden’s insights and perpetuates Donoghue ’s legacy of enhancing societal well-being.

ENDNOTES

1. [1932] AC 562 (HL) [Donoghue].

2. Ibid at 580:

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

3. Allen M Linden, “The Good Neighbour on Trial: A Fountain of Sparkling Wisdom” (1983) 17:1 UBC L Rev 67 at 67.

4. Ibid at 86.

5. See Cooper v Hobart, 2001 SCC 79 at paras 22–30 [Cooper], where McLachlin CJC and Major J reformulated the original Anns test for recognizing novel duties of care (from Anns v Merton London Borough Council (1977), [1978] AC 728 (HL) at 751–52, per Lord Wilberforce [Anns])—employing the neighbour principle to evaluate the proximity between parties to ascertain if a reasonable person would have anticipated the harm as foreseeable.

6. Ibid

7. Donoghue, supra note 1 at 580.

8. iGaming Ontario’s FY 2023-24 Q1 Market Performance Report (Toronto: iGaming Ontario, 19 July 2023) at para 3, online: <www.igamingontario.ca/ en/news/ igaming-ontarios-fy-2023-24-q1-marketperformance-report>.

9. Ibid. iGaming Ontario is an agency of the Government of Ontario and set out in legislation as a subsidiary of the AGCO, managing internet gaming in the province when provided through private gaming operators. See Alcohol and Gaming Commission of Ontario Act, 2019, SO 2019, c 15, Schedule 1, O Reg 722/21, s 4.

10. Nigel Turner, Lindsay Sinclair & Flora I Matheson, “Brief Report: The Rise of Online Betting in Ontario” (2023) 1:11 J Gambling Studies 1 at 7.

11. Ibid

12. Ibid

13. Scott Morasch, “How Much Is Too Much? Nearly Half of Canadians Think Gambling Ads Have Gotten Out of Hand”, Ipsos Group SA (18 January 2023), online: <www.ipsos.com/en-ca/how-much-toomuch-nearly-half-canadians-think-gambling-adshave-gotten-out-hand>.

14. Ibid

15. Ibid

16. Turner, Sinclair & Matheson, supra note 10.

17. Ibid.

18. Michelle Roterman & Healther Gilmour, Who Gambles and Who Experiences Gambling Problems in Canada, Statistics Canada (Ottawa: Statistics

Canada, 2022) at 8, online: <www150.statcan.gc. ca/n1/pub/75-006-x/2022001/article/00006eng.pdf>; Lisa Mayor & Scott Anderson, “‘Nobody Stopped Me’ at the Casino: Ontario Self-Exclusion Program Fails to Keep Gambling Addicts Out”, CBC News (8 December 2017), online: <www.cbc.ca/ news/canada/self-exclusion-program-failingaddicts-1.4438251>.

19. Mayo Clinic, “Compulsive Gambling”, online: <www. mayoclinic.org/diseases-conditions/compulsivegambling/symptoms-causes/syc-20355178>.

20. Ibid

21. Ibid

22. Ibid

23. Alcohol and Gaming Commission of Ontario, “SelfExclusion and Breaks in Play” (Toronto: AGCO, 2022) [Self-Exclusion Regulations].

24. Ibid.

25. Ibid

26. Ibid.

27. Andreas Håkansson & Nikoleta Komzia, “Self-Exclusion and Breaching of Self-Exclusion from Gambling: A Repeated Survey Study on the Development of a Nationwide Self-Exclusion Service” (2023) 20:1 Harm Reduction J 107 at 111–13.

28. Ibid

29. Ibid.

30. Sarah Nelson et al, “One Decade of Self Exclusion: Missouri Casino Self-Excluders Four to Ten Years After Enrollment” (2010) 26 J Gambling Studies 129 at 142.

31. Ludwig Kraus et al, “Self-Exclusion from Gambling: A Toothless Tiger?” (2022) 13 Frontiers in Psychiatry 1 at 2.

32. Ibid at 10–11.

33. Ibid

34. Ibid

35. Ibid.

36. Ibid

37. 2014 BCSC 320 [Ross].

38. Ibid at paras 1–26.

39. Ibid at para 27.

40. Ibid at para 533.

41. Ibid at paras 553–72.

42. Ibid at para 573.

43. Ibid at paras 574–75.

44. Ibid at paras 549-68.

45. Ibid

46. Alcohol and Gaming Commission of Ontario, “AGCO Issues $100,000 in Penalties to Apollo Entertainment for Violations of Internet Gaming Responsible Gambling Standard” (10 August 2023), online: <www.agco.ca/blog/lottery-and-gaming/ aug-2023/agco-issues-100000-penalties-apolloentertainment-violations>.

47. Alcohol and Gaming Commission of Ontario, “AGCO Issues $150,000 in Penalties to PointsBet for Violations of Internet Gaming Responsible Gambling Standard” (10 August 2023) [PointsBet Fine], online:

<www.agco.ca/blog/lottery-and-gaming/nov2023/agco-issues-150000-penalties-pointsbetviolations-internet-gaming>.

48. Ibid

49. Ibid

50. Ross, supra note 37 at para 573.

51. (1963), [1964] AC 465 (HL).

52. SCC 63 [Livent].

53. Ibid at 857.

54. Ibid

55. Self-Exclusion Regulations, supra note 23.

56. Ibid

57. See Jordan House Ltd v Menow (1973), [1974] SCR 239.

58. Livent, supra note 52 at 858.

59. Ross, supra note 37 at para 575.

60. Livent, supra note 52 at para 44.

61. See Irina Slavina, “Don’t Bet On It: Casino’s Contractual Duty to Stop Compulsive Gamblers from Gambling” (2010) 85:2 Chi-Kent L Rev 369 at 377.

62. Ibid at 394.

63. Linden, supra note 3 at 86.

64. Ibid.

Available at Kurbatoff Gallery, 2435 Granville St., Vancouver Visit the website: kurbatoffgallery.com

“Solo” by Magdalena Johnson, acrylic on canvas, 48'' x 48'', 2024

SIR THOMAS BEECHAM

By David Roberts, K.C.

Among other worthies who inhabited Caulfeild over the years, perhaps the most famous was Sir Thomas Beecham. Born in St. Helens, Lancashire, in 1879, he was descended from a long line of Lancashire peasants. Sir Thomas’s grandfather started life as a shepherd. He devised herbal remedies for his flock’s ailments. This progressed to nostrums for human consumption. He became, quite unqualified, a pharmacist. Eventually he created the “Beecham’s Pill” with the advertising slogan “Worth a Guinea a box.” It sold in the millions and the Beecham family became fabulously wealthy.

Sir Thomas, known as “Tommy” to everyone, was vitally uninterested in running the family business. Music was his obsession and he ultimately became one of England’s most famous orchestra conductors and impresarios. For some time he ran Covent Garden. In 1932, prompted, and financed, by Sir Samuel Courtauld, he founded the Philharmonia Orchestra. In 1945, just after the war, he founded the Royal Philharmonic Orchestra. He was a friend of the composer Frederick Delius and championed Delius’s music.

He spent most of World War II in the United States and was the artistic director of the Seattle Symphony during its 1941–42 season. He spent most of his money on musical endeavours and was notoriously incapable of husbanding his financial affairs. In consequence he was often in serious financial pickles. He enjoyed a reasonably exciting love life. He was married three times and amassed a sizeable collection of mistresses, including Lady Maud Cunard.

In 1942 Beecham was in the process of arranging a divorce from his first wife. He filed for divorce in a derelict mining town, Idaho City, in the hope, unfulfilled, that it would go unnoticed. He was then living with a British concert pianist, Betty Humby, who, herself, was then divorcing her husband, she in Boise, Idaho. Beecham and Betty Humby moved to West Vancouver and rented a house in Caulfeild: Stonehaven at 4648 Piccadilly South. They were accompanied by Humby’s teenage son, Jeremy. Jeremy would be dispatched each day in a rowboat to the Red and White store in Caulfeild Cove to purchase supplies. Beecham’s biographer, John Lucas,

claims that “[w]hen Beecham needed a break from working on scores he played billiards with Jeremy on the full-size table in the basement of the house—he was remembered as a good player, though out of practice.”

When Justice Carrothers later owned that house the billiard table was still there in the basement. It may still be there to this day. Those who then lived in Caulfeild will tell you that when you walked past, there was always the sound of music coming from the house.

Beecham was famous for his wit. Neville Cardus described him as “[a] complex character—Falstaff, Puck, Malvolio all mixed up … Witty, then waggish, supercilious, then genial, kindly and sometimes cruel … ”. He could be scathing to his players: “We cannot expect you to be with us all the time, but perhaps you would be good enough to keep in touch now and again.” He was once heard to observe of Elgar’s A flat symphony that it was “[t]he musical equivalent of St. Pancras Station.”

He was not always kind about fellow conductors, calling Toscanini “[a] glorified Italian band-master.” And, more generally, of conductors from outside England he said: “Why do we in England engage at our concerts so many third-rate continental conductors when we have so many second-rate ones of our own?”

I once attended a concert by the Vancouver Symphony Orchestra conducted by Beecham. It was in March 1960, and Beecham would have been about 80. Beecham was late. Fifteen minutes elapsed, then half an hour. Then this short rotund old man shambled onto the stage declaring, with a wave of the arm, “Don’t worry. I’m not dead yet,” clambered onto the rostrum, bowed to the orchestra, turned and bowed to the audience, turned and picked up his baton and raised it in the air. The players lifted their instruments, poised for the first beat. In those days conductors never addressed their audiences, but Beecham suddenly put down his baton, turned and spoke to the audience for some minutes about the music, Delius I remember. He then turned back to the orchestra and the concert began. I had never heard the Vancouver Symphony play with such heart and gusto.

HTHE LAST CAPITAL CASE

Part I

By Hamar Foster, K.C.

I.

alf a century ago, on March 29, 1974, RCMP Constable Roger Emile Pierlet was shot and killed while on duty in Surrey, B.C. The two men who did this were convicted of murder and given the mandatory sentence: death by hanging.

Two years later, in January 1976, law school classmates Jo-Ann Prowse, Paul Williamson and I opened a law firm. We each contributed $500 and sub-leased a set of offices from John Rowan and Jack Cram. We then arranged a lease of an IBM Selectric typewriter (the height of technology at the time), agreed on the use of Rowan and Cram’s photocopier and beer fridge, tried to learn double-entry book-keeping and interviewed prospective secretary/receptionists. Only Jo-Ann had actually practised law, as an associate for one year at Russell & DuMoulin. Paul and I had both clerked and articled, but while Paul had been called to the bar, I had not. I was still articling when the 1975 mass call had taken place, so I had missed it and was waiting to be called with one other student.1

Given our limited experience, we made a deal with John and Jack: in return for our taking over their least rewarding files, they—and especially John—would mentor us. And because I was in a sort of professional limbo in those first two months, being neither an articled student nor a qualified lawyer, I became our firm’s first receptionist and secretary/typist.

We knew that John had successfully prosecuted the two men charged with the murder of Cst. Pierlet, Vincent John Roger Cockriell and John Harvey Miller, and that he had represented the Crown when they appealed, unsuccessfully, to the B.C. Court of Appeal.2 One of the grounds of appeal was that the death penalty constituted cruel and unusual punishment, thereby violating s. 2(b) of the Canadian Bill of Rights. The court sat a fiveman bench (the justices were all men then), and the decision to deny their appeals was almost unanimous: McIntyre J.A., who four years later would be appointed to the Supreme Court of Canada, dissented on the Bill of Rights issue.3

II.

Some legal history may help at this point.

Before the Criminal Code was enacted in 1892, s. 2 of An Act Respecting Offences Against the Person re-iterated the centuries-old common law rule: “Everyone who is convicted of murder shall suffer death as a felon.”4 In 1892 this became s. 231 of the new Criminal Code, which dispensed with the ancient felony/misdemeanour distinction. It stated that “Everyone who commits murder is guilty of an indictable offence and shall, on conviction thereof, be sentenced to death.” This provision remained virtually unchanged until 1961.

Between 1914 and 1960, a number of private member’s bills advocating the abolition of capital punishment were introduced, all without success. In 1956, a joint committee of the Senate and House of Commons recommended the abolition of capital punishment for persons under 18 and the use of lethal gas for executions instead of hanging. Between 1960 and 1966, more private bills advocating abolition of the death penalty also failed. But a significant change had occurred in 1961 when, for the first time, Parliament distinguished between capital and non-capital murder. The definition of the former included (a) planned and deliberate killing, (b) felony murder, and (c) killing a police officer or prison guard. The death penalty remained mandatory for anyone convicted of capital murder. Life imprisonment was mandatory for those convicted of non-capital murder.5

In 1966, a motion in the House of Commons to abolish the death penalty failed by a vote of 143:112, but in 1967 Parliament confined the definition of capital murder to (c), above. This legislation had a sunset clause: it would be in effect for only five years unless renewed, which it was, in 1973. The result was that, legally, there was a moratorium on the civil death penalty for ten years after 1967, except for those who were convicted of murdering police officers or prison guards.6 This was the state of the law when Miller and Cockriell killed Cst. Pierlet.

The exception for police officers and prison guards led, for a time, to something of a cross-border anomaly. In 1972, the U.S. Supreme Court had imposed a blanket moratorium on the death penalty, as then administered throughout that country, whereas Canada’s moratorium did not apply to those convicted of murdering police officers and prison guards.7 Canada and the United States were negotiating an extradition treaty at the time, so it was not Canada but the United States that insisted the treaty provide that, where the laws of the requested country did not have a death penalty, that country could deny extradition in the absence of assurances that this penalty would not be imposed. However, by the time the treaty was ratified, the various American states had re-written their capital punishment statutes, and in 1976 the U.S. Supreme Court ruled that these new laws met

constitutional standards.8 The death penalty in both countries was therefore on again, albeit limited to “cop killers” in Canada.

Even so, the last execution in British Columbia had been in 1959, the last in Canada in 1962. Since then, the federal Cabinet, whether Conservative or Liberal, had commuted every death sentence. It was this, plus the fact that the Liberal government in Ottawa had introduced Bill C-84, which would abolish the death penalty for all non-military offences, that led John Rowan to agree to take on the 1976 spring assizes. Bill C-84 was scheduled for second reading in June 1976, and although public opinion still favoured retention of the death penalty, the gap was narrowing. Moreover, the majority government of Liberal Prime Minister Pierre Elliott Trudeau seemed determined to abolish it. Because counsel for Miller and Cockriell had yet to file factums and the appeals would likely not be heard until the fall, John not unreasonably thought that by then, the death penalty would probably be history.9 If the appeals proceeded on the remaining grounds, he would have plenty of time after the spring assizes to focus on preparing a factum for the Supreme Court of Canada.

However, one morning not long after Prowse, Williamson & Foster set up shop, John came down the hall that joined our offices with some news. He had just received two huge factums from counsel for the accused, Joe Wood and Terry Robertson (fittingly, two of British Columbia’s most respected criminal defence lawyers), and the appeal to the Supreme Court had been set for June. John therefore did not have the necessary time to prepare a respondent’s factum; and as I was only answering telephones, typing my partners’ letters, and (much to Paul’s occasional annoyance) correcting their grammar, I got the job.10 Of course, it probably helped that I had been Chief Justice John Farris’ law clerk when the Court of Appeal heard the appeal, and had prepared three memos for him on the Bill of Rights issue at the time, plus two more for Justice Robertson on one of the other issues in the appeal. I therefore already had some familiarity with the case. III.

The facts were brutal.11 Miller, 28, and Cockriell, 18 going on 19, had been drinking and doing drugs in Langley while Miller brooded over his brother having been killed in a high-speed car chase with the RCMP a few years before. They resolved to get revenge by killing a police officer, so they got in a borrowed car and eventually ended up in Cloverdale. Miller drove them by the RCMP’s detachment there a couple of times, squealed his tires and threw a beer bottle through the window of the adjacent courthouse. This behaviour attracted the attention of 23-year-old Cst. Pierlet, who pulled

them over and radioed for cover. It was by then around 5:00 a.m. and, being March, was still dark.

As he approached, Cst. Pierlet could not see that the occupants had a .30/30 Winchester rifle. Miller had both hands on the steering wheel, and the barrel of the rifle was resting on his arms with the muzzle pointed towards the open driver’s side window. The butt of the rifle was in Cockriell’s lap. When Cst. Pierlet asked Miller for his driver’s licence, Miller leaned forward, pretending to reach for a licence he did not have, further concealing the rifle. That was when Cockriell pulled the trigger. The bullet hit the constable in the chest. He managed to drag himself back to his squad car and radio for help, where he was found by the fellow officer who was already on his way to assist. Cst. Pierlet died almost immediately afterward.

The police chased Miller and Cockriell for about 20 miles and apprehended them. The essence of their defence was that neither really intended to do what they did, and statements they made to the police and to undercover officers in the cells with them played an important role in their trial. A crushing additional fact was that Cst. Pierlet’s parents were to arrive in Vancouver that morning for a visit, because the next day their son was going on a short leave to be married.12 They had to be met at the airport with the news that he had been killed only a few hours before.

At the trial there were a number of evidentiary issues for the trial judge to resolve, and in the end the jury convicted the two men. The judgment of the Court of Appeal dismissing their appeal (McIntyre J.A., dissenting on the Bill of Rights issue) was handed down on June 5, 1975.13

The factum filed by Miller in the Supreme Court of Canada contained five grounds of appeal, and Cockriell’s contained seven. But the last issue in each was novel: whether the majority of the B.C. Court of Appeal erred in holding that the death penalty is not cruel and unusual punishment within the meaning of s. 2(b) of the Canadian Bill of Rights, and in holding that s. 214(2) and s. 218(1) of the Criminal Code of Canada, which defined capital murder (murder punishable by death), were not rendered inoperative by virtue of the application of that same s. 2(b).

IV.

Everyone who has practised criminal law as a defence lawyer knows that, invariably, one of the first questions one is asked is: how can you defend someone you believe is guilty?14 An equally challenging question can be posed to prosecutors: how can you participate in arguing that a penalty that you believe is wrong, on both moral and pragmatic grounds, is nonetheless legal? I think the answer to both questions is much the same. I was, and am,

an opponent of the death penalty, but my job was to present one side of the issue, not to decide it. But of course, there is a fine line between justification and rationalization. I was 27, not yet called to the bar, and being given an opportunity to work on a case headed for the Supreme Court of Canada. Life, motivations and law are … complicated. And as I immersed myself in the trial transcript, the Court of Appeal’s reasons for judgment, the appellants’ factums, and the legal history of the death penalty, I soon concluded that the arguments that the death penalty did not violate s. 2(b) of the Canadian Bill of Rights were persuasive. (I suppose I would not have been much help to John if I had come to any other conclusion.)

The two main reasons involved the wording of ss. 1(a) and 2(b). In the first place, it seemed clear that the meaning of “cruel and unusual” in the English Bill of Rights of 1689—the source of s. 2(b)—was confined to punishments that were “unauthorized by statute and outside the jurisdiction of the sentencing Court,” and that the provision reflected “the English policy against disproportionate penalties” that dated back to Magna Carta 15 In Canada in 1976 the death penalty was authorized by statute and, opposed to it as I was, had been the usual, mandatory punishment for murder since 1867 and for centuries before that. It also could not, given what Miller and Cockriell had done, be described as disproportionate.16

This “originalist” approach is of course vulnerable to the argument that standards of what is cruel and unusual evolve over time, and that certainly was what I would have argued had I been defence counsel – and what counsel for Miller and Cockriell did argue.17 But to me the second reason for concluding that the death penalty did not violate the Bill of Rights was even stronger: s. 1(a) of the Bill, which was not part of the constitution but a federal statute, guaranteed the right to “life … and the right not to be deprived thereof except by due process of law.”18 And due process of law is what Miller and Cockriell had been accorded. In other words, the Bill of Rights recognized the right of the state, by due process of law, to deprive an individual of the right to life where the crime and the penalty were proportionate.19

There were several other issues, including whether the Court of Appeal had erred in upholding the trial judge’s refusal to grant severance (separate trials); in admitting statements made by the accused when in police custody; and a number of other grounds, some of which involved misdirections by the trial judge on, for example, what verdicts were available and what use the jury could legally make of the out-of-court statements of each accused. The Court of Appeal had held that none of these misdirections resulted (in the words of the Criminal Code) in any “substantial wrong or miscarriage of justice.”

I finished the factum with little time to spare because by March 1 I was no longer the secretary/receptionist: I had been called to the bar and soon had clients of my own (although, admittedly, not many). Because John would be occupied with other prosecutions until just before he had to leave for Ottawa, he decided that I should come with him so we could go over all the arguments on the flight. This was clearly a reward for writing the factum, because John had already represented the Crown at trial and on appeal, and could easily have proceeded on his own. In any event, and notwithstanding my philosophical convictions, only three months after my call to the bar I would be junior counsel for the Crown in a capital case in the Supreme Court of Canada. Pretty exciting.

And just to complicate matters, shortly before our departure date Canada’s commercial pilots walked off the job over the issue of requiring French to be used by air traffic controllers. Air transport in Canada ground to a halt on June 20. This disruption lasted only about nine days, but that was enough: we were due at the Supreme Court on June 22. So John, his wife Helen, and I drove a rented car to Seattle, flew from Seattle to Syracuse, New York, and drove another rented car from there to Ottawa.

Ever since I started work on the factum, and during the trip to Ottawa, I had stewed about two things: whether, novice that I was, I had done a sufficiently good job, and whether there was any real chance that Miller and Cockriell would be executed. I was convinced that their appeal would be dismissed, but almost as sure that Parliament would abolish the death penalty. And even if Bill C-84 did not pass second reading, I was reassured by the fact that the Cabinet had commuted every death sentence since 1962. This confidence, some might say rationalization, was a necessary comfort. But it was soon to be seriously challenged.

Our first night in Ottawa was the night before the hearing, and John and I had dinner in the parliamentary dining room. At one point in the meal, an old friend of John’s, who at that time was an M.P., came over and sat down at our table. He said he had some unsettling news. For me, it was worse than unsettling. He said that a contact in the Prime Minister’s Office had told him, in confidence, that an important decision had been made. If Bill C-84 were not passed into law, the government could not signal its disregard for both public opinion and Parliament by continuing to commute all death sentences. There had to be at least one sacrificial offering (my words, not his). And at the top of that list, because of the heinous nature of their offence, were Miller and Cockriell.

I remember feeling stunned. I had no idea how reliable this new information was, but it cast a dark shadow over the next day’s proceedings.

Part II of this piece will appear in a subsequent issue of the Advocate – Ed.

ENDNOTES

1. Derogatively referred to by some as the “cattle call”. The student with whom I was called was another classmate, the late Dan Maas.

2. R v Miller, 1975 CanLII 927 (BCCA).

3. Even without this dissent, persons sentenced to death whose convictions were affirmed on appeal had a right to a further appeal to the Supreme Court of Canada on any ground of law or mixed fact and law.

4. RSC 1886, c 162.

5. This legislation also did away with the death penalty for persons who appeared to be under 18 at the time of the crime.

6. When acting in the course of their duties. The death penalty under military law was not formally removed from the National Defence Act until 1998–99.

7. Furman v Georgia, 408 US 238 (1972), a 5:4 decision.

8. Gregg v Georgia, 428 US 153 (1976). The issue had been whether the statutory regimes permitted cruel and unusual punishment. See Robert Harvie and Hamar Foster, “Shocks and Balances: United States v. Burns, Fine-Tuning Canadian Extradition Law, and the Future of the Death Penalty” (2004/05) 40:2 Gonzaga Law Review 293 at 308–12. On its history, see, inter alia, Neil Boyd, The Last Dance: Murder in Canada (Toronto: Seal Books 1992).

9. The BC Court of Appeal decision (supra note 2) had been handed down on June 1975, eight months earlier.

10. Given my no doubt contestable claim to superior grammatical skill, it seems only fair to note that Paul went on to become a BC Supreme Court justice. JoAnn went to the Court of Appeal. (My typing and editing experience led to a career in academia.)

11. The most complete recounting of the facts is in the judgment of Robertson JA, in the Court of Appeal, supra note 2.

12. Tom Zillich, “50 Years Ago, This B.C. RCMP Officer Was Shot, Killed on Final Shift Before Marriage”, Comox Valley Record (29 March 2024), online: <https://www.comoxvalleyrecord.com/news/50years-ago-this-bc-rcmp-officer-was-shot-killed-onfinal-shift-before-marriage-7335654>. Note that this news item contains an error: it was Miller, not Cockriell, whose brother had died in a high-speed chase with the RCMP.

