September 2023

ADVOC A TE

SEPTEMBER 2023

OFFICERS AND EXECUTIVES

LAW SOCIETY OF BRITISH COLUMBIA

Christopher McPherson, K.C. President

Don Avison, K.C.

Chief Executive Officer and Executive Director

BENCHERS

APPOINTED BENCHERS

Paul A.H. Barnett

Sasha Hobbs

Dr. Jan Lindsay

ELECTED BENCHERS

Kim Carter

Tanya Chamberlain

Jennifer Chow, K.C.

Christina J. Cook

Cheryl S. D ’Sa

Tim Delaney

Lisa H. Dumbrell

Brian Dybwad

Brook Greenberg, K.C.

Katrina Harry, K.C.

Lindsay R. LeBlanc

Geoffrey McDonald

CANADIAN BAR ASSOCIATION

BRITISH COLUMBIA BRANCH

BOARD OF DIRECTORS

Aleem S. Bharmal, K.C.

President

Scott Morishita

First Vice President

Lee Nevens

Second Vice President

Judith Janzen

Finance & Audit Committee Chair

Michèle Ross

Natasha Tony

Guangbin Yan

Steven McKoen, K.C.

Paul Pearson

Georges Rivard

Kelly Harvey Russ

Gurminder Sandhu

Thomas L. Spraggs

Barbara Stanley, K.C.

Michael F. Welsh, K.C.

Kevin B. Westell

Sarah Westwood, K.C.

Gaynor C. Yeung

BRITISH COLUMBIA BAR ASSOCIATIONS

ABBOTSFORD & DISTRICT

Kirsten Tonge, President

CAMPBELL RIVER

Ryan A. Krasman, President

CHILLIWACK & DISTRICT

Nicholas Cooper, President

COMOX VALLEY

Michael McCubbin

Shannon Aldinger

COWICHAN VALLEY

Jeff Drozdiak, President

FRASER VALLEY

Michael Jones, President

KAMLOOPS

Kelly Melnyk, President

KELOWNA

Tom Fellhauer, K.C., President

KOOTENAY

Dana Romanick, President

NANAIMO CITY

Kristin Rongve, President

NANAIMO COUNTY

Lisa M. Low, President

NEW WESTMINSTER

Mylene de Guzman, President

NORTH FRASER

Lyle Perry, President

NORTH SHORE

Adam Soliman, President

PENTICTON

Ryu Okayama, President

PORT ALBERNI

Christina Proteau, President

PRINCE GEORGE

Marie Louise Ahrens, President

PRINCE RUPERT

Bryan Crampton, President

QUESNEL

Karen Surcess, President

SALMON ARM

Dennis Zachernuk, President

SOUTH CARIBOO COUNTY

Angela Amman, President

SURREY

Peter Buxton, K.C., President

VANCOUVER

Executive

Niall Rand President

Heather Doi

Vice President

Zachary Rogers Secretary Treasurer

Jason Newton

Past President

VERNON

Chelsea Kidd, President

VICTORIA

Marlisa H. Martin, President

Dan Melnick

Young Lawyers Representative

Rupinder Gosal

Equality and Diversity Representative

Randolph W. Robinson

Aboriginal Lawyers Forum Representative

Patricia Blair

Director at Large

Adam Munnings

Director at Large

Mylene de Guzman

Director at Large

Sarah Klinger

Director at Large

ELECTED MEMBERS OF CBABC PROVINCIAL COUNCIL

CARIBOO

Nathan Bauder

Jon Duncan

Nicholas Maviglia

KOOTENAY

Jamie Lalonde

Christopher Trudeau

NANAIMO

Johanna Berry

Patricia Blair

Ben Kingstone

PRINCE RUPERT

Emily Beggs

VANCOUVER

Joseph Cuenca

Bahareh Danael

Nicole Garton

Diane Gradley

Graham Hardy

Lisa Jean Helps

Bruce McIvor

Heather McMahon

Heather Mathison

VICTORIA

J. Berry Hykin

Cherolyn Knapp

Kimberley Nusbaum

WESTMINSTER

Manpreet K. Mand

Daniel Moseley

Matthew Somers

Sarah Weber

YALE

Mark Brade

Laurel Hogg

Aachal Soll

CANADIAN ASSOCIATION OF BLACK LAWYERS (B.C.)

Zahra Jimale, 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

Anita Atwal, President

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

Sandra Mandanici, President

Jeevyn Dhaliwal, K.C. First Vice President Brook Greenberg, K.C. Second Vice President

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ON THE

COVER

Read about the judicial accomplishments of Chief Justice Robert Bauman – quickly, if you’d like to do so while he remains in that role!

– starting on page 655 of this issue.

“One big step for OceanGate, one huge leap for ocean exploration.”

—Stockton Rush, founder of OceanGate, emerging from a 4,000 metre “validation dive” in 2018

Stockton Rush’s appropriation of Neil Armstrong’s famous words from the 1969 moon landing (“one small step for man, one giant leap for mankind”) was not so much a celebration of an incredible scientific achievement as it was a bid to create a sound bite to promote his brand, OceanGate. In a December 2018 press release, OceanGate, the Everett, WA-based company that produced manned submersible vessels for underwater exploration, boasted that its founder, Mr. Rush, had completed a solo 4,000 metre “validation dive” that “completely validate[s] OceanGate’s innovative engineering and the construction of Titan’s carbon fiber and titanium hull, it also means that all systems are GO for the 2019 Titanic Survey Expedition”. That exploration dive to the wreck of the Titanic was delayed until 2021 when Titan descended 3,800 metres to the bottom of the North Atlantic Ocean six times. In 2022, it performed another seven successful dives to the Titanic. On June 18, 2023, Titan’s first dive of the year to the wreck ended with a catastrophic implosion instantly killing Stockton Rush and his four passengers: Paul-Henri Nargeolet, a French deep-sea explorer and Titanic expert; Hamish Harding, a British billionaire; Shahzada Dawood, a Pakistani-British billionaire; and Mr. Dawood’s 19-year-old son, Suleman Dawood.

The implosion itself, which occurred only one hour and forty-five minutes into the dive, was not reported for several days and only after a massive search and rescue effort was undertaken by the U.S. and Canadian Coast

Guards, naval vessels from both countries, the U.S. Air National Guard and the Royal Canadian Airforce. Research vessels flying French and Guernsey flags also joined in on the massive search covering some 25,000 square km. Worldwide media attention, however, focused exhaustively on the rescue effort with the suspected amount of oxygen left in the tiny submersible being counted down live on television in a somewhat macabre fashion. At one point “underwater noises” were picked up giving false hope to those holding out for a miraculous rescue. On June 22, a debris field of the Titan was found about 500 metres northeast of the bow of the Titanic at the bottom of the ocean. A “catastrophic loss of the pressure chamber” was suspected as the cause of the wreckage. All lives aboard were lost in a mercifully brief microsecond that would have been too quick for the brain to process.

The intense fascination that the world still has with the sinking of the “unsinkable” Titanic more than 100 years ago likely fueled the scrutiny given to the rescue mission as it unfolded live around the world. The coverage and attention were reminiscent of the 2018 Tham Luang cave rescue mission in which a group of 12 junior football players and their 25-year-old assistant coach were trapped in a cave due to heavy rain and the 18-day search and rescue mission was successful (although one of the rescuers drowned). The world likes a (mostly) happy ending. Sadly, for the owner and passengers on Titan the ending was unimaginably bleak—images of a life support system slowly depleting over several hours gave way to the obliteration of lives in a microsecond—at the bottom of the North Atlantic.

Perversely, the entire ordeal might well have been avoided altogether. The “validation dive” that Stockton Rush proudly championed had been designed “to assess the integrity of the hull on OceanGate’s patent-pending Real Time Monitoring system (RTM) that monitors acoustic emissions from the carbon fiber structure”. This sounds impressive, but it does not actually say anything about the structural integrity capabilities of the hull itself. It merely boasts of a patent-pending system that assessed hull integrity. In an email to Rush in April 2019, one of Titan’s passengers on earlier testing in the Bahamas, Karl Stanley, an expert in submersibles, complained of a large cracking sound he had heard during the test dives:

What we heard, in my opinion, sounded like a flaw/defect in one area being acted on by the tremendous pressures and being crushed/damaged. From the intensity of the sounds, the fact that they never totally stopped at depth, and the fact that there were sounds at about 300 feet that indicated a relaxing of stored energy would indicate that there is an area of the hull that is breaking down/getting spongy.

Meanwhile, an employee of OceanGate—the director of operations, David Lochridge—had delivered an inspection report on the Titan sub-

mersible (then named Cyclops 2) to Mr. Rush in January 2019. The preamble of his report stated:

With Cyclops 2 (Titan) being handed off from Engineering to Operations in the coming weeks, now is the time to properly address items that may pose a safety risk to personnel. Verbal communication for the key items I have addressed in my attached document have been dismissed on several occasions, so I feel now I must make this report so there is an official record in place.

The report detailed the safety concerns Mr. Lochridge had previously tried to bring to the company’s attention including a lack of proper testing performed on the hull of the Titan and visible flaws and weaknesses in the carbon fibre hull. Mr. Lochridge specifically noted that any detection system would not function in sufficient time to give the occupants of the vessel sufficient warning to deal with an imminent hull breach. At a meeting the day following his report, Mr. Lochridge learned that the view port at the forward of the submersible was only built to a certified pressure of 1,300 metres and not the 4,000 metre depth to which the submersible would be taking paying passengers. Lochridge was appalled and encouraged OceanGate to use a classification agency to certify the suitability of the vessel for its intended purposes. OceanGate, however, was having none of it. Rush viewed regulations as a hinderance to innovation and he fired Lochridge with immediate effect and gave the four-year employee ten minutes to clear out his desk.

Part of Lochridge’s report expressed this startling concern: The paying passengers would not be aware, and would not be informed, of this experimental design, the lack of non-destructive testing of the hull, or that hazardous flammable materials were being used within the submersible.

Earlier still, in March 2018, 38 members of the Marine Technology Society sent a joint letter to OceanGate and addressed “Dear Stockton”. The letter was sent on behalf of those “who have collectively expressed unanimous concern regarding the development of TITAN and the planned Titanic Expedition”. Among the many concerns expressed about the design and suitability of the submersible to dive to the depths necessary to reach the Titanic, the letter referenced the risk assessment protocols of a certification company named DNV and stated:

Your marketing material advertises that the TITAN design will meet or exceed the DNV-GL safety standards, yet it does not appear that OceanGate has the intention of following DNV-GL class rules. Your representation is, at minimum, misleading to the public and breaches an industry-wide professional code of conduct we all endeavour to uphold.

While Stockton Rush forged ahead with his launching of Titan without DNV-GL certification or the rigorous testing urged upon him by others, he does not appear to have ignored the criticism entirely. To the contrary, he appears to have intentionally looked for legal loopholes that would allow him to exploit the lack of certification, proper safety testing and potential liability to paying passengers. In fact, he appears to have gone to great lengths to shield himself (and his company) from the inevitable lawsuits that might occur should the technology fail (as he had been expressly warned it would).

The liability waiver he required his paying passengers to sign (US$250,000 per person) started with a preamble that confirmed OceanGate was registered in the Bahamas, would embark from Newfoundland, Canada, participants would travel “for the most part aboard non-United States flagged vessels” and the expedition itself would be “largely conducted in international waters”. These acknowledgments were crucial because in international waters, no government has jurisdiction on the high seas. Instead, it is the law of the flag flown by the vessel that governs what happens on that vessel. Titan , however, was an unregistered submersible, launched from a Canadian registered (and flag flying) vessel in international waters—essentially it was cargo that was lifted off the registered vessel. Titan flew no flag of its own, had not been certified by any organization, was not registered and had deemed its passengers “mission specialists” rather than passengers—all efforts to avoid liability should something go wrong. What’s more, the waiver of liability included the following:

I have been informed about the nature of the Expedition and the risks it presents including that:

. . . a portion of the Expedition will be conducted inside an experimental submersible vessel that will dive 3,800 meters to the shipwreck of the Titanic. The experimental submersible vessel has not been approved or certified by any regulatory body and is constructed of materials that have not been widely used for manned submersibles. As of the date of this Release, the experimental submersible vessel has conducted fewer than 90 dives and 13 of those dives reached the depth of the Titanic. When diving below the ocean surface this vessel will be subject to extreme pressure and any failure of the vessel while I am aboard could cause me severe injury, disability, emotional trauma, other harm and/or death.

Of course the document went on to release, waive and forever discharge OceanGate (and everyone and everything associated with them) “from all liabilities, actions, claims, demands, costs, losses or expenses which I or my heirs, distributees, guardians, legal representatives, next of kin, members of my family (including minor children), or assignees may have against the

Released Parties on account of injury to myself or my property, or resulting in my death, arising out of or in any way connected with my participation in the Expedition”. The release was governed by the laws of the Bahamas to be resolved by the courts of the Bahamas.

There is something almost chilling about the attention given to avoiding potential liability. In an interview after the disaster, Karl Stanley, who had dived in the Titan, rhetorically asked: “Who was the last person to murder two billionaires at once, and have them pay for the privilege?” He described Rush as definitely knowing “it was going to end like this”. Rush certainly appears to have had a complete disregard for safety, preferring to make boastful claims and operate outside of the restrictions that a regulated industry might have imposed. His endeavours would probably have taken longer and would have likely been more costly. But it is not clear what more anyone could have done to prevent Stockton Rush from pursuing his dangerous and ultimately lethal scheme. An entire industry had warned him.

OceanGate did find itself from time to time in court concerning the Titanic wreckage site itself. A judge sitting on the U.S. District Court in Norfolk, Virginia has overseen cases involving access to the wreckage of the Titanic for over two decades. In April 2023, a consultant for OceanGate notified the court of the company’s intention to undertake its survey expedition in the summer of 2023. Remarkably, the consultant went on to invite the judge, Rebecca Beach Smith, to join the party: “If you would like to personally participate in [the] 2023 Titanic Survey Expedition, you are more than welcome to do so as a guest of OceanGate Expeditions”. In her reply, the judge wrote: “I thank you for the invitation to participate in the 2023 Titanic Survey Expedition, and perhaps, if another expedition occurs in the future, I will be able to do so. That opportunity would be quite informative and present a first ‘eyes on’ view of the wreck site by the Court”. As judicial decisions go, this was a good one.

One of the final news postings on OceanGate’s now defunct website ran with the headline: “Can You Build a Carbon Fiber Adventure Sub From Home?” That post is now gone. Only a sparse holding page exists now. Beneath the registered trademark for OceanGate are the words: “OceanGate has suspended all exploration and commercial operations.” In the end, Titan’s dive was not a giant leap for ocean exploration. Experts claim it may well have set the industry back decades.

ON THE FRONT COVER

THE HONOURABLE CHIEF JUSTICE ROBERT BAUMAN

By the Honourable Jon Sigurdson*

On October 1, 2023, Chief Justice Bauman will retire. This article recognizes his time and contributions as chief justice of the Courts of Appeal of British Columbia and the Yukon, previously as chief justice of the Supreme Court of British Columbia and as a sitting judge on those courts. His portrait graces the cover of what will be the last issue of the Advocate during his tenure.

Robert (Bob) J. Bauman has been a judge for almost three decades and has served as chief justice for 14 of those years, with four on the trial court and the remainder, since 2013, on the Court of Appeal. Perhaps surprisingly, there have been only three other judges in British Columbia’s history who have served as the chief justice of both courts. In chronological order, they are Sherwood Lett (1955–1964), Nathan Nemetz (1973–1988) and Allan McEachern (1979–2001). In terms of length of service, Chief Justice McEachern was the longest serving, but—without having counted days—it appears that Chief Justice Nemetz inched Bob out for longevity and would be entitled to receive the silver medal.

There is really no need for deep disappointment. Anyone who has had longer than the briefest conversation with Bob will know two important facts: he received the silver medal from his law school and it was the University of Toronto.

In this article, I move far away from his law school days and focus on Bob’s time as a judge and as chief justice of the B.C. Supreme Court and then

* The author thanks the people who helped him with this article, including Trevor Bant, Julia Riddle, Sally Rudolf and many others.

of the two appellate courts. In the latter capacity, he is the spokesperson for the appeal courts on many issues concerning the administration of justice. Given the size of the British Columbia courts, the nature of the work the judges of each court do and the places where the courts sit, the roles of chief justice of the trial court and chief justice of the appeal court are quite different. (I was unable to obtain a printable quote from Chief Justice Hinkson when I asked him which role was more onerous.)

By using the “point first” and concise writing style that Bob is famous for, let me put my conclusion up front. In the view of the profession, the public and his colleagues on both the trial and appellate courts, Bob has served with great distinction both as a jurist and as a spokesperson on the important issues affecting the justice system.

Now some necessary background before I expand on those points.

I met Bob when he joined Bull, Housser and Tupper in the early ’80s. We became friends. I was appointed to the Supreme Court of British Columbia in 1994 and he was appointed two years later. After that, during his career, I was mostly only visible in his rear-view mirror. When we first met, I found a lot of people underestimated him, but I felt proud that I could always see his true potential: I could see him as a retired person.

Our loyal and dedicated readers will recall that Bob was first on the front cover of the Advocate in 20101 to recognize his appointment as the 15th chief justice of the Supreme Court. For those who do not have that cover article fresh in their minds, I will briefly review the salient facts. He was born and raised in Toronto and Montreal, attended Loyola High School and College, obtained a history degree at Western University, went to the University of Toronto for his law degree and met Sue Hadgraft during first year. They married, he graduated with the silver medal (has this been mentioned already?), he articled with Wilson King in Prince George and became a partner and he later formed Wilson Bauman with his partner Galt Wilson to practise municipal law. Bob and Sue had two boys, Rob and Dave, and in the early ’80s moved to Vancouver. Bob joined Bull, Housser and Tupper and became a partner, specializing in municipal, regulatory and administrative law. As is well known by Bob’s colleagues and friends, he has had staunch support and wise counsel from Sue now for some 50 years. He is enormously proud of his two sons, who have pursued careers outside the law (in business) to great success. The sons married Angela and Ashley respectively, and the family now includes a much-adored grandson, Jackson.

Bob became a Supreme Court judge in 1996 and in 2008 was appointed to the Court of Appeal. He went back to the Supreme Court as its chief justice in 2009, then back to the Court of Appeal as its chief justice in 2013. He

retained his sense of humour through all these moves and translations. He maintained his golf game only through the strategic use of the “Leaf Rule”, a common law rule he developed that you do not count a lost ball penalty stroke if the ball could possibly be under a fallen leaf.

Bob is very particular about structure and design, so let me describe where I am going next. In the remainder of this article, I will first set out some observations about the way he approaches and hears matters that come before him in court, then turn to his jurisprudence (and jurisprudential legacy) and then discuss his role as a chief justice. In preparing this article, I have consulted widely with former law firm colleagues, justices of both trial and appellate courts, law clerks and friends.

Turning first to his approach in court, in what feel like times of increasing incivility and bullying in our society, the value of courts resolving contentious disputes calmly, respectfully and firmly cannot be overstated. No one has been a better exemplar of civility than Bob. He is widely known for his calm, relaxed and respectful approach to lawyers and litigants alike. He manages to display a firm grasp of the issues in the case while, with a light touch, he moves the proceedings along briskly.

A leading Vancouver counsel described him in these two phrases: “Smart, principled and guided by the rule of law” and “kind, funny and fair, but always in control.” Another barrister who has been a leader of the bar for many years put it this way: “Obviously, the Chief is held in the highest regard by the profession.” Another, somewhat less senior, counsel described her meeting with Bob this way: “I remember the first time I met Chief Justice Bauman at a social occasion (bar function). He was, of course, as he was in court, extremely intelligent, articulate and quick. However, what I had not expected was that he was also extremely humble, down-to-earth, funny and dare I say ‘cool’. We are extremely fortunate to have had his exceptional leadership of our courts over the past 14 years. I am sure his keen sense of humour came in handy at times.”

Civility has many aspects. Sitting as a judge in the Court of Appeal is different from being a trial judge. An appellate judge must work with their colleagues in preparing for and hearing the case and then deliberating on the proper decision. I spoke with several of Bob’s fellow appellate judges, and they unanimously told me that he approaches deliberations and engagement with his colleagues in the same open-minded and respectful manner as he is known for in the courtroom. A colleague described him as “the epitome of collegiality. He is always ready to listen to the views of others, and the first to acknowledge when someone has made a good point or written well. He presents his own views quietly, but firmly, remaining open to

being persuaded of a different approach.” Another colleague said that “sitting with the Chief on a division hearing reveals a person who demonstrates the same traits both before, during and after the hearing itself as he does in his other professional obligations. He is thoughtful, respectful to a tee to the views of his colleagues and if/when he has a different viewpoint, is courteous yet firm in his opinion. He also has a sense of humour, which he will use to his advantage if the situation warrants it. I find him to be very fair with counsel but, again, will be respectful while remaining firm to ensure that the proper regard is given to the court and the administration of justice, which is fundamental to him.” Another colleague said that he asks fewer questions than others on the panel and put it this way: “When he does ask a question, it is pointed and illustrates that he has completely grasped the issue … He is polite and respectful to all who appear, counsel as well as selfrepresented litigants. He uses plain language to address self-represented litigants and tries to make them comfortable in the process. He presides over the courtroom in a firm but fair manner.”

Maya Angelou famously said, “I’ve learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel.” Bob shows the value of applying that insight to the art of judging. When new judges wonder about how to conduct themselves in court, judicial educators advise them to look to the judges they admire and conduct themselves that way. Recognizing that judges bring their own unique personalities and strengths to the courtroom, there is much to emulate in Bob’s approach to judging.

Judges, whether puisne judges or chief justices, first and foremost are appointed to hear and decide cases. Judges are of course remembered by their judgments and sometimes by only a few of their judgments. What about Bob’s decisions? Bob has always enjoyed writing and analyzing legal problems. In a reflective moment, he would probably confess to always having wanted to be a judge because he enjoyed the analysis and writing that come with the job. Working with his clerks (not always agreeing with them, but always engaging) has been a highlight of his career, in part because of the opportunity to hear a point of view that differs from his own.

For most practical purposes, the Court of Appeal is the court of last resort in British Columbia, but sometimes cases go to the Supreme Court of Canada and sometimes even Bob is found daydreaming of the days when there was a possible further appeal to the Privy Council. However, Bob is realistic and understood from his early days as a student working in the forest industry in northern British Columbia that occasionally the chips will fall.

One of the strengths of Bob’s judgment writing is his placement of the facts and the dispute in their full and proper context. All trial judges know that viewing the evidence in its context, particularly its proper chronological sequence, is crucial to understanding the case. Bob has a particular longstanding love of timelines.

His boyhood and lifelong friend David Covo, now a professor of architecture at McGill, was visiting Bob many years ago and saw him painstakingly taping the long edges of eight or ten sheets together to make a larger document, a continuous strip that could be folded back, accordion-style, to a single 8 ½ by 14 “book”. The first few pages had been divided with a single horizontal line just above the centre and the spaces above and below the line were covered with notes. Bob had invented a format for his bench notes that organized the narrative of the trial along a horizontal line, drawn freehand and marked with the key dates in sequence from left to right. According to Covo: “In fact, the Chief had re-invented one of the earliest forms of what we now recognize as a book, the second step in the transformation from a continuous scroll to a bound sequence of separate pages, a Chinese invention that spread throughout Asia and remains in use all over the world as a sketchbook … I have been keeping him supplied with various versions, mostly Chinese, of what I now regard as a wonderful point of intersection in our professional trajectories.”

Examples of Chief Justice Bauman’s timeless timeline style

Let me now discuss the jurisprudence emanating from this thoughtful judge and his carefully scotch-taped sheets of legal foolscap.

Bob has authored important decisions on municipal law,2 the health care system, 3 Yukon’s treaty obligations, 4 commercial arbitration, 5 tribunal standing and costs in judicial review proceedings,6 civil forfeiture,7 search warrants and s. 8 of the Charter, 8 contracts,9 damages for loss of housekeeping capacity,10 class proceedings,11 the proper approach to summary judgment,12 Treaty 8,13 stare decisis in constitutional cases,14 the open court principle,15 civil procedure,16 s. 96 of the Constitution Act, 1867, 17 family law,18 the criminal prohibition of polygamy,19 solicitor-client privilege,20 inferential reasoning in criminal cases,21 legislative competence over taxation,22 criminal sentencing,23 health profession regulation,24 election spending, 25 notarial practice, 26 property assessment, 27 fraudulent misrepresentation,28 freedom of religion,29 civil contempt,30 public interest immunity31 and McBarge.32

The Chief Justice’s approach to judgment writing and decision making was accurately summarized by Trevor Bant, his former law clerk, who later clerked at the Supreme Court of Canada, worked at Hunter Litigation Chambers and presently is counsel for the Ministry of Attorney General. He said this:

In my view, the Chief Justice’s jurisprudence has three main characteristics.

First, his decisions are animated by practical judgment and common sense. His reasons seek to explain why the result makes sense, in addition to why it follows from the facts and law. He often uses phrases like “To proceed from ‘common sense’ to a more legalistic approach […]”[33] or “the result which appeals to our common sense is supported by a traditional legal (some would say an overly technical, or tortured) analysis”[34] or “it happily accords with common sense”.[35] This practical approach dovetails with his accessible writing style (plain language, point first, mostly short sentences, mostly short paragraphs). Most of his decisions do not require legal training to understand.

Second, his decisions reflect a concern for institutional competence and a humility about the judicial role. He was not timid about developing the law in appropriate cases,[36] nor about granting constitutional remedies when required,[ 37 ] but he was cautious about intruding into matters within the responsibility of the legislature or executive. He often emphasized, when deciding a challenge to legislation or government action, that he was not passing judgment on its policy merits or wisdom.[38]

Finally, his decisions convey his compassion and empathy for litigants and witnesses. He writes with an awareness that litigants are people, not fact patterns. When summarizing the evidence, he captures witnesses’ personalities. When he finds himself compelled to reach a result that may be difficult or upsetting to a litigant, he does so with sensitivity. Here is

just one example, from one of his early decisions, after he has concluded that two persons were not “spouses” within the meaning of family law: That conclusion should not be viewed, in any way, as demeaning of the love between these two people. It rather reflects an application of the law. At law, human relationships sometimes must be placed on a continuum which ranges from “single and dating” to “meaningfully involved” to “marriage-like”. The placement, in any given case, by definition, is arbitrary even if it is principled.[39]

To give the reader some tangible idea of Bob’s approach to decision making, let me refer to a few examples.

In West Moberly First Nations v. British Columbia, the B.C. Court of Appeal dismissed an appeal from an order granting declaratory relief about the location of the western boundary of Treaty 8.40 The location of the boundary was in issue, but there was a more fundamental issue about whether any declaration about the boundary should be granted. Given that the rights conferred by Treaty 8 are not entirely clear, a declaration about the boundary within which those rights may be exercised would not obviously have the practical effect that is typically required for a court to grant declaratory relief. In concluding that declaratory relief was appropriate, the Chief Justice set out an important but restrained role for the court in advancing reconciliation. Noting the practical realities of Aboriginal rights and title litigation, which frequently involve immense expense and time, the Chief Justice rejected an all-or-nothing approach to declaratory relief in these cases. In essence, he held that the court does not need to resolve every issue; instead, the court can play a more modest role in resolving some issues and creating space for others to be resolved outside the litigation process.

In Rosas v. Toca, the Court of Appeal developed the common law of contractual modification.41 When the parties to a contract agree to vary its terms, the court held the variation should be enforceable even if there is no fresh consideration. Rosas is an example of the Chief Justice’s commitment to practical judgment and common sense. When the law seems to lead to a result that is unjust, that is a cue to look more closely at the law and, in an appropriate case, develop the law incrementally in the common law tradition. His colourful introductory paragraph sets the stage: It has been famously said that “hard cases make bad law”; sometimes, however, hard cases make new law. Or, at least, they very much encourage the court to do so lest we give credence to Mr. Bumble’s lament in Oliver Twist: “If the law supposes that…the law is a ass”.42

His reasons in Rosas are notable for their marriage of practical, commonsense reasoning with scholarly reflections on a wide range of case law and

academic commentary from across the common law world. His ultimate reason for concluding the law must develop would be understandable to anyone: “To do otherwise would be to let the doctrine of consideration work an injustice”.43

I turn now to Bob’s role in leading the Court of Appeal and speaking for that court. The traits that make him such a good judge are ones that allow him to excel as chief justice.

The Court of Appeal in British Columbia consists of a chief justice and 14 other justices as well as supernumerary justices. I am informed by Court of Appeal members that Bob brings the same respectful tone to the administration of the court as he does to the courtroom. Court meetings are collegial and democratic. Decisions are made by consensus after all points of view are heard. Bob’s famous sense of humour helps the court run collegially but efficiently.

The chief justice has extensive duties outside hearing cases and being responsible for the administration of the court. One of the chief justice’s roles is to be the spokesperson for the court on serious issues affecting the administration of justice. These can include public education, interaction with the government, the maintenance of the physical plant and generally the representation of the judiciary on all matters related to the administration of justice.

The chief justice has multitudinous roles and responsibilities. As a wise person said, “A lot of the Chief’s work is like housework: there is a great deal of it and it is only noticed when it is not done well.” I will touch on some of those lesser-known duties at the end of this piece but will start with a few of the chief justice’s more significant initiatives.

It became clear during Bob’s tenure that the cost and complexity of the system of civil justice were acting as impediments to many Canadians’ ability to exercise their legal rights in civil and family matters. This was a serious national issue. Following the report of the pan-Canadian committee called Access to Civil and Family Justice: A Roadmap for Change, key members of the B.C. justice system, including Bob, established the BC Access to Justice Committee. Bob chaired that committee and led the discussion in that group about which initiatives should be pursued and how.

He also established a blog to speak to the important issues, a key one being the need for culture change in the profession, particularly in the area of family law. He encouraged people to take a fresh look at the issues, to become involved and to focus attention on the access to justice movement that is taking place in British Columbia. He proved to be a man of this century when his blog received a Clawbie (a Canadian Law Blog Award) in

2019. By then, Clawbies were in their 15th year and recognized every form of digital publishing in the Canadian legal community.

The Honourable Thomas Cromwell described Bob’s involvement this way: “Chief Justice Bauman was not only an enthusiastic supporter of the work of the Action Committee on Access to Justice, he was a strong leader of the work in British Columbia to react to our 2013 report and of the B.C. efforts to make tangible improvements in access to justice in the province. His encouragement, personable manner and availability to attend and speak at access to justice events were models for how a chief justice can engage with this vital issue and encourage everyone in the system—and beyond—to strive for change.”

Throughout his tenure as chief justice, Bob has recognized the importance of the traditions of the bar while reminding the bar and the courts that change is needed to build a better justice system that will serve the interests of the public. He has worked in the family law collaborative initiative with various people who are not, as he put it, usually in the tent, including children and health professionals.

Bob has taken a leadership role in ensuring that the courts of British Columbia are truly open. His commitment to the access to justice issue has led to some candid comments on the challenges and issues of making the courts truly open to the public. During his tenure, he made himself available for interviews, public comments and appearances on open-line radio programs. He believes that the better information and education the public receives about the courts, the greater confidence the public will have in the courts’ decisions. For example, he recently participated in a Twitter Town Hall, a Provincial Court initiative headed by Chief Judge Gillespie, who continued the initiative started by Chief Judge Crabtree. Bob described it this way:

Social media has become such an important means for people to get information, and it’s a platform underused by the judiciary, including my own court, admittedly. In particular, Twitter is a useful way of creating dialogue, within appropriate bounds, and providing a route for members of the public and bar to educate and inform judges about their concerns.

Bob recognized that having open courts means that the public must truly have access to those courts. This became a major challenge during the pandemic. One senior counsel commented, “Importantly, Chief Justice Bauman led with more than his writing. His response to COVID was amazing.

I argued a number of early video appeals that would have gone into the abyss without the Court of Appeal’s quick and effective response to the shut-down. My clients and the system were extremely well served by Chief Justice Bauman’s leadership at this critical time (dare I call him a technological progressive).”

Bob has addressed the important issues facing Canada and the legal community. A crucial issue facing this country is reconciliation with Indigenous peoples. Speaking at the Canadian Institute for the Administration of Justice in 2021 on the subject of Indigenous peoples and the law, Bob noted that it was almost a decade earlier that Chief Justice Finch, his predecessor, had presented a paper entitled “A Duty to Learn” and said: Chief Justice Finch called on members of the largely non-Indigenous legal community to admit uncertainty and hold ourselves ready to learn about Indigenous legal orders, to divest ourselves of pre-existing certainties as to the nature of the law. He encouraged us to protect the interests of all Canadians by making space for a pluralistic legal and cultural landscape. Most importantly, Chief Justice Finch reminded people like myself that it is we, as strangers and newcomers, who must find our role within the Indigenous legal orders themselves. ….

Sometimes, it can be daunting for an outsider like myself to think of the sheer diversity of Indigenous languages and traditions. How will I ever feel like I’m starting to get the full picture, when there is simply so much to learn and so much, which by virtue of my background, I may never understand? It is truly humbling. I have been advised, and take comfort in the advice, that I need only to take things moment by moment, case by case, and truly listen. Listen to the real stories of those Indigenous writers and researchers who have expert knowledge and lived the experience of Indigenous culture. Listen to the counter-stories. Listen, question, recognize the truth and act.

Bob recognized that the rule of law and a healthy and open justice system are not just Canadian issues but require careful attention around the world, and he devoted time to making an international contribution. Between 2015 and 2021, as part of a delegation from the National Judicial Institute, he visited Ukraine on a number of occasions and participated in judicial education programs in Zaporizhzhia, Odesa and Kyiv.

While Bob could be accused of being forward thinking and alive to the challenges facing the justice system in the future, he is at heart a traditionalist. He believes that an independent judiciary and an independent bar are crucial to a fair and proper justice system.

Our chief justice also has a flair for design—just ask him. His interest in design had an important consequence: he cherished and has worked hard to maintain our world-famous Robson Square courthouse designed by Arthur Erickson.

