September 2024

ADVOCATE

SEPTEMBER 2024

OFFICERS AND EXECUTIVES

LAW SOCIETY OF BRITISH COLUMBIA

Jeevyn Dhaliwal, K.C. President

Brook Greenberg, K.C. First Vice President

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

Don Avison, K.C.

Chief Executive Officer and Executive Director

BENCHERS

APPOINTED BENCHERS

Simran Bains

Paul A.H. Barnett

Sasha Hobbs

ELECTED BENCHERS

Aleem Bharmal, K.C.

Tanya Chamberlain

Nikki Charlton

Jennifer Chow, K.C.

Christina J. Cook

Cheryl S. D’Sa, K.C.

Jeevyn Dhaliwal, K.C.

Tim Delaney

Brian Dybwad

Brook Greenberg, K.C.

Ravi Hira, K.C.

Lindsay R. LeBlanc, K.C.

James A.S. Legh

Dr. Jan Lindsay

Michèle Ross

Natasha Tony

Benjamin Levine

Jaspreet Singh Malik

Jay Michi

Georges Rivard

Gurminder Sandhu, K.C.

Thomas L. Spraggs

Barbara Stanley, K.C.

James Struthers

Michael F. Welsh, K.C.

Kevin B. Westell

Jonathan Yuen

Gaynor C. Yeung

BRITISH COLUMBIA BAR ASSOCIATIONS

ABBOTSFORD & DISTRICT

Kirsten Tonge, President

CAMPBELL RIVER

Ryan A. Krasman, President

CHILLIWACK & DISTRICT

Nicholas Cooper, President

COMOX VALLEY

Michael McCubbin, President

Shannon Aldinger, President

COWICHAN VALLEY

Jeff Drozdiak, President

FRASER VALLEY

Michael Jones, President

KAMLOOPS

Jeanine Ball, 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

CANADIAN BAR ASSOCIATION

BRITISH COLUMBIA BRANCH

BOARD OF DIRECTORS

Lee Nevens

President

Mylene de Guzman

First Vice President

Patricia Blair

Second Vice President

Dan Moseley

Finance & Audit Committee Chair

Dan Melnick

Young Lawyers Representative

TBD

Equity, Diversity and Inclusion Representative

TBD

Aboriginal Lawyers Forum Representative

Connor Bildfell

Director at Large

Sarah Klinger

Director at Large

Randolph W. Robinson

Director at Large

TBD

Director at Large

ELECTED MEMBERS OF CBABC PROVINCIAL COUNCIL

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

Heather Doi President

Sean Gallagher Vice President

Zachary Rogers

Secretary Treasurer

Niall Rand Past President

VERNON

Chelsea Kidd, President

VICTORIA

Sofia Bakken, President

CARIBOO

Nathan Bauder

Jon Duncan

Nicholas Maviglia

KOOTENAY

Jamie Lalonde

Christopher Trudeau

NANAIMO

Phil Dwyer

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.)

Cecilia Barnes, President

FEDERATION OF ASIAN CANADIAN LAWYERS (B.C.)

Fiona Wong, President

INDIGENOUS BAR ASSOCIATION (B.C.)

Michael McDonald, President

SOUTH ASIAN BAR ASSOCIATION OF BRITISH COLUMBIA

Hardeep S. Gill, President

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

Sandra Mandanici, President

ADVOCATE

“in the interests of an independent bar”

Published six times each year by the Vancouver Bar Association

Established 1943

ISSN 0044-6416

GST Registration #R123041899

Annual Subscription Rate

$36.75 per year (includes GST)

Out-of-Country Subscription Rate $42 per year (includes GST)

Audited Financial Statements Available to Members

EDITOR:

D. Michael Bain, K.C.

ASSISTANT EDITOR: Ludmila B. Herbst, K.C.

EDITORIAL ADVISORY BOARD:

Anne Giardini, O.C., O.B.C., K.C.

Carolyn MacDonald

David Roberts, K.C.

Peter J. Roberts, K.C.

The Honourable Mary Saunders

The Honourable Alexander Wolf

CONTRIBUTING EDITORS:

Peter J. Roberts, K.C.

The Honourable Jon Sigurdson

Lily Zhang

BUSINESS MANAGER: Lynda Roberts

COVER ARTIST: David Goatley

COPY EDITOR: Connor Bildfell

EDITORIAL OFFICE:

#1918 – 1030 West Georgia Street Vancouver, B.C. V6E 2Y3 Telephone: 604-696-6120

E-mail:

<mbain@hhbg.ca>

BUSINESS & ADVERTISING OFFICE: 709 – 1489 Marine Drive West Vancouver, B.C. V7T 1B8

Telephone: 604-987-7177

E-mail:

<info@the-advocate.ca>

WEBSITE: <www.the-advocate.ca>

VOL. 82 PART 5 SEPTEMBER 2024

Entre Nous .

On the Front Cover: Kasari Govender, K.C.

By Emily Chan, Sebastian Chern, Sharon Malhi and Kaymi Yoon-Maxwell

The Benevolence of Rick Cluff

By David W. Hay, K.C.

Controlling the Appellate Docket: The Practice and Procedure of Quashing and “Summarily Determining” Defective Appeals

By Tom Posyniak

Free Speech: Indispensable to Democracy, Human Progress and Social Justice

By Calvin Sandborn, K.C.

Delay and Timeliness: Part II – Timely Solutions By

Geoffrey Cowper, K.C.

What the Doctor Ordered By Christopher Green

Production and Disclosure of Draft Expert Reports By Brian Samuels

The Costs of Complexity: What Is the Supreme Court of Canada’s Contribution to Delays in the Criminal Justice System? By

Mike Barrenger

ON THE FRONT COVER

Kasari Govender, K.C., is British Columbia’s Human Rights Commissioner. Her second five year term began on September 4, 2024. Read more about her at page 655.

We are a firm ofconsulting economists who specialize in providing litigation support services to legal professionals across western Canada. Our economic reports are supported by knowledgeable staffwith extensive experience in providing expert testimony.

We offer the following services in the area ofloss assessment:

Past and future loss ofemployment income

Past and future loss ofhouseholdservices

Past and future loss offinancial support (wrongful death)

Class action valuations

Future cost ofcare valuations

Loss ofestate claims (Duncan claims in Alberta)

Income tax gross-ups

Management fees

Pension valuations

Future income loss and future cost of care multipliers

•21-year

•Presided

•27

•Effective

Immediately

rence fe onC ducationE nnual 4 A 02 T 2 CCAT e B hT A

Modern Adjudication:

T

T

Practical o ools & e echniques

November 5 & 6 • 8:15am-4:45pm

i nteractive d i n , a ractical , p ynamic r d delive y communit justice administrative the in leaders as th h & 6 t r 5 ebovemN s n u oi

Learn new skills and improve established practices the administrative justice process while completing

Some highlights of the conference:

• Keynote: The Honourable Justice Robert J. Bauma

J ons. ess ullagendawith e f orthf ccat.net .b w w w isit s V

• Hearing Skills: Balancing Procedural Fairness with in all areas of 15.75 CPD credits. n, K.C. todayy! r s egis sionsse i ter ccat.net t b r a giste a Active Adjudication R siographieb ’ ssenterpre and scriptionsde a w l a r t e 7 • R r 2

ENTRE NOUS

“LET ME TELL YOU ABOUT LAWYERS”

It is nearing midnight at the end of another hot day. A full moon descends in the clear Tuscan sky and the candles on the linen tablecloths flicker in the warm evening breeze. Winelight. After a fabulous dinner, the guests—or, rather, the paying customers on the final night of what has been a luxurious cooking school holiday—are starting to disperse and retire to their rooms in the expansive villa. Only a few guests remain with the host, a heralded chef who holds these excursions to his Italian villa a few times a year. The mornings are spent cooking, the afternoons touring the wonders of the Italian countryside. Food and wine are plentiful and there is an air of relaxation and frivolity. The host ambles up beside the few remaining couples, wine glass in hand. His performance is not quite over.

“What do you do?” he asks the holidaying author of this piece for the umpteenth time. For the umpteenth time I tell him, “I’m still a lawyer.” The hosts eyes narrow. “You’re a lawyer,” he repeats. Drawing closer he says, “I fucking hate lawyers. Let me tell you about lawyers.”

This lawyer has left his litigation practice behind in Canada for a few weeks in the capable hands of his partners and associates. The fruits of another year of working at a boutique employment law firm are taking some time off and unwinding at a favoured pastime—international travel and cuisine with my beloved. The final week before departure is spent getting files in order, preparing transfer memos, spending extra unbillable hours and time ensuring that clients are covered off during a well-deserved absence. Three weeks. 14 business days. It is not much, really. Every client is contacted and reassured that the heavens will not fall.

“Let me tell you about lawyers,” he repeats. I brace myself, my mind racing. “Oh, did I say lawyer? I meant politician!” Decorum and not wanting to embarrass my wife both get the better of me; I merely think it and do not

say it. Perhaps I should have—forced humour to break the tension. Instead, an awkward smile paints itself on my face. Yes, he’s really going to do it. He’s going to tell me what he thinks about lawyers. In the same way that … what? Drunk hosts tell doctors what they think about doctors? Surely, ours is a rarefied profession where incidents such as this one are more common.

We have had a lovely week. Add the warm milk, salt, pepper and nutmeg. Bring to a slow boil until the sauce is thick and smooth. Stir often. When thickened, remove the sauce from heat and set aside. La Besciamella di Marietta. Mwah! Exquisite. “Let me tell you about lawyers.”

Ours is a learned and noble profession. I have often wondered what that means. As for being learned, Russell L.J. said:

The legal profession has from times long past been termed a learned profession, and rightly so, for no man can properly practise or apply the law who is not learned in that field of law with which he is concerned. He must have more than an aptitude and more than a skill. He must be learned in a sense of importing true scholarship.1

Call ceremonies are where we are all (newly or otherwise) reminded of the law being a learned profession. The culmination of years—almost a decade sometimes—of study and extremely hard work in papers, examinations, undergraduate degrees, writing the LSAT, law school, articling, the bar exam. It is very tough work getting to the bar. The call ceremony is where a fresh group of lawyers are welcomed to the profession having attained the privilege of being called. They are recognized for the hard work that it took to get there, and they are reassured that the profession they are entering is indeed learned.

Wash the tomatoes, cutting out any blemished parts. Cut them into small pieces and place in a large saucepan with the other vegetables. Add a pinch of coarse salt. Heat slowly to boiling point over a moderate flame. When the mixture has broken up, lower the flame. Continue cooking for 20 minutes. Then leave to stand a little and pass the sauce through a vegetable mill. Put the sauce back on the heat and boil until you obtain a thicker sauce. Add six tablespoons of oil. Salsa di Pomodoro. Oh my gosh! “Let me tell you about lawyers.”

A learned and noble profession. The denigration of lawyers is nothing new. In Shakespeare’s Henry VI, Part II, a band of renegades plot to overthrow the monarchy. One of the traitors, Dick the Butcher, suggests: “The first thing we do, let’s kill all the lawyers.” Taken entirely out of context, the expression is often used to mock lawyers, whereas in reality, the statement recognizes that it is lawyers who uphold the rule of law and stand in the way of tyranny. But I am not about to get into a principled debate about the nobility of the legal profession with this guy—about the commitment to a

set of ethics and service to the community. I am not going to explain to him about integrity, discipline, how lawyers help people or what it means to be a professional.

Instead, I bite my tongue and listen to his diatribe about lawyers. It is not an enjoyable experience. It touches on cases I am familiar with, and even lawyers I know … you never know who you are talking to! But I remain polite and say nothing. I am embarrassed and feel unnecessarily harangued deciding to take one on the chin for my learned and noble friends. We choose our battles. “Everyone hates all lawyers except their own,” I manage. I don’t think it hits any marks. I doubt the conversation has the impact on him that it has on me.

Cut a slit in the base of each tomato. Add the tomatoes to the boiling water and blanch. Transfer to the ice water to cool. Peel, mesh and strain the tomatoes. Discard the seeds. Coarsely chop the tomatoes. Cook onion and olive oil over moderate heat for one minute. Add the tomatoes and crushed red pepper and season with salt. Cover partially and simmer over moderately high heat for about 30 minutes. Add the stale bread and reserved tomato juices to the soup and cook, mashing the bread until fully incorporated and season with salt. Stir in the basil leaves. Spoon the soup into shallow bowls, drizzle lightly with olive oil, top with a dollop of ricotta and serve right away. Pappa al Pomodoro, a traditional hearty bread, tomato and cheese soup. Off the charts! And yet, in the back of my mind I hear my father’s unimpressed xenophobic voice: “Hrumph! Variations on a cheese sandwich.” Let me tell you about chefs.

ENDNOTE

1. Incorporated Council of Law Reporting for England and Wales v Attorney-General, [1972] Ch 73.

HIRA ROWAN LLP WELCOMES

ANNE MACKENZIE

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

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

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

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

ON THE FRONT COVER

KASARI GOVENDER, K.C.

By Emily Chan, Sebastian Chern, Sharon Malhi and Kaymi Yoon-Maxwell*

After five years of leading the province through rapidly evolving human rights challenges, Kasari Govender, K.C., begins her second term as British Columbia’s Human Rights Commissioner on September 4, 2024.

Much has changed since Kasari stepped into the newly revived B.C. Human Rights Commissioner role in September 2019.

“[Kasari’s] work as B.C.’s human rights commissioner was made far more challenging due to the pandemic, climate emergencies in the province, the continuing drug toxicity crisis, and increases in instances of transphobia, racism, Islamophobia and antisemitism,” said Raji Mangat, the executive director of West Coast Legal Education and Action (“West Coast LEAF”) and an advisor for the Federation of Asian Canadian Lawyers (British Columbia) Society (“FACL BC”).

While tasked with setting up British Columbia’s first fully independent Office of the Human Rights Commissioner (“BCOHRC”), Kasari also found herself navigating the COVID-19 pandemic and a surge in hate incidents. As the province emerged from the early crisis stage of the pandemic, Kasari’s office leaned into its systemic mandate, participating in precedent-setting cases with human rights implications1 and launching inquiries into, for example, the police’s use of force2 and the Adult Guardianship Act 3

* This article was prepared and submitted by the co-authors on behalf of FACL BC. FACL BC is a diverse coalition of more than 770 Asian-Canadian legal professionals working to promote equity, justice and opportunity for Asian-Canadian legal professionals and the wider community. FACL BC thanks and expresses gratitude to Kasari for the chance to showcase her work as commissioner, as well as those who were interviewed for this article.

Throughout an eventful first five years, Kasari drew on her own roots as a racialized woman and a human rights lawyer to form relationships and chart a vision for human rights in the province. As she steps into her second term, Kasari reflects on the unique perspective she brings to her work, her career prior to her appointments, her independent mandate and what is ahead for human rights in the province.

“THAT’S WHAT OUR IDENTITY DOES. WE SEE THROUGH THE LENS THAT WE DO.”

Kasari’s approach to human rights and her sense of justice are rooted in her experiences, relationships and values.

“There’s no question that [my own background] is deep in how I approach all of our work, including the work on hate,” she said.

Kasari grew up in Vancouver and attended University Hill Elementary. She graduated from Prince of Wales Mini School in 1995. Kasari’s academic career reflects her strong commitment to human rights and justice. Kasari moved to Toronto to attend the University of Toronto, where she majored in Psychoanalytic Thought and Ethics, Society and Law, earning an honours bachelor of arts degree. Kasari then returned to British Columbia to attend law school at the University of Victoria. Kasari was drawn to the University of Victoria Faculty of Law by its reputation as a social justice-oriented law school.

Dr. Elizabeth Adjin-Tetty, the associate vice-president of academic programs and a professor in the Faculty of Law at the University of Victoria, remembers how Kasari drew on her life experiences even as a law student.

“I saw Kasari as a thoughtful student and person right from our very first encounter. She demonstrated a deep commitment to and understanding of issues of marginalization, including based on her own lived experience, and a desire to use her legal education to effect societal change.”

Kasari’s academic pursuits did not stop at law school. While working as the legal director of West Coast LEAF, Kasari simultaneously completed her master of studies (the equivalent to an LL.M.) in International Human Rights Law at the University of Oxford. Her thesis, “The Problem of Thirst: The Right to Equality and the Unlawful Privatization of Water”, explored the human right to water.

Kasari’s parents were important influences on her sense of human rights and equality. Kasari’s mother is of European descent and Kasari has previously spoken about how her mother’s work to address gender-based violence influenced her view of the world. Kasari has Indian heritage from her father’s side. Her father grew up in South Africa, where he experienced

apartheid-era policies of discrimination. It is a history Kasari describes as “deeply embedded” in her father’s and his family’s experiences of the world.

“Intergenerational trauma has only kind of recently become a term that resonates more with me personally,” she said. “Thinking about how you grow up as the child of somebody who lived in an oppressive regime … you’re not insulated from that experience entirely just because you grew up in a different political context. That’s very much in your psyche and how you think about the world.”

Kasari acknowledges that her upbringing and background have shaped her worldview in ways that she may not even be able to name herself—and that her mixed ancestry and appearance can lead to complicated feelings of belonging and otherness.

“That’s what our identity does. We see through the lens that we do,” she said. “Being a mixed-race person is occupying an interesting space around racialization, especially a lighter-skinned person like me. It means that you never really belong in any bucket other than a mixed-race bucket.”

Kasari’s background informed her approach as commissioner during BCOHRC’s inquiry into hate in the pandemic.4 First launched in August 2021, the inquiry followed a tsunami of reported incidents of hate during the early stages of the COVID-19 pandemic. Notably, the Vancouver Police Department reported in 2021 that hate crimes incidents increased ninetyseven per cent from 142 incidents in 2019 to 280 in 2020, and anti-Asian hate crime incidents rose by seven hundred and seventeen per cent from 2019 (12) to 2020 (98). It also marked the first inquiry that Kasari initiated using her powers under the Human Rights Code

The final report, From Hate to Hope: Report of the Inquiry into Hate in the COVID-19 Pandemic, 5 released in March 2023, is nearly 500 pages long. It features personal stories of incidents of hate during the pandemic and academic research on the origins of hate. In the report, BCOHRC made 12 recommendations for how British Columbia can address hate, acknowledge its harm, build safety and belonging, foster accountability and repair harm.

A CAREER OF “FIRSTS” AND “ONLYS”

Kasari’s career has seen a series of “firsts” and “onlys”. Before becoming British Columbia’s first independent human rights commissioner, Kasari broke down barriers as an Asian-Canadian woman (and the first biracial woman) in the executive director role at West Coast LEAF, an organization dedicated to using the law to advance gender equity. More than once, she found herself a lone voice at an important table.

“At the time [Kasari] took on the role of executive director at West Coast LEAF, there were few female—let alone Asian Canadian female—executive directors leading social justice or public interest legal non-profits in our province,” Mangat said.

Mangat, who worked alongside Kasari at West Coast LEAF, also described Kasari’s trailblazing work on family legal aid. “[Kasari’s] tireless work advocating at the provincial and federal levels and pushing for change through the courts when out-of-court advocacy proved futile has resulted in new, substantial investments in legal aid,” Mangat said, pointing to the creation of a specialized legal clinic for litigants fleeing family violence,6 which was established with a $29.1 million-government grant in the spring of 2024.

Kasari’s commitment and passion for gender equality drew her to West Coast LEAF and motivated her to play a pivotal role in establishing the Rise Women’s Legal Centre (“Rise”). Rise is a community legal centre that provides accessible legal services to economically disadvantaged individuals who are self-identified women and gender diverse people and are self-representing in their family law matters in British Columbia. The concept for Rise came to Kasari at home one day. She quickly followed through with her idea, successfully pitching it in a meeting with a donor’s representative, which resulted in a grant proposal and eventually led to a grant of nearly $1 million.

“We started Rise to start to fill the huge gap left behind when family law legal aid was slashed and burned in 2002, which had a serious and detrimental impact on women and children,” Kasari said. Kasari worked as the chair of the founding board for the first years of Rise’s existence. She also supported its inaugural executive director, Kim Hawkins, who built up the clinic to where it is now, serving thousands of women and gender diverse people in British Columbia.

Kasari also reflected on other moments in her career when she accomplished a “first” or was the only person at the table to bring a particular perspective.

“I think being racialized, being fairly young in a lot of the roles that I’ve been in, has meant that I have felt the sense of being … a bit out of place … [of] feeling like I don’t see myself reflected here in the people who have done this work or been here first before me,” she said.

Kasari recalled a time earlier in her career when she was invited to attend a justice roundtable in Vancouver, hosted by a federal political party. The event was hosted at a large law firm on Hastings Street, which had a “very glossy, big-firm feel to it,” Kasari said. “I went into the boardroom and I was the last one to arrive, unfortunately, and one of the assistants came out and he said to me, ‘Just so you know you’re the only woman here so speak up.’”

At the time, Kasari was in her early 30s and still working at West Coast LEAF. “I walked into the room in which everybody was 45 or older and white, except for one racialized chair and a young woman who was taking notes in the corner, who wasn’t sitting at the table,” she said.