13. See supra note 2.

14. This could be, and has been, the subject of lengthy treatises. The short answer is that if it were unethical to defend clients whom one thought were guilty, then the unrepresented would be presumed guilty, and guilt would be decided by lawyers, not courts. And soon judges would know who the “unethical” lawyers were who defended those they thought were guilty, and convict their clients accordingly. Hardly due process of law. Moreover, there are clear ethical constraints on what counsel may do in conducting a defence.

15. Anthony F Granucci, “Nor Cruel Nor Unusual Punishments Inflicted: The Original Meaning” (1960) 57 Cal Law Rev 839 at 860. That the Bill of Rights provision was based on the 1689 Bill of Rights is clear. The original wording of s. 2(b) was based on Article 4(2) of the Universal Declaration of Human Rights, and concern had been expressed that it might be broad enough to include the death penalty. (It proscribed “torture, or cruel, inhuman or degrading treatment or punishment.”) The House of Commons debates for August 3, 1960 confirm that a decision was made to substitute the current wording for this very reason.

16. Had the Criminal Code mandated the death penalty for parking violations, theft or even manslaughter, that would have been disproportionate.

17. The issues advanced by the appellants included whether the death penalty is severe and degrading, whether it is arbitrary, whether it was unacceptable to a large segment of the Canadian population, what the purpose of the death penalty is, etc.

18. Emphasis added. The Bill of Rights had been referred to as “quasi-constitutional”, so there was much, much more than this to the argument (which occupied 28 pages of the factum).

19. Remember: this was six years before we had a constitutionally entrenched charter of rights. At that time Canada was a straightforward parliamentary democracy, one aspect of which was that parliament is supreme and cannot bind succeeding parliaments. The Bill of Rights, a general statute enacted in 1960, pre-dated the specific and subsequent capital murder provisions in the Criminal Code. Moreover, and reflecting this principle of statutory interpretation, although s. 5(2) provided that the Bill of Rights applied to all federal legislation, whether enacted before or after the passage of the Bill of Rights, the Supreme Court had never applied it to subsequent legislation. There was also an argument that the Bill was really an unusual type of Interpretation Act, because s. 2 provided that “every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe” the enumerated rights (emphasis added). So, the argument went, the Bill had to yield to a law that (a) was not protected by a notwithstanding clause (the death penalty provisions were not so protected) and (b) could not be so construed and applied. This and the fact that the Bill of Rights applied only to federal legislation were clearly factors in the decision to move to an entrenched charter of rights six years later.

THE WINE COLUMN

By Michael Welsh, K.C.*

Every night on the TV news now is like a nature hike through the Book of Revelation —Al Gore

Give me wine to wash me clean of the weather-stains of cares —Ralph Waldo Emerson

WINE AND WILD WEATHER

In recent columns, I have told of the environmental travails of local wineries and grape growers in British Columbia. But that doom and gloom are not confined to one wine area—they are worldwide and for a world of different reasons: no grapes, too many grapes, too hot, too cold, too wet, too dry—the list is long. My topic this time is a dive into some of the current environmental issues facing the wine industry elsewhere. While my focus will be on Europe, we will take side-trips to other wine regions.

I start in France where production of wine is estimated to be declining by eighteen per cent annually over the upcoming years, according to government sources. The projected 39.3 hectolitres this year will be one of the smallest amounts of French wine produced since World War II.

The decline is largely due to inclement weather that reduced crop levels in almost all of France’s wine-growing areas, most particularly in Jura,

* 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.

Charentes, Alsace, Val de Loire and Beaujolais-Bourgoyne. The cool and wet conditions caused a phenomenon known as coulure where the flowers and young berries fall off, and another called millerandage where berries fail to grow, resulting in clusters with a mix of small green and more ripened berries. The moisture also created mildew havoc in many of those areas, particularly the Côtes d’Or. Further, there were episodes of frost and hail. Meanwhile in the very south—in Aude and the Pyrénées-Orientales and in Corsica—there was a drought.

This followed a poor harvest in 2021 from severe frost.1

And in Champagne:

Frédéric Panaïotis, the chef de caves at Ruinart in Champagne, recalls harvesting at his grandparents’ vineyard in the 1980s, “hands frozen and eating warm sausages at 10 in the morning.” Three years ago, Ruinart began tracking temperature, sunshine hours, rainfall, and growing cycles, establishing that today’s annual temperature is elevated from historic norms by roughly 1.3 degrees Celsius, which means a loss of 10 to 12 days in the growing season.2

Fortunately, despite this year’s spring freeze and repeated mildew attacks (two to three in a week versus three to four in a year) in parts of the Champagne region, leaving a very small crop (in places only thirty per cent of normal), quality is surprisingly good.3

Somewhat paradoxically, the French government is planning to finance a tear-out of some 30,000 hectares of vineyard, which equates to about four per cent of the total French plantings. It plans to start in Gironde. Growers who opt in will receive €4000 per hectare permanently ripped out. This is not from weather problems, but lack of consumption as wine consumption has fallen some seventy per cent in France in the last 60 years, with the trend accelerating. 4 Right now France is awaiting EU approval of this scheme.

So, France is facing too few grapes and too many at the same time, depending on vineyard location and wine demand.

Off to Italy. It was a hot summer for Italian grapes and wine. Sicily is having to reckon with record drought that is resulting in a meagre harvest. As a result, one of the island’s largest wine cooperatives, Cantine Europa di Petrosino (Trapani), which focuses on the production of wines based on the Grillo grape, is teetering on insolvency. Growers kicked out its board of directors and are looking at a merger with another cooperative, at least temporarily. But the problems are endemic and as one wine writer states: “But, once again, it is a patch rather than a cure for an increasingly sick wine sector.”5

Tuscany faced an early budbreak hit by frosts in April, some localized hailstorms in May that in places took out about forty-five per cent of the

crop, and heavy rains in June requiring extra sprays to protect from mildew, followed by extreme heat and drought (up to 40°C) over the mid- and later summer. Almost every type of weather imaginable other than a snowstorm. Meanwhile in Spain, as one writer put it, there were “storm clouds gathering over Rioja”. While the extreme heat that the country suffered in 2022 and 2023 (2023 was the hottest year on record and the driest since the 1960s) abated somewhat, the mild winter was again followed by frosts that damaged buds and shoots. It affected some 5,000 hectares of vineyards, mostly in the Rioja Alta and Alavesa areas. Hail and heavy storms also hit crops in Ausejo in Rioja Oriental. This led to increased incidents of coulure and millerandage there as well, particularly in older Garnacha plantings.6

After record warm temperatures in March, severe spring frosts also struck across Germany in April, substantially reducing crop. Temperatures went quickly from 7.5°C to -5°C. According to the president of the German Winegrowers Association: “The frosts at this point in time are so devastating because the vegetation is already well advanced after the recent months of record heat. The young, fertile shoots are now freezing, and those that grow back may not be fertile.” He said that “some regions are reporting extreme damage”.7 Fortunately, the quality of the crop that remained was high.

Probably the most severely affected country over the past couple of years has been Greece. With the fires that raged in 2023, particularly around Athens and on Rhodes (where vineyards and olive groves burned), and extremes of heat and drought, wine production (which had plunged by more than one third in 2023) will be hampered by relatively miniscule crops this year. More fires in 2024 took out some of the more valuable vineyards, particularly in the Nemea region.

As the last embers died out from a wildfire that ripped through one of Greece’s most valuable wine regions last week, the grape-growers and winemakers of Nemea in the northern Peloponnese [are] starting take stock of the damage to the crop over the weekend, before state officials prepare to visit the area this week to begin a formal assessment.

Dimitris Skouras from Domaine Skouras is also counting his losses, adding that “a lot of the vines which didn’t burn have suffered from thermal shock.”

“The destruction would have been biblical if the Fire Service hadn’t responded so quickly,” he says, adding that last summer’s high temperatures had also wiped out much of Nemea’s output. “The grapes withered on the vine before they could ripen. How can you make wine with that?”

Last week’s fire, confirms the president of the Nemea Winemakers’ Association, Giorgos Vlachos, was the “cherry on the cake” of the damage climate change is wreaking in the region.

“It just keeps getting worse every year,” agrees Evangelia Palivou from the estate of the same name. “We have 100% first-hand experience of what climate change means over here.”8

The European Federation of Origin Wines (“EFOW”), which represents the EU wine appellations, met in September to look at measures to assess and secure long-term sustainability of the EU wine industries, given the unpredictable grape yields and production instability caused in large part by weather issues. These problems are compounded by the fact that wine production is highly sensitive to even minor changes in climate, meaning vineyards must quickly adapt to new growing conditions. The goal is for those wine regions to work together and not at cross-purposes, which too often happens with wine growers in one country protesting wine imports from another. Last fall, as I reported a couple of columns back, French growers hijacked truck shipments of Spanish wine and destroyed the containers of wine. Thousands of litres of rosé were emptied into the street and 10,000 bottles of sparkling Spanish wine were smashed.9

The EFOW president stated that “[t]he EU wine sector is at a crossroads, and strong, decisive support from European institutions is essential to securing its future, as well as the prosperity of the rural regions and communities that rely on viticulture.”10

So this fall European growers and winemakers are doing their best with crop shortages and output reductions as the new vintage of wines ferment and cellar. They can only plan year to year in this ever-changing world.

Meanwhile across the globe as I write this in mid-September 2024, there is news that severe spring frosts wiped out grape crops in some of Australia’s prime wine regions including Barossa and Riverland. Due to drought conditions over the winter, there was an early budburst, and those buds were taken out by sub-zero temperatures and the frost. Crop losses range from about fifty per cent to one hundred per cent.11

How the wineries of New Zealand, South America and South Africa will fare as they head into summer and another growing season is an open and for them vexing question.

My last column focused on white wines, so this time it leans a bit more towards reds, with a mix of local and European offerings.

VAN WESTEN VINEYARDS VIVACIOUS 2022

BC VQA Okanagan Valley $22.50 (approx.)

I have had a soft spot for this wine since my wife and I had a bottle with a lovely dinner at Sooke Harbour House on our honeymoon, and all the subsequent vintages have not disappointed. This one is ninety-six per cent

Pinot Blanc (a variety that does not generally get the respect it deserves) with a four per cent splash of Viognier. Most was fermented in tanks but some in barrel, and a portion underwent a malolactic fermentation. There was extensive lees contact throughout. The wine has aromas of pear, lemon and lemon curd, white peach and some wet stone and blossoms. The flavours on the crisp palate are lemon and orange citrus, apple peel and more peach along with some herbal grassy notes. It has a good, lifted finish. Scoring a silver at 90 points at the National Wine Awards, it is available from the winery online or in person and at private wine stores such as Angry Otter. Highly quaffable on its own, it will pair well with white fish such as grilled halibut in a butter sauce, or stuffed sole, as well as with seafood including lobster and crab (I am thinking crab cakes). It would be great with a New England-style clam chowder. Lighter poultry dishes and soft cheeses are also recommended.

MONTE CREEK LIVING LAND BLANC 2022

BC VQA Thompson Valley #313145 $19.99

This organic white wine from the Thompson Valley is pale yellow and opens on a rich nose with notes of pear, white flowers, kiwi and lemon zest. It has a refreshing acidity on its lively dry palate with intense citrus and red apple and green pineapple flavours. Again, it is a good sipper and will also do well with a ceviche or smoked salmon, Coquilles St. Jacques, or BBQ halibut or other white fish or seafood, as well as softer cheeses.

CHÂTEAU DE LA GRAVELLE MUSCADET SÈVRE ET MAINE SUR LIE 2021

AOC Muscadet Sèvre et Maine Protégée, France #411066 $21.99

The winery with its beautiful château is located in Gorges in the heart of the Nantes. With eight months of lees contact and stirring, this lighter-weight Loire white (also known as “Melon”) opens on the nose with lime, green apple and some floral notes, and on the palate are orange and lemon peel and apple flavours mixed with some grassy and mineral notes. It has a pleasing lifted and slightly creamy finish from the lees contact. The winery suggests it as an apéritif, or serving it with seafood, fish and hard cheeses. I agree and suggest moules et frites, a classic combination.

ST. HUBERTUS GAMAY NOIR 2023

BC VQA South Kelowna Slopes, Okanagan Valley #462515 $20.00 (approx.)

This spicy Gamay is very much in a Beaujolais style and is an incredible bargain. The organically grown grapes are from the winery vineyard above the Mission area of Kelowna. At 12.7 per cent alcohol, it is mid-weight and

has a nose of black currant, full black pepper and green tobacco, and on the palate displays crisp cassis, some red cherry, loads more black pepper, some herbal tobacco notes and a long finish with good lighter tannins. It is perfect for tomato-based pasta dishes, roast turkey or a pork tenderloin. The owners, who are Swiss, recommend a fondue or raclette. You can buy it from the winery, at certain BC Liquor Store outlets, in the Save-On-Foods wine section and at other private stores such as Everything Wine.

STEPHANE AVIRON JULIENAS VIELLES VIGNES 2022

AOC Julienas, France #158720 $30.00 (approx.)

This is a lighter Beaujolais from the Julienas region (lighter than the St. Hubertus). The winery works with independent growers and vignerons to source the grapes and wine. The wine is pale red, with aromas of wild strawberries, raspberry and red currant mixed with subtle oak and black pepper spice. On the palate is more red berry fruit with some red plum and cherry with soft tannins and a good peppery finish with a bit of ash. It is a perfect match for a grilled salmon with a mustard, basil and honey glaze, or a roast chicken or ham, or cream sauce pasta. This is available at private wine stores such as Angry Otter.

SAN VALERO PLANO ALTO 2019

DOP Cariñena, Spain #350317 $17.99

This appealing and value-driven blend of Garnacha (Grenache) and Cariñena (Carignan) is from the Cariñena wine region in the mid-eastern part of Spain. At 14.5 per cent alcohol it has a full mouth feel. James Suckling gave it 93 points. Its aromas are of berry fruit, particularly currant with some green tobacco notes, and the flavours on the mid-weight palate are a mix of black fruit—plum, cherry and black currant, again with graphite (pencil shavings) and herbal/green tobacco notes. It has a good long finish with tart but light tannins. Pair it with lamb chops or lamb shanks (a Moroccan tagine comes to mind) or, in a Spanish vein, grilled pork brochettes with ras-el-hanout spice and preserved lemon rind or fried Manchego.

CHRONOS MCWATTERS COLLECTION MERITAGE 2020

BC VQA Okanagan Valley #303024 $40.00 (approx.)

This impressively rich Bordeaux-style blend is forty per cent Cabernet Sauvignon, thirty per cent Merlot, twenty per cent Cabernet Franc, five per cent Malbec, and five per cent Petit Verdot. Production was 1,000 cases. It opens on the nose with rich cherry, black currant, blackberry jam, some

dark chocolate and vanilla. On the palate is more black fruit (blackberry, pomegranate and black cherry), with spice and tea-like tannins on the long finish. Food choices include anything beef (roast, steaks, prime rib, a hamburger—all with a side of mushrooms) or lamb shanks. It can be purchased online or in person from the winery in Penticton or at private stores such as Everything Wine and Liberty Wine Merchants.

ENDNOTES

1. James Evison, “France to Produce One of Smallest Vintages in a Century”, The Drinks Business (12 September 2024), online: <www.thedrinksbusiness.com /2024/09/france-to-produce-one-of-smallestvintages-in-a-century/?_bhlid=0da4abecb4a2d77 fcb48fcd74533935585eb71b2>.

2. Amy Beth Wright, “The Science of Heat Stress in Grapevines”, Seven Fifty Daily (23 September 2024), online: <daily.sevenfifty.com/the-science-ofheat-stress-in-grapevines/?_bhlid=63001b856 f7d1ecb51e1ba2287548d4b1ce11b60>.

3. Patrick Schmitt, “‘Very Small Crop’ in Champagne a ‘Good Surprise’ Quality-Wise”, The Drinks Business (23 September 2024), online: <www.thedrinksbusi ness.com/2024/09/very-small-crop-in-champagne -a-good-surprise-quality-wise/?_bhlid=7a6ac245f 36b6a5733575c1a40c925926e9ffc45>.

4. Hannah Thompson, “Wine Crisis: France Looks to Tear Up 30,000 Hectares of Vines”, The Connexion (20 September 2024), online: <www.connexionfrance.com/news/wine-crisis-france-looks-to-tearup-30000-hectares-of-vines/679713?_bhlid=4a4a 396004eb8efcbb159cb3097cab344a54a9da>.

5. Davide Bortone, “Italian Wine Industry Hits Rough Ground”, Wine-Searcher (17 August 2024), online: <www.wine-searcher.com/m/2024/08/italianwine-industry-hits-rough-ground?srsltid=AfmBO oqT-MDmN-TybREyEDwGO97fZt7Ab7xC98Cmra X-gNzkXmctQSXS>.

6. “Storm Clouds Gather Over Rioja”, Long Wines, online: <longwines.com/2024/07/11/storm-cloudsgather-over-rioja/>.

7. Louis Thomas, “Spring Frosts Strike German Vineyards”, The Drinks Business (29 April 2024), online: <www.thedrinksbusiness.com/2024/04/springfrosts-strike-german-vineyards/>.

8. Tania Georgiopoulou, “Nemea Winemakers Taking Stock of Fire Damage to Vines”, Ekathimerini (13 July 2024), online: <www.ekathimerini.com/economy /1243943/nemea-winemakers-taking-stock-of-firedamage-to-vines/>.

9. Eloise Feilden, “French Vignerons Destroy Spanish Wine in Protest Against Cheap Imports”, The Drinks Business (23 October 2023), online: <www.the drinksbusiness.com/2023/10/french-vigneronsdestroy-spanish-wine-in-protest-against-cheapimports/>.

10. “EU Commission Convenes Group to Address Wine Industry Challenges”, Vinetur (11 September 2024), online: <www.vinetur.com/en/2024091181624/ eu-commission-convenes-group-to-address-wineindustry-challenges.html?_bhlid=4689ec7133799 caaf32a4cf147f5b7ffdf560da3>.

11. Jordanna Schriever, “Frosts Have Wiped Out Crops Across Some of Australia’s Premier Wine Regions, Including the Barossa and Riverland”, ABC News (17 September 2024), online: <www.abc.net.au/ news/2024-09-18/frosts-wipe-out-wine-grapecrops/104359736>.

“Bamboo Terrace Chinese Restaurant”, 149 E. Pender, Chinatown, Vancouver by Will Rafuse, oil on canvas, 48'' x 48'', 2023

Available at Kurbatoff Gallery, 2435 Granville St., Vancouver

Visit the website: kurbatoffgallery.com

NEWS FROM BC LAW INSTITUTE

By Ed Wilson*

FRESH PERSPECTIVES ON LAW REFORM: THE STUDENT TAKE ON BCLI PROJECTS

While aspiring lawyers and young legal professionals depend on the value of internships for gaining practical experience, it is equally important to acknowledge the significant benefits they bring to organizations like ours. Our articling and summer research students, with their diverse educational backgrounds and perspectives, provide new perspectives and bring new approaches that strengthen our research efforts. They play an important role in advancing ongoing projects, often taking on specific research assignments that are vital to our success.

This year, we welcomed a record number of summer students from across the country, who took on a variety of BCLI projects. Their contributions have been invaluable to a small organization like ours. They are also a meaningful way to engage with the legal community on the value of law reform.

This article provides an update on BCLI projects through the view of our students.

Celeste Ann Borja, Dalhousie Law 1L Summer Student

I had a keen interest in elder law even before starting law school. My experience in social work and passion for elder law drove me to seek opportunities where I could merge these interests. When I reached out to Karen Campbell, BCLI executive director, to explore an internship this summer, my interest in the organization deepened. Karen shared details about potential projects that aligned with my interests and learning goals.

I was involved in two main projects. The first was the Canadian Centre for Elder Law Dementia + Decision-Making (“D+DM”) Project. This proj-

* Ed Wilson is the chair of the British Columbia Law Institute (“BCLI”).

ect is intended to support the rights of people living with dementia in making decisions about their care and well-being. I was involved in connecting with various organizations throughout British Columbia to help promote this project, attending community events, facilitating information sessions and promoting the D+DM materials. This experience not only enhanced my networking and legal advocacy skills but also ensured that we communicated with the communities we designed these materials for in a way that truly resonated with them.

My second project was the Trauma-Informed Legal Writing Guide Project. This guide, which BCLI will release before the end of 2024, is designed to help legal professionals adopt trauma-informed practices in their writing by offering practical tools and best practices for creating documents that are sensitive to the experiences of those affected by trauma. For this project, I conducted a literature review, interviewed professionals with lived experience and expertise in trauma-informed practice, and drafted the initial versions of the guide. Through this work, I sharpened my legal research and writing skills and engaged in deep self-reflection about my emerging legal identity.

Over the course of the summer, I found it both exciting and challenging to see how my social work background intersected in my work. These projects allowed me to apply my social work skills while gaining invaluable hands-on experience in legal research and writing.

Ignacia Mendez, TRU 2L Summer Student

I approached my role at BCLI with a strong desire to think critically about the law and dive into a specific research topic. The work that particularly resonated with me was BCLI’s Reconciling Crown Legal Frameworks (“RCLF”) Program. The program supports research and innovations required to implement the 2019 Declaration on the Rights of Indigenous Peoples Act. This law requires all laws in British Columbia to be brought into alignment with the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). My background in social justice and exposure to Indigenous law naturally drew me to the work being done here.

I contributed to a practical resource that is focused on estate planning and administration for Indigenous peoples, both on and off reserves. This guide will be released before the end of 2024 and is designed to help lawyers navigate the complexities of estate planning for Indigenous communities, addressing the unique challenges they face. It is a key part of RCLF’s work with Indigenous law, and I felt honoured to be involved in creating something that has the potential to make a positive impact on a community that greatly needs it.

This project was both exciting and challenging. I had not taken any courses in wills, estates or succession law, and was not familiar with how the federal Indian Act is applied in this context and how it operates in British Columbia. However, the resources and guidance I received allowed me to get up to speed and explore this area of law deeply. Despite the initial challenges, the support from my supervisor, Greg Blue, K.C., and my eagerness to learn made a big difference.

Although much of the work was done independently, I also enjoyed working alongside the other summer law students, even though we were all focused on different projects. The support and positive energy of our group of students helped make for an excellent summer experience.

Julia Allen, U of T 3L Summer Student

I am an Inuk from Nunatsiavut (northern Labrador) with a strong passion for amplifying Indigenous voices and ensuring that Indigenous laws and knowledge are both understood and respected. My interests also include corporate law, environmental law and supporting Indigenous entrepreneurs and communities. This summer at BCLI, I had the opportunity to contribute to and grow within these areas of interest. I was especially interested in the implementation of British Columbia’s Declaration on the Rights of Indigenous Peoples Act and the United Nations Declaration on the Rights of Indigenous Peoples Act and how federal and provincial laws need to be reformed to recognize Indigenous laws.

At BCLI, I focused on researching pathways to recognizing Indigenous title and rights when property ownership is vacated through the Escheat Act Modernization Project. My work centered on analyzing Indigenous rights and state obligations under UNDRIP, B.C. legislation and Canadian caselaw. I shared my findings in monthly committee meetings, where I received valuable feedback that helped guide further research.

With the guidance of my supervisor, Megan Vis-Dunbar, I refined the project’s focus throughout the summer. Although my fellowship has ended, this project is ongoing and my research will form part of the foundation for continued law reform efforts.

Oluwaseun Fadairo, UBC LL.M. Student, UBC Sustainability Scholar

This summer, I worked on the Escheat Act Modernization Project under the guidance of staff lawyer Megan Vis-Dunbar. My role involved conducting legal research to help align the British Columbia Escheat Act with the principles of the Declaration on the Rights of Indigenous Peoples Act and UNDRIP.

I focused on how property could be transferred to Indigenous communities following escheat, where land reverts to the Crown when it has no clear

owner—a notion that does not align with UNDRIP, which guarantees land rights for Indigenous peoples. I analyzed laws from other jurisdictions, such as Ontario, Quebec, New Zealand and Australia, to find legal mechanisms that respect Indigenous self-determination.

My background in corporate law, particularly in deal structuring, proved invaluable for this research. I applied my understanding of legal systems to Indigenous rights recognition to analyze laws from other jurisdictions and assess their transferability to British Columbia. My knowledge of real estate laws further informed my analysis of the mechanisms we examined.