The tasks of the chief justice are too numerous and diverse to properly catalogue. I could report on the respect he has earned from colleagues across the country serving on the Canadian Judicial Council, for a signifi-

cant time as its vice-chair, or the hours he has spent on committees to consider the appointment of King’s Counsel or the award of the Order of British Columbia, or showing up to many, many meetings and events in the legal community and in the wider community.

On behalf of the public and the legal community, thank you, Bob, for the wonderful work you have done in maintaining and building a justice system that is fair, open, just and focused on meeting the needs of the community it is meant to serve.

ENDNOTES

1. (2010) 68 Advocate 335.

2. Community Association of New Yaletown v Vancouver (City), 2015 BCCA 227; Society of Fort Langley Residents for Sustainable Development v Langley (Township), 2014 BCCA 271; Western Forest Products Inc v Capital Regional District, 2009 BCCA 356; Martin v City of Vancouver, 2006 BCSC 1260; Denman Island Loc Trust v 4064 Investments Ltd, 2000 BCSC 1618; 417489 BC Ltd v Scana Holdings Ltd, 1998 CanLII 6770 (BCSC).

3. Cambie Surgeries Corporation v British Columbia (Attorney General) , 2022 BCCA 245 [ Cambie Surgeries].

4. The First Nation of Nacho Nyak Dun v Yukon, 2015 YKCA 18 [Nacho Nyak Dun].

5. Boxer Capital Corporation v JEL Investments Ltd , 2015 BCCA 24.

6. 18320 Holdings Inc v Thibeau, 2014 BCCA 494.

7. British Columbia (Director of Civil Forfeiture) v Qin, 2020 BCCA 244.

8. R v Ling, 2009 BCCA 70.

9. Rosas v Toca, 2018 BCCA 191.

10. Kim v Lin, 2018 BCCA 77.

11. Trotman v WestJet Airlines Ltd , 2022 BCCA 22; Jiang v Peoples Trust Company, 2017 BCCA 119; Samos Investments Inc v Pattison, 2001 BCSC 1790.

12. Beach Estate v Beach, 2019 BCCA 277.

13. West Moberly First Nations v British Columbia, 2020 BCCA 138 [West Moberley].

14. R v MB, 2016 BCCA 476.

15. R v Moazami, 2020 BCCA 350.

16. Smithe Residences Ltd v 4 Corners Properties Ltd., 2020 BCCA 227.

17. Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2022 BCCA 163.

18. AB v CD, 2020 BCCA 11; British Columbia Birth Registration No 2004-59-020158 (Re), 2014 BCCA 137.

19. 2011 BCSC 1588.

20. British Columbia (Auditor General) v British Columbia (Attorney General), 2013 BCSC 98.

21. R v Rai, 2019 BCCA 377.

22. Vander Zalm v British Columbia, 2010 BCSC 1320 [Vander Zalm].

23. R v Chambers, 2014 YKCA 13.

24. Scott v College of Massage Therapists of British Columbia, 2016 BCCA 180.

25. Heed v The Chief Electoral Officer of BC, 2011 BCSC 1181.

26. Law Society of BC v Gravelle, 1998 CanLII 3215 (BCSC).

27. Assessor of Area #01 – Capital v Nav Canada , 2016 BCCA 71.

28. Catalyst Pulp and Paper Sales Inc v Universal Paper Export Company Ltd, 2009 BCCA 307.

29. Trinity Western University v The Law Society of British Columbia, 2016 BCCA 423.

30. HEABC v Facilities Subsector Bargaining Association, 2004 BCSC 762.

31. Provincial Court Judges’ Association of British Columbia v British Columbia (Attorney General) , 2018 BCCA 394.

32. McDonald’s Restaurants of Canada Ltd v British Columbia, 1999 CanLII 6957 (BCSC).

33. R v Chambers, 2014 YKCA 13 at para 52.

34. R v VPS, 2001 BCSC 619 at para 85.

35. R v DLW, 2015 BCCA 169 at para 69.

36. See e.g. Rosas, supra note 9.

37. See e.g. Nacho Nyak Dun, supra note 4.

38. See e.g. Cambie Surgeries, supra note 3 at paras 14–15; Vander Zalm, supra note 22 at para 49.

39. Huyer v Bourgeois, 1998 CanLII 5330 at para 8 (BCSC).

40. West Moberly, supra note 13.

41. Rosas, supra note 9.

42. Ibid at para 1.

43. Ibid at para 4.

THE LANCE FINCH MEMORIAL FUND AT TRU CALL

FOR DONATIONS

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

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

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

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

Thank you for your generous consideration,

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

CREDIT CARD FEES AREN’T INDIRECT TAXATION – AND EVEN IF THEY FEEL LIKE IT, IT DOESN’T MATTER ANYWAY

By David Ross*

We love credit cards, but consumers in Canada have long been shielded from the actual cost of using them. But now, when you buy a pair of new, fast cross-country skis, you may need to think twice before using your credit card, because the merchant may add a surcharge for the privilege. Until recently, Canadian merchants were prohibited by the payment card network operators (“PCNOs”) from charging surcharges to recover the extra costs associated with accepting credit cards.1

At the same time, the 2023 federal budget proposes to amend the Excise Tax Act2 (“ETA”) to exclude PCNOs’ services to the banks from the definition of “financial services”, making them again subject to GST and HST, after a 2021 Federal Court of Appeal decision found them to be exempt financial services.3

Now that these costs are being separately passed on to consumers, are they a form of indirect taxation? And does it matter in HST provinces, since provinces cannot, constitutionally, impose indirect taxation?

The counterintuitive answer to both questions is “no”. Even if the tax on a PCNO’s services to the banks is reflected in higher fees charged by the bank and then ultimately passed on to consumers, the tax remains a direct tax on the final consumer of the PCNO’s services: the bank. And, because the HST is imposed by Canada and not the participating provinces, the distinction between direct and indirect taxation does not matter, because Canada may impose all forms of tax.

BACKGROUND

How Do Credit Cards Work?

This paper will focus on Visa, but similar conclusions can be drawn about other PCNOs.

* The author would like to thank Zvi Halpern Shavim of Blake, Cassels & Graydon LLP for his helpful comments. Any mistakes are the author’s alone.

Visa operates what it calls a “four-party” model.4 An issuer (e.g., a Canadian financial institution, like a bank) issues a credit card to consumers, agreeing to provide the consumer credit on certain terms and conditions.

The consumer presents the card to a merchant to purchase something. The merchant accepts the card and sends the transaction data to a payment processor or acquirer. The acquirer is a third-party provider of processing services that connects merchants to Visa’s network and may also provide the equipment to do so (e.g., point of sale terminals) and technical support to merchants.

The acquirer in turn immediately sends the transaction data to Visa (or other PCNO like Mastercard). Visa contacts the issuer—the bank—through its network to confirm whether the transaction is authorized or not. The issuer’s acceptance (or not) is then communicated back to Visa, then to the acquirer, and finally to the merchant, and the transaction completes. The issuer provides the consumer credit for the purchase, and then collects payment under the credit agreement monthly. At the end of each day, Visa coordinates settlement of payments between issuers and acquirers, and acquirers are responsible for settling with their merchants.5

What Is GST/HST Again?

Every recipient of a “taxable supply” made in Canada must pay, to Canada, a five per cent tax (GST) on the consideration for the supply.6 In participating provinces, the recipient must pay an additional tax to Canada at the specified rate for that province.7 Together, those taxes are the HST. A “taxable supply” is any supply made in the course of commercial activity.8

There are two major exceptions: “exempt supplies” and “zero-rated supplies”. Zero-rated supplies are specific taxable supplies, but the tax rate is zero. 9 Exempt supplies are not taxable supplies because the supply of exempt supplies is not “commercial activity”.10 The primary difference is that a supplier of zero-rated supplies can claim input tax credits on its inputs; a supplier of exempt supplies cannot.11

Exempt supplies are those listed in Schedule V of the ETA. One of the most important exempt supplies is financial services.12

“Financial services” are defined in s. 123(1) of the ETA to include:

(i) any service provided pursuant to the terms and conditions of any agreement relating to payments of amounts for which a credit card voucher or charge card voucher has been issued

but do not include “a prescribed service”:

(a) the transfer, collection or processing of information, and

(b) any administrative service, including an administrative service in relation to the payment or receipt of dividends, interest, principal,

claims, benefits or other amounts, other than solely the making of the payment or the taking of the receipt.13

Who Pays Whom for What in a Typical Credit Card Transaction?

Visa charges the issuers for access to its network and for the settlement and clearing services it provides between issuers and acquirers.14

Issuers in turn charge acquirers interchange reimbursement fees for use of the payment network. Visa sets default interchange fees for the issuers to charge acquirers, but issuers may negotiate different deals with acquirers.15 The standard Visa interchange fee on consumer credit cards increases based on the type of card used. In Canada, the fee is 1.45 per cent for classic, gold and platinum cards; 1.70 per cent for an Infinite card; and 2.45 per cent for a Visa Infinite Privilege card.16

Issuers in turn charge merchants a fee called a merchant discount rate (“MDR”), which is usually a percentage of each credit card transaction and may be higher or lower depending on the type of card used and the associated interchange fee.17 The MDR is either billed separately or deducted from the amount the acquirer remits to the merchant in settlement of consumers’ purchases.

The merchant charges the consumer for the items purchased and, if it chooses, a surcharge for the use of the credit card.

Merchants can add surcharges by brand (e.g., the same surcharge for all Visas) or by product (e.g., higher surcharges for more expensive cards like Infinite or Infinite Privilege cards).

Per Visa’s rules, a merchant must:

• disclose the surcharge to the consumer and give the consumer an opportunity to cancel the transaction without penalty;

• make it clear the surcharge is being charged by the merchant and not Visa;

• provide 30 days’ notice to its acquirer of its intention to add a surcharge (and the acquirer must notify Visa); and

• not charge more than its average effective MDR for accepting the card brand or specific card product.18

In Quebec, merchants cannot add surcharges because all charges must be incorporated into the advertised price of a product, except for Quebec sales tax and the GST.19

WHAT IS TAXABLE IN A TYPICAL CREDIT CARD TRANSACTION?

Where’s the tax?

• Visa’s charge to the issuers is (again) a taxable supply, subject to GST/HST.

• The interchange fee that the issuers charge the acquirers is an exempt financial service.20

• The MDR that the issuers charge merchants is an exempt financial service.21

• The surcharge that merchants may charge customers is also an exempt financial service.

For a long time, the PCNOs’ services were considered an administrative service and therefore not financial services, and GST/HST applied. In 2021, the Federal Court of Appeal found that Visa’s service to issuers was not administrative, and was an exempt financial service.22 The court reasoned that Visa’s services were more than administrative; rather, they were essential to the issuers’ ability to issue credit cards that would be widely accepted, without individually building enormously expensive payment networks and investigating and underwriting every merchant using the network.23

In response, the 2023 federal budget indicates that Canada will overrule the decision and exclude PCNOs’ services from the definition of financial services.24 As a result, PCNOs’ services will, again, be taxable supplies, and issuers will need to pay GST/HST, and PCNOs will need to collect GST/HST, on the fees charged by PCNOs like Visa to issuers like the banks.

Why Is the Merchant’s Surcharge Exempt?

CRA considers that a merchant’s separate surcharge for accepting a credit card is an exempt financial service, notwithstanding its connection with the supply of the merchant’s goods or services, and the potential that the two supplies are a single supply of the merchant’s goods or services.25

The Supreme Court of Canada has endorsed the following test for whether single or separate supplies exist:

The test … is whether, in substance and reality, the alleged separate supply is an integral part, integrant or component of the overall supply.

… [O]ne should look at the degree to which the services alleged to constitute a single supply are interconnected, the extent of their interdependence and intertwining, whether each is an integral part or component of a composite whole.26

There are at least two identifiable supplies in a consumer/merchant transaction: the good or service that merchant is providing (e.g., a pair of cross-country skis) and access to the Visa payment network. They are not a single supply because supplying skis is not dependent on access to the

Visa payment network. The customer can pay the merchant many ways: with cash, cheque, bank draft, barter or a form of electronic payment with lower fees.

So, a merchant would charge the price and collect GST/HST on the sale of the skis and charge the surcharge for accepting a credit card as a payment method, but not collect GST/HST on the surcharge.

It is important for the merchant to separate the charge for the skis and the surcharge. Otherwise, s. 138 of the ETA might apply to the “incidental” provision of financial services in connection with the main supply of taxable goods. Section 138 applies when two (or more) supplies are supplied together for a single price, deeming the “incidental” supplies to form part of the other supply. In this case, it could deem the payment service to be part of the taxable supply of skis.

Section 139 would also not deem the entire supply to be a financial service, as the surcharge will never constitute more than fifty per cent of the consideration for the total supply. Section 139 applies to deem a mixed supply of financial services and other supplies to be a financial service when, among other conditions, the consideration for the financial service is more than fifty per cent of the total consideration. If credit card surcharges were that high, payment networks would quickly go out of business.

IS THE TAX ON VISA’S SERVICES AN INDIRECT TAX?

Because the issuers do not resell Visa’s services but rather incorporate them into their own credit card products, the issuers are the final consumer of Visa’s services, and the tax on Visa’s services is direct, even though the issuers may recoup the cost by charging higher interchange fees, acquirers may recoup that cost by charging a higher MDR and merchants may recoup that cost by charging a higher surcharge.

Constitutionally, Canada may raise money by any mode or system of taxation,27 while the provinces are restricted to direct taxation within the province.28

Canadian courts rely on John Stuart Mill’s definition of direct and indirect taxation:

A direct tax is one which is demanded from the very person who it is intended or desired should pay it. Indirect taxes are those which are demanded from one person in the expectation and intention that he should indemnify himself at the expense of another.29

Sales taxes on a final consumer of a good or service have been held to be direct taxes, even if the consumer might recoup the cost of the tax by other means.

In Air Canada v. British Columbia, the Supreme Court of Canada considered airlines’ challenge of British Columbia’s gasoline tax, imposed when a consumer of gasoline purchased fuel in the province. La Forest J. said:

[T]he generally accepted test of what constitutes a direct tax has been that of John Stuart Mill: “A direct tax is one which is demanded from the very persons who it is intended or desired should pay it.” That person is clearly identified … as the ultimate consumer of the gasoline; there is no passing on of the tax to others, whatever may be the opportunities of recouping the amount of the tax by other means (a very different thing).30

An issuer is likely in the same position regarding the tax on Visa’s services as the airlines were regarding the gasoline tax. The issuers rely on Visa’s service when they issue credit cards and provide credit, but Visa’s services are merely another, albeit important, input consumed by the issuer in providing credit cards just like fuel is an input consumed in providing air travel. The issuer is therefore the final consumer of Visa’s services; the tax is not indirect even if the issuers set higher interchange fees to recover the cost of the tax, and even if they cannot recover that cost through an input tax credit because their own supply of credit card services is an exempt supply.

Does It Matter if It Is Indirect?

If the tax on Visa’s services were indirect, the provinces could not impose it themselves. But the GST, and the HST, are federal taxes, not provincial taxes, so the constitutional distinction between a direct and indirect tax is irrelevant.

The provincial portion of the HST is legally imposed by and paid to Canada under s. 165(2) of the ETA. However, Canada and each participating province have entered a sales tax harmonization agreement under the Federal-Provincial Fiscal Arrangements Act 31 where the province agrees to Canada imposing a particular rate in its province under the ETA and agrees to harmonize its tax base with Canada’s so that HST is collected on the same things. Canada agrees to administer the tax and remit the province’s share under the formula agreed to with the province.32 The agreement is implemented by Canada collecting HST under the ETA.

Even if the tax on Visa’s services were an indirect tax, participating provinces could still benefit by participating in the HST regime.

CONCLUSION

You may curse the surcharge the next time you buy skis. You may even try to pay with gold nuggets to avoid it. But do not challenge the constitutionality of the tax lurking in the background. And maybe say “no” when the bank offers to upgrade your basic card from 20 years ago.

ENDNOTES

1. The 2017 settlement of class action lawsuits against the major PCNOs—Visa, Mastercard, etc.—forced them to allow Canadian merchants to add surcharges to credit card payments, starting October 6, 2022. Previously, the PCNOs’ Canadian terms of service prohibited surcharges. See Cindy Y Zhang, Guillaume Talbot-Lachance & Luca Vita, “Credit Card Surcharges in Canada: What You Need to Know”, Borden Ladner Gervais (10 November 2022), online: <www.blg.com/en/insights/2022/ 11/credit-card-surcharges-in-canada-what-youneed-to-know>. See also Visa, Annual Report 2022 (2022) at 29 [2022 Visa Annual Report], online: <s29.q4cdn.com/385744025/files/doc_down loads/2022/Visa-Inc-Fiscal-2022-Annual-Report. pdf>.

2. Excise Tax Act, RSC 1985, c E-15 [ETA].

3. Canada, Department of Finance, Budget 2023: Tax Measures: Supplementary Information (2023) at 45, online: <www.budget.canada.ca/2023/pdf/tm-mf2023-en.pdf>; Canadian Imperial Bank of Commerce v Canada, 2021 FCA 10 [CIBC].

4. 2022 Visa Annual Report, supra note 1 at 17–18.

5. CIBC, supra note 3 at para 17.

6. ETA, supra note 2, s 165(1).

7. Ibid, s 165(2).

8. Ibid, s 123(1).

9. Ibid, s 165(3).

10. Ibid, s 123(1).

11. Input tax credits, a refund of the GST paid on inputs, can only be claimed based on the proportion of supplies made by the claimant that were in the course of “commercial activity”. This excludes the makers of exempt supplies, or at least excludes the portion of their activity that is making exempt supplies like financial services rather than other, taxable supplies. See ETA, supra note 2, ss 141.01, 141.02, 169, 225(1).

12. ETA, supra note 2, Schedule V, Part VII.

13. Financial Services and Financial Institutions (GST/ HST) Regulations, SOR/91-26, s 4(1).

14. Ibid

15. 2022 Visa Annual Report, supra note 1 at 18–19.

16. Visa, “Visa Canada Interchange Reimbursement Fees” (April 2021) at 5, online: <www.visa.ca/content /dam/VCOM/regional/na/canada/Support/ Documents/visa-canada-interchange-rates-april2021.pdf>.

17. Canada, Financial Consumer Agency of Canada, “How Card Payments Work: Overview for Merchants” (February 2017), online: <www.canada.ca /en/financial-consumer-agency/services/merchants /overview-card-payment.html>; Canada, Financial Consumer Agency of Canada, “Glossary: Payment Card Industry” (October 2022), sub verbo “merchant discount rate”, online: <www.canada.ca/en/ financial-consumer-agency/services/merchants/ glossary.html#mdr>.

18. Visa, Visa Core Rules and Visa Product and Service Rules (15 October 2022) at 357–61, 900, online: <www.visa.ca/content/dam/VCOM/download/ about-visa/visa-rules-public.pdf>.

19. Consumer Protection Act, CQLR c P-40.1, s 224(c).

20. ETA, supra note 2, s 123(1), sub verbo “financial service” (“any service provided pursuant to … any agreement relating to payments of amounts for which a credit card voucher … has been issued”). See also Canada Revenue Agency, “ABM Services”, GST/HST Info Sheet GI-006 (December 2006), online: <www.canada.ca/en/revenue-agency/ services/forms-publications/publications/gi-006/ services.html>.

21. Ibid

22. CIBC, supra note 3.

23. Ibid at para 63.

24. Supra note 3.

25. Canada Revenue Agency, ”Application of the GST/HST to Credit Card Surcharges”, GST/HST Info Sheet GI-200 (March 2023), online: <www.canada. ca/en/revenue-agency/services/forms-publications /publications/gi-200/application-gst-hst-creditcard-surcharges.html>.

26. Calgary (City) v Canada, 2012 SCC 20 at paras 35–36.

27. The Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91(3).

28. Ibid, s 92(2).

29. Peter W Hogg, Constitutional Law of Canada, 5th ed (Scarborough: Carswell, 2007) at 858.

30. Air Canada v British Columbia, [1989] 1 SCR 1161 at 1186.

31. RSC 1985, c F-8, Part III.1.

32. See e.g. the Comprehensive Integrated Tax Coordination Agreement Between the Government of Canada and the Government of Prince Edward Island, signed in November 2012.

ADDRESSING INDIGENOUS CULTURAL SAFETY IN THE LEGAL PROFESSION

By Christopher McPherson, K.C.

In 2015, the Truth and Reconciliation Commission of Canada released its report and 94 Calls to Action to further reconciliation with Indigenous peoples.1 To date, only 13 Calls to Action have been completed. Three crucial Calls to Action that seek to create equity for Indigenous peoples in the legal system—50, 51 and 52—remain in progress.

The importance of ensuring Indigenous cultural safety within the legal system cannot be overstated. The legal system has devastating effects on Indigenous claimants and communities when their safety is not prioritized. Motivated by the need to acknowledge the Law Society of British Columbia’s role in perpetuating the colonial legal system, we established the Indigenous Engagement in Regulatory Matters (“IERM”) Task Force in 2021 to review our processes and make recommendations to improve our ability to effectively engage, address and accommodate Indigenous complainants and witnesses.

The IERM Task Force drafted a report2 that contains key recommendations to address systemic barriers experienced by Indigenous complainants and witnesses, and proposes solutions to establish and maintain culturally safe and trauma-informed regulatory processes. The recommendations include taking steps to build relationships, gain trust and become more proactive in preventing harm to the public, particularly Indigenous individuals. Benchers unanimously approved the recommendations at their July 2023 meeting and the Law Society has begun the process of implementing them.

In addition, the Law Society created the Indigenous Intercultural Course3 in 2022 in response to Call to Action 27, which called on law societies to create skills-based training for lawyers in Indigenous intercultural competency, conflict resolution, human rights and anti-racism. This free course, which is mandatory for all practising lawyers in British Columbia, provides information about the history of Indigenous-Crown relations, the history and legacy of residential schools and how discriminatory legislation and policies imposed on Indigenous peoples created the issues that the Law Society of British Columbia seeks to address.

The course has received feedback about the positive impact it has had on lawyers and law firms, as well as valuable suggestions for improvement. However, the majority of B.C. lawyers have still not completed it. We urge those who have not completed the course to take the time to go through the materials and reflect on the role that reconciliation plays in their own legal practice, as soon as possible.

The legal profession still has a long way to go when it comes to repairing the harm caused by colonialism, including the discriminatory laws and policies that have been imposed on Indigenous peoples. We at the Law Society are hopeful that, by following the recommendations of the IERM report, boosting lawyer competency through the Indigenous Intercultural Course and continuing to make learning, cultural safety and reconciliation a priority of the organization, we can work toward a safe, equitable, supportive and inclusive legal system in British Columbia.

ENDNOTES

1. For further background, see “Truth and Reconciliation Commission of Canada”, online: <www.rcaanccirnac.gc.ca/eng/1450124405592/1529106060 525#chp2> and “Delivering on Truth and Reconciliation Commission Calls to Action”, online: <www. rcaanc-cirnac.gc.ca/eng/1524494530110/1557 511412801>.

2. Online: <www.lawsociety.bc.ca/Website/media/ Shared/docs/publications/reports/Indigenous EngagementTF-2023.PDF>.

3. For more information, see Law Society of British Columbia, “Indigenous Intercultural Course”, online: <www.lawsociety.bc.ca/support-and-resources-forlawyers/professional-development/indigenousintercultural-course/>.

CHANGES IN THE B.C. PROVINCIAL COURT MAY SURPRISE YOU

By the Honourable Chief Judge Melissa Gillespie

When courts reduced operations in 2020 to protect court users and staff from COVID-19, the Provincial Court of British Columbia was determined that its response to the pandemic be not just timely and effective, but also enduring. The intense pressures of the pandemic prompted us to re-think the way the court operated while it required government to accelerate its Digital Transformation Strategy. The resulting advances our court has made and their lasting impact on access to justice may surprise you!

PREVENTING INCREASED BACKLOGS

Among the Provincial Court’s most notable achievements is coming out of the pandemic without significant escalation of our case backlog. In March 2022, our overall provincial weighted1 time to trial delays were generally similar to 2019’s pre-COVID-19 rates, although some individual court locations did experience increases, which we addressed with early judicial appointments for anticipated retirements.

VIRTUAL FRONT-END PROCEDURES

One of the ways the Provincial Court avoided crippling backlogs was by modifying and expanding front-end procedures to support early resolution in criminal, civil and family cases. During the pandemic, we used Microsoft Teams to conduct virtual case conferences. When health measures limiting in-person proceedings resulted in some trials being adjourned, we were able to assign those judges and court staff to increase the number of frontend conferences being held.

These virtual conferences provided flexibility and improved access to justice, including for vulnerable people, those in remote communities and those self-isolating due to COVID-19. Convenient and cost-saving for many litigants and lawyers, they also enabled the court to use judicial resources effectively since a judge located anywhere in British Columbia could preside virtually. Because of virtual conferences’ positive impact on access to

justice, we have made attending them remotely the default method of attendance, subject to a judge ordering otherwise.

In criminal cases with trial time estimates of a certain length,2 a judge meets virtually with both counsel for a pre-trial case management conference to determine if an early resolution is possible and, if not, what admissions might be made to make efficient use of court time. Results indicate these conferences have led to a high file resolution rate, thereby saving many days of trial time and reducing delays.

Small claims settlement and trial conferences were converted from inperson to virtual proceedings in May 2020. Although remote attendance continues to be the default method of attending these conferences, parties can apply to appear in person.3 Documents for conferences can be submitted by e-mail.

EARLY RESOLUTION OF FAMILY LAW ACT CASES

Perhaps most exciting is a new approach to resolving family disputes in British Columbia. In 2015, the Provincial Court began collaborating with government, legal organizations and an organization assisting litigants on changes to the Provincial Court Family Rules4 designed to reduce the stress of family separation. These changes incorporated a new family-centred approach called “the Early Resolution and Case Management Model” (abbreviated below as “Early Resolution”). It was implemented in Provincial Court in Victoria in 2019, in Surrey in 2020 and province-wide with regional variations in 2021.

The new approach uses Justice Access Centres to provide separating couples with information, a needs assessment and referrals to meet both legal and non-legal needs before they file an application. It includes at least one consensual dispute resolution session, except when that is not appropriate for reasons including a history of family violence.

When applications proceed to court, the parties’ first appearance is no longer in a busy courtroom. Instead, they attend a virtual Family Management Conference with a judge who can help define disputed issues and make interim and case management orders. While these conferences sometimes resolve all legal issues, they are designed to stabilize a family’s situation until major issues can be resolved.

Evaluation in Victoria showed that as a result of participating in Early Resolution services, sixty-nine per cent of families did not need to proceed to court to resolve legal issues. Results were similar with different modes of delivery in Victoria: services were delivered in person in 2019 and then virtually due to COVID-19. Even though Victoria and Surrey have very different demographics, the results were also similar in Surrey, the province’s

busiest courthouse. The families who do proceed to court have often narrowed their issues, enabling their case to be managed more expeditiously.

Work is underway to expand this approach to more court locations. As Early Resolution reduces the number and duration of cases needing hearings, the court can shorten wait times for those that do, reducing stress for those families too. By helping families resolve issues sooner, the Early Resolution approach makes families healthier, reduces future conflict, reduces the adverse childhood experiences related to parental separation and decreases costs for our justice and health systems.

STREAMLINED FAMILY COURT PROCEDURES

Rules changes have streamlined family court procedures. New Provincial Court Family Rules contain simplified forms and provisions to facilitate filing documents and setting dates by e-mail (and when technology permits, by eFiling). Amendments to the Provincial Court (Child, Family and Community Service Act) Rules allow e-mail service and filing and enable the chief judge to set default methods of attendance.

The court has established an electronic process for dealing with applications for consent orders and case management orders not requiring notice or attendance. A judge anywhere in British Columbia may receive an application by e-mail from a court registry via a judicial case manager. The judge can consult the digital case file, communicate with the registry by e-mail and sign any order made electronically.

This system saves considerable time and expense for counsel and litigants and reduces barriers to accessing the court. In the first eight months of 2022, the Provincial Court received 2,513 electronic desk order applications. Lawyers have reported filing and obtaining a consent order in one day without leaving home!

VIRTUAL BAIL HEARINGS

At the beginning of the pandemic, the court began using a virtual “hub model” to centralize daytime bail hearings in the province. Over time, the court developed technology and a process stream to conduct bail hearings remotely. This combination became known as “virtual bail”.

In April 2021, the court piloted the new process in the Northern Region. Instead of interrupting trials in smaller court locations so the judge could conduct bail hearings for recently arrested people, these bail hearings were conducted virtually by a judge assigned to bail hearings in a larger courthouse. In the virtual bail model:

• Crown counsel assess the charges and conduct hearings in virtual bail courts;

• duty counsel is assigned to each virtual bail court; and

• everyone appears remotely using Microsoft Teams.

Teams channels were created to facilitate communication between sheriffs, clerks and counsel.

Since early evaluation was positive, the model has been expanded to the Interior and Vancouver Island Regions5 with variations to suit regional needs. Having the judge, lawyers and accused person appear virtually at bail hearings appears to be:

• reducing accused people’s displacement from their own communities;

• reducing overnight remands in police cells;

• reducing travel for sheriffs, prisoners and lawyers;

• reducing interruptions to previously scheduled trials and reducing the number of continuations, particularly in locations without a daily bail court, thereby reducing trial delay; and

• increasing access to Crown and duty counsel and other resources.

The court’s judicial justices also conduct virtual bail hearings for individuals in police custody in every region of British Columbia during evenings and weekends.

The court is currently considering implementing a hybrid bail model in the Lower Mainland in which some participants could attend remotely.

ELECTRONIC ACCESS TO PROVINCIAL COURT RECORDS

Judges can access pleadings, orders and court summary sheets in civil and family matters and informations, clerks’ log notes and records of proceedings in criminal files on their computers. They can also access digital audio recordings of court proceedings. In collaboration with others, the court has worked to provide digital file access to lawyers and media.

During the pandemic, the court worked with the Court Services Branch to establish a procedure enabling accredited media to access audio recordings of court proceedings and the court records to which they are entitled using the BC Secure File Transfer Service (“SFTS”). This electronic access has continued.

In addition, the court has worked with government and the Law Society to permit lawyers to access Provincial Court family files digitally. The Law Society uses the BC Wallet app to issue digital credentials enabling lawyers

to access these court records on a new Access to Court Materials (“ACM”) platform. Lawyers can now review court files without having to attend a courthouse or make a request to the court registry. The program is being expanded so lawyers can access some Provincial Court adult criminal court records digitally as well.

OTHER TECHNOLOGICAL ADVANCES

Judicial justices adjudicate traffic, ticket and bylaw cases at court locations throughout British Columbia. The court worked with the B.C. government on the development of Understand My Ticket, a user-friendly, online selfresolution tool launched in 2021 to help people decide how to deal with violation and contravention tickets. Using step-by-step guided pathways, it lets people explore information anonymously.

Currently, initiatives are underway to create online tools for some traffic court functions, including a digital case file, an option to file a dispute online, e-mailed hearing date notices and a desktop allowing judicial justices to adjudicate requests for time to pay and fine reductions electronically when they do not require an in-person hearing.

Judicial justices also deal with applications for search warrants, production orders and other judicial authorizations at the court’s Justice Centre. Criminal Code amendments in January 2023 (Bill S-4) expanded the avail-

Elder Art Wilson created this mural for the Hazelton Indigenous Court

ability of telewarrants. Use of SFTS to replace faxed or hand-delivered warrant applications enables the Justice Centre to deal more efficiently with increased volume. Submitting applications digitally enables police agencies to save time and expense.

COLLABORATION WITH COMMUNITIES

The Provincial Court opened Indigenous sentencing courts in Williams Lake in 2020 and Hazelton in 2021. We now have eight Indigenous sentencing courts as well as an Aboriginal Family Healing Case Conference Court that conducts child protection case conferences in a culturally safe environment with support for Indigenous families in the Greater Burnaby area.

Since the Provincial Court opened its first Indigenous Court in 2006, continuing outreach to Indigenous communities has supported reconciliation and worked to reduce over-representation of Indigenous peoples in the criminal justice system. We are currently working with Indigenous and broader communities to establish a new Indigenous Court in Lillooet and a circuit court sitting in Ahousaht.

In other measures intended to contribute to reconciliation, the Duncan First Nations Court moved to a building in the Cowichan First Nation community this spring, courts have closed for the National Day for Truth and Reconciliation, and the Provincial Court has participated in a variety of Indigenous ceremonies celebrating Indigenous Courts’ anniversaries and other events.

In 2021, the Provincial Court added an Integrated Court in Kelowna to its other specialized courts: the Drug Treatment Court of Vancouver, the Downtown Community Court in Vancouver, and the Victoria Integrated Court. These courts modified their procedures to continue operating during the pandemic, but were able to resume full operations and expand programming in 2022.

COMMUNICATIONS

The Provincial Court has an active Twitter account and a plain language website featuring a bi-weekly blog. Following us on @BCProvCourt and subscribing to eNews are great ways to keep up-to-date with the court.6 We also publish a robust annual report7 that includes statistics on the court’s caseload and operational performance and on appointees’ demographics. (The Judicial Council of British Columbia’s annual report8 includes statistics on applicants’ demographics.)

In 2021 we collaborated with LegalListening.com to produce a series of podcasts of some of our most popular eNews blog posts. In 2022 we

launched A Judge Explains, a series of videos featuring judges explaining what to expect and how to prepare for a variety of family and small claims conferences and Indigenous Court proceedings.9

Our 2022 communications activities also included collaborating with Courthouse Libraries BC to present an interactive webinar to more than 200 frontline service providers, advocates, librarians, law students, lawyers and others on supporting self-represented litigants in Provincial Court.10

The court’s continuing commitment to accessibility and transparency was recognized when we received the 2022 Canadian Law Blogs Award (“Clawbie”) for the Best Multi-Platform Presence. The Clawbies judges commented:

In the notoriously reserved world of courts, the Provincial Court of BC has long been a trailblazer when it comes to accessibility and transparency online.…

Today, the Provincial Court of BC offers a wide variety of resources in various mediums and on multiple platforms, to reach people wherever they are. Content is created not just to educate, but to interest and engage (e.g., “What podcasts do you listen to, Judge?”; “Why did Provincial Court judges draw lots to decide municipal elections?”)