The speakers went around the table discussing the pressing issues they saw in the justice system. As the conversation progressed, Kasari noticed that every other expert wanted to focus on criminal law. In addition to being the only woman, the only racialized person and the youngest voice at the table, Kasari was the only speaker to raise issues in civil and administrative law and the important role they play in people’s daily lives.

“To be the only person who brought that perspective—which of course isn’t inherent to my gender or my racial background—really spoke to why it matters that we have diversity at the table,” Kasari said. “It took moments of courage—not being intimidated by a space you can be made to feel that you don’t belong in.”

THE PROVINCE’S FIRST INDEPENDENT HUMAN RIGHTS COMMISSIONER

When then-Attorney General David Eby appointed Kasari as commissioner in May 2019, he described her as “among Canada’s leading voices on human rights” and highlighted her experience advocating for marginalized populations.7

At that time, British Columbia had been without a human rights commissioner for nearly two decades. The province scrapped an earlier iteration of the role in 2002, in what Kasari described as a period of “austerity politics”. Kasari, who was in law school at the time, joined others in the province to protest the closure of the commission. They also rallied against extensive cuts across the civil service, which severely impacted legal aid.

The legislature reintroduced the commissioner position in 2018 with amendments to the Human Rights Code. But the changes went further than merely reviving the old role. The new title included a systemic focus and, for the first time, “independent” status, the significance of which is described below.

“In this province, protection of and overall concern for human rights has waxed and waned over the decades,” said the Honourable Lynn Smith, O.C., K.C., who was a justice of the Supreme Court of British Columbia from 1998 to 2012. “The reinstatement of the position of human rights commissioner five years ago was most welcome, and [Kasari was] absolutely ideally suited to filling the role.”

Kasari describes the revitalized commission as an institution that is distinct nationwide, possessing an organizational framework that allows her to

serve as a more influential advocate for human rights than under the commission’s previous incarnation.

“It was reborn as an entity that is quite unique in the country and I think has the infrastructure—the sort of structural setup—to be a more powerful voice on human rights than it was structurally set up to do before,” Kasari said.

BEYOND BCOHRC

Outside of her role as commissioner, Kasari is a mother, an aunt, a daughter and a sister. She has a nine-year-old, who loves animals, especially baby raccoons, red pandas and orcas, and a dog named Birdie. Kasari is a retired yoga teacher and enjoys baking and reading in her spare time. She is learning to garden and says that, this past summer, she found herself struggling to eat zucchinis as fast as she could grow them.

Kasari also continues to lend her voice and perspective to many organizations. Kasari has sat on the board of directors for the University of Victoria, Pivot Legal Society, the Coalition for Public Legal Services, and the Society for Children and Youth. Her experience in non-profit management led her to also co-teach a course at Simon Fraser University called New Approaches to Non-Profit Management for the Canadian Context.

Outside of BCOHRC, Kasari has co-authored key reports and articles and also speaks widely about important social issues. For example, Kasari and Laura Track, the director of the Community Legal Assistance Society, codesigned and taught a seminar course at the University of British Columbia called Women, Law and Family, with a focus on how constitutional law supports women’s equality in the family.

Kasari’s work across the province earned her the Award of Excellence from the Canadian Bar Association, BC Branch Women’s Lawyer Forum, in 2019.

LOOKING AHEAD

On May 15, 2024, the B.C. Legislative Assembly unanimously voted to reappoint Kasari as Human Rights Commissioner. As noted earlier, her second five-year term began on September 4, 2024.

“As I look forward at the next five years of my term, there is no doubt that B.C. faces significant human rights challenges, from hate and discrimination to poverty and the ongoing impacts of colonization,” Kasari said in a press release. “I am grateful to all those standing up to meet these challenges and thankful for the opportunity to work towards a province free of discrimination and injustice.”8

Kasari is looking ahead to the future of human rights in the province— and thinking about how to build on the foundation she has already established in her first five years.

Kasari hopes her legacy as commissioner will be threefold.

First, she wants the public to see the “tangible” impact of the office’s work. For example, she hopes British Columbians can see the connection between her office’s report Disaggregated Demographic Data Collection in British Columbia: The Grandmother Perspective9 and British Columbia’s AntiRacism Data Act, which was passed in 2022.

Second, Kasari wants future changes to be driven by values and relationships. “We worked and are working hard to build relationships across communities, build relationships with Indigenous peoples, build relationships with Nations and that is foundational to who we are as an organization,” she said.

Finally, she would like her time as commissioner to leave a legacy of stability and ongoing efforts to further human rights in the province. “I hope I was influential in setting this [office] up,” she said. “So that we could not go through another time without a human rights commissioner.”

Without a doubt, British Columbia has benefited tremendously with Kasari at the helm of BCOHRC. Her career, with BCOHRC and before and beyond her time as commissioner, is a testament to her compassion, drive, tenacity and desire to better the world. The next five years will certainly further cement Kasari’s legacy as a trailblazer for positive change.

ENDNOTES

1. See Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680.

2. Online: <bchumanrights.ca/inquiries/use-of-force/>.

3. Online: <bchumanrights.ca/inquiries/aga/>.

4. Online: <hateinquiry.bchumanrights.ca/>.

5. Online: <bchumanrights.ca/inquiry-into-hate/>.

6. See British Columbia, Attorney General, “$29 Million Legal Aid Expansion for People Experiencing Family Violence” (15 February 2024), online: <news. gov.bc.ca/releases/2024AG0010-000203>.

8. Office of the Human Rights Commissioner, “Kasari Govender Reappointed as B.C.’s Independent Human Rights Commissioner” (15 May 2024), online: <bchumanrights.ca/news/kasari-govenderreappointed-as-b-c-s-independent-human-rightscommissioner/>.

9. Online: <bchumanrights.ca/publications/data collection/>.

7. British Columbia, Attorney General, “New Commissioner to Protect and Promote Human Rights” (30 May 2019), online: <news.gov.bc.ca/releases/ 2019AG0053-001113>.

Available at Kurbatoff Gallery, 2435 Granville St., Vancouver

Visit the website: kurbatoffgallery.com

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

THE BENEVOLENCE OF RICK CLUFF

By David W. Hay, K.C.

Rick Cluff was many things to many people. His untimely death at the age of 74 led to an inspired collective celebration of his life in media and, more particularly, of his life in the broader community. Common themes were his generosity and love of a good time.

For anyone who attended the Battle of the Bar Bands (the “Battle”) during the Rick Cluff era, when he served as the Battle’s perennial master of ceremonies, evidence of those themes was in abundance.

Our “cause” and the purpose of the Battle, a fundraiser for the CBA(BC) Benevolent Society, has never been easy to explain to lawyers, let alone normal people. When we say that the Benevolent Society assists lawyers and articled students and their families in times of crisis, we have come to expect a number of different reactions. There is seldom an immediate understanding of how our fallen colleagues could possibly need assistance without some kind of wholesale moral or self-inflicted failure. “Lawyers need help?!” some will scoff.

Rick knew better and immediately recognized that while some lawyers conform to the expectation of affluence and success, most face significant personal and professional demands and a small but appreciable number, owing to medical reversals including addiction to alcohol and/or drugs, succumb to those pressures and have nowhere else to turn but the Benevolent Society. This was virtually self-evident to Rick. He had a deeper understanding than most of both our profession and the misconceptions about it.

Beyond that, in his heart of hearts, Rick Cluff was a rocker. He loved to hang out in the green room with the bands and marvelled at the quality of musicianship, the pageantry, the science behind song selection and the reveling audience. The competitiveness did not surprise him—these were lawyers after all (or at least fifty per cent were lawyers or law employees in accordance with the rules).

When not on stage introducing bands or making event-related announcements, Rick would move like water backstage from one conversation to the next, bringing his own brand of harmony to the competition. Rick always knew what to say and what to do to instill levity and lightheartedness when

tensions could run high. His presence at the Battle always served as a governor for those who took themselves too seriously. His bemused grin and relaxed banter, not to mention his celebrity appeal, helped everyone meet the challenge of authenticity and served as a helpful reminder of the Battle’s purpose: to lift lawyers or articled students or their families out of the ravages of illness or injury (self-aggrandizement always comes second).

For Rick, the Battle was not just another event to which he had been invited to play a token role. He was committed to the Battle and the Benevolent Society. Prior to one of the Battles, Rick had a minor heart attack. Imagine the surprise of our organizing committee (then led by our treasurer Roger Holland) when Rick informed us that he was leaving his bed to come to the Battle and emcee the event. Such was his allegiance to our cause.

Rick embodied the heart and the soul and the spirit of rock ‘n roll. He graced our stage for many years and contributed so much to the success of the many Battles at the Commodore Ballroom during the years he served as emcee. He was a true friend of the Benevolent Society and a true friend of the legal profession. He allowed us to be ourselves even when we were trying on stage not to be ourselves. He recognized the plurality of human nature and the theatrical propensity of lawyers, casually and cheerfully navigating the many moments of the Battle throughout the years. He generously offered radio time for us to describe the Battle and the purposes of the Benevolent Society, thereby gently helping the public to understand that lawyers are human beings with both imperfections and empathy for one another.

Rick will be sorely missed by all who participated in the Battle. All of us at the CBA(BC) Benevolent Society owe him a large debt of gratitude. He will be publicly honoured at the event next year. We thank him for his wonderful dignity, grace and interest in our work. Rick was a truly benevolent brother to us all.

CONTROLLING THE APPELLATE DOCKET: THE PRACTICE AND PROCEDURE OF QUASHING AND “SUMMARILY DETERMINING” DEFECTIVE APPEALS

By Tom Posyniak

It has now been more than two years since the Court of Appeal received brand-new enabling legislation and a complete overhaul of its rules.1 The changes were not, even as advertised, meant to be dramatic. This was a modernization: an effort to tidy up a set of rules, practice directions and jurisprudential conventions that had become somewhat opaque and disorganized.2 In the two years since the new Court of Appeal Act and rules, the court has substantially confirmed that much of its previous civil procedure jurisprudence remains the same.3

One thing that changed is how the Court of Appeal polices defective appeals. There were two main changes. First, the court codified its practice with respect to motions to quash and expanded the power of single justices to quash appeals. Second, the court was granted the power to “summarily determine” appeals on its own motion under a rule that has no precedent at the Court of Appeal and no real analogue in the Supreme Court Civil Rules. This article has two objectives. First, it will walk through these changes to the Court of Appeal’s powers. Second, because lawyers love lists, this paper will humbly offer an appellate “cheat sheet” for dealing with an appeal that is defective.

APPLICATIONS TO QUASH

Historically, as a respondent, the main way to exit an appeal early was to apply to quash the appeal. Applications to quash existed under the old Court of Appeal Act. A respondent could apply to quash an appeal or raise a preliminary objection to an appeal being heard by filing a notice specifying the ground of the application or objection at least seven clear days before the day that has been set for hearing the appeal.4

Applications to quash could be brought for many reasons, but the main ones were:

•The appeal lacks merit to the point that it constitutes an abuse of process.5

•The appeal is moot.6

•The appellant has no standing to appeal.7

•The appeal itself is an abuse of process.8

•The court lacks jurisdiction to hear the appeal.9

The practice of the Court of Appeal was to hear applications to quash, including on the basis of mootness, at the same time as the appeal and then decide the application and the substantive appeal together.10

A respondent might fairly question such a practice. What is the point of bringing a preliminary motion to quash if you are going to have to go to the expense of the entire appeal process in any event, including the cost of preparing a responsive factum and attending a hearing of the appeal?

Under the old Act and rules, the court expressed some sympathy to the bind into which respondents in this position were put, but essentially told them: it is always for the division hearing the appeal to decide how to deal with the preliminary objection; they can decide to hear these issues in advance of the main hearing.11 Such an outcome appears rare at least among reported decisions, although on occasion a division may send a memorandum to counsel in advance of the hearing directing such a result.

Instead, what developed was a practice of raising a preliminary application to quash, to be heard at the outset of the hearing, and, if the division hearing the appeal agreed with the application, either deciding the matter then and there, or reserving and hearing the entire appeal.

The bind for respondents was then this: prepare a preliminary application to dismiss for the hearing of the appeal and hope it is heard and decided in your favour at the outset, or prepare both the preliminary application and a substantive factum in response to the appeal (to the extent these answers differ) and be prepared to argue both points. Unless the preliminary objection is a guaranteed winner, most counsel would tend to the latter.12 In other cases, it could be a big saver of time and money for the respondent to have a preliminary objection heard before any substantive appeal is joined.

The current Court of Appeal Act and rules clarify the practice for applications to quash. The Act confirms that the court has the authority to make any order giving effect to a preliminary objection, language that encompasses applications to quash. The Act now also empowers a justice to quash an appeal on the basis that the court “lacks jurisdiction” and otherwise make orders giving effect to a preliminary objection in relation to an appeal, other than an order dismissing the appeal.13

Rule 60 provides the procedural rules for applications to quash. This previously was only the subject of the court’s pronouncements about its own practice. Under Rule 60, a party who wishes to raise a preliminary objection to an appeal or quash an appeal before it is heard must bring an application seven business days before the “application hearing date” (not the date the appeal is to be heard). The responding party has an opportunity to file a response. Subsection 60(4) then incorporates the court’s previous practice in one pithy sentence: “Unless a justice or the registrar orders otherwise, an application under this rule must be heard at the time of the hearing of the appeal.”

At least one chambers judge and the full court have now weighed in on what this section and the court require. In short:

A party to an appeal seeking to bring an application to quash or a preliminary objection can “apply” to a justice or the registrar for an order or direction that the application be heard before the hearing of the appeal.14

The rules are silent on how a justice or the registrar should consider the issue of sequencing, and whether an application to quash an appeal should be heard in advance of or together with the appeal. It is now confirmed that Rule 60(4) does not contemplate a formal application; rather, the registrar can examine the filed material, and any correspondence from the parties, and exercise his discretion on the sequence of the application to quash.15

A decision by the registrar with respect to scheduling an application to quash is an “order” under the rules, so one could appeal that decision to a justice.16

The court’s general practice is still to hear such applications at the same time as the appeal. This practice is codified in Rule 60(4). This practice responds to the demands of fairness and efficiency, but in the appropriate case, such concerns may be consistent with hearing a preliminary objection before the main appeal. A decision on sequencing is highly fact specific and discretionary; it is the registrar’s “judgment call” and a justice will not interfere with that decision barring error of principle.17

The applicant bears the onus of justifying a departure from the court’s general practice of hearing preliminary applications at the same time as the appeal. It will often need to be an exceptional case to justify having an application heard before the appeal.18

Generally, the court will be reticent to decide factually and legally complicated applications that substantially overlap with the substantive issues on appeal. The court is mindful that applications to quash should not become substitutes for hearing appeals on their merits, particularly where assessing the merits “involves being drawn into transcripts or other aspects

of the evidence”. The power to quash is rarely exercised because it is usually difficult to find an appeal devoid of merit without first hearing the entire appeal. Moreover, applications to quash appeals may lead to inefficiencies and duplicative expense because they might not succeed.19

In contrast, an application to quash may be appropriately heard before the main appeal where the material facts are not in dispute and the legal issues are not complex, novel or controversial, including where the application challenges the appeal on the basis that it is so meritless that it amounts to an abuse of process.20

SUMMARY DETERMINATION UNDER SECTION 21

One significant addition to Court of Appeal practice is the process for summary determination of an appeal. The twist here is that this process is not party-driven. Instead, the court acts on its own motion, policing its own docket. Section 21 of the Act states that a “justice or the registrar” may refer an appeal to the “court” (i.e., three judges) for “summary determination” if the justice or the registrar considers that the appeal is frivolous, vexatious or can otherwise be dismissed on a summary basis. The court is then empowered to dismiss on such terms, after giving the appellant an opportunity to be heard.

This type of court-driven summary dismissal tool is an unknown quantity. Two years since its introduction, we know the following about how s. 21 works:

•It does not allow a party to apply to the court for summary determination of an appeal, but permits a justice in chambers or the registrar to “exercise discretion” to refer it to the court for summary disposition where it is frivolous or vexatious or otherwise can be dismissed on a summary basis.21

•While there is no process for a respondent to apply for summary determination, it can informally (i.e., by letter, not application) write to the court (the registrar, properly) and request the court consider making the referral. A formal process is not required or warranted. This is confirmed by the fact that while an appellant can submit argument, a respondent has no right to do so.22 An application to quash, by contrast, is driven by a respondent, armed with evidence and argument. The rules call for the exchange of affidavits and written submissions.23

•A referral under s. 21 must be understood in the context of the power to quash appeals under the Act and having regard for the

process under Rule 60. A referral is appropriate where there is an obvious defect to an appeal. It is not appropriate where evidence and argument from the respondent are necessary to determine whether it is frivolous or vexatious, or otherwise bound to fail.24

•A respondent may invite a s. 21 referral in case management and a justice or the registrar can make that referral.25 It may also, presumably, be raised in the course of other chambers applications where merits are determined but not decisive of an appeal, such as an application for no-fee status. However, a respondent cannot raise s. 21 in a different matter coming before a full division; it must be referred to the full court by the registrar or a justice.26

•In considering a summary determination referral, the court has stated it must be mindful that this is a “relatively new power and must be exercised carefully”.27 Nonetheless, even with this caution, the full court has shown that they are prepared to consider an appeal head on and dismiss appeals with “no merit” under s. 21.28

HOW SHOULD A RESPONDENT USE THESE TOOLS?

What can a respondent do with these processes, particularly in the context of how an appeal would typically proceed at the Court of Appeal? The answer is: a lot.

What follows is a short cheat sheet to assist in strategizing for an early exit to a bad appeal. It is somewhat impressionistic and by no means comprehensive.

A Jurisdictional First Strike

If there is a good case to be made that the Court of Appeal does not have jurisdiction at all to hear the appeal, a respondent will have a number of options available to end the appeal early.

One option would be to apply to a single justice to quash the appeal immediately upon receipt of the notice of appeal. In contrast to the old Act, which did not empower a single justice to dismiss anything, the present Court of Appeal Act specifically empowers justices to do so.29 This article cannot possibly do justice to a topic as rich and consuming as the statutory jurisdiction of appellate courts, including our Court of Appeal.30 Suffice it to say that jurisdictional issues can arise in a varied circumstances, including where there is no “order” on which to ground appellate jurisdiction or where there is a statutory prohibition on appeals to the Court of Appeal.31 Further, where an appeal as of right has been brought in circumstances where leave was in fact required, a respondent could apply to quash for

want of jurisdiction and bring that application before a single justice.32 Issues of standing are closely related to jurisdiction in the appellate context and may also be addressed by a jurisdictional application.33

Jurisdictional challenges at the Court of Appeal can be skinny, in terms of both evidence and authority. They are aptly suited for a chambers motion brought immediately at the outset of an appeal. Chambers at the Court of Appeal is readily accessible, even on relatively short notice. An applicant would, however, still need to persuade the justice hearing the application that it is appropriate to decide the matter in advance of the hearing of the appeal.

A “Notice of Appearance” Letter

Another option for respondents at the start of appeal is to write a letter to the registrar making a request for a s. 21 referral at the time they file their notice of appearance.34

This strategy may be employed at the start of an appeal where there is an obvious jurisdictional defect, or where there is otherwise good reason to believe the appeal is vexatious or frivolous or apparently defective on its face, such as when the matter is res judicata 35

One does not need to write a long letter to engage this process. A simple note to the registrar indicating the respondent’s view that this appeal is apparently defective and the reasons why, and requesting a referral under s. 21, is all that is required or, indeed, wanted. Simply flag it as a bad appeal. The court’s own processes can take it from there.

If the registrar does not agree with you on referring the appeal, that temporarily ends the matter.36 You can still decide to bring an application to quash or seek early dismissal of the appeal by other means should the opportunity present.

The Section 21 “Two Step”

Another option is to do a s. 21 “two step”. This strategy is more passiveaggressive: counsel simply does nothing and waits until the appellant takes a step that requires an application to court, like an application for no-fee status. This can also include other times an appellant is before a chambers judge, such as at a case management conference. Some of these applications require a chambers judge to get an impression of the merits of the appeal. This is the first step. If the judge’s decision is that the appeal is without merit or apparently defective, without any reference to the record or the evidence, you have then an opportunity for the second step: the letter to the registry seeking a referral, armed with an opinion that the appeal is meritless or defective in some respect.

Applications to Quash Before the Hearing of the Appeal

Where there are low-evidence, low-complexity grounds for saying an appeal is “manifestly meritless”, an abuse of process or jurisdictionally flawed, it is worth trying to have the matter heard by the full court before the hearing of the appeal. Deciding whether an appeal fits in this bucket is a judgment call, but the operative rule is that if your motion record has multiple, thick affidavits and you are citing more than five cases, you are probably better off bringing the application as part of the hearing of the appeal in the normal course.

Strategically, when you file your application, it is not a bad idea to enclose a very short cover letter to the registrar explaining why you think the court should hear this application before the main appeal and exercise judgment in your favour. You should not abuse the informality of this letter: limit yourself to short, salient points.

Applications to Quash at the Hearing of the Appeal

Sometimes your application will have to wait for the full hearing. But if you have a preliminary objection, view it is an opportunity to double your chances for advocacy (be reasonable; the court respects short, crisp written arguments). If you can prepare your motion to quash arguments efficiently within your factum, even better. Mootness issues can be good candidates for this category, as can arguments that the appeal is so meritless as to amount to an abuse of process.