My experience at BCLI has given me a better appreciation of the challenges of legal reform generally. On the other hand, it has also informed my appreciation of the landscape of Indigenous rights recognition in Canada as a whole.

Calum McCracken, TRU M.A. in Human Rights and Social Justice Intern

My decision to join BCLI was driven by a deep alignment with the organization’s core mission to advance access to justice, particularly in underrepresented and marginalized communities. As a Human Rights and Social Justice intern, I was tasked with developing a memorandum of best practices for consultation and engagement to aid the BCLI’s ongoing law reform efforts.

This process required me to research, understand and synthesize a range of intercultural frameworks across diverse social contexts, including Indigenous methodologies/epistemologies, the HELP toolkit for building ethical relationships with family violence clients, and best practices engaging transgender, non-binary and two-spirit youth. Although these frameworks differ in several key respects, I was struck by the consistent emphasis on lateral, relational and collaborative approaches. This shared rejection of top-down structural violence has provided invaluable insights that will inform my future research and academic collaborations.

Throughout this process, my practicum supervisor, Alison Wilkinson, was incredibly supportive. Our weekly meetings offered valuable insights, constructive feedback and encouragement, helping me stay on track and navigate research challenges. At the same time, I was given the freedom to explore my own ideas and develop my research independently, which allowed me to take ownership of my work. This balance of support and autonomy has been instrumental to my learning experience. Karen Campbell also played a crucial role in this process: her leadership and support through the course of this project were invaluable.

Maria Michouris, Articling Student

I entered law school with a strong desire to pursue public interest work, but

I was not sure how to achieve that goal with the limited information available on careers in this field. Fortunately, I was selected for a public interest fellowship with the Law Commission of Ontario, where I was introduced to law reform work. This experience allowed me to combine my passion for public interest with my love for legal research, which inspired me to pursue a path in law reform.

Determined to continue in this field, I researched law commissions and reform agencies across Canada, which led me to an articling opportunity with BCLI. During my time here, I have worked on a variety of projects, including those related to family violence, parentage, Indigenous courts and housing. These projects have been particularly interesting because they involve comparative legal research and offer me the chance to explore how other countries address similar issues. As an articling student, I have also played a role in organizing board meetings and supporting organizational governance.

A highlight of my articling experience to date has been seeing the behindthe-scenes of law reform projects. Unlike my previous experiences as a summer student, where my role was primarily research focused, my work with BCLI is providing me with a perspective on how new law reform projects are initiated, how project committees—which guide the law reform effort—are formed, the exchange of ideas that results in law reform recommendations, and the work to publish law reform reports.

“Kootenay” by Marie-France Boisvert, acrylic on canvas, 48'' x 60''

Available at Kurbatoff Gallery, 2435 Granville St., Vancouver

Visit the website: kurbatoffgallery.com

NEWS FROM CLEBC SOCIETY

By Adam Simpkins*

NEW BOOK FROM CLEBC: CHILD AND FAMILY SERVICES LAW AND PRACTICE

Child and Family Services Law and Practice is an indispensable resource for legal professionals navigating the complexities of child and family services law. This comprehensive manual offers in-depth guidance on both substantive law and procedural nuances, tailored to meet the unique challenges practitioners face in this field.

The book is structured to provide a holistic understanding of the legal landscape, beginning with an exploration of the governing laws and principles that shape child and family services. It highlights Indigenous approaches and perspectives, emphasizing the importance of understanding and respecting these viewpoints in legal practice. Additionally, the publication addresses the rights of children, ensuring that practitioners are well-equipped to advocate effectively for their young clients.

Beyond the legal framework, the book delves into critical contextual issues such as cultural humility and trauma-informed practice. It offers insights into the continuing impacts of Canada’s colonial history on child and family services, providing a nuanced perspective that is essential for informed legal practice. The text also covers practical considerations, including working with individuals affected by Fetal Alcohol Spectrum Disorder and navigating Charter challenges and class actions as potential remedies.

A standout feature of this publication is its inclusion of the complete text of key legislation, such as An Act respecting First Nations, Inuit and Métis children, youth and families, and the Child, Family and Community Service Act. These texts are thoroughly annotated with relevant case law, offering prac-

* Adam Simpkins is the marketing manager at the Continuing Legal Education Society of British Columbia.

titioners a valuable reference tool. Additionally, the book provides practical resources like checklists, forms and precedents, designed to support lawyers in managing their cases efficiently and effectively.

Child and Family Services Law and Practice is more than just a legal text; it is a comprehensive guide that equips practitioners with the knowledge and tools necessary to address the multifaceted issues that arise in this area of law. Whether you are seeking to enhance your understanding of substantive law, improve your procedural skills or gain insights into the broader social context, this publication is an essential addition to your professional library.

We thank all of the contributors and CLEBC staff who made this publication possible.

To learn more, visit <www.cle.bc.ca/808>.

WATCH THE RECORDING AND DOWNLOAD THE MATERIALS FROM GLADUE IN PRACTICE

CLEBC and the BC First Nations Justice Council (“BCFNJC”) were proud to host Gladue in Practice—a course designed as a practical guide to every stage of the Gladue report lifecycle.

At this practical session presented in collaboration with BCFNJC, we examined current best practices for report writing on a provincial and national level and welcomed collaboration on future endeavours for enhancing the effectiveness of Gladue in practice.

As our featured speakers, we were proud to have the Honourable Chief Justice Leonard S. Marchand, the Honourable Attorney General Niki Sharma and the Honourable Judge Alexander Wolf.

To view the recordings and download the materials, visit: <cle.bc.ca/ gladue-in-practice-2024>.

LAPBC NOTES

By Michael Khan*

PROFESSIONAL BURNOUT PREVENTION AND RECOVERY: STRENGTHENING CONNECTIONS AND REDUCING SELF-CRITICISM

The high rate of burnout across professions is well known. Research and anecdotal evidence show that the legal profession is not immune from its impact. Burnout is characterized by depersonalization, a decreased sense of personal accomplishment and emotional exhaustion. Depersonalization means you separate yourself emotionally from your work where it becomes less meaningful. Other feelings related to burnout are helplessness, loneliness and a loss of motivation. Workplace burnout develops as a result of general occupational stress and is related to chronic tedium in work tasks.

Eric Gentry, Ph.D., one of the foremost experts on burnout, vicarious trauma and secondary traumatic stress, has described burnout as a process in which a previously committed professional disengages from their work due to perceived demands outweighing perceived resources. Significantly, Dr. Gentry indicates that strengthening human connections and reducing self-criticism are key to recovering from and preventing burnout. The remainder of this article will focus on those interventions.

Starting with strengthening human connections, commentary in Forbes magazine states “it’s the quality of the work experience that matters and has nearly three times the impact over the number of days or hours worked”.1

The “quality of the work experience” includes having authentic connections at work and, according to the Harvard Business Review, “there is a significant correlation between feeling lonely and work exhaustion”. 2 Relatedly, the main finding of a decades-long Harvard study has found that the happiest and healthiest people have positive and warm connections.3

* Michael Khan is a lawyer-counsellor with the Lawyers Assistance Program of British Columbia.

Lastly, a Gallup survey asked 15 million workers, “Do you have a best friend at work?” Only 3 out of 10 did, and those 3 were more engaged, more productive and less likely to leave their job.4

Bottom line, meaningful human connections equip us to better manage the stressors and emotional labor expended in our demanding jobs. It is critical that the legal workplace is one of support, respect and empathy. Empathy, in particular, is characterized by perspective taking, non-judgment and fully listening to others’ feelings and concerns. A supportive culture means that a lawyer or staff member will check in when a colleague seems to be in distress. It does not need to be complicated. A simple, “Are you OK?” can provide an opening for someone to communicate their concerns. This culture of support needs to be modeled from the top down in order for the rest of the firm/organization to believe it is a true core value of the firm or organization.

Avoiding self-criticism is the second intervention recommended by Dr. Gentry to reduce or recover from burnout. Let’s start this discussion with a thought exercise. Imagine that a work colleague is suffering due to a mistake made or a feeling of inadequacy and has come to you for support. What are the types of things you say to that person? What are some of your nonverbal cues? Do you listen empathically to the challenges they are facing? Do you remind them of professional or personal factors that are impacting their performance? Now, think of a time when you have been struggling and felt inadequate or made a mistake. What did you say to yourself? What internal tone of voice did you use? If you are like most of us, the things you say to yourself are more critical than they are to a colleague, friend or family member.

The good news is that there is a clear antidote to self-criticism, and that is self-compassion. Self-compassion has three elements: self-kindness vs. self-judgment (understanding, not punishment), common humanity vs. isolation (everybody goes through this), and mindfulness vs. over-identification (neither ignoring nor exaggerating feelings of failure). Self-criticism can lead to shame and decreased motivation, while self-compassion encourages learning and growth. Further, there is considerable research (4,000+ studies) documenting the benefits of self-compassion including improved relationships and reduced depression/anxiety. Kristen Neff, Ph.D., and Chris Germer, Ph.D., are at the forefront of this research. Some worry that being self-compassionate will take away their “edge”. Research shows that is simply not true. I recommend going to Dr. Neff’s website, <www.selfcompassion.org>, where you can access a self-compassion test, guided practices and exercises, workshops to attend, and research and publications.

Ultimately, workplace burnout prevention and recovery are about the strength of your relationships, including with yourself. The commentary in Forbes well states, “Meaningful connections remind us why we do what we do. When we connect with others who share our passions and values, it reignites our sense of purpose, making the daily grind feel less like a burden.”5 In addition, when engaged with self-criticism over a mistake, shift your dialogue to one that mirrors how you would support a colleague or friend. This shift could be an important step toward warding off burnout.

At the Lawyers Assistance Program of British Columbia, we offer workshops and presentations to help reduce self-criticism and strengthen selfcompassion. Visit our website at <www.lapbc.com> to find out and register for the various workshops and presentations and to find articles and other helpful resources.

ENDNOTES

1.Jen Marr, “Why Burnout Is Less About Workload and More About Lack of Connection”, Forbes (6 November 2023), online: <https://www.forbes.com/councils/ forbesbusinesscouncil/2023/11/06/why-burnoutis-less-about-workload-and-more-about-lack-ofconnection/>.

2.Emma Seppälä & Marissa King, “Burnout At Work Isn’t Just About Exhaustion. It’s Also About Loneliness”, Harvard Business Review (29 June 2017), online: <https://hbr.org/2017/06/burnout-at-work -isnt-just-about-exhaustion-its-also-about-loneliness>.

3.Robert Waldinger, MD, and his co-director, Marc Schulz, PhD have shared the study’s findings in their new book, The Good Life: Lessons from the Longest Study on Happiness (Ebury, 2023).

4.“Why Having a Best Friend at Work Is Important”, Gallup (5 December 2022), online: <www.gallup. com/cliftonstrengths/en/406298/why-having-bestfriend-work-important.aspx>.

5. Supra note 1.

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

Our seasoned international & domestic arbitrators adhere to a fair process and deliver impartial, balanced and timely awards.

resolve@vaniac.org | vaniac.org | 604-684-2821

ANNOUNCING THE 2025 ADVOCATE SHORT FICTION COMPETITION

ELIGIBLE CONTRIBUTORS

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

ELIGIBLE FICTION

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

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

DEADLINE FOR SUBMISSIONS

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

FORMAT FOR SUBMISSIONS

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

ADDRESS FOR SUBMISSIONS

Advocate Short Fiction Competition

c/o D. Michael Bain, K.C., Editor

The Advocate #1918 – 1030 West Georgia Street Vancouver, B.C. V6E 2Y3

JUDGES

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

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 13, 2026. Contest judges may award fewer than three prizes if, in their judgment, they consider it appropriate.

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

TRANSFER OF RIGHTS

In consideration of having their fiction reviewed for:

(a) possible selection as winning entries;

(b) possible publication in the Advocate; and

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

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

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

PETER A. ALLARD SCHOOL OF LAW FACULTY NEWS

By Richard Littlemore*

NURTURING JUSTICE WITH SUNLIGHT AND TIME

In an often-adversarial legal world, in which lawyers battle to assign fault, commissions of inquiry (royal and otherwise) can contrast as unusually collaborative and forward-facing processes—dedicated to fact-finding and clearing the air, but also committed to resolution and reform.

On a host of critical issues, such as Indigenous rights and governance, commissions at the federal and provincial levels have accelerated—or sometimes stalled—the march toward justice. A huge number have also attracted grumbling that their processes were little more than political distractions, producing doorstop reports that were rushed to the dustiest corner of the Parliamentary Library and left to rest, unimplemented and often unexamined

Against this complicated history, Allard Law alumni and faculty have been recruited at multiple levels by several recent commissions, applying their skills, their insights and their advocacy not just to contribute to the commissions’ successes, but also to reassure Canadians about the strengths, the potential and the demonstrable value of these wide-ranging legal mechanisms.

A leading voice in this group is Allard Law alum Dr. Kim Stanton (LL.B. ’99), who sat as one of three commissioners on the Mass Casualty Commission, the public inquiry into the April 2020 shooting deaths of 22 people in Nova Scotia.

“Commissions are more than just the reports they produce,” Stanton says. First, they are by definition inquisitorial, providing a broad legal mechanism by which to investigate and illuminate issues of critical public concern.

The Mass Casualty Commission, jointly appointed by the federal and provincial governments, had the authority to subpoena documents and

* Richard Littlemore is an author and freelance journalist. The article was originally published in the 2024 issue of the Peter A. Allard School of Law’s alumni magazine.

require the cooperation of witnesses at all levels of government, as well as in the federally mandated RCMP. It is unlikely that any other process could have achieved such a comprehensive understanding of what occurred in the 13-hour shooting rampage, what contributed to it, and what might be done, systemically, to prevent such a thing from occurring again.

Stanton also notes that commissions are by nature public. They initiate research and investigations, and they hold hearings at which they receive and reveal information and evidence. Stanton says that on any number of issues— including some that are low profile or poorly understood—“they present an opportunity for the public to become aware.” Even aside from making recommendations, she says, “[commissions] produce an incontrovertible record—a factual record—after which, what happened cannot be denied.”

This is an aspect of particular interest to Stanton, who is also the author of Reconciling Truths: Reimagining Public Inquiries in Canada, on the role and implications of inquiries such as Canada’s Truth and Reconciliation Commission (2008–2015) and the National Inquiry into Missing and Murdered Indigenous Women and Girls (2016–2019), which were both instrumental in confirming and calling public attention to incidents in Canadian history that had often been ignored or denied.

Getting matters of national interest onto the public record was also a crucial function of the Public Order Emergency Commission (“POEC”). The POEC was triggered in February 2022, when the Trudeau government declared a national emergency to manage the so-called Freedom Convoy’s occupation of downtown Ottawa, the blockades of Canada/U.S. border crossings, and other protests and obstructions across the country.

Allard Law Professor Dr. Jocelyn Stacey, one of seven members of the commission’s Research Council, says the POEC was unique, and uniquely successful, because rather than having to wait until a government is compelled by circumstances to call a commission, as is usually the case, the Emergencies Act requires that a commission of inquiry be completed within a year of any emergency declaration. So the government knew, even as it began contemplating using emergency powers, that all of its decisions and actions would be subject to full public scrutiny.

In that way, Stacey says, this particular commission had an effect even before it was formed. “It was a good example how to ensure public scrutiny of the exceptional use of emergency powers, in a comprehensive and timesensitive manner,” she says.

Paul Champ (LL.B. ’99), an Allard alum and Ottawa litigator focused on human rights, employment, labour and constitutional law, says the POEC hearings, which began in October 2022, were particularly welcome among

those who had been most directly affected by the long and noisy protest. Champ won standing before the Commission to represent a coalition of Ottawa residents and businesses, all of whom were “looking to get on the record the degree to which the convoy protest was anarchic—a breakdown at all levels.”

So, Champ says, the hearings, in which the level of anarchy was extensively recorded, “were incredibly cathartic for the people of Ottawa.” On days he could be seen cross-examining witnesses in the televised sessions, he says, “Strangers would hail me in the street and say, ‘You’re Paul Champ! Can I buy you a coffee?’”

Champ, who is accustomed to the adversarial nature of most court proceedings, says he was also impressed by the credibility and collegiality of the POEC. “The process says a lot about Canada,” he observes, pointing particularly to the willing participation of the convoy organizers, whom he describes as members of “an anti-authoritarian group with extreme political views” who nevertheless “still felt this was a process they could trust.”

Champ also reports what he describes as “a kind of Stockholm syndrome among the lawyers,” whomever they were representing. He says that he and the convoy organizers’ lawyers would sometimes eat lunch or dinner together and would collaborate when their interests aligned. “We all felt we were working together to tell the story.”

In a third example, the Commission of Inquiry into Money Laundering in British Columbia, the key function of fact-finding was a particularly prominent feature—and ultimately a huge public benefit. Allard Law alum and former Associate Chief Justice of the B.C. Supreme Court the Honourable Austin Cullen, K.C. (LL.B. ’75) was appointed commissioner in 2019. He credits some early finders of fact with providing inspiration for the commission in the first place, pointing in particular to some “canny and effective reporters”—especially Sam Cooper, of The Province newspaper and later Global TV—who were tireless in bringing the issue to light.

Cooper and others had produced a steady string of stories on people arriving in B.C. casinos with hockey bags full of cash, only to gamble, lose a little, and then leave at the end of the night with a cashier’s cheque—the original dollars cleansed of any previous association.

Because a significant amount of the casinos’ profits were going directly into government coffers, Justice Cullen says there was an implication that government ministers might have been turning a blind eye to obvious cashwashing—and to any predicate crimes. No such association was ever proven, but, Justice Cullen says, “A concern about corruption is a good reason to have a commission.” He adds that it was “enormously useful to have a thorough and transparent airing. It triggered a lot of useful discussions.”

Justice Cullen says that the commission was also well informed by two major Dirty Money reports by Allard alum and current president of the International Centre for Criminal Law Reform Dr. Peter German, K.C. (LL.M. ’90). These had been commissioned, originally confidentially, by the B.C. Attorney General, and they had already revealed the likely impact that money laundering was having on such things as real estate, luxury vehicles, professional services and horse racing. During the commission’s operations, it also became clear that some of the money was connected directly to the importation and sale of drugs such as fentanyl—a crime that was more profitable to commit precisely because that income could be washed and reused.

While commission of inquiry veterans point out the value of deep investigation and wide public disclosure, that does not mean they are less than determined to bring full effect to the ultimate opportunity—to use commission findings and recommendations to change policy positively for the future.

Allard Law professor and alum Dr. Emma Cunliffe (LL.M. ’03, Ph.D. ’09) worked with Stanton on the Mass Casualty Commission as its Director of Research and Policy, charged with building a knowledge base on which the commission could make novel, pragmatic recommendations with the best chance of actually being implemented. Cunliffe says, “We wanted to be sure [the Commission] was not a box-checking exercise that would be quickly shelved.”

With help from a team including Emma Ronsley (J.D. ’18), an Arvay Finlay litigator who had also worked as Cunliffe’s research assistant during her studies at Allard, they read widely among reports from previous inquiries, looking for what had been recommended, what had been implemented and what had not been implemented—and then trying to determine why not. They then worked to fill knowledge gaps, through documentary research, by commissioning expert reports and by running public roundtables at which experts and community members could discuss key issues.

Other Allard Law professors contributed their expertise to the research and policy work of the Mass Casualty Commission, including Dr. Benjamin Goold, Isabel Grant and the Honourable Lynn Smith, OC, K.C. (LL.B. ’73).

Ronsley says that working with the commission, already an honour for someone who had only been called to the bar earlier the same year (2020), was exciting for its potential. She says that while litigation is backward looking—you narrowly define an issue, establish liability and prove damages— commissions are forward looking: “They are oriented toward finding the truth and sharing that finding with the public, and then looking to the future to determine how to make it better—something you rarely do in litigation.”

That said, Ronsley is also pragmatic about the prospects of quick change. The Mass Casualty Commission focused on a host of topics, including access to arms, policing, mental health and gender-based and intimate-partner violence. Ronsley says, “These are deep-seated systemic issues—things that will require a lot of will and effort. You can’t solve gender-based violence with a one-off training course.”

Stanton finds a degree of hope in that practical, long-term perspective. She says, “It’s not just a matter of getting recommendations implemented immediately. It’s an opportunity to shift the narrative over time.” As an example, Stanton points to the impact of Indian residential schools, a topic that was not just ignored but actively avoided through much of the last century.

That started to change in the 1970s, when the late Justice (and Allard alum) Thomas Berger, OC, OBC, Q.C. (LL.B. ’56) included a paragraph on the subject in his commission report from the Mackenzie Valley Pipeline Inquiry. Twenty years later, the report of the Royal Commission on Aboriginal Peoples included a full chapter on the subject, and by the early 2000s, in the midst of settlement suits involving the federal government and the Catholic Church, the issue was a forcing factor for the establishment of the 2008– 2015 Truth and Reconciliation Commission of Canada.

Stanton says, “It’s a 40-year arc, in which the public starts to understand something that is not easy to contemplate or take in. But if you hear it enough, you begin to see a shift.” You also better understand “how commissions contribute to social justice over time.”

That said, commissioners, researchers and legal staff alike still wait anxiously for action on reports already filed. Justice Cullen, for example, points out that “criminologists have reported that $40 billion a year is laundered in Canada,” and given what he learned during his own commission, “that seems to fall within a reasonable range.” So, he is very keen to see uptake on one of his principal recommendations, the establishment of an antimoney-laundering commission—an independent office of the legislature designed to monitor the effectiveness of anti-money-laundering efforts, to identify emerging areas of vulnerability, and to work with enforcement bodies to limit the damage.

Stanton, too, mixes the practicality of her patient perspective with a different and more urgent kind of pragmatism. Looking at her own commission, she says, “It’s up to government to implement the recommendations or risk seeing history repeat itself.” There’s no question that the issues are complex and that, even after an excellent process, they resist solutions. And the Mass Casualty Commission’s recommendations were wide ranging: “It’s expensive to implement,” she says, “but more expensive not to.”

Available at Kurbatoff Gallery, 2435 Granville St., Vancouver

Visit the website: kurbatoffgallery.com

“Old Pal” by Jane Bronsch, acrylic on canvas, 48'' x 36'', 2023

UVIC LAW FACULTY NEWS

By Katie McGroarty*

VAL NAPOLEON RECEIVES ROYAL SOCIETY OF CANADA YVAN ALLAIRE MEDAL

Dr. Val Napoleon, Professor and Law Foundation Chair of Indigenous Justice and Governance, has been awarded the Yvan Allaire Medal by the Royal Society of Canada. This honour recognizes her exemplary contributions to the field of governance, particularly through her work in the revitalization of Indigenous law in Canada.

Dr. Napoleon has been instrumental in several initiatives at the UVic Faculty of Law, including establishing the Indigenous Law Research Unit and co-leading the development of the J.D./J.I.D. joint degree program in Canadian common law (J.D.) and Indigenous legal orders (J.I.D.)—the first of its kind in the world. J.D./J.I.D. students obtain the full content of UVic’s common law degree, together with greatly enhanced skills to work productively within Indigenous legal orders.

Dr. Napoleon’s vision for Canada is one where Indigenous legal orders, complete with laws, institutions and legal processes, are fully functioning and operational, fostering healthy citizens and safe communities. “You can’t be a people without law, and you can’t govern without law. If you think of all the ways that you interact in your daily life—your mobility, relationships, transactions—law is implicitly and explicitly woven around you, and you are always engaging with it. These are the reasons why Indigenous law is important to Indigenous people. Our economies and legal orders are closely tied, and it’s about thinking, about solving problems and about understanding ourselves in relation to other people,” says Dr. Napoleon.

Dr. Napoleon acknowledges the unique environment at UVic, which includes over 80 Indigenous faculty members, as a vital component to the

* Katie McGroarty is the communications officer at the UVic Faculty of Law.

work she has undertaken. “These initiatives would not have taken hold without the unanimous support of all people in this law school. At the university, we have had continued support for the work we’re doing as well as the work being done in other faculties such as language and education. This makes the university overall a very rich place for Indigenous individuals,” says Dr. Napoleon. “It’s that kind of institutional commitment on the part of everyone—the staff and faculty—that has made this all possible. It’s not just one person; change doesn’t happen in a vacuum.”