The Court’s website and other public materials are written with the principles of plain language in mind. From its robust website to its eNews service (previously a Clawbies winner), to its friendly and approachable Twitter account @BCProvCourt, podcasts in partnership with Legal Listening, and videos on Vimeo, the Court embraces new types of content, formats and mediums. When it comes to online presence, courts everywhere would do well to take a page from the Provincial Court of BC’s book.

WHAT THESE CHANGES MEAN FOR LITIGANTS, LAWYERS AND JUDGES

In Provincial Court family matters, Early Resolution is helping parents and children by reducing the impact of adversarial proceedings on their wellbeing. Our Indigenous Courts contribute to reconciliation and reducing the over-representation of Indigenous people in jails.

The Provincial Court’s increased use of technology has improved access to justice for many litigants. As a result of the expansion of the court’s virtual activities, a judge’s daily work is not finished until the court’s work is finished province-wide. When the work in their own courthouse finishes, a judge will appear virtually to assist with matters in other courthouses. This improves access to justice by reducing adjournments due to lack of court time.

Virtual appearances can reduce cost and inconvenience for litigants, saving them travel and childcare expenses and time lost from work. Virtual

attendance and digital access are also convenient for lawyers, reducing travel and wait time and enabling them to increase efficiency and represent clients in more B.C. communities. Greater access to counsel improves access to justice in many communities, especially those with few resident lawyers.

However, the court does recognize that many litigants still face barriers to remote attendance, and we continue our efforts to ensure that technological advances offer flexibility and do not leave anyone behind.

We also recognize that our increased use of technology has demanded rapid acquisition of new skills by lawyers, judicial justices and judges. I appreciate and applaud the openness and flexibility of the members of the bar and judicial officers who have supported the court in making these changes to increase British Columbians’ access to justice.

I am also grateful to the government departments, other organizations and individuals who have collaborated with the court to achieve these advances in access to justice. The work has often been complex and intense as we have come together to achieve shared goals for the benefit of the public.

Finally, as the chair of the Judicial Council of British Columbia, I invite qualified lawyers inspired by the court’s work to apply for appointment as a judge or as a part-time judicial justice. Information and application forms are available on the court’s website.11

ENDNOTES

1. Time to trial information is collected at the court location level. It is then weighted using each location’s caseload. This is done at both the regional and the provincial level. For example, if a location has fifty per cent of its region’s caseload and eleven per cent of the provincial caseload in a given division, their results are multiplied by 0.5 during the calculation of the regional weighted time to trial, and by 0.11 when calculating provincial weighted time to trial.

2. Two or three days, depending on the court location. See Practice Direction CRIM 12, which sets out the court’s expectations for counsel’s preparation and decision-making authority, online: <https://www. provincialcourt.bc.ca/downloads/Practice%20 Directions/CRIM%2012%20Criminal%20PreTrial%20Conferences%20During%20COVID-19. pdf>.

3. Practice Direction SM CL 02, online: <https://www. provincialcourt.bc.ca/downloads/Practice%20 Directions/SM%20CL%2002%20Small%20Claims% 20Proceedings%20During%20COVID-19.pdf>.

4. Provincial Court Family Rules, BC Reg 120/2020.

5. Practice Direction CRIM 14 sets out directions for regionally centralized virtual bail in the Northern, Interior and Island Regions. See online: <https:// www.provincialcourt.bc.ca/downloads/Practice% 20Directions/CRIM14.pdf>.

6. Subscribe to eNews, online at <https://www.provin cialcourt.bc.ca/enews>, and follow the court on Twitter at <https://twitter.com/BCProvCourt>.

7. See online: <https://www.provincialcourt.bc.ca/ news-reports/court-reports>.

8. See online: <https://www.provincialcourt.bc.ca/ judicial-council>.

9. These videos are available on the court’s website, <www.provincialcourt.bc.ca>, and Vimeo channel: <https://vimeo.com/681969080>.

10. Ibid

11. For the appointment of judicial justices, see online: <https://www.provincialcourt.bc.ca/about-thecourt/judicial-officers/appointment-judicialjustices> and for the appointment of judges, see online: <https://www.provincialcourt.bc.ca/aboutthe-court/judicial-officers/judges-court>.

WISH WITHOUT PRECEDENT*

By Jan Crerar

The client—Riley Milford Whitby, a 30-year-old Sagittarius according to his driver’s licence—settled into his chair and sipped from the water glass I handed him. He looked like five miles of bad road: pale, shaky and stressed beyond endurance. Pungent odours of stale sweat and sour alcohol drifted from his grubby work clothes. I waited, trying to guess whether this was an impaired or a refusal.

“I need some advice on making a contract. A really important contract I can’t mess up … again.”

I nodded politely. “OK, I could maybe help with that. What kind of contract?”

Riley leaned forward and dropped his head into his hands. “You’re the fifth lawyer I’ve seen today.”

Frequent flyer! Strike one.

“You’re gonna call me crazy and kick me out of your office too.”

Strike two! I said nothing.

“OK here goes: it’s a magic contract. With a genie. There, I said it.”

Strike three—that’s the inning and the ball game, folks!

I nodded and mentally ran through my options: ask more questions, talk a little and humour the guy, try to elicit his psychiatrist’s name, grab my purse and bolt for the door …

Then a large figure materialized in the second client chair, next to Riley, with a puff of electric blue smoke.

“You called, Riley?” the figure smirked, baring sharp pointed teeth. “Heard you say ‘genie’ and as you know, your wish is my command … ”

“No! No, I did not call you!”

“Is it your wish that I leave then, Riley?”

“No! That is not my wish,” Riley said, quite precisely.

“Smart boy. You even lawyered up, how unusual.” The genie scooched around in his chair to prop up his big feet on my desk, pointy slippers and

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

all: immaculate, studded with sparkling gems and gold thread. “Then I’ll amuse myself, listening while you try to weasel out of your mess. This oughta be good.”

I may be a seasoned lawyer now, but I have never forgotten the fairytales I read in childhood. Clearly extreme courtesy, combined with exquisite care, was required here.

“Mister Genie, we haven’t met. My name is Ms. Elizabeth Sprink, and apparently I will be assisting Mr. Whitby. How do you prefer to be addressed?”

“Call me Brian, Ms. Sprink” the genie grinned. “You don’t expect me to offer my real name, do you?”

I smiled, because Elizabeth is not my real name either. “Whatever makes you comfortable, Brian. Can we all agree that Mr. Whitby shall be allowed to instruct me so I can get up to speed, without you construing anything he says as a wish?” The genie nodded and made an ironic “by your leave” gesture, his hands studded with dazzling, ornate jewelled rings.

Riley quavered, “Last week, my life was fine, until Darla told me she wanted to settle down, get married and have a family. But she said I would never stop partying long enough to get it together for that, so she had to move on. But we could be friends, huh.” I silently handed him the Kleenex box.

“I knew I had to make some good money, show her I’m serious. Next day, I was rooting around in my grandad’s old shed—he’s been gone ten years now, he left the family place to me because my dad doesn’t farm—looking for stuff I could take to the vintage store for the tourists. There were these harnesses with horse brasses, and some other brass ornaments, and one of them was a lamp. I’m shining them up with a Mr. Clean Magic Eraser … ”

Both the genie and I grimaced.

“And … uh, Brian appears and tells me I get three wishes, but there’s rules.”

“Which are?” I turned to the genie, who rattled off: “No wishing for more wishes, can’t raise the dead, can’t have eternal life, can’t become an individual other than yourself and can’t change the natural order of the world, the universe or humanity. So world peace or stopping global warming is out, capiche? And you scratched the hell out of my oldest lamp and stripped the finish, idiot!”

“Yeah, sorry,” said Riley absently. “So I thought for a while, and then I asked for a real moment where I stand with $5 million in my pocket while Darla tells me she will love me passionately for the rest of her life.” I grunted.

The genie scoffed, “Thereby attempting to combine two wishes into one, oh greed-head human, but I allowed it because I knew it would be fun.”

“Fun! You’re the worst.” Riley whimpered, fumbling a pack of cigarettes from his pocket. Catching my headshake, he dropped it on the desk.

“The next day, I bought a lottery ticket, checked it online that evening and sure enough, it won $5.2 million. I was smart and didn’t cash it—just put it in my back pocket for now. I bought flowers and a bottle of wine, went home, did the chores and cleaned up, and drove over to Darla’s with some steaks for the barbecue. I didn’t even tell her about the ticket, just told her how sorry I would be to lose her and she’s the best thing I’ve ever had in my life. I told her I would do anything to make the farm pay and support her and a couple kids, if that would make her happy.”

“And?” I was hooked, leaning forward over the desk all hopeful.

“She kissed me and told me she would always love me and … uh, some personal stuff. I grilled up the steaks, we had a really nice supper, and … some other personal stuff, and it was all wonderful! Then early the next morning I left to drive home and feed the horses—”

“—And Darla’s porch went up! BOOM! It was epic!” chortled the genie, nearly knocking Riley out of his chair. Catching my horrified expression, he shrugged. “Doofus here didn’t shut off the gas line to the grill, and Darla went to light a mosquito coil. Simmer down, Ms. Sprink, it didn’t kill her. Just put her into a permanent coma! Wherein she would never stop loving Mr. Whitby, oh haha!”

“You’re evil!” wailed Riley, throwing up his hands. “While I was driving home, my cousin texted me about the explosion on Darla’s road, and I was so distracted trying to pull a U-turn that I T-boned the short-bus for a daycare—”

“—Aw, come on, I didn’t kill them either! What do you think I am, a monster?” the genie interjected. “Don’t look at me like that, Ms. Sprink.”

Riley nodded bitterly. “They weren’t killed. But they were scared and hurt. And the lawyer I saw once Darla was in the hospital, he told me that because I forgot to renew my driver’s license, ICBC could void my insurance and the accident damages would come out of my pocket, and take all of that $5 million plus my farm and everything else I have. All gone, and those hurt kids, and Darla in a coma forever … geez, I nearly lost my mind. So I rubbed the lamp for Mister Meanie Genie here, and I made my second wish.”

I tensed. “Okay, what was it?”

“To re-set time, back to when I found the lamp. Like I saw in a movie.”

“Groundhog Day?” I couldn’t resist asking.

“No, Live Die Repeat. Best action movie Tom Cruise ever made. Hardly anybody saw it, but it’s epic. Anyway—”

“—Nonsense! What about Mission Impossible III, moron! THAT was his action masterpiece,” scoffed the genie.

“Compared to Mission Impossible: Fallout? Not a chance,” I chirped.

“Anywayyyy,” Riley repeated, “That’s what I asked for, nice and simple. He didn’t like it, but he did it for me. The lamp is out in my truck, no point buying a ticket and Darla is expecting me to grill a steak for her tonight.”

The genie snorted again. “Yeah I did it, although time-rewind is a complex feat, and you were a simple-minded putz to ask for it. But that’s okay, you will screw up royally again, and this time there’s no out. So go ahead Riley, put on your thinking cap—try to satisfy all your desires in yet another spectacularly awful cluster … wish.”

Riley looked insulted. I said, “Brian, you don’t sound very happy in your work.”

The genie slumped. “Gotta tell you, I am so sick of human greed. Mortals made me the way I am today: bitter and completely pitiless. You’re the worst.”

I made a smoothing gesture with my hands. “Can I just clarify a few things here? First, Brian, why didn’t you just blow up Mr. Whitby with the barbecue? End it all?”

“He has outstanding wishes. Also, I’m not a total jerk.”

I nodded. “OK. Also I’m guessing you’re not allowed to murder people?” I got a curt nod in return.

“Now, you make wishes come true as directly as possible? Say I wish for Thor’s hammer—it arrives, attached to a furious Thor?” Another nod.

“Alright, thank you kindly for your courtesy Brian. I’d like to consult with Mr. Whitby in private now.”

“What? No! He hired himself a devil’s advocate! I wanna see you do your thing—well, at least try and fail miserably. Come on, throw me a bone!”

I stood up and said “Sorry, but I insist. We both know that your kind have been overreaching humans for millennia—immortal against mortal, a completely stacked deck. Unconscionable. The least you can do is let him think in private.”

The genie sniffed, snapped his fingers and vanished: chartreuse smoke, that time.

I turned to Riley. “OK Mr. Whitby. Let’s talk about what you really want.”

Some time later, for lack of a better idea, I rapped my knuckles on my desk and announced to the ceiling, “This is a good time for Mr. Brian the Genie to return to us, if he is at liberty.”

Poof! Another puff of smoke, cobalt blue shot with purple this time, and the genie reappeared making shushing motions with both hands: really big hands with long, wickedly pointed nails. I shushed. He touched a Bluetooth in one ear.

“The wasp is only half-dead, madam.” He made a moue of irritation, and made rolling motions with one hand.

“Madam. You wanted to fly around on a magical creature and be able to eavesdrop on your ex and his family. I made that happen for you. You said nothing about a unicorn or invisibility or multiple days, so that’s on you …

“Well I’m not a mind-reader. Yes, I shrank you to the size of a housefly, and bewitched a murder hornet for your steed. The devil’s in the details, but you got your wishes …

“Yes, you do have a third wish coming, which I do owe you. Perhaps you should actually give that one some careful thought. Summon me when you’re ready.”

The genie ended the call with a quick tap and the Bluetooth earpiece disappeared.

“Sorry, the usual pointless wisher’s remorse and whining. Never mind. Riley, time to see whatcha got. Go ahead man, shoot your shot. Lemme guess: happiness, love, chocolate fountains, swimming with dolphins, children’s laughter, Superbowl rings and all the other stupid jazz you think will make your sorry life worthwhile. I’m all ears.”

And indeed his large, pointed ears rotated towards Riley like NORAD radar dishes. Riley looked terrified.

“Brian, please,” I said. “Mr. Whitby’s doing his best. He doesn’t have your advantages of immortality and experience acquired over thousands of years. He has considered what is important to him in this one lifetime, which is all we get, so please don’t mock his dreams.”

“Dreams, eh. Well, I call it jazz. But fine, here we go. Lay it on me.”

Riley cleared his throat nervously and read from the paper I had typed and printed with his instructions. “I, Riley Milford Whitby, wish to be … transformed … into my very best self, as defined to include without limitation: possessing adequate but not excessive self-esteem; restored to perfect health, with no craving for any substance that is harmful or self-sabotaging; openhearted, grateful and glad for what I have, without being a smug jerk about it; engaged in a lifelong career of good, worthwhile work that pays enough to comfortably feed, shelter and educate myself and my family and maintain our farm for the next generation; and possessing curiosity, intelligence and the reasonable hope of improvement, enlightenment and wisdom within my natural lifespan .”

The genie was gobsmacked. After a few seconds he jutted his chin forward. “Wait. What about Darla? Don’t you want to command her love eternally?”

Riley teared up. “Well yes, I mean no, I want to earn it.”

The genie shook his head, amazed. “What about riches? Fame? Playing a screaming axe onstage with Guns N’ Roses? Babes in bikinis cooing adoringly while you crush the final level in your game? Three billion YouTube followers? A warehouse full of sports cars? Watching your enemies be humiliated and forced to clean your yacht?” He lowered his voice conspiratorially. “A barn FULL of shiny new John Deere equipment? Come on buddy, juice this up—you don’t get any more chances here!!”

Riley shook his head. “That’s all just crap and craft glitter. The way my first wish worked out, I know that money won’t last, and you’ll find a way to mess me over on exterior stuff, which leaves me. Darla’s right, I’m the problem. So I want a new improved me. That’s what I want. The other stuff—if it’s really important, I can make it happen.”

The genie shrugged, looking genuinely perplexed. He said, “Mind if I see that?” and perused Riley’s sheet for a long minute.

“Alrighty then. Brace yourself.” The genie muttered some exotic words and pointed at Riley, who wavered and transformed into … Olympic Riley: perfectly fit and toned, with magnificent posture and gleaming, even teeth. Alert, relaxed and just glowing with vitality and intelligence. He was wearing a crested “Whitby Organic Farms Ltd.” polo shirt, and a huge emerald signet ring.

Riley’s eyes widened. “A magic ring too?!”

The genie snapped, “No, dummy! Sell it so you can get a diamond for Darla, and a new truck. Call it a wedding present. You’re welcome.”

I smiled and said, “Walk over and renew your driver’s licence, Riley. Right now.” …………….

After Riley had left, the genie turned to me. “How much you gonna bill Mr. Clean, there?”

I laughed. “Um, nothing. Call it a wedding present.” The genie laughed. I added, “Listen, sorry if you felt outnumbered there.”

“Not at all. Have to say, this one worked out pretty good for a change. You got a card? I can think of a couple referrals … ”

So that’s how I got a fist-bump and some goodwill from a genie. And these magnificent slippers. Turns out that some fairytales … aren’t.

FURTHER ADVENTURES OF A DEPUTY JUDGE OF THE YUKON*

By the Honourable Marion Allan, K.C.

In 1990, at some summer legal function in Vancouver packed with judges and lawyers, a lawyer friend told me her father, Hank Maddison, was the senior judge of the Yukon Supreme Court: “He is here tonight. Do you want to meet him?” “Oh, yes” I quickly replied and, after the intro, maneuvered myself into the chair next to him at one of the dinner tables. He was a gracious and congenial dinner companion. I learned that there were two Yukon Supreme Court justices, resident in Whitehorse, supplemented by justices from the Northwest Territories and Nunavut and two or three dozen deputy judges appointed from superior courts across Canada. At the end of the meal, Judge Maddison said that if I wanted to be appointed as a deputy judge, he would ask Ottawa to make that appointment. That is what I wanted, and that is what he did. For several years, I sat once or twice a year in Whitehorse on civil matters, and once I presided in the curling rink in Watson Lake on a memorable sexual assault criminal trial with a jury.

As I prepared to sit in Whitehorse for the first time, in the fall of 1990, it occurred to me that I knew more about the chief judge than he knew about me. In 1986, a beautiful, light, modern building in Whitehorse had been completed. It was split into two blocks—government offices on one side, and Supreme and Territorial courtrooms on the other—divided by a high, airy atrium filled with healthy green foliage. From the start, Judge Maddison took umbrage with the Yukon Minister’s characterization of the edifice as the “Territorial Government Building, with a wing set aside for courtrooms to be known as the Law Courts”. Judge Maddison believed strongly that judicial independence, which must both exist and be seen to exist, required a sharp physical division between the courts and the government. Indeed, he ordered a walkway across the atrium (now called “the bridge to nowhere”) joining the two sides to be permanently walled up.

* Longtime readers may recall that the author also chronicled certain Yukon-based adventures in “Reflections of a Deputy Judge of the Yukon Sitting in Watson Lake, August 1994” (2014) 72 Advocate 31. An updated version of those Watson Lake adventures—too good not to repeat here—starts on the fourth page of this article.

Tensions percolated until the “Crest Affair”. When the Law Courts opened in July 1986, each courtroom featured a large Yukon coat of arms on the wall behind the presiding judge’s chair.1 In September 1986, Judge Maddison ordered the crest removed and refused to preside over his cases until it was. What happened next is not clear. Either Judge Maddison threw his judicial robes over the crest to shroud it or a visiting deputy judge threw a barrister’s black gown over it. Chaos erupted in the judiciary, the government, the Law Society, the press and the public. (At present, the Royal Arms of the United Kingdom grace the wall behind the presiding judges in the Yukon Supreme Court courtroom and the Yukon Court of Arms is present in the Territorial Court courtrooms.)

Whitehorse is a beautiful northern city, supported by both federal and territorial funding. Judges are lodged in a large suite on the fourth floor of a nearby hotel. Good restaurants, bakeries and Indigenous crafts abound. If you pause and look like you might want to cross the street, vehicles halt half a block away.

On my first trip, I arrived on a Sunday, settled in, looked out my window at the crisp fall leaves on the trees and decided to walk in the woods by the river. When I returned an hour or so later, I commented on the fact that I saw no one in the forest. “Oh, yes,” said the hotel receptionist, “that would be because no one walks there this time of year when the bears are all fishing in the river to get ready for hibernating.” Ah, yes, now I remember. I heard the same admonition last October in Smithers when I walked the path along the river to Telkwa by myself and turned a curve only to meet a dreadful smell and an enormous pile of steaming bear poop on the narrow path

The first night, I was invited to the chief judge’s home for dinner. Anne, one of the guests, a local lawyer, told me that the next day, I would have to call a young lawyer to the bar. I was aware that in small communities, a judge would perform the ceremony for a single lawyer-to-be.2 But, she added, in Whitehorse, the judge must also make a short speech in one of the Indigenous languages. “You can choose which one you prefer.” Oh my God, she is handing me half a dozen samples of speeches. I returned to the hotel and tried to master the words, which to my tongue were impossible. The next morning, I said to the chief judge: “I have chosen this small speech. I hope I can pronounce the words properly.” He looked at me with a puzzled expression and then laughed. “Oh, she was just teasing you. No one thought you had taken it seriously.”

Later that day, Heino Lilles, one of the Territorial Court judges,3 told me that if I wanted to go hiking after court one day and avoid bears, he and his dogs would take me for a long walk. The next day, I changed into jeans and

a heavy jacket and off we went. We walked up a mountain that was almost bare—a few shrubs, lots of gravel, almost no trees.

After a couple of hours, I had to use a bathroom, but I couldn’t see anything on the landscape to hide behind and crouch. Remarkably, we turned a corner, and there was an outhouse sitting by itself in the middle of some rubble. Wow! I do not believe this. A miracle! I excused myself and stepped inside. The lid on the toilet was down. I cautiously lifted the lid and, to my horror, the bowl was full of rats scrambling over each other. I raced out the door screaming. Heino’s eyes were open wide, as was his mouth, and his dogs started barking loudly. “Rats! Rats! Rats!” I shouted as he quickly turned his back and calmed his dogs. He then walked away with the pups while I peed behind the outhouse. To my delight, Heino did not share this incident with his fellow judges.

Later that week, I was looking at the list of chambers applications and lawyers that I would be hearing that day and I recognized the name of a woman lawyer I had gone to UBC with in the early 1960s. I was not surprised because I had heard that she and her husband were practising law in Whitehorse. That afternoon, the clerk called her client’s case and she stood up—an older (not surprising) and very much fatter (very surprising) version of the Flora I had known. At the lunch break, my clerk said: “Mrs. W says she went to school with a Marion Allan but she said that can’t be the judge—she is way too old.”

Bite your tongue. Do not state the obvious.

The next day, my clerk told me that Elvis might be on my court list. “Elvis?” I laughed.

“Yes, Elvis Presley. He’s a singer.”

I laughed again. “I know. He’s been dead for many years.”

“Well, he sings, he calls himself Elvis Presley and he dresses like Elvis. We call him Whitehorse Elvis. He realized he was the king of rock and roll when a spacecraft zapped him with a beam of light in 1986 and he legally changed his name to Elvis Aaron Presley.”

“Does he come to court to sing?” I asked.

“No, he is driving us crazy with his frivolous lawsuits. After getting into an argument with a neighbour, he was convicted of uttering threats. Presley then sued for millions of dollars, claiming his reputation had been damaged. After his case was dismissed, he appealed and sued for more millions of dollars. Presley has sued police officers, lawyers, local judges, the media, the RCMP Complaints Commissioner and the Solicitor General of Canada. The local judges can’t hear his applications, so we put them on the lists of the deputy judges.”4

Fortunately, or unfortunately, I did not have the opportunity to set eyes on the legendary Yukoner.

Friday arrived and I made my way to the airport, unaware that a good number of passengers, including loggers and miners, would be Friday Night Drunk before they got onto the plane. I had an aisle seat next to two jolly red-faced men in red ball caps who were yelling loudly for more drinks to be served. I sat primly on my seat, in my silk white blouse, black wool suit and high heels, hoping to avoid conversation. I was not thinking of my proclivity as a magnet for small disasters. After about half an hour, my drunken companion in the next seat poured his glass of rum and coke into my lap, through my skirt and into the seat under me. “Oops,” he said. “Can I buy you a drink?” “No!” I leaped up, aware that I was dripping from my nether regions, and asked the attendant for a towel. “Oh,” she said, “We don’t have any cloth towels for passengers. If you go to the toilet, you will find paper towels. Take as many as you want.” Paper towels do not clean black wool without leaving sticky little beige paper pieces on the front of my skirt. I put masses of paper towels on my soaking seat, which added sticky little beige paper pieces to the back of my skirt. After finally deplaning and collecting my luggage, I met my husband who wrinkled his nose and laughed: “You smell like you just fell out of a Whitehorse saloon!”

Once I was comfortable sitting in Whitehorse, I was given the opportunity—or challenge—to preside over a criminal jury trial in Watson Lake, Yukon in 1994.

Watson Lake is a very small town (population less than 800) located on mile 635 on the Alaska Highway. The first challenge is getting there from Whitehorse, 455 kilometers away. I arrived at the Alkan hangar at the Whitehorse airport very early in the morning to board a slick little six-seater Piper Chieftain with the court clerk, the court reporter and a victim services worker. What would become obvious during the trial was that none of us were Indigenous, but all the players were: the accused, the complainant (who would become the “victim” only if the accused was convicted), all of the witnesses, most of the jurors and all of the “audience”.

For more than an hour, we flew over mountains, lakes and trees. No roads, no houses, no settlements. The court reporter commented that she had flown over the Pacific to tiny islands in Micronesia dozens of times, and it was a lot scarier looking down at nothing but water. Are you kidding? I would sooner drown quickly and quietly than land safely on a mountain, then slowly freeze to death and be eaten by bears. The flight was blessedly uneventful. The next day, I called a colleague who said the only thing she knew about Watson Lake was that it was the scene of a famous air crash. Well, I have the whole week to worry about the return flight.

I had been booked into a “hotel” in Watson Lake—a shabby wooden building, whose management required that all outside doors be locked 24/7. My neighbour across the hall introduced himself as Joe, said he was too hot, opened his bedroom door and propped open the security door at the end of the corridor. The front desk immediately phoned me to interrogate me and scold me for opening the door and ignoring security concerns. I pled not guilty and squealed like a rat on Joe. Why do all the damn doors have to be locked at all times? What sort of security concerns does management foresee?

I tried to relax, but the refrigerator in the kitchen next to the bedroom was chronically unbalanced and louder than the Piper Chieftain’s engines. Ok, if I just bang it around a bit and stuff the bathroom floor mat under one side, I can keep it quiet for half an hour at a time.

The “hotel” would sit right on the Alaska Highway were it not for a buffer zone provided by the “Sign Post Forest”. The forest consists of more than 20,000 signs, mostly road signs of towns and cities all over the world giving the distances to each location. The signs were attached to trees and posts spread out over a couple of acres.5 Apparently, an American soldier was sent up to work on the construction of the Alaska Highway in 1942. He became homesick and wistfully erected a signpost of Danville, Illinois with the miles to his hometown and the idea caught on and has never stopped.

The trial would be held in the gym of the Community Recreation Centre, a huge, cavernous building clad entirely in corrugated iron boasting a vivid mural on one side. The entire structure appeared to be dedicated to the sport of curling. The judge’s “chambers” were a small storage cupboard in the corner of the lounge that overlooked the curling rink. The desk was covered

with several curious articles: a snow shovel, several light bulbs, gardening gloves, two Husky hats (one chartreuse and one hot pink), a crib board made from a moose’s antler, new uninscribed trophies in an old “Nutty Club” carton, and a plastic box of pink and aqua ping pong paddles. I moved the treasures to one corner of the small room on top of a mound of paper boxes and garbage bags. The second corner was occupied by a case of broom bags and empty bags from Home Hardware. An odd metal structure, presumably essential to some aspect of curling, leaned into a third corner. The walls sported the Canadian Curling Rules and a newsletter “On the Rocks”.

The Watson Lake setup was not what I was accustomed to in Vancouver: a posh chambers with real furniture, a private bathroom and a robing area. A large window overlooking the public lounge discouraged enrobing or disrobing. I would be sharing the public toilets, with three tiny cubicles all too small to change in, with all the female witnesses, counsel and jurors. I decided that I had to dress like a judge in my “hotel” and make my way to the curling rink, flapping my robes like a crow.

To get from my “chambers” to the “bench”, I had to walk through the main gym behind and past all the court participants, scramble down a narrow passage in front of the jurors’ chairs and up a set of wobbly stairs to my desk on the stage. My bench was a table draped in a forest green tablecloth that I seemed to kick out in front each time I crossed my legs. But I soon found out that I had to keep both feet planted firmly on the floor to prevent my chair from rolling backwards across the linoleum into the piano that sat open two feet behind me. I have never played the piano, so why am I fantasizing about twirling around and running my fingers up and down the keyboard the proceeding? I had to stifle a giggle when I remembered the Gary Larson cartoon I put in the front of my bench book on my first day: a large elephant is playing the piano in a concert hall and his little bubble reads: “What am I doing here? I am a flautist for heaven’s sake!” (Was there ever a female judge without “imposter syndrome” on their first day in court?)

Court should start at 10:00 a.m., but at 9:55 on the first morning, there were only 15 potential jurors. The sheriff complained that he had sent out 150 jury notices compelling attendance, but everyone was running on “Yukon time”. By 10:10, about 100 people had drifted in. Although half of them were Indigenous, several were excused because they were related to or knew the complainant or the accused or both. The charge was sexual assault, and the accused was described variously by the witnesses as the uncle or second cousin of the complainant. After a lengthy jury selection process, the 12-person jury did contain three or possibly four Indigenous men and women and an Indigenous foreman was selected at the last possible moment.

The next morning, I got up early and walked the 2.5 km trail around the lake shore in Wye Lake Park. I saw no one and concluded that the good burghers of Watson Lake had better things to do at 7:00 a.m. than walk briskly in a circle. When they felt the need for exercise, no doubt they wrestled large animals or went curling. When I got to court, the staff said no one walked there in the mornings in August because the bears were out feeding on the berries.

Two days later, the sheriff told me a bear had been sighted in town the day before and two bear traps had been set.

The evidence proceeded efficiently: 11 witnesses in two days—two for the Crown and nine alibi witnesses for the defence. Each day, the complainant and the victim services worker sat together by themselves on one side of the spectators’ seating, and a large contingent of the Indigenous community, including the complainant’s family, was packed into the other side. My clerk told me that whether the accused was convicted or acquitted, the complainant would not be welcomed back to the community. I am beginning to understand the powerful and lasting impact of residential schools on Indigenous children and their families, but it will take many years to unpack all the implications of those experiences.

Sleep was difficult each night—remember to pack ear plugs when sitting out of town. On the first two nights, there was a small window of opportunity to sleep between 1:00 a.m. when a loud live band playing western music badly shut down and 5:00 a.m. when a contingent of large trucks revved their engines a few feet from my bedroom window.

On the third day of trial, counsel made their submissions to the jury as to whether the accused should be found guilty or not guilty, and I gave my charge outlining the evidence and the applicable law. The jury deliberated for two hours before returning a verdict of “not guilty”. They were obviously undeterred by the accused’s criminal record, which was entered by the defence(!) as the only exhibit in the trial. His record disclosed 23 convictions between 1985 and 1991, albeit none for sexual assault. The jury was also undeterred by the fact that some of the evidence of the nine alibi witnesses was blatantly contradictory. When the foreman announced the verdict, the Indigenous community burst into applause.

I went to dinner with the court staff at the only restaurant in town with tablecloths. The waitresses greeted us with a cheery announcement: they were out of meat, chicken and fish. Notwithstanding the enforced vegan tone of dinner, the evening was hilarious, and I learned that Watson Lake was the most hospitable posting on the circuit outside Whitehorse. Ross River, a.k.a. Lost Liver, and Old Crow seemed to be the least hospitable destinations. In Old Crow’s accommodation, the judge is assigned one bedroom

and the court staff share three bunks in a second bedroom regardless of their gender. All provisions, including food and bedding, must be brought in. There was no transportation because the RCMP believed they would be compromised if they transported counsel, the judge or the court staff the eight blocks to the place where court is held. The court clerk was faced with the daunting challenge of transporting the court briefcases, the exhibits and everything necessary for the trial in temperatures of -45°C. Her solution was to get a toboggan to load it and tug in through the snow. On one occasion she had to transport four rifles. Everything was so cold and slippery that the guns kept falling off the sled, so she stuffed two rifles under each armpit, faced front, tied the toboggan’s rope around her waist, and set off.

On another occasion, in Pelly Crossing, the two accused were in custody and closely guarded by two RCMP officers. During the trial, a murder occurred in the house next to the courthouse and the officers, who were paged, rushed out of the courtroom. The judge quickly called an adjournment and departed. The clerk was left with the vexing problem of what to do with the prisoners. She locked them in a small room and told them to stay there. It turned out that there was another door in their room, which was unlocked and led to the judge’s chambers, but the prisoners obeyed her and stayed where they were until court reconvened.

On the last night, another live band, louder than the first, and much worse, struck up at 10:30 p.m. and “played” through until 3:00 a.m. The lead “singer” invited audience participation and, presumably, being increasingly under the influence of strong drink, the audience grew ever louder and less melodic.

The next day, we flew back to Whitehorse. While we were waiting in the Alkan hangar, we learned that a Cessna 170 had just made an emergency landing on the North Klondike Highway outside Whitehorse, and then steered into a ditch to avoid the heavy holiday traffic. Undeterred, we boarded our older and smaller Piper Chieftain. Our flight was unusually turbulent but happily all of us had nerves of steel and stomachs of iron and we arrived in Whitehorse in time for a real dinner.

ENDNOTES

1. Unlike courts in many other Canadian provinces that display the provincial coat of arms, all the courts in British Columbia continue to display the Royal Arms of the United Kingdom, the official coat of arms of the British monarch.

2. In Vancouver, hundreds of articling students may be called to the bar in a large ceremony in the Great Hall of the Law Courts. A single judge presides as the baby lawyers and their friends, family and colleagues grin from ear to ear. (This does not generally occur in a courtroom!)

3. Territorial Court judges are the equivalent of Provincial Court judges in British Columbia.

4. In 2003, Supreme Court Justice Ted Richard made an order banning Presley, “a serial litigant”, from filing any more frivolous lawsuits. He characterized Presley’s lawsuits as a vexatious abuse of the court’s process and his affidavits as “mostly rambling gibberish”.