CONCLUSION

With the benefit of now two years of time and thought, it is reasonably safe to say the changes to the court’s preliminary means of disposing an appeal are probably for the better because they give the bar and the public clear signposts on how to deal with bad appeals, resulting in a more efficient and fair appellate process for all. With these tools being available to the bar, further improvements will undoubtedly be identified, particularly with novel processes like summary determinations.

ENDNOTES

1. Court of Appeal Act, SBC 2021, c 6; Court of Appeal Rules, BC Reg 120/2022.

2. Attorney General of British Columbia, “New Court of Appeal Rules Improve Access to Justice” (25 May 2022), online: <news.gov.bc.ca/releases/2022AG 0080-000815>.

4. Court of Appeal Act, RSBC 1996, c 77, s 20.

5. See e.g. Szopa v Canada (Attorney General), 2020 BCCA 47 at para 13; Chamberlin v Insurance Corporation of British Columbia, 2021 BCCA 397 at para 8 [Chamberlin].

6. See e.g. Forjay Management Ltd v 625536 BC Ltd, 2021 BCCA 171 at para 19 [Forjay].

3. This includes things such as the test for leave to appeal (Key-West Asphalt Products Ltd v CMI Roadbuilding Inc, 2022 BCCA 444), extending time to file an appeal or take another step in an appeal (Morrison v Laas, 2024 BCCA 191), applications to reinstate appeals (Huang v Li, 2022 BCCA 450) and applications for intervener status (Linkletter v Proctorio, Incorporated, 2022 BCCA 313).

7. See e.g. Fraser Valley Refrigeration Ltd v British Columbia, 2009 BCCA 422; Richard Niebuhr Enterprises Ltd v Vancouver (City) Board of Variance, 2007 BCCA 528.

8. Larkin v Glase, 2009 BCCA 321; Abokasem v Benjamin, 2016 BCCA 183 at para 10; First Majestic Silver Corp v Davila Santos, 2015 BCCA 452 at para 20; Krist v British Columbia, 2017 BCCA 78 at para 52; Chamberlin supra note 5 at para 10.

9. AAA Action Movers (2008) Inc v Walker, 2021 BCCA 400.

10. British Columbia (Technology, Innovation and Citizens’ Services) v Columbus Real Estate Inc, 2017 BCCA 365.

11. Ibid; Greig v Desjardins Financial Security Life Assurance Company, 2021 BCCA 76.

12. In some cases, the respondent will not have a need to respond to the substantive appeal and so this will not matter. See e.g. ibid; Forjay, supra note 6.

13. Court of Appeal Act, SBC 2021, c 6, s 20.

14. Lac La Ronge Indian Band v British Columbia, 2023 BCCA 117 at para 29.

15. Ibid

16. See e.g. ibid

17. Lac La Ronge Indian Band v British Columbia, 2024 BCCA 58 at paras 54–58.

18. Ibid at para 55.

19. Ibid at paras 48–54.

20. See e.g. ibid

21. Veeken v British Columbia, 2024 BCCA 80 at para 2 [Veeken]; Yang v Shi, 2022 BCCA 317 at para 21

[Yang]; Masjoody v Trotignon, 2023 BCCA 220 at para 14 [Masioody].

22. Yang, supra note 21 at para 21; Masjoody, supra note 21 at para 14.

23. Yang, supra note 21 at paras 24–26.

24. Ibid at para 21; Masjoody, supra note 21 at para 14.

25 . Yang, supra note 21 at para 23.

26. Salloum v Smith, 2023 BCCA 175 at paras 24–25.

27. Veeken, supra note 21 at para 2.

28. See e.g. ibid.

29. Court of Appeal Act, SBC 2021, c 6, s 20.

30. See generally Holly A Brinton, Peter R Senkpiel, M Caitlin Ohama-Darcus & Tom A Posyniak, Civil Appeal Handbook, 2nd ed (Continuing Legal Education Society of British Columbia, 2002), ch 1.

31. Badela v Donald, 2024 BCCA 215.

32. Stagewest Winery Limited Partnership (Re), 2023 BCCA 296.

33. Goldberg v Law Society of British Columbia, 2022 BCCA 388 at para 27.

34. Court of Appeal Rules, BC Reg 120/2022, r 7.

35. See e.g. Sabok Sir v Hill, 2024 BCCA 279.

36. An interesting question is whether a refusal make a referral under s 21 is “order or direction” of the registrar and thus subject to an appeal. The point is yet undecided. It would seem to be contrary to the spirit of the rule to not allow a respondent any role in the referral process, but allow them a right to appeal a refusal of the registrar to make a referral.

FREE SPEECH: INDISPENSABLE TO DEMOCRACY, HUMAN PROGRESS AND SOCIAL JUSTICE*

By Calvin Sandborn, K.C.**

Recent controversies on college campuses raise deep concern about the state of Canada’s commitment to freedom of expression.

A growing number of student activists and professors now advocate shutting university doors to speakers with whom they disagree— on issues such as abortion, gender identity, policing and Indigenous rights. Yet many of those same individuals vigorously assert the right of free speech for pro-Palestinian demonstrators.

Conversely, many who support the right of social conservatives to speak on campus are quick to condemn universities for not shutting down antiIsrael protests.

By invoking the right of free speech selectively, these groups undermine their credibility. Our commitment to free speech is not tested when we let our friends speak. The true test is when we let our adversaries speak. Voltaire defined the democratic imperative: “I disapprove of what you say, but will defend to the death your right to say it.”1

Unfortunately, many now reject the necessity of letting adversaries speak. And that augurs ill for democracy. At this particular juncture, it may be useful to review the importance of free speech in a democracy—and the profound contribution free speech makes to human progress and social justice.

THE IMPORTANCE TO DEMOCRACY

Freedom of expression is essential to democracy. As the Supreme Court of

* An abbreviated version of this article appeared as “Comment: Free Speech Is Indispensable to Social Justice and Democracy”, Victoria Times Colonist (6 June 2024), online: <www.timescolonist.com/opinion/comment-free-speech-isindispensable-to-social-justice-and-democracy-9002189>.

** The author is indebted to Andrew Petter, K.C., C.M., O.B.C., for his editorial assistance, and to Hamar Foster, K.C., and Kent Roach, C.M., for useful suggestions on this article. Any errors are the sole responsibility of the author.

Canada has noted, free expression is “the indispensable condition of nearly every other freedom”.2 Free speech and democracy have been inextricably linked since community assemblies gathered in ancient Athens—and the first bold debaters criticized authorities and laid the foundation for democracy.3

In British North America, the role of free expression in a democracy was first tested in the 1733 Zenger case. John Peter Zenger’s Weekly Journal criticized the Royal Governor of New York for firing a judge and rigging an election by barring a religious minority from voting. The Journal bravely asserted the right to publish the exposés, warning of the impact on democracy if government suppressed free expression: “No nation ancient or modern has ever lost the liberty of freely speaking, writing or publishing their sentiments, but forthwith lost their liberty in general and became slaves.”

Nevertheless, the governor went on to charge Zenger with seditious libel. At trial, the judge instructed the jury that truth was not then a defence to libel and that they must convict. However, a defiant jury exercised “jury nullification” and acquitted Zenger—heeding the defence argument that he had the inherent democratic right to speak the truth about arbitrary government actions.

The Zenger jury nullification decision curbed further similar prosecutions—and press freedom flourished. The Zenger trial is recognized as a major impetus for the creation of the U.S. First Amendment.4

In modern times, the Supreme Court of Canada has identified the critical connection between free speech and democracy:

The concept of free and uninhibited speech permeates all truly democratic societies … The very lifeblood of democracy is the free exchange of ideas and opinions. If these exchanges are stifled, democratic government itself is threatened …

History has repeatedly demonstrated that the first step taken by totalitarian regimes is to muzzle the media and then the individual …

It is difficult to imagine a more important guarantee of freedom to a democratic society than that of freedom of expression. A democracy cannot exist without the freedom to express new ideas and to put forward opinions about the functioning of public institutions. These opinions may be critical of existing practices in public institutions and of the institutions themselves. However, change for the better is dependent upon constructive criticism.5

Clearly, when criticism is not allowed, the people can no longer hold governments accountable.

Just as important, free speech restrictions impoverish social policy and governance. When the free flow of information is restricted, citizens cannot be fully informed—and democracy falters without informed citizens. If unpopular views are silenced, citizens lose the opportunity to hear all sides

of issues, draw their own conclusions, and press government for thoughtful changes. As the U.S. Supreme Court has stated, the protection of free expression “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people”.6

A government is not “of the people, by the people, for the people” if it refuses to allow people to speak and to learn from each other.

THE IMPORTANCE TO HUMAN PROGRESS

In a larger sense, free speech is key to the pursuit of truth and knowledge— which is, in turn, essential to human progress.

No single individual or body has a monopoly on truth and knowledge. Only free and open discussion—an unfettered sharing of myriad facts, diverse ideas and disparate opinions—can get us to the truth of things. Open debate is necessary to move us toward a greater understanding of what ideas are sound and have value—and which ones are unfounded. Such open debate fosters progress in the whole range of human endeavours, including law, politics and science.

The field of science is a good example.Restricting speech in science clearly undermines the advancement of human knowledge:

•When authorities arrested Galileo for stating that the sun—not the Earth—was the centre of the solar system, scientific progress was hindered.7

•When Stalin banned free discussion of Mendelian genetics and natural selection theory—because they contradicted Marxist doctrine—Soviet agriculture failed and widespread famine resulted.8

•When southern U.S. schools banned class discussion of evolution, they impoverished scientific understanding for generations of students. 9

•When the Harper government muzzled federal scientists’ comments about climate change, it undermined open scientific inquiry.10

Finally, when the Chinese government ordered Dr. Li Wenliang to stop warning doctors about a strange new virus, that ban on speech hampered early global responses to COVID-19. This silencing order contributed to a global public health disaster. One commentator criticized the order, specifically citing the medical imperative for free speech: “Dr. Li Wenliang is a hero. In the future, doctors will be more afraid to issue early warnings when they find signs of infectious diseases. A safer public health environment … requires tens of millions of Li Wenliang”.11

Societies that protect speech and debate are more likely to reject dogma and received truths—and more likely to apply reason and critical thinking. History shows that such open societies thrive, in comparison to closed societies that limit discussion by fiat. It is no coincidence that people flee dictatorships to settle in open societies—because of the social, technological and economic advantages open societies afford.

An additional advantage is escape from the human indignity created when government forbids voicing your true thoughts. As Václav Havel described living without free speech in Soviet Czechoslovakia: “The worst thing is that we live in a contaminated moral environment. We feel morally ill because we became used to saying something different from what we thought. Concepts such as love, friendship, compassion, humility or forgiveness lost their depth and dimension.”12

Twenty-four centuries before President Havel, Euripides made the same point: “This is slavery: not to speak one’s thought.”13

THE IMPORTANCE TO SOCIAL JUSTICE

Many who call for bans on campus speech claim they are acting to protect minority rights. In doing so, they too often forget the key role that freedom of speech plays in bending the arc of history towards justice.

Indeed, the exercise of free speech was the indispensable engine that drove the abolitionist and suffragette movements, and the struggles for civil rights, peace and the environment. The right to free speech has enabled minorities to challenge entrenched majority opinion, to object to injustice, and to educate and persuade society to change.

As Danish human rights advocate Jacob Mchangama has written: “Free speech in fact may be the most powerful engine of human equality that human beings have ever stumbled upon. Every single oppressed group or minority has relied on free speech, the practice and principle, to further their cause and stake a claim for equality and tolerance.”14

For example, runaway slave Frederick Douglass turned public opinion against slavery by giving eloquent speeches that recounted the horrors of life as a slave—and demanded justice. Significantly, Douglass identified the right to free speech as essential to the success of the abolitionist struggle.

When a pro-slavery Boston mob shut down his abolitionist lecture in 1860, Douglas issued his classic “Plea for Freedom of Speech”: No right was deemed by the fathers of the Government more sacred than the right of speech. It was in their eyes, as in the eyes of all thoughtful men, the great moral renovator of society and government … Liberty is meaningless where the right to utter one’s thoughts and opinions has ceased to exist. That, of all rights, is the dread of tyrants. It is the right

which they first of all strike down. They know its power. Thrones, dominions, principalities, and powers, founded in injustice and wrong, are sure to tremble, if men are allowed to reason … Slavery cannot tolerate free speech. Five years of its exercise would banish the auction block and break every chain in the South.15

The hundreds of lectures that Douglass delivered across the United States and Europe played a major role in turning public opinion against slavery. Douglass acknowledged this, flatly asserting that “the right of speech is a precious one, especially to the oppressed.”16

Free speech won women the right to vote. Susan B. Anthony’s barnstorming speaking tours—where she vividly described her arrest and trial for the crime of “voting while a woman”—drove home the absurdity and deep injustice. Public opinion moved, and in 1878 the first congressional bill proposing women’s franchise was proposed. Eventually the “Susan B. Anthony Constitutional Amendment” became law.17

Similarly, English voting reform gained unstoppable momentum with Emmeline Pankhurst’s eloquent “Freedom or Death!” speech. In this 1913 speech, Pankhurst:

•praised women hunger strikers who vowed to starve themselves to death if voting rights were not granted; and •condemned the jailing of women who had dared voice questions about voting rights at all-candidates meetings.

Today, this speech is widely recognized as one of the most influential speeches of the 20th century.18

Half a century later, Martin Luther King’s “I Have a Dream” speech was the thunderbolt that felled segregation. But King succeeded in spite of authorities who repeatedly tried to shut him up by arresting or suing him and his allies.

For example, King was arrested in 1962 for praying out loud for an end to segregation on the city hall steps in Albany, Georgia.19 At around the same time, the segregationist police chief of Montgomery, Alabama successfully sued King’s team for defamation—until the U.S. Supreme Court reversed the decision in the leading free expression case of Sullivan v. New York Times 20

Indeed, on the very day that King was killed, his aides had to appear in court to challenge a court order that barred him from marching and speaking. That explains why King’s final “Mountaintop” speech includes this tribute to free speech: “Somewhere I read of the freedom of speech … Somewhere I read that the greatness of America is the right to protest for right.”21

Legendary activist Congressman John Lewis memorably acknowledged the importance of free speech to the civil rights movement: “Without freedom of speech and the right to dissent, the civil rights movement would have been a bird without wings.”222

More recently, the campaign to legalize gay marriage might well have failed had free speech rights been compromised. As Glenn Loury argues: Gay marriage advocates won through the slow, grinding work of making the case before the public, in newspaper editorials and magazine articles and TV roundtables, and, most crucially, in one-on-one conversations with friends and family members who may have been uncomfortable with the idea at first …

… Had gay marriage proponents simply called skeptical friends vile homophobes and refused ever to speak with them again or demanded that gay marriage opponents be banished from the airwaves and debate stage, it’s unlikely that gay marriage would be as widely accepted as it is today, even if the right was secured in the courts. They knew that any formal right—including that of free speech itself—that hasn’t passed through the gauntlet of public debate would find itself on shaky ground when exercised in the real world.23

Progressives should never forget that censorship cuts both ways. By seeking to shut down reactionary speakers on campus today, they help legitimize efforts to ban progressive speakers tomorrow. Suzanne Nossel, human rights advocate and head of PEN America, has warned of the danger of such bans:

In the long run, those who have the greatest to lose from a withering of free speech norms are those most vulnerable to government suppression of speech, or to being shouted down by the mob, namely the powerless and voices of dissent. It would be ironic for those whose voices are in greatest danger of being silenced to lead the charge to dismantle the norms and principles intended to guarantee them their say …24

It is vital to remember that bans on free speech have often sabotaged progress and worked against minority interests. The examples are legion. It is not just the pro-slavery mobs that disrupted Douglass’ meetings, the segregationist officials who jailed King and the English officials who jailed suffragettes for demanding answers at political meetings.

In Canada, residential schools routinely banned speaking Indigenous languages and advocating Indigenous culture. Alberta passed a statute authorizing the government to ban publication of leftwing proposals and criticisms of government.25 Quebec silenced activists, unions and Jehovah’s Witnesses with the “Padlock Act”, which arbitrarily padlocked buildings used for propagating “communism”.26 For years, Canada Customs arbitrarily seized gay literature.27

In particular, potential university censors should recall the attempted censorship of the Berkeley Free Speech Movement. In 1964, the University

of California barred campus political advocacy. When a civil rights activist urged students to join the campaign to register black voters in the South, authorities arrested him. Students responded with a “free speech” sit-in where 800 were arrested—the largest arrest of students in U.S. history.

Sit-in leader Mario Savio had spent the previous “Mississippi Freedom Summer” risking his life registering black voters. Now he spent four months in jail, fighting for the simple right to speak on campus about the gross injustice he had seen.28

The Free Speech Movement became a major incubator of student radicalism, and profoundly advanced anti-racism, feminist, peace and environmental movements.

The key point is that freedom of expression functions as “the Great Engine of Truth”. Its exercise has shown many widely held “truths” to be quite false—e.g., that slavery was just, that women were inferior, that colonialism benefited First Nations and that gays must not marry. It is inevitable that some of the “truths” we embrace today will also be in error, to some degree or other.

Free speech gives people the liberty to challenge such false beliefs. It enables disrupters like Douglass, Pankhurst and King to challenge pernicious orthodoxies, and wake society from the “deep slumbers of decided opinion”.29

This is vital. Reliable conclusions are more likely to be gathered from a clash of a multitude of opinions, rather than from the declaration of one authorized set of opinions. Free discussion helps discover truth and expose injustice.

Of course there are some legitimate limits on the right to free speech, including limits on hate speech, threatening or intimidating behaviour, and defamation. But we must not lightly interfere with a right so essential to the preservation of democracy, the advance of human progress and the pursuit of justice.

Instead, we should join Frederick Douglass in celebrating free speech as “the great moral renovator of society”.

ENDNOTES

1. Voltaire’s biographer, Evelyn Beatrice Hall, summed up the philosopher’s beliefs with the above statement, often attributed to him. See Tom Cavanagh, “The Echo Chamber Is Getting Louder”, University of Central Florida Today (9 July 2014), online: <www.ucf. edu/news/echo-chamber-getting-louder/>.

2. R v Sharpe, 2001 SCC 2 at para 23. McLachlin CJC endorsed the above-quoted phrase first coined by Cardozo J in Palko v Connecticut, 302 US 319 (1937).

3. Mark Cartwright, “Athenian Democracy”, World History Encyclopedia (3 April 2018) and NS Gill,

“Ecclesia the Greek Assembly”, Thoughtco (24 August 2018).

4. Professor Douglas O Linder, “The Trial of John Peter Zenger, an Account”, Famous Trials (University of Missouri-Kansas City School of Law), online: <www. famous-trials.com/zenger/87-home>.

5. Committee for the Commonwealth of Canada v Canada, 1991 CanLII 119 (SCC).

6. Roth v United States, 354 US 476, 354 US 484 (1957).

7. Albert Van Helden, “Galileo”, Encyclopedia Britannica (10 June 2024), online: <www.britannica.com/ biography/Galileo-Galilei>.

8.K Lee Lerner, “The Disastrous Effects of Lysenkoism on Soviet Agriculture”, Encyclopedia.com, online: <www.encyclopedia.com/science/encyclopediasalmanacs-transcripts-and-maps/disastrous-effectslysenkoism-soviet-agriculture>; “Lamarckism” and “Trofim Lysenko”, Britannica, online: <www.britannica. com/science/Lamarckism> and <www.britannica. com/biography/Trofim-Lysenko>.

9.Kristine Bowman, “Evolution” (Free Speech Center, Middle Tennessee State University), online: <first amendment.mtsu.edu/article/evolution>.

10.Jonathon Gatehouse, “When Science Goes Silent”, Maclean’s Magazine (3 May 2013).

11. Stephanie Hegarty, “The Chinese Doctor Who Tried to Warn Others about Coronavirus”, BBC News (6 February 2020), online: <www.bbc.com/news/ world-asia-china-51364382>.

12.Goodreads, “Václav Havel Quotes”, online: <www. goodreads.com/author/quotes/71441.V_clav_ Havel>.

13.Goodreads, “Euripides Quotes”, online: <www. goodreads.com/quotes/414435-this-is-slavery-notto-speak-one-s-thought>.

14.Jacob Mchangama & Jonathan Rauch, “What We Can Learn from the History of Free Speech”, Cato Institute Policy Report, online: <www.cato.org/ policy-report/may/june-2022/what-we-can-learnhistory-free-speech>.

15.Frederick Douglass, A Plea for Free Speech in Boston (1860), National Constitution Center, Historic Document, online: <constitutioncenter.org/the-constitu tion/historic-document-library/detail/frederickdouglass-a-plea-for-free-speech-in-boston-1860>.

16.John R Vile, “Frederick Douglass” (1 February 2020) (Free Speech Center, Middle Tennessee State University), online: <firstamendment.mtsu.edu/article/ frederick-douglass/>.