UVIC LAW’S ACCESS TO JUSTICE CENTRE FOR EXCELLENCE (“ACE”)

ACE was established in 2015 with the mandate to conduct applied research that seeks practical solutions to Canada’s access to justice crisis. Since then, it has evolved into a provincial research centre, with interdisciplinary engagement across each of British Columbia’s major research universities. With support from funders that include the Law Foundation of British Columbia, the Social Science and Humanities Research Council, Mitacs Accelerate and the Justice Partnership and Innovation Program, ACE now leads multiple research and education projects staffed by teams of scholars and students working across the disciplines of law, public administration, criminology, public health and data science.

“We know well that access to justice is rarely a function of law alone. At ACE, we believe it critical to engage with disciplines outside of law to better understand and respond to the many extra-legal factors that contribute to justiciable problems and impact client outcomes,” says Dr. Michelle Lawrence, Director of ACE and associate professor at UVic Law.

Recent projects have included a focused study of administrative data collection and the socio-demographic variables potentially impacting case and client outcomes, an evaluation of extra-legal support services for justice system participants and an investigation of consensual dispute resolution approaches used in British Columbia in family law cases involving intimate partner violence.

Data Initiatives

This past year, ACE also supported two significant data initiatives: the Justice Data and Design Lab (“JDD Lab”) and the AI Risk and Regulation Lab (“AIRRL”).

Employing interns from UVic Law and the Faculty of Engineering and Computer Science, JDD Lab teams have developed new methods for collecting and analyzing data on unmet legal needs. They are using AI to detect clusters of problems people are dealing with, and they are now sharing that information in monthly emails and blog posts. ACE hopes the lab’s

findings may be used alongside other evidence to support policy decisions on where and how to improve access to justice. “The monthly data updates are going out to over 180 people, and we have provided datasets to research groups looking into changes to housing or employment issues. We are keen to collaborate and share this data! Anyone interested in receiving these updates can sign up on justicedataanddesign.com,” says Kate Gower, Associate Director at ACE and JDD Lab Director.

The JDD Lab is also building prototypes to help people in search of legal information. Its first prototype, a Reddit bot (“R-Bot”), guides British Columbians to high-quality online resources using early ChatGPT technology. The team continually improves the R-Bot, with version 4.0 launching this fall.

The AIRRL is ACE’s second major data project. It focuses on AI regulation and risk management. Led by Michael Litchfield, Associate Director of ACE and Director of UVic Law’s Business Law Clinic, the AIRRL team researches AI risks, develops regulatory frameworks and policy recommendations, and promotes public awareness of AI-related legal issues.

“AIRRL’s research will contribute to the development of robust risk management strategies, ensuring compliance with emerging legal standards and promoting public trust in AI technologies. As Canada advances in AI research and development, it is imperative to address the associated risks proactively,” says Litchfield. “The Lab will play a crucial role in this endeavor, helping to shape policies that balance innovation with risk management, fostering a safe and equitable technological landscape.”

Person-Centred Justice Initiatives

Person-centred justice frameworks have risen to prominence in recent years, including at the international level with endorsements from the Organization for Economic Cooperation and Development and the inclusion of a new person-centred justice indicator in the United Nations Sustainable Development Goals. ACE has emerged as a leading Canadian voice in that conversation.

In May 2024, ACE co-hosted its second national workshop on person-centred access to justice in Montreal, bringing together 50 scholars, practitioners and policymakers from across Canada and around the world to share research and best practices. Plans for a third workshop in Vancouver in May 2025, co-hosted with the Peter A. Allard School of Law and the Thompson Rivers University Faculty of Law, are now underway. Before that, ACE members will be sharing their research at the International Access to Justice Forum this fall, showcasing British Columbia’s contributions to the global access to justice dialogue.

One such contribution is the soon-to-be released special issue of the Canadian Journal of Law & Society dedicated to the issue of person-centred access to justice, guest-edited by Dr. Lawrence and Dr. Andrew Pilliar, ACE Research Associate and Associate Professor at TRU’s Faculty of Law. It represents a major contribution to Canadian scholarship on the topic.

Access to Justice Education Initiatives

ACE also supports educational initiatives aimed at fostering access to justice education. Among its current projects is the development of a standalone, online Access to Justice course based on Professor Robert Lapper, K.C.’s popular in-person equivalent offered at UVic Law. “The development of this course is a real and novel opportunity to consider what access to justice pedagogy should involve, and its open-source format will facilitate broader awareness and understanding of critically important issues in our justice system,” says Professor Lapper, David and Dorothy Lam Chair in Law and Public Policy at UVic Law and the Faculty of Human and Social Development. This course is the first component of a larger project that ACE is planning, in collaboration with colleagues at other Canadian law schools, to develop core curriculum on access to justice lawyering and to recognize students who achieve core access to justice competencies while in law school.

Impact

Through its research and education projects, ACE is making meaningful and tangible contributions to the field. It is also building capacity within the academy and the profession for future access to justice work and establishing itself as a leader in interdisciplinary access to justice research. By extending itself outside of law, promoting collaborations with professional and academic colleagues across Canada and engaging with new technologies, the ACE team is making great strides toward addressing both current challenges and future advancements in the justice sector.

TRU LAW FACULTY NEWS

By Desmond MacMillan*

Another year of teaching has begun at TRU Law, with 135 exceptionally eager students joining us in September. Our annual welcome breakfast keynote speak was TRU Law alum Cemeka Douglas, Manager of Student Programs at Hicks Morley in Toronto and Director of Mentorship at the Canadian Association of Black Lawyers.

RESEARCH LECTURE SERIES

Mark Mancini joined TRU Law in July 2024 as an assistant professor. In September, he presented his inguinal research lecture titled “Our Textualism”, about his ongoing work on the Canadian approach to statutory interpretation.

Mark publishes a weekly administrative law blog on Sunday night appropriately called The Sunday Evening Administrative Review.

INTER VIVOS: LAW AND CURRENT AFFAIRS PODCAST

We are excited to announce the launch of the Faculty of Law’s new podcast featuring conversations with Canadian law scholars on pressing events and policy debates in the news.

Over the summer, TRU Law professor Robert Diab, together with Trevor Balantyne (3L), recorded six episodes. In addition to discussions with TRU faculty Ashley Barnes, Mark Mancini and Matt Malone, the episodes include interviews with Richard Moon (Windsor) on encampments and free expression, Geoffrey Sigalet (UBCO) on the notwithstanding clause in the Charter, and Emily Laidlaw (Calgary) on the Online Harms Act.

Some of the topics that will be covered include artificial intelligence, law and democracy, topics in public and international law, and challenges to social and economic equality.

* Desmond MacMillan is the assistant dean at the TRU Faculty of Law.

You can listen to all episodes on Apple Podcasts and Spotify.

STUDENT AWARDS

Anisha Grewal, 2024 TRU Law alumnus, recently won the Canadian Bar Association Aboriginal Law Section Essay Contest for her paper, “Breaking Bread, Building Sovereignty: A Legal Analysis of the Journey to Indigenous Food Security and Self-Governance”. Grewal is currently articling with Baker Newby LLP.

Greg Parth is the recipient of TRU’s 2024 Justice Rosalie Silberman Abella Prize, presented by the Royal Society of Canada. While at TRU, Parth volunteered with the Pro Bono Students Canada, Amici Curiae Friends of Court and the TRU Community Legal Clinic. Parth is currently articling with Dentons Canada LLP in Calgary.

RESEARCH ROUNDUP

Professors Robert Diab and Chris D.L. Hunt’s Search and Seizure book offers a comprehensive resource on s. 8 of the Canadian Charter of Rights and Freedoms in a narrative format accessible to general readers, with close to exhaustive coverage for lawyers and judges. It deals with all aspects of s. 8, including a “reasonable expectation of privacy”, the many sources in law authorizing a search or seizure, when such laws are reasonable under the Charter, and when a search or seizure is conducted in a reasonable manner.

Assistant professor Ashley Barnes’s “Fair Compensation: Reality or Aspiration in International Law?” was selected for inclusion in the European Society of International Law Paper Series and published by the Academy of European Law. Dr. Barnes examines a recent uptick among international courts and tribunals awarding compensation to states, and occasionally even individuals. She argues that these courts have neglected many concerns that have a direct bearing on the perceived fairness of making compensation awards including how they are assessed, to whom and under what circumstances compensation is owed, and the intended purpose. As calls for compensation become increasingly common internationally, she offers guidance on the additional factors to consider in promoting fairer compensation.

In another work, “Rhetoric, Victims and International Law”, which was published in the Temple International & Comparative Law Journal, Dr. Barnes analyzes new work on the preoccupation of international criminal law with spectacular forms of violence. She addresses, for example, the implications of this preoccupation for victims of less visible or tangible harms who may suffer equally but not receive the same recognition.

ЖЖЖ

NEWS FROM MINISTRY OF ATTORNEY GENERAL

PROVINCIAL COURT BEGINS USING COWICHAN TRIBE LAWS FOR CHILD AND FAMILY SERVICES

Effective August 1, 2024, Cowichan Tribes began using its own laws, Snuw’uy’ulhtst tu Quw’utsun Mustimuhw u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [laws of the Cowichan people for families and children] (“Cowichan law”), in the Provincial Court of British Columbia to resolve child and family welfare matters. This followed a landmark agreement between Cowichan Tribes, the Province of British Columbia and the federal government that recognizes and respects Cowichan Tribes’ inherent right to self-government, which includes jurisdiction over child and family welfare.

The new Provincial Court (Snuw’uy’ulhtst tu Quw’utsun Mustimuhw u’ tu Shhw’a’luqwa’a’ i’ Smun’eem) rules are intended to establish processes that will support the effective exercise of Cowichan Tribes jurisdiction over child and family services, further aligning British Columbia’s child welfare system with the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) and delivering on the province’s Declaration on the Rights of Indigenous Peoples Act, s. 3, that addresses the obligation to consult and cooperate with Cowichan Tribes.

The project is the first of its kind in British Columbia for which rules of court for proceedings in the B.C. Provincial Court were developed in collaboration with Indigenous peoples to support the application of Indigenous laws.

Background

In 2020, following the enactment of Canada’s Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families (the “Federal Act”), Cowichan Tribes gave notice to the federal and provincial governments of their intent to reclaim jurisdiction over child and family services. The Federal Act was enacted in keeping with its commitments relating to

UNDRIP and in response to the calls for action made by the Truth and Reconciliation Commission of Canada.

This led to Canada, British Columbia and Cowichan Tribes negotiating a coordination agreement that was signed on June 24, 2024. The agreement outlines mechanisms and support for the implementation of Cowichan Tribes’ law and provides federal and provincial funding commitments to Cowichan Tribes.

The working group to co-develop a new set of Provincial Court rules started in December 2022 with representatives from the Ministry of Attorney General, the Ministry of Children and Family Development and Cowichan Tribes. This partnership was a unique opportunity for British Columbia and Cowichan Tribes to work together on a legal pluralism project and collaboratively develop a set of rules to provide guidance to the Provincial Court in disputes involving Quw’utsun smun’eem [Cowichan children] governed by Cowichan Tribes’ law.

In addition, Cowichan Tribes undertook a community-driven approach for the development of their legislation model, involving extensive consultations within the community for over more than a decade.

This new set of Provincial Court rules is built on a trans-systemic web of legal authority that includes both provincial law and Indigenous law, specifically Cowichan Tribes’ Cowichan law.

The complexity of this project was in ensuring that, in every respect, the new rules support and are legally consistent with each part of the Cowichan law, Cowichan Tribes’ cultural values and Cowichan Tribes’ approach to dispute resolution in the field of child protection. The government’s commitment to Indigenous jurisdiction shown in Bill 38 (the Indigenous Self-Government in Child and Family Services Amendment Act) met the practical need for court procedures to reflect that commitment. Cowichan Tribes’ decades-long commitment to reclaiming jurisdiction over their smun’eem [children] inspired ministry staff to do their best.

Significance

By applying Cowichan laws in these cases, the cultural identity, language and practices of the Cowichan people are preserved and promoted. This will ensure that Quw’utsun smun’eem remain at the heart of the community, connected to family and culture and in alignment with Cowichan teachings. It also allows decisions to be made within the cultural and legal framework of the Cowichan Tribes, leading to more appropriate and supportive outcomes for Indigenous children.

As of August 1, 2024, these long-overdue changes are upholding Indigenous jurisdiction, helping address the overrepresentation of Indigenous children and youth in care and keeping families connected.

“Evolving Sky” by Jane Bronsch, acrylic on canvas, 60'' x 48'' Available at Kurbatoff Gallery, 2435 Granville St., Vancouver Visit the website: kurbatoffgallery.com

Nicole Garton, B.A., LL.B, LL.M., C.Med, FEA, TEP President, Heritage Trust

NOS DISPARUS

By R.C. Tino Bella

Bryan Selby Shapiro

BRYAN IN THE EARLY YEARS

Bryan was born in Winnipeg in 1944 to Dolly and Saul Shapiro. As a child, he worked hard and played harder. He went to St. John’s Senior High with some very famous Winnipeg musicians (Randy and Burton). He played quarterback in school. He loved football and never lost his love for the Blue Bombers.

As he matured, his athletic prowess fell way to his intellectual capacity. He attended the University of Manitoba for undergraduate studies and there began the study of law. In 1968, he moved to Vancouver (his parents had moved there in 1964) and completed his law degree at UBC. While in university, he found some time to perfect his culinary skills as a server on CNR dining cars and a cook/server at Hastings Racecourse.

His pursuit of real employment (and his law school gold medal) led him to Bull Housser & Tupper for articles. Early in his time with the firm, he parked his love of football and began a romance with hockey. In 1969, he participated in work leading to the incorporation of the Vancouver Hockey Club Ltd. That began his lifelong obsession with the Canucks.

At Bull Housser, he became involved in one of the longest trials in the history of our Supreme Court, a complicated dispute arising from the construction of the Mica dam. This experience transformed Bryan into a construction lawyer in a firm that, in the 1970s, prided itself on having an “engineering department”. Notable members of that department included a young Beverley McLachlin, Wilfred (Bae) Wallace, Glenn Urquhart and several others. Bull Housser had a deep pool of talent dealing daily with complex matters. Bryan learned much from his mates.

After sampling what he considered the somewhat bitter taste of litigation, Bryan decided to choose a slightly different approach to construction law. He began the development of what would eventually become his widely known construction solicitor’s practice. As part of that evolution, in 1977 he was seconded to Ottawa to work with the Canadian Construction Documents Committee drafting the early versions of its standard form design and construction contracts, today’s “CCDCs”. Upon his return to Vancouver, he assumed (and ultimately maintained for the next 42 years) a limited teaching position in the UBC engineering school. He lectured fourth-year students on the Legal Aspects of Engineering. Later, many of his clients would say of his lectures on professional liability, “Bryan scared me so much, I almost chose a different career.”

BRYAN WAS A RISK TAKER

In a blissful moment in 1991, Bryan opened a door that led to what would become Shapiro Hankinson & Knutson (and later SHK Law). Despite the risk management skills he acquired during his years at Bull Housser, he embarked on this new adventure with no guarantee of success (little did he expect that those he would meet on the other side of the doorway would have similar business acumen). Two ambitious, yet unknowing, Pisceans joined by a lone Sagittarian went on an uncharted course to build a construction and commercial law boutique.

And so it began, the small SHK shop that has recently evolved into the Vancouver office of worldly Clyde & Co. During his years at SHK, Bryan’s practice flourished in step with the continuing development of Vancouver and western Canada. At SHK, Bryan unselfishly shared his practice and his experience. He was generous with his time and became both the firm’s chief mentor and its chief entertainer. Strangely, Bryan never aspired nor rose to the position of chief technology officer. That tedious business was left to others who were “more qualified”. Bryan respected the people with whom he worked and very much appreciated their support. Bryan enjoyed coming to the office. Nothing made him happier than opening a new file (except maybe reviewing a 300-page draft contract with a red pen).

Those were good years.

BRYAN WAS A TRUSTED ADVISER

Countless members of the design, construction and development communities sought Bryan’s advice and received his wise guidance. Bryan may not have built those many projects in which he was involved, but he certainly helped in steering them to success.

In 1997, Bryan was invited, as a charter member, to join the Canadian College of Construction Lawyers (“CCCL” or “College”). His membership in the College gave him a perfect forum in which to converse with his talented peers across Canada. During his tenure, the College grew from the original 24 to well over 100 experts in construction law. Bryan appreciated exchanging ideas with his national colleagues and especially enjoyed his attendances at the yearly conferences of the CCCL.

BRYAN WAS DEVOTED

Bryan was loyal to his friends, those he grew up with in Winnipeg and those he met in Vancouver, but most of all, Bryan was devoted to family.

In the late 1970s, he married Sherrill. Together they had Jessica, Laura and Charles. Some years later, Bryan married Martina and eagerly welcomed Martina’s daughter Sarah into their extended family. His interest in the wellbeing of all his family members was obvious. Bryan loved Martina’s amazing artistic talent and the many achievements of his children.

BRYAN WAS BRYAN

One day in high school, he and his fellow classmates were asked to write an essay about a crane. Most students researched the lifestyle and habitat of a most remarkable member of the avian community. Bryan wrote his essay about a big crane on a construction project. He received a good grade.

Bryan was quietly active in his religious community. While he certainly had interests outside of the law (including the occasional trip to Las Vegas), his true dedication was to family and his profession. He was proud to work as a lawyer for 53 years and prouder still of the relationships he forged with his many clients and colleagues. Bryan enjoyed lunch and was pleased to host his gatherings most days of the week in some of Vancouver’s finest eateries.

As Bryan’s health began to fail, he was comforted in knowing that his family was in a position to flourish. Martina’s inner strength would continue. His children, together with their children, were well on their way to achieving their goals in life. He knew this because of his constant interest and devotion to family. Bryan was content.

Bryan was funny, caring, generous and interested. He was a good friend, was a great partner and had a wonderful spirit.

We miss him.

Stuart Hankinson, K.C., Greg Shapiro and Bill Knutson, K.C.

Digby Robin Kier, K.C.

Digby Robin Kier, K.C., passed away on October 3, 2023 at the age of 87. He had practised law for almost 55 years before retiring in June 2017.

Digby grew up in humble circumstances. His maternal grandfather, James Brandon, was a lawyer in Victoria, and his mother, Josephine, was a teacher (she named Digby after a character in Beau Geste). However, after she married Digby’s father, William Kier, in Lone Butte in the Cariboo, the couple bought a houseboat and had it towed to a bay near a logging camp on Cowichan Lake called Camp Six, later Caycuse.

They began to build a homestead and eked out a living selling chickens, eggs and milk to the logging camp while his father cleared five acres of land. His mother taught at Caycuse and Nitnat Camps. She instructed Digby early on how to start their old truck with a crank by retarding the spark, so the gasoline in the cylinders would ignite just after top dead centre (rather than on the way up), so he would not break his wrist when the crank was driven back by the explosion. His fascination with the intricacies of the internal combustion engine lasted his whole life, manifesting in the acquisition of a large number of cars, from old jalopies to a beautiful blue Bentley convertible that he drove proudly around the province and on trips to the United States with his children and friends. The Bentley was sold a few years ago to a British collector.

Most people are familiar with the Monty Python-type exaggerations of the previous generation who walked six miles to and from school, uphill both ways, always in deep snow. Digby and his brother, Tory, actually had to row across a lake, climb up a cliff and hop on a train to get to school in the Village of Lake Cowichan.

Digby’s upbringing taught him to work hard. He was inquisitive and curious and enjoyed reading. He did well at school, receiving a $300 scholarship from British Columbia Forest Products, which was a large amount in the ’50s, and left his rural home for the bright lights of Vancouver and UBC. He obtained a B.A. and then a law degree in 1961. He articled in Victoria at the firm of Cox, Taylor & Gregory, and practised there for five years. He joined the federal Department of Justice, Criminal Prosecutions, in 1967, and prac-

tised there for the next 50 years doing a variety of work, including having an appellate practice. One of his later colleagues who had clerked in the Court of Appeal recalls Mr. Justice Taggart asking the court clerk what was on the list that day. He was told there were some federal criminal matters. “If we get that chap from the federal Crown with the unusual name, we’re sure to get a good argument,” he said. That chap was Digby.

However, it was in the trial court in the field of regulatory prosecutions that Digby (“the Digger” to his friends) made his name. He took particular interest in cases involving worker safety and protection of animals in federal undertakings. He handled many of the early Indigenous fishing rights challenges at the trial level, as well as countless pollution cases. He was principled in his approach to his role as Crown counsel, but he was relentless in the pursuit of what he deemed to be the right result. Environmental cases were not necessarily looked on as particularly important when Digby began to develop an interest in them. He took many cases to the Court of Appeal, including the often-cited decision of R. v. MacMillan Bloedel (Alberni Ltd.), which interpreted the cornerstone pollution provisions of the Fisheries Act. He felt it was important to ensure that environmental laws and regulations were strengthened and interpreted in accordance with their intent and purpose, to protect the environment.

It was not possible to work for the criminal section of the Department of Justice in the ’80s and ’90s and onward and not be asked by lawyers and judges, wherever one went around the province, “How’s Digby doing?” Senior lawyers who went up against Digby, usually from large law firms who were acting for the offending companies that were allegedly polluting the oceans, lakes and streams, describe the courtroom battles as hard fought, even somewhat bloody (figuratively, I assume), but overall, they enjoyed having tales to tell about meeting Digby in court. Digby had immense respect for the court system and would never overstep the bounds of professional courtesy in or out of the courtroom.

Digby was an invaluable colleague and professional associate. He was always available to discuss trial strategy, legal issues, procedure or ethics. He had no airs and treated everyone equally. The investigators Digby worked with and his legal assistants speak of him with great fondness. Digby’s manager for several years prior to his retirement, the Honourable Robert (Bob) Prior, said he could assign Digby any type of case. He would never complain about the assignment; he would work the file, be prepared for court and do the trial; and Bob never had to worry about how the case would be handled. Digby and his first junior and protégé (and friend), John Cliffe, who credits Digby with teaching him many valuable lessons for the

courtroom, handled most of the federal environmental cases for years, and Digby’s expertise was freely passed on to the large group of lawyers who now handle environmental cases for the federal Crown. Even after his retirement he kept up on the law and enjoyed discussing ongoing developments in the legal world.

Digby was an unselfconscious eccentric, extremely frugal (to be honest, unbelievably cheap and very creative in the ways he came up with to save money), but on the other hand, very generous with his children, Tim (Valerie) and Robin (Steve), and his four grandchildren, to whom he was devoted. He was always very fit, doing chin-ups on his office door frame, and he had strange ideas of healthy eating. To the dismay of his colleagues, his office and the surrounding area would often be redolent of garlic, mung beans and other digestive aids he was sure would lead to a well-functioning body. He did manage to practise for 55 years, so maybe he was onto something.

Digby had many friends who were loyal and caring. His longtime friends Diane Shea and Cynthia Neale made it possible for him to remain in his home in his final years.

Digby belonged to the era of strong and unapologetic personalities. He would have found the present “woke” world a strange one to practise in. Eccentric and uncompromising as he was, he is remembered with great affection and amusement by his family, friends, professional associates and former colleagues. Everyone has a “Digby story” to tell.

The Honourable Mary Humphries, with Digby’s friends and family

“Sneaky Pete Strikes Again” by Kathy Traeger, acrylic on canvas, 48'' x 40''

Available at Kurbatoff Gallery, 2435 Granville St., Vancouver

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NEW JUDGES

By R.C. Tino Bella

The

Honourable Judge Christopher George Churchill

Christopher George Churchill was sworn in as a judge of the Provincial Court of British Columbia on March 21, 2024. His resident chambers are in Nanaimo, where Chris had practised for many years. His appointment was met with warm approval from the members of the Nanaimo bar and court staff, who were pleased to see one of their own appointed as a Provincial Court judge. It was clear to those who have known and worked with him that he would have been a fine candidate for the bench for a long time before his actual appointment, but Chris was simply enjoying the practice of law too much until the changes in the court system wrought by the pandemic brought the need for new challenges.

Chris was born in St. John’s, Newfoundland, but happily for the B.C. legal community, his father obtained a position at the Comox air base when Chris was only six years old, and he was ferried across the country by station wagon to his new home in Courtenay. Although he subsequently left for school and to travel the world, Chris was always drawn back to the North Island.