5. There are now over 80,000 signs in the forest.

THE CROWN’S DUTY TO DETERMINE, RECOGNIZE AND RESPECT ABORIGINAL TITLE

PART I – EXISTENCE OF THE DUTY

By Tim Dickson

Anyone broadly familiar with Aboriginal law and the history of human settlement of this province knows that a significant amount of the land base must be subject to Aboriginal title. Yet very little of that Aboriginal title has been formally recognized, with the result that the Indigenous Nations who hold those titles continue to be denied their benefits.

In this article, I argue (in very brief form) that the Crown has a duty, arising from its assertion of sovereignty in 1846, to determine, recognize and respect Indigenous peoples’ ownership of their lands, which continued after 1846 as Aboriginal title. While such a duty is contemplated in the Supreme Court of Canada’s jurisprudence—particularly in Haida Nation v. British Columbia (Minister of Forests)1—it has been eclipsed by the duty to consult and has since drawn little attention.

I argue that discharging the Crown’s duty to determine was necessary from the outset for the Crown to avoid illegally dealing with land in which it lacked beneficial ownership, and it is necessary now to advance the Crown’s reconciliation with Indigenous peoples.

THE CURRENT LACK OF RECOGNITION OF ABORIGINAL TITLE

In 2004, in Haida, the Supreme Court of Canada recognized the Crown’s duty to consult and accommodate Indigenous peoples. That duty, grounded in the broader doctrine of the honour of the Crown, arises where Indigenous peoples have asserted claims to Aboriginal rights or title or to treaty rights and those rights may be adversely affected by a government decision. The court summarized its reasoning this way:

[25] Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties.

Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982 The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests. [Emphasis added.]

The duty to consult has become enormously consequential for Indigenous Nations, government and industry, particularly by fostering far greater inclusion of Indigenous Nations in the governance and economic benefits of their lands. But the duty is also limited. While the duty extends to claims that have yet to be proved or accepted, the corresponding rights have so far been confined mainly to participation in a process where the Crown retains the ultimate decision-making power. The result can be unsatisfying on all sides: Indigenous Nations with very strong claims are denied the substantive force that would come if their rights had been proved or accepted in a treaty, and the Crown (and, in practice, industry) must often consult with a wide range of Indigenous Nations, including some with only tenuous claims.2

It is apparent from the quotation above that the Supreme Court of Canada’s expectation in 2004 was that Indigenous Nations’ claims would not forever remain in the limbo state of being merely asserted. Rather, the court clearly and forcefully affirmed that “[t]he honour of the Crown requires that these rights be determined, recognized and respected”.

In the almost two decades since Haida, however, that project of determining, recognizing and respecting Aboriginal title has made very little progress.

One avenue to determining Aboriginal title is by judicial declaration, which, under current practice, is sought by an Indigenous Nation in an action to which the province and Canada are respondents. But such litigation presents an extraordinarily daunting prospect. After Delgamuukw ended in a mistrial, the Supreme Court of Canada’s granting of a declaration of Aboriginal title in Tsilhqot’in was anticipated to open the door to further determinations of Aboriginal title. So far it has not. Few title claims have been taken to trial since. The Cowichan Tribes trial—concerning a relatively small piece of federally owned land on Lulu Island (Richmond) and fishing rights at the mouth of the Fraser River—perhaps suggests why. The evidentiary portion of the trial has lasted over 450 days and has resulted in approximately 50 interlocutory judgments on procedural and evidentiary matters.3

Cowichan Tribes may be an extreme case, but the trend is for trials over Aboriginal title to be among the longest in B.C. history.4 The evidence is complex and, despite recent directives from Attorneys General to their lawyers,5 the federal and provincial governments generally continue to oppose Aboriginal title claims with great vigour. The resulting costs for running the litigation are enormous. While the Supreme Court of Canada’s recent decision in Anderson v. Alberta 6 may signal greater openness to advance costs where a litigant is impecunious and the litigation is of overarching importance, it remains an exceptional situation, and accordingly the sheer cost of Aboriginal title litigation is prohibitive for most Indigenous Nations.

Litigation through the courts appears unlikely to resolve many Aboriginal title claims, let alone the majority of them.

The other avenue for such resolution to date has been negotiations, mainly by way of treaties, through which Indigenous Nations’ rights to land and self-government are spelled out and constitutionally protected in exchange for the governments obtaining certainty over the limits of those rights. As seen in Haida, the Supreme Court of Canada has strongly encouraged governments and Indigenous Nations to negotiate, instead of litigating. In Delgamuukw, for instance, while sending the case back for retrial, Chief Justice Lamer urged that it is through negotiated settlements that reconciliation will be achieved. He closed with the famous line, “Let us face it, we are all here to stay.”7

The difficulty is that, as any reader of Getting to Yes8 knows, what drives a negotiated settlement is the judgment by each party that it is a better outcome than their likely alternative. Even though the governments may seek to negotiate honourably and in good faith, if there is little threat that an Indigenous Nation will litigate their Aboriginal title claims, then there is little incentive for the governments to raise their offers to achieve a settlement. The governments’ BATNA (best alternative to a negotiated agreement) is that they maintain control of the land base, subject to the duty to consult.

Unsurprisingly, this imbalance has resulted in very few final agreements since the BC Treaty Process was established in the early 1990s. To date, just eight modern treaties have been finalized in British Columbia.9 A variety of factors have contributed to that relative lack of progress. One is that the negotiations intentionally do not address the question of which Indigenous Nations historically occupied a given area.10 While this arrangement has the benefit of removing initial barriers to Indigenous Nations wishing to enter negotiations, it has caused intractable overlap disputes between them, with-

out any clear mechanism for resolution.11 It also tends to sideline Indigenous Nations’ substantive claims to Aboriginal title, which likely contributes to what many Indigenous Nations view as the inadequacy of government negotiators’ mandates, particularly as it comes to land; on average, the “treaty settlement lands”, over which the Indigenous Nation gains control, comprise less than five per cent of their traditional territory.12 In recent years the federal and provincial governments and the First Nations Summit (representing Indigenous Nations in the treaty process) have sought to reinvigorate the process in various ways, but it appears unlikely many treaties will result as long as the structural imbalance remains.13

This relative lack of recognition of Aboriginal title is objectionable from the perspectives of both social justice and public policy. But that is not the issue addressed here. Rather, this article’s narrower thesis is that this situation is inconsistent with the Crown’s constitutional obligations arising from the honour of the Crown, as contemplated in the Supreme Court of Canada’s established jurisprudence.

THE CROWN’S DUTY TO DETERMINE ABORIGINAL TITLE

The honour of the Crown is a “core constitutional precept” that arises “from the Crown’s assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people”.14 The purpose of the doctrine, as stated by the Supreme Court of Canada, is “the reconciliation of pre-existing Aboriginal societies with the assertion of Crown sovereignty”.15 To that end, the doctrine charges the Crown with specific duties in specific circumstances, including the duty to negotiate with Indigenous Nations in good faith, 16 the duty to consult Indigenous Nations before adversely impacting even unproved Aboriginal and treaty rights,17 and a fiduciary duty where a specific Aboriginal right or interest has been established.18

Although mentioned less frequently in the jurisprudence, there is another duty inherent in the honour of the Crown, as observed in Haida: “The honour of the Crown requires that these rights be determined, recognized and respected.” In R. v. Desautel, Justice Rowe for the majority put it this way: “The honour of the Crown requires that Aboriginal rights be determined and respected…”.19 And most recently, in the constitutional challenge to Bill C-92,20 the Quebec Court of Appeal elaborated that “the honour of the Crown requires governments to delineate [s. 35] rights so they can be implemented in a tangible way”, given that “refusing to delineate these rights can result in the de facto denial of their very existence or, at the very least, make them ineffective or inoperative”, and “[r]equiring long and

costly litigation prior to recognizing an Aboriginal right can have the same effect.”21

This duty on the Crown to determine, recognize and respect Aboriginal title—what could be termed the duty to determine, for short—has received little attention from the courts or commentators, which is surprising given how fundamental the duty is to the reconciliation project. Section 35 “serves to recognize the prior occupation of Canada by Aboriginal societies and to reconcile their contemporary existence with Crown sovereignty” and give “effect to rights and relationships that arise from the prior occupation of Canada by Aboriginal societies”.22 Unless the boundaries of Aboriginal titles can actually be enforced, then s. 35’s purpose cannot be fulfilled and the reconciliation project will fail.

The purpose of the duty to determine is to ensure that does not occur. Anchored in established doctrines of Aboriginal law, the duty obliges the Crown to establish effective, legitimate processes by which Aboriginal title is identified and respected.

THE NEED TO AVOID ILLEGALITY

Aboriginal title is recognizable and enforceable under Canadian common law and constitutional law, and yet it has its source in Indigenous Nations’ legal orders that predate the Crown’s assertion of sovereignty. When the Crown asserted sovereignty over British Columbia in 1846, the then-existing rights of Indigenous Nations to occupy and control their lands were not erased in the eyes of the common law. They instead were received by the common law and continued as Aboriginal title. That is the essential revelation in the famous Calder case: “the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means”.23

It is, of course, possible to imagine a colonial legal regime that refused to recognize the pre-existing land rights of the Indigenous Nations. But for a variety of reasons, including considerations of both justice and expediency,24 that is emphatically not the approach British imperial law took. As Chief Justice McLachlin set out in Mitchell: European settlement did not terminate the interests of aboriginal peoples arising from their historical occupation and use of the land. To the contrary, aboriginal interests and customary laws were presumed to survive the assertion of sovereignty, and were absorbed into the common law as rights, unless (1) they were incompatible with the Crown’s assertion of sovereignty, (2) they were surrendered voluntarily via the treaty process, or (3) the government extinguished them. Barring one of these exceptions, the practices, customs and traditions that defined the various aboriginal societies as distinctive cultures continued as part of the law of Canada.25

But while Indigenous Nations’ rights were presumed to continue after the assertion of British sovereignty, the corresponding presumption in the jurisprudence is that jurisdiction over the land and ownership of its underlying title vested in the Crown.26 It is the collision of those two outcomes in British imperial law—i.e., Crown sovereignty and ownership of the “radical” title,27 but subject to continuing Aboriginal title based on prior occupation and Indigenous law—that gives rise to the honour of the Crown and the duty to determine.

One reason the duty arises is that, with its presumed ownership of the land, the Crown could provide for the transfer of ownership to settlers. In British Columbia, that was done with great enthusiasm, first mainly through pre-emptions and then later through Crown grants, mineral claims and leases, forest tenures and other authorizations for natural resource extraction.28 But where Indigenous peoples’ preceding control of land translated into Aboriginal title and that title remained unsurrendered and unextinguished, the Crown lacked beneficial ownership of that land and was in no position to purport to transfer rights in it to settlers. The rule that one cannot give what one does not have (nemo dat quod non habet) applies equally to the Crown as it does to anyone else.

One of the foundations supporting the duty to determine, then, is the Crown’s responsibility not to act illegally, according even to its own legal system,29 by assuming it had rights in the land it did not actually have. The rule of law, which requires that all government action comply with the law,30 demanded that the Crown squarely face the reality of Aboriginal title so it could act within the bounds of its own law. That law supplied options for the Crown in dealing with Indigenous Nations’ titles, the most obvious of which was to recognize and respect those titles, and only assume ownership rights to land clearly not burdened by them. The Crown could also treat with the Indigenous Nations in order to define and demarcate those titles, as it did with the handful of “Douglas treaties” on Vancouver Island. And last, according to the Supreme Court of Canada’s jurisprudence, an emanation of the Crown with the necessary jurisdiction31 could extinguish Aboriginal title by specific legislation, although that was a card no settler government in Canada was ever willing to play given the moral and political consequences, including potential civil unrest.

What was not a legal option for the Crown—again, according to its own law—was simply to ignore the existence of Aboriginal title and pretend it did not burden the Crown’s underlying title. In order legally to provide for European settlement by granting rights in land to settlers, the Crown had to determine where Aboriginal title existed so it could avoid granting rights to land that was not its to give.

Of course, the Crown did not undertake any such determination. Instead, despite recurring debates about how to answer the “Land Question”, the Crown (particularly the provincial Crown) largely chose to ignore Aboriginal title and to deal with the land base as if through the alchemy of its assertion of sovereignty it had obtained beneficial ownership over all of it.32 But the Crown’s failure to fulfill the duty to determine does not mean it was not subject to that duty. What it means instead is that the Crown’s control of the land base is de facto—as the Supreme Court of Canada has noted more than once33—as opposed to de jure.

THE NEED FOR LEGITIMATION

These problems with the legality of the Crown’s control of the land in turn present serious problems of legitimacy. As the Court observed in the Secession Reference, a viable political system not only requires a legal foundation, but it also requires legitimacy, and “[o]ur law’s claim to legitimacy also rests on an appeal to moral values, many of which are imbedded in our constitutional structure”.34

Since 1846, the perverse unfairness to Indigenous peoples of the Crown’s failure to determine and recognize their rights has only sharpened in focus. Increasing settlement has deprived Indigenous peoples of the use of more and more of their land, leading (along with other contributing factors, such as residential schools) to intergenerational poverty, trauma and cultural loss.

At the same time, and particularly since the 1970s, our legal and political rhetoric has increasingly recognized the need to protect Aboriginal title. The entrenchment of s. 35 in 1982 promised “a just settlement for aboriginal peoples”.35 Our case law now spells out the existence of Aboriginal title (Calder) as well as the test for proving it (Delgamuukw and Tsilhqot’in), and the Supreme Court of Canada has once found it to have actually been proved (Tsilhqot’in). Parliament and British Columbia’s Legislative Assembly have directed their respective governments to take measures to achieve the objectives of the United Nation Declaration on the Rights of Indigenous Peoples, which, among other things, commits us to providing “effective redress” for Aboriginal title lands that have been stolen.36 And in meetings in broader society we regularly acknowledge that in British Columbia we reside on unceded Indigenous lands.

Yet, because of the factors discussed above, only a very small amount of land in British Columbia has been subject to determinations of whether Aboriginal title exists or not, and what the boundaries are. That gap between what our law and politics call for in theory and what has been recognized in practice poses a real challenge to the legitimacy of the Crown’s

continued assumption of jurisdiction and control of the land base. It has been understood since Delgamuukw in 1997 that a substantial amount of land in British Columbia must be subject to Aboriginal title. Yet in almost every case, except for the Tsilhqot’in and the few B.C. Indigenous Nations that have signed treaties, the Aboriginal title we know must be out there exists only in the shadowland of asserted claims, as opposed to established rights. All the while Indigenous Nations are deprived of the economic and social benefits of their lands, perpetuating unconscionable disparities in socio-economic outcomes and feeding well-founded grievances.

And why? Largely because the Crown presumed it took control of the entire land base in 1846. The Crown has not established processes to determine the existence and boundaries of Indigenous Nations’ Aboriginal titles based on their historical occupation, with the result that Indigenous Nations have had to turn to the courts for that determination—where the onus of proof falls on them, the Crown denies their claims, the procedural and evidentiary rules are based on Canadian common law, and the effort and cost of the litigation are so enormous that few Indigenous Nations can pursue their claims.

The question we must ask ourselves is whether the continuation of this scenario is honourable—whether it is legitimate—given our contemporary legal, political and moral values and understanding. I believe most of us would say no—that somehow we must find a more effective process for determining Aboriginal title. Such an alternative process would need to be, at a bare minimum, accessible, timely and fair. Above all, it would need to be co-developed by Indigenous Nations as equal partners in order for the process to be legitimate. While the Crown bears the duty to ensure Aboriginal title is determined, recognized and respected, an honourable and credible process of determination cannot be undertaken unilaterally, but would necessarily depend on the confidence and partnership of the Indigenous Nations whose titles were at issue.

In Part II, I will offer some thoughts on how that might possibly be done.

ENDNOTES

1. Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73.

2. David Rosenberg, KC and I wrote of some of the limits of the current state of consultation in “Mapping Aboriginal Title in British Columbia, Part I: The Need for Transformative Change” (2016) 74 Advocate 505.

3. At the time of writing, final argument in Cowichan Tribes has not concluded.

4. Delgamuukw v British Columbia , (1991) 79 DLR (4th) 185 (BCSC) was a 374-day trial and resulted in a mistrial. Tsilhqot’in v British Columbia, 2007 BCSC 1700—the only successful title claim to date—lasted

339 days. See also 2014 SCC 44. The Ahousaht fishing rights trial proceeded in two stages (2008 BCSC 1494 and 2018 BCSC 633), totalling 270 days. An exception to this trend is the Nuchatlaht title claim (2023 BCSC 804), which took only 54 days. Ultimately, however, the court found in that case that the evidence did not show sufficient occupation of the entire claim area to establish Aboriginal title; the court invited the Nuchatlaht to pursue a title declaration over smaller sites within the claim area.

5. See British Columbia’s directive at <news.gov.bc.ca/ files/CivilLitigationDirectives.pdf> and Canada’s at

<www.justice.gc.ca/eng/csj-sjc/ijr-dja/dclip-dlc pa/litigation-litiges.html>.

6. Anderson v Alberta, 2022 SCC 6.

7. Delgamuukw v British Columbia , [1997] 3 SCR 1010 at para 186.

8. Roger Fisher, Getting to Yes: Negotiating Agreement without Giving In (Boston: Houghton Mifflin, 1991).

9. Seven through the BC Treaty Process, plus the Nisga’a Final Agreement, which was negotiated outside that process.

10. See “The Report of the British Columbia Claims Task Force” (28 June 1991), at 7–8, online: <www.bc treaty.ca/sites/default/files/bc_claims_task_force_ report.pdf>. The report set out recommendations that formed the basis of the BC Treaty Process.

11. Douglas Eyford, “A New Direction: Advancing Aboriginal and Treaty Rights” (2015), online: <www. rcaanc-cirnac.gc.ca/eng/1426169199009/1529 420750631>.

12. Judith Sayers, “Aboriginal Title in British Columbia Examined Under the New Liberal Agenda”, Yellowhead Institute (5 June 2018), online: <yellowhead institute.org/2018/06/05/aboriginal-title-inbritish-columbia-examined-under-the-new-liberalagenda/>.

13. In 2009, in admitting a petition brought by the Hul’qumi’num Treaty Group, the Inter-American Commission on Human Rights (“IACHR”) concluded that neither litigation nor the BC Treaty Process constituted an effective process to protect their rights. See the IACHR’s Report No. 105/09, at paras. 37–41, online: <www.cidh.oas.org/annualrep/2009 eng/Canada592.07eng.htm>.

14. Manitoba Métis Federation Inc v Canada (Attorney General), 2013 SCC 14 at para 66 [MMF]; Haida, supra note 1 at para 32.

15. MMF, supra note 14 at para 66.

16. Ibid at para 73.

17. Haida, supra note 1 at paras 20 and 25.

18. Ibid at para 18; MMF, supra note 14 at paras 49–50.

19. R v Desautel, 2021 SCC 17 at para 30 [Desautel].

20. An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24.

21. Renvoi à la Cour d’appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis, 2022 QCCA 185 at paras 443–44.

22. Desautel, supra note 19 at para 31.

23. Calder v Attorney-General of British Columbia , [1973] SCR 313 at 328, per Judson J. Later judgments, particularly Delgamuukw and Tsilhqot’in , clarified that Aboriginal title is a sui generis legal concept, defined by both the common law and the law of the relevant Indigenous Nation.

24. See, for instance, the comments of Professor Slattery quoted in MMF, supra note 14 at para 66. See also

John Borrows, “Sovereignty’s Alchemy: An Analysis of Deglamuukw v British Columbia ” (1999) 37 Osgoode Hall LJ 537 [“Sovereignty’s Alchemy”], where he notes that Indigenous peoples in British Columbia far outnumbered the settlers even when British Columbia joined Confederation in 1871.

25. Mitchell v MNR, 2001 SCC 33 at para 10 [Mitchell] [citations omitted].

26. Ibid at para 9.

27. The term “radical title”, used in Delgmamuukw, supra note 4 at para 52, is appropriate: it is a radical notion that the Crown gained the underlying title to British Columbia merely through its assertion of sovereignty in 1846.

28. The classic text in this regard is Cole Harris’s Making Native Space: Colonialism, Resistance, and Reserves in British Columbia (Vancouver: UBC Press, 2002) [Making Native Space].

29. I stress in this article the boundaries of legality of the Crown’s own legal system because the problems of legitimacy raised by the Crown’s transgressions of those boundaries are so glaring. A full consideration of this question of legality and legitimacy, however, would also need to assess the Crown’s conduct according to the legal orders of the Indigenous Nations whose lands the Crown presumed to own and control.

30. See, for instance, Reference re Secession of Quebec, [1998] 2 SCR 217 at para 72 [Secession Reference].

31. That is, one of the colonies before British Columbia joined confederation in 1871, or the federal government following 1871, but excluding the Province of British Columbia, for which such legislation would be ultra vires as being legislation in relation to “Indians, and Lands reserved for Indians”: Delgamuukw, supra note 7 at paras 179–80.

32. Making Native Space, supra note 28 at 13–22, 96–98, 152–53, 216–18, 224–28.

33. Haida, supra note 1 at para 32; Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74 at para 42; MMF, supra note 14 at para 66; Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40 at paras 21 (per Karakatsanis J) and 57 (per Abella and Martin JJ). And see the recent comment in Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc., 2022 BCSC 15 at para 198.

34. Secession Reference, supra note 30 at para 67.

35. R v Sparrow, [1990] 1 SCR 1075 at 1106.

36. United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 and Declaration on the Rights of Indigenous Peoples Act , SBC 2019, c 44. Also notable is that the federal Act states that protection for Aboriginal rights is “an underlying principle and value of the Constitution of Canada”.

THE WINE COLUMN

By Michael Welsh, K.C.*

I’ve always believed that competition is good for consumers and good for business.

—Jimmy Pattison Competition sparks excellency.

—Lorne Greene

DO THE MEDALS MEAN ANYTHING?

If you go touring wineries and buying wine—which, living in the Okanagan, I do more often than is healthy for my wallet—you will see numerous wine award plaques and medals emblazoned on nearly every wineshop wall. Awards are given in competitions to the winners. So how can they all be winners? Are those competitions meaningless? And most importantly for you as a consumer, if every winery is winning at least a few awards, how do you decide which ones are making the better wines?

Of course, most wineries love winning medals, because like getting high scores from wine critics, they are an external validation of the quality of their wines. And they hope you believe it. Not all wineries enter competitions, though. Some do not feel the need as they have built their reputation, and perhaps others fear not being judged among the best. It would be a slap in the face for some of the most famous wines (say Château Margaux or a Penfolds Grange) if they were not picked as the cream of the crop.

* 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.

Wine competitions abound, and like wines themselves, those competitions come in different levels of size and scope. As I write this column we have just gone through another season of wine awards—in British Columbia the Lieutenant Governor’s Wine Awards (“BCLGWA”), nationally the All Canadian Wine Competition (“ACWC”) and the WineAlign National Awards of Canada (“NWAC”), and internationally the Decanter World Wine Awards (“DWWA”), International Wine Challenge (“IWC”) and International Wine & Spirits Competition (“IWSC”) among others. At the 2021 DWWA, 18,094 wines were entered, from 56 countries. As you can expect, the larger the pool of wines from these various wine regions, the less Canadian wine rises to the top (if it is even entered).

On those rare occasions where a local wine reaches that international apex, that winery’s trajectory upward is set. The two most often noted Canadian examples are the startling (for 1994) win by Mission Hill Family Estate of the Avery Trophy for “Best Chardonnay Worldwide” at the IWSC, and in 1991 when Iniskillin’s 1989 Vidal icewine was judged at Vinexpo in Bordeaux and won its highest award, Le Grand Prix d’Honneur. Local wineries do continue to compete internationally and some do very well, winning gold, silver and bronze medals, which is still a feat on that large a scale of competition, although none have risen to those earlier dizzying heights.

Wine competitions are also not a new phenomenon although they have grown exponentially in number. There is a notable poem written in 1224 by Henry d’Andeli called “The Battle of the Wines” (La Bataille des Vins), about a famous wine tasting organized by the French king Philip Augustus. The king, who preferred wine for breakfast rather than anything else, sent messengers to collect white wines (over 70, which the poet enumerates in detail) from across Europe, and in particular France, Spain, the Mosel region and Cyprus. The wine judge was an English priest, who clearly had greater interest in imbibing than in proselytizing. The priest classified the wines he tasted as either “Celebrated” for those which pleased him or “Excommunicated” for those that did not meet his standards. In the end a sweet wine from Cyprus (widely believed to be Commandaria, and still produced) won the overall tasting and was awarded the supreme title of “Apostle”. It is dessert wine for a breakfast “buzz”: an interesting start to a day.

And that brings me to the main point of how to make sense of wine competitions. Deciding how much stock to put in their outcome should be based on the professionalism of the organization that selects the judges, sets up the competition and confers the awards. With smaller regional competitions, historically those standards were not always met and at times are still not. One issue is that the smaller the competition, the smaller the pool of

decently qualified judges. However, even with competitions that are B.C.and especially Canada-based, greater care is now taken to have highly qualified judges and to use the same professional protocols used at the international competitions. For instance, the BCLGWA says on its website that in 2021 it had 15 “highly respected” judges from across Canada and abroad. The DWWA has hundreds of judges. Judging is all blind, with the panel only knowing grape variety and class. Wines are evaluated on their own merits—colour, clarity, aroma, taste, finish and overall quality. So a platinum or double gold, or a gold awarded at a Canadian wine competition is not to be sneezed at. With so many wineries at play these days, the competition grows at any level, as has the quality of the winemaking.1

The other main consideration in what stock to put on an award is consistency. Most wineries can make a “one off” that does well, but those that do it season after season are clearly the most reliable. And wineries show, if they produce wines that win more than one medal, that they were not an idiosyncratic choice of one set of judges. As Abraham Lincoln famously said, you cannot fool all the people all the time—or all wine judges, for that matter.

And finally, be your own judge, as in the end you will be the one drinking the wine and it should be pleasing to you. Do not let yourself be swayed by others’ opinions. Let them be a guide at best. Do a tasting before you buy at the wine shop, if you can. If you do not have that option, stay away generally from the cheaper international labels with obscure award stickers and look for the multi-award winners from competitions you know about—and cross your fingers. Whatever happens the wine you pick by this method should at least be decent, if not much (or even much much) better.

So here is a selection of award winners that I have tasted. Most are from British Columbia, as it is hard to access those from abroad and impossible to access those from Ontario unless you get them shipped here by a winery. I have added a couple of high-scoring international wines into the mix.

HILLSIDE UNOAKED PINOT GRIS 2022

BC VQA Okanagan Valley, Naramata Bench #65672 $25.00 (approx.)

This wine is a winner of multiple awards, including a double gold at the Cascadia International Wine Competition and gold at the ACWC and at the NWAC. The principal vineyards for this wine are along the Naramata Bench. With some skin contact it has a pale pink colour, but the aromas and flavours of a white wine. It has aromas of ripe white peach, melon, and some lemon and green mango, and the flavours on its light but lively palate are crisp green apple, lemon-lime and wet stone, with a long, lively and

juicy finish. Vancouver Sun wine writer Anthony Gismondi says it may be the best rosé in Canada and gave it 91 points. Get it while you can, as the production is not huge. It will pair well with many foods from white fish to lighter grilled chicken or turkey dishes, a cheese plate, quiche or a cheese tart, or a hearty legume or similar salad. It is available online or in person from the winery or at private stores such as JAK’s.

NK’MIP CELLARS MƏR’R’IYM WHITE MERITAGE 2021 BC VQA, Okanagan Valley $35.00 (approx.)

M r’r’iym (pronounced mur-eem) is nsyilxc n (Okanagan) for “marriage”, as this is a marriage of Sauvignon Blanc and Semillon in a white Bordeauxstyle produced at this Indigenous winery in Osoyoos. Another multiple award winner, it made platinum (the highest level) at the NWAC, silver at the BCLGWA and bronze internationally at the DWWC. The Sauvignon Blanc (sixty-seven per cent of the blend) was harvested, then spent 12 hours on skins, and then was gently pressed, cold settled and fermented with very specific Sauvignon Blanc yeast. The Semillon grapes (thirty-three per cent of the blend) were picked and selectively harvested for top quality, before being pressed and transferred into specially selected new French oak barrels to ferment and age for four months. Rich on the nose and palate, it displays ripe peach, apricot and cantaloupe aromas with some gooseberry and a streak of minerals. The palate shows a balanced entry between acidity and sweetness; it starts slightly soft with more very ripe peach and some tropical fruit, with a bit of light buttery caramel corn, and then finishes clean and dry with lingering grapefruit and good acidity. The winery suggests pairing it with scallops and prawns, or simply a soft cheese, such as double cream Brie, on a classic crusty French baguette. Good choices as well would be Asian or Indian dishes. Again, search for it in private stores like JAK’s or order it online from the winery, on the Great Estates Okanagan website or through the BC Wine Information Centre.

CEDAR CREEK PINOT NOIR ROSÉ 2019

BC VQA Okanagan Valley #157412 $25.99

A pale and lighter Provence-style, this wine won a gold medal at the NWAC with 92 points. Grown and made organically, it has aromas of light strawberry, watermelon, rhubarb and a bit of grapefruit rind, with a medium bodied and fresh palate dominated again by strawberry/rhubarb mixed with cranberry and some sour cherry fruit, plus some herbal and mineral notes on a long clean and light finish. Seafood and chicken are always good choices for a lighter rosé. Other ideas include perhaps seafood tacos or

grilled chicken breast with a fresh fruit salsa, Middle Eastern food like beef koftas with Tzatziki, or a Greek salad with chicken kabobs.

TRIMBACH RIESLING 2020

AOC Alsace, France #142091 $37.99

For 400 years, family-run Domaine Trimbach has been crafting “the single most admired dry Riesling made anywhere”, according to Jancis Robinson. As the Wine Advocate states, Domaine Trimbach is “the most famous Riesling estate in all of Alsace”. This wine was given a rating of 92 points from critic James Suckling. It is a complex wine that opens with aromas of fragrant white flowers, tangy lemon and notes of lanolin/petroleum. It is dry but full and fruity on the palate with more lemon zest citrus, pear and green apple, a mineral backbone and a long off-dry finish. For food pairings it will go with salty and spicy foods, so a charcuterie, or Thai or other Asian dishes, or with raw seafood like oysters or sashimi. Soft cheeses are another good choice. Or just sip and enjoy it on its own.

MASSIMO RIVETTI AURELIA LANGHE ARNEIS 2021

DOC Langhe, Piedmont, Italy #456845 $26.99

Anthony Gismondi rates this organically made version of the wine at 90 points. Arneis is a white grape from the Piedmont area. The name means “little rascal” as it can be somewhat difficult to grow. This version is strawyellow with greenish highlights. Its bouquet conjures up exotic fruit, ripe pears, sweet cantaloupe melon, some ripe apricot and acacia blossoms. It has a soft, slightly sweet and full mouthfeel with stone fruit and a bit of lemon curd and a crisp fresh finish. It will be great with a lighter olive oilbased pasta dish, perhaps pasta al limone or cacio e pepe (pasta with cheese and black pepper) or spaghetti carbonara, or with seafood such as crab cakes or even a ceviche. Softer interior-ripened cheeses are another good bet.

PRIVATO VINEYARDS & WINERY PINOT NOIR 2019

BC VQA, Tesoro Vineyard $40.00 (approx.)

The grapes come from Kaleden to this Kamloops area winery. The collaboration clearly worked well as it is a multiple award winner, with platinum at the NWAC and a double gold at the ACWC. It was aged 18 months in French oak and another year in bottle and is a big wine for Pinot Noir, clocking in at 13.9 per cent alcohol. It has black fruit all the way through: black cherry and plums, jammy blackberry and a bit of wild sage and lavender.

The nose is vibrant with fruit and a bit of ashy oak and on the palate it displays the fruit and herbal tones noted earlier. The finish is smooth and the tannins are mellow but decidedly present. The winery suggests serving it with a range of food, including a carefully seasoned ribeye steak, or roast pork with herbs and fennel or dishes featuring Brie or Gorgonzola cheeses. I like my blue cheese with my steak so that works out. It can be found in private liquor stores including JAK’s, ordered from the winery, or, if you are in Kamloops, purchased at the LDB and Save-On-Foods.2

POPLAR GROVE CABERNET FRANC 2019

BC VQA Okanagan Valley #464143 $36.00 (approx.)

This wine won gold at the New World Wine & Spirits Competition (“NYWSC”) and silver with 90 points at the DWWA. Cab Franc is one of the growing success stories in varietals in both Ontario and British Columbia. For a 2019 vintage this wine, which has small amounts of Merlot, Malbec and Cabernet Sauvignon added, is smooth and developed, with softer tannins than its age might suggest. It spent 21 months in a mix of new and old oak barrels and another 12 months in bottle before release. A dark brickishred, it has a nose of rich raspberry, brambleberry and red plum with some tobacco and herbs. The flavours are more berry fruit, including a bit of cranberries, and red cherry and some capsicum and vanilla on the finish. It can pair with a wide variety of dishes, including roast chicken, duck or pork; tomato-based pasta dishes or pizza; or a selection of cheeses. It is available from the winery online or at private wine stores such as Everything Wine.

SEE YA LATER RANCH ROVER - SHIRAZ VIOGNIER 2019

BC VQA Okanagan Valley #580209

$26.00 (approx.)

This wine won a gold medal at the 2022 Syrah du Monde international competition for the world’s Syrah (Shiraz) and silver at the ACWC. You may wonder why it has a white grape, Viognier, mixed in and think that would water it down. But this is a revelation that producers from the Rhone made. Adding a bit of Viognier “fixes” the substance of the Syrah/Shiraz to make it darker and fuller. It is used extensively in Australia, which is probably why the winery labels this as a Shiraz instead of Syrah. It is also more in the Aussie style, being meaty and smoky over rich black fruit of plum and black cherry with a dash of black pepper on the nose. This is followed on its full palate with black fruit, some bitter chocolate and tea-like tannin, vanilla and some black earth, with more spicy pepper. It has medium tannins and acidity with a relatively long finish. It is well made. It is great to sip on its own after a meal, with some fruit and hard cheeses. Meal pairings should

also be full, like beef brisket or hamburgers or ribs on the grill. It can be bought online at the winery or Great Okanagan Estates and in private wine stores including the BC Wine Information Centre (which ships), as well as Save-on-Foods and Everything Wine.