17.Susan B Anthony, “On Women’s Right to Vote”, The History Place: Great Speeches Collection, online: <www.historyplace.com/speeches/anthony.htm>; “Susan B Anthony”, Britannica, online: <www. britannica.com/biography/Susan-B-Anthony>.

18.Emmeline Pankhurst, “Great Speeches of the 20th Century: Emmeline Pankhurst’s Freedom or Death”, The Guardian (27 April 2007), online: <www.theguardian.com/theguardian/2007/apr/27/great speeches>.

19.“The Rev Dr Martin Luther King, Jr, Is Arrested by Albany’s Chief of Police Laurie Pritchett after praying

at City Hall”, Las Vegas Review-Journal (27 July 1962), online: <www.reviewjournal.com/news/ nation-and-world/a-look-at-martin-luther-kings-lifethrough-camera-lens-photos/attachment/in-thisjuly-27-1962-file-photo-the-rev-dr-martin-lutherking-jr-is-arrested-by-albanys-chief-of-police-lauriepritchett-after-praying-at-city-hall-in-albany-gaking-participated-in-a-mo/>.

20. New York Times Co v Sullivan, 376 US 254 (1964).

21. Dr Martin Luther King Jr, “I’ve Been to the Mountaintop”, Wayne State University, Reuther Library, online: <www.afscme.org/about/history/mlk/ mountaintop>.

22.Heeba Momen, “Dean’s Lecture Series on Race and Discrimination Closes School Year with Discussion on Free Speech and Equality Featuring Jacob Mchangama”, Vanderbilt University Law School (24 April 2024), online: <law.vanderbilt.edu/deanslecture-series-on-race-and-discrimination-closesschool-year-with-discussion-on-free-speech-andequality-featuring-jacob-mchangama/>.

23.Glenn Loury & Jonathan Rauch, “Can Free Speech Aid Minority Rights?”, Glen Loury Show (4 April 2023), online: <glennloury.substack.com/p/canfree-speech-aid-minority-rights>.

24.Stephen Rohde, “Free Speech and the Question of Race”, Los Angeles Review of Books (24 January 2021), online: <lareviewofbooks.org/article/freespeech-and-the-question-of-race/>.

25. Attorney General of Alberta v Attorney General of Canada, [1938] UKPC 46.

26. Switzman v Elbling and AG of Quebec, [1957] SCR 285.

27. Little Sisters Book and Art Emporium v Canada (Minister of Justice), 2000 SCC 69.

28. Richard Gonzalez, “Berkeley’s Fight for Free Speech Fired Up Student Protest Movement”, NPR (5 October 2014), online: <www.npr.org/2014/10/05/ 353849567/when-political-speech-was-banned-atberkeley>. For more general background, see Josh Ashenmiller, “Mario Savio”, Encyclopedia Britannica (7 May 2024), online: <www.britannica.com/bio graphy/Mario-Savio>. Accessed 10 July 2024; “Mario Savio”, Wikipedia, online: <en.wikipedia. org/wiki/Mario_Savio>; “Mario Savio”, The Free Encyclopedia.

29.John Stuart Mill, On Liberty, 1859 (Kitchener: Batoche Books, 2001) at 41, online: <social sciences. mcmaster.ca/econ/ugcm/3ll3/mill/liberty.pdf>.

DELAY AND TIMELINESS: Part II – Timely Solutions

By Geoffrey Cowper, K.C.

The first part of this article, published in the July issue of the Advocate, 1 outlined the pressing need to address timeliness and eliminate undue delay in the justice system. The second part of this article builds the case for action by exploring proven and proposed solutions. The third part will speak to frequently encountered objections and implementation.2

This article calls for a transformation of our legal culture around timeliness. It discusses changes that can be acted on now, and others that can be improved or implemented over the next generation. The proposed solutions come from a review of British Columbia’s experience over the past three decades, the causes of historical delay in justice systems, and experiences in other courts and venues.

One action discussed below requires immediate attention: active case management to achieve standards of time to settlement or trial that are early, difficult to extend and responsive to the nature of the dispute. This article also provides brief sketches of general changes that could transform our justice culture to commit to timeliness. Through immediate changes and a broader agenda for transformation, we could end the too-often wellfounded observation that we deny justice by accepting undue delay.

Generally, the public debate over timeliness focuses on the experience of parties before courts with federally appointed judges. From the middle distance, our Provincial Court appears to be in a quiet revolution that promises to achieve greater timeliness. Administrative tribunals also engage in efforts to modernize and better manage their workload. The discussion here is not intended to analyze or address the situation in those venues. Still, to the extent that a more general transformation of our justice system is called for, its realization needs to include these courts and tribunals.

As set out in Part I of this article, the time is ripe for making changes to achieve timeliness. Several influences have come together to make timeliness both possible and more important than ever. The measures discussed below spring from a context of ongoing and proposed reforms to the system that are complementary to improving timeliness, such as more public fund-

ing for legal services and judges, the diversion of cases into new and different (non-court) venues, greater efficiency through process reform, specialized venues, innovative initiatives and greater use of data with improved transparency.

If we accept that the problem is embedded in our justice culture’s low priority for timeliness, effective solutions must work to change that culture. Users of the system have become habituated to low expectations of timeliness—to the point where we have conditioned generations to assume their case will not be resolved on a timeline they would accept as responsive to their needs.3 Indeed, some users expect and hope that the system will advantage them through easily obtained delays.

No single change or participant can bring about the needed transformation. Achieving timeliness must take a “whole of culture” approach and allocate the responsibility for implementing solutions across the entire justice system. The central participants each occupy constitutionally independent—yet systemically interdependent—roles. The interdependence that slows progress on timeliness means that timeliness will be achieved sustainably only if all the participants recognize its importance to the fulfilment of their own missions and to the broader goal of justice.

This implies that changes should be considered across the landscape. We should ask and expect that timeliness be a consistent feature of our profession, our private offices, our tribunals and our courts. The incentives affecting our work and the outcomes for the public should not favour delay, but properly advance timely outcomes. Finally, changes should recognize the genuine differences impacting timeliness within civil, criminal, family and administrative bodies.

The episodic and recurrent nature of delay in justice systems advises caution and humility in proposing solutions. It suggests the need for clear agreement on the measurements of the problem and the path to success. History and experience suggest that durable solutions will result in the following qualities:

•Timeliness should inspirit each feature of the system and not depend on special measures or heroic leadership. Public support for the rule of law will improve if we build a system that is responsive to the need for timeliness and does not tolerate the injustice of extraordinary delay.

•The needs of those we serve are the uppermost priority.

•Lawyers must have confidence in their ability to deliver timely resolutions to their clients.

•Leadership matters, but so too do incentives. Legal culture needs to eliminate perverse incentives to delay, and needs to incentivize, promote and celebrate timeliness as an integral feature of legal quality and justice.

•Measures of timeliness should reflect the full history of the matter and the performance of the various participants in that matter.

•Reforms should embrace (and explore the possibilities offered by) documentation and recording of the disputes we litigate and the increased reliance on written materials. We litigate now in a hybrid world which has yet to capture the available efficiencies of both.

•The ongoing information technology revolution, including the post-COVID-19 explosion in our daily use of virtual technologies, should challenge everything we do—even the assize system itself.

IMMEDIATE MEASURES

Active Case Management to … Party control is naturally prone to delay. The reasons for this include asymmetrical incentives to delay, distributed responsibility, focus on due process at the expense of timeliness, and many other factors.

On the flip side, success in reducing delay has been achieved where the court or tribunal is able to ensure timely resolutions—both generally and in eliminating extraordinary delays. Our culture needs to recognize that the court must be the focal point of work to achieve a timely resolution or judgment. One recent experience supporting this conclusion is the recognition during the COVID-19 shutdown that the use, or even just availability, of chambers orders is vital to counsel moving cases to resolution.

Case management has been the subject of much discussion and debate, particularly over the appropriate role and expectation of the courts. Case management to this point has overly deferred to party control, even where the management of the case seems beyond the parties’ willingness or ability to manage. The real question is when and how effective case management may be achieved.

The public assumes the courts are already charged with achieving timeliness. The reoccurrence of cases with extraordinary delay indicts the system in two respects. The public infers, often incorrectly, that the extraordinary is typical. Also, the accounts of extraordinary delay do not come with credible assurances they will not be repeated. The public puts

responsibility for these calamities on the courts for failing to intervene and in more generally appearing to give short shrift to our own values.

This does not mean every case needs the detailed attention of a judge to manage it to resolution. The high value of a judge’s decisional capacity should be recognized in the expansion of the capacity of other court officers and their engagement in the management process.

Whatever the regime, the time has come to rest clear responsibility for timeliness on the courts and to recognize that this may produce inconveniences for some, but for the benefit of other participants and the public confidence in the system. If timeliness is to be achieved on a sustainable basis, the courts must be able to decide interlocutory motions without necessarily depending on oral argument to complete the hearing. We have gradually moved from a motions practice in which little or no argument preceded appearances to a hybrid with substantial written and oral advocacy. Put simply, to effectively manage cases, judges need the ability to direct how much process, including dispensing with oral argument, is necessary for their decision. The cumbersome mechanics and courtesies of our hybrid system are simply obstacles to effective management. They no longer serve the public and the ends of justice.

… Early and Sticky Trial Dates

As lawyers universally observe, an upcoming hearing date has a concentrating and resolving effect on a case. We effectively count on settlement being incentivized, even to the eve of trial. Yet this effect is diluted when trial dates are set far into the future.

Most efforts to speed-up case resolution include early and sticky hearing dates. Examples include the rocket docket and speedy trial initiatives in the United States. In British Columbia, experience also encourages early and sticky hearing dates.

Soon after his appointment in 1979, Chief Justice McEachern proposed wholesale reforms of the civil rules. After concerns from the bar and others persuaded him to pause that effort, he moved the Supreme Court onto a 12month trial calendar,4 with several positive effects:

•Cases were prepared when they were fresh. During this period our office completed a trial, an appeal and leave to appeal to the Supreme Court of Canada during the same period in which parallel litigation in Ontario was still embroiled in motions about the pleadings. Immediate attention to a case avoids the damaging effects of time on memory and the massive expansion of documented and recorded evidence;

•Settlements happened sooner. The portion of cases settling just before trial remained high: what differed was how much sooner it happened. Speedy trial jurisdictions also experience a quicker time to settlement. Once lawyers get used to the process, cases get prepared earlier and resolved by settlement or decision much sooner (and without complaints about the compressed schedule); and

•Counsel were focused, and clients were generally surprised and satisfied.

The pressures of a 12-month trial calendar on judges and busy counsel made it challenging and the compression of the trial calendar led to the unhappy experience of more bumped trials. Successive chief justices have elected not to follow this model.

The combination of effective case management by the court with a shortened trial calendar would capture the advantages of both these solutions to timeliness. At the same time, the combination would reduce the experienced shortcomings. Effective case management should eliminate bumped trials, and early trial dates can then achieve their natural advantages for the parties and the quality of justice.

THE NEED FOR SPECIALIZED ATTENTION

A detailed discussion of the issues arising from the ongoing specialization of the legal system outside the Supreme Court is beyond the scope of this article. However, some specific examples provide insight about general measures to address timeliness.

Motor Vehicle Accident Personal Injury Litigation

The three-year-old transition to a no-fault compensation scheme for motor vehicle accidents (“MVAs”) provides an opportunity to concretely demonstrate the concern for timeliness. Given the substantial portion of MVA cases in the court, it is in the public interest that they be brought to conclusion within a reasonable time. Although dozens of cases are settled for each one that proceeds to trial, for most, the resolution remains pinned to the actual or projected trial date.

Substantial judicial capacity will be made available for the ongoing work of the court. Also, the profession is geared to serve the injured claimants in a timely way: the plaintiffs’ bar is well organized and informed; and the defence bar is effectively funded by one statutory insurer. These circumstances should encourage an effective response to this opportunity.

Many of the thousands of remaining MVA cases have not been set for trial, and there is a clear opportunity to develop a plan for the timely runoff of these cases.

Family Litigation

In family cases, the development and use of several off-ramps from the Supreme Court—collaborative lawyering, mediation and the recent facilitation of arbitration by the Family Law Act5—has influenced the achievement of timeliness. A growing consensus seems to favour the case for a unified family court in British Columbia. (The B.C. access to justice framework urges a transformation of our legal services in aid of family wellness outcomes.)

Whatever setting or venue emerges from this debate, the cases which remain in the Supreme Court are increasingly marked by high conflict and high levels of self-representation. (We know changes should be considered when a judge quotes the entire lyrics of “One Tin Soldier Rides Away” in the reasons for withdrawing from a long-running family dispute.6) Both the concentration of high conflict disputes and self-representation call for effective case management and early resolution.

Criminal Trials

Public alarm over the length of criminal cases has remained high for years. Efforts to achieve timeliness have included, among others, the measures for major cases put in place by legal aid over 20 years ago, reports by skilled and respected criminal practitioners such as Michael Code and Patrick LeSage,7 and most recently, Bill C-75’s reform to the rules respecting preliminary inquiries.8

Transformation of the criminal law subculture seems within reach. On a review of the U.S. experience in federal criminal cases, which proceeded under the federal rules to trial within a year or less, one procedural difference stands out: the court established an early trial date and the disposition of the majority of pre-trial motions on the basis of written materials, with limited or no oral hearings. There must be a similar way to compress the seriatim conduct of numerous pre-trial motions in major criminal cases in British Columbia.

After the conclusion of a very long murder case over ten years ago, a defence counsel observed: “we will never be allowed to do this again.” Unfortunately, that prediction was inaccurate, but was hopefully prophetic.

Given that legal aid funds a very substantial portion of defences to violent crimes, we have an expert and independent body that should be able to both uphold the right to defence and help achieve timeliness in such cases.

TRANSFORMING OUR CULTURE

The Price of Time

In the worst sense, justice is presented as timeless: it takes little or no account of time. Until modern times, the absence of a general law of interest in many common law jurisdictions is but one example: Albertans had no right to pre-judgment interest until 1984!9

As a general corrective, we should consider measures to better reflect the price of time. These might include:

•The general presumption that delay prejudices the fairness and quality of a proceeding;

•For commercial obligations, the default rule should be compound interest at market rates;

•Where cost awards are appropriate, the default rule should be much closer to full indemnity; and

•Lawyers should be paid for saving time and not only spending time. This principle should be reflected in the Legal Professions Act so that fee reviews take timeliness into account and reward speed and dispatch.

Incentives matter, but they include professional as well as economic incentives. One admirable feature of our system is the willingness of professionals to serve their client’s interests even where the professionals are unpaid. For example, legal aid used to hear the complaint that it paid for more appearances than were good for the system. In fact, defence counsel regularly appeared for their clients when legal aid provided no fee for that appearance. Attention needs to be had to our desire to provide excellent advice and representation as well as the behavioral consequences of financial incentives.

Legal training must equip lawyers with the skills and confidence to enable timely resolutions.

We should recognize, admire and celebrate excellence in the timely delivery of just outcomes. Achieving timeliness in general, and in particular cases, requires attention, creativity and managerial skills that will be best developed if they are appreciated.

The Ethics of Delay

The culture of professionalism means that our conduct is both governed and motivated by our professional and ethical commitments. Given the importance of timeliness to the quality of justice, more attention needs to be paid to it in our ethical standards.

The B.C. Law Society’s Code of Professional Conduct addresses our ethical and professional obligation to deliver our services in a timely manner and to abide by deadlines.10 In order to broaden the support and recognition of the importance of timeliness, the B.C. Code should recognize an ethical duty to pursue timeliness as one of our obligations to the system as a whole and to the public. The commentary which supports discouraging clients from using delay tactics should be strengthened to include a direct professional duty to decline to accept those instructions. A client who is searching for a lawyer for the purpose of securing a delay in their case should come away disappointed.

Transparency and Data

While there is still room for improvement, British Columbia is a leader in transparency. For example, all three levels of B.C. courts regularly report on measures of timeliness.

In addition to achieving the democratic goals of an open court system, transparency has many virtues. For improving timeliness, these include:

•Encouraging us to make better use of time and resources;

•Better equipping participants for a collaborative and informed coordination of efforts and a holistic approach to timeliness;

•Better learning about how to manage cases. The origins of our queuing system have been lost to memory. Data can help us to identify the effect of case management interventions; identify cases that need intervention; and better assess the right balance between haste and forever. Artificial Intelligence offers a fresh and significant source of learning and improvement; and

•Overcoming the difficulties of obtaining data, which were not only frustrating to researchers, but contributed to the appearance of a system that operated in silos and frustrates accountability by withholding data.

CONCLUSION

We can and must do better to achieve timeliness. The near-to-hand and partly developed tools of active case management and fixing early trial dates offer a means of achieving immediate improvement. The transformation of our legal culture requires a more thorough reset of our system by a new generation of leadership. Much hope may be found in successes in other venues and jurisdictions, the development and application of available information technology, and the discipline and encouragement pro-

vided through sharing data and transparency. Part III of this article, to be published in an upcoming issue of the Advocate, will address the various objections and obstacles to implementation with the goal of clearing the way to action.

ENDNOTES

1. (2024) 82 Advocate 507.

2. A more robust discussion of the matters discussed in this article can be found online: <www.timely justice.org>.

3. The challenge of habituation and the best means of overcoming were recently addressed by Cass Sunstein and Tali Sharot in Look Again: The Power of Noticing What Was Always There (Atria, 2024).

4. Chief Justice McEachern also initiated the process that led to the summary trial rule, which has proven that many cases can be adjudicated fairly on a limited record. It remains one of his great legacies.

5. Family Law Act, SBC 2011, Part 2, Division 4, ss 19.1–22.

6. Bevan (Varcoe) v Varcoe, 2021 ONSC 831.

7. Patrick J Lesage and Michael Code, Report of the Review of Large and Complex Criminal Case Procedures (Ontario Ministry of the Attorney General, 2008).

8. Criminal Code, RSC 1985, c C-46, ss 536.4–538.

9. SA 1984, c J-0.5, s 2.

10. Code of Professional Conduct for British Columbia, ch 5.1-1 and 5.1-2.

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

WHAT THE DOCTOR ORDERED

By Christopher Green*

Look, don’t get me wrong. Uncle Harry is a great guy. Salt of the earth and all that—a real prince. It’s just that—well, how can I put this—it’s not that he’s a man of few words, exactly, it’s more like he’s a man who uses the same few words over and over and over—if you know what I mean.

I don’t remember it bugging me when I was a kid. I mean, when we were growing up we just figured Uncle Harry was like an almanac, or something.

“Hot enough you? Heh, heh, heh.” He’d ask every August.

“At least you don’t have to shovel it! Heh, heh, heh!” He’d exclaim every November; and every January he would pronounce it “colder than a witch’s tit—heh heh, heh!”

When I got to be a teenager though, Uncle Harry really started to get under my skin. By then I knew that he hadn’t made up any of those witty observations himself, and I’d started to notice his tendency to end every sentence with “Ya know?” Every repetition was like a drop of molten lead upon my forehead, and if by chance one of my friends was within earshot the pain was exquisite.

Well, you can see my point. There I’d be on a Friday night with my date, lining up for tickets for the show, and, like fingernails on a blackboard, I’d hear this great belly laugh and there he’d be in the very same line, entertaining all and sundry with his impersonations. Uncle Harry could do a passable Cagney, a bad John Wayne, an appalling Jack Benny and an execrable Ed Sullivan, but he did them all at the top of his lungs, and in public, to my everlasting mortification.

“Hey, nephew! How’s it going? You goin’ to the show too? Hey—is that your girlfriend?—WHY, YOU DOITY RAT! Heh, heh, heh!”

I shouldn’t be so hard on him, I guess, I mean, Harry always means well, he’s just a really simple guy. If things are going well, they’re “right as rain”; if going badly, they’re “the shits”. Nothing in between. And another thing— Harry never caught on to the concept of the imaginative expletive; the

* This story won third place in the 2023 Advocate Short Fiction Competition.

phrase “JESUS H. CHRIST” both starts and completes his lexicon of the profane, and he uses it with great abandon.

I left town for college about the time Uncle Harry got a one-time laugh at the Kinsman dinner for referring to Aunt Martha as “Ole Whatszername” and I think that was the last time he ever referred to her as anything else.

I don’t know why I figured that when he retired from the Hydro that things would get better. Truth is, he had that much more time to watch TV, and it didn’t do great things for his vocabulary. He started sprinkling phrases from popular sitcoms through his otherwise sparse speech. For example, for a while he couldn’t enter a room without bellowing “Here come da judge!” Thankfully his enthusiasm for the phrase quickly waned, as did his affection for TV legal dramas, although during his Perry Mason phase he was quick to declare: “I object on the grounds your question is incompetent, immaterial and prejudicial, and assumes facts not in evidence!”

When I moved back to town I noticed that he had picked up a brand new phrase, which he used indiscriminately. It was: “Just trust ole Doctor Harry.” I think it was about the same time that he started referring to the bar maid down at the curling rink lounge as “Nurse”. You can picture it: Thursday night curling, it’s Harry’s round, and he bellows, “Nurse, Doctor Harry prescribes another round of medication here—heh, heh, heh!”