In the 1970s, the Comox Valley had not yet become the retirement hot spot that it is today and was all the more charming for its relative obscurity. Chris’s childhood consisted of exploring outdoor opportunities afforded by the geography, while soaking in the grassy and hippie vibe of the valley. With his big hair (now extinct), his big smile and his relaxed attitude toward life, an outside observer would not immediately have predicted Chris’s future legal career.

Prior to graduating from Vanier High School in 1979, Chris met the love of his life, Denise. Denise was not actually attending Vanier, but had been

advised by some helpful friends that there was an eligible young man there whom she might get on with. Happily, for Chris, Denise took the initiative and showed up during a lunch break at Vanier one afternoon. However, with no specific direction as to which one of the many shaggy-haired boys in front of her she might make a future with, she picked one at random and introduced herself asking, “Are you Chris Churchill?” Happily, he was, and they have been inseparable ever since.

Graduating from Vanier in 1979, Chris spent a rather directionless year at the University of Victoria, and then, like many 1970s graduates, decided that it might be a better idea to see a bit of the world.

Globetrotting in the 1970s as a young person frequently involved the purchase of a VW Bus. Usually, this also meant buying one in England with the Volkswagen sputtering out in Katmandu. However, Chris’s sights were set on Down Under. He spent a year chugging all over Australia (after stops in New Zealand and the Pacific Islands), working at various jobs including one particularly arduous stint working construction in one of the more forbidding areas of the northwestern Australian desert. On his way back to Canada, he met Denise in Fiji where they became engaged, and they were married the following year.

With the support of Denise, who had already established a career as a licensed practical nurse, and with the help of a paper mill in Campbell River that gave him steady employment in the summers and whenever else he needed work, Chris returned to the University of Victoria with the initial intention of doing pre-med coursework. However, once in the bachelor of science program, Chris supplemented his income by working as an assistant in one of the forbidding basements of UVic’s science buildings where animal trials dissuaded him from any thoughts of a future that involved practising on human beings. This led to a redirection of his degree in a more general arts and science direction, with a view toward practising law.

However, upon Chris’s graduation from UVic, Chris and Denise decided that law school could wait for a bit and that some more globetrotting was in order. Another VW Bus was purchased, and they headed south toward Mexico and Central America for a year of adventure. Aware that law school applications could not be reliably mailed from Mexico, the couple stopped on the southernmost border of Texas and Chris filled out his application for Dalhousie Law and a few others, popped the applications into the post and then crossed the Mexican border. Happily, those were slightly more innocent times for Mexico, and Chris and Denise had a grand adventure motoring south through Central America and then back up to Vancouver Island just in time to complete interviews for Dalhousie, his favoured law school, which accepted him.

As Chris had been ferried across the country when he was six, Chris and Denise packed up their belongings into a trailer and drove back across the country to Halifax where Chris attended Dalhousie Law from 1989 to 1992.

After decompressing for about half a year after graduation, in February 1993 Chris accepted an articling position at the Nanaimo branch of MacIsaac & Company, where he joined his future friend and colleague Brian Harvey (now Judge Harvey of the Provincial Court). MacIsaac & Company was a personal injury firm, but Chris was drawn to criminal advocacy and carved out a practice within his primary duty of battling ICBC. By May 1997, it became clear to Chris that he wanted to strike out on his own and he embarked on life as a sole practitioner. Having just bought a house, Denise was a little concerned that this ambition might have been slightly premature, but, happily, Chris was off to the races and never looked back.

Outside of the courtroom and the hospital, Chris and Denise continued to travel—they were on their way to India when the Chief Judge called to notify him of his appointment—and returned regularly to the Big Island of Hawaii to unwind from the stresses of practice. Chris loves live music, and he and Denise make an annual pilgrimage to the Vancouver Island Music Festival (“MusicFest”) in Courtenay. Chris and Denise are famous for their hospitality, which occasionally features a hearty Newfoundland “Scoff”, and for their house, which is itself notable for continual renovation. Chris and Denise have developed a novel strategy for home improvement that involves never letting the completion of one project overshadow the commencement of the next one. Having achieved near perfection this year, Chris admits that they may just have to start all over again.

By the time the pandemic struck, Chris had established himself as one of the leading criminal lawyers on Vancouver Island. He was well liked by his colleagues and well respected by Crown counsel and court staff. He was deeply enmeshed within various community organizations, including Nanaimo Youth Services (youth criminal defence work was always a significant area of his practice) as well as extensive tenure on the board of the John Howard Society and Connective, and for his last year in practice, he was involved in working with the Connective Housing First Program in Nanaimo. Although those who worked alongside him at the bar will miss his warm and friendly good cheer and sense of humour, we know his steady hand and judgment will serve the community and the justice system well.

The Honourable Judge Colleen Elden

Colleen Elden has been appointed as a judge of the Provincial Court of British Columbia. Intellectually, we recognize that her tremendous skill and intelligence, her deep reserves of empathy and common sense and her unfailing concern for fairness will all be of great benefit to the justice system. Her appointment deserves to be celebrated. But although we have for years tried to prepare ourselves for this inevitability, frankly we are still mourning the loss of Colleen as an indispensable colleague and mentor.

We know this is petty and selfish. But let us explain ourselves.

First and foremost, Colleen was an outstandingly talented advocate whom we continue to try to emulate in various ways. We have acted against her, we have acted for clients united in interest and we have been co-counsel with her. We have noticed that each time, she was right: right about what mattered in the case, and right about the best strategy for her client. And coupled with that right judgment was her ability to execute on her chosen strategy with consummate skill, supported by careful preparation and her photographic memory.

Colleen was the ultimate criminal barrister. Like any true advocate, she was effective in every role she took on—and she did it all. She began her legal education earlier than most, entering the first year of law school at the University of British Columbia after completing only three years of an undergraduate degree. She articled and practised with Cobb St. Pierre Lewis and later went on to build a very busy and diverse practice as a sole practitioner. While a significant portion of her work was as defence counsel, she was frequently appointed as ad hoc Crown counsel and amicus curiae on complex criminal cases. She also regularly acted for vulnerable witnesses, including complainants of sexual assault. Colleen was counsel for complainants of sexual assault in many of the leading cases in British Columbia, and as counsel in that role, she was among the most experienced lawyers in the province. In all her capacities, she demonstrated excellence in her craft and treated each and every person she came across with respect and dignity.

Over the course of her busy career, Colleen honed her advocacy skills to the sharpness of an exacto knife. Her cross-examinations were so skillful we would sometimes watch them even when we were not involved in the case at all. One memorable cross concerned the voluntariness of a statement

given by Colleen’s client, who was charged with a serious criminal offence. He had given the statement after being forced to participate in a “ride-along” in a small squad car with seven police officers. On the stand, one of those officers initially denied the ride had anything to do with the investigation, to which Colleen retorted: “So you were just driving around like clowns in a clown car?” He paused, saw no way out and mumbled: “Correct.” Colleen continued to dismantle his evidence over the course of two days with unerring control and excruciating precision. The accused’s statement was found to have been made involuntarily and the Crown agreed to a plea deal on a far lesser charge.

But now we will no longer be able to watch her crosses, her directs, her oral arguments. We will not be able to call her at all hours for advice. We will just be left asking ourselves—or, worse, each other—“What would Colleen do?” It is a discomfiting prospect.

A second cause of our grief is that Colleen was such a tremendous colleague. We have just indicated that she was generous with (solicited) advice, and we have given you a brief glimpse of her humour. But within the word count the Advocate has afforded us, there is no way to illustrate the extent of each of these. We can only hope you will believe us when we say they were and are tremendous. She freely offered the collegiality that is so essential within the criminal bar, spending countless hours with us and many others working through difficult problems in a range of cases in which she was not involved. She was in high demand among her colleagues seeking her advice. Her ability to distill complex legal decisions and explain them in clear terms is a gift she offered so many of us, despite juggling a heavy caseload and competing demands for her time.

She also provided, in spades, another essential service within the criminal bar: humour—generally black, of the kind familiar to emergency room physicians. Practising criminal law is hard. The facts are vivid and often deeply upsetting; the stakes are sometimes frighteningly high; the work is intellectually and even physically demanding. Humour is a means of coping with the intense poignancy of the practice, without dulling yourself to the humanity of it all. Colleen’s brilliant wit and empathy always illuminated the humour and humanity of this work. Practising with her was never, ever dull.

We will mention here just one more reason we will miss Colleen as a colleague: her fierce commitment to justice through the rule of law. Colleen understands that the fairness of our justice system is a profound marker of our worth as a society. As counsel, she worked with great energy and rigour to enhance the rationality, integrity and humanity of the justice system. We

recognize that her commitment to justice and fairness will translate into her role on the bench. But we will miss Colleen’s inspiring example as an experienced member of the bar, who after so many cases remained so passionate about the importance and richness of the contribution counsel make to our society.

So we hope you can understand our sadness at losing Colleen as a colleague and mentor. As counsel, she was simply outstanding. We try to console ourselves with the obvious fact that she will be an outstanding judge. She has an abundance of the qualities you would wish for in a judge: intelligence and experience, commitment to fairness, work ethic, empathy and compassion. Our justice system is better for her appointment. As we have said, we know that is cause for celebration. But we are just not there yet.

NEW JUDICIAL JUSTICE

By R.C. Tino Bella

Judicial Justice Judy Riddle

Judy Riddle retired as Crown counsel on September 15, 2023 and was sworn in as a judicial justice of the Provincial Court of British Columbia on December 12, 2023. During her short-lived “retirement”, she spent her time wisely, booking a one-month holiday to New Zealand, fully embracing the “part-time” facet of her new job.

Julie was born at home in Cornwall, England, with the assistance of a mid-wife and the mid-wife’s dog, Judy. And yes, shortly after birth, Julie’s name changed to Judy. When Judy was two, the family moved (sailed on a small cargo-passenger ship) to New Zealand for her parents’ university sabbatical and the family remained in New Zealand for the next five years. After New Zealand the family moved to Ottawa. One Ottawa winter later the family moved to Vancouver, where they remain today.

One of six children in a blended “Brady Bunch” family, Judy grew up in a family that emphasized education and fine arts—and with Judy, at least, ended up with a runner, although Judy did graduate from the Royal Conservatory of Music in piano, after completing Grade 10.

Judy’s love of the outdoors likely began with her field geologist father and the many summers the family spent camping in the bush and subsisting off foods that had no expiry dates or could be opened with a can opener. Perhaps not surprisingly, today Judy loves to cook and to bake.

Judy’s career in the government started early. As a teenager, while her parents were away, Judy joined the military, specifically the militia, and after surviving the summer boot camp, she spent the next three years working part-time in the military. Of note, this newest traffic court justice spent much of those three years driving army tucks (without a civilian licence). She claims one wasn’t needed. Hmmm…

After studying criminology at the Simon Fraser University, Judy set off to law school at the University of British Columbia. While there, Judy had temporary articles at the UBC Legal Clinic, which provided her the opportunity to conduct several trials as a defence lawyer, mostly at 222 Main Street in Vancouver. Judy’s first criminal trial was in front of Judge Davies. As Judy entered the courtroom, a senior (and battle-scarred) defence counsel told her she better put her hard hat on before starting her trial. Happily no hard hat was needed and her client was found not guilty.

Judy’s stint as a successful defence counsel was no match for the lure of a government job, and after her time at the UBC Legal Clinic, she was able to chart a fairly direct path to the Crown office by securing an articling position with the Ministry of Attorney General. Included in her articles was a rotation with the Crown and the rest is history. Judy was hired to join the Crown office on May 22, 1990, just days after she was called to the bar. Very quickly, Judy was recognized as a lawyer who was both hard-working and also someone who would help out wherever necessary. A mainstay of the 222 Main Street defence bar, Susan Daniels, K.C., recalled that from the very beginning she was impressed with Judy’s calm and cool demeanour in court. Judy is also known for her sense of humour, which is funny but also kind. Over her years as Crown counsel, Judy worked in several locations, including the Squamish office (no, there is no longer an office there as it closed when the courthouse did in 2002), Burnaby (also closed in 2002), North Vancouver (still open), the regional office and as part of the afterhours bail program, and of course Vancouver. She was also the Pemberton circuit Crown counsel for years with extensive involvement with Indigenous offenders and the North Vancouver Indigenous Court. Everywhere Judy has worked she earned a reputation of always being thoughtful, wellprepared, fair, principled and compassionate. Again, all who know her have no doubt these attributes will continue in her role as a judicial justice.

As a lawyer, Judy earned a reputation as hard-working, unassuming and someone who does not like to be the centre of attention. So not surprisingly she wishes that this article would not exist. But it does, as Judy’s career, ethos as a lawyer and appointment as a judicial justice of the Provincial Court of British Columbia should be acknowledged and celebrated. Judy, along with her family, has been a long-time resident of the Squamish valley. One Sunday afternoon in 1996, Judy and Cliff (her now husband) decided to drive to Squamish, where they both saw and immediately fell in love with a house on a hill above a river. They bought the house and continue to love Squamish almost three decades later, although in a different house as the house on a hill was not so perfect for a family with a toddler and a set of twins.

All three of Judy’s children excel at sports (sadly the same is not true for the arts). For the first time in her life, Judy was exposed to competitive soccer and hockey and the joys of driving from Squamish to the many arenas and sports fields across the lower mainland, all without the benefit of a GPS (but many sticky notes on the dashboard). Given the vast number of kilometres Judy has driven over the past three decades, the role of judicial justice is right up her alley.

In addition to her years as a chauffeur, Judy enjoys an active lifestyle in the nature-focused community where she lives and plays. Her activities include running, hiking, camping, canoeing and during the cold months travelling to warm places or baking in a warm kitchen. Judy has also been a longstanding volunteer assisting community members in their better years, many of whom often benefit from her passion for baking in a warm kitchen.

Judy’s experiences, legal knowledge, implicit fairness and genuine care for those involved in the justice system are a great addition to the Provincial Court bench, and those characteristics will undoubtedly be seen and felt by all who appear in front of her.

LETTER TO THE EDITOR

Dear Editor,

Re: “New Judges” (2024) 82 Advocate 591–607

By R.C. Tino Bella*

In the July issue’s “New Judges”, I note that three of the five new appointments are graduates of Dalhousie.

I was in the class of 1956 and among my classmates were John Crosbie who went into politics and became a federal Cabinet minister known for his sharp wit, Richard Hadfield who became a premier of New Brunswick and Graham Day (now Sir Graham Day) who became a captain of British industry. He was Margaret Thatcher’s go-to executive to revive the ailing shipbuilding and automobile industries. Purdy Crawford, an icon of corporate law, was in the class of 1955 and Bertha Wilson, an eminent jurist, became a member of the Supreme Court of Canada.

Yours truly, Barry Speton Chilliwack, B.C.

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

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LEGAL ANECDOTES AND MISCELLANEA

By Ludmila B. Herbst, K.C.*

“PRISONERS IN THEIR OWN COUNTRY”1

We are approaching the eightieth anniversary of the end of World War II. North America was fortunate to escape the ravages of bombardment, but here too were found some of the war’s moral and physical ravages, including the incarceration (sometimes still referred to as “internment”),2 in both Canada and the United States, of those countries’ citizens of Japanese origin.

Physical vestiges of their loss of freedom are found among the places in which, today, we enjoy the freedoms we have—including, as described below, Hastings Park, ringing with laughter during each year’s Pacific National Exhibition, and Sunshine Valley, just southeast of Hope, through which many of us travel (and some of us stop) for holidays. The story of Canada’s treatment of its citizens of Japanese origin in the first half of the twentieth century is both sweeping and sad; this piece provides simply a small window into these events through the places referred to above.

BACKGROUND

The first known Japanese immigrant to Canada—a category known as “Issei”—arrived in this country in 1877. The first known Japanese Canadian by birth (“Nisei”, or second generation) was born in 1889. Leading up to World War II, Japanese Canadian settlements were found in areas including Vancouver’s Powell Street neighbourhood, Steveston and Prince Rupert.

The history of Japanese settlement in Canada was fraught with antiAsian tension. In September 1907, an anti-Asian riot occurred in Vancouver, inflicting damage in Chinese and Japanese-dominated areas. Beginning in

* Ludmila B. Herbst, K.C., is the assistant editor of the Advocate. She thanks Emma O’Leary for her research assistance in preparing this piece.

1908, “gentlemen’s agreements” restricted Japanese immigration to Canada. Japanese Canadians were denied the right to vote.

When on December 7, 1941, Japan attacked both Hong Kong and the United States naval base at Pearl Harbour, and Canada declared war against Japan, the longstanding animosity and alarmist suspicions had a powerful outlet: the ability to pass orders in council under the War Measures Act 3 The steps taken went far beyond what at least some in the Canadian military and Royal Canadian Mounted Police (“RCMP”), who saw no likelihood of Japanese Canadian sabotage or other menace to national security, considered necessary.4 The apology that Prime Minister Brian Mulroney delivered in 1988 for the events described below noted that “[d]espite perceived military necessities at the time, the forced removal and internment of Japanese Canadians during World War II was unjust”, and “[i]n retrospect, government policies of disenfranchisement, detention, confiscation and sale of private and community property, expulsion, deportation and restriction of movement, which continued after the war, were influenced by discriminatory attitudes.”

ORDERS IN COUNCIL

The federal orders in council that, during and after World War II, were to have such a profound effect on persons of Japanese origin in Canada included the following.

On December 16, 1941,5 an order in council was made requiring “[e]very person of the Japanese race [above the age of 16] who resides in Canada” to register with the RCMP if they had not already done so. (An order in council of January 7, 1941 had required the registration of such persons who were residents of British Columbia.) The RCMP issued to those individuals who registered a “registration certificate” which recipients had to “at all times carry…upon [their] person”.

On January 16, 1942,6 an order in council was made allowing the Minister of Defence, with the concurrence of the Minister of Justice, to order that a certain area become a “protected area”, “if it appears necessary or expedient to do so in the public interest and for the efficient prosecution of the War”. The January 16 order also provided for the Minister of Justice to make certain orders in respect of those areas including to “require any and all enemy aliens to leave such protected area” and authorizing detention of “any persons, other than enemy aliens, ordinarily resident or actually present in such protected area in order to prevent such persons from acting in any manner prejudicial to the public safety of the State”. On January 29, 1942, the portion of British Columbia lying west of the Cascade Mountains,

from a point 100 miles (160 kilometres) inland, was declared to be a protected area.7

On January 31, 1942,8 a further order in council was made constituting a committee for the disposal and putting back into service of 1,100 fishing vessels which had been impounded from persons of Japanese origin since December 1941. Seizures had commenced at dawn on December 8, carried out by the Royal Canadian Navy with the aid of the “Fishermen’s Naval Reserve” (“FR”), comprising “crews of European extraction”.9 On January 13, 1942, the Minister of Fisheries reported that “the defence and security of Canada has made necessary the immobilization of fishing vessels owned by people of Japanese origin and operated in British Columbia”.10

Seizures had by that point included, on December 9 on the Nass River, the vessel of Sasuke Nakagawa, who had “served with distinction in the 10th Battalion, Canadian Expeditionary Force”, in World War I. No resistance was reported to the seizures—some owners had even offered not to sail the boats or to let them be used for government service—with the expectation that the boats would be returned to their owners. Said one FR sailor, “I felt sorry for the Japanese….A lot of them I knew personally and those fellows hadn’t ever seen Japan. Some were veterans of World War I. They wore their tunics when they brought their boats in, and all their badges. They had tears in their eyes. It was pretty sad.”11

On February 24, 1942,12 an order in council was made broadening the powers of the Minister of Justice (then Louis St. Laurent, who became Prime Minister in 1948) to make orders in respect of protected areas, including to allow the minister to make orders to “require any or all persons to leave such protected area”13 (i.e., no longer just enemy aliens) and “[t]o prohibit and restrict the possession or use by any or all persons, ordinarily resident or actually present in such protected area, of any specified articles”.

On February 26, 1942, a notice was issued “to all persons of Japanese racial origin” that included the requirement that “every person of the Japanese race shall leave the protected area aforesaid forthwith”. This notice “applied to persons of Japanese origin regardless of whether they were Japanese nationals or British subjects either by birth or naturalization.”14 The notice also subjected these persons to a curfew while they remained in the protected area, prohibited them from having in their “possession or use in such protected area any motor vehicle, camera, radio transmitter, radio receiving set, firearm, ammunition or explosive”, and required that these articles be “delivered up” to a justice of the peace or to a local police force or the RCMP.

On March 4, 1942,15 a further order in council was made establishing the British Columbia Security Commission whose “duty” was to be “to plan,

supervise and direct the evacuation from the protected areas of British Columbia of all persons of the Japanese race.” The members of the Commission were Austin Taylor, its chair and a wealthy businessman; John Shirras, Assistant Commissioner of the B.C. Provincial Police; and Frederick John Mead, Assistant Commissioner of the RCMP. Orders in council were also made in late March and April 1942,16 expanding the authority of the British Columbia Security Commission. Ultimately, under a further order in council made on February 5, 1943 (once the initial “evacuation” had been completed),17 the commission’s work was transitioned to the federal Minister of Labour.

The March 4, 1942 order also provided that “[a]s a protective measure only, all property situated in any protected area of British Columbia belonging to any person of the Japanese race resident in such area (excepting fishing vessels subject to Order in Council P.C. 288 of the 13th of January, 1942, and deposits of money, shares of stock, debentures, bonds or other securities), delivered up to any person by the owner pursuant to the order of the Minister of Justice dated February 26, 1942, or which is turned over to the Custodian by the owner, or which the owner, on being evacuated is unable to take with him, shall be vested in and subject to the control and management of the Custodian as defined in the Regulations respecting Trading with the Enemy, 1939…” This left in the hands of the Custodian much of what could not be carried.

March 27, 1942 brought a further order in council,18 providing that “[t]he Custodian may, notwithstanding anything contained in this Regulation, order that all or any property whatsoever, situated in any protected area of British Columbia belonging to any person of the Japanese race shall, for the purpose of protecting the interests of the owner or any other person, be vested in the Custodian, and the Custodian shall have full power to administer such property for the benefit of all such interested persons, and shall release such property upon being satisfied that the interests aforesaid will not be prejudiced thereby”.

On January 19, 1943,19 another order in council was made, this time providing that “[w]herever, under Orders in Council under the War Measures Act,…the Custodian has been vested with the power and responsibility of controlling and managing any property of persons of the Japanese race evacuated from the protected areas, such power and responsibility shall be deemed to include and to have included from the date of the vesting of such property in the Custodian, the power to liquidate, sell, or otherwise dispose of such property; and for the purpose of such liquidation, sale or other disposition….”

As expressed in the apology that Prime Minister Mulroney delivered in 1988, the upshot was that “Japanese Canadians who were interned had their property liquidated and the proceeds of sale were used to pay for their own internment.”

Certain property owners challenged the Custodian’s ability to sell their property, bringing a petition in the Exchequer Court.20 After delay, the hearing occurred in May 1944, before the court’s president, Justice Thorson. This was somewhat remarkable as Thorson had been a member of Parliament and minister (of National War Services) in the federal Cabinet in 1942. The court did not issue its decision until August 28, 1947, and its determination was that the Crown was not responsible for the Custodian –the proceedings had been commenced against the wrong entity. The court also noted that, in any event, it was “not open to the Court to question the validity of the Order in Council empowering the Custodian to sell the properties vested in him on the ground that such sale was not necessary for the purposes mentioned in the War Measures Act”, as “Parliament has left the decision as to the necessity or advisability of such an order for the security, defence, peace, order and welfare of Canada, not to the Court, but to the Governor in Council, and once the Governor in Council has made his decision that the order is necessary or advisable for any of the purposes mentioned that is the end of the matter.” The court refused to deal with other arguments such as whether the Custodian, who was not a party to the proceedings, was a trustee of the properties at issue. Although ultimately some compensation was awarded through an inquiry commenced in 1947, Japanese Canadians sustained enormous economic damage through confiscation of their property and lost wages.21

By 1944, the federal government had initiated a confusing survey process to determine whether persons of Japanese origin would choose (if this word can be associated with such circumstances) to be “repatriated” to Japan, or to move even further east, beyond the Rocky Mountains, without a promise of permanency. Efforts seemed to be made to make “repatriation” seem attractive in comparison to the prospect of eastward movement, even though many of the persons surveyed had never set foot in Japan.