ENDNOTES

1. For an interesting short read on how the NWAC sets up its judging so that is as fair and professional as possible, follow this link to the 2023 awards page: <www.winealign.com/awards/2023/07/27/2023nwac-results>.

2. Not to take anything away from the accomplishment and skill that went into this wine, but it will be good when B.C. wineries start focusing on the grapes

grown locally rather than bringing them in from the Okanagan or Similkameen. Other wine growing areas stay local. You do not see Bordeaux grapes in Burgundy or even down the road in Gascogne or Bergerac. I realize the appellation rules prohibit this, but if we are to have wineries with a sense of place, let alone terroir, we need to do the same and work with the grapes that grow in those climatic areas.

NEWS FROM

BC LAW INSTITUTE

By Tejas Madhur*

This year marks the 20th anniversary of the Canadian Centre for Elder Law (“CCEL”). As a division of the British Columbia Law Institute (“BCLI”), CCEL undertakes work that has a direct impact on our aging population as well as those who work with and support our aging population. We are happy to share an update on recent CCEL activities and projects.

OUR NEW CCEL DIRECTOR

Late last year we bid farewell to Krista James, who led CCEL for much of her 15 years with BCLI. We now welcome Kelly Melnyk to the role of CCEL Director. Kelly is a lawyer based in Kamloops with a background focused on working with older adults and addressing questions of capacity. Prior to joining CCEL, Kelly was a supervising lawyer with the TRU Community Legal Clinic, where her work included working with vulnerable clients, particularly with their advance planning needs. Kelly teaches Wills and Estates and Elder Law with the TRU Faculty of Law. Kelly also has personal connections with this area of practice, which have deepened her commitment to working on issues that impact older adults.

With Kelly being based in Kamloops, BCLI/CCEL is further deepening its connection to TRU Law. Dr. Ryan Gauthier, our current TRU-appointed member, will now have company in Kamloops as TRU Law has offered to host a satellite office from which Kelly and BCLI staff lawyer Alison Wilkinson will be working. We look forward to increasing our presence in the Interior.

20 YEARS OF CCEL

It is hard to believe that CCEL has been in existence for 20 years. This celebration arrives right on the heels of BCLI celebrating its 25th anniversary

* Tejas Madhur is a board member of BCLI. She practises Aboriginal law at JFK Law.

last year. We plan to recognize our 20 years of work with an event at the upcoming Canadian Elder Law Conference. This bi-annual conference, hosted by CLEBC, will take place November 9–10, 2023, in Vancouver. It is always an excellent source of information on current issues and developments in elder law. CCEL is helping to organize this event, which will include speakers reflecting diverse perspectives on issues such as the use of medical experts, elder abuse and predatory marriages. As always, the conference is a great opportunity to earn CPD, learn more about elder law issues and network with others interested in this unique area of law.

UPDATE ON CCEL PROJECTS

A Practical Guide to Elder Abuse and Neglect Law in Canada

An exciting addition to our resource bank is the updated Practical Guide to Elder Abuse and Neglect Law in Canada as a standalone website. This French-English guide offers resources and modules on elder abuse laws and policies relevant to each Canadian province and territory. It is helpful guidance for identifying both cases of abuse or neglect and the steps that can be taken to help the older adult. CCEL will conduct periodic reviews to ensure that the guide continues to be current.

Vulnerable Witnesses Project

CCEL’s project exploring law and policy responses to support vulnerable victims and witnesses of abuse is in its final stages. The study paper will highlight existing frameworks in British Columbia for supporting vulnerable witnesses with a view to raising awareness across sectors about the policies that guide Crown counsel and the supports available for vulnerable adult witnesses. This project also examines how this issue is addressed in other jurisdictions, extracting best practices and developing educational tools to support Crown counsel, the RCMP, Victim Services staff and support workers for vulnerable adults. As part of Victims and Survivors of Crime

Week in May, we conducted a webinar highlighting some of our research and ways in which victim support workers can assist vulnerable adult witness in accessing testimonial aids. The presentation, which was co-hosted by the Canadian Network for the Prevention of Elder Abuse and Elder Abuse Prevention Ontario, can be found on the project page on our website.

Engaging People Living with Dementia in Decision Making

CCEL is in the final year of a three-year project to explore ways to engage people living with dementia in decision making. This project is developing substantive resources for different stakeholders, including persons living with dementia, health care workers and caregivers who are involved in deci-

sion making with persons living with dementia. One of the project’s goals is to consider the different legal and personal contexts in which people living with dementia make decisions and how their involvement in the decisionmaking process can be improved. Undertaken with the support of the Vancouver Foundation, this project will develop guides, reference materials, video information and suggested best practices for each of the identified stakeholders. We hope that these materials will help those who support people with dementia to also understand the legal context, including presumed capacity, and to help increase inclusion and foster personal autonomy of the person living with dementia in the context of any decision making.

Consent to Participate in Research

CCEL has long been involved in research projects with university partners. We are currently contributing to a project funded by the Alzheimer’s Society exploring issues related to consent to participate in research. Bringing our legal perspective to these research projects is an important place for our work.

Undue Influence Recognition and Prevention Guide and Video

Earlier this year, we released a revised and updated version of BCLI’s frequently cited guide for lawyers and notaries on recommended practices in screening for undue influence that may taint drafting instructions. Undue Influence Recognition and Prevention: A Guide for Practitioners provides timely updated information regarding this issue. This project was completed with the support of two geriatric psychiatrists and a psychologist. With the support of the Notary Foundation, BCLI will soon release a video to explain this resource and its value for those working with older adults.

LOOKING FORWARD

Researching ways in which the law can safeguard the rights of older adults has been a core focus of CCEL. Consent and capacity are essential components of this work. We are also seeing a rise in other matters impacting older adults—later-in-life marriages are changing the way in which we develop estate plans, older adults are remaining in the workforce longer than previously and aging in place while maintaining secure and affordable housing are all examples of emerging issues that warrant research and law reform consideration.

CCEL will continue to look for insight from the legal community and value this perspective as we develop future projects. If there is an issue that impacts older adults or how the legal system can best serve older adults, please feel free to contact our CCEL Director, Kelly Melnyk (<kmelnyk@ bcli.org>) directly.

LOOKING FOR MORE

“OF INTEREST TO THE LAWYER AND IN THE LAWYER’S INTEREST”

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LAPBC NOTES

By Michael Kahn*

PAY ATTENTION TO WHERE YOU PAY ATTENTION

The focus of a recent LAPBC drop-in well-being group was how to cope with feeling overwhelmed. The conversation evolved into a related discussion about where we choose to direct our attention. Each day, we are bombarded with multiple invitations that grab our attention—social media, internet scrolling, texts, emails, podcasts, etc. As I am writing the first sentences of this blog, my attention is diverted by the sound of a “ding” indicating an incoming email and a pop-up message that there is an update available for my computer. I checked the email and avoided the update for now.1 (Not incidentally, a temporary shift in attention from one to task to another increases the time it takes to complete the primary task by up to twenty-five per cent.) A large portion of our attention needs to be directed to tasks and people related to our work (like this note), but we lawyers often allocate an outsized portion of our attention to our jobs and lose sight of other things that are important to us.

So, What Can We Do About It?

The first step is to acknowledge that attention, like time, is a finite resource. Michael Goldhaber, a former theoretical physicist, said:

Every single action we take—calling our grandparents, cleaning up the kitchen or, today, scrolling through our phones—is a transaction. We are taking what precious little attention we have and diverting it toward

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>.

* Michael Kahn, M.Ed., J.D., is a lawyer counsellor with the Lawyers Assistance Program of British Columbia (“LAPBC”).

something. When you pay attention to one thing, you ignore something else.

The second step is to identify the people, activities and causes where we want to direct our attention. In short, those things that we value, love and care about.

The third step is to follow writer Howard Rheingold’s guidance and “pay attention to where you pay attention”. Of course, work necessarily requires much of our attention, but you need to ask yourself (or someone you trust who is willing to speak truth to power) whether the amount of that attention is out of whack. For example, do you need to be looking at your phone and checking your work email the moment you open your eyes in the morning? If attention is a transaction, would you rather “pay attention” to connecting with your spouse and kids?

A lawyer told me recently that she needs to “have a place for my attention to rest”. For her, that means attending to the sights, sounds and smells in nature. She implied that the relative silence she experienced was restorative. During your workday (and not just when you are feeling overwhelmed), it is a good idea to build in breaks, such as stepping outside or simply looking away from your computer screen and out the window for a few minutes. Photographers emphasize the importance of the negative space in a photograph because the absence tells a story and gives your eyes a break from the chaos or motion of the image. Often it is the loudest thing or something masquerading as urgent that grabs our attention, but the quieter space can be the most illuminating, enlightening and refreshing.

How often each day do you pause and check in with yourself? It can be an opportunity to “pay attention to where you pay attention”. Do you really need to spend another hour (or three) binging Netflix or surfing the internet? A favorite cartoon of mine is illustrative. An unseen spouse or partner shouts, “When are you coming to bed?” The spouse/partner responds, “In a minute, someone is wrong on the internet!” The cartoon humorously makes the point that the spouse/partner is choosing to attend to the bottomless pit of the internet over real human connection and intimacy, not to mention a restful sleep, which could impact the ability to attend to the next day’s obligations.

So …

Where do you choose to direct the “precious little attention” you have for the rest of today and beyond?

1. I am aware of the irony that I was distracted by an email notification as I am writing a note about attention. Note to self: turn off notifications!

A VIEW FROM THE CENTRE

By Özge Yazar*

THE FUTURE OF ENERGY DISPUTES: INSIGHTS FROM THE VANIAC AND ICCA JOINT CONFERENCE

On an exceptionally sunny day in Vancouver, the Vancouver International Arbitration Centre (“VanIAC”) and International Council for Commercial Arbitration (“ICCA”) hosted a joint conference entitled “Energy Infrastructure Disputes and Arbitration: Today and Tomorrow”. The one-day conference kicked off on the morning of June 2, 2023 with a traditional welcome by Wilson Williams (Sxwíxwtn) of the Squamish Nation. Sxwíxwtn’s message of “gathering” would set the tone for the conference, as local arbitration stars came together with Canadians practising arbitration abroad and distinguished guests from around the world to exchange ideas on the transformation of energy arbitrations in the face of climate change and an increased demand for clean energy.

Vancouver-based arbitrator and disputes counsel Craig Chiasson (Borden Ladner Gervais) presented a history of VanIAC and British Columbia’s arbitration laws before introducing Lucy Reed (Arbitration Chambers, New York/London/Hong Kong), who is an eminent arbitrator and president of ICCA. After Ms. Reed’s presentation on ICCA and the official launch of the ICCA Awards Series, a publication devoted to arbitral awards and related decisions from institutions around the world, the first panel got underway.

Clean Energy and Climate Change Are Transforming Construction Disputes

In the morning session moderated by Vancouver-based arbitration counsel Laura Cundari (Blakes), panellists Dr. Patricia Galloway (Galloway Arbitration, Inc., Cle Elum, WA), Dr. Ezra Jampole (Exponent, New York), Doug Jones AO (Atkin Chambers, London/Sydney/Toronto) and Miguel López

* Özge Yazar is a lawyer with the Litigation + Dispute Resolution Group at Miller Titerle + Company.

Forastier (Covington & Burlington, Washington, D.C.) identified the main features of disputes arising out of energy projects, discussed the effects of new regulations, new technologies and climate change in energy construction disputes, and addressed related trends in investor-state disputes.

Clean energy projects are often distinct from traditional construction projects. They are characterized by higher value (typically over $1 billion), longer duration (more than four years), the involvement of multi-national stakeholders and complex engineered components. These projects operate in highly regulated environments in multiple jurisdictions, and are visible in the communities in which they operate. Needless to say, clean energy projects come with a lot of potential for delay and scope changes. To complicate things, it can take up to 25 years for energy produced from green sources to be integrated into the main grid, which does not always occur to developers, financiers or governments, and can generate disputes. Those involved in construction disputes will be familiar with ripple effects. Clean energy projects often come with ricochet effects, where an unexpected event exhibits itself in unexpected aspects of the project, making it virtually impossible to change even a single feature of the work.

The audience was intrigued to hear the unique fact patterns the speakers have encountered in clean energy disputes, many of them arising due to the conception of new technologies in this area. For example, the increased use of solar panels, which are prone to discoloration, cracks and water intrusion, has given rise to disputes concerning the impact of such defects on energy generation, as well as the unintended consequences of light reflection from solar panel fields on nearby buildings. Other disputes arise due to evolving science around the projects, such as developments in earthquake engineering. Contemporary research in this field requires a re-evaluation of the seismic considerations for an entire generation of nuclear plants.

The panellists had a wealth of expertise in disputes that arise from evolving industry standards in clean energy projects. A fascinating example explained by Mr. Jones was the parallel arbitration and court proceedings in MT Højgaard A/S v. E.On Climate & Renewables UK Robin Rigg East Limited and another, [2017] UKSC 59, where the parties had a dispute about, among other things, whether a contractor for offshore wind turbines was liable for damages resulting from its reliance on international standards, which, over the years, turned out to be wrong. Despite the contractor’s position that it exercised reasonable skill and care and had complied with all contractual requirements, the U.K. Supreme Court held the contractor liable for defective works. Moving from the oceans to the North Pole, Dr. Jampole recounted a dispute involving a zinc mine in the Arctic Circle, where the

roof collapsed because the mine’s design did not account for unprecedented amounts of snow the area started getting as a result of climate change.

As unexpected weather events, new contractual standards, new scientific research and new regulations (including those for professionals such as architects and engineers) become common features of clean energy construction disputes, risk allocation between stakeholders is becoming increasingly complex. According to Dr. Galloway, renewable energy projects are increasingly utilizing alliance-based contracts from the development stage, in order to allocate risk to the party in the best position to assume it. For the same reasons, dispute review boards and dispute adjudication boards are becoming increasingly popular methods of dispute resolution for energy disputes.

A significant portion of international arbitrations are investor–state disputes, and the discussion would have been incomplete without mentioning the clean energy trends in this area. Investor–state clean energy disputes generally arise from states failing to uphold their commitments made during the project’s design phase. Typically in these disputes, a state removes previously agreed fiscal incentives or tax breaks for the project, provides preferential treatment to local or state-owned projects to the detriment of foreign investors or phases out certain sources of energy. Spain, for example, has been a defendant in many such disputes in the last decade. In the early 2000s, the country provided incentives to clean energy investors in the form of “feed-in-tariffs”, where the investors were guaranteed a price, typically above the market rate, for the energy generated from their projects, and that price would decrease over time. Spain’s policy was so attractive that the country achieved or surpassed its capacity goal within a few years. However, this success led to Spain owing over $4 billion to energy providers, rendering the system financially unsustainable. Spain’s eventual withdrawal of the incentive triggered the wave of disputes against the state. Mexico, Japan and Czechia are among other states that, like Spain, are defendants in a series of disputes due to changes in their clean energy strategies.

Predicting the Future of Energy Arbitration

Canadian arbitrator and arbitration counsel Raëd Fathallah (Bredin Prat, Paris) moderated the second panel titled “Predicting the Future of Energy Arbitration”, which explored what types of disputes, arbitrators and procedures awaited energy arbitration.

As for the types of disputes, Canadian arbitrator Jessica Crow (Arbitra, London/New York) predicted an increase in carbon pricing disputes, while Maria Chedid (Arnold & Porter, San Francisco) anticipated disputes arising

from joint venture formations for the development of new technologies, as well as risk- and revenue-sharing arrangements after these technologies are ready.

Will arbitration users start seeking increasingly tech-savvy arbitrators?

Michelle MacPhee (BP International Disputes Team, London) admitted that while the arbitral tribunal’s technical skills may be more significant in energy disputes compared to traditional ones, her team will not be considering an entirely new set of factors when appointing arbitrators. She emphasized that arbitrators will learn relevant skills through expert evidence.

Constantine Partasides, K.C. (Three Crowns, London) agreed that despite new technologies and regulations, key issues in arbitrations will continue to be linked to contract interpretation or revenue sharing, so adjudicative experience and judgment will remain of paramount importance.

While traditional energy disputes will not die out anytime soon, the panel expected an increase in bespoke arrangements promoting sustainable business, like the Dutch government’s International Responsible Business Conduct (“IRBC”) Agreements, which are voluntary commitments to work with the government, unions and non-governmental organizations (“NGOs”) to perform responsible and sustainable business conduct. IRBCs and similar agreements may become an advantage for parties after government contracts, and often have multi-tiered dispute resolution mechanisms that end in arbitration, which may become relevant for arbitration practitioners.

The panel agreed that energy disputes are likely to embrace procedural innovations in arbitration. While Ms. Chedid predicted that witness conferencing will become increasingly relevant in the face of expert-intensive disputes, Mr. Partasides anticipated an increase in time-sensitive disputes that would utilize early disposition and summary judgment, such as under s. 21 of the VanIAC International Commercial Arbitration Rules.

How Critical Are “Critical Minerals”?

Perhaps the most entertaining part of the day was when Mark A. Luz (Global Affairs Canada, Ottawa) and Jim Morrison (Peter & Kim, Sydney) debated whether “we should fuel our future through the extraction of critical minerals”, showcasing abundant data, futuristic design concepts and photos of politicians holding coal.

When the audience heard the arguments in favour of the motion, they were optimistic that critical mineral mining can sustainably fuel the green energy transformation. It was compelling to hear that switching to green energy will offset the amount of carbon dioxide emissions from critical mineral mining, and that there are sufficient critical mineral reserves in the world to facilitate the green energy transformation.

Optimism waned, however, when the audience learned that the current reserves of critical minerals might not be sufficient to achieve a net-zero world. The speaker against the motion emphasized embracing the difficulty and awkwardness of the clean energy transition, comparing it to our teenage years. He argued that governments cannot be relied on to make consistent regulations on critical minerals, and warned of international block formation and trade conflicts.

Despite the moderator Alison Fitzgerald (Norton Rose Fulbright, Ottawa) pressing the debaters for more reflection on the equity concerns related to developing nations, the audience remained divided on their support of critical minerals mining.

Who Speaks for You, Me and the Trees?

The final panel, moderated by Canadian disputes lawyer Vasuda Sinha (Freshfields, Paris), discussed the role of third parties in arbitration, emphasizing the need for careful consideration of their inclusion while preserving the essential characteristics of arbitration.

Abby Cohen Smutny (White & Case, Washington, D.C.) highlighted the cost of disregarding third-party interests in modern business, and suggested that the design phase is the ideal moment to incorporate their voices. Dr. Elizabeth Whitsitt (University of Calgary) pointed out that in certain jurisdictions, regulated industries already require third-party intervention, or commercial parties voluntarily enter into benefit-sharing agreements with stakeholders. However, both speakers were against imposing third-party intervention on commercial parties to preserve the fundamental aspects of arbitration, such as finality, confidentiality, efficiency and consent.

The involvement of state parties in arbitration introduced a different perspective on the issue of consent. Dr. Whitsitt suggested that third-party intervention becomes more conceivable when a state’s (in)actions are directly challenged in investor-state arbitrations. Gabriela Alvarez-Avila (DLA Piper, Mexico City) pointed out that environmental, social and corporate governance may in some jurisdictions be considered public policy, hence raising questions about arbitrability and becoming relevant in setaside or enforceability proceedings.

The panel also explored who should represent third parties. They referenced Milieudefensie et al. v. Royal Dutch Shell plc (HA ZA 19-379), where environmental groups took Shell to court over its contributions to climate change, which they alleged violated its duty of care under Dutch law and human rights obligations. The District Court of Hague found for the claimants, but first, it confirmed the standing of most of the claimant NGOs, including Milieudefensie, representing the Dutch public interest, but

denied standing to another NGO, ActionAid, as it did not sufficiently promote the interests of Dutch residents. The panel also considered nature’s personhood, recognized in states such as Ecuador and New Zealand, but concluded that its application in arbitration would pose risks to the legitimacy of the process.

The VanIAC-ICCA Conference came to an end with closing remarks by Canadian arbitrator Tina Cicchetti (Vancouver Arbitration Chambers/Arbitration Place, Vancouver/Toronto/Florence) and Vancouver-based disputes lawyer Joe McArthur, K.C. (Blakes), who thanked the distinguished delegates from around the world for their valuable contributions and encouraged participants to consider using the VanIAC International Commercial Arbitration Rules.

ANNOUNCING THE 2024 ADVOCATE SHORT FICTION COMPETITION

EL IGIBLE CONTRIBUTORS

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

EL IGIBLE FICTION

A fictional work, written in English, to a strict maximum of 2,500 words that must include the following sentence

“It’s Bateman, not to be confused with __________.”

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

DEADLINE FOR SUBMISSIONS

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

FORMAT FOR SUBMISSIONS

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

ADDRESS FOR SUBMISSIONS

Advocate Short Fiction Competition

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

The Advocate

#1918 – 1030 West Georgia Street

Vancouver, B.C. V6E 2Y3

JUDGES

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

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 14, 2025. Contest judges may award fewer than three prizes if, in their judgment, they consider it appropriate.

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

TRANSFER OF RIGHTS

In consideration of having their fiction reviewed for:

(a) possible selection as winning entries;

(b) possible publication in the Advocate; and

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

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

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

UVIC LAW FACULTY NEWS

By Moira Aikenhead and Gillian Calder*

COMPETENCY-BASED EDUCATION: SOME THOUGHTS ON STUDENT MENTAL HEALTH

In 2020, the Law Society of British Columbia Lawyer Development Task Force received a mandate to consider whether a “competence-based approach” to licensing lawyers would better serve the public interest, and “the extent to which public and professional expectations of the competence and qualification of lawyers are met”. 1 In September 2022, the benchers passed a resolution adopting a recommendation from this task force that the Law Society develop a competence-based system, beginning with a “competence framework” that would identify the knowledge, skills and other attributes necessary for the essential duties of lawyers in British Columbia.

At the UVic Faculty of Law, we see the Law Society initiative to move to a competency-based system as critical for two reasons.2 First, the kind of careful and thorough process proposed by the Task Force will offer us an opportunity to identify the competencies3 central to an inclusive legal education, including across the developing field of Indigenous legal education, work that will bring us together as a community of scholars, researchers, regulators and educators. Second, it will enable the development of a shared vision of legal education across what Dr. Annie Rochette calls the “legal education continuum”. That is, this moment opens up space for discussion of the intersecting ways that learners will acquire competencies across their time from admission to law school through their continuing professional development in the practice of law.

* Moira Aikenhead (limited-term, Assistant Professor) and Gillian Calder (Associate Professor) are part of an ad hoc Professional Development and Competency-Based Education Committee at the UVic Faculty of Law. Other members of the committee include Pooja Parmar, Jeremy Webber, Alan Treleaven and Val Napoleon. Thank you to Annie Rochette for her guidance, and to all members of the committee for feedback on this submission.

A competency-based approach to legal education is not an entirely novel concept. Calls for approaches to preparing professionals that focus on their observable abilities to integrate knowledge, skills, values and attributes are apparent from the 1970s forward, in numerous professional programs, including law.4 Several professions, most prominently medicine, have taken profound steps in recent years to move to competency-based delivery of their core programming, the close study of which could benefit legal education.5 The Law Society proposal creates an opportunity to work across all dimensions of the legal education continuum to ensure that we are developing legal advocates with the core competencies for 21st century practice. This is an exciting moment for the study and practice of law.

In the spring of 2023, UVic Law invited Dr. Rochette, one of Canada’s leading experts on legal education and professional development, to deliver a series of workshops. These workshops enable us to be in a conversation among ourselves, with the other law schools in the province and ultimately with the profession about the possibilities of competency-based education. This conversation has involved developing a common language that moves away from seeing competence as a form of checklist, and toward a dynamic approach to legal education where competency is contextual, and involves the “integration of knowledge, skills, judgment and attitudes”.6 This ongoing work involves identifying the competencies that inform our current pedagogy, course offerings, methods of assessment and evaluation, in order to move toward a comprehensive competency framework suited for our role in the legal education continuum. We have been taking stock of the groundbreaking, innovative and challenging forms of legal education that we have worked for a generation to hone and deliver at UVic Law, including our Juris Doctor (J.D.)/Juris Indigenarum Doctor (J.I.D.) program; our flagship orientation course (Legal Process); our clinics, field courses and other experiential offerings; and the principled work in recent years to carefully consider the role that evaluation plays in the learning process.

We also recognize the need to be principled and imaginative about what is possible, to take up the challenge posed by the Law Society at this moment What are the core competencies that lawyers require to practise in 21st-century Canada? And where and how should those competencies best be introduced, developed, integrated and demonstrated throughout the legal education continuum?

The work that we have started together, with Dr. Rochette’s guidance, has led to passionate conversations about what we do at UVic Law, and will ultimately lead to identifying course and program competencies, including what is core to a law degree. In the spirit of conversation, we aim to share

our work as it develops. In this, our first submission, we offer some thoughts on the importance of competencies related to mental health and well-being in the context of legal education. We consider the significance of an inclusive and healthy environment for the learning and practice of law, as well as the role that we play, as legal educators, in fostering competencies that will help ensure legal professionals can maintain their mental health and wellness throughout their careers.

Centring considerations around mental health and well-being in the development of a competencies framework is crucial in the context of the current mental health crisis facing law students, articling students, lawyers and other legal professionals. In 2022, the Université de Sherbrooke, the Federation of Law Societies of Canada and the Canadian Bar Association released a preliminary research report on the National Study on the Psychological Health Determinants of Legal Professionals in Canada (the “Report”).7 The Report notes high rates of psychological distress, including anxiety and depression, among legal professionals. These issues are most prevalent among equality-deserving groups, including women, individuals under the age of 30, early-career professionals, individuals living with a disability, LGBTQ2S+, Indigenous and racialized legal professionals.

The Report was supplemented with targeted recommendations in December 2022.8 Some of these recommendations and the issues raised in the Report have been taken up by the Law Society’s Mental Health Task Force, in relation to supporting lawyers and articled students in accessing mental health services and in their interactions with the Law Society.9 Law schools also have a key role to play in implementing certain of the Report’s recommendations, including improving the preparation of future professionals to support them in dealing with psychological health issues.10 This recommendation centres students’ development of key competencies related to teamwork, self-knowledge, emotional intelligence and diversity.

The development of a competence framework by the Law Society, and our work on competency-based education at UVic Law, must occur in tandem with the important conversations taking place within the profession around mental health and well-being. While some serious problems with the traditional legal education model were becoming apparent in the years prior to the COVID-19 pandemic, the pandemic and its repercussions in relation to student, staff and faculty mental and emotional health and wellbeing have brought these issues into sharp relief. Student use of formal counselling and support resources offered at our law school is at an all-time high, and there has been an unprecedented surge in students seeking informal support and guidance from instructors and staff in relation to mental

and emotional struggles. As noted in the Report, these issues seem to be disproportionately borne by members of equality-deserving groups, including Black, Indigenous, racialized and queer students. While it is reassuring that many students are reaching out and utilizing the supports provided by the law school, these supports are insufficient to meet the current level of need. Staff and instructors themselves are dealing with the physical, emotional, economic and existential fallout from the COVID-19 pandemic, and the increased strain created through these urgent and critical student needs is taking their toll. Something has to give.

A foundational rethinking of the law school experience, and what competencies are necessary to support healthy and effective lawyers, are urgent priorities. This includes understanding that interpersonal competencies related to physical, emotional and spiritual well-being must be a key aspect of competency-based legal education. Such competencies include self-awareness, reflection, empathy, cross-cultural communication and mindfulness.11 Mental wellness itself can be considered a “meta-competency”, one that Dr. Rochette describes as foundational and necessary for the development and integration of other competencies, such as critical thinking, legal research, negotiation or positive client relations. In our view, a shift towards competency-based education in Canadian law schools must include a focus on creating and supporting legal professionals in the pursuit of mental health.

Law schools can play an important role in supporting student development and integration of competencies that can bolster their long-term mental health and well-being. First, law schools must consider transforming the curriculum and methods of evaluation and assessment. Embracing competency-based approaches to teaching and assessment, and enabling students to take ownership of their education through methods such as problembased learning and frequent skills- and comprehension-based assessments, will better prepare students for the realities of legal practice and reduce some of the negative mental health impacts experienced by law students.

The ways in which we evaluate first-year students, in particular, needs to be carefully rethought. At present, students are asked to write a multi-week series of examinations testing their emerging knowledge and legal analysis in relation to foundational concepts across a diverse range of legal topics. The principled and competency-based rationale for this form of assessment is not clear, and while the grading is deemed significant for certain performance ranking purposes, including securing summer articles at many law firms, the connection to meaningful learning needs more exploration. Emphasizing grades as the key indicator of success does a disadvantage

both to students and to the profession, as first-year grades may not reflect students’ skills and abilities in relation to complex problem-solving, critical thinking, time-management, professionalism, empathy and other competencies central to legal practice. A careful rethinking of how we teach and assess in first year, with an eye to the development of competencies over the legal education continuum, could assist in addressing the current mental health crisis.

The second way in which law schools can support and create mentally healthy students and early-career lawyers is through teaching core competencies related to mental health and wellness throughout the law school curriculum. Law schools across Canada offer various levels of mental health counselling and support for students. The Amicus Program at UVic Law, for example, is exceptional in this regard. Such supports are necessary and should be expanded to ensure all students dealing with emotional and mental health struggles receive timely and culturally appropriate support throughout their legal education. However, our vision for law school’s role in supporting students’ mental health and wellness extends beyond these “external” supports and includes integrating mental health and wellness within the law school curriculum.

One option would be to offer standalone courses.12 As Richard Devlin and Pooja Parmar note, “an aspect of competence that has traditionally not received adequate attention within the profession is the connection between lawyers’ well-being and their capacity to serve clients”.13 Standalone courses on lawyer mental health and well-being could explore techniques, practices and ways of thinking that support mental health in the legal profession, including topics such as time management, boundary setting, help seeking, the mental health benefits of exercise, mindfulness, emotional regulation and insights from cognitive-behavioural therapy, to name a few. Some interesting models have been explored in recent years at Canadian law schools, including a for-credit course offered at Western University on mindfulness in legal practice, and a non-credit multi-week mindfulness training course at the Schulich School of Law at Dalhousie University.

Another option would be to see mental health–related competencies as critical to all competency-based education and legal practice, and to focus on integrating key mental health and wellness competencies throughout the existing law school curriculum. As noted above, the Report’s recommendations highlighted a variety of competencies essential to prepare professionals for a legal career, including emotional intelligence, collaboration, self-awareness and boundary setting.14 Law schools should identify the vast

array of places throughout a law degree where mental health skills, knowledge and attributes are or could be honed. Understanding the development of mental health as a meta-competency of a law degree would allow students to address the complexity of scenarios likely to arise in all dimensions of their work, setting students up with critical problem-solving capacities as they enter their legal careers.

We embrace that a shift to competency-based education and evaluation, with support from the profession, would result in students who are better prepared for the realities of legal practice when they begin their articles, and better able to cope with the inherent stressors of a legal career. Integrating mental health as a legal competency into the law school curriculum is an exciting possibility. But even more exciting is seeing mental health as integral to a competency-based education across the continuum of legal education.

We close by emphasizing that the work of ensuring that law students have the tools and skills necessary to maintain their mental health and emotional well-being throughout their legal careers is a joint endeavour. Law schools, legal regulators and the legal profession need to embrace systemic and transformative change in order to address the mental health crisis of our profession. While this transformation is ongoing, these entities all have a role to play in ensuring students and lawyers are able to remain mentally healthy, however they choose to advance their legal education. The legal profession, clients and society will all benefit if we cease losing talented young lawyers to burnout, disillusionment and, in extreme cases, early death through suicide, the toxic drug crisis and alcoholism. It is incumbent upon law schools, regulators and the profession to ensure that the mental health of legal professionals is fostered and taken seriously throughout the career path.

ENDNOTES

1. Law Society of British Columbia, Recommendation to Develop a Competence Based System for Lawyer Licensing (2022), online: <www.lawsociety.bc.ca/ Web site/media/Shared/docs/about/minutes/ Report-to-Benchers-from-LDTF-Development-of-aCompetence-Based-System.pdf>.

2. We prefer the language of “competency-based” rather than “competence-based” given that the former captures the importance of the competencies at the heart of legal education.

3. We use the term “competencies” to refer broadly to knowledge, skills, attitudes and values.

4. Jason R Frank et al, “Competency-Based Medical Education: Theory to Practice” (2010) 32 Medical Teacher 638 at 639, citing Gerald Grant et al, On Competence: A Critical Analysis of Competence-

Based Reforms in Higher Education (San Francisco: Jossey-Bass, 1979); WG Spady, “CompetencyBased Education: A Bandwagon in Search of a Definition” (1977) 6:1 Educ Res 9.

5. See Neil Hamilton & Sarah Schaefer, “What Legal Education Can Learn from Medical Education About Competency-Based Learning Outcomes Including Those Related to Professional Formation and Professionalism” (2016) 29 Georgetown Journal of Legal Ethics 399.

6. Marjan JB Govaerts, “Educational Competencies or Education for Professional Competence” (2008) 42 Medical Education 234 at 235.

7. Nathalie Cadieux et al, Research Report (Preliminary Version): Towards a Health and Sustainable Practice of Law in Canada, National Study on the Psycholog-

ical Health Determinants of Legal Professionals in Canada, Phase I (2020-2022) (Université de Sherbrooke, 2022).

8. Nathalie Cadieux et al, Targeted Recommendations: Towards a Healthy and Sustainable Practice of Law in Canada. National Study on the Health and Wellness Determinants of Legal Professionals in Canada, Phase I (2020-2022) (Université de Sherbrooke, 2022) [Report: Recommendations].

9. See Law Society of British Columbia, “Improving Mental Health for the Legal Profession”, online: <www.lawsociety.bc.ca/priorities/improvingmental-health/>.

10. Report: Recommendations , supra note 8, Recommendation 1.2.

11. Susan L Brooks et al, “Moving Toward a Competency-Based Model for Fostering Law Students’ Relational Skills” (2022) 28 Clinical L Rev 369.