I always figured Uncle Harry would end up with his tits in a wringer if he kept on, year in and year out, with the same old tired phrases, not to mention the same old tired jokes, if you know what I mean. Of course, I always imagined it would be Aunt Martha who would split his skull, just to have some well-earned peace and quiet, so I was really surprised at where his habits of speech actually landed him.

One Saturday Harry asked me to give him a hand getting in a load of alder for the airtight stove in his rec room, so I borrowed Ernie’s truck and went over to pick him up.

“Come on Pilgrim, we’re burning daylight!” he exclaimed unnecessarily when I arrived. Harry was dressed for the part, rubber boots, farmer john overalls, a plaid shirt, and his baseball cap from the Hydro. I gritted my teeth and we set off. There’s an active logging area about ten miles north of town, and we quickly located a handy stand of alder, and soon had enough trees down to give us a truckload.

We limbed and rough bucked them where they dropped, then started hauling the logs out to the roadside. It was wet and slippery underfoot, and I guess we should have seen it coming. Harry was wrestling with this log, waddling backwards like, trying to tug and drag it, when he trips over a deadfall. He goes backward in a great crashing arc, windmilling like crazy.

There was a loud crack when he hit, and I knew right away something was wrong.

“JESUS H. CHRIST! I’VE BROKE MY WRIST!”

Well, when Harry’s right, he’s right. He had a broken wrist for sure—I mean, his hand was sort of hanging limp at a weird angle, and the wrist was already getting swollen. I’m not much for first aid, you understand—haven’t had a course since I was in the Boy Scouts, so I didn’t know what the hell to do, was I supposed to give him a leather strap to gnaw on while I set the wrist and made a splint out birch bark, or what? I took a poke at his wrist.

“JESUS H. CHRIST! THAT HURTS” he bellowed as he shoved me away. We ended up just wrapping the whole mess up in a sweater and stuffing it in the bib front of his overalls like a sling. I remembered enough first aid to give him a stiff shot of brandy, then headed straight to Emergency. Harry was really good, considering the pain he must have been in. He just sat there quietly, grimacing a bit whenever we hit a rough spot, and pulling on the brandy flask.

I’m not sure what he expected when we arrived though. I think he figured there’d be a trauma team that would come sprinting out yelling “CODE RED” or “CODE BLUE” or something and jump all over the place to save him. Harry doesn’t know very much about hospitals.

At the very least, I’m pretty sure he expected an audience. He insisted on going in under his own steam, and he came through the door with his shoulders squared, and a swagger that would have done the Duke proud, with his good thumb hooked into the tool loop on his overalls, about where the gun belt should be.

If a tree falls unheard in the forest, does it make a sound? If a John Wayne impression lacks an audience, does it count? The thought must have flashed across Harry’s mind, because he stopped dead just inside the door. The place was completely empty, a desolate cavern with acres of polished linoleum, dozens of empty chairs and not a living soul to catch his act. From a far corner came the desultory clack of a typewriter, echoing through the deserted hall.

Harry reached the reception station first, and with a great belch of brandy breath, announced himself. A pair of dead fisheyes stared back at him over the top of a pair of bifocals. They belonged to a bird-like woman in a highly starched white uniform.

“Sit.”

Harry faltered only momentarily.

“Why thank you ma’am” he replied in his best southern drawl, a kind of cross between Jimmy Stewart and the Duke.

A sudden chill settled over the room. “Name?”

“Uh, Harry, Harry Anderson.”

“Address?”

“Uh, 417 Birch Crescent.”

“Postal Code?”

“Uh, I can’t remember.“

“I see” and the temperature edged lower another few degrees.

“Age?”

“Uh, old enough to know better, but young enough to still care—heh, heh, heh!”

There followed a long pause.

“Shall we say 12?”

“Uh, no, actually—uh, 57.”

“Sex?”

I could see the retort coming and grimaced before Harry’s lips had even formed the words.

“Yes, please!”

The room turned glacial.

“I’ll put down ‘male’—now, next of kin?”

“That would be OLE WHATSZERNAME!”

The nurse impaled him with her stare, and I interjected, hoping to defuse the situation.

“Martha Anderson.”

Thank you, young man—now, what is the suspected medical condition?’

“I got a broken wrist!”

“Well, we’ll be the judge of that!”

“NO. Trust old Doctor Harry—it’s a fractured wrist, for sure!”

Harry’s reply drew a remarkable look from the nurse—a probing, disdainful, over-the-bifocals and down-the-nose stare that swept over his entire disheveled form, from the top of his BC Hydro baseball cap to the tips of his muddy rubber boots and pierced to the very core of his soul.

“I see.”

The nurse’s pen hesitated, then flashed to the top of the form, scratching out “Mister” and inserting “Doctor”.

“Very well—Doctor.” The words grudgingly left her lips, and I snickered.

Preliminaries completed, Uncle Harry’s baleful nurse could find no further reason to deny him treatment. Since it was a safe bet that Harry was going to make it, and an equally safe bet that he was going to be stuck there for a while, I decided to leave. I could hear him in the examining room with the intern.

“Yeah Doc, I broke my wrist—and just before the big fight too! I COULDA BEEN A CONTENDER, HEH, HEH, HEH!” I smiled. Aunt Martha wouldn’t have to put him out of his misery, the hospital would beat her to it!

To no one’s great surprise Harry’s diagnosis was correct. He had a broken wrist; quite a bad one apparently, since they wanted to keep him in overnight, so I brought Aunt Martha in for a visit.

“My Uncle is in with a broken wrist—could you tell me what room?”

“Oh, arms and wrists are all on the fourth floor.”

At the arms and wrists desk though it was another matter: “‘Harry Anderson?’ we have no patient by that name on this ward.”

“Are you sure? I brought him in myself—somebody phoned to say he was being kept in.”

“No, sir, he’s not here. I’ll check the computer—how is Anderson spelled?”

“A-N-D-E-R-S-O-N.”

“Oh, then you must want Dr. Anderson.”

We both burst out laughing. “No, we want plain old Harry Anderson, weekend logger!”

“Well, I’m sorry but we have only one H. Anderson registered, according to the computer—and he’s a doctor. He’s in our special facility.”

Aunt Martha gasped.

“Oh, sorry to alarm you. What I mean is, he’s in the VIP section.”

“VIP section?” I never knew hospitals had such a thing, did you? Well, they do. Just in case the King gets sick when he’s in town, or a taxpayer gets a clear shot at the Prime Minister as he’s passing through.

So up we go to the 14th floor, and sure enough, tucked away is an elevator marked “Private”. We rode it up, and into another world. Stepping out into a thickly carpeted anteroom we crept along a corridor which looked more like the Hyatt than a hospital, to an impressive oak door. I knocked tentatively, until a booming voice from within dispelled any doubt.

“ENTER!”

The door swung open to reveal a magnificent suite. It was large and sumptuously furnished and handsome drapes framed a picture window. And there, perched on a king-sized bed floating on the vast expanse of broadloom, was Harry, grinning like an idiot.

“Hi Martha—guess you’ve come to autograph old Doc Harry’s cast!”

“Harry Anderson you old fool, what on earth…?”

“DON’T START WID ME WILMA! HEH, HEH, HEH! Some digs, eh?”

“Harry, explain yourself this instant!”

Harry’s response was to wave us both closer where, with a theatrically furtive glance around, he whispered, “They think I’m a doctor! That shriv-

eled old witch at reception took me serious, and I’ve been afraid to say anything since I caught on.”

Aunt Martha took in a great gulp of air, winding up to let into him, but was interrupted by a polite rap at the door. A gaggle of white coats surged into the room, led by an older, distinguished-looking white coat.

“Good morning, Dr. Anderson. I hope you don’t mind, but I’ve brought my medical students. I thought you, of all people would understand— remember those student rounds, eh?”

“Of course, of course” Harry mumbled, then turned towards me and winked.

“Our colleague here suffered a most unfortunate comminuted fracture of the interior radio-ulnar joint, with some involvement of the metacarpals as well. The closed reduction was a standard procedure, but you will note I utilized a modified Brayden procedure when shaping the cast, to put maximum sustained pressure on the tendon. This should allow the patient to mobilize the digit at an earlier stage. Tell me, Dr. Anderson, you’re the patient, after all—have I succeeded?”

Uncle Harry was in his element. He screwed up his face, sucked in his cheeks and rolled his eyes towards the ceiling to ponder the doctor’s entreaty.

I recognized the look. It was the same one he used every year at the Keg on Martha’s birthday, when the waiter opens the bottle of Mateus for him right at the table. As Harry’s concentration deepened, a frown started to furrow the distinguished white coat’s brow, but all eyes were on Harry, and he loved it. He held the spotlight for an eternity before delivering his verdict.

“Quite—satisfactory.”

White coat beamed. “Why thank you doctor! We will leave you in peace. Hope you are being treated well; we do try to take care of our own!”

When they wheeled in the sumptuous lunch trolley, I couldn’t take it anymore—all this for a guy who could barely tie his shoelaces! As Harry tucked into the most elegant lunch of his life, I took my leave.

They never did discover he wasn’t a doctor, and since the King stayed home, and the Prime Minister didn’t tempt fate, and no one else important got sick, Harry had the VIP digs all to himself. I saw Harry again at Thanksgiving. He was sporting a new vanity plate that read “OLD DOC” and a “Have you hugged your doctor today?” bumper sticker, and he told me he parks pretty much where he pleases.

“Here, Nephew, try some of this scotch—it’s just what the doctor ordered!”

ЖЖЖ

PRODUCTION AND DISCLOSURE OF DRAFT EXPERT REPORTS

By Brian Samuels

In complex litigation, the preparation of an expert report is often time-consuming and expensive. Expert fees for preparing a delay report with respect to a large infrastructure project can be many hundreds of thousands, and in some cases, millions of dollars. The preparation of the report may be a major investment in the case, but is necessary: in this and countless other areas of litigation, it is increasingly common for such cases to be decided based on a “battle of experts”.

For these reasons, counsel will often work closely with the expert during the report preparation stage. There may be many meetings between the expert, counsel and client representatives with technical expertise and personal knowledge of the underlying facts. Until the report is submitted, it will be a work in progress, undergoing revisions and subject to comments and questions from counsel and the client.

There are several issues relating to early drafts that should be considered when retaining an expert: (1) Is it the normal practice and custom of the expert to retain early drafts in the expert’s file? (2) Does the law require disclosure of early drafts (if such drafts exist) prior to the expert testifying at trial? (3) Assuming that the expert does not retain early drafts, but instead overwrites the report on the computer file (resulting in only one draft being in existence at any time), what methods are commonly used by counsel to provide input during the preparation stage? Experts and lawyers are reluctant to have the expert cross-examined on the differences between early drafts and the final report, whether or not that reluctance is justified.

There is contradictory case law across Canada with respect to disclosure of early drafts. A common practice has developed among many experts retained for B.C. cases to avoid the creation of early drafts, while still allowing input from counsel and the client during the preparation stage. However, the methods and techniques used to provide such input can cause the client to needlessly incur significant expense.

The law regarding disclosure of early drafts requires a balancing of the following objectives: (1) ensuring that the expert remains impartial and

unbiased; (2) providing counsel and the client with the opportunity to be involved and provide input during the preparation stage; (3) resolving disputes in a speedy, inexpensive and just manner; and (4) providing a remedy where there are reasonable grounds to believe that there has been undue influence exerted on the expert.

THE LAW IN BRITISH COLUMBIA

Rule 11-6(8)(b) of the B.C. Supreme Court Civil Rules requires that the expert’s file be produced at least 14 days prior to the trial date. If the expert’s file contains early drafts, then according to the application of this rule, those early drafts must be produced. Needless to say, it is highly improper, and almost certainly unprofessional conduct, for counsel to instruct an expert to destroy anything in the expert’s file, as doing so would be counselling someone to destroy documents that might be pertinent to the trial.

The seminal case in British Columbia dealing with production of early drafts is Vancouver Community College v. Phillips, Barratt 1 The court held that once an expert witness is called to testify, there is an implied waiver of privilege over papers in the expert witness’s possession. Cross-examination on documents found in the expert’s file was effectively used in that case to demonstrate a lack of impartiality.2

Consider this against the underlying rationale for maintaining litigation privilege as described by the Newfoundland Supreme Court in 1278481 Ontario Ltd. v. Her Majesty the Queen:

[13] In my view, experts ought to be free to explore theories and develop options with a litigant in investigating and preparing a case for trial. ... Expert opinions, advice and recommendations are necessarily altered and refined as the expert’s investigation and assessment of the issues evolves. This learning process should progress unfettered by the fear of having to disclose thoughts and ideas to an adversary just because they have been committed to paper. It must be remembered that there is nothing to prevent counsel from asking questions designed to cast doubt on an expert report, including asking an expert whether his opinion changed during the course of advising a client and why.

[14] ... What is the point of litigation privilege if it is not to protect the exploration of different theories and ideas while preparing a final work product? This is the very “zone of privacy” to which the Supreme Court of Canada refers in Blank v. Canada. To my mind, it is simply too easy to order holus-bolus production of an expert file without assessing a request for production against a litigant’s recognized right to such a zone of privacy. To compel a litigant to reveal its thoughts, theories and strategies regardless of their authenticity or credibility to an opposing party strikes at the foundation of our adversarial system.3

THE LAW IN ONTARIO AND ELSEWHERE

In Ontario, the leading case is Moore v. Getahun. 4 Prior to 2014 (before the trial decision in Moore), the law in Ontario treated all early drafts as being subject to litigation privilege, with no waiver of privilege upon delivery of the report. The Moore case arose as a result of a motorcycle accident, which resulted in permanent injuries to the plaintiff. The plaintiff sued the treating physician for malpractice. The issue in the case concerned the admissibility of an expert report. During the report preparation stage, counsel consulted with the expert (Dr. Taylor). The Ontario Court of Appeal found that Dr. Taylor’s opinion, “although not changed, was certainly shaped by defence counsel’s suggestions”.5

One distinction between the rule in Ontario at the time of Moore, and the rule in British Columbia, is that Rule 53.03 of the Ontario rules did not explicitly require disclosure of the expert’s file. Rather, it listed various items to be provided, such as the instructions provided to the expert, the nature of the opinion sought, the expert’s opinion on each issue, and the reasoning behind the opinions.

The law on this issue in Ontario was radically altered as a result of the Moore trial decision. Draft opinions became producible, based on the rationale that the primary duty of the expert is to the court, and that counsel cannot interfere with the expert’s opinion. Not surprisingly, the trial decision created consternation in the legal profession and expert witnesses in Ontario. This reaction is described in the decision of the Ontario Court of Appeal, noting that a number of professional organizations and associations, including The Advocates’ Society, the Canadian Institute of Chartered Business Valuators, the Holland Group, the Canadian Defence Lawyers Association, and the Ontario Trial Lawyers Association, intervened in the appeal.6

The appeal decision (2015) held that counsel should be allowed to work with the expert during preparation, and that draft reports remain privileged except in rare circumstances, even if counsel was involved during preparation. The court also recognized the importance of ensuring that all parties have a fair opportunity to challenge an adverse expert witness.

The court held that, regarding the concern that the impartiality of expert evidence may be tainted by discussions with counsel, “banning undocumented discussions between counsel and expert witnesses or mandating disclosure of all written communications is unsupported by and contrary to existing authority”, and noted:7

In some highly technical areas such as patent law, expert witnesses “require a high level of instruction by the lawyers” which may necessitate “a high degree of consultation” involving “an iterative process through a number of drafts”.

Finally, the court observed that there are other protections in place to ensure the impartiality of the expert, including the ethical and professional standards of the legal profession and of other professional bodies governing the conduct of the experts, and the use of cross-examination.

In concluding its analysis, the court stated:

[64] Counsel play a crucial mediating role by explaining the legal issues to the expert witness and then by presenting complex expert evidence to the court. It is difficult to see how counsel could perform this role without engaging in communication with the expert as the report is being prepared.

[65] Leaving the expert witness entirely to his or her own devices, or requiring all changes to be documented in a formalized written exchange, would result in increased delay and cost in a regime already struggling to deliver justice in a timely and efficient manner. Such a rule would encourage the hiring of “shadow experts” to advise counsel. There would be an incentive to jettison rather than edit and improve badly drafted reports, causing added cost and delay. Precluding consultation would also encourage the use of those expert witnesses who make a career of testifying in court and who are often perceived to be hired guns likely to offer partisan opinions, as these expert witnesses may require less guidance and preparation…8

One exception to the rule regarding nondisclosure of early drafts recognized by the court is where there are reasonable grounds to suspect improper interference with the expert witness’s duties of independence and objectivity. The question of reasonable grounds to suspect improper interference was addressed by the Ontario Superior Court in BIE Health Products v. Attorney General (Canada) 9 In that case, opposing counsel cited several alleged grounds, including failure to disclose the instructions given to the expert, failure to conduct an independent analysis, failure to provide foundational information for the expert reports, making use of allegedly irrelevant data and inadvertent disclosure of a privileged document. The court rejected all those suggested grounds.

The issue of disclosure of early drafts has also arisen in the United Kingdom. For example, in Jackson v. Marley Davenport Limited, the Court of Appeal stated:

There can be no doubt that, if an expert makes a report for the purpose of a party’s legal advisers being able to give legal advice to their client, or for discussion in a conference of a party’s legal advisers, such a report is the subject matter of litigation privilege at the time it is made. It has come into existence for the purposes of litigation. It is common for drafts of expert’s reports to be circulated among the party’s advisers before a final report is prepared for exchange with the other side. Such initial reports are privileged.

I cannot believe that the [Civil Procedure Rules] were intended to override that privilege.10

The exception based on reasonable grounds to suspect improper interference appears to also be part of the law in the United Kingdom.

COMMON PRACTICE AMONG EXPERTS AND COUNSEL IN B.C.

Based on the writer’s own experience and an informal survey of colleagues in the construction litigation bar, it is the widespread practice among such experts not to retain early drafts. They have only one draft in existence, and as it is developed, it is overwritten on their computer system and is not transmitted11 to anyone until it is in final form.

When construction lawyers in British Columbia first contact a potential expert, after having ensured no conflict of interest and being satisfied that the potential expert has the required expertise in the subject matter, the first question that is often asked by counsel is, “what is your practice with respect to early drafts of the report? Do you keep early drafts, or do you overwrite the draft in progress?” If an expert responds by saying that it is their common practice to retain early drafts, counsel may decline to retain the expert, to avoid the expert being cross-examined on changes between the early draft and the final version.

To a large degree, the fear of cross-examination based on such changes is unwarranted. There are many justifiable reasons for an expert to make changes to a report. These include grammar and typographical corrections, restructuring for clarity, ensuring that the report does not make findings of fact or contain conclusions of law, and becoming aware of new information that affects the opinion. What is more troublesome, in the minds of counsel, is a change in the opinion based on discussion with counsel during which the expert decides to rethink some of the analysis or conclusions. In 1278481, 12 the Newfoundland Supreme Court was cognizant of this process: Expert opinions, advice and recommendations are necessarily altered and refined as the expert’s investigation and assessment of the issues evolves. This learning process should progress unfettered by the fear of having to disclose thoughts and ideas to an adversary just because they have been committed to paper.

Understandably, the expert (and counsel) both want to avoid intrusion through cross-examination into this learning and analysis process. Therefore, the following methods have been adopted by many experts and lawyers to facilitate input:

1.In-person meetings take place between the expert and counsel (and a client representative) for an open discussion. No documents are exchanged, but the report-in-progress may be displayed on the expert’s computer.

2.Video conferences take place between the expert, counsel and client, during which the expert will display the report-in-progress on the expert’s screen.

Clearly, these methods are expensive and inefficient. The in-person meeting is more expensive because of the travel required. Regardless of method, neither counsel nor the client has the opportunity to review the report-in-progress before the meetings, and therefore do not have the opportunity to properly reflect on the work-in-progress beforehand.

CONCLUSIONS AND RECOMMENDATIONS

Interpretation of the rules by courts in British Columbia has resulted in a situation that is needlessly cumbersome and expensive. It would be naïve to expect parties to abandon the procedures that have been developed. It is to the court’s benefit, as well as the client’s, that counsel be closely involved in the preparation of an expert report. As noted by the Newfoundland Supreme Court in 1278481, the expert’s learning process should be “unfettered by the fear of having to disclose thoughts and ideas to an adversary just because they have been committed to paper”. The creation of an expert report is an iterative process, and given that significant investment may be made in the report, it is inevitable that parties will find a way to avoid the disclosure of the learning and thought process of the expert.

British Columbia is somewhat of an outlier in this area. Other jurisdictions have come to recognize the importance of protecting the “zone of privacy” that allows the exploration of different theories and ideas while preparing the final work product. There are ample protections in place in these other jurisdictions to prevent improper pressure being put on experts to change their opinions. It is respectfully submitted that the rules in British Columbia governing disclosure of early drafts should be amended accordingly.

ENDNOTES

1. 1987 CanLII 2532 (BCSC).

2. The Vancouver Community College decision has received very little attention from the BC Court of Appeal, with the exception of R v Stone, 1997 CanLII 2478 at paras 54–55 (BCCA), where the court refused to import the principle into the criminal law in British Columbia, and Neufeldt v Insurance Corporation of British Columbia, 2021 BCCA 327 at para 103, where the court of Appeal referred to the Vancouver Community College decision.