On December 15, 1945, orders in council were made providing that certain categories of people, including every naturalized, or natural born, “British subject of the Japanese race of sixteen years of age or over resident in Canada who has made a request for repatriation may be deported to Japan, as long as that person had not revoked that request in writing prior to midnight the first day of September, 1945” (the day before the formal unconditional surrender of the military forces of Japan). The order was

apparently made only after arrangements had been made with General MacArthur, Supreme Commander for the Allied Powers in Japan. Despite criticism, the order was determined by the Supreme Court of Canada to be valid on a reference presented to it.22

By the time the federal government revoked the deportation order in early 1947, partly as the result of increasing public sympathy for those affected by it, around 4,000 people had been deported pursuant to it. Of the nearly 4,000 Japanese Canadians who sailed to Japan between May and December 1946, half had been born in Canada.

HASTINGS PARK

Beginning in mid-March 1942, pursuant to certain of the above-noted orders in council, persons of Japanese origin were brought to Hastings Park, as were various of their confiscated motor vehicles. Ultimately “[m]ore than 8,000 detainees were processed through Hastings Park”.23

Many of us, not appreciating its past, have been inside the Livestock Building at Hastings Park where farm exhibitions occur during the Pacific

“Interior of Building A (Livestock Building [at Hastings Park]) used as Women and Children's dormitory during Japanese Canadian internment” (1942) – City of Vancouver Archives, CVA 180-3540, photographer Leonard Juda Frank

National Exhibition. In 1942, women and children were housed here before transport inland over the following months. One young girl recalls her mother as always washing and doing all she could to keep her family fed and clean; she noted: “I would never want to see any people, it doesn’t matter their race, go through what we went through. We didn’t throw a bomb at anyone. We didn’t kill anyone. We were Canadians. We were born in Canada. I would never want to see this happen to any other people.”24

Hastings Park was closed as a detention centre in October 1942. By this time, around 22,000 individuals of Japanese origin had been forced to leave the west coast; 75 per cent of those were Canadian citizens.

TASHME

The largest of the detention camps established in British Columbia during World War II was known as Tashme.25 This camp was established in the spring of 1942 on the leased 14 Mile Ranch, which is 14 miles, or 22.5 kilometers, southeast of Hope, and in what travelers now know as Sunshine Valley. The name “Tashme” was formed using the first two letters of each of

the British Columbia Security Commission members’ last names (Taylor, Shirras and Mead).

The camp was alongside what was previously the Royal Engineers’ Road that became part of the Hope-Princeton Highway, built in part by JapaneseCanadian labour during World War II.

In May 1942, individuals recruited to be part of the efforts to build the camp began leaving Hastings Park for Tashme. Those who arrived first began the construction of housing units. Sunshine Valley’s carefully tended and informative museum showing the history of the Tashme camp notes:

“Throughout the summer and fall of 1942, 347 ‘shacks’ were constructed in Tashme. These homes were crudely constructed with one layer of ship-lap style boards and one lawyer of tarpaper on the exterior….There was no running water, electricity, or washroom facilities within the homes. One outhouse was shared between four homes. A hand water pump station was located between every fourth building.”

The first families left Hastings Park for Tashme in September 1942. They travelled by train to Hope, then by bus or truck to Tashme. The first winter at Tashme was especially difficult for its residents given their few possessions and the fact the firewood was green, so difficult to burn for heat.

However, Tashme’s in-habitants created a community that somehow allowed them to weather the next few years. Housing, bathhouses and a hospital were rapidly built; a barn was made into a school and community hall, with a primary school later built as well. Certain of the buildings used during this period remain in Sunshine Valley, including a large barn now repurposed as a community centre. The community was governed by the federal Department of Labour and a committee (Shinwa-kai) established by Japanese Canadian residents. An RCMP officer guarded the camp gate, checking incoming and outgoing traffic.

Looking from the Sunshine Valley Tashme Museum to a Barn Repurposed for the Tashme Camp

Sunshine Valley Tashme Museum

At its peak in 1943, Tashme’s population was 2,644. Its population was rapidly declining, however, by the spring of 1944, as some residents who had “chosen” to seek work further east in Canada began their eastward movement.

This said, as Tashme lost that aspect of its population, it gained other temporary residents. Tashme was designated as one of three camps to house those who opted for “repatriation” to Japan. In January 1946, those from other camps who had chosen repatriation began to move to Tashme. The actual “repatriation” began in May 1946, with the US SS Marine Angel transporting 672 individuals (including 565 from Tashme) to Japan.

Closure of the Tashme camp began in June 1946, and was officially completed in August 1946. Some families remained for some time thereafter, to clean up the site for its owners. It was the first camp to be closed.

Incredibly, however, it was not until the spring of 1949 that restrictions were finally lifted on persons of Japanese origin which had prevented them from returning to the protected area—i.e., their former neighbourhoods within 100 miles of the west coast.

ENDNOTES

1.This is the title of an editorial in The Canadian Encyclopedia: James H Marsh, “Japanese Canadian Internment: Prisoners in their own Country” (23 February 2012, updated by Eli Yarhi 17 September 2020), online: <www.thecanadianencyclopedia.ca/ en/article/japanese-internment-banished-andbeyond-tears-feature> [Prisoners]. The title adopts wording of Tom Tamagi, a Japanese Canadian detained at age 22: “I was a 22-year-old Japanese Canadian, a prisoner of my own country of birth. We were confined inside the high wire fence of Hastings Park just like caged animals.” In addition to Prisoners and the other sources cited in the endnotes below, this “Legal Anecdotes” is based on sources including Ann Gomer Sunahara, The Politics of Racism: The Uprooting of Japanese Canadians During the Second World War, 2nd ed (Ottawa: selfpublished, 2000); Eric M Adams, Jordan Stanger & the Landscapes of Injustice Research Collective, “Promises of Law: The Unlawful Dispossession of Japanese Canadians” (2017) 54 Osgoode Hall Law Journal 687; entries at websites chronicling the history of World War II conditions including “Tashme Historical Project”, online: <tashme.ca/> and “Hastings Park 1942”, online: <hastingspark1942.ca>; “Tashme Internment Camp”, online: <www.historic places.ca/en/rep-reg/place-lieu.aspx?id=23095>; “Tashme Incarceration Camp”, online: <www.en. wikipedia.org/wiki/Tashme_Incarceration_Camp”; John Price and Grace Eiko Thomson, “Remembering a B.C. Civil-Rights Leader: Japanese-Canadian Activist Who Fought to Get Minorities on the Voting Rolls to Be Honoured Today” (10 December 2017), Times Colonist, online: <www.timescolonist.com/

islander/remembering-a-b-c-civil-rights-leader1.23118215>; Joel B Grossman, “The Japanese American Cases and the Vagaries of Constitutional Adjudication in Wartime: An Institutional Perspective” (1997) 19 U of Hawaii L Rev 649; Dejo Olowu, “Civil Liberties versus Military Necessity: Lessons from the Jurisprudence Emanating from the Classification and Internment of Japanese-Americans during World War II” (2010) 43:2 Comparative & Intl LJ of Southern Africa 190; and Edward G Hudon, “The Status of Persons of Japanese Ancestry in the United States and Canada During World War II: A Tragedy in Three Parts” (1977) 18:1 Les Cahiers de droit 61, 1977 CanLIIDocs 219.

2.Sarah Grochowski, “Incarceration or Internment? Japanese Canadians Reflect on the Choice of Words”, The Vancouver Sun (29 May 2022), online: <vancouversun.com/news/local-news/incarcera tion-or-internment-japanese-canadians-reflect-onthe-choice-of-words>.

3.RSC 1927, c 206.

4.See “Japanese-Canadian History 1942-1949” in “Landscapes of Injustice”, online: <https://loi.uvic. ca/elementary/lesson-6.html>; Prisoners, supra note 1.

5.Order in Council authorizing re-registration of persons of Japanese race, PC 9760 (16 December 1941).

6.Order in Council amending the Defence of Canada Regulations (Regulation 4) – protected areas, PC 365 (16 January 1942).

7. Nakashima v The King, [1947] Ex 486 at 488 [Nakashima].

8.Order in Council constituting a committee on the disposal of Japanese fishing vessels, PC 288 (31 January 1942) [Committee OIC].

9.Marc Milner, “The Japanese Threat: Impounded on the West Coast: Navy, Part 47” (28 September 2011), Legion Magazine, online: <legionmagazine. com/en/2011/09/the-japanese-threat-impounded -on-the-west-coast-navy-part-47/>.

10.As summarized in the recitals to the Committee OIC, supra note 8.

11. Milner, supra note 9.

12.Order in Council amending Defence of Canada Regulations – protected areas, PC 1486 (24 February 1942). Prime Minister William Lyon Mackenzie King noted that “[t]he new regulation corresponds very closely to the proclamation issued by the President of the United States on Friday.” On February 19, 1942, U.S. President Franklin D. Roosevelt had signed executive order 9066 authorizing and directing “the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded…”

13.Emphasis added.

14. Nakashima, supra note 7 at 488.

15.Order in Council establishing regulations respecting the British Columbia Security Commission, PC 1665 (4 March 1942).

16.Order in Council amending PC 1665, 4th March, 1942 – British Columbia Security Commission, PC 2541 (30 March 1942).

17.Order in Council establishing regulations re provision for the administration relative to the further placement, control and maintenance of persons of the Japanese race in Canada, PC 946 (5 February 1943).

18.Order in Council amending PC 1665 – British Columbia Security Commission; defining “Person of Japanese Race”, PC 2483 (27 March 1942).

19.Order in Council revoking PC 5523, dated 29th June, 1942 and PC 6885, dated 20th July, 1942 –transfer to the Custodian of the property of persons of the Japanese race evacuated from the protected areas of BC, PC 469 (19 January 1943).

20. Nakashima, supra note 7; see also Iwasaki v Canada, [1969] 1 Ex CR 281, aff’d [1970] SCR 437.

21.In 1947 (with amendments in 1947 and 1948 to his mandate), Justice Henry Irving Bird was appointed a commissioner under the federal Inquiries Act “…to inquire into the following claims of persons of the Japanese race who are resident in Canada at the date of this Order, and of corporations of which the majority of the shares were formerly owned by such persons, namely: (a) That real and personal property vested in the Custodian pursuant to the above mentioned Orders was disposed of by the Custodian for less than the fair market value thereof at the time of sale resulting in loss to the claimants equal to the difference between the amounts received from the sale and the fair market value aforesaid; and (b) That personal property vested in the Custodian pursuant to the above mentioned Orders was lost, destroyed or stolen while in the possession or under the control of the Custodian or some person appointed by him, with the result that the claimant suffered a loss equal to the fair market value of the property at the time when the same was lost, destroyed or stolen; provided that no claim shall be considered in respect of property lost, destroyed or stolen while under the custody, control or management of any person other than the Custodian, appointed by the owner of the property.”

22. Reference to the Validity of Orders in Council in relation to Persons of Japanese Race, [1946] SCR 248.

23.Prisoners, supra note 1.

24.Mae (nee Doi) Oikawa, online: <hastingspark1942. ca/hastings-park-stories/mae-oikawa/>.

25.Besides Tashme, other camps—sometimes in abandoned mining or logging towns—were established. Among the terrible stories of Japanese Canadians banished from the coast in World War II is that of Tomekichi Homma, who came to British Columbia from Japan in 1883 and became a naturalized British subject in 1896. He settled in Steveston, where there is now an elementary school bearing his name. In the early 1900s he went to court seeking the right to vote, but after initial successes his claim was rejected by the Judicial Committee of the Privy Council: Cunningham v Homma, [1903] AC 151. He died on October 28, 1945, in a detention camp near Slocan.

A photograph of the Honourable Mr. Justice Archer Martin taken in 1898. (British Columbia Archives, Call No. A-02290).

FROM OUR BACK PAGES

By R.C. Tino Bel

A BRIEF HISTORY OF COURT ATTIRE

By Murray B. Blok*

A Serjeant of the Law, war and wys That often hadde been at the Parvys

A Serjeant of the Law, wary and wise Who’d often been at St. Paul’s steps, to advise

...

And every statut koude he pleyn by rote. He rood but hoomly in a medlee cote Girt with a ceint of silk, with barres small; Of his array telle I no longer tale.

...

And every statute he could state by rote He rode but simply in a medley coat, Girded with a belt of silk, with little bars, But of his dress no more particulars.

The Canterbury Tales, by Geoffrey Chaucer (1342–1400)

* Reprinted from (2006) 64 Advocate 65.

Court trials of old must have been colourful affairs. The “medlee cote” of the serjeant-at-law was a long parti-coloured robe, “parti-coloured” meaning two different colours, divided vertically in the middle of the garment. Illustrations made 60 years after Chaucer’s death and now in the possession of the Inner Temple show serjeant’s robes, which were closed at the front, in light green on one side and royal blue on the other (though different colours were apparently used as well), the blue being “rayed” vertically with parallel lines of cloth in a contrasting colour. Overtop the robe the serjeant wore a short cape or mantle, called a “shoulder piece”, together with a hood draped at the shoulders, both of which were parti-coloured to match the robe. These garments were lined with lambs’ wool, in contrast with those of the judges, which were lined with miniver, a white or light grey fur. Serjeants also wore the distinctive garment of their calling, a white “coif”, which was a close-fitting silk cap tied under the chin. There were no wigs—wigs formed no part of legal attire until the 17th century.1

Utter (“outer”) barristers, those barristers who did not have the privilege of audience at the inner bar, wore an ankle-length closed robe called a tunica, belted at the middle and parti-coloured in such colours as green and blue, or blue and mustard, with diagonal stripes, in contrast to the vertical rays of the serjeants’ robes. They wore neither a shoulder piece nor a hood, and were bareheaded.

Judges of that time wore a fine array: either a sleeved robe called a supertunica or a sleeveless tabard, over which they wore, on formal occasions at least, a scarlet mantle, which was a full-length and near-circular cape or cloak, lined with miniver, that was fixed on the right shoulder (that is, open at the side but not at the front, so that the left arm was enclosed but the right arm was free). The effect is that the judges appeared to be wearing two sets of scarlet robes. They also wore a shoulder piece and hood and, like the serjeants, wore the coif since in those times (and for many years afterwards) judges were appointed from the ranks of the serjeants.2

The attire of those times is a far cry from the largely monochromatic display of modern courtroom fashion. This article will trace the evolution of the attire of barristers and judges from early times to the present.

BARRISTERS

Around the time of Henry VII (1485–1509) the closed robe of general fashion was replaced with an open gown, a change that barristers followed as well. By the middle of the 16th century the colours of the barristers’ gowns had become darker and muted, though there was not yet a set colour, pat-

tern or style. English antiquary Sir William Dugdale noted that in Tudor times members of the Middle Temple had no order for their Apparell; but every man may go as him listeth, so that his Apparell pretend no lightness or wantonness in the wearer; for, even as his Apparell doth shew him to be, even so shall he be esteemed among them.3

Although gowns might have been relatively muted in colour, those colours included crimson, russet (reddish-brown) and mulberry (dark purple), and by modern standards they still would have been elaborate, as they were lined with damask or camlet4 and edged in marten or fox fur.

In the latter part of the 16th century the advent of cloaks, breeches and boots in the general fashion of society caused the Inns of Court to pass regulations prohibiting those items of dress for their members and requiring members to wear gowns, not only in court or in the Inns themselves, but also in public.5 The separation of the garb of barristers from that of society in general can therefore be traced to these regulations, which were passed by the four principal Inns starting in 1547 but primarily between 1580 and 1600. It was at this time that a relatively plain, full-length gown emerged for members of the Inns, a gown that was suitably sober in colour, probably black or something close to it.6

The dandies of that time still found an outlet for their sartorial expressions. They adorned their gowns with velvet and lace to such an extent that Mr. Justice Wray, chief justice of the Court of King’s Bench (1574–1592), was moved to act, as was recalled in this account from 1602: [I]n tymes past the counsellors wore gowns faced with satten, and some with yellowe cotton, and the benchers with jennet furre; now they are come to that pride and fantasticknes that every one must have a velvet face, and some soe tricked with lace that Justice Wray in his tyme spake to such an odd counsellor in this manner: Quomodo intrasti, domine, non habens vestem nuptialem? Get you from the barre or I will put you from the barr for your folish pride.7

While it became settled that utter barristers were to wear gowns of relatively sober colouring, despite the imprecations of Chief Justice Wray it took another generation or two to settle on relatively standard styles and trim, which varied between utter barristers, serjeants, readers of the Inns, benchers and the nascent rank of King’s Counsel (the first of which was created in 1604). We know that these differing styles had emerged by 1637, as it is in that year that the Privy Council ordered that counsel appear before them “in their gownes according to their places”. It is here that we part from other branches of the profession and continue with the attire of the utter or “junior” barrister.

Monumental brasses dating from the years between 1637 and 1685 show that the standard gown of the outer bar was ankle-length and pleated, was edged at the front and bottom with velvet and had two inch-wide welts of velvet extending from each shoulder down each sleeve. These gowns were made of grogram, a coarse fabric of silk, or of mohair and wool, or a mixture of these, often stiffened with gum. One serjeant, Sir Henry Chauncy, who was called to the bar in 1656, described the robe of the utter barrister as a Noble Robe, fac’d down before, guarded with two welts of Velvet on the Sleeves extending from the Shoulder to the Elbow, and another on the border of it.8

On the death of Charles II in 1685, the bar went into mourning and adopted mourning dress. The mourning gown, made of lighter woollen material called “stuff”, had pleated shoulders and bell-shaped sleeves that were drawn up above the elbows with cords and secured by buttons—in short, it was much the same gown that barristers wear today. The bar embraced this lighter robe and, except for a short interlude, did not return to the “Noble Robe” of old. Cost, too, would have been an important factor: the old bar robe cost £15 in 1697, which would have been a princely sum in those times, whereas the mourning gown cost just 15 shillings.9

Not all welcomed the change. Sir Henry Chauncy, quoted above, after noting that the old robe had survived the English Civil War when others had felt forced to lay aside their “habits”, said:

[B]ut ‘tis great Pity, and it seems very ominous that these learned Men should now decline this Noble Robe, and wear a scandalous Livery which resemble those that Bearers wear at Funerals, as though the Law lay a dying: However it is greatly hoped, That that worthy Patron of the Law, Sir John Holt, the present Lord Chief Justice, will thoroughly reform this ill practice, and that none of the Reverend Sages of the Law will suffer those Gentlemen to share in the profit and advantage of that Profession which they scandalize by devesting it of that Ancient Robe, and introducing an ignominious Habit in the room of it.10

Holt C.J. had intervened three years prior to Sir Henry Chauncy’s lament. One 17th-century diarist recorded the following entry for October 30, 1697:

Yesterday [on the first day of the Michaelmas court term] the Lord Chief Justice Holt ordered all barristers to appear next term in their proper gowns, and not in mourning ones, as they have done since the death of King Charles; otherwise [he] will not hear them; which will cost them £15 a man.11

This order was complied with in the following term, and those barristers practising in the Court of King’s Bench resumed the wearing of the old-fashioned bar gowns, “which sort of Gowns had been utterly disused for many

years past”.12 The order was not in effect for long, however, and the bar soon resumed the wearing of the “scandalous Livery” and “ignominious Habit”, the direct descendent of which barristers still wear today.

Thus over the course of a century or so the attire of barristers went from one of “pride and fantasticknes” in its sometime garishness to one that gave the appearance that “the Law lay a dying”.

It has long been popular wisdom that the forked triangular appendage that falls from the left shoulder down the back of the barrister’s gown is the remnant of a purse or pouch into which a client could surreptitiously slip the barrister’s fee. This explanation has been popularized for nearly two centuries and was referred to as recently as November 2004 by the editor of this very journal. The purse theory, however, is an item of folklore that does not withstand scrutiny. As has been shown by Cambridge legal history professor Sir John H. Baker, the appendage is actually a vestigial hood that formed part of the mourning gown.

According to Professor Baker, proof of the true origin of the appendage is found in a series of engravings depicting the 1587 funeral of Elizabethan courtier and poet Sir Philip Sidney (who was said to be “the worthiest knight who ever lived”). One engraving depicts “esquiers of his kindred and friends”, who wear open gowns with long narrow mourning hoods cast over their left shoulders. The hoods hang by means of a long tail, perhaps six feet in length, called a liripipe. The liripipe is shown cast around the neck so that it returns to the front and hangs down the left front of the robe. The legacy of the liripipe is seen today in the long strip of material that hangs down the left front of the modern barrister’s robe.

Further proof of the origins of the appendage could be derived from a full illustration of the so-called Noble Robe, but the only illustrations extant show this robe only from the front. We do know, however, that no mention is made of any purse or pouch in Sir Henry Chauncy’s description of the old bar robe. We also know that no pouch or wallet is seen in the Inner Temple illustrations referred to at the beginning of this article, which show both sides of the robes of utter barristers and serjeants circa 1460. If the practice of surreptitious payment was one of such antiquity, we would expect that these illustrations would depict such a pouch.

A further basis for concluding that the appendage is a vestigial mourning hood is the fact that the appendage is placed over the left shoulder rather than the right. Judges and serjeants wore “casting hoods” over their right shoulders as a sign of “temporal dignity”, whereas priests wore hoods over their left shoulder in recognition of their spiritual role. This has led one historian to conclude:

The vestigial hood of the barrister’s gown is worn on the left to distinguish its spiritual origins in mourning from the temporal authority vested in the judge’s hood worn on the right.13

Another theory advanced to explain the appendage on the barrister’s robe is that it derives from the medieval fashion of the chaperon, a band of cloth that hung from the shoulder and to which was attached a padded cap (a bourrelet) that hung down the wearer’s back when not in use.14 The chaperon was a feature of the dress of medieval French advocates. Some support for this theory is found in one of the Inner Temple illustrations referred to earlier, where one barrister in the Court of Exchequer is shown with a hat slung over his left shoulder. The difficulty with this theory is that until the introduction of the mourning gown in 1685 junior barristers did not wear hoods, and the wearing of hats or velvet caps had been banned by the Inns of Court in regulations passed between 1547 and 1600. Moreover, once again no mention of such an adornment is made by Sir Henry Chauncy in his description of the pre-1685 barrister’s gown.

Though the appendage has been much distorted over the years, “no doubt because no one knew what it was supposed to be”,15 it is reasonably clear that it is a vestigial mourning hood, part of the general mourning attire adopted by the English bar in 1685 and worn ever since by English and Commonwealth barristers.16

The gown of present-day court clerks is the same as that of barristers, but without the vestigial mourning hood and liripipe. It is here that folklore may have influenced reality: there is, in fact, no need to draw a distinction between the gowns of barristers and those of court clerks because the triangular appendage is merely a sign of mourning and is not a payment device that is unique to barristers.

The robes of Queen’s Counsel are very different from those of ordinary barristers but are identical to the “working” attire of our Supreme Court judges. They therefore will be discussed in the next section.

JUDGES

Judges originally wore the same dress as serjeants, but they had developed a separate ensemble by the beginning of the 15th century. In about 1470 Sir John Fortescue, onetime lord chief justice of England, wrote of the differences in the attire of judges and serjeants:

But after [the Serjeant] is made a Judge, instead of the hood he shall be habited with a cloak, fastened upon his right shoulder; he still retains the other ornaments of a Serjeant, with this exception, that a Judge shall not use a party-coloured habit, as the Serjeants do, and his cape is furred with minever, whereas the Serjeant’s cape is always furred with white lamb.17

In Fortescue’s time convention dictated that summer robes were green and lined with taffeta or sarsenet,18 winter robes were violet and lined with miniver, and miniver-lined scarlet robes were worn on special days (many of which were saints’ days) that came to be known as Red Letter days. Green ceased to be the colour of summer robes by about 1534, with the judges wearing robes of either scarlet or violet, both of which would have had summer and winter linings.19

The style of judicial robes evolved in several ways over the next century. The mantle came to be fixed in the middle, instead of on the right shoulder; later, the mantle came to be much shorter and to be thrown over the left shoulder in the fashion of a cape; and the hood became larger.

In 1635 the judges at Westminster issued a decree which prescribed in detail the proper form of judicial dress. For ordinary dress the decree read as follows:

The Judges in Term are to sit at Westminster in the Court in their Black or Violet Gowns, whether they will; and a Hood of the same colour put over their heads, and their Mantles above all; the end of the Hood handing over behind; wearing their Velvet Caps, and Coyfes of Lawn, and cornered caps.

The facing of their Gownes, Hoods and Mantles, is with changeable Taffata; which they must begin to wear upon Ascension Day, being the last Thursday in Easter Term; and continue those Robes until the Feast of Simon and Jude; and upon Simon and Jude’s day, the Judges begin to wear their Robes faced with white furs of Miniver; and so continue that facing until Ascension Day again.20

These dress regulations also prescribed those occasions on which scarlet gowns were to be worn.