12. All Canadian law schools offer mandatory courses on legal ethics and professionalism, some of which are beginning to integrate the topics of lawyer mental health and well-being. See Richard Devlin & Pooja Parmar, “The Lawyer-Client Relationship” in Alice Woolley et al, eds, Lawyers Ethics and Professional Regulation , 4th ed (Canada: LexisNexis, 2021) 77 at 140–42.

13. Devlin & Parmar, supra note 12 at 140.

14. Report: Recommendations , supra note 8, Recommendation 1.2, Table 4.

ATTENTION

PERSONAL INJURY LAWYERS

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TRU LAW FACULTY NEWS

By Ryan Gauthier*

TRU LAW WELCOMES NEW FACULTY MEMBER

Dr. Ashley Barnes has joined the TRU Faculty of Law. Ashley is currently the Gordon F. Henderson Postdoctoral Fellow at the University of Ottawa Faculty of Law. Her expertise spans public and private international law, with an emphasis on access to justice and remedies in dispute resolution. She completed her doctor of juridical science (S.J.D.) degree at the University of Toronto Faculty of Law with the support of the Social Sciences and Humanities Research Council of Canada and the Canadian Council on International Law, among others.

Prior to joining TRU Law, Ashley was a visiting scholar at the Lauterpacht Centre for International Law, at the University of Cambridge, and a Schulich Fellow at the Schulich School of Law, Dalhousie University. Her academic work builds on her extensive professional background in international legal and policy issues within government and at the International Criminal Court. In addition to her S.J.D., Ashley holds a B.A. (hons.) from the University of Toronto, an M.A. from the Norman Paterson School of International Affairs at Carleton University, a J.D. from Windsor and an LL.M. from the London School of Economics. She is a member of the Law Society of Ontario and began her legal career as a judicial law clerk at the Federal Court.

Ashley’s work has been recognized by the American and European Societies of International Law, and she is currently on the editorial board of the Canadian Yearbook of International Law

Ashley will be joining us on December 1, when she will be teaching International Dispute Resolution.

* Ryan Gauthier is an associate professor at the TRU Faculty of Law. He is back from sabbatical leave and misses Japanese convenience store tonkatsu profoundly.

TRU LAW STUDENTS TAKE TOP THREE PRIZES AT SOVEREIGNTY SYMPOSIUM

The Sovereignty Symposium was founded by the Oklahoma Supreme Court in 1988 for an exchange of scholarly ideas. The symposium has become devoted to issues of U.S. tribal governments, tribal courts and tribal laws, and their interaction with the municipal, state and federal laws, governments and justice systems.

The symposium awards the Doolin Prize for Students. TRU Law students were awarded first, second and third place for their papers this year.

Emma Payne was awarded first prize for her paper “Josiah Wilson: A Case Study on Determining Indigeneity”. Emma’s paper focuses on methodologies of determining Indigenous identity, looking at the case study of Josiah Wilson, who was denied entry into the All-Native Basketball Tournament in Prince Rupert in 2018. The paper suggests ways in which claims around Indigeneity might be better resolved in the future.

Cailey Harris was awarded second prize for her paper “Restoring the Soul of a Nation: The Repatriation of Indigenous Cultural Property in Canada and the United States”. Cailey’s paper explores Canadian and American laws relating to the repatriation of Indigenous cultural objects, human remains and funerary objects. The paper also highlights the differences between policy and legislation, and concludes by suggesting a shift in perspective that bridges the gap between legal Western traditions and Indigenous customs and laws.

Rob Houle was awarded third prize for his paper “Indians and the 49th Parallel”. Rob’s paper examines the rights of Indigenous persons crossing the Canada–U.S. border and the approaches both countries have taken in relation to these rights. Rob notes how each country relies on the Jay Treaty to different degrees, and how the recent Supreme Court of Canada decision in R v. Desautel may require a revisiting and reimagining of how Indigenous persons cross the border.

LANCE FINCH MEMORIAL MOOT FUND UPDATE

TRU Law is continuing the Lance Finch Memorial Moot Fund campaign. The campaign is led by Chief Justice Robert Bauman, who wanted to honour the late Justice Finch and support future litigators’ development of oral advocacy skills through mooting. The Chief Justice has organized a committee of colleagues that have stepped forward to assist with the fundraising, including Peter Senkpiel, K.C., Frank Quinn, K.C., the Honourable Thomas Cromwell, O.C., Robert McDiarmid, K.C., and Sue Bauman.

The goal is to establish a $250,000 endowment that will produce $10,000 annually in perpetuity, and to fully sponsor TRU Law’s competitive moot

teams for the next three years. TRU Law plans on wrapping up the campaign in winter 2024.

Since the campaign was launched in December 2022, it has raised $150,000 toward the endowed fund, and has sponsored three of TRU Law’s competitive moot teams.

Over fifty donors, including active and retired judges, practising lawyers and law firms, have come forward with support. We would like to acknowledge significant gifts from Gillespie and Company of $60,000; Nathanson, Schachter & Thompson LLP of $30,000; Rush Ihas Hardwick LLP of $30,000; Fasken of $25,000; and Poulus Ensom Smith LLP of $20,000. That said, we appreciate all of those who have contributed to the fund.

From 2016 to 2020, the TRU Law moot program doubled in size from about 21 mooters to around 40 mooters per year. From 2017 to 2023, around 200 students competed in moots, supported by 27 coaches. At least 15 mooters have gone on to be clerks at the B.C. Supreme Court, the Alberta Court of Appeal, the Tax Court and the Federal Court. Others have come back to coach. We appreciate the support of donors, coaches, alumni and all those involved in supporting the mooting program.

NOS DISPARUS

By R.C. Tino Bella

Michael O’Keefe, K.C.

Michael O’Keefe died on June 24, 2023. Raised in New Westminster, he attended UBC for his undergraduate years (commerce) where he was a lessthan-stellar student. He then attended law school, where a penny dropped and he finished in the top five in all years and was awarded a scholarship to attend Berkeley for a master’s degree.

On his graduation from Berkeley, he had many options, but chose to throw his lot in with the nascent tax boutique Thorsteinsson Mitchell, a firm dedicated to the objective of being small and exclusive. The firm (Thorsteinssons) has remained exclusive, but at the time of Mike’s death it had grown to 70 lawyers with offices in Vancouver and Toronto. Much of the credit or blame for this growth is attributable to Mike.

In addition to having a full legal practice, Mike served for a period as an adjunct professor at UBC, teaching taxation. He could not abide the thought of his top students going elsewhere and so, indispensable person by indispensable person, the firm grew.

Mike also could not abide reading The Globe and Mail about large deals conducted in Toronto in which his firm had no part. Thus the opening of a Toronto office. In 1996, he and his wife Brenda moved to Toronto for several years to foster the firm’s growth. Together, they made it work. Indeed, Brenda’s wit, charm and humour also bear much of the credit for the firm’s growth.

As a lawyer, Mike saw his duty as getting the job done—if the plan proposed did not work, then devise a plan that would work, to get the job done. Throughout his career, he had many adversaries, but no enemies. The battle was always professional, never personal: he always stood above the fray.

Mike joined Thorsteinssons in 1968 and was a leader of the firm from that time, never formally retiring. In 1970, he was seconded to the Department of Justice, where he became a special assistant advising Minister Benson on the dramatic changes being made to Canada’s Income Tax Act. With that experience and his practice in both Vancouver and Toronto, Mike had a unique profile as one of Canada’s leading tax lawyers.

Apart from the law, Mike had a huge appetite for what the world had to offer. He read extensively, fly fished aspirationally and owned and operated a large cattle ranch near Williams Lake. Thus, on any summer’s day, he could be found giving tax advice from his saddle, or cattle fencing instructions from his Vancouver desk.

Mike’s true genius was friendship. A gruff exterior failed to hide his warmth, generosity and Irish blarney. He was mentor to many and made and retained many friends, each of whom will retain pleasant memories.

He was both a character and a man of great character.

Now he is headed for the last roundup. Happy trails.

Warren Mitchell, K.C.

Peter Walley Lightbody

Shakespeare told us that “all the world’s a stage”, and lawyers feel this perhaps more than most, whether in repeating lines to clients over and over or standing up in court under the watchful eye of whoever might be present. Later in that speech, the Bard had the melancholy Jaques divide our time upon the stage of life into seven ages.1 For the purpose of this remembrance of my partner Peter Walley Lightbody, whom we lost to cancer this past February 3, I will reduce that number to four.

The First Three Ages

I must resort to tales and hearsay for all the ages from mewling and puking infant to sighing lover because, though I grew up at nearly the same time and in the same place as Peter, I never once managed to meet him in all those years.

Peter came into this life on April 19, 1966, just 11 months after me. He was the son of a legend of our profession, Walley P. Lightbody, K.C., which brought him to the law in a particularly dignified way.

He grew up in West Vancouver, on the shores of a secluded cove. He enjoyed a 1970s childhood that was free-range but never feral. Tales abound of carefree days whiled away scampering barefoot over the rocky beaches outside the family abode, in a way Huckleberry Finn would have known but few children today would recognize.

He met the love of his life, Brenda Lau (herself distinguished counsel and the daughter of distinguished counsel—notice a trend?), while still in high school.

Peter graduated from UBC, with honours, as an English major. He worked for a spell as a waiter in Victoria, while trying to decide between careers in law and journalism.

We won. He attended law school at the University of Alberta, in Edmonton (not Calgary, as he would point out). Brenda graduated from law school one year ahead of Peter and lived with him in Edmonton, working as a paralegal, during his final year.

One tale that has come down the ages from those days concerns a law school trip to a big ski resort. On the first day, many of the students arrived decked out in the latest, most expensive ski gear. Peter, on the other hand, arrived wearing jeans and a jacket from the Salvation Army and then skied like Steve Podborski, oblivious to the jaws of his fellow students dropping. Very unprepossessing, and very Peter.

The Soldier

Even as a young lawyer, Peter was neither “jealous in honour” nor “sudden and quick in quarrel”. I never saw him bearded like the pard, and if he was full of strange oaths, he did not utter them often in my presence.

He completed his articles with Richards Buell Sutton and practised there for many years thereafter. David Hay, K.C., recalls being impressed even at the articling interview (though he allows that the celebrated surname may have shortened the interview somewhat).

But Peter was no nepo baby. Even in his first years of practice, his personal qualities stood out. David describes him as soft-spoken, very intelligent, always gracious and well-mannered, seemingly bemused and humble, always humble. Faithful to the law and to the authorities, Peter would always strive to find something in the jurisprudence that would sense of his client’s situation. All in all, he was a lawyer’s lawyer and, always, a gentleman.

He practised in all areas of litigation, seemingly reluctant to confine his talent to just one or two areas. It was there that he developed what David

calls “a legendary tolerance for crazy situations involving difficult clients” and “cases whose fact patterns would rival law school examinations”.

I first met Peter when he attended a Ray Connell (soon to be Connell Lightbody) Christmas party. I was there as a newly minted associate, and recall being surprised and impressed that the son of our senior partner was such a regular guy and a relaxed and happy colleague.

Nevertheless, for the next several years, his practice developed in seeming parallel with, but rarely intersected, mine.

The Wise Justice

By 2014, I had long since moved my practice to North Vancouver, and had been developing Lakes, Whyte LLP with John Lakes for many years. In the early aughts, the firm had built a busy practice prosecuting drug and other offences on behalf of Her Majesty the Queen in Right of Canada. For better or for worse, the prosecution work became a big part of the culture of the firm.

All of a sudden, we learned that the organization wanted, as they like to say in baseball,2 to make a change, and in early 2015 the firm found itself without a prosecution contract. While this made little economic difference, something special about the firm, something that had defined us, had left and closed the door.

But when fate closes a door, it often opens a window. And through that window came Peter Lightbody, looking to move his practice to his home community of North Vancouver.

From our first meeting at the Queen’s Cross Pub on Lonsdale in early 2016, there was never any question that Peter would become a partner of our firm (although he insisted that we check his references). The demeanour I remembered from the early days had not left him, but he now also brought credibility and direction to a firm that, for a little while, had lost its way.

Over the next nearly seven years, we were privileged to witness for ourselves the qualities spoken of above.

Within the firm, Peter became known as a great listener. He was a willing mentor to junior counsel and to students, and lent a willing ear to everyone. Around the partnership table he was often the source of sober second thought. He was our logical choice to take charge of human resources.

He maintained his broad civil litigation practice. His main areas of practice were wills and estate litigation, employment law and complex personal injury cases, but he was up for nearly anything. He was a skilled negotiator who would win much for his clients through patient dialogue, but who would not shy away from the toughest challenges in court when the need arose.

Peter believed strongly that the bar should be more civil than it has become. On being congratulated on a major victory, Peter observed that there are no winners and no losers among lawyers in legal matters. Some lawyers are victorious, and some merely lucky, but every lawyer works for their client.

His patience in particular was legendary. He seemed to relish trying to help litigants whose intense identification with their own cases required levels of client maintenance that would stymie the rest of us. Peter took these cases to heart, and was grieved when he had to give bad news to a client. Many are the times that I have left the office for the night with Peter still engaged in intense debate with a client who needed, and certainly received, his good counsel.

That is not to say that such cases did not also challenge Peter. The practice of law can be hard, and Peter felt the hardness keenly at times. I was privileged to be able to lend an ear and a hand in some tough situations. Whatever help I was able to give, I received back from him, with interest.

Peter was blessed with a loving wife and a large family. He lived just a dozen blocks from the office and would often walk to work. He was given to healthy living, and usually had a piece of fresh fruit in his office in the mornings.

As he would not give up on a difficult client, so too would he hang onto objects that others might have parted with. The “garage” at home that he used for “storage” turned out to be an Aladdin’s Cave of artworks, furniture, bric-a-brac and old jazz records. His green and white 1980s bicycle moved from office bike room to office bike room as the firm grew but was never, to my observation, actually ridden anywhere.

2022 was a golden year for Peter. His patient negotiating style achieved a large and satisfying settlement in a difficult case, while his advocacy led to a success for another client in the Court of Appeal.3 He attended a law school reunion in Edmonton (not Calgary). Later in the year, he went on a well-earned trip to Spain with Brenda and the girls.

Near the end of 2022, he started to notice strange symptoms that defied ready explanation. In January 2023, his doctors found a tumour in his colon. Biopsy results revealed that he had cancer also in his liver and endocrine system. His first round of chemotherapy on February 2 was too much for him, and he went on life support the next morning. He died that evening, surrounded by his beloved family.

The Last Two Ages

It is to our great loss that fate did not allow Peter these last two ages.

We will remember him, each in our own way,4 as a vital part of the legacy of our firm, and as a reminder of the dedication to service and to decency for which we all should stand.

Peter is survived by his wife Brenda; his daughters Cynthia, Robin and Jess; his father Walley; his siblings Mike, Sarah and Cathy; and his many, many friends.

John D. Whyte

ENDNOTES

1. As You Like It, Act 2, Scene 7. But you already knew that.

2. Or at least in Bull Durham

3. Newhouse v Garland, 2022 BCCA 276.

4. In my own case, I have written a jazz tune in Peter’s honour called “Brother-in-Law”, which my band Jazzillion plays from time to time.

NEW JUDGE

By R.C. Tino Bella

The Honourable Judge Jeremy Hermanson

Jeremy Hermanson was appointed to the B.C. Provincial Court in May 2023, and will sit in Campbell River. Jeremy and Diane are now decamping from east Vancouver to the eastern shores of Vancouver Island. Their two kids, Will and Olivia, are already enrolled at the University of Victoria.

Jeremy’s path to the bench was by no means a certain one, but all who know Jeremy and reflect on his qualities recognize that he will be an outstanding judge and an asset to the communities he will serve. Jeremy is compassionate, loyal, good-humoured and a natural leader.

Jeremy is the second son of George Hermanson and Wendie Reinhardt. Born in Vancouver, Jeremy spent his formative years in a loving environment surrounded by free-thinkers and idealists. George was a United Church of Canada minister. As part of the UBC Campus Ministry, George was a leader in a movement that radically reshaped the United Church between the mid-1960s and 2015. George and Wendie cultivated a circle of friends that was broader than clergy and included lifelong friendships with Stan Lanyon, Q.C., repeat chair of the BC Labour Relations Board, Doug Todd of the Vancouver Sun and many others who influenced Jeremy’s perspective and career path.

Stan Lanyon in particular fostered an interest in law in Jeremy. Stan’s thoughtful commitment to giving back to the community also rubbed off on Jeremy, and they both sat on the board of First United Church’s housing society, focused on improving the lives of our society’s most vulnerable members.

Jeremy is described as a wilful young person. A prodigious thumbsucker, his thumb developed an unsightly growth to his parents’ dismay.

George, seeing an approaching anniversary as an opportunity, sat Jeremy down and said that a four-year-old was much too old to be sucking a thumb. Upon hearing this, Jeremy pulled his thumb out of his mouth and said, “Then when I am four, I will stop” and popped his thumb right back in his mouth. True to his word, he reached the age of four and was never seen sucking his thumb again. We anticipate this determination and decisiveness (not to mention logic) will be on display in courthouses throughout the midIsland for years to come.

When Jeremy was nine, the Hermanson family moved to Paris, Ontario near Brantford, where George had been appointed minister at a church. Jeremy adapted to the move easily, making lifelong friendships in elementary and high school in Paris.

Jeremy’s mom Wendie says this about her son:

As Jeremy’s parents we noted an unusually even temperament. His responses and reactions were quite measured. One incident in particular stands out starkly for me. We were living in Ontario at the time; it was the winter Jeremy turned 15. I was driving the 403, heading west from Brantford with Jeremy as passenger. Without any warning we struck black ice. My reaction was anything but measured. I might as well have been riding in the trunk for all the control I had of the car. It zigged and zagged back and forth from the divider to the shoulder. I remember cutting right in front of a large truck and also being terrified that we were heading across to oncoming traffic. At the same time that I was uttering expletives, I was fully aware of Jeremy calmly reassuring me over and over that it was going to be OK, that I was doing fine. We ended up in the ditch, plowing through snow to a gradual safe stop. At 15, he had the presence of mind in an extreme situation to not react but to be a steady, even presence. This attribute of being able to think and respond wisely under pressure will doubtless serve him and others well in his role as judge.

Jeremy attended Carleton University in Ottawa. He got an early start at honing his cross-examination skills by questioning travellers crossing the Canada–U.S. border at the Prescott crossing in eastern Ontario during summers. His most obvious accomplishment from this phase of life was not only meeting Diane through the criminology program, but convincing her to date him. Diane is a warm and engaging person who draws people to her in every setting. Diane stayed in Ottawa for a year while Jeremy completed his undergraduate degree, and 1994 they made the trek to the West Coast in Diane’s maroon Chevy Cavalier.

Jeremy started law school that fall at the University of British Columbia, while Diane was the breadwinner, working as a probation officer and then at the Justice Institute. He demonstrated some early proficiency in the courtroom by preserving a conviction as the prosecutor in his first-year criminal law moot. His submissions to the appellate panel were focused

heavily on pointing out spelling errors in the factum filed by opposing counsel. Future counsel appearing before him should ensure their spellcheck feature is in good working order.

Beyond academics, Jeremy was an active participant in the social side of law school. He was a member and later captain of the law school rugby team. On tour in California, he was appalled at the team’s first half performance against the Stanford University business school team, most of whom spoke with some sort of accent indicating a rugby background. Stanford Business was trouncing UBC Law at the half. Jeremy gathered the team under the goalposts, looked each player in the eyes and said “Let’s be realistic. These guys drive nicer cars than us. They are going to make more money than us, and be generally more successful in life. The least we can do is beat them at rugby.” The team was fired up by this speech and came out hard to start the second half, but, true to form, were blown out by Stanford Business.

Outside of school hours, Jeremy had various part-time jobs, including one at the Vancouver Law Courts, where he worked in the Supreme Court judges’ library. This early brush with the judiciary may have given him a taste for his future calling. He played rugby with a Kitsilano-based club, Kats RFC. The Kats have long been associated with the legal profession in Vancouver, having been founded by the Honourable Allan McEachern.

Jeremy and Diane were married in 1995 and lived in Kitsilano, near various friends and classmates that have remained friends for life.

After graduating from law school, Jeremy accepted articles at a full-service firm in downtown Vancouver, Lindsay Kenney. Jeremy stayed on after his articles and was fortunate to work with and learn from an experienced corporate solicitor and fellow member of Kats RFC, Kelvin Stephens. While he enjoyed his colleagues and gained valuable experience and mentorship from Kelvin and others at Lindsay Kenney, Jeremy recognized that bankruptcy and insolvency law was not his calling. Ignoring the advice of his friends, he resigned from the firm as a relatively new call before having lined up another position. He took a few months to consider his future, and with some prodding from his Uncle Don (a probation officer), eventually took a position at the Provincial Crown, where he found his calling.

Jeremy initially practised out of the Crown offices in Provincial Court at 222 Main Street in Vancouver, where he prosecuted all manner of criminal cases. 222 Main Street in those pre-COVID times was a particularly busy, bustling place, full of people of all walks of life, most of them underprivileged. Jeremy quickly became known for his strong work ethic, judgment and sense of fairness and justice. Many victims and families of victims

appreciated the careful and thoughtful manner in which he handled matters that were often delicate and sensitive, whatever the result. Jeremy rotated through various courthouses in the Lower Mainland, including Richmond, Youth Court and the Vancouver Regional Office, where he prosecuted a wide range of serious offences in Supreme Court, including complicated and high-profile murder jury cases. He developed an expertise in prosecuting difficult contempt of court matters, which will no doubt serve him well as a judge.

Jeremy was honoured with a Crown Recognition Award in 2016. At that time, he was noted to have an unflappable calm and a subtle, witty sense of humour. He was described as a hardworking, consummate professional who did not shy away from difficult cases or decisions.

Defence counsel have also described Jeremy as a consummate Crown. They say he was straightforward and fair and fought hard. His approach was friendly and congenial. He has been a sought-after resource, trusted mentor and confidant to many younger prosecutors.

Jeremy is a devoted husband to Diane, and a proud father to Will and Olivia. He has spent many hours at hockey rinks and tournaments across Canada as a supportive hockey dad, while being a below average beerleague hockey player. He and Diane are adept at building relationships and have an active social life, whether it be hosting Kentucky Derby parties at their house in east Vancouver, or entertaining at their family cabin on Cortes Island. They have already started cycling around the mid-Island, reconnoitering beaches, pickleball courts, craft breweries and other community delights.

Those who know Jeremy know that he is well suited to this next phase of his career. He was a firm but fair advocate as a prosecutor, who maintained compassion for all participants in the system. He is communityminded and service-oriented. He has a strong sense of ethics. Perhaps most importantly, he is calm, reasonable, thoughtful and measured. These are traits that will serve him well on the bench.

NEW JUDICIAL JUSTICES

By R.C. Tino Bella

Judicial Justice Hugh Sutherland McCall

Hugh Sutherland McCall was sworn in as a judicial justice of the B.C. Provincial Court on August 9, 2021. Friends and family—including his three splendid sons, Hugh’s pride and joy—were there in support.

Hugh was welcomed into the world some 66 years ago at a small clinic in Cassiar, British Columbia by his mother and father, who was the town doctor, ad hoc magistrate and coroner. Hugh’s older brother Sam greeted him shortly thereafter and, 16 months later, they welcomed their younger sister Lael. Hugh’s memories of that frontier life include sleeping in canvas tents thrown over sapling poles on the shores of pristine lakes teaming with rainbow trout, a green sheen of dust from the asbestos mill covering the adjacent town site, the sound of feral dog packs howling along with the daily 5:00 p.m. works whistle blast and seeing a group of older boys carrying a dead lynx into town on a sheet of plywood.

The family moved to Paris, France when Hugh was five years old. He attended a local school where shame and punishment were the primary teaching tools. But Hugh’s basic world outlook is cheerful and optimistic, so despite the harsh school environment, he learned French and has good memories of Paris, its sights and its smells. He is a committed Francophile.

After graduating from a tiny elementary school in Clinton Creek, now a Yukon ghost town, and St. George’s School in Vancouver, Hugh went to Strasbourg for a year to study French at Schiller College. He lived with a farming family where he milked cows, churned milk, planted potatoes and drove a tractor.

Hugh attended UBC in 1976 and later transferred to Laval University for a bit of glamour. There, he polished off a Baccalauréat ès arts in French

Canadian literature. Along the way, he returned to his northern roots in Clinton Creek and worked for a couple of years in an asbestos mine as a bagger, sweeper and heavy equipment operator. He also worked with a placer mining operation outside Dawson City and with a river rafting outfit on the Klondike River. As if all that were not enough to satisfy his adventurous spirit, Hugh built a 750 square foot log house only a block away from Robert Service’s cabin in Dawson City.

Not content with character and muscle building in the North, or with the dynamic culture of Quebec City, Hugh went on to study law at UBC. Again working his way, he was a special constable with the RCMP in Yukon one summer and did two stints in Ottawa as an assistant to Jake Epp, an MP from Manitoba, and then Erik Nielsen, MP for Yukon, while gaining insights into the inner workings of the House of Commons.

Hugh was called to the bar in 1987 and quickly set up in sole practice. But shortly afterward he heard the call of the wild once more. This time it was the spectacular west coast of Vancouver Island beckoning. Hugh and his brother Sam set out to develop a salmon farm company. They drafted a business plan and Hugh was soon prospecting the waters of Nootka Sound and Esperanza Inlet in small watercraft, seeking farm sites, staking foreshore leases, obtaining approvals from the B.C. Ministry of Lands, Navigation Canada, and the Department of Fisheries and Oceans, conducting water quality monitoring and liaising with potential investors. However, a number of events in 1989 caused the price of salmon to tumble and Hugh eventually conceded that a career in law was a more promising proposition.

In 1990, Hugh became an arbitrator at the Residential Tenancy Branch and discovered his ability to listen actively, maintain objectivity, guide parties in distress and give them confidence by applying principles of fairness at every turn. Having found his niche, Hugh set his career path and over the following 15 years he conducted over 10,000 arbitrations. The volume of hearings and wide range of parties from different walks of life and cultural backgrounds provided Hugh with rich experience and a vast amount of material with which to hone his skills.

Hugh and Annette began their family in 1993 and Ian, Hugh Jr. and Robbie were born within four years of each other. Hugh’s vision of parenting focused on nurturing honest relationships. He and the boys read avidly together and shared many adventures building catapults and skate ramps, hiking, skiing, cycling and kayak-camping on the west coast of Vancouver Island. This approach appears to have worked out well. Indeed, all three children are happily successful in their chosen fields of software engineering, clinical psychology and environmental art for the gaming industry. The brothers are devoted to their father and to one another.

In 1994, Hugh added mediation to his practice. He took to mediation like a duck to water, gently wading into other people’s problems and skilfully helping them resolve their disputes without incurring the financial and emotional costs of litigation. Hugh has conducted hundreds of mediations. He was one of the first mediators in the Small Claims Court Mediation Program and became a mentor for many freshly qualified mediators, thereby contributing to the evolution of mediation in British Columbia. Hugh claims to have begun his mediation practice as a child, having acquired an aptitude for neutrality as the middle child in a family of large personalities.

With his empathic nature and his arbitration and mediation skills firmly established, a committee representing the parties to the Indian Residential Schools Settlement Agreement selected Hugh as an adjudicator for the Independent Assessment Process (the “IAP”) in 2007. The IAP was the extraordinary tribunal established by the Government of Canada to address individual claims of compensation for abuse at Indian Residential Schools in Canada.

The adjudicator held an important and sensitive role in finding the difficult facts necessary to support settlements for claimants who had suffered physical and sexual abuse by individual members of religious organizations funded by Canada. There were thousands of cases to be reviewed and many participants and interests at play. Over the course of a decade, Hugh travelled to remote communities to hear evidence. The work was immensely rewarding and meaningful for Hugh. Already a good listener, Hugh’s capacity for compassion, reason and interpersonal balance, and his respect for his fellow humans, grew and solidified. This remarkable process came to be characterized as “therapeutic justice”.

Building on his experience with the Indian Residential Schools Adjudication Secretariat, Hugh was appointed in 2017 as an adjudicator with the Torture Claims Appeal Board of Hong Kong (the “Board”). The Board hears de novo claims challenging the decision of an immigration officer who has denied protection under the Refugee Convention, and three further grounds recognized under Hong Kong law. In practice, this meant that Hugh would fly to Hong Kong two to four times a year and sit for a month or two as an adjudicator of the Board, hear evidence and render written decisions. Cases involved people from around the globe seeking refuge from a range of situations involving threats due to vengeful spouses, political enemies, authoritarian state agencies and the failure of state infrastructure as a result of civil war and/or ethnic conflict.

Hugh is a devoted cyclist. He identifies as a “randonneur” and has been associated with the B.C. chapter since 2014. The greatest and most fabled

randonneur ride is the 1,200 km Paris-Brest-Paris. Hugh completed the event in August. The training was gruelling, but Hugh is nothing if not determined. He successfully completed the pre-qualification rides, 200, 300, 400 and 600 km. He survived falls, muscle cramps and an Achilles’ heel injury. A key challenge for a long-distance rider is settling on the right equipment. Hugh rides a Trek Domane SL7 with an Ultegra group set and electronic shifters. On registering his bike, Hugh christened it the “Wheels of Justice”.

Hugh is a marvellous addition to the bench. He is both affable and collegial. He has travelled widely within Canada and beyond and come into contact with people from diverse cultures, socio-economic means and educational backgrounds. He cherishes the fundamental rights of Canadian citizens and Canada’s strong commitment to the rule of law. Hugh will judge with wisdom, compassion and objectivity commensurate with his depth of skill, experience and knowledge.

Judicial Justice Nicole Cederberg

May 1, 2023 was a special day for Nicole Cederberg and her family. She was sworn in as a judicial justice of the B.C. Provincial Court in the presence of her beloved father Bud and son Anders, and in the virtual presence of her daughter Danica and many friends and former colleagues. Missing from this momentous occasion was her late mother Doreen, who had passed away only weeks earlier, and Nicole’s late husband Mike, who had been her constant champion and supporter from the time they met in high school until he passed in August 2014.

Nicole is a woman of many accomplishments, but modest about all of them, other than her two children. Nicole’s proudest moments involve her children. They have been a constant source of support and inspiration. They are both bright, kind, funny, thoughtful and independent people. The apple has not fallen far from the tree.

Nicole grew up in New Westminster with two younger and (still) adored brothers. Her parents led by example and encouraged lifelong participation in education, arts, athletics and community service. Both parents viewed their real career as devoted parents to their three kids. A fun fact about Nicole is that she is very musical. She played piano and trombone (which led her to her beloved husband Mike) and performed in musical theatre. She further was and is a sports enthusiast, playing softball, basketball, rugby and ice hockey among other sports. Her love of arts, sports and culture continues through her volunteer commitments, such as coaching and sponsorship, and her children’s lifelong involvement in sports and the arts.

Nicole is a natural leader. She is known for her intelligence, humour, high energy and ability to readily establish positive connections with all those she meets. She holds herself to the highest standards of professionalism and integrity in everything she does.

Nicole attended one year at the University of British Columbia, then attended Simon Fraser University, obtaining a bachelors of arts degree. She graduated with her LL.B. from the University of Windsor in 1988 and was called to the bar in British Columbia in 1989.

Upon her call to the bar in British Columbia, Nicole commenced an illustrious career in litigation. She returned to British Columbia and started practising at Milne Selkirk in 1988. She spent five years there focusing on a general litigation practice with an emphasis on personal injury defence, family law and collections matters. She spent 14 years with the Insurance Corporation of British Columbia (“ICBC”), beginning as junior counsel in New Westminster, then progressing to senior counsel and transferring to the Island to become manager of both in-house North Island litigation offices in Courtenay and Nanaimo. She was responsible for maintaining a defence practice and was part of a management team overseeing hundreds of legal services employees. She further served as a harassment advisor to both complainants and respondents.

In 2007, Nicole left ICBC and started work at Heath Law LLP, where she remained until 2022. She was senior litigation counsel and principal contact focusing on complex and catastrophic personal injury defence actions and fraud prosecutions for ICBC. She further practised in the area of workplace investigations into allegations of improper conduct.

One can attribute Nicole’s quiet confidence, stately presence and undying commitment to collegiality and ethics to her upbringing and the mentorship she received throughout her work years. Her home life and work life laid the ground for her able negotiating, writing and oral advocacy skills. Nicole has always been a team player. Her open-door policy for all and will-

ingness to give all of her time to support others are well known among her peers and friends.

Nicole always has believed in giving back to the communities that have supported her. Her community service and volunteer involvement include, to name only a few of her endeavours, Access Pro Bono (as clinic counsel), Vancouver Island University Research Ethics Board member, moot/legal competition judge, Law Society Ethics Committee (and Complaints Resolution Committee) member and contributing author of the CLE Motor Vehicle Practice Manual. This does not include the long list of volunteer positions she has held in school districts, arts organizations and police and crime prevention boards. Nicole further has given special attention and many decades to youth sports and the performing arts as an athlete, performer, volunteer, coach and patron.

Nicole believes that all of us have a responsibility to support and mentor young people as they navigate through life’s challenges. She always has done this through coaching, mentorship and the friendship she provides to all the young people she encounters. Nicole leads by example. She is a tremendous advocate in all she does, but maintains balance and perspective and holds herself to the highest ethical standards.

Nicole always has been well regarded as a knowledgeable and effective litigator who is a pleasure to have on the opposite side of a file. She also has an incredible sense of humour and when she tells a story and you hear that laugh of hers, well … it is contagious. She has her own way of dealing with counsel who dare to patronize her or speak inappropriately to her. It has something to do with wearing high heels on a 5’10” frame that forces counsel to have to look up … and up in order to speak to her. You may wish to ask her about this and, while you are at it, also inquire about the many horrific stories that have resulted from the fact she took band in grade 9 instead of typing. Oh the typos. Oh the horror after she has pressed “send” before careful scrutiny.

Nicole has a talent for listening and making people feel heard. She cares deeply about others and will have no problem navigating her new role as a judicial justice. We have no doubt that all those who appear before her will feel heard and understood and will know she has given thoughtful regard to their situation. All British Columbians are well served by this appointment. Nicole will treat all those who appear before her with kindness, respect and compassion.