3. 1278481 Ontario Ltd v Her Majesty the Queen, 2007 NLTD 151 at paras 13–14 [1278481].

4. 2014 ONSC 237, aff’d 2015 ONCA 55 [Moore CA], leave to appeal refused 2015 CanLII 58374 (SCC).

5. Moore CA, supra note 4 at para 42.

6. Ibid at paras 46–48.

7. Ibid at paras 64–65 (emphasis added).

8. 2024 ONSC 1240 at paras 15–20.

9. [2004] 1 WLR 2926 (EWCA Civ Div), quoted with approval in Allen Tod Architecture Ltd (in liquidation) v Capita Property and Infrastructure Ltd, [2016] EWHC 2171 at para 35 (TCC).

10. Transmitting a draft will result in a documentary record of the draft.

11. Supra note 3 at para 13.

THE COSTS OF COMPLEXITY: WHAT IS THE SUPREME COURT OF CANADA’S CONTRIBUTION TO DELAYS IN THE CRIMINAL JUSTICE SYSTEM?

By Mike Barrenger*

In the 2016 decision of R. v. Jordan, a Supreme Court of Canada frustrated by the slow pace of criminal litigation set a hard time limit of 18 months for criminal proceedings in provincial court, and 30 months for those in superior court. 1 And yet, eight years later, delays persist.2 On June 3, 2024, Chief Justice Wagner held a press conference where he identified government underfunding as a significant cause of delay: “The problem is that in some provinces there is not enough funding, there are not enough judges so that an accused cannot have his or her trial within a reasonable [time].”3 The CBC summarized as follows: “Wagner [C.J.C.] said the Jordan ruling is a consequence of a lack of funding for the justice system and those deadlines should not be extended to prevent stays in criminal trials. Instead, he said, the justice system should be supported properly.”4

Missing, however, from Wagner C.J.C.’s analysis of and prescription for the ails of the justice system is something that the Supreme Court itself could help to control: the always increasing complexity of the criminal law. Nowhere is the problem of complexity and delay more apparent than when it comes to criminal pre-trial applications. The time requirements for applications in complex cases (think homicides, drug trafficking, conspiracies, etc.) dwarf the time needed for the trials themselves.5

Charter-based pre-trial applications are both necessary (thankfully, our constitution guarantees individuals certain rights) and desirable (the public rightly wants the state held to a high standard). A level of complexity is inherent in a system that accepts that the vindication of abstract principles, as set out in the Charter, may in some cases override the community’s interest in investigating and prosecuting crime.

* This article does not represent the views of the Attorney General of British Columbia or the BC Prosecution Service.

One of the most important of those principles is s. 8 of the Charter, which states: “Everyone has the right to be secure against unreasonable search or seizure.” The protection provided by s. 8 means, for example, that police must obtain a warrant to search a house. This adds time to police investigations, and adds time to court proceedings since an accused can challenge the issuance of that warrant. But most Canadians no doubt believe that the benefits from demanding that the police obtain a warrant to search residences are substantial.

But what if we are talking about searching not a residence, but somewhere that people may or may not consider private? Further, what if determining whether that search engages s. 8 of the Charter depends in many cases on slight contextual nuances? As complexity increases, and the relationship between the thing searched and our core privacy interests decreases, one may question the value of the entire exercise. In other words, is the juice worth the squeeze? Over time, the Supreme Court of Canada has significantly expanded what qualifies as being “private”, and thus has greatly increased the need to obtain judicial orders.6 It has done so while providing little forward guidance, eroding clarity and supercharging the amount of litigation required, all of which contribute to the very delays the court says are intolerable.

IDENTIFYING THE PROBLEM AND DEFINING COMPLEXITY

The idea that criminal pre-trial applications have become unmanageable is neither new nor controversial. In 1995, Chief Justice Lamer identified “complexity and prolixity in legal proceedings” as “our greatest challenge” and one that could render the justice system “simply irrelevant” unless it was solved.7 In the early 2000s, Chief Justice McLachlin stated publicly that “proceedings in criminal cases are crumbling under the weight of pre-trial motions”.8 Complexity has only increased in the ensuing decades, particularly in relation to pre-trial applications.

Pre-trial application complexity is a product of the following factors:

1.The level of clarity regarding the legal issue.

• Less clarity means less likelihood of agreement between the parties about whether an application is needed.

2.The degree of factual complexity.

• How many witnesses and exhibits are required?

• Do the parties agree about what evidence is relevant? Agreement is much less likely where there is a lack of clarity in the law.

3.The requirements for legal submissions.

• How much time is needed to prepare, and then present, the submissions?

• The time it will take the judge to issue a ruling.

• Where the law is unclear, the evidence is voluminous and submissions are lengthy, judges will require much more time to provide a decision and reasons.

If there are low levels of clarity, high levels of factual and legal complexity, and correspondingly high demands placed on the trial judge, this will quite clearly require much more court time.

THE CHALLENGE OF INFORMATIONAL PRIVACY

The protections of s. 8 of the Charter are engaged only if an accused has a reasonable expectation of privacy (“REOP”) in the place, thing or information that is the subject of the search.9 Whether or not there is a REOP is an important question in a substantial amount of pre-trial litigation, particularly in relation to so-called “informational privacy”.

Informational privacy relates to when, how and to what extent information about an individual can be obtained by the state.10 Examples include bank records, electronic communications, medical records—really anything that reveals something about a person. There is a huge volume of information available in modern societies. This creates a challenge for courts: how ought we to define the limits of what information is and is not protected by the Charter?

The “Biographical Core”

The earliest attempt to define s. 8’s boundaries vis-à-vis informational privacy came in 1993 with R. v. Plant 11 The Supreme Court held that s. 8 aimed to protect an individual’s “biographical core of personal information”, which included information that tended “to reveal intimate details of … lifestyle and personal choices”.12 At issue in that case were household electricity records that revealed heavy usage consistent with a grow-op. The court held there was no REOP in the records, because they revealed “very little about the personal lifestyle or private decisions of the occupant of the residence”.13

The distinction between “core” and “not core” may be hard to draw. We may all agree that the sun is in the core of the solar system, while Pluto is not. But what about the planets in between? Even so, the “biographical core”, particularly when combined with the reference to “intimate details of lifestyle and personal choices”, was a useful tool. It served as a threshold for engaging s. 8 for a number of years, providing guidance to lower courts

about what was and was not protected, enabling them to separate the wheat from the chaff of s. 8 informational privacy claims.14 The Supreme Court of Canada itself showed no desire to depart from this threshold test.15

The Gradual, Then Sudden, End of the “Biographical Core”

When asked how he went bankrupt, a character in Hemingway’s The Sun Also Rises famously declared: “Two ways. Gradually, then suddenly.” So it was with the “biographical core” threshold. A significant qualification came in 2008, with R. v. A.M. 16 In the course of his reasons about whether a dog sniffing bags to detect drugs engaged s. 8, Binnie J. observed: “Not all information that fails to meet the ‘biographical core of personal information’ test is thereby open to the police.”17

Naturally, this passage was interpreted as weakening the boundaries of the “biographical core”. We see this with the revival of litigation about whether electrical records attracted a REOP—a matter which reasonable people (and a number of courts18) may have thought had been decided in 1993 with Plant But, thanks in part to Binnie J.’s qualification in A.M., the Alberta Court of Appeal in R. v. Gomboc concluded that now there was a REOP in electrical records.19 While the Supreme Court of Canada allowed the Crown’s appeal, and found no REOP, it did so in a confusing three-way split that was very factspecific, provided little guidance, and lacked clarity regarding what role the “biographical core” ought to play in future privacy analyses.20

The real game-changer, however, was the Supreme Court of Canada’s 2014 decision in R. v. Spencer. 21 An officer searched online file-sharing software for users sharing child pornography anonymously but in public view. The officer could see the internet protocol (“IP”) addresses of these users. Acting without a judicial order, the officer then contacted the internet service provider and obtained the subscriber name and address associated with the particular IP address. The question was whether the officer needed a production order22 to do this. The court concluded that he did.

The court reached this result by combining the anonymous publicly viewable internet activity with the subscriber information, and then examining what inferences were available from that combination.23 This had never been done by the Supreme Court of Canada before. The court had always examined the information said to engage s. 8 on its own terms, and not by combining it with other information that happened to be in the hands of the police at the time. For example:

• R. v. Plant (1993): The police received an anonymous tip about a grow-op in a “cute house” on a particular street. An officer attended and saw what appeared to be the house referred to in the tip.24 The electrical records were then obtained from the utility, which

showed elevated consumption.25 In finding no REOP in the electrical records, the Supreme Court did not combine the tip with the electrical records to determine if any personal inferences arose.26

• R. v. Tessling (2004): The police received information from two informers about marijuana production and trafficking. One of the informers specifically identified the accused. The police flew a plane over the accused’s house, and used a camera to determine that unusually high amounts of heat were emanating from the house.27 Grow-ops are energy intensive and generate substantial heat.28 In finding no REOP in the heat emanations, the Supreme Court did not combine the information from the informers with the results from the camera to conduct its analysis.29

• R. v. Gomboc (2010): The police made repeated observations of a house that possessed various indicia consistent with a grow-op. Neighbours also provided the police with their observations which suggested a grow-op. The police then requested that the electrical company install a device that measured electrical flow into the residence.30 While the Supreme Court of Canada split three ways, none of the separate analyses involved combining the publicly viewable information with the results of the electrical measurement device to determine if there was a REOP.

The change brought about by Spencer was significant. Now in determining whether there was a REOP, the sum appeared to be greater than its parts: something that was not private (publicly viewable internet activity), plus something that was also not private (IP address subscriber information31), but which led to potential inferences about an individual that were personal in nature, thus engaged s. 8. And while the court was particularly concerned about the need to protect the anonymity of internet usage,32 the court’s “2+2 = 10” analysis would obviously be argued to apply more broadly (i.e., not only in the context of internet usage).

The Issue of Whether There Is a REOP in CCTV Video

The best way to understand the problem is through a concrete example: the vexed issue of whether there is a REOP in CCTV video. Pre-Spencer, courts would simply have examined whether video of an accused in, say, a condo lobby engaged s. 8 by considering what the video itself revealed.33 Now, courts were seemingly required to consider the video in combination with everything else known to the police at the time the video was obtained.34

The combination of downgrading the biographical core threshold, the apparent need to examine inferences arising not only from the information

itself but also from other information in the state’s possession, and the nebulous “contextual analysis” mandated by the court, resulted in an explosion of litigation about CCTV video. The analysis appears now to require evidence about a myriad of factors, such as how much video was obtained, what the person’s connection to the place was, what other information was available to the police at the time the video was obtained, etc. Trial courts have quite reasonably struggled and have reached a range of different conclusions.35 The amount of recent litigation on this issue alone is significant. And it will not stop because in many cases nobody can tell if CCTV video will or will not attract constitutional protection.

The CCTV video example is far from isolated. Do the police need a production order to obtain government-issued photo identification? Some courts say yes,36 while others say no.37 How about car rental data? It is hard to say.38 Can the police set up a video camera, trained on a publicly viewable part of a building or house? Maybe.39 Clarity is sorely lacking with many areas of informational privacy.

R. v. Bykovets – Complicating the Already Complicated

The Supreme Court of Canada had the chance to put some boundaries around the explosive growth of informational privacy litigation in the recent case of R. v. Bykovets 40 It did not take this opportunity and, instead, issued a ruling that seems certain to result in yet more litigation in an already strained justice system.

Bykovets dealt with fraudulent online purchases from an Alberta store. The police contacted the payment processor (Moneris) and were given the IP address used to make the purchases. They then obtained, as required by Spencer, a production order for the home address of the IP subscriber.41 The question before the court was whether obtaining the IP address—a string of random numbers—from Moneris engaged s. 8.

The court had three options before it. First, it could have left the law unchanged, applied Spencer and held that there was no REOP in the IP address simpliciter . Second, it could have narrowed or at least clarified Spencer, to reduce the surfeit of litigation referred to above. Third, it could have extended Spencer, expanding the ambit of s. 8 to yet more types of information.

And by a 5:4 majority, the court chose door #3. While the majority referred to the “biographical core”,42 that threshold requirement no longer operates in the way that it did in Plant. Based on the majority’s reasons, courts appear no longer bound to consider whether certain information attracts a REOP based on the four corners of the facts. Rather, it seems they must consider the potential of information to reveal something personal;

they need not only—and presumably should not only—consider what the information actually revealed. 43 This task will involve considering the “broader context”, including “prevailing social realities”.44 It is not entirely clear what this means, and the majority’s wide-ranging analysis of diverse publications and decisions of foreign courts does not provide much in the way of guidance.45 Most importantly, “the broader context” meant, for the majority, considering various ways that an IP address could theoretically be employed to reveal personal information, none of which arose on the facts. 46

Some may applaud the Supreme Court’s approach to informational privacy. The majority was plainly motivated by a desire to secure privacy in the information age.47 And there is no doubt that there are privacy concerns today, with social media and ubiquitous internet usage, that did not exist in 1993 when Plant was decided. How s. 8 should adapt to reflect technological realities is an interesting question about which reasonable people may disagree. The bottom line, though, is that Bykovets heralds changes in the way that informational privacy will be considered by the courts—changes that will increase, not decrease, the frequency and complexity of s. 8 Charter litigation, with all that entails.

As stated earlier, the benefits from insisting that the police obtain a warrant to search one’s house are clear and uncontroversial. But as we move forward in the post-Bykovets era, it is worth asking, “Will the privacy interests of Canadians be enhanced by protecting them against hypothetical privacy breaches (i.e., state action that could be imagined, as opposed to the state action that actually occurred)?” Not long ago, the Supreme Court answered that question with a firm “no”.48 We may reasonably question whether the Bykovets majority provided a compelling rationale as to why the answer must now be “yes”. While the majority was concerned about the potential for police to use different technologies in future cases,49 why not insist on waiting—as the court did previously in Tessling50—for those future facts to arrive? Further, we may also reasonably question whether the majority’s relatively brief reference to the potential costs to law enforcement of recognizing a REOP in IP addresses,51 and its determination that those costs were “not onerous”,52 was sufficiently rigorous. This is particularly so given that the costs will not only be borne by law enforcement, but also by the justice system itself—a system that is already stressed.

The Challenge with Informational Privacy Is Not an Isolated Incident

It would be one thing if the Supreme Court were creating uncertainty and litigation in one area but clarifying the law in other respects. Unfortunately, the same trends of increasing complexity and litigation exist in other areas. To provide a few examples:

•How, when and to what extent can a sex assault complainant share data from their phone, containing messages to/from the suspect, with the police? The law regarding this frequently occurring issue is fraught with difficulty.53

•If two people share an electronic device, and one of them discovers criminal activity on it (e.g., child pornography), in what circumstances can A share the device containing evidence of B’s criminality with police? It can be hard to say.54

•The Supreme Court has significantly restricted the ability of a party to have an application dismissed on the basis of lack of merit.55 Courts must now dismiss applications only if they “will necessarily fail”.56 Further, courts must assume all facts alleged to be true, must “generally” assume all inferences pled to be true and must take the applicant’s arguments at their “highest”.57

The benefits of these developments may be debated. Is our societal expectation of what is “private” enhanced if the police need to get a warrant to obtain text messages providing evidence of a sex assault, when the complainant to whom those messages were sent is consenting to provide them? What normative values are enhanced by finding a Charter breach when a wife, who shares a computer with her husband, finds it filled with child pornography, and takes the computer to the police? Was there an epidemic of meritorious Charter applications being cut off at the knees that required the Supreme Court of Canada to neuter the ability to dismiss some of these applications?

CONCLUSION

It would be one thing if the Supreme Court of Canada were to acknowledge that the effect of its rulings will be to expand the amount and length of criminal pre-trial litigation, as well as the complexity of police investigations. But it has not; it does not discuss the former58 and gives no credence to the latter.59 The court had the option, with Bykovets, to gently reduce complexity and enhance certainty. The Ontario Court of Appeal released a ruling, only six months before Bykovets, that provided some guidance to lower courts. The ruling assisted in clarifying Spencer and narrowing some of the overly expansive interpretations of what that ruling required.60 That modest effort may have little persuasive force post-Bykovets

The alarm bells regarding criminal pre-trial litigation have been sounding for decades now. Governments have commissioned reports, commentators have bemoaned the sclerotic pace of proceedings, and trial courts have

attempted to adapt. But at a certain point the Supreme Court of Canada needs to think seriously about what it can do to reduce pre-trial complexity and thus ameliorate delay. Of course we need more judges, as suggested by Wagner C.J.C. But we also need to look at some of the deeper causes of our justice system’s problems.

ENDNOTES

1. R v Jordan, 2016 SCC 27.

2. Kristen Everson, “Long Delays and Collapsed Cases Are Eroding Faith in the Justice System, Lawyers Warn”, CBC News (31 May 2024), online: <www.cbc.ca/news/politics/canada-justice-systemdelays-1.7220882>.

3. Peter Zimonjic, “Ottawa Making Progress on Judicial Appointments but Threats to Rule of Law Remain, Says Chief Justice”, CBC News (3 June 2024), online: <www.cbc.ca/news/politics/chief-justicerichard-wagner-judges-democracy-funding1.7223219>.

4. Ibid

5. Patrick Lesage & Michael Code, Report of the Review of Large and Complex Criminal Case Procedures (Toronto: Queen’s Printer for Ontario, 2008) at 7–8 [Lesage and Code Report], providing the example of a 35-day trial that involved 2.5 years of pre-trial applications.

6. For example, warrants (Criminal Code [Code], s 487); production orders (Code, s 487.014). Both require a written application to a judicial officer, who must be satisfied that there are “reasonable grounds”.

7. Lesage and Code Report, supra note 5 at 6.

8. Ibid at 8.

9. R v Edwards, [1996] 1 SCR 128 at para 45.

10. R v Tessling, [2004] 3 SCR 432 at para 23 [Tessling].

11. R v Plant, [1993] 3 SCR 281 [Plant].

12. Ibid at para 20.

13. Ibid.

14. See e.g. R v Russell, [1999] BCJ No 2245 at paras 21–25 (SC) (names associated to storage lockers); R v Lillico, [1994] OJ No 4521 at paras 11–14 (Gen Div), aff’d [1995] OJ No 95 (CA) (bare fact of a bank deposit); R v Hutchings, [1996] BCJ No 3060 at paras 32–35 (CA) (electricity records); R v Brown, [2000] OJ No 1177 at paras 60–67 (SC) (basic phone subscriber info); R v Pheasant, [2000] OJ No 4237 at paras 32–38 (SC) (corporate, not commercial, financial records).

15. See e.g. Schrieber v Canada, [1998] 1 SCR 841, where the court continued to adhere to the “biographical core” as a threshold requirement: para 42. See also Tessling, supra note 10, which, while it made the “biographical core” one of seven factors to consider (para 32), was arguably decided on the basis of “heat emanations” not falling within the “biographical core” (paras 62–63).

16. R v AM, 2008 SCC 19 [AM]; R v Kang-Brown, [2008] 1 SCR 456.

17. AM, supra note 16 at para 68.

18. R v Cheung, [2007] SJ No 187 (CA); R v Nguyen, [2004] OJ No 3822 (SC); R v Haskell, 2004 ABQB 474.

19. R v Gomboc, [2009] AJ No 892 at paras 18, 26 (CA).

20. R v Gomboc, [2010] 3 SCR 211 [Gomboc].

21. R v Spencer, [2014] 2 SCR 212 [Spencer].

22. Production orders require the same “reasonable grounds” as a warrant, as explained in note 6.

23. Spencer, supra note 21 at paras 31–33, 47, 51.

24. Plant, supra note 11 at para 2.

25. Ibid at para 3.

26. Ibid at paras 16–25.

27. Tessling, supra note 10 at paras 4–5.

28. Ibid at para 5.

29. Ibid at paras 34–64; see especially para 28: “my focus is on the quality of information that [forwardlooking infra-red] imaging can actually deliver”.

30. Gomboc, supra note 20 at paras 59–65.

31. R v Ward, 2012 ONCA 660 (no REOP in IP address subscriber info). See especially para 3: “The majority of the cases have held that a customer does not have a reasonable expectation of privacy in the information provided by the [internet service provider]”.

32. Spencer, supra note 21 at paras 46–47, 50.

33. There is a real paucity of pre-Spencer case law on this issue, demonstrating the point being made—i.e., that the “biographical core” threshold, and the need to consider the inferences arising from the information itself, meant that there was little appetite for litigating this issue.

34. See e.g. R v Latimer, 2020 BCSC 488 at paras 167–77, especially para 176.

35 . Ibid (REOP in condo video); R v Kim, 2020 BCSC 1064 (REOP in still images taken from condo video); R v Kang, 2020 BCSC 1616 (no REOP in condo video); R v Abo Zead, 2020 BCSC 2145 (no REOP in apartment video); R v K, 2023 BCSC 1881 (REOP in condo video; unreported); R v P (15 December 2023), Surrey, 241356-1 (BCPC) (no REOP in lengthy video of a commercial complex).