The dress of present-day English judges is little changed from that time. Today, judges of the Queen’s Bench Division wear black in winter, with miniver facing; violet in summer, with silk facing; a scarlet robe trimmed with either fur or silk (depending on the season) for criminal cases; and scarlet robes with hood and mantle on ceremonial occasions and Red Letter days.

Since the first legally trained judges in British Columbia came from England, it is no surprise that they brought with them English judicial robes.

Records show that at least two British Columbia judges wore the full ensemble of an English judge of the Court of Queen’s Bench while carrying out at least some of their judicial duties.21 Joseph Needham, who in 1865 was appointed Chief Justice of the Supreme Court of Vancouver Island, brought with him quite a collection of judicial attire from England: When Chief Justice Needham landed in Victoria he understood that he would be called upon to sit in every court then in existence. He had in

consequence provided himself with wigs and robes to suit the court he was sitting in, from the full bottomed wig of the Court of Queen’s Bench to the more modest headgear of the County Court. On the opening of the assizes he always appeared on the bench with a full bottomed wig and scarlet robes trimmed with fur.22

In the British Columbia Archives there is an intriguing photograph from a criminal trial held in New Westminster in October 1902, showing the Supreme Court convened outdoors for the burning of joss sticks and paper as part of the chicken oath (as it was popularly known) or the king’s oath (as it was referred to by the Chinese).23 In any event, the important thing, for our purposes, is that the presiding judge is shown wearing the robes that a judge of the English Court of Queen’s Bench would wear, probably the last judge in British Columbia to do so. The judge that was so adorned was the staunchly traditional Mr. Justice Archer Martin, about whom more will be said later.

Although the scarlet robes of English judges probably disappeared from the British Columbia judicial scene in 1909 when Martin J. was elevated to the newly formed Court of Appeal, they did not disappear from Canada altogether. Records show that London tailors Ede & Son provided six sets of scarlet and “ermine” robes24 of the English style to the Supreme Court of Canada in time for its first sitting in January 1876.25 Robes of the same style are still worn by members of that court on ceremonial occasions.

The “working dress” of our Supreme Court judges, and the sole gown of our Court of Appeal judges, is the plain silk gown, which they share in common with Queen’s Counsel. The origins of this gown are not entirely clear. One historian has described it as a gown that was worn generally by men of dignity in Elizabethan and Jacobean times.26 Professor Baker reports: There is an old professional tradition that the plain [silk] gown, as worn at present, was adopted in mourning for Queen Mary II (1694). Although the junior bar gown was certainly introduced in 1685, as a mourning gown, no direct contemporary evidence has come to light to confirm the companion tradition.27

We know from illustrations, however, that there was a change in the dress of the senior bar in that era. Prior to the death of Queen Mary in 1694, King’s Counsel had adopted the more elaborate tufted gown, made of black flowered damask, that was worn by benchers and readers of Inns,28 but this had changed by at least 1785, as shown in portraits depicting King’s Counsel wearing plain silk gowns.29 We know, as well, that the plain silk gown was worn by serjeants by the 1720s.30

Whatever might be the origins of the plain silk gown, by the 18th century it came to be worn by Chancery judges and, later, by the common law

judges at nisi prius (that is, when hearing civil cases) when they were on circuit. It had also become the working dress of King’s Counsel and serjeants. Because it was worn first by Chancery judges and later adopted by the common law judges, some have referred to it as “the Chancery gown”.31 The gown worn by our present Q.C.s [now K.C.s] and superior court judges is of a style that is unchanged from that time.

The silk gown is a plain black gown, distinguished only by two main features, a large cape collar and long, hanging sleeve panels that start above the elbow. Inside the gown there are two long silk streamers which hang down from the collar, designed to be tied together so that the gown fits closely to the wearer, although it is doubtful that any wearer actually uses them for this purpose.

The superior courts of Ontario and Manitoba adopted violet robes of the English style in 1949, after wearing just the plain silk robe for many years, having decided that they should have proper and more distinctive robes when presiding at trials.32 Perhaps inspired by this injection of colour, in 1954 Chief Justice W.B. Farris introduced robes, now informally known as “reds”, for use by Supreme Court judges in criminal trials and on ceremonial occasions.33 These robes are of the same pattern as the silk robes but they have broad red facings, a red cape collar and red hanging sleeves. The accompanying waistcoat has red cuffs, red pockets and red buttons. The County Court judges followed suit with a similar design using deep blue for the facings, cape collar, hanging sleeves and waistcoat trim. These colourful robes disappeared with the merger of the Supreme Court and County Court in 1990.

In Provincial Court, robes were not worn until later times. Alfred Watts, Q.C., has noted that “magistrates did not robe in the old days except in Vancouver and Victoria and court wear tended to be somewhat nondescript”.34

In 1967 the Department of the Attorney-General provided a uniform gown for lay judges that was “not exactly similar” to the barrister’s gown. In the 1970s there was no settled practice among Provincial Court judges: some robed and some did not, some wore a robe of a style used in Ontario, and some wore “somewhat more colourful” robes of their own choosing. The matter was settled in 1975, at the annual meeting of the Provincial Court Judges’ Association, when the majority voted in favour of the Ontario-type gown. The change to this uniform style was effected in 1977.35

The Provincial Court judge’s gown is very similar in style to that of the silk gown of the Q.C. [K.C.] or superior court judge, except that the cape collar is smaller and its red facing is half the width of that of the Supreme Court judge’s gown. On the Provincial Court judge’s gown the red facing on the

front extends around to include just the borders of the cape collar (in contrast to that of the Supreme Court judge’s robe, which is entirely red), and the hanging sleeve panels are black. The waistcoat worn underneath is of judicial style (that is, having the effect of turned up cuffs) and is entirely black.36

The robe that was most recently adopted in British Columbia is that of the judicial justices of the peace, who wear robes while presiding in traffic court. These robes were brought in during the tenure of Chief Judge Metzger (now Metzger J.), who was chief judge from 1995 to 2000. The robes themselves are the same as those worn by court clerks except that they have a zippered front. Wing collars and tabs complete the JJPs’ ensemble, but since the robes are closed at the front no vest is worn.

WIGS

Since wigs are an adornment of the past, at least in this province, a full treatment of the subject will not be given here. However, readers may be surprised to know that wigs were part of the attire of at least some barristers in British Columbia for over 80 years.

Both Begbie C.J. and Needham C.J., the first two chief justices,37 wore wigs, although the first colonial judge, David Cameron, probably did not since he was not legally trained. Begbie C.J. would have been comfortable in a wig (if such a thing is possible) from his days as a Chancery barrister, although he did not favour a full-bottomed wig and seems not to have worn one on any recorded occasion. Needham C.J., Cameron’s successor, not only sported a full-bottomed wig but, as noted earlier, also wore scarlet robes trimmed with fur. Both of the first two puisne judges, Crease J. (appointed in 1870) and Gray J. (appointed in 1872), are shown in photographic portraits wearing full-bottomed wigs.

The wearing of wigs was the subject of much debate at the turn of the century, due perhaps to their discomfort, particularly in warmer weather, and probably also due to the expense. Wigs were not cheap: in 1895 a barrister’s wig cost £10, more than double the cost of a tailored suit.38 After a couple of legislative attempts to make the wearing of wigs optional, the issue was finally resolved in 1905 by a statutory ban on wigs “in any Court in this Province”.39

The 1905 ban did not deter the indomitable Mr. Justice Archer Martin, who in addition to his Supreme Court duties and, later, Court of Appeal duties was also the local judge of the Admiralty Court. He took the position that the provincial legislature had no jurisdiction over his attire when he presided in Admiralty Court. Martin J. was a staunch proponent of the tra-

ditional costume,40 so much so that for one photographic portrait he turned himself out in a full-bottomed wig, breeches, lace stock and cuffs, white gloves and silver-buckled shoes, while carrying a tricorn hat.41 This photograph, shown on the following page, shows that his was indeed an elaborate array.

Martin J. wore a wig when sitting as a judge in admiralty until his retirement in 1940,42 and he insisted that any counsel who appeared before him be similarly bewigged. Although it seems difficult to imagine that any counsel would have owned a wig much after the 1905 ban, it seems that this was so because we know from the account of the late David Verchere that, for example, E.P. Davis, Q.C. (later K.C., and the founder of Davis & Company) kept a wig on hand for his admiralty cases until ill health forced his retirement in 1931.43

If you look for a statutory prohibition on wigs in the current Supreme Court Act you will do so in vain. As was noted by Tom Woods in the May 1991 issue of the Advocate, the wig prohibition did not find its way into the 1989 Supreme Court Act which, among other things, effected the merger of the Supreme and County Courts in July 1990. He mused, tongue in cheek, about the “interesting possibility” that wigs might now be seen in British Columbia courtrooms because it now had to be presumed that they were permitted. I must, however, reveal that Mr. Woods spoke from a position of bias as it has since been learned that he is the proud owner of a barrister’s wig and thus he was no doubt seeking support for its use. The only two “interesting possibilities” that come to mind about the wearing of a wig in a modern British Columbia courtroom are whether the wearer would be met with laughter or with a contemporary version of Chief Justice Wray’s threat to put the wearer from the bar for “folish pride”.

COURT COAT, WAISTCOAT AND TABS

The sleeved waistcoat or vest that most barristers use today is of relatively recent fashion. Up until the 1950s barristers wore a sleeveless vest with a court coat, which is an open coat in cutaway style. The sleeved waistcoat or vest came into general use in place of the court coat no doubt because it was lighter, cheaper and more convenient.

Different forms of neckwear came and went in accordance with the general fashion of the times. These forms included elaborate standing ruffs, turned-down collars of varying sizes, and point lace bands (or what we would call tabs).

Judicial portraits from the 17th century show that the standing ruffs associated with Elizabethan and Jacobean times disappeared during the reign of

Charles I (1625–1649), having been supplanted by falling collars in both lay and judicial fashion.44 These falling collars had the appearance of very wide tabs and they soon evolved into the tabs with which we are familiar. By the late 17th century, plain formal white tabs came to be the established neckwear of judges, serjeants, barristers, clerics and academics.45

The female justices of the Supreme Court of Canada have recently moved away from the wearing of wing collars and tabs in their formal ensemble. They now wear a single wide pleated band, of the French style, together with a turned-down lace collar.

GOWN BAGS

Gown bags are a quaint but fading custom; indeed, a writer in the 1950s described the custom as “gradually dying out” even then, at least in Ontario.46 An earlier writer, describing a street scene in Vancouver around 1908, said:

From [our office] windows we could watch the Vancouver barristers going about the streets on their lawful occasions, each with the inevitable blue (or red) bag slung over his shoulder.47

For those unfamiliar with the custom, a gown bag is a velvet drawstring bag, adorned with the initials of the barrister, in which barristers carry their gowns (and, where applicable, their wig boxes, which look like oval biscuit tins). Junior barristers have bags of blue velvet and Queen’s Counsel [King’s Counsel] have red ones, although a Q.C. [K.C.] may bestow on a junior a red bag in recognition of extraordinary service to the senior. Judges’ gown bags are green.

Though gown bags are perhaps a fading custom, with most barristers and judges nowadays using garment bags, it is a custom that has certainly not yet passed. Blue and red bags still adorn the barristers’ robing rooms, and at the Vancouver courthouse there is at least one green bag of judicial origin, albeit one belonging to a judge who retired from the bench in 1999.

CONCLUSION

The special dress of barristers and judges is one of the grand traditions of the profession. Sir Victor Windeyer, the great Australian High Court judge, has described the observance of old forms and customs, including those concerning legal dress, as “a manifestation of the continuity of the law of the land”.48

If bench and bar in British Columbia look rather a dull lot (sartorially speaking only, of course), we come by that look honestly since it seems all six styles of gowns used in this province derive from mourning attire that was first adopted over three centuries ago.

ENDNOTES

1. Lawyers began to wear wigs in Samuel Pepys’ lifetime (1633–1703), in accordance with the general fashion of the times, as recorded by Pepys in his famous diary in entries for 1663.

2. It was a very closed shop—the serjeants had their own inn, and since judges came from the ranks of the serjeants they addressed serjeants appearing before them as “brother”. These origins also explain why judges sometimes refer to one another as “brother” (as in, “my brother on the bench”).

3. W Dugdale, Origines Juridiciales, 2nd ed (In the Savoy [London]: T. Newcomb, for A Roper, J Martin and H Herringman, 1671), 197.

4. Damask: a rich, patterned fabric; camlet: a costly fabric made of silk and camel or goat hair.

5. Dugdale records a Middle Temple regulation of 1584 as follows: “That no Gentlemen should walk in the streets, in their Cloaks, but in Gowns”: supra note 3 at p 191.

6. The Middle Temple regulation of 1584 prohibited members from wearing gowns with velvet facings, unless they were benchers, or gowns that were not of a “sad” colour: supra note 3 at p 191.

7. Diary of John Manningham of the Middle Temple (London: Camden Society, 1858), 45, quoted in J H Baker, “History of the Gowns Worn at the English Bar”, Costume, No. 9 (1975), 16. The phrase “Quomodo intrasti, domine, non habens vestem nuptialem?” is biblical (Vulgate) Latin, the phrase being derived from Matthew 22:13. In the parable told in that chapter, a king, having asked a freeloading wedding guest, “How is it that you come to be here without wedding clothes?” and the guest being speechless in reply, has the unfortunate guest bound hand and foot and cast into “outer darkness”.

8. Sir Henry Chauncy, The Historical Antiquities of Hertfordshire (London, 1700), 526.

9. Supra note 7, at 18–19. There were 20 shillings to the pound.

10. Supra note 8.

11. Narcissus Luttrell, A Brief Historical Relation of State Affairs from September 1678 to April 1714 (Oxford: At the University Press, 1854), IV, 299–300.

12. 17th-century barrister and law reporter James Wright, quoted in Baker, supra note 7 at 18. Luttrell confirmed in his diary that Holt C J’s order was complied with in the next court term: ibid at 336.

13. Thomas Woodcock, Legal Habits (London: Ede and Ravenscroft, 2003), 64.

14. W N Hargreaves-Mawdsley, A History of Legal Dress in Europe (Oxford: Clarendon Press, 1963), 90.

15. Supra note 7 at 19.

16. For two other historians who have concluded that the appendage is a vestigial hood, see Robert J Blackham, The Story of the Temple (London: Sampson Low, Marston, 1932), 183 and James Derriman, Pageantry of the Law (London: Eyre & Spottiswoode, 1955), 35.

17. Sir J Fortescue, De Laudibus Legum Angliæ (revision of 1825 Amos edition) (Cincinnati: Robert Clarke, 1874), 204.

18. Taffeta and sarsenet are smooth fabrics made from silk.

19. J H Baker, “A History of English Judges’ Robes”, Costume, no. 12 (1978), 32.

20. Rt Hon Sir V Windeyer, “Of Robes and Gowns and Other Things” (1974) 48 Aust LJ 394 at 398.

21. Crease J may have been a third British Columbia judge to wear formal English robes. A letter to Crease dated August 28, 1876, from London legal tailors Ede & Son shows that he purchased two pairs of “japanned” knee buckles, items that would have been worn with breeches.

22. W W Walkem, Stories of Early British Columbia (Vancouver: News-Advertiser, 1914), 25.

23. A ruling on the form of oath in the case is reported in Rex v Ah Wooey (1902), 9 BCR 569 (SC).

24. Real ermine is very costly and is thus usually reserved for royalty. Though often called “ermine”, other furs are used for judicial robes.

25. A short session—the court adjourned immediately because there were no cases to hear.

26. Supra note 14 at 85–86.

27. J H Baker, The Common Law Tradition (London: Hambledon Press, 2000), 102–103. Serjeant Pulling, one of the very last of the serjeants, recounted this tradition as follows in his 1884 book, The Order of the Coif (London: W Clowes and Sons, 1897 reprint), 235: “…but on most other occasions Serjeants, like the Queen’s Counsel, use only the black Court dress and silk gown which came into fashion at the end of the seventeenth century, when all the Judges and Serjeants of the Law, and all the members of the Legislature, assembled at Westminster Abbey in full mourning costume to attend the funeral of the departed Queen [Mary].”

28. The tufted robe was the ceremonial gown of QCs and KCs until the 1920s, and it may still be seen today as it is the court dress of the Common Serjeant of London, a judge who sits in London’s Central Criminal Court (the Old Bailey).

29. Supra note 27 at 103.

30. As illustrated in a painting of the Court of Chancery by Benjamin Ferrers, in London’s National Portrait Gallery.

31. Hon. E K Williams (Chief Justice of the Manitoba Court of King’s Bench), “Judicial Robes” (1952) 10 Advocate 109. For the reference to the Chancery judges having adopted this gown first, see also P D Mason, “Robing For The Future” (1978) 128 New LJ 523 and Hargreaves-Mawdsley, supra note 14 at 63.

32. Williams, ibid

33. These robes were designed by Farris CJSC (although some say Mrs. Farris played no small part in the design) and were made up by tailors at the nowdefunct Woodward’s department store: Hon David R

Verchere, A Progression of Judges: A History of the Supreme Court of British Columbia (Vancouver: UBC Press, 1988), 184, endnote 16.

34. Alfred Watts, QC, Magistrate-Judge: The Story of the Provincial Court of British Columbia (Victoria: Provincial Court of British Columbia, 1986), 94.

35. Ibid at 95.

36. A 1985 photograph hanging in judges’ chambers at 222 Main Street shows two Provincial Court judges with red trim on their waistcoats, a style that may have predated the 1977 standardization of the attire of Provincial Court judges.

37. British Columbia had the odd situation of having two chief justices, and no puisne justices, from the time of union of the two colonies in 1866 until 1870.

38. Hon Denis Murphy, “Judges of Ye Olden Time” (1946) 4 Advocate 84 at 86. Today, a bar wig costs about £400, a bench wig costs about £1,000 and a full-bottomed wig costs about £2,000.

39. Supreme Court Further Amendment Act, 1905

40. Indeed, he was such a traditionalist that he wrote his bench notes with a quill pen and dried the pages with sand.

41. There may be uncertainty about the date and occasion of this photograph. British Columbia Archives formerly gave a date of June 1906 for the photograph, the occasion being a levee held by King Edward VII at St. James’s Palace. David Verchere, in

A Progression of Judges, gives the occasion as the judge’s appointment, which took place in 1898 (when Martin was 33). Martin’s outfit is exactly that which was prescribed for levees, but the obvious youthfulness of the judge in the photograph suggests Verchere is correct about the date at least.

42. Mr. Justice Martin’s photographic portrait in the Vancouver Law Courts, showing him wearing a bench wig, is obviously from his later days, long after the 1905 statute prohibiting wigs. He was a judge of the Court of Appeal from 1909 to 1937 and was chief justice of British Columbia from 1937 to 1940.

43. Verchere, supra note 33 at 121.

44. There may have been some overlap in neckwear styles: in the collection of the National Portrait Gallery, Sir Robert Heath, chief justice of the Court of King’s Bench from 1642 to 1645, is shown wearing a ruff (albeit in a portrait dated after his death), whereas the 1641 portrait of Sir John Bankes, chief justice of the Court of Common Pleas, depicts him with a broad falling collar, an obvious precursor to modern tabs.

45. Hargreaves-Mawdsley, supra note 14 at 66.

46. S T Bigelow, Legal Etiquette and Court-Room Decorum (Toronto: Carswell, 1955), 29.

47. H S Cartwright, “Then and Now” (1946) 4 Advocate 122.

48. Windeyer, supra note 20 at 403.

OFF WITH THE WIGS

By James Morton*

Down with the wigamore, down with ’em rarely,” might well have been the theme song of Stuart Henderson when, over half a century ago, the likeable lawyer introduced in the B.C. Legislature his bill for the removal of wigs from the heads of judges and lawyers in B.C.

In spite of so surprising a move, or perhaps because of it, the debate was short and the bill soon passed on a mixed vote of Liberals and Conservatives. The division of the House on the bill was queerly assorted. Premier Sir Richard McBride voted for it, some said they thought because of his plentiful supply of grey, curly hair and that he had no need of a wig.

* Reprinted from (1960) 18 Advocate 209.

† Published with the kind permission of the Victoria Colonist.

†† Former Secretary to Premier John Oliver.

On the other hand, J. A. Macdonald (afterwards to become the first Chief Justice of the B.C. Appeal Court) voted against it. The great bulk of his Liberal followers supported their colleague, who was sometimes in those days of the game of euchre, called the left bower of the Opposition leadership, with John Oliver as the right bower. There was a good deal of conservatism in Macdonald's makeup and he cared little for radical departures.

In those days the Liberal Opposition was a strong and threatening force. As I remember, they numbered 18 in a house of 42, as against 21 Conservatives; two Socialists, J.H. Hawthornthwaite and Parker Williams, and one Independent Labor, a man named Davidson who afterwards joined the Socialists. So, with the almost solid support of the Liberal party, and the number of Conservatives who followed McBride, the bill passed with a fair majority.

While McBride supported the bill his attorney-general, Charlie Wilson, opposed it, though in a jocular way, as he read from Carlyle’s “Sartor Resartus” his philosophy of clothes, his sarcastic remarks on some of the styles of fashion of his time. Like McBride, he seemed to have little need of a wig to cover the grey hairs that stood tip on his head like quills upon the fretful porcupine. Still, he objected to the removal of a wig. I think W.J. Bowser and other Conservative lawyers opposed the bill, but the lay majority of the party supported it.

The socialist-labor triangle at the end of the Opposition benches appeared to treat the whole affair as a joke, and Hawthornthwaite, perhaps with the scant ginger thatch of Chief Justice Gordon Hunter in mind, introduced an amendment to compel all judges and lawyers to wear red wigs.

A number of Conservatives supported his bizarre sarcasm. Among them was my boss, F. L. Carter-Cotton, owner of the Vancouver News-Advertiser and president of the council. This seemed rather out of place in one of such grave, Confucian air, but he advised me to make it clear that such support was purely in derision of the bill. So the amendment received a small vote, as I think the mover expected it would, as a matter never seriously considered.

Among the judges and lawyers I only remember one voice raised in serious opposition. It was that of Mr. Justice Archer Martin, even hinting that it should be disregarded. But Chief Justice Hunter, who seemed never to care whether lie appeared on the bench in a black robe or a nightgown, ordered that the mandate he obeyed.

In fact, Mr. Justice Martin, who in turn became a chief justice, was a man of seemingly paradoxical character. From his Irish birth lie appeared to have inherited a streak of rebellion, yet he was the greatest stickler of all for the preservation of British customs in the courts. Like an Eldon of old lie still

wrote with a goose quill pen and sanded the letters for drying. He was a dignified figure as lie sat there in the splendor of wig and robes and resented any innovation.

One day a reporter was standing in the courtroom door as the judge passed, and said severely, “Why don't you remove your hat?”

The reporter said that his hat went down to his knees and his heart to his boots under the withering rebuke. Yet it was reserved to Mr. Justice Martin to return to his ancient glory in one way, since as a judge of the Exchequer Court, which is under federal jurisdiction, the wig always remained on his head in dealing with such cases.

I have sometimes heard the removal of the wigs attributed to the erratic Joseph Martin, but I know positively that Stuart Henderson was the mover of the bill, as I was in the press gallery at the time.

Well, Martin and Henderson have long since passed from the scene, and now after over half a century of trial, I doubt whether any of our judges and lawyers today would wish to return to the bobtailed, curly peruke with all its cost and discomfort.

It is said there are fewer bald legal heads as a result of the change.

HIRA ROWAN LLP WELCOMES

ANNE MACKENZIE

We are very pleased and honoured that, after 34 years as a Judge on all three levels of court in British Columbia, the Honourable Anne MacKenzie has joined our firm.

After 11 years of practice, Anne was appointed to the Provincial Court. Following six years on the Provincial Court, she was appointed to the Supreme Court and eventually became the first female Associate Chief Justice of the Supreme Court of British Columbia. In 2011, Anne was appointed to the British Columbia Court of Appeal and served on that court for over 12 years, retiring in May 2024.

Together with the Honourable Bruce Josephson, KC, Anne is available for mediations, arbitrations, or general advice regarding arguments. Having served as a Judge for over three decades, she is uniquely qualified to provide such assistance.