Judicial Justice Aamna Aziza Afsar

On July 26, 2022, Aamna Aziza Afsar was appointed as a judicial justice of the Provincial Court of British Columbia. A principled, pragmatic and perceptive jurist, her expertise in both criminal law and administrative decision making enriches British Columbia’s judicial ranks.

Aamna grew up in Swift Current and later Regina, Saskatchewan, the youngest child of Pakistani immigrants. Aamna’s parents each followed unlikely and remarkable paths from Pakistan to small-town Saskatchewan. Her father Mohammad, a civil engineer and urban planner, grew up in a remote Pakistani village and was one of few of his generation to obtain a university degree. Her mother Zia began her life in pre-partition India, only to later relocate to Pakistan. Zia was the first woman to apply to study engineering in Pakistan but was denied admission because of her gender. She helped successfully challenge that genderbased prohibition, paving the way for female Pakistani engineers to come. Unfortunately, the challenge did not succeed in time for Zia to pursue her own studies in engineering. She ultimately obtained a master’s degree in nuclear physics. Following their academic success in Pakistan, Aamna’s parents were each awarded scholarships to come to Canada as graduate students and met at McMaster University in Hamilton, Ontario. The family, including Aamna’s two older siblings, eventually settled in the Prairies.

It is no surprise then that Aamna was raised in a home where education was both prized and encouraged. However, her parents also imparted a broader set of values grounded in public service, community-mindedness and humility—values that guide Aamna to this day. Upon their arrival in Swift Current, Mohammad and Zia set about forging ties in their new community. They helped found Swift Current’s first mosque, a place of inclusion and support for the area’s small but culturally diverse Muslim population, building bridges with the broader non-Muslim community. Inspired by their adopted country’s bilingualism, they were also instrumental in bringing French immersion instruction to Swift Current’s schools and helped start Swift Current’s first French immersion preschool. They would become proud French immersion parents, strongly encouraging Aamna to master both English and French, even if it meant that Urdu (which they spoke at home) ended up taking a back seat. They soon discovered that

encouraging Aamna to master French benefitted the whole family when, at age 10, she successfully navigated them through a family vacation in Paris.

After graduating high school with a bilingual diploma, Aamna attended the University of Regina, where her studies took a circuitous path. She eventually landed on studying the human brain and obtained an honours degree in psychology and biology. She worked in an acquired brain injury clinic and wrote her honours thesis on the effects of pre-frontal lobe damage on prospective memory. The obvious path forward for Aamna would have been to pursue graduate studies in research psychology, but Aamna realized she longed to work with people rather than lab rats. Her parents’ influence also had her thinking broadly about working in human rights. This led her to take an academic turn and apply to law school.

Aamna’s decision to study law at McGill University was fateful. McGill’s bilingual and bijuridical approach to legal instruction was a natural fit. Reflecting the values of inclusion and public service with which she had been raised, Aamna spent her summers during those years working for the Saskatchewan Human Rights Commission, for the National Organization of Immigrant and Visible Minority Women of Canada, and as head of McGill’s Advocacy Clinic. Perhaps her most impactful experience at McGill came in meeting her future husband, Peter. They formed an instant and enduring connection. In what has been a running theme in her life, Aamna also formed tender and lasting friendships with several in her McGill cohort, relationships that remain steadfast and meaningful today.

Following law school, Aamna moved to Alberta for two reasons: to article in public law with Alberta Justice and, more importantly, to spend time with her nephew who had recently been born. She continued in the civil litigation department after her call to the Alberta bar, but the lure of the coast was too strong to resist, especially considering that Peter was in Vancouver. In 2006, Aamna made the move further west to join the British Columbia Prosecution Service as Crown counsel.

In her years as Crown counsel she gained broad experience—from front end work to jury trials, from Youth Court and Downtown Community Court to complex sexual assault and murder cases. Aamna’s dedication was such that she worked on her first jury trial even late into her first pregnancy. Though opposing counsel jokingly bemoaned that her condition might afford her an unfair advantage with the jury, her real advantage—to quote another defence lawyer—was “her unbelievable work ethic and intellect”. Beyond this, as a former colleague aptly puts it, Aamna seems to have “a crystal ball when it comes to issue spotting” and her pragmatic assessments are “on the mark every time”.

As Crown, Aamna demonstrated particular ability in her dealings with marginalized victims and witnesses. This, her former colleagues have said, comes from “her genuine interest in people and her innate kindness”. A committed and effective advocate, Aamna also maintained the equanimity that is so important to the proper exercise of prosecutorial authority. When possible, she worked collaboratively with defence to achieve fair outcomes in the public interest. Described by some as “unflappable”, she efficiently managed long court lists and an unrelenting barrage of work as Crown, and yet still found time over the years to volunteer with West Coast LEAF, the CBA mentorship program, the UBC Criminal Clinic, the Indigenous Community Legal Clinic and the Justice Education Society.

After many years with the Crown, Aamna’s interest in administrative decision making and refugee law prompted a move to the Refugee Protection Division (“RPD”) of the Immigration and Refugee Board (the “Board”), where she became an adjudicator. Her many years of principled and highvolume decision-making as Crown counsel served her well, as she took on a heavy adjudicative load. Recognized early on for her “sharp legal mind, witty sense of humour, [and] cultural competence”, Aamna soon became a member of the Board’s Gender Related Task Force, where she developed training on trauma-informed practice and intersectionality and helped redraft the Board’s gender guidelines. No doubt because of the success of that initiative, Aamna was subsequently tapped to become a founding member of the RPD’s Quality Centre, whose mandate was to ensure excellence in decision making.

In November 2021, Aamna was appointed as an alternate chair of the British Columbia Review Board, with a mandate to make and review dispositions under part XX.1 of the Criminal Code for accused persons found not criminally responsible due to mental disorder or unfit to stand trial. In many ways, that appointment represents the interweaving of several threads running through the fabric of Aamna’s education and career— including her background in psychology and criminal law, her experience dealing with vulnerable populations and her expertise in administrative decision making.

Throughout it all, Aamna has managed to remain present and engaged in both her community and family life. She is a longtime and active member of the Canadian Counsel of Muslim Women. She and Peter are the proud parents of two wonderful sons, whom they love fiercely and encourage as they explore their own fledgling pursuits. Beyond this, Aamna is a cherished friend to many. Her home is a hub—a place everyone wants to be and feels welcome. She celebrates her friends’ triumphs and mourns their

losses as though they were her own, but can also be counted on to help them keep their feet firmly planted on the ground.

Aamna is, in sum, precisely the kind of decision maker individuals involved in our justice system should face. To quote a defence colleague who worked opposite her when she was Crown counsel, her “breadth and depth of knowledge both in law and in the human experience” are such that “she is truly the rare and complete legal package”.

Judicial Justice Leslie-Anne Wall

On July 12, 2021, Leslie-Anne Wall was sworn in as a judicial justice of the Provincial Court of British Columbia. Her family, friends and law partners were thrilled for her, and happily the fewer pandemic restrictions allowed some of them to personally attend the welcoming ceremony.

A West Coast woman through and through, LeslieAnne was born and raised in Vancouver, was educated at UBC for both her undergrad and law degrees and went on to practise law as close to the Pacific Ocean and the coastal mountains as she could. During the first day of law school, while socializing in the lineup for the book store (pre-internet age), Leslie-Anne met some of her now lifelong friends, and the father of her four children. From the beginning of her law school days, she embraced the “practice” side over the book side and spent many days volunteering with the Law Students’ Legal Advice Program (“LSLAP”) and chose the full-term legal clinic over attending a myriad of classes. The trajectory of her legal career was likely further advanced through her committed training for the annual UBC trike races and her performances in the UBC Law Revue. In her spare time, she also organized and hosted champagne breakfasts to celebrate important “legal” events, such as “law days”, the end of term and, of course, the passing of tax law.

On leaving law school with an LL.B. in hand, Leslie-Anne made a slight wrong turn and ended up articling at a downtown civil litigation firm, learn-

ing more than she cared to know about construction litigation and Komatsu diggers (or so she often complained). She also performed admirably in another apparent legal practice area of her firm: returning the empties from the law firm’s wine cellar to the liquor store and returning with full bottles to replenish the fridge. Both the firm and Leslie-Anne survived their time together and on Friday, June 13, 1986, Leslie-Anne was called to the bar.

Shortly after her call to the bar, with civil litigation firmly in the rearview mirror, and many happier diggers to prove it, Leslie-Anne made her way to criminal defence work, where she found her people and answered her calling to uphold “truth, beauty and justice” (as all criminal lawyers will attest is the only reason one does this work, that and the fact that the bar is full of delightfully colourful characters with whom Leslie-Anne immediately identified). Leslie-Anne began her criminal defence career with Susan Daniells, K.C., and soon after joined what was then the criminal defence law firm of Leask, Daniells & Bahen. Later on, others joined Leslie-Anne and Susan, including Debra Carpentier, K.C. and Her Honour Karen Walker, P.C.J. Susan Daniells continues to be a valued friend and mentor to Leslie-Anne, and all those who know Susan will tell you she is also imbued with the patience of Job as she shared an office with Leslie-Anne for over 30 years. Throughout her practising career, Leslie-Anne achieved several firsts in her efforts to advance the efficacy of the criminal justice delivery in Vancouver, including acting as the first dedicated defence counsel for a newly designated Drug Treatment Court, along with founding judge Jane Godfrey. In addition, she was one of the first Criminal Clinic staff lawyers at the Legal Services Society’s Criminal Law Clinic Pilot Project. Once she heard about the excellent salmon fishing on the central coast of British Columbia, LeslieAnne was keen to be appointed as defence counsel for the Circuit Courts in Bella Bella, Bella Coola and Klemtu. There her career was enriched by a deeper immersion in the Indigenous cultures of the Heiltsuk and Nuxálk Nations, as well as only slightly improving her pool game after hours in the Shearwater Hotel. (Ultimately she left the fishing to the federal Crown on the circuit.)

Throughout her career, Leslie-Anne enjoyed the teaching opportunities that came her way. Fondly remembering her days at law school (or at least the days she actually attended), she returned as an adjunct professor and lecturer at UBC Law for LSLAP. For many years (decades actually), LeslieAnne was also a supervising lawyer for the UBC Criminal Clinic, a mentor and supervising lawyer for Simon Fraser University’s criminology program and a guest instructor at the Professional Legal Training Course, the Justice Education Society and the Continuing Legal Education Society of British

Columbia. Her deep commitment to the principles of the criminal justice system, along with her ability to focus on the humanity of those individuals she serves, have left a lasting mark on all those she taught. These values continue to guide her work on the bench.

Realizing that her legacy should be founded in more than just professional achievements, Leslie-Anne has a hoard of children, stepchildren, grandchildren and dogs, all of whom are her delight and pride. They spend their summers where Leslie-Anne herself spent her summers, at Crescent Beach, swimming in the “tanks”, diving off the pier and competing for the Crescent Beach Swim Club, as she did. They are keen athletes taking after their mother and grandmother, flinging themselves down Mt. Baker and Whistler, being slightly more successful than she is in remaining intact with no broken bones to show for it. They too, as did their mother and grandmother, participate in a summer ritual of kidnapping their fellow swim team members in the early hours of a designated day, even though LeslieAnne should well know the elements of a kidnapping offence and the penalties at this point. Her husband (Bradley Caulfield), kids, grandkids (too many to name) and dogs (also too many to name) are all hugely proud of her judicial appointment and are somewhat optimistic the shenanigans of her misspent youth are behind her. However, there is the matter of her new motorcycle.

Leslie-Anne’s journey toward the position of judicial justice probably began in her very early years, during which she learned the value of time with family and friends. Honed throughout a colourful stint at law school and a varied and satisfying career to date, all of her endeavours to this point have been centred around a sense of community mixed liberally with compassion and humour. And all who know her are confident that these attributes will stand her in good stead as she performs the functions of a judicial justice.

NEW REGISTRAR

By R.C. Tino Bella

Registrar Meg Gaily

Meg Gaily was appointed as the Registrar of the B.C. Supreme Court on October 12, 2022. The word “gaily” is derived from Middle English, meaning “joyful, happy or pleasant”. It is an apt description for our new Registrar.

Meg brings to her appointment not only a towering stature (at 6’1”), but also an intellect to match. Born south of the 49th parallel in Seattle, Washington on a date last century she refused to disclose, Margaret Emily Gaily arrived as a bundle of joy to her parents, Carol and Dean Gaily, and a now terrified older brother, Bruce. Shortly after her arrival, she appears to have arranged for her father, a physicist, to complete his Ph.D. at the University of Washington and secure a post-doctorate position at the Culham Laboratory (now the Culham Centre for Fusion Energy) in Oxfordshire, so off to England the Gaily family traipsed. Though Meg lived in Oxford (Abington really) only between the ages of three and five, she developed an abiding passion for literature and a monstrous dislike of Bird’s Eye custard, a dessert topping heavily used by the English. She made her displeasure known to those who placed this disgrace before her by proclaiming loudly, “No cussy!”, a cry that would now not be out of place for litigants who may appear before her.

At some point in the early ’70s, her father took a tenure-track position at the University of Western (now Western University) to help establish the atomic and molecular physics group at the Department of Physics and Astronomy. What was supposed to be a one-year sojourn turned into 30, meaning Meg’s formative years were spent in London, Ontario as a faculty brat. Among surely some other things, she says she learned table manners in this period. The Gaily family, given Dad had summers off, also embarked

on bi-annual summer pilgrimages to eastern and southern Oregon, always stuffed into the family Volvo, to visit relatives in La Grande and Ashland. Trips to various iconic parks en route, such as Yellowstone, Grand Teton and Crater Lake, instilled in Meg a love of nature, a passion that motivates her to this day. Indeed, in grade 11 she was part of the junior conservationist award program, spending the summer in Sault Ste. Marie and Algonquin Park in Ontario.

Meg attended London Central Secondary, though despite her height did not play basketball. She did have indirect involvement in rowing, a sport that would feature later in her life. At this point, however, that involvement was passing, as in she often passed the rowers heading to practice at 4:30 a.m. as she was coming home from some all-night event. Nonetheless, she graduated from grade 13 in 1983 and set off for Hogtown, having landed herself a spot at Victoria College at U of T. Meg immersed herself in philosophy and literature, including courses on Shakespeare taught by Northrup Fry. During her undergrad years, Meg also took time to fly to Europe, landing on runways in London, Milan and Paris as part of her Old World travels, a time best and enjoyably described as “a bit of a blur”. Returning to her studies, she came out the other end in 1987 when she graduated as a skilled, welltravelled but unemployed philosophy and literary studies major.

Meg took a two-year hiatus from higher education to earn cash as a waiter/bartender in some of the finest dives in London, Ontario. At this point, she intended to go into the study of public law and save the world. True to that motive, during this carefree period, early signs of Meg’s commitment to public service and causes emerged. She worked as a housing activist and as a volunteer for a sex assault crisis line. In 1989, she gained admission to UVic Law and, as it turned out, moved west for good. Again, nascent indications of Meg’s researching prowess emerged as she was hired as a summer research assistant for UVic faculty each summer from the first year on. Also foreshadowing her future, she worked the summer after law school on contract to then-Registrar Elizabeth Dunn in Victoria. She spent that summer on the sixth floor of the Victoria courthouse on Burdett Avenue, archiving old decisions and gazing out at what she now concedes was the best office view of her career.

Upon graduating from law school with her LL.B. in 1992, again perhaps foreshadowing her own future, Meg went to clerk for Justices Spencer, MacDonnell, Blair, Errico, Hardinge, Saunders and Newbury. Her research skills were again honed by some of the cases her judges heard. In one instance, as Justice Newbury wrestled with the question of whether a mortuary fell within the business description of a “processor” of product as was

required to operate within a commercial strata, Meg rescued the day by finding an obscure English tax case (Hutton v. Watlin) that resolved the issue. The resulting judgment was upheld on appeal. Meg’s fellow clerks, including now Justices Horsman, Chan and Loo, describe her as a fun, smart and supportive friend and mentor with a great sense of style and enviable confidence as a strong, accomplished young lawyer.

Following her stint as a clerk, Meg articled at Lawson Lundell in 1993 and was called to the bar in March 1994. After her articles, she became a workplace compliance officer at UBC, implementing new Workers’ Compensation Board legislative requirements. Unsurprisingly, she drew the attention of several of the law school professors, including Professor Dennis Pavlich, who had her help out at the President’s Office where she worked until 1996. Meg then went to work at Taylor Jordan Chafetz until 1999 when she returned to the courts, becoming the Court of Appeal Law Officer, a post she held for nine years working first with Chief Justice MacEachern and then Chief Justice Finch. Among other accomplishments there, she was a mentor to legions of clerks, providing caring but firm counsel. Justice Newbury captured her skill best by noting that Meg taught each year of clerks how to succeed in a time-sensitive and often stressful environment.

Meg’s son Jack was born in 2004. Tall, bright and engaging, Jack is now at Victoria College at U of T. Jack describes his mum as a strong person who gets **** done, though he concedes she has a soft and caring side too.

In 2008, Meg began to work on contract providing legal research and writing services. Again, her bent for public service surfaced. Between 2010 and 2012, she worked as research counsel for the Cohen Commission of Inquiry into the Decline of Sockeye Salmon in the Fraser River. She also began her appointments to various tribunals, including the Employment Assistance Appeal Tribunal and the B.C. Teacher Discipline Hearing Panel, and worked as both a Municipal Bylaw Infraction and Translink Fare Infraction Adjudicator. She was a member of the B.C. Council of Administrative Tribunals, sitting on the Education Committee for many years, and a member of the Canadian Council of Administrative Tribunals.

In March 2015, Meg returned to Lawson Lundell, where many of us think she should damn well have stayed. She joined the Research and Opinions Group and worked with every practice area on the most difficult and complex research issues. Her talent for mentorship was again in the fore, always with an open door and great listening skills in her caring but firm way. She was a joy to work with and is greatly missed.

Meg became a director of the Courthouse Libraries BC Society in 2018 and served as its vice-chair and, more recently, as its chair for three years.

In 2020, she also became the CBABC representative on the Uniform Law Conference of Canada. She has written and contributed to numerous CLEBC texts, including Civil Jury Instructions, Criminal Jury Instructions and the Family Law Sourcebook, and presented at many CLE conferences. She also returned to her passing interest in rowing when her son Jack took up the sport in 2018. In addition to driving Jack to early-morning practices in Indian Arm, she became a director of the Deep Cove Rowing Club and served as a Safe Sport conflict resolution officer for Rowing B.C.

In her downtime, Meg is a voracious knitter, committed hiker and allaround outdoor enthusiast. Her one flaw is perhaps that she is a cat person, not a dog person. In short, she is indefatigably energetic and involved in the community. Smart, quick-witted, funny, personable, patient, committed and engaged, she brings a deep and well-rounded breadth of experience to her new role. She will do credit to the Supreme Court as its Registrar.

SOUTH OKANAGAN PARTNERSHIP OPPORTUNITY

Well established busy award winning South Okanagan General Practice seeks an experienced Family/Litigation Lawyer and a Real Estate/Estates Solicitor with a view to the future and possible Partnership/Ownership opportunities for the right candidate(s). PLEASE

OFFICE SHARE

Beautiful Kitsilano office for share with 2 family law/ real estate lawyers with complementary or similar practices. Located just outside of downtown for great accessibility, parking and lifestyle. The offices are fully equipped, with a beautiful boardroom and space for admin staff. The office is suitable for an ambitious and entrepreneurial lawyer looking to build upon their existing practice within an established law office. Possible opportunity for referrals available. Great value. Rent is $1500/mo plus shared expenses. Would consider a junior family law lawyer on a fee split basis as well if the right fit.

Please call 604-734-8411 for further inquiry or Email eva@andersenpaullaw.com

LEGAL ANECDOTES AND MISCELL ANEA

By Ludmila B. Herbst, K.C.*

BRITISH COLUMBIA’S FLORAL EMBLEM

In 1956, the province’s Floral Emblem Act was enacted, providing that “[t]he flower of the tree known botanically as Cornus Nuttallii, commonly known as the flowering dogwood, shall be adopted as and deemed to be the floral emblem of the Province of British Columbia”.1 What are often assumed to be the flowers of this deciduous tree, which blooms in mid-spring and sometimes again in the fall, are actually white or off-white leaf clusters, or bracts, that surround a cluster of much smaller, greenish-white, flowers at the centre.

The dogwood family ( Cornaceae ) has members native not simply to North America but also to Europe and Asia. British Columbia’s floral emblem—now variously known as the Pacific dogwood, mountain dogwood or Western flowering dogwood—grows from southwestern British Columbia to California, with some also found in Idaho. In the wild, Pacific dogwoods often grow under evergreens such as Douglas fir and Western hemlock.

The name “dogwood” likely has no relation to canines, though one supposed conversation about the Floral Emblem Act between an enthusiastic dog (J.B.) and her owner went as follows:2

“Why, this is a great honor indeed they are doing us dogs,” J.B. remarked.

“I have long said that it is time B.C. went to the dogs and this is certainly a step in the right direction.”

“The dogwood has nothing to do with dogs,” I pointed out.

“Don’t be foolish,” J.B. said. “The dogwood certainly has something to do with dogs. You are confused,” she corrected me, “what you mean is, the dogwood has nothing to do with cats, which is as it should be.”

One theory less complimentary to canines than J.B. espoused traces the name “dogwood” to the low regard in which some held the fruit of certain

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

Cornaceae varieties—that is, as only “fit for a dog”.3 As to the fruit of the Pacific dogwood specifically, the B.C. government describes it as “edible” (and indeed it is apparently favoured by birds, bears and beavers) but “bitter”,4 though another website gives it no more than a less-than-reassuring “possibly edible” label.5

More likely than having canine derivation is that the “dog” in “dogwood” relates to the fact wood from trees in the dogwood family was traditionally used, in its various locations, for making skewers or daggers (“dague”, “daga” and “dag” in French, Spanish and Sanskrit, respectively).6 The wood of trees in the Cornaceae family is suitable for such use because it is especially hard. Correspondingly, First Nations’ use specifically of the Pacific dogwood included “the production of bows, arrows, implement handles and clothing hooks”, as well as the making of baskets, dye and medicine.7

The origin of the Pacific dogwood’s botanical name (Cornus Nutallii) is somewhat clearer than that of its family’s common name. John James

Audobon (of Birds of America fame) named the tree in honour of Thomas Nuttall, an English botanist and ornithologist who worked for several decades in North America before returning to his home, the wonderfully named Nutgrove Hall, in Lancashire.8 Nuttall saw the tree when staying in Fort Vancouver (the site of present-day Vancouver, Washington, on the northern bank of the Columbia River) in 1834 and recognized that it was a distinct species within the dogwood family. Describing a plate in Birds of America that showcased two band-tailed pigeons, Audobon wrote that they were depicted “on the branch of a superb species of dogwood, discovered by my learned friend THOMAS NUTTALL, Esq., when on his march toward the shores of the Pacific Ocean, and which I have graced with his name!” Audobon noted that Nuttall had told him he had witnessed “swarming flocks” of the pigeons feeding on the berries of the tree.9

British Columbia’s decision in 1956 to adopt a floral emblem was not, in itself, controversial. Many provinces as well as American states had already adopted floral as well as arboreal emblems. Indeed, two of those states had already adopted a variety of dogwood—not British Columbia’s version, but Cornus Florida L., which is also known as the Eastern flowering dogwood— for this purpose. The Eastern flowering dogwood has a smaller flower, usually with four bracts rather than the four to six of the Pacific dogwood. The U.S. state of Virginia adopted the Eastern flowering dogwood as its floral emblem in 1918 and North Carolina did so in 1941. The Eastern flowering dogwood also became two states’ “arboreal emblem” or state tree, achieving that status in Missouri in 1955 and in Virginia in 1956.

More controversial than the decision to have a floral emblem in British Columbia was what it should be.

The chief complaint about first the prospect, and then the eventual choice, of adopting the Pacific dogwood was its relatively limited geographic range within the province. In British Columbia, rather than being distributed province-wide, it is found principally on Vancouver Island and the Lower Mainland, though its range extends some distance into the Fraser Canyon north of Hope and it may reappear along the Seymour Arm of Shuswap Lake. Some in the “hinterland” of Kelowna, for example, were offended that the nearest specimen of Pacific dogwood might be viewed on an experimental farm in Summerland.10

A committee formed in 1943 to choose British Columbia’s floral emblem noted that ideally the selected emblem would be found throughout the province,11 which of course the Pacific dogwood was not. Apparently that committee recommended—unsuccessfully—choosing the wild columbine as the floral emblem; however, that recommendation was not followed. That flower was itself criticized for relative obscurity, and it was also seen as being harder to draw than Pacific dogwood bracts and as thus having less artistic potential.12

Dogwood proponents noted that geographic limitations did not prevent the use of other official symbols. For example, the lion and unicorn appear on the province’s coat of arms despite the fact that “the lion is found only in the zoos of the country it represents and no one has seen a unicorn in its natural habitat lately”.13 Other proponents contended that while the range of the Pacific dogwood might be limited, at least its relatives were found elsewhere in the province. Women’s Institutes, which were very supportive of the Pacific dogwood as the provincial floral emblem, confirmed through a survey of members the wide distribution of at least two other species of the dogwood family through the province: the bunchberry (Cornus canadensis L.) and the red osier dogwood (Cornus sericea L.).14

Flowering dogwoods of an indeterminate variety at the Vancouver Law Courts

Other observers noted that while the Pacific dogwood might not grow province-wide, it had benefitted soldiers and veterans from across the province: lapel pins in the shape of dogwood flowers were sold to support the B.C. Regiment during World War II and, later, to support veterans who needed medical care.15 Particular credit for the wartime initiative went to “Mrs. H.R.L. Davis”, as she was known in “private life”. Mrs. Davis, who designed and promoted the lapel pins, was born Olea Marion Montgomery in Buffalo, New York, to Canadian parents. She studied art in Canada, founded the B.C. Potters’ Guild and was a founding member of the Federation of Canadian Artists.16

Even beyond those wartime endeavours, the dogwood was used for many years prior to the enactment of the Floral Emblem Act as an unofficial symbol of British Columbia. It appeared not only on the lapel pins noted above, but also on other jewellery as well as vases and in other displays. Indeed, in 1951, then Princess Elizabeth and Prince Philip received dogwood-themed items as gifts during their visit to British Columbia, at a state luncheon at the Empress Hotel: for Princess Elizabeth, a necklace (just what she needed, no doubt) with matching earrings, and for Prince Philip, shirt studs and cuff links. Even at that time—five years before enactment of the Floral Emblem Act—the premier described dogwoods as the provincial flower and floral emblem.

The Floral Emblem Act in 1956 was not the dogwood’s first appearance in B.C. legislation. By the time the Floral Emblem Act was enacted, the dogwood had benefited—at least in theory, as noted below—for over two decades from certain legislated protections from human assault. In 1931, legislation—the Dogwood Protection Act—was enacted prohibiting persons (with certain exceptions such as free miners in the lawful carrying out of their occupations) from picking, cutting down, digging, pulling up or knowingly injuring or destroying “in part or in whole, whether in blossom or not, any dogwood on land of any private owner, without the consent of the private owner being first obtained, or on land belonging to the Crown in right of the Province or to a municipality”.17 This legislation responded to deep concern about “the depredations of those individuals who go out into the country and load up their automobiles with all the wildflowers they can put their hands on. Many a dogwood tree has been wholly or partly demolished by those vandals.”18 The “flowers” of the dogwood tree did not even survive long in water—it is not a good cut flower—and as such there was no justification for leaving “torn and dismembered branches gaping at the roadside”.19

The protective legislation—ultimately expanded and re-named the Dogwood, Rhododendron and Trillium Protection Act—was repealed in 2002 as

part of the Deregulation Statutes Amendment Act, 2002 , in the course of the then-Liberal government’s streamlining efforts. The responsible minister (Kevin Falcon) noted to the legislative assembly that to the best of the government’s knowledge, the legislation had never been used or enforced.20

Motorists so overcome by the beauty of the Pacific dogwood that they wished to vandalize roadside specimens are not the only threats to it. Bears and beavers eat its foliage (as well as its fruit, as noted earlier), “deer browse the twigs” and “[t]rees with many new sprouts (after a disturbance) are grazed heavily by mule deer and elk”.21 (One is left to wonder if some of the destruction that prompted the 1931 statute was other than human-caused.) Further, the Pacific dogwood is susceptible to diseases including from the aptly named fungus Discula destructiva, which is associated with “dogwood leaf blotch”. In the 1950s, a cross was developed between the Western and Eastern flowering dogwoods that is resistant to this disease; it is called “Eddie’s White Wonder”, using the last name of the local gardening family of Scots-origin that developed it, and it is now a frequent sight along city streets.

“Eddie’s White Wonder” was named as Vancouver’s centennial tree in 1986, after Vancouver’s much earlier rejection of the flower of the (Pacific) dogwood as the city’s floral emblem. This rejection occurred despite support for the dogwood running all the way back at least to 1917, when proponents argued that displays of it “could be made a standing advertisement of Vancouver’s balmy climate, as it would not thrive in the east, and visitors from the east, wishing to take seedlings for transplanting could be informed that the winters there would prevent the dogwood from flourishing”.22 However, a competing contender decades later won out, becoming the city’s official flower in 1967: the rose. The rose was seen as “the only flower worthy to typify the beauty, the vigor, the free air and the inexhaustible vitality of this young city of the western beaches”; by contrast, the dogwood—“a handsome shrub” of “rural lineage” that “pleases rustic tastes”—was not seen as sufficiently refined. Further,

“Cornus nuttalli: Pacific dogwood” (1910–1930) – City of Vancouver Archives, CVA660-1042, photographer John Davidson

“[w]hen shivering prairie dwellers come to Vancouver, seeking a milder climate, the sunset-hued rose is the flower they love to see”.23

The City of Milwaukie, Oregon24—for many years the home of the world’s largest known Pacific dogwood—did not similarly shy away from embracing dogwoods of all kinds. In 1962, the city adopted as its official flower “the Dogwood blossom (Cornus nuttalli, Cornus florida, Cornus florida rubra)”, to be used “on official uniforms, vehicles, stationery, publicity releases, etc., as deemed feasible by the City Administrator”, and also adopted as its “official pseudonym (nickname)” “The Dogwood City of The West”. The city even has an annual Dogwood Day.25

For a more personal celebration of the dogwood, keep an eye out for the flowers of various Cornaceae varieties next spring—or indeed, if conditions are suitable, even in early fall. We welcome photographs!

ENDNOTES

1. SBC 1956, c 19, s 2.

2. Monte Roberts, “Between Times”, Victoria Daily Times (24 February 1956).

3. “Dogwood”, online: <etymology.en-academic.com /13042/dogwood>.

4. “Pacific dogwood”, online: <www.for.gov.bc.ca/ hfd/library/documents/treebook/pacificdog wood.htm>.

5. “Plants for a Future”, online: <pfaf.org/user/Plant. aspx?LatinName=Cornus+nuttallii>.

6. Washington Native Plant Society, “Cornus nuttalli”, online: <www.wnps.org/native-plant-directory/95cornus-nuttallii>; Jack Scott, “Our Town”, Vancouver Sun (27 February 1956).

7. “Pacific Dogwood (Western Flowering Dogwood) (Cornus nuttallii)”, online: <metchosin.civicweb.net/ document/1749/>.

8. Adam F Szczawinski, “Dogwood, the Floral Emblem of British Columbia” (April 1956) 13:1 The Victoria Naturalist 8.

9. “Band-Tailed Pigeon”, online: <www.audubon.org/ birds-of-america/band-tailed-pigeon>.

10. “Hinterland Hick”, “Letter to the Editor – Could Happen Here”, The Kelowna Courier (12 March 1956).

11. Alex H Sutherland, “Letter to the Editor – British Columbia Floral Emblem”, Daily Colonist (4 July 1943) at 4.

12. Emily Yearwood-Lee, “British Columbia’s Provincial Emblems” (Legislative Library of British Columbia, June 2006) at 5.

13. “Dogwood for an Emblem”, Victoria Daily Times (21 March 1955).

14. Stella E Gummow, “Letter to the Editor – The Dogwood”, The Kelowna Courier (5 March 1956). Mrs. Gummow, who later became Mrs. H.J. Welch, was “superintendent of B.C. Women’s Institutes” until 1958; she had a “charming manner” (though did not charm the cranky editor of the newspaper to whom her remarks on this were directed; he objected to

apparent favoritism for a coastal species) and “a remarkable talent for remembering everyone wherever she went”: Verna Braden, “The Women’s Institute in the BC Peace”, online: <calverley.ca/article/ 14-014-the-womens-institute-in-the-bc-peace/>. The capable Mrs. Gummow was also the first woman elected as a mayor in British Columbia, when she became reeve of Peachland in 1943: “Eighteen Women Elected to Higher Office”, Nelson Star (24 February 2011). Her late first husband had earlier filled that role.

15. Ivers Kelly, “Accidental Emblem”, Vancouver Sun (24 February 1951).

16. “B.C. Artists: Olea Marion Davis (Mrs.)”, online: <sim-publishing.com/bca/davishrl.htm>.

17. Dogwood Protection Act, SBC 1931, c 18, ss 3–4.

18. Edward W Bickle, “Saving the Dogwood”, The Cumberland Insider (1 May 1931).

19. “Would Protect Dogwood Trees”, Daily Colonist (27 February 1931).

20. British Columbia, Debates of the Legislative Assembly (13 March 2002) at 1850.

21. “Pacific Dogwood (Western Flowering Dogwood) (Cornus nuttallii), online: <metchosin.civicweb.net/ document/1749/>.

22. “Favours Adoption of Dogwood as Official Civic Floral Symbol”, Vancouver Daily Sun (15 March 1917) at 4.

23. “The Choice of Floral Emblem”, Vancouver Daily Sun (5 April 1917).

24. As readers may have guessed, this city was named after Milwaukee, Wisconsin, which a founder of the Oregon settlement admired: “Historical Resources”, online: <www.milwaukieoregon.gov/generalpage/ historical-resources>.