36. R v Flintroy, 2018 BCSC 1682.

37. R v A, 2022 BCSC 347 (unreported).

38. R v A, 2019 BCSC 1801 (there is a REOP; unreported); R v Telfer, 2021 MBCA 38 (there is no REOP).

39. R v Wong, 2017 BCSC 306 (camera that recorded publicly viewable yard violated s 8); R v Edwardsen, 2019 BCCA 259 (camera recording exterior of residence was unobjectionable because it did not

record; it only provided “live” images); R v McPherson, 2023 ONSC 232 (static video recording of various buildings did not engage s 8 in the specific circumstances, but police must be “cautious” in the future: para 87).

40. R v Bykovets, 2024 SCC 6 [Bykovets].

41. Ibid at para 16.

42. Ibid at paras 51, 54.

43. Ibid at para 57.

44. Ibid at para 58.

45. Ibid at paras 73–82.

46. See e.g. ibid at paras 63–70. The dissent strongly disagreed with the majority on this point, finding, “[a] court consider the facts as they are, not as they might be” (para 161).

47. Ibid at paras 71–83.

48. Tessling, supra note 10 at paras 28–29.

49. Bykovets, supra note 40 at paras 64–78.

50. Tessling, supra note 10 at paras 28–29; see the Bykovets dissent’s position on this point at para 161, and see also R v Orlandis-Habsburgo, 2017 ONCA 649 at note 4; R v Kam, 2019 BCSC 2386 at para 99.

51. Bykovets, supra note 40 at paras 84–85.

52. Ibid at 86.

53. R v Devic, 2018 BCPC 318 (REOP in messages extracted from complainant’s phone, and emails

extracted from her Gmail account); R v KA, 2022 ONSC 1241 (no REOP in complainant’s phone, from which data was extracted by consent); R v CM, 2022 ONCJ 372 (REOP in Facebook messages between suspect and complainant); R v CT, 2023 ONSC 286 (no REOP in Facebook messages downloaded by police using complainant’s account access).

54. The Supreme Court of Canada definitively held that the police could not enter a house and seize a shared computer: R v Reeves, 2018 SCC 56 [Reeves]. However, the majority left the issue of whether s 8 is engaged by a private citizen offering an item to the police “for another day”: para 46. The Ontario Court of Appeal then laboured over this issue in R v Lambert, 2023 ONCA 689 at paras 48–78, finding that, at least in that case, the provision of shared computers to the police engaged s 8.

55. R v Haevischer, 2023 SCC 11.

56. Ibid at para 67.

57. Ibid at paras 83–84.

58. I certainly have never seen any indication by the court that it believes its rulings will have these effects.

59. See e.g. Bykovets, supra note 40 at para 85. In contrast, see the dissent’s commentary at para 139. See also Reeves, supra note 54 at para 54.

60. R v El-Azrak, 2023 ONCA 440 at paras 38–52.

PETER S. HYNDMAN MENTORSHIP AWARD CALL

FOR NOMINATIONS

The Vancouver Bar Association is pleased to announce that the Peter S. Hyndman Mentorship Award will once again be awarded at the Annual General Meeting (VBA AGM) on November 26, 2024.

The Peter S. Hyndman Mentorship Award is conferred annually in recognition of a lawyer who has distinguished themselves as an outstanding mentor. Peter was an exemplary mentor who made extraordinary efforts to pass on his legal skills, wisdom, ethical insights, good judgment, idealism, and commitment to decorum and civility to those who had the good fortune to work with him.

Candidates must be British Columbia lawyers, retired lawyers or former lawyers now appointed to the bench. They must also be in attendance at the VBA AGM on November 26, 2024 to receive the award.

The VBA encourages nominations that represent candidates from all areas of practice, experience, and circumstances; from all sizes of firms throughout all of British Columbia. Importantly, prominence within the legal community is not a prerequisite for candidacy. Indeed, sometimes excellent mentors enjoy a lower profile precisely because of the private character of mentorship and its time demands, which may reduce opportunities for enhancing their own public profile. The overriding objective of the Peter S. Hyndman Award is to recognize those who dedicate great effort to bringing young lawyers along in the practice of law and celebrate their indispensable contribution to the legal community.

To make a nomination, kindly draft a letter of not more than 500 words outlining the reasons why you consider your nominee a fit and proper candidate for the award. The nomination must be endorsed by five additional letters of support, not more than 250 words each, and drafted by current or former members of the Law Society of British Columbia. Please submit the six letters in one email to the VBA’s 2024 Past President, Niall Rand, at nrand@fasken.com by no later than October 21, 2024.

Past recipients of the award include Sara Forte, Karen L.M. Carteri, Gaynor Yeung, William S. Berardino, K.C., Richard C. Peck, K.C., Leonard T. Doust, K.C., Leon Getz, K.C., Robert G. Ward, K.C., Bruce R. Grist, Donald W. Yule K.C., Tom Roper K.C., Jan Lindsay K.C., Nazeer T. Mitha, K.C., and Tom Braidwood Q.C.

The Litigation Support Group

Business Valuations

• Matrimonial disputes

• Shareholder disputes

• Minority oppression actions

• Tax and estate planning

• Acquisitions and divestitures

Personal Injury Claims

• Income loss claims

• Wrongful death claims

Economic Loss Claims

• Breach of contract

• Loss of opportunity

Business Insurance Claims

• Business interruption

• Construction claims

Forensic Accounting

• Accounting investigations

• Fraud investigations

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

THE WINE COLUMN

By Michael Welsh, K.C.*

White wine is like electricity. Red wine looks and tastes like a liquified beefsteak.

James

Joyce

If you can’t explain it to a six year old, you don’t understand it yourself. Except for wine of course. Wine is complicated.

— Albert Einstein

WHITE ON WHITE

Actually, the basics of winemaking are simple. There are really two ways to ferment grapes: with skins on and with skins off. I thought I would write about skins off this time.

Or course one can write an encyclopedia on white wine in all its permutations around the globe. It is not exactly a narrow topic. But I have no intention of doing a tome. I promise this will be reasonably succinct—a light wine-tasting experience rather than a full imbibing.

A surprising number of people take sides with wine, either favouring red or favouring white, rather than enjoying the full panoply the wine world has to offer. How often do you hear someone say, “I only drink white wine”, or “I only drink red”, as if that is all there is to either type, when in truth wines in either category run a gamut of grape varieties and wine-making styles? Mind you, most of those who say they only drink white or red will

* 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.

then go on to tell you all the types of each they like and do not like. A white “wine-r” will eschew Riesling as “too sweet” or Chardonnay as “too rich”, and you eventually learn that really all the person drinks is Pinot Gris. Similarly, a red wine buff will turn out to only like a full-bodied Cabernet Sauvignon, and not that other “thin” red stuff.

However, almost all wine grapes, even Cabernet Sauvignon, can be made as a white wine. Classic examples on wine store shelves include white Zinfandel and white Merlot. The reason is that grapes, with the exception a few grapes known as “teinturiers” or black grapes which have red juice and not just red skins (such as the Georgian Godori Saperavi that I reviewed in the last issue and Alicante Bouchet, the latter grown mostly in southern France and California; both are generally used to deepen colour in red wine), no matter their skin colour, have white flesh. This takes us back to the skins on/skins off variations on winemaking. The decision on participation of the skins generally results in four shades of wine, as shown in the following primitive table:

Long contact with grape

Short contact with grape

No contact with grape skins skins skins

Red wine (red skins) Rosé wine

White wine (any skin colour) (red or pink skins)

Orange or amber wine (white skins)

In a white wine, grapes are pressed and their skins are removed immediately. Because the grape skins do not participate in the fermentation, their colour does not matter and the wine acquires a neutral, green to slightly yellow hue. Reds and “orange” wines are made much alike, and in each case the skins impart colour, tannin and other elements to the wines. Rosé is a halfway house, with a bit of skin contact. The depth of colour and the delicacy vs. robustness of a rosé comes largely from the length of skin contact as well as the type of grape used. In other cases, it may be from a blending in of white wine to the final product.

The skin colour of white wine being irrelevant has meant that some wines that are widely considered “white” have coloured grape skins. The most well-known are Pinot Gris (or Pinot Grigio in Italy) and Gewürztraminer. Both have pinkish-blue skins, not far off in colour from some more delicate red wine grapes such as Pinot Noir or Gamay. And Pinot Noir itself is often used to make a Blanc de Noirs champagne.

Until the mid-20th century, Italian Pinot Grigio was generally a pinkishamber colour, having had skin contact. However, with “modern styles” of

winemaking from the 1950s onward, that style changed to the white wine style we see today:

Since World War II, the worldwide wine industry has rewritten the white wine playbook. Juice and pulp are separated from the skins right at the start. Fermentation is done in neutral, closed stainless steel at steady, cool temperatures. Reductive winemaking keeps oxygen at bay, fining and sterile filtration make the wines crystal clear and shelf stable, and early bottling ensures fresh, fruity, bright wines. Adopting these protocols has exponentially improved the quality of white wines around the world, both at the high end and throughout the broad mass market. In this hugely successful recipe, avoiding skin contact is a core component.1

Some Italian producers recently have gone back to the traditional style as part of the “natural wine” movement.

Of course fermentation of grapes for any type of wine is just part of the process of winemaking, and depending on the variety and the winemaker’s goals, the final product can be vastly different. Even within a grape variety, decisions about fermenting will change the wine’s character. Riesling can be sweet, off-dry and dry with alcohol levels from eight per cent to over thirteen per cent. A barrel-fermented Chardonnay is quite different from one fermented in steel, and fermentation in open or closed concrete often somewhat in between. Aging in oak barrels or barriques, and decisions to have all or part of the wine undergo a secondary or malolactic fermentation to decrease acidity, again will make a very different wine from one fermented and aged in steel.

The variety most notable for these sorts of variations is Chardonnay. A barrel-fermented and oak-aged California Chardonnay bears small resemblance to a delicate Chablis. Hence the half-joking comment of American wine educator Kevin Zraly that (at least a more delicate) Pinot Noir is a white wine masquerading as a red, while California-style Chardonnay is a red wine masquerading as white.

But the same differences can be found in other oaked varieties, such as Riesling, Semillon, Sauvignon Blanc or Chenin Blanc, as compared with those kept in steel under a blanket of nitrogen. And just as with red-skinned grapes, varieties are often mixed. White Bordeaux is Sauvignon Blanc, Semillon and Muscat, and a white Côtes du Rhône can include a mix of Grenache Blanc, Bourboulenc, Clairette, Marsanne, Roussanne and Viognier.

The final comment I will make in this light dive into white wine deals with another misconception about white and red wine and how they are made. I hear comments from those who only drink white that they avoid red as the sulfites in the red wine give them a headache. This is interesting, and completely erroneous, as white wines are the ones with more sulfite

additions. While the fermentation process itself produces miniscule amounts of sulfites, wines fermented on their skins develop natural protection against oxidation, whereas those fermented with no skins do not. While with modern winemaking practices, additions of sulphur dioxide (SO2) are generally modest, they are still necessary for most white wines. And in any event, sulfites in wine are generally not the culprit for the headache: Those who get wine headaches often say that they get them after drinking red wine. Since white wine contains more sulfites than red, it is unlikely that sulfites are to blame. Also, sulfites are also high in certain foods, such as dried fruit, soy sauce, and pickles. If the sulfites in wine cause headaches, these foods should cause a similar reaction.2

With the last couple of devastating winters making B.C. white wine a potentially endangered species, at least for the next year or two, I highlight a few B.C. examples you should still be able to locate in government or private wine stores.

BLACK MARKET PINOT BLANC 2022

BC VQA Okanagan Valley #23537 $25.00 (approx.)

This wine is barrel-fermented and aged at a small winery in Kaleden from grapes grown at its Conviction Ridge Vineyard. It was fermented with wild and cultured yeasts and aged nine months in neutral oak with regular battonage to increase creaminess. The nose is peach, lemon, lemon rind and a bit of mineral. The soft but vibrant palate shows lemon-lime, green peach, pear and bit of green tropical fruit, mostly pineapple, with a medium-long finish. This wine also has aromas of white peach, green apple and floral notes. The winery suggests pairing it with a soft cheese or a potato-crusted salmon filet. Other similar ideas are seafood like prawns or scallops, perhaps on pasta with a mushroom sauce, or baked halibut or other firm fish. It is available from the winery online, in BC Liquor stores, or online from the BC Wine Information Centre.

WINEMAKER’S CUT BOHEMIAN RIESLING 2020

BC VQA Okanagan Valley #133023 $25.00 (approx.)

This is also fermented with wild yeasts with grapes from Chahal vineyard north of Oliver. The ferment is long at 71 days, with twenty-two per cent being barrel fermented for texture, while ten per cent gets 14 days of skin contact for aromatics. There is a lot of minerality mixed with lanolin or petroleum notes, along with green apple and lime and white grapefruit on the nose. Aromas are lime, white grapefruit, wet stone and lanolin. Lovely mix. The flavours are more lime, green apple, wet stone minerality, some

more lanolin and a trace of salinity leading to a tart long finish. It is made for oriental dishes, whether Chinese, Thai or Japanese. The wine is available from the winery online or in person or at private wine stores like Marquis Wine Merchants, Liberty Wine Merchants and Save-On-Foods.

SANDHILL SOVEREIGN OPAL 2023

BC VQA Okanagan Valley #23841 $18.99

I have written about this uniquely Okanagan grape before, but not for a while. It was developed a few decades ago at the Agriculture Canada Research Centre in Summerland as part of a breeding program to find grapes suitable for the Okanagan climate, but never really took off. It is now grown exclusively on the Casorso vineyard in Kelowna, but deserves a wider audience. Only 11.8 per cent alcohol, the nose is of white peach, lemon lime, white grapefruit, wet stone and blossoms. On the semi-dry palate are flavours of lemon-lime, more peach, melon and a bit of lychee, leading to a crisp medium-long finish. Again it will do well with oriental dishes or Indian food. Recommended are grilled pork tenderloin with fruit chutneys; pork sliders with hoisin sauce; Samosas or spring rolls with dipping sauces; Creole crusted halibut, and Brie and sliced pear on a panini.

INNISKILLIN DISCOVERY SERIES CHENIN BLANC 2022

BC VQA Okanagan Valley #273573

$22.00 (approx.)

This has a limited production of 600 cases and was winner of a silver medal at the 2024 WineAlign national wine awards of Canada with 90 points. It is a highly aromatic white brimming with yellow stone and tropical fruit, peach, mango and soft citrus lemon, tempered on the palate with citrus fruit and orchard fruit (peach and a touch of apricot). The full finish is medium-dry, with some slight hints of honey. I recommend herbed pork chops with sauteed green apple, or duck in a cherry or orange sauce, or milder Indian dishes. It is available at Save-On-Foods, as well as many private wine shops, or online from Great Estates Okanagan and the BC Wine Information Centre.

And for those who do lean toward red, here are three local and international additions:

BLACK SAGE VINEYARD CABERNET FRANC 2020

BC VQA Okanagan Valley #593038 $32.99

This is winner of several medals and awards including silver at the Lieutenant Governor’s Wine Awards 2023 and WineAlign National Wine Awards

2023, and gold at the San Francisco International Wine Competition 2022. The grapes are sourced from vineyards on Black Sage Road north of Osoyoos from 25-year-old vines. After fermentation it was aged in French oak for over 12 months. Inky black in colour, on the nose are aromas of ripe black cherry, some black currant, and plum, mixed with overlays of vanilla and a bit of dark chocolate. The flavours are of full and ripe black fruit; there are more cherry, black plum, blackberry, that dark chocolate and a bit of ash, notes of spice, and round tannins on its long finish. This is perfect for grilled meats, whether a grilled steak, roast beef, rack of lamb or Osso Bucco.

DOMAINE BRUSSET CRU DE CÔTES DU RHONE 2019

AOC Gigondas, France #593178 $39.99

This blend of Grenache, Mourvèdre, Syrah and Cinsault comes from grapes that were hand-picked and sorted, and then fermented on wild yeasts in large vats for 20 days and aged seventy per cent in vats and thirty per cent in “demi-muids” (large oak barriques) before blending. The winery says its aging potential is three to ten years. The colour is purple-black and the aromas are of ripe plum, blackberry, black currant and black cherry with notes of herbs and pencil lead and some vanilla. The full and round palate has flavours of the same black fruit with pepper and other spice, dark chocolate and more subtle vanilla, and it has a long ripe finish. Again, this will go with rich meat dishes, or duck comfit, or a roast chicken Provençal in red wine.

VIÑA REAL CRIANZA 2019

DOC Rioja, Spain #356386 $24.99

This blend of Tempranillo, Garnacha and Mazuelo was aged a minimum of 12 months in a mix of French and American oak casks and then further bottle aged. A medium reddish-purple, it has bright berry aromas of red currant (cassis), raspberry and cranberry with some herbal notes and has flavours on a round palate of red berry and red cherry with some tea-like tannins and a long, lifted finish. Wine writer James Suckling gave it 93 points saying: “High toned, floral aromas with orange peel and crushed blackberries. Medium-bodied with tight, chewy tannins that are polished and intense. Serious length and focus. Vegan. Very drinkable.” Spanish tapas are always a first choice (pan-fried chorizo sausage in red wine with garlic smeared toasted bread, or sauteed garlic mushrooms, for instance) and in second place are Italian tomato-based pastas or even a pizza.

ENDNOTES

1. Tim Patterson, “White Wine Skin Contact”, WineMaker Magazine, online: <winemakermag.com/ technique/1282-white-wine-skin-contact>.

2. “What to Know About Sulfites in Wine”, WebMD (10 July 2023), online: <www.webmd.com/diet/whatto-know-sulfites-in-wine>.

NEWS FROM BC LAW INSTITUTE

By Ed Wilson*

ADVANCING LEGAL REFORMS: A CONVERSATION WITH ZARA SULEMAN, K.C., ON MODERNIZING FAMILY LAW

In July 2024, the BC Law Institute (“BCLI”) published a report proposing updates to part 3 of the Family Law Act on defining parentage, a crucial step toward modernizing our legal framework for families. Over the past decade, we have seen significant shifts in law, society and reproductive science. I was excited to invite Zara Suleman, K.C., chair of the Parentage Law Reform Project Committee, to share her insights into the committee’s work on this report. As the board chair and a volunteer committee member at BCLI, I have seen firsthand how project committees like this one are vital to BCLI’s law reform mission. They bring together diverse perspectives and insights from experts who understand the legal framework, ensuring the recommendations are objective and robust. In today’s landscape where independence and credibility are paramount, the work of our project committees exemplifies these values. In our conversation, Zara discussed the collaborative process, and the importance of independent law reform.

How did you get involved with BCLI and the parentage committee?

I was approached by BCLI to chair the parentage committee because I had been involved with the initial trainings regarding the changes to part 3 of the Family Law Act that was amended in 2013. barbara findlay, K.C., and I co-authored the first paper regarding legal parentage and the area of assisted reproduction that was captured in the Family Law Act

What motivated you to join and stay engaged with the committee?

I am deeply interested in and committed to expanding the nature and understanding of family and how people become parents. I have always

* Ed Wilson is the chair of the British Columbia Law Institute.

been committed to the idea of modernizing the way we think about families, family structures, parenting and parentage. This was an opportunity to be involved in a project that would engage a variety of people that sometimes are not included in the discussions regarding legal parentage and the creation of families through assisted reproduction.

The original provisions in the Family Law Act were enacted in 2013. Why are we reviewing it now?

It is always important to look at laws to see if they actually match up with what is happening in lived experiences of people. There can be a place in law where things are not working in fact nor reflecting reality. The reality is that assisted reproduction is increasing—a variety of people are using fertility clinics—and there is an expansion in creating families in different ways. We wanted to expand and look at whether the Family Law Act is in fact representing different communities such as the 2SLGBTQ+ and multiparent families.

How does the committee ensure diverse perspectives are considered in its recommendations?

Our interdisciplinary committee included not only lawyers but also doctors, nurses, academics and counselors. We had people who were involved in the larger process of creating families and who work in the areas of assisted reproduction. Our committee was quite diverse in its knowledge base and representation of various lived experiences. This helped expand conversations around different recommendations we have made. Our goal was to bring many different voices to the table. We also acknowledged that this is not going to be the last word on parentage. Even though the committee’s recommendations will move part 3 forward, inevitably the law will have to continue to evolve in the future.

Were there any findings from the parentage project that surprised or particularly interested you?

One of the key recommendations that emerged was modernizing the language. We were fortunate to have excellent academics involved in the process to ensure that our language was both gender-neutral and genderaware. There was a significant focus on making the language more accessible and using plain language while addressing gender inclusivity. We were also looking at ways to streamline the legal process, making it more accessible and affordable. Our goal is to simplify the law and the process, allowing people to engage with fewer logistical and legal speed bumps to create families.

Describe a challenging issue the committee faced and how it was resolved. One of the issues was the idea of best interests of the child. In family law, best interests are the key legal test for ensuring that children are protected. Normally, the concept of best interests comes up when parents separate or when they are establishing parenting agreements. However, we needed to consider how to address the best interests of the child before a child exists. This situation arises during the early stages when people are starting to think about having families and wanting to become legal parents.