Please feel free to contact Anne by telephone at 604-638-4875 or by email at amackenzie@hirarowan.com

BENCH AND BAR

Missing the neighbourhood bears that have gone into hibernation? Missed National Hug a Bear Day, which occurs annually on November 7 in the United States? Well, bear left, or bear right, we have got a sloth, a pack, nay, a maul of bear information for you. If you go out in the woods today, you had better not go alone.

Cen F. Yang moves up West Georgia Street to join Harper Grey from Singleton Urquhart Reynolds Vogel. Colin J. Edstrom returns to Harris & Co. after a sojourn most recently with Pushor Mitchell. Nicole L. Garton adds a new role as senior counsel at Lindsay Kenney, and continues her role as president of Heritage Law. Brooke Finkelstein joins West Coast Workplace Law Corporation after a stint at DLA Piper. Clark Wilson welcomes the arrival of Jonathan E. Fung, from CFM Lawyers, and Ryan L. Lincoln, previously a judicial law clerk at the Tax Court of Canada. After 23 years on the Provincial Court bench, the Honourable Paul Meyers joins Crossroads Law as a civil mediator. After a 34-year judicial career, the Honourable Anne W. MacKenzie joins Hira Rowan where she will act as a mediator and arbitrator. Ksenia Orehova joins Cascadia Legal having previously been a law and policy development analyst with the Tsleil-Waututh Nation. Connor G.W. Watt moves from Boughton Law to Clark Wilson. Alexa R. Benzinger is now at Cozen O’Connor, having moved from Clark Wilson.

Fiona H. McFarlane moves to Kane Shannon Weiler from the Law Society of B.C. Also joining KSW is Paul G. Kent, who was previously at Lindsay

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.

Kenney, and Bryn C. Hirsh, who was most recently at Panorama Legal. Haley S. Richardson moves from Harper Grey to Branch MacMaster. Gurinder K. Biring is now at Singleton Urquhart Reynolds, moving from Clyde & Co. Lydia Y.Y. Huang joins Cooperwilliams Truman & Ito, having been at DLA Piper. Meanwhile, Colby Georgsen presumably could not bear the winters of Calgary anymore and has moved from Getz, Collins & Associates in Calgary to practise employment law with HHBG Lawyers in Vancouver. Matthew T. Ostrow joins Clark Wilson from Farris.

“The non-albino, white colour phase of the mammal known taxonomically as Ursus americanus and commonly know as the Spirit Bear is the mammal emblem of British Columbia”: Provincial Symbols and Honours Act, R.S.B.C. 1996, c. 380, s. 6.1.

Justices Sheri Ann Donegan and W. Paul Riley of the B.C. Supreme Court were translated to the B.C. Court of Appeal. Justice Riley replaces Justice G.J. Fitch, who resigned effective April 30, 2024. Justice Donegan replaces Justice J.L.L. Hunter , who resigned February 11, 2024. Honourable Madam Justice Mary Saunders retired from the Court of Appeal for British Columbia and the Court of Appeal of Yukon, effective August 11, 2024. Justice Saunders was appointed to the B.C. Supreme Court in 1991 and to the Court of Appeal in 1999.

Judges Andrea Ormiston and Tina Dion of the B.C. Provincial Court were both appointed to the B.C. Supreme Court in Abbotsford and New Westminster, respectively. Justice Dion replaces Justice F.E. Verhoeven (New Westminster), who elected to become a supernumerary judge effective January 22, 2024. Justice Ormiston replaces Justice R.W. Jenkins (Abbotsford), who elected to become a supernumerary judge effective January 1, 2022.

David Layton, K.C., and Eric V. Gottardi, K.C., were appointed as justices of the B.C. Supreme Court in Port Coquitlam and New Westminster, respectively. Justice Gottardi replaces Justice Riley, who was elevated to the Court of Appeal for British Columbia effective August 28, 2024. Justice Layton fills the remaining position authorized further to the Budget Implementation Act, 2022, No. 1.

Michael A. Fortino and Michael Libby, K.C., were both recently appointed judges of the B.C. Provincial Court.

The City of Vancouver website explains that “[t]he Vancouver Polar Bear Swim Club is one of the largest and oldest Polar Bear Clubs in the world. Its initial swim was in 1920 when a small number of swimmers took the plunge

into English Bay on New Year’s Day.” The club’s founder (and president for an astonishing 51 years) was Peter Pantages, who had at the time of the first swim just arrived from Greece and worked at his uncle’s theatre.

“The Teddy Bear is designated the state toy of Mississippi, in recognition of the Mississippi connection to the origin of the Teddy Bear. The connection is that on November 14, 1902, during a hunting expedition led by distinguished Mississippian Holt Collier in Smedes, Mississippi, President Theodore Roosevelt refused to shoot a small, exhausted black bear. The shot not fired at a baby bear in the Mississippi Delta became a great credit to the heroic and sportsmanlike conduct of President Roosevelt, and because of the President’s journey to Mississippi, the stuffed bear toy was appropriately named the ‘Teddy Bear,’ a positive symbol of love, comfort and joy for children of all ages”: MS Code § 3-3-43 (2023).

The idea of a talking teddy bear is not protectable under the copyright laws of the United States: Alchemy II, Inc. v. Yes! Entertainment Corp., 844 F. Supp. 560 (C.D. Cal. 1994).

The CBABC recently unveiled its new board for 2024/2025. They are Lee L.M.G. Nevens (this month’s cover subject), president, Mylene C. de Guzman, 1st vice-president, Patricia D. Blair, 2nd vice-president, Dan A.T. Moseley, Finance & Audit Committee chair, Adam C. Munnings, Aboriginal Lawyers Forum representative, Dimple Kainth, Equity, Diversity & Inclusion representative, and Dan W. Melnick, Young Lawyers representative, with directors at large being Connor Bildfell (the Advocate’s very own copyeditor), Nathan R. Bauder, Sarah L. Klinger and Randy W. Robinson.

“Some of the most poignant lessons that we learn as children come from cautionary fables, such as ‘Goldilocks and the Three Bears’ and ‘Little Red Riding Hood.’ This case presents a cautionary tale to unwary attorneys and might be aptly titled, ‘The Client Who Had No Claim.’”: White v. Camden City Bd. of Educ., 251 F. Supp. 2d 1242 (D.N.J. 2003).

Nationally, the CBA also announced its new board for 2024/2025. The B.C. members appointed are Clare Jennings, K.C. of the Crown counsel office in Victoria, and Robyn P.M. Trask of the B.C. Labour Relations Board and Employment Standards Tribunal.

“The employer decided to terminate the grievor’s employment. Absent just cause, the employer effected a termination at common law by paying the

grievor six months wages in lieu of notice and benefits plus a pay-out for accrued vacation days. The central issue is the sufficiency of this payment in the circumstances; in other words, it is a variation on Goldilocks and the Three Bears – is the bowl of porridge (the six months’ pay in lieu of notice) too hot, too cold or just right”: Smith v. New Brunswick (Tourism, Heritage and Culture), 2015 CanLII 54713 (NB LA). (Note: it was found to be too cold.)

On its website, the Canadian Investment Regulatory Organization notes that a “bear market” is “characterized by declining asset prices and negative outlook. It represents a period of economic contraction, reduced consumer spending, and heightened uncertainty among investors.” The organization further explains: “A bear market gets its name from the way a bear attacks its prey. Bears strike downwards.”

November 26, 2024 was proclaimed Economic Abuse Awareness Day.

Anita K. Atwal was appointed as a voting member to the Fraser Health Authority for a term ending December 31, 2024.

“Exit, pursued by a bear” is a stage direction in Act III, Scene 3 of The Winter’s Tale by William Shakespeare. It is a direction that comes without warning or supporting dialogue and has delighted and bewildered directors, actors and audiences for 400 years. Antigonus is tasked with abandoning the baby Perdita in a desolate place but is having second thoughts. Suddenly, a storm wrecks his ship and then … he exits, pursued by a bear.

Rachel Wong was elected to the board of directors of the Federation of Asian-Canadian Lawyers (BC).

“The grizzly bear, Ursus arctos horribilis, as preferred by a vote of Montana schoolchildren, is the official Montana state animal”: MT Code §1-1-508 (2023).

The native New Mexico black bear is adopted as the official animal of New Mexico. The hot air balloon is the state’s official aircraft: NM Stat § 12-3-4 (2023).

Koalas are marsupials rather than bears. The World Wildlife Fund notes, “[t]he koala may sleep or rest for up to 18-20 hours every day while being tucked into the fork of [a] tree. Their extraordinary sleeping habit is believed to be an adaptation to their leaf-based diet, as they get very little energy from just eating leaves.”

“The plain view rule does not go into hibernation at sunset”: Marshall v. United States, 422 F.2d 185 (5th Cir. 1970).

Louisiana’s official state mammal is the black bear: LA Rev Stat §49:161.1. Its state bird is the brown pelican.

“The Black Bear, subfamily ursinae, Ursus americanus Pollas, 1780, is hereby designated as the official state mammal of Alabama”: AL Code § 12-36 (2023). Alabama also has a state vegetable (the sweet potato).

Wikipedia describes “bear claw” (the pastry) as “a sweet, yeast-raised pastry, a type of Danish, originating in the United States during the mid-1910s”. It is usually filled with almond paste.

The Bear is a critically acclaimed television series about a chef who takes on running a sandwich shop in Chicago.

Wikipedia describes Yogi Bear as “an anthropomorphic animal character who has appeared in numerous comic books, animated television shows, and films”. First appearing as a supporting character in 1958, in 1961 he was given his own show (The Yogi Bear Show), with most of his antics in Jellystone Park. Reportedly Yogi Bear’s “personality and mannerisms” were based on Art Carney’s Ed Norton character on The Honeymooners, but his name may have been based on that of contemporary baseball star Yogi Berra, who “sued Hanna-Barbera [creators of the character] for defamation, but their management claimed the similarity was just coincidence. Berra withdrew his suit, but the defense was considered implausible.”

Both Paddington Bear and Winnie-the-Pooh have been at the centre of lawsuits about copyright and unpaid royalties. In a case that went to trial in 1980, however, Winnie-the-Pooh was sued for battery. Pooh even took the witness stand! The actor inside the Winnie-the-Pooh suit, Robert Hill, was sued by the family of a little girl who they say was purposefully punched by Winnie-the-Pooh and injured. To establish his ability to move in the suit, Hill took the stand in character (i.e., in costume).

Defence attorney, Mike McCray asked Pooh on direct examination “What do you do at Disneyland” at which point Pooh jumped up and did a jaunty little dance. “Have the record show that he is doing a two-step”, judge Jerrold S. Oliver instructed the court reporter.

McCray was able to show that the movements described by the girl’s family were not possible given the suit’s physical limitations which allowed Hill to

hop about, fake sneeze and pat his own belly, but not form a fist and punch children. The judge took 21 minutes to dismiss the lawsuit. “The Pooh has been vindicated!” he announced.

Art Carney played the father of Ognir Rrats in a 1978 film. [I can’t bear that film. – Ed.]

In more entertainment news, Arlene H. Henry, K.C. , was recently appointed to the board of the Cultch Theatre.

Pursuant to s. 2 of the Wildlife Act, ownership of all wild bears (and all other wildlife) in British Columbia is vested in the provincial government. “Bears” are defined as “big game” and “dangerous wildlife”.

Wikipedia’s entry for “Yogi Berra” starts with “Not to be confused with Yogi Bear” (italics in original). Lawrence Peter “Yogi” Berra was an American professional baseball catcher (mainly for the New York Yankees), and later manager and coach. Interesting statements attributed to him include—in addition to those cited later in Bench and Bar—“When you come to a fork in the road, take it”, “Predictions are hard, especially about the future”, “Always go to other people’s funerals; otherwise they won’t go to yours” and “Baseball is 90 percent mental. The other half is physical.”

Noted the Newfoundland and Labrador trial court in Walsh v. Greeley, 2010 NLTD 15:

The famous and beloved New York Yankees baseball catcher “Yogi” Berra, in addition to his consummate baseball skills, was noted for his fracturing of the English language in highly provocative and interesting ways and for his tendency towards malapropism. One of Berra’s famous malapropisms was exclaimed when he witnessed the famous hitters Roger Maris and Mickey Mantle repeatedly hit back-to-back home runs in Yankee’s baseball seasons in the early 1960’s. Berra observed, “It’s déjà vu all over again”. Had Yogi sat in on the trial of this present matter, he no doubt would have been reminded of his earlier famous comment respecting Mickey Mantle and Roger Maris.

“The doctrine of res judicata provides that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties, and constitutes an absolute bar on subsequent action involving the same claim, demand, or cause of action. Black’s Law Dictionary 1305 (6th ed.1990). In more simple terms, to paraphrase Yogi Berra, res judicata prevents a court from being subjected to ‘déjà vu all over again.’”: Smith v. Beal Acceptance Corp., 244 B.R. 487 (N.D. Ga. 2000).

California’s state animal is the California Grizzly Bear (Ursus Californicus). The State of California Capitol Museum notes on its website that “California is the only state in the union that carries the image of an extinct animal on its state flag and seal”. California’s state fabric is denim and its motto is “Eureka” (meaning “I have found it”), likely referring to the discovery of gold in the state.

Jessica C. Berglund was appointed as the chief civilian director, Independent Investigations Office, Ministry of Attorney General.

“Hibernation for a few months does not necessarily signal the end of a criminal partnership”: United States v. Panebianco, 543 F.2d 447, 452-53 (2d Cir. 1976).

Edward Michael “Bear” Grylls is a British adventurer, survival expert and television presenter. He got into legal hot water in Bulgaria (which imposed a fine in 2019) by swimming in a protected lake and boiling a frog while filming an episode of “Running Wild” with “Dancing with the Stars” pro and judge Derek Hough.

In 2013, songwriter Eliza Gilkyson and her two siblings sued the Walt Disney Company for unpaid royalties on the sale of recordings by their late father, Terry Gilkyson, who wrote the songs for the 1967 film The Jungle Book, including the song “Bare Necessities” sung by Phil Harris performing as Baloo the bear. In 2021, a jury awarded the Gilkysons $350,000 in damages and the court awarded a further $699,316 as damages for future royalties. Disney appealed and the California Second Appellate District remanded the case back to the lower court which it directed to dismiss the case and enter judgment in Disney’s favour. Forget about your worries and your strife!

“[W]e strongly recommend that trial judges, when in doubt, afford litigants the benefit of oral argument because that is precisely when oral argument may be most beneficial….Perhaps Yogi Berra said it best: ‘You [can] observe a lot by watching.’ (The Jurisprudence of Yogi Berra (1997) 46 Emory L.J. 697, 701, quoted in Manfredi & Levine v. Superior Court (1998) 66 Cal. App. 4th 1128)”: TJX Companies, Inc. v. Superior Court (Burchard), No. G027891 (Fourth Dist., Div. Three, 2001).

Gary J. Caroline was reappointed as a member of the British Columbia Emergency Health Services for a term ending December 31, 2024.

Bear Republic Law is a California law firm.

Bear Creek Law LLP is a law firm in Surrey.

While you may have missed it, the week of November 4 to 10, 2024 was proclaimed Seniors’ Fall Prevention Awareness Week. Of slightly shorter duration, Community Employment Service Providers Week occurred November 4 to 8, 2024.

Brian Dybwad, Lindsay LeBlanc, K.C., Bruce LeRose, K.C., and Scott Morishita were appointed to the transitional board of Legal Professions BC, as mandated by s. 223(1)(a) of the new Legal Professions Act.

“‘Without prejudice’ is a technical legal term which means about the same as Yogi Berra meant when he said, ‘The game[’]s not over until it’s over’”: King v. Burris, 588 F. Supp. 1152 (D. Colo. 1984).

Failed U.S. presidential candidate Robert F. Kennedy Jr. (he withdrew) admitted during his 2024 campaign that ten years earlier he had scooped up a dead bear cub struck by a car in the Hudson Valley and put it in the back of his van to take home for its meat. Being waylaid after a busy day of falconry (as one can be), Kennedy decided not to take the bear home and instead, using an old bike that was also in the back of the van, used the props to stage a bicycle-meets-bear “accident” in Central Park. He thought that would be humorous. Kennedy also claimed during his campaign that a worm ate part of his brain.

At the time of writing, it is not clear whether a better candidate than RFK Jr. actually won the U.S. presidential election.

“Despite the changes and complaints, visitors to modern ballparks witness a sport that has maintained its noble fascination since the nineteenth century. Bill Veeck, baseball’s notorious promoter, said that ‘Baseball is almost the only orderly thing in an unorderly world. If you get three strikes, even the best lawyer in the world can’t get you off’”: King v. Burris, 588 F. Supp. 1152 (D. Colo. 1984).

“Whoever, except as authorized under rules and regulations issued by the Secretary of Agriculture after consultation with the Association of State Foresters and the Advertising Council, knowingly and for profit manufactures, reproduces, or uses the character ‘Smokey Bear’, originated by the Forest Service, United States Department of Agriculture, in cooperation

with the Association of State Foresters and the Advertising Council for use in public information concerning the prevention of forest fires, or any facsimile thereof, or the name ‘Smokey Bear’ shall be fined under this title or imprisoned not more than six months, or both”: 18 U.S.C. § 711 (2019).

As you can probably imagine, British Columbia has a surfeit of official geographical places named after bears. There are 456 such places, including basins, bays, bights, brooks, camps, canyons, conservancies, coves, creeks, falls, flats, glaciers, gulches, hills, islands, lakes, mountains, parks, passes, peaks, points, rainforests, reservoirs, ridges, rivers and valleys. There are six Grizzly lakes, five Grizzly creeks, three Grizzly mountains, two Grizzly gulches, two Grizzly hills, two Grizzly passes, one Grizzly saddle and one Grizzly notch. A notch is a deep but narrow opening through a ridge or mountain chain, presumably through which grizzlies and other bears can pass.

Thankfully, polar bears appear officially only twice among B.C. place names. Polar Bear Peak is southeast of Bella Coola. Polar Bear Lake is on the south slope of that mountain.

Coca-Cola first used polar bears in its advertising in 1922, in France. Since 1993, animated polar bears have featured in the company’s television advertising.

The Supreme Court of Rhode Island noted, “Before some wag made the inevitable attribution to Yogi Berra, Samuel Goldwyn reportedly remarked that ‘[a] verbal contract isn’t worth the paper it’s written on’”: Montecalvo v. Mandarelli, 682 A.2d 918 (1996).

Justice Louis J. Ceci, dissenting, commented as follows in McCarthy v. Elections Board, 166 Wis. 2d 481 (1992): “The Selection Committee [the subject of the proceeding] is not a dancing bear, required to perform the steps only as this court or anyone else might insist. Therefore, this court cannot compel the manner in which the Selection Committee exercises its discretion.”

“An indicated sentence is just that: an indication. Until sentence is actually imposed, no guarantee is being made. We are again tempted at this point to quote that eminent philosopher, baseball great Yogi Berra: ‘The umpire ain’t ruled until he’s ruled.’”: People v. Delgado, No. G013376 (Fourth Dist., Div. Three, 1993), quoting City of Stanton v. Cox, 207 Cal. App. 3d 1557 (1989).

In China Yantai Friction Co. Ltd. v. Novalex Inc., 2024 ONSC 608, Justice C. Chang imparted the following wisdom under the heading “Counsel’s Conduct During the Application Hearing”:

[20] During the application hearing, counsel for the applicant somehow decided that it was appropriate during opposing counsel’s submissions to express themselves by way of, among other things, eye rolling, head shaking, grunting, snickering, guffawing and loud muttering. This behaviour culminated in one of them leaning back in his chair, throwing both hands in the air and laughing in a gleeful moment of triumph during a particularly engaging exchange between opposing counsel and the bench. Apparently, applicant’s counsel felt that he had scored some major point during my questioning of the respondent’s counsel and wanted to ensure that everyone else was aware of that victory.

[21] I addressed this misconduct at the applicable time during the hearing and, on my insistence, the once-exultant counsel apologized to his colleague. However, the ignoble display continued – albeit mutedly and intermittently – for the rest of the hearing.

[22] Unfortunately, the behaviour engaged in by applicant’s counsel is neither a new nor a rare phenomenon. Too often, counsel seem to believe that enthusiastically attempting to disrupt and/or demean opposing counsel during the latter’s oral submissions is one of the hallmarks of an effective advocate. It is not. Too often, counsel seem to believe that “rolling eyes, dancing eyebrows and other mannerisms” whilst opposing counsel is making submissions to the court constitute proper critique or response to those submissions. They are not.

[23] Counsel’s submissions to the court are to be made in only two ways: written argument and oral argument. No proper submissions are made by way of emanations from counsel (be they oral, non-verbal, audible or inaudible) when another justice participant is speaking. Indeed, during a court hearing, there should be nothing from counsel but complete oral and non-verbal silence while someone else “has the floor”. Anything other than such complete silence is not only distracting to the court, but is also profoundly disruptive, disrespectful and demeaning to everyone in that courtroom.

[24] I fully acknowledge that, in the “heat of battle”, human emotions run high and can sometimes get the better of even the most seasoned advocate. However, I am unable to countenance any circumstances under which the type of sophomoric behaviour too often demonstrated by counsel could possibly be excusable, let alone acceptable. It is not only discourteous and disruptive, but is also antithetical to the peaceful and orderly resolution of disputes and undermines procedural and substantive fairness...

[25] The type of misconduct demonstrated by the applicant’s counsel in the case-at-bar significantly delays the timely and effective administration of justice, exacts an unnecessary and unacceptable additional cost on litigants and erodes the public’s respect for the legal profession and, more importantly, for the rule of law. The parties, counsel, other justice participants, the public and the administration of justice deserve far better than what too many counsel seem to have to offer.

[26] Whether the culprit is a lack of proper mentoring, an overconsumption of courtroom television shows, extended periods of time without inperson human interaction or something else entirely, a fundamental shift in mindset is required to stem this tide.

[27] It has long been a tradition and requirement of etiquette in our courts that counsel refer to their counterpart as their “friend”. While most counsel use this appellation, painfully few appear to understand that the fundamental intention underlying its use is to remind counsel of their duty to treat opposing counsel with professionalism, courtesy, respect and civility. All counsel would be well advised to always keep this top of mind, lest the already threadbare state of professionalism and civility between them deteriorate into the irremediable.

Thought (grisly though it may be) du mois:

Never sell the bear’s skin before one has killed the beast.

—Jean de La Fontaine, French fabulist and poet (1621–1695)

“Neighbourhood Watch” by Kathy Traeger, acrylic on canvas, 48'' x 36'' Available at Kurbatoff Gallery, 2435 Granville St., Vancouver

Visit the website: kurbatoffgallery.com

CONTRIBUTORS

barbara findlay, K.C., L.I.D. (Hon.) is now “somewhat retired”, in her 48th year at the bar. As a fat old white queer lawyer with disabilities who was raised working class, barbara has had a career that embodies her commitment to exploring, confronting and changing stigma and oppression; and sharing privilege. She says that a central piece of her work is to recognize her own stigmatized and privileged identities. [barbara has read and approved this bio – Ed.]

Hamar Foster, K.C., rows with the Victoria City Rowing Club. In his spare time, he is professor emeritus at the Faculty of Law at the University of Victoria. Hamar was a Commonwealth Scholar and Woodrow Wilson Fellow from 1970 to 1971 and has taught at UVic since 1978. He writes extensively on comparative criminal law, British Columbia’s legal history and Aboriginal law.

Desmond MacMillan is the assistant dean at the Thompson Rivers University Faculty of Law and lieutenant commander in the Naval Reserve.

Shan Malhi is a third-year law student at Western Law with a focus on tort and employment law. He is particularly interested in how these areas can promote positive societal change and address social power imbalances. Recently, he has been motivated to write about the growing impact of online gambling on young adult males, having observed how common and accepted this addictive behaviour is within his demographic.

Georges Prat is Crown counsel with the BC Prosecution Service and a board member of l’Association des juristes d’expression française de la Colombie-Britannique.

David Roberts, K.C., is a retired lawyer who practised in Vancouver for 49 years where he focused on general commercial litigation and maritime law. David was also the editor of the Advocate from 1967 to the mid-1990s.

Stepan Wood is a professor at the Peter A. Allard School of Law at the University of British Columbia. He is Canada Research Chair in Law, Society and Sustainability and director of the Centre for Law and the Environment. His current projects relate to the rights of nature, environmental rights, homelessness, the reception of English law in colonial British Columbia and the future of the International Organization for Standardization.

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