25. Online: <www.milwaukieoregon.gov/sites/default/ files/fileattachments/city_recorder/meeting/89051 /dogwood_day_info_packet_-_at_home_edition_ 2020.pdf>.

In the September–October 1967 edition of the Advocate, the following competition was run:

The Advocate Christmas Competition

The Advocate is instituting a Christmas competition. It is open to all members of the profession, the bench, articled students, law students and the Faculty of Law. Entries must be in writing and reach the editor of the Advocate by not later than January 5, 1968. The results will be announced in the January–February issue to be published in February, 1968.

The story goes that the British Broadcasting Corporation ran a panel game with three panelists: a famous orchestral conductor, the BBC Radio cook and an author of note. They were each asked what collective noun of assembly they would use to describe a group of prostitutes. The conductor called them a bravura of strumpets; the cook, a jam of tarts; the author, a novel of trollops. History does not relate who won the competition.

Members are invited to submit nouns of assembly and words to describe how each of the following people would describe each of the following groups. That is to say how would

The Chief Justice of British Columbia and the Hon. P.A.

Gaglardi

Describe:

You will see that four separate answers are required. Any number of entries may be submitted by one person. There will be two prizes. The first for the best set of four answers and the second for the best single answer. To qualify for the first prize, four answers must be submitted. To qualify for the second, one or more may be submitted.

The first prize will be a copy of Martin Mayer’s new and somewhat controversial book The Lawyers and the second prize will be a copy of (and those who read Entre Nous will have already guessed) Sir Ernest Gowers’

Plain Words

Entries will be judged by a small panel of bench and bar who themselves will be disqualified from entering the competition.

Sure enough, the following report appears in the January–February 1968 issue of the Advocate:

Advocate Christmas Competition

Judgment being reserved on submissions to the Christmas competition, we now publish the results of it (naturally without reasons).

The first prize for the best four answers goes to Douglas R. Ruddell of Parksville, B.C. who submitted the following entry:

The Chief Justice of British Columbia would describe:

(a) Lawyers as: - a peal of bellows;

(b) Accused persons as: - a clutch of nabbed.

The Hon. P.A. Gaglardi1 would describe:

(a) Lawyers as: - a wagon of tongues;

(b) Accused persons as: - a fill of ticketees.

The second prize, best single entry goes to Walter E. Bell of London, Ontario (called to the bar of B.C. in 1949 in case any disgruntled competitors think he is ineligible). He says that the Hon. P.A. Gaglardi would call the accused persons: - a riding of hoods.

A copy of The Lawyers by Martin Mayer will go to Mr. Ruddell and a copy of Plain Words by Sir Ernest Gowers will go to Mr. Bell.

There were a number of intriguing entries and honourable mention should be made of the following:

Submitted by W.M. Leckie of Vancouver –

The Hon. P.A. Gaglardi describes:

(a) Lawyers as: - a fagot of forensic fools;

(b) Accused persons as: - a congestion of corruption.

G.A. Hazelwood of Vancouver – The Chief Justice of B.C. describes accused persons as: - a din of thieves.

Though no prize is available, undoubtedly if there were a prize for the most obscure entry, it would go to A.J.F. Albert of Fruitvale, B.C. who says of the Hon. P.A. Gaglardi, “Accused persons to him can only be ‘Sicilian Vespers pair et impair’ ”. And he adds in parenthesis, “I offer to pay for the wedding of the parents of any bencher who guessed this one.”

Certainly the innuendo behind this entry was lost on the panel. Perhaps the meaning of it should be the subject matter of a separate competition in itself.

ENDNOTE

ing allegations of preferred highway access to property owned by his sons. He resigned in March 1968 after hosting his grandson and daughter-in-law on a government jet.

1. Philip Arthur Gaglardi (1913–1995) was a former mayor of Kamloops and Minister of Highways in the B.C. government from 1952 to 1972. In 1968, Gaglardi came under fire in the legislature concern-

formerly with Dentons, link up with the litigation group at Farris. Also departing Dentons, Curtis Basham goes to Gudmundseth Mickelson. B. Kimberly K. Gosel is now with Anita Atwal Law, moving from BLG. James Hankinson lands at HHBG Lawyers to practice employment law after a stint at Samfiru Tumarkin.

Mitchell J. Horkoff leaves Lawson Lundell to become the Indigenous Relations Advisor with the Transportation Investment Corporation. Jessie X. Li sashays from Wiebe Wittmann Robertson to Lakes Whyte. Lesley A. Russell moves into town to join Harper Grey, leaving her previous post with CBM Lawyers in Langley. Lisa C. Hiebert jumps from BLG to join Fasken. Tony Mo joins Lawson Lundell from Remedios & Company. The firm Zacharias Vickers expands by taking on Scott A. McCann, Joshua D. Sutherland and Abigail L.E. Owen, all of whom were previously with Harris & Company.

The Honourable Russell S. Brown, formerly a justice of the Supreme Court of Canada, has joined Hunter Litigation Chambers. Nathan Wells moves to Fasken from Hunter Litigation Chambers. Eric L. Sherbine jumps from Dentons to DLA Piper. Stephanie B. Talbot starts up her own firm, Flow Family Law, leaving RDM Lawyers to do so. Joshua Steeper is now with Beacon Law Centre, having moved from Steeper & Associates. Chanelle C. Gilbert changes addresses in Victoria by moving from Herald Street Law to Murrell & Ittah.

Writing for the majority of the U.S. Supreme Court in PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001), Justice Stevens provided useful background on golf, which he described as “an ancient game, tracing its ancestry to Scotland, and played by such notables as Mary Queen of Scots and her son James”. He explained that the “Rules of Golf”, which are “jointly written by the United States Golf Association (USGA) and the Royal and Ancient Golf Club of Scotland, apply to the game as it is played, not only by millions of amateurs on public courses and in private country clubs throughout the United States and worldwide, but also by the professionals in the tournaments conducted by petitioner, the USGA, the Ladies’ Professional Golf Association, and the Senior Women’s Golf Association”. He observed that shotmaking—“using clubs to cause a ball to progress from the teeing ground to a hole some distance away with as few strokes as possible”—“has been the essence of golf since early in its history”.

Hollis Lucky and Paul Sandhu were appointed to the B.C. Provincial Court. Fiona M. Begg, K.C., and Robert (Bob) J. Lesperance were appointed as judicial justices of the Provincial Court for terms of ten years. Congratula-

tions to all on their appointments and to the Provincial Court for adding some wonderful last names for litigants who wish for luck, may still hold out hope and/or are prepared to plead.

“As in golf the proper stance and the proper cadence of one’s swing tends, without ensuring accuracy, to make a stroke accurate, so an habitual good technique of approach to a decision of the facts in a cause, tends to bring about a correct solution of those facts. But as in golf, the terrain may result in having the ball come to rest in unexpectable places. All that a Judge can be sure of is that he follow a good technique”: Radio Corporation of America v. Decca Records, Inc., 51 F.Supp. 493 (S.D.N.Y. 1943).

Peter M. Mennie was appointed as a member of the Civil Resolution Tribunal for a term of three years.

Christina J. Cook was elected as a bencher in the Law Society by-election for Vancouver County.

Wikipedia explains that the “Old Course” at St. Andrews “is considered by many to be the ‘home of golf’ because the sport was first played on the links at St Andrews in the early 15th century. Golf was becoming increasingly popular in Scotland until James II of Scotland banned the game in 1457 because he felt that young men were playing too much golf instead of practising their archery. The ban was upheld by James III, and remained in force until 1502, when James IV became a golfer himself and removed the ban.”

In July 2023, the Provincial Court held an appointment ceremony for Judge Timothy Hinkson. Judge Hinkson’s colleagues, family and friends were present for this special sitting of the court. Unusual for such a ceremony, though, was the introduction of an exhibit by the Law Society’s representative Cheryl D’Sa. Tendered in evidence was a portrait of the judge drawn a few years earlier by his then seven-year-old daughter, Audrey Hinkson. Ms. Hinkson drew a striking likeness of her father in his home office wearing the face he uses to concentrate on important matters—a face he is well known for. Chief Judge Gillespie suggested that it might be a portrait worthy of hanging in the halls of the North Vancouver courthouse where Judge Hinkson currently sits.

We also thought the portrait might make a nice cover for the Advocate; however, we doubt our modest coffers would secure Audrey Hinkson’s fee. Given the level of accurate detail, though, we believe Ms. Hinkson has a

good future as a sought-after portraitist. We hope Chief Judge Gillespie gets her wish.

In Swan Lake Holdings LLC v. Yamaha Golf Cart Company , No. 3:2009cv00228 (2010), a case about allegedly defective golf carts sold to Swan Lake Golf Resort, the U.S. District Court for the Northern District of Indiana, South Bend Division, described the history of golf cart use in golf:

Mark Twain once said that golf was a “good walk spoiled.” That was back in the day when golf was exclusively a walking sport. If someone was going to treat themselves, they might splurge on a looper who would lug their clubs around, keep a keen eye on wayward shots and read greens. But sometime in the last thirty years, that began to change. Golf carts became the rage, and walking the course largely went the way of the 1 iron, the metal spike, and drivers with heads smaller than the average cantaloupe.

CBABC handed out the hardware at its meeting in June 2023. Michael A. Feder, K.C., was given the Harry Rankin, QC Pro Bono Award in recognition of his tireless contributions to pro bono work. Sonali Sharma was awarded the Innovation Award in recognition of her unique approach to offering unbundled legal services in English, Hindi, Punjabi and Urdu. Jim Wu was awarded the Equality & Diversity Award for his work championing the interests of Chinese Canadians and people with disabilities. Angela C.

Price-Stephens was given the Community Support Award for her work providing counselling services to low-income couples and families in distress or staffing crisis and suicide help lines. Louisa M. Winn, K.C.—on the front cover of the July issue of the Advocate—was awarded the 2023 President’s Medal in recognition of her longstanding work with organizations like CBABC and the Federation of Asian Canadian Lawyers. Congratulations to all.

In Farfour v. Mimosa Golf Club, Inc., 81 S.E.2d 375 (1954), the Supreme Court of North Carolina cited the discussion of “golf” in Encyclopedia Americana, Vol. 13:

The object of the game is to knock the ball from an established starting point to a designated finishing point in the fewest possible strokes. Golf is played on a course or links, which consist usually of nine or eighteen holes. A hole, designating a unit of play, consists of a starting point, or teeing ground, a finishing place, or putting green, and the intervening area. Rules of the game recognize four-part division of the course: (1) Teeing ground, (2) through the green, (3) hazards, and (4) putting green. Markers placed on an area especially prepared for teeing, determine the limits of the teeing ground. Putting green is also a specially prepared area, in the surface of which is cut a hole four and one-fourth inches in diameter. The area within a radius of the hole of 60 feet, except hazards, is putting green. Hazards are ditches, creeks, ponds, roads and bunkers. A bunker, which is an artificial hazard, is a hole or depression and is usually covered with sand. Bunkers are also called sand traps. Through the green is the whole area between the teeing ground and the putting green, except hazards. It includes both fairway and rough. The former applies to that part of the area on which the turf is specially prepared for play. The balance, except hazards, is rough.

The court also referred to the New Funk & Wagnall’s Encyclopedia: Golf, an outdoor game, played on a stretch of ground known as a course or links by two or more players, each player using a small, hard, white ball which he propels by means of specially designed clubs. The object of the game is to drive the ball around the course, using as few strokes as possible, and playing successively from the beginning or ‘tee’ to the end or ‘cup’ of each of the eighteen sections, known as ‘holes’ into which the course is divided. The players begin at the first ‘tee’, a level area of turf or sand, generally raised slightly above the surrounding terrain, and each player successively drives his ball onto the ‘fairway’ or main part of the course, a strip of land on which the grass has been cut to provide a good lie for the ball. On either side of the fairway is an area left in its wild or natural state. At the far end of the fairway is the ‘green’, an area of closely cropped grass surrounding the cup…

Golf Drives, a service providing transfers for golfers between airports and golf resorts, resorts and golf courses, etc., provides a useful compendium of golf slang on its website, including:

Afraid of The Dark: When the putted ball refuses to fall into the hole.

Airmail: A golf shot which travels a considerably longer distance than planned.

Albatross (aka Double This means a score of three strokes under Eagle): Par, which as you can imagine is very rare.

Bogey: A score of one over par.

Buzzard (aka Double A score of two over par.

Bogey):

Lumberjack: When a golfer hits a ball into a wooded area numerous times during a round and continues to hit the trees trying to get out of the woods.

Rainmaker: A golf shot with a very high trajectory.

“The real bogies, the costs of defense and the risk of error, haunt all litigation”: Kamen v. Kemper Financial Services, Inc., 908 F.2d 1338 (7th Cir. 1990).

In a 2013 piece called “Legal Eagles? Why Lawyers Love Golf”, CNN noted that golf “has a well-deserved reputation of being the most litigious of all sports, bar none”.

Freya Kodar was appointed as the new dean of the UVic Faculty of Law.

Gregory E. Atkins was appointed to the board of Camosun College for a term ending July 31, 2025.

In a recent review of Mamma Mia! in this magazine, the name of Vista Trethewey was misspelled. We regret the error. Vista had a leading role in The Lawyer Show’s production of the ABBA musical and regardless of how you spell her name, she was great in the production. Now … on to pronunciation!

As the firm of Stephenson Rife, “Golf Injury Attorneys in Indiana”, notes: “For a game that emphasizes precision, golf certainly has its share of mishaps”. The firm points to a worrying array of “common causes of accidents on and around a golf course”, including conditions on the course, errant balls, ricochets and golf club swings (“[g]olf balls may be dangerous, but at least they do not have edges”). Accidents that may occur in swinging a golf club include when “[t]he hosel of a club separates from the shaft during a swing, and the head of the club flies like a projectile toward the victim” or “[a] golfer loses his or her grip on a club during the swing, sending the

entire club flying toward the victim”. Note: “Inexperienced golfers and bystanders usually look upward when they hear the ‘fore!’ warning shout (the proper reaction is to duck and cover).” The firm also noted the possibility of being involved in a golf cart crash, including as a result of “[d]riving while distracted by a cellphone, scorecard, food, passenger, etc.” or as a result of “[l]ooking for a ball while driving”.

Reassuring perhaps to players but not bystanders, “[s]hanking the ball is a foreseeable and not uncommon occurrence in the game of golf. The same is true of hooking, slicing, pushing, or pulling a golf shot. We would stress that [i]t is well known that not every shot played by a golfer goes to the point where he intends it to go. If such were the case, every player would be perfect and the whole pleasure of the sport would be lost”: Benjamin v. Nernberg, 102 Pa. Super. 471, 475–76 (1931).

The “Old Course” at St. Andrews is closed for golfing on Sundays, though as

The New York Times reported in 2015, on that day of the week “[y]ou can pretty much do anything you want on the historic grounds of the Old Course, as long as it does not involve actually hitting a drive or rapping a putt”. It continued: “Frisbees are fine. Picnics, too. Locals might tell you that pushing a baby stroller (or pram, in the vernacular) can get a little challenging on some of the more uneven parts of the course, but if your little one will be soothed by the strong winds whipping in off the North Sea then, well, so be it”. The New York Times explained that “[h]istorians trace the Old Course’s Sunday closure to religious laws dating at least to the 16th century, when some residents of St. Andrews were cited in town criminal logs for playing on the Sabbath. According to Gordon Moir, the director of greens keeping at St. Andrews, it was not until 1941 that the other courses at the complex were opened for play on Sundays.”

Jean-Kyle (Kyle) R. Bienvenu was recently awarded the CBA Douglas Miller Rising Star Award in recognition of his dedication and team spirit volunteer work for the CBA.

Daniel Rothwell was appointed as a governor to the board of Douglas College for a term ending July 31, 2024.

Christina J. Cook was appointed to the South Coast British Columbia Transportation Authority Police Services Designated Law Enforcement Unit Board and the South Coast Transportation Authority Designated Policing Unit Board for a term ending December 31, 2024.

Peachtree City is a city of about 38,000 residents in the south Atlanta metro area. Wikipedia explains it is known for a very different form of transportation than, say, the transportation authority noted above might be associated with. Rather, “Peachtree City is noted for its extensive use of golf carts. Over 10,000 households in the city own golf carts, and most areas of the city can be reached via more than 90 miles (140 km) of golf cart paths”, which the Peachtree City Police Departments patrols using several golf carts of its own”. Wikipedia continues: “Children aged twelve to fifteen may operate a cart on Peachtree City cart paths with a parent, grandparent or other guardian in the front seat. Those who are fifteen or older, with either a valid Georgia learner’s permit or a full driver’s license, are allowed to operate golf carts alone. Students at McIntosh High School are encouraged to drive family golf carts to school because of limited car parking.”

Scholle Law, in Georgia, advertises its “golf cart accident lawyers”, and notes that in the United States from 2007 to 2017, over 156,000 people visited emergency rooms for treatment after golf cart-related accidents. The firm noted: “The important takeaway is that golf carts are not nearly as safe as many people believe. Unfortunately, these dangers are often ignored, especially in areas like Peachtree City, where about 11,000 registered golf carts are used to get around much more often than cars.” Among the causes of golf cart accidents is reversing downhill.

It is unknown whether Chief Justice Bauman has, in his past golfing exploits, ever achieved a “hole in one” in tournament play. Given the pending and probable increase in his time on the links, the courses he plays may wish to investigate “hole in one” insurance which, based on B.P.Y.A. Holdings v. The Innovators Insurance, 2001 BCSC 836, is an enforceable obligation to cover prize money awarded for such an achievement.

Cecilia A.A. Barnes was elected president of the 2023/24 Canadian Association of Black Lawyers BC board of directors.

Fiona Wong was elected as the president of the Federation of Asian Canadian Lawyers (British Columbia).

Allan P. Seckel, K.C., was reappointed as a member and chair of the British Columbia Housing Management Commission for a term ending July 18, 2026.

In Hennessy v. Pyne , 694 A.2d 691 (1997), the Supreme Court of Rhode Island considered whether a golfer, when hitting a golf ball, owes any duty

to persons living in residences immediately adjacent to a golf course and, if so, when that duty is breached. The court noted the case “require[d] us to tee off on these questions for the first time in Rhode Island”, and then got even further into the golfing spirit:

Ever since Mark Twain quipped that golf was nothing more than “a good walk spoiled,” the game of golf has continued to excite flamboyant commentary concerning those who ply its greensward. The famed American curmudgeon, H.L. Mencken, once chipped in that if he had his way, “no man guilty of golf would be eligible to any office of trust or profit under the United States.” A different but equally difficult lie has been played by humorist A.P. Herbert, who took this shot: “the game of golf may well be included in that category of intolerable provocations which may legally excuse or mitigate behavior not otherwise excusable.”

In assaying the governing standards applicable to this dispute, we shall try to drive a middle course down a legal fairway strewn with hazards, bunkers, and other assorted obstacles especially to those who venture off aimlessly into the rough….

J. Charlotte Ensminger and Denese C. Espeut-Post were appointed as members of the Health Professions Review Board for three-year terms.

Heath Law LLP in Nanaimo has posted helpful advice to golfers for minimizing exposure to liability on the golf course, including that “you should not swing your club until the rest of your group is alongside or behind an imaginary line that extends straight at 180 degrees from where you have lined up to take your shot”.

Gavin R. Hoekstra was appointed as a member of the Skilled Trades BC Appeal Board for a two-year term.

Miriam Kresivo, K.C., was reappointed as a commissioner of the British Columbia Utilities Commission for a term ending December 31, 2026.

The provincial government recently brought into force the Single-Use and Plastic Waste Prevention Regulation to take effect on December 20, 2023. This regulation will cover shopping bags, disposable food service accessories, oxo-degradable plastics and food service packaging made of polystyrene foam, PVC, PVDC, compostable or biodegradable plastics and is intended, over time, to reduce the use of such hard-to-recycle single-use and plastic items.

The Colonel Bogey March, often whistled, was composed in 1914 and has played a role in various films including The Bridge On the River Kwai. On a

much lighter note (no pun intended), the tune has a golfing history. Wikipedia explains:

One supposition is that the tune was inspired by a British military officer who “preferred to whistle a descending minor third” rather than shout “Fore!” when playing golf. It is this descending interval that begins each line of the melody. The name “Colonel Bogey” began in the late 19th century as an imaginary “standard opponent” in assessing a player’s performance, and by Edwardian times the Colonel had been adopted by the golfing world as the presiding spirit of the course. Edwardian golfers on both sides of the Atlantic often played matches against “Colonel Bogey”.

[endnotes omitted]

However, “bogey” subsequently got demoted from being the standard to being worse than “par”—par being a stock exchange term for normal (or par) value.

In the recent bencher by-election for Vancouver County, 1,788 votes were cast out of 10,674 eligible voters: a 16.8 per cent voter turnout.

Amenities in a golf course clubhouse such as a bar, restaurant or pro shop “are oftentimes referred to as the 19th hole”: Brown v. City of Gulf Breeze, 1D19-4245 (March 2, 2022), per Makar J. dissenting. The judge, of the First District Court of Appeal of the State of Florida, quoted a Wikipedia entry which explained that “[i]n golf, the nineteenth hole is a slang term for a pub, bar, or restaurant on or near the golf course, very often the clubhouse itself. A standard round of golf has only eighteen holes of play. An alternate term for a bar is a ‘watering hole;’ thus, by extension, continuing the day after 18 holes of golf at a watering hole makes the bar a ‘nineteenth hole.’”

R. Kyle Friesen, General Counsel, Legal Services at the Surrey Police Service, was appointed by the Governor General to the Order of Merit of the Police Forces, at the Officer level. This grants the use of the post-nominal letters “O.O.M.”

Roshan P. Danesh, K.C., and Laylee Rohani were appointed to the board of the University of Victoria for terms ending July 31, 2024.

Cristen L. Gleeson, K.C., was reappointed to the board of the University of the Fraser Valley for a term ending July 31, 2026.

Golf “is more dangerous than table tennis, for instance, but certainly not as dangerous as kickboxing”: Thompson v. McNeill, 559 N.E.2d 705 (Ohio 1990).

Michal Jaworski was reappointed to the board of Langara College for a term ending July 31, 2024.

Chi Ming Lo was appointed to the board of Vancouver Community College for a term ending July 31, 2024.

David Reddell is “The Texas Golf Lawyer”. He posts on his website the golf course at which he will be playing and invites fellow golfers to seek him out there. As the website of his Houston firm, McLemore, Reddell, & Storey, P.L.L.C., notes:

David usually plays golf at Hermann Park Golf Course in Houston on Saturday mornings. He made a conscious decision to base himself at a centrally located public golf course to allow access to everyone, not just members of a private club. He has helped numerous people through the years based on relationships he’s made with golfers at the course. He also plays golf courses all over the state, and welcomes the opportunity to help golfers wherever he is.

Please check this section of the website regularly for updates of where David will be playing golf. It is his hope that meeting him at the golf course will be easier for golfers than going to a law office. David is The Texas Golf LawyerSM, and he looks forward to meeting with you at the golf course soon to discuss your legal question.

Please note that these sessions are not intended to create an attorneyclient privilege, but are meant simply to provide practical advice. Any official representation by David will need to be done pursuant to a formal engagement.

Chaslynn S. Gillanders, Miranda L. Lam and Byron M. Thom were reappointed to the board of the University of British Columbia for terms ending December 31, 2023 and July 31, 2025.

Danielle E.H. Allen was appointed to the board of Coast Mountain College for a term ending July 31, 2024.

The world’s shortest land border is between a Spanish enclave, Penon de Velez de la Gomera, and Morocco. The border is an 85-metre strip across a sandbar. The shortest land border between countries (as opposed to enclaves) is a 150-metre strip along the Zambezi River that separates Zambia and Botswana.

Colleen Spier, K.C., a Métis-Cree lawyer, was appointed in March 2023 as Assistant Deputy Minister of the Province’s Indigenous-led Indigenous Justice Secretariat in the BC Ministry of Attorney General.

Daniel David Sikes, Jr. (1929–1987) was a golfer who played on both the PGA Tour and Champions Tour. He had a law degree from the University of Florida though never practised law.

“Tiger Woods is the most famous golfer of his generation”: Arnold v. Treadwell, No. 2:2007cv10209 - Document 105 (E.D. Mich. 2009).

The “flitch of bacon” is an ancient ceremony referenced in the Prologue to the Wife of Bath’s Tale by Geoffrey Chaucer (1343–1400). The ceremony itself may be as old as Saxon times or associated with the Yule feast of Norse tradition in which boar meat is eaten in honour of the god Freyr. The award of a flitch (or side) of bacon is given to married couples who can swear to not having regretted their marriage for a year and a day. The tradition, maintained at Wychnor Hall in Staffordshire until at least the 18th century, continues in modern times at Great Dunmow. There, a lawyer is employed to cross-examine nominated couples with the intent of trying to establish that they are undeserving of the award.

Successful couples are awarded their flitch of bacon and paraded around the village streets. However, a Victorian novel by William Harrison Ainsworth with the rather imaginative title The Flitch of Bacon claims that the happy couple are required to kneel on sharp stones in the churchyard while taking the following oath:

You shall swear by custom of confession, That you ne’er made nuptial transgression; Nor, since you were married man and wife, By household brawls, or contentious strife, Or otherwise at bed or board, Offended each other in deed or in word, Or since the parish clerk said, Amen, Wished yourselves unmarried again, Or in twelvemonth and a day, Repented in thought any way, But continue true in thought and desire, As when you joined hands in holy quire. If to these conditions without all fear, Of your own accord you will freely swear, A whole gammon of bacon you shall receive, And bear it hence with love and good leave: For this is our custom at Dunmow well known, Tho’ the pleasure be ours, the bacon’s your own.

The U.S. Court of Appeals for the Fourth Circuit has noted that “not all lies are actionable; the securities laws are only concerned with lies about material facts . Reading the law otherwise, as Appellants would have us do, simply reads materiality out of the statute. Under their theory, almost any misrepresentation by a CEO — including, perhaps, one about his or her marital fidelity, political persuasion, or golf handicap — that might cause investors to question management’s integrity could, as such, serve

as a basis for a securities-fraud class action. The law simply does not permit such a result”: Greenhouse v. Mcg Capital Corporation , 392 F.3d 650 (2004).

Michelle L. Sagert was appointed as a member of the Abbotsford Police Board for a term ending June 30, 2024.

Kenneth K. L. Leung was appointed as a public member of the board of the Chartered Professional Accountants of British Columbia for a term ending June 3, 2025.

Rick Hyde was the first Black varsity golfer in the Ivy League. He graduated from Princeton University with his undergraduate degree in 1975, then attended the Howard University School of Law, where later in life he served as a long-time sports law professor. As a lawyer, he practised in the fields of sports and entertainment law.

Adam Gesicki was reappointed as a member of the Fraser, Interior, Northern, Provincial Health Services, Vancouver Coastal and Vancouver Island Patient Care Quality Review Boards for a term ending June 1, 2025.

The “Trump National Golf Club Bedminster”, which Donald Trump acquired in 2002, boasts two 18-hole championship golf courses, one Georgian Revival clubhouse, and perhaps various classified documents. It was at Bedminster that Trump was recorded in July 2021 as apparently showing off some classified plans, though he told Fox News in the summer of 2023: “I said it very clearly — I had a whole desk full of lots of papers, mostly newspaper articles, copies of magazines, copies of different plans, copies of stories, having to do with many, many subjects, and what was said was absolutely fine,” Mr. Trump said. “I don’t do things wrong. I do things right. I’m a legitimate person.” He later explained away (to Semafor and ABC News) his mention to Fox News of “plans”: “Did I use the word plans?” he said. “What I’m referring to is magazines, newspapers, plans of buildings. I had plans of buildings. You know, building plans? I had plans of a golf course.”

Were Chief Justice Bauman to make a tour of B.C. golf courses that have figured in his judicial career, he would tee off at the Christina Lake Golf Club (2009 BCCA 79) and the Shaughnessy Golf and Country Club (2015 BCCA 158).

Weichong Joshua Tan was reappointed as a public member to the board of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia for a term ending June 30, 2025.

Bobby Jones (1902–1971) is described by Wikipedia as “the most successful amateur golfer ever to compete at a national and international level. During his peak from 1923 to 1930, he dominated top-level amateur competition, and competed very successfully against the world’s best professional golfers.” Jones “earned his living mainly as a lawyer, and competed in golf only as an amateur, primarily on a part-time basis, and chose to retire from competition at age 28, though he earned significant money from golf after that, as an instructor and equipment designer.” After retiring from competition, he founded and helped design the Augusta National Golf Club and cofounded the Masters Tournament, where he played chiefly on an exhibition basis from 1934 to 1948. Jones was born in Atlanta, Georgia, where his father, “Colonel” Robert Purmedus Jones, was himself a lawyer and skilled golfer. Jones Jr. studied at Emory University School of Law.

Fred Ridley, the chairman of Augusta National Golf Club and the Masters Tournament, is a business lawyer with Foley & Lardner LLP, graduating with his law degree from Stetson University in Gulfport, Florida in 1977. He competed in numerous U.S. Amateurs and the Walker Cup.

Angela N. Etheridge was appointed to the board of the College of the Rockies for a term ending July 31, 2024.

Rabjeet Singh Wallia was appointed to the board of Capilano University for a term ending July 31, 2024.

Heather E. Cochran was reappointed as a member of the Oak Bay Police Board for a term ending June 30, 2025.

Jody Fisher Law is described as the “Leesburg Golf Cart DUI Lawyer”, providing “Effective Legal Defense for Residents of The Villages and Surrounding Areas”.

The Villages’ website explains that it “is a collection of quaint retirement neighbourhoods located in the heart of Florida nestled between two beautiful coastlines, ports of travel and theme parks. Each neighbourhood is unique in its charm and personality and connected in ways where all the lifestyle here for you to enjoy is just a golf car ride away.” Wikipedia notes

that a Michigan businessman “began selling land tracts via mail order in The Villages area in the 1960s. He and his business partner … were forced to close this aspect of the business following the implementation of a 1968 federal law banning real estate sales by mail order”. Reportedly The Villages “is the home of the largest veteran population anywhere in the United States that does not have a military base, with 16.3 percent of the population former military”. Wikipedia continues: “The Villages has many golf courses located throughout the community. The ability to play ‘Free Golf for Life’ is a key component of The Village’s advertising campaigns. As of December 2022, The Villages operates 56 courses with 729 holes across all courses”. Visiting The Villages in 2019, then President Trump said, “I’m thrilled to be here, one of the most famous and thriving communities anywhere in Florida, and really anywhere in the world as far as I’m concerned.” Returning in October 2020, he told a crowd of supporters that “he loved The Villages and joked about moving to the community.”

Emily F. Ohler was reappointed as a member and designated chair of the British Columbia Human Rights Tribunal for a term of five years.

Emily C. Drown was reappointed as a member and designated chair of the Employment and Assistance Appeal Tribunal for a term ending June 30, 2028.

Jaspreet (Jessie) Kaur Sunner was reappointed as a member of the Surrey Police Board for a term ending December 31, 2023.

Mark S. (“Marcus”) Barnett, an attorney in Jacksonville, Florida, claims he “has spent virtually his entire life preparing for your case”, including by “[s]tarting as a messenger, a legal assistant, and a file clerk at major law firms in South Florida and New York City”. His website notes that “[h]e is an avid disc golfer, and believes in the values of honesty, integrity, and leaving the world a better place than we found it, embodied in the sport.” He explains that “[d]isc golf is one of the fastest-growing sports in the world, combining aerobic exercise with coordination, mental stamina, as well as community building, and fellowship”. He also describes himself as a “Disc Golf Lawyer”, noting that in addition to his more traditional practice he is “able to provide a host of services directly related to the business of disc golf, including representation of professional players, targeted services for those in the disc golf business, including retailers, wholesalers, and manufacturers”. Further, he is “the hydration sponsor for the International Disc Golf Center, located at PDGA Headquarters in Appling, Georgia, one of the

world’s meccas of disc golf, to make sure that competitors and spectators alike are able to fully enjoy the wonderful courses there”.

Browsing through the City of Vancouver Archives golf records, we found ourselves gazing at a photo entitled “Alfred Bull teeing off at Jericho Country Club golf course” (no, it is not a photo of the current chief justice). As reported in (1959) 17 Advocate 11,Alfred Bull, Q.C., had for “many years … presided as head of a great, large and prominent firm of lawyers”. It was noted that “[a]lthough he was an accomplished golfer and gained many prizes at the pursuit of the game, his entire life was law”: he was “[a] celebrated counsel, distinguished advocate, and an eminent and capable lawyer … His name will find a high place on the records of the legal profession in the province.”

Thought du mois:

“Golf may be played on Sunday, not being a game within the view of the law, but being a form of moral effort.”

Stephen P.H. Butler Leacock, humourist (1869–1944)

“Alfred Bull teeing off at Jericho Country Club golf course” (192-?) – City of Vancouver Archives – CVA371-1136

CONTRIBUTORS

The Honourable Marion Allan, K.C., has resolved many a dispute, including formerly as a judge and arbitrator. She graced the front cover of the July 2017 issue of the Advocate.

Jan Crerar is a sole practitioner working in gorgeous Salmon Arm. When not toiling in the vineyards of justice, she can be found volunteering with Shuswap Search and Rescue, chasing bears out of the compost and dodging thunderstorms on her beloved Honda CBR500RA.

Tim Dickson is a litigator at JFK Law, with a particular focus on Aboriginal, constitutional, administrative and commercial law. In addition, he has taught Administrative Law at the Peter A. Allard School of Law as an adjunct professor. At the time of publication we had not yet determined whether he is recognized or respected.

The Honourable Chief Judge Melissa Gillespie presides over the Provincial Court of British Columbia and was on the front cover—yes, there is a theme here—of the July 2020 issue of the Advocate.

Christopher McPherson, K.C., is Crown counsel and the president of the Law Society of British Columbia. He bicycled through the front cover of the January 2023 issue of the Advocate

David Ross teaches income tax at the TRU Faculty of Law as a sessional instructor. He also coaches youth cross-country skiing. These activities both seem to require frequent snack breaks.

The Honourable Jon Sigurdson is a retired judge, adjunct law professor, Montreal Canadiens supporter, songwriter and grandfather. He was on the front cover of the July 2016 issue of the Advocate and is a contributing editor.