Our process involved presenting different topics and positions on the areas we needed to address. We made space and time to discuss different positions on possible recommendations. We worked in a respectful, inclusive and informed manner, truly listening to each other’s viewpoints, even when we disagreed. We recognized people were not just committee members, but individuals with diverse backgrounds. While we might be lawyers, academics, doctors, counselors or other experts, we also brought our own lived experiences with starting families, using assisted reproduction or being part of diverse family structures.

We worked on a consensus-based model. When disagreements or the need for additional information arose, we took the time to ensure everyone felt heard and valued. If consensus could not be reached, we would take a vote to see where the majority stood. Even then, we made sure to include the voices of those with differing opinions in explaining the recommendations. Our goal was to ensure the report captured a range of views and truly represented the committee’s discussions.

I believe the government would benefit from following these recommendations, as they are thoroughly researched, thoughtfully debated and exceptionally well informed. The recommendations have the potential to create very progressive legislation on parentage that can serve as a role model for other jurisdictions. When part 3 of the Act first came out, it set a standard that other provinces looked to emulate, demonstrating British Columbia’s leadership in this area.

Can you provide an example of how public feedback has shaped the committee’s recommendations?

We were very fortunate to receive information from a variety of public stakeholders, including both organizations and individuals. The majority of public responses resonated with or supported the original recommendations we had proposed. Whenever clarification was needed or concerns were highlighted, particularly regarding the clear articulation of our positions and ensuring that all recommendations adequately addressed the experiences of 2SLGBTQ+ communities, issues related to gender-based

violence, and access to justice, we took steps to expand on and further explain the recommendations to ensure clarity and reflect the feedback received.

Why is this process rewarding for legal professionals?

Engaging in law reform allows us to tackle larger systemic changes that we may not address in our daily legal work. It provides a space where likeminded colleagues come together to discuss and advocate for reforms, but also where diverse perspectives challenge our thinking and broaden our understanding. For instance, participating in the parentage project committee, I have gained valuable insights from colleagues in fertility law, as well as from doctors and counselors. Their perspectives, especially those of nonlawyers, have prompted us to reconsider language choices in laws and to question why laws have to be so complex and inaccessible. These discussions ground us in reality and encourage us to think expansively about what the law should aim to achieve for everyone.

Why is independent law reform important in the legal landscape in British Columbia?

If we do not continuously update the law, it will fail to reflect the lived experiences of the people it governs. As lawyers, we understand that the law is a living thing, and it is incumbent on us to reform it regularly. The law must speak to societal changes and real-world developments. It needs to represent those who have been overlooked and give a voice to those who are often silenced or invisible in the legal system.

I believe law reform cannot be effective without an independent system and process. Independence is crucial for gathering a variety of views, including those that might oppose the government’s perspective or be influenced by budget constraints or political considerations. This independence fosters debates and discussions that truly reflect the voices of the people and focus solely on reforming the law.

Why should other legal professionals consider supporting BCLI, through committee work or in other ways?

BCLI is the ideal place for law reform, known for its decades-long commitment and dedication. It is an independent environment with experts and a dedicated team who create opportunities for people to convene on a diverse range of legal topics, advancing and effecting changes within the law. It ensures that laws accurately reflect our society, making law reform responsive rather than reactive. One of the most exciting aspects of BCLI is that it provides the resources and frameworks for these discussions, including public engagement to gather feedback. It is the best space for those who

want to see changes in the law and have something to say, ensuring that the law benefits everyone and not just a few.

In our daily work as lawyers, whether in courtrooms, negotiations or mediations, we often witness firsthand the shortcomings of current legal systems. We see how certain communities and voices are marginalized and how some systems are unnecessarily complex, expensive or inaccessible. We experience both the functionality and the limitations of the law. We see gaps in areas where the law fails to reflect the realities of lived experience. Often, it is frustrating because we do not have a space to talk about the larger systemic issues. Participating in a BCLI committee or law reform project offers an avenue to look at the bigger picture. It allows us to step back and examine the broader systemic issues within the legal framework, providing a platform for critique and enabling us to change the law for the benefit of everyone.

If you are interested in learning more about the Report on Parentage: A Review of Part 3 of the Family Law Act, visit the BCLI website at <www.bcli. org/project-review-of-parentage-consultation-under-part-3-of-the-familylawact>.

“The Boat Chandlers House” oil on canvas, 36'' x 48''

Available at Kurbatoff Gallery, 2435 Granville St., Vancouver

Visit the website: kurbatoffgallery.com

NEWS FROM

CLEBC SOCIETY

By Adam Simpkins*

FIONA HUNTER HONOURED WITH 2024 CLEBC LEADERS IN LEARNING AWARD

Fiona Hunter of Victoria’s Horne Coupar LLP has been honoured with the 2024 Continuing Legal Education Society of BC’s Leaders in Learning Award.

The award was presented at the Canadian Bar Association, BC Branch’s 38th Annual Bench and Bar Dinner in Vancouver on Thursday, June 20, 2024. Although Fiona was unable to attend the event in person, her numerous accomplishments at CLEBC were celebrated.

Every two years, CLEBC recognizes an extraordinary individual for their contribution to enhancing learning within the legal community by presenting them with the Leaders in Learning Award, which Fiona richly deserves.

Fiona specializes in estate planning, particularly trusts, and serves as a mediator in estate litigation. Over the years, Fiona has dedicated countless hours to both CLEBC programs and CLEBC publications, serving as a chair, speaker, editorial board member and author. She is one of CLEBC’s most prolific contributors, with over 60 contributions to her name.

Fiona is reliable, generous, conscientious, thorough and extremely intelligent. As a course chair or speaker, she ensures topics are relevant and engaging and often uses her influence to recruit senior members of the bar as speakers. As a contributing author and editorial board member of CLEBC’s Estate Planning and Wealth Preservation publication, Fiona has brought her inquisitive mind to the project for over a decade, consistently raising thoughtful questions and making productive suggestions.

Fiona’s contributions have significantly improved the quality of wills, estates and trust practice in British Columbia. Her dedication to CLEBC is

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

highly valued, and it is a pleasure to present her with this award. Congratulations, Fiona!

NEW PUBLICATION UPDATES FROM CLEBC

British Columbia Estate Planning and Wealth Preservation

Amid the largest intergenerational transfer of wealth in history, this comprehensive guide equips lawyers with effective estate planning techniques for complex portfolios. Focused on tax-based planning in British Columbia, it complements Wills and Personal Planning Precedents with commentary and annotated forms. Key benefits include determining sensible approaches for clients’ needs, creating practical estate plans and handling diverse portfolios confidently.

Annotated Family Practice 2024-2025

This portable compilation provides quick access to essential B.C. family law statutes, rules, regulations and case law. Leading family law lawyers offer succinct summaries of significant cases under key legislation such as the Child Support Guidelines and the Family Law Act. Key benefits include easy access to statutory language, identification of leading cases and quick reference to Child and Spousal Support Guidelines

British Columbia Real Estate Practice Manual

Guiding lawyers through the stages of conveyancing, this manual covers practice issues requiring expertise, including real estate licensee regulation, tax considerations and collapsing deals. Mainly focused on residential property, it also touches on commercial conveyances. Key benefits include avoiding common conveyancing errors, referencing statutes and cases, and accessing over 125 conveyancing forms and precedents.

Child and Family Services Law and Practice

This comprehensive manual offers essential guidance for lawyers in child and family services law. It provides easy access to current legislation, leading case law and key principles. The book also addresses the relationship between Canada’s colonial history and the current child and family services system, helping practitioners incorporate principles of trauma-informed practice and cultural humility. Whether you are new to the field or an experienced practitioner, this resource ensures you stay informed and effective in this challenging area of law.

For more details, visit <www.cle.bc.ca/publications>.

ЖЖЖ

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

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

A VIEW FROM THE CENTRE

By Richard Levin and Joe McGrade*

ARBITRATION OF COMPLEX COMPETITION DISPUTES

Overview

Arbitration is well suited to resolving competition disputes between private parties, and courts in the United States and Canada have affirmed the arbitrability of competition cases. Access to expert arbitrators provided by arbitration is perfectly suited to complex competition disputes; arbitration allows for creative use of expert testimony to address complex economic issues at the heart of competition cases (e.g., expert “hot tubbing”). A rbitration for complex competition disputes can employ innovation and flexibility to find a resolution faster, easier and with less expense than the national courts.

Private Competition Claims Are Arbitrable

In 1985, the U.S. Supreme Court delivered its decision in Mitsubishi v. Soler, 1 ruling that international competition cases were arbitrable under the New York Convention and the United States’ corollary legislation, the Federal Arbitration Act. Most jurisdictions around the globe considered competition matters to be strictly for the national courts, yet the Supreme Court gave the discipline of arbitration a jump start, finding that in order to realize potential gains in efficiency, national courts will need to “shake off the old judicial hostility to arbitration.”

The court found that the historic complexity of competition cases in national courts made these cases the perfect candidates for arbitration as “adaptability and access to expertise are hallmarks of arbitration”, and that “streamlined proceedings and expeditious results will best serve their needs

* Richard Levin is an international and domestic arbitrator specializing in complex disputes, with a special focus on competition, anti-trust and intellectual property cases. Joe McGrade is an associate at Blake, Cassels & Graydon LLP and a member of the Competition, Anti-Trust & Foreign Investment group.

that causes parties to agree to arbitrate their disputes”. Furthermore, competition cases are often driven by economics, and most institutional rules including the International Bar Association (“IBA”) Rules on Taking of Evidence in International Arbitration (the “IBA Rules”) allow for creative use of expert testimony in proceedings.2

Canada has taken a similar approach and has proven itself generally to be an “arbitration friendly” jurisdiction. 3 The Federal Court of Appeal recently confirmed that disputes under the Competition Act are arbitrable in Difederico v. Amazon.com, Inc 4 The court emphasized the importance of arbitration to the Canadian judicial system, and found that cases involving an arbitration agreement should be systematically referred to arbitration, subject to limited exceptions. The court rejected the plaintiffs’ argument that public policy considerations regarding the purpose and enforcement of the Competition Act preclude arbitrability.

How Can Arbitrators Take Advantage of the Flexibility the Process Offers in Competition Disputes?

Arbitration in competition disputes can benefit the parties through flexibility and adaptability in many ways, including information production, discovery and the production and examination of expert evidence/witnesses.

Document Production

The IBA Rules balance the parties’ need to obtain information in a competition dispute and the principles of expedition and reasonable costs, taking a “rifle shot” approach to document requests as opposed to “scatter shot” requests seen in countries such as the United States and Canada. Moreover, parties can be flexible and work up their own method of information exchange, keeping in mind the arbitral goals of expedition and efficiency. An example of a useful tool to address production disputes is the “Redfern Schedule”,5 which the parties and arbitrators can put in place—a simple device to explain in one chart the specific reasons for requesting or objecting to each document request. Arbitrators can easily put a perimeter around document dispute issues and decide them quickly via this tool.

Other forms of information exchange (e.g., admissions or interrogatories) commonly seen in the United States should not be allowed in these arbitrations. Generally, this type of discovery is beyond the parties’ expectations when signing an arbitration clause, and if the parties intend for some reason to have this broad discovery, they should stipulate it in the clause itself. Depositions are generally not allowed even in these complex disputes unless that witness is critical to the case and/or cannot appear live.6 Further, it is always possible for a tribunal to make searching orders

for the production of documentary evidence, short of “fishing exercises”.7 This is arbitration, not litigation, and broad discovery is not necessarily a given. The practice of allowing U.S.-type judicial discovery should be out of the question and soft law protocols like the IBA Rules provide arbitrators the best practice guideposts and the support needed to frame the case.

Expert Evidence

Competition disputes are expert driven and grounded in economics.8 The IBA Rules synthesize common/civil law in international arbitration and require, in the case of party-appointed experts, a statement of independence from the parties or their counsel; tribunal-appointed experts (almost by definition) must be independent. Accordingly, the proper role of any expert in an international arbitration, party- or tribunal-appointed, is to provide independent professional judgment on opinions in which they genuinely believe, and not simply act as another advocate.

The “adaptability” of arbitration championed by the U.S. Supreme Court in Mitsubishi allows for a more robust resolution of expert opinion than even the courts provide. Arbitration presents a way for the parties in complex competition cases to get to the truth in a faster, and less expensive, way. The traditional, adversarial method in common-law expert witness procedure is both expensive and time consuming, and may not be the best way of testing such economic opinions. As noted over a decade ago by Messrs. Veeder and Stanley, “[t]he way in which expert evidence is presented and tested may well need to be modified; it is certainly not self-evident that anything resembling full-scale ‘cross-examination’ of the experts by counsel is likely to be productive.”9 Accordingly, authors are not certain of the benefits of using solely tribunal-appointed experts and the procedures contemplated by Article 6 of the IBA Rules and Article 6 of the Prague Rules (Rules on the Efficient Conduct of Proceedings in International Arbitration)10 are not certain, rigorous cross-examination by counsel alone of party-appointed economic experts risks wasting the very tools of flexibility that arbitration offers in a competition dispute.

Accordingly, one beneficial tool for the arbitrator to use in complex cases would be a form of witness conferencing with experts. Having expert witnesses engage with one another can help narrow the scope of disagreement in proceedings, and is common in international arbitration, especially outside the United States. This process departs from the traditional common law sequential pattern of testimony, and is neither difficult nor controversial. The Chartered Institute of Arbitrators (“CIArb”) has developed its own Guidelines for Witness Conferencing in International Arbitration,11 and this has been the subject of a previous article in the Advocate 12 The more com-

plex the issue to be resolved, the greater the benefit from the witness conference and the contemporaneous comparison of testimony.

Furthermore, experts can hold a “meet and confer” prior to testifying to attempt to reach agreement on certain issues in their expert reports, and limit their testimony only to areas of disagreement. This form of “hot tubbing” with a written joint report is common, is recognized by the IBA Rules13 and would work well in conjunction with a follow-on witness conference.

Expert conferencing has even seen early success in contested merger litigation before the Competition Tribunal in Canada (Commissioner of Competition) v. Parrish & Heimbecker, Limited 14 The experts and counsel for the parties agreed on a list of five main issues to be addressed by the experts at the concurrent evidence session, and the experts identified their areas of agreement and disagreement on each issue. Each expert was granted a full and fair opportunity to present and explain their respective position on each issue, and opposing counsel were able to cross-examine the experts. The tribunal recognized the benefits of this approach, specifically that it allowed the experts rapidly focus on the key areas of disagreement between them, and found that the process worked well and helped the tribunal to have a solid understanding of each expert’s position. Such an approach would likely provide similar benefits to arbitrated disputes.

CONCLUSION

Parties subject to complex competition disputes may benefit from the flexibility inherent in arbitration, particularly in areas of discovery and expert evidence. Arbitration may be a more robust forum to decide private (nongovernmental) competition matters, especially those with greater complexity. Arbitration can employ the innovation and flexibility encouraged by cases like Mitsubishi with the potential of such flexibility to find a resolution faster, easier and with less expense than the national courts.

ENDNOTES

1. 473 US 614 (1985).

2. Online: <www.ibanet.org/MediaHandler?id=683 36C49-4106-46BF-A1C6-A8F0880444DC>, arts 5 and 6.

3. See Seidel v TELUS Communications Inc, 2011 SCC 15 and Difederico v Amazon.com, Inc, 2023 FCA 165.

4. Ibid

5. The “Redfern Schedule” is named after the distinguished practitioner in the United Kingdom, Alan Redfern, who first devised this concept.

6. See IBA Rules, supra note 2 at art 4.9.

7. See e.g. VV Veeder & Paul Stanley, EU and US Antitrust Arbitration: A Handbook for Practitioners EU and US Antitrust Arbitration (Kluwer, 2011), ch 3 at 105.

8. In the United States, see Ohio v American Express, 138 S Ct 2274 (2018). See generally Veeder & Stanley, supra note 7, ch 9.

9. Messrs Veeder and Stanley refer to this as “procedural and evidential flexibility”, ibid at 106, note 5.

10. The very important soft law protocol solely for civil law arbitrations, the Prague Rules (Rules on the Efficient Conduct of Proceedings in International Arbitration), was published in 2018. See online: <prague rules.com>.

11. Online: <www.ciarb.org/media/4595/guideline13-witness-conferencing-april-2019pdf.pdf> (“Guidelines”).

12. (2022) 80 Advocate 551.

13. IBA Rules, supra note 2, art 5.4.

14. 2022 Comp Trib 18.

ANNOUNCING THE 2025 ADVOCATE SHORT FICTION COMPETITION

ELIGIBLE CONTRIBUTORS

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

ELIGIBLE FICTION

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

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

DEADLINE FOR SUBMISSIONS

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

FORMAT FOR SUBMISSIONS

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

ADDRESS FOR SUBMISSIONS

Advocate Short Fiction Competition

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

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

JUDGES

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

PRIZES

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

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

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

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

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

TRANSFER OF RIGHTS

In consideration of having their fiction reviewed for:

(a) possible selection as winning entries;

(b) possible publication in the Advocate; and

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

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

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

PETER A. ALLARD SCHOOL OF LAW FACULTY NEWS

By Heidi Wudrick*

INDIGENOUS ALUMNI SHARE THEIR LAW SCHOOL EXPERIENCES OVER THE LAST 50 YEARS

Reconciliation begins with truth. This is the impetus behind a new project sharing the stories of Indigenous law school alumni, along with former faculty and staff, who studied and worked at Allard Law over the past 50 years.

The project, titled The Law School Experience: Indigenous Alumni Tell Their Stories (online at <www.allard.ubc.ca/LSE>), was first suggested by members of an external Dean’s Advisory Council on Truth and Reconciliation at Allard Law as a means of providing a space for Indigenous alumni to reflect on and share the unvarnished truth of their experiences as law students.

A diverse cross-section of Indigenous law school alumni, as well as Indigenous former faculty and staff, were invited to share their stories as part of this project.

For many of the alumni who chose to tell their stories, getting to know other Indigenous law students was a high point in what could otherwise be a difficult and demoralizing environment.

“The good parts were being able to hang out and celebrate our culture and do some things with the First Nations students,” said one law school graduate who chose to participate anonymously. “And then the bad parts of course were just the general atmosphere. The racism and discrimination you just kind of feel being an Aboriginal person in law school.”

Another common theme throughout many of the stories was the need to step up to educate students and faculty who seemed to be largely unaware of and uninterested in Indigenous history and Aboriginal law.

Alum Cynthia Callison (LL.B. ’95), who is a member of the Crow Clan in the Tahltan Nation and founding partner at Callison and Hanna, recalled

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

having to step up, along with three of her Indigenous classmates, to teach the Aboriginal title component of her first-year property law class. “In many of the classes that I was at, we were basically asked to address any issue surrounding Aboriginal people, simply because the faculty didn’t have that knowledge,” she added. “I often feel like I should never have had to pay tuition in law school because we were always called upon to educate students and faculty around Indigenous issues.”

Indigenous former faculty, staff and leadership at the law school also shared their experiences and efforts working toward changing legal education and the legal profession for the better.

“I tried to help students feel welcome and connected to one another and the broader school,” said University of Toronto law professor Dr. John Borrows, FRSC, OC, who was formerly a law professor and the director of what was then known as First Nations Legal Studies at Allard Law. “I also focused on expanding the curriculum. There was a course or two on Indigenous issues when I arrived and the students wanted more. I chaired a faculty committee related to First Nations legal issues and with the students’ advocacy and ideas, alongside faculty support, UBC Law boosted the offerings in the field from two to seven.”

In addition to personal stories, the project also includes a timeline highlighting important milestones sketching out the development of Indigenous legal education at Allard Law, beginning in 1973.

As several alumni note in their stories, more needs to be done to work toward genuine reconciliation. “I think what a lot of non-Indigenous people fail to realize is—and I think this is especially happening with the Truth and Reconciliation Commission—they are sort of going through the motions of reconciliation, but their hearts aren’t really in it,” said alum Isabel Jackson (LL.B. ’98), who is a member of the Gitxsan First Nation and a co-founder of the Canadian Bar Association of BC’s Aboriginal Lawyers’ Forum. “That’s what the school should realize too for itself as an institution. ‘Are we just going through the motions?’ Having a program, hiring people, these are all things to do, but I think the impact or the effect it has depends on whether it’s in people’s hearts to do that.”

Allard Law dean Ngai Pindell says he hopes that reading and reflecting on the personal stories featured will help the law school community move toward genuine reconciliation. He notes: “This project provides an important account of the racism Indigenous law students have experienced in our law school and a space to reflect on the enduring challenges that we have to address. I’m deeply grateful to each of the contributors who have generously shared their stories. I also want to affirm our commitment to Indigenizing and decolonizing our curriculum and the law school experience.”

TRU LAW FACULTY NEWS

By Ryan Gauthier*

As summer turns to autumn, TRU Law also turns the page on another cohort of students, celebrating TRU Law’s 13th graduating class. On June 4, 2024, 121 students convocated from TRU Law, and are heading out to join the legal profession across Canada.

While TRU Law celebrates all of our students, we would like to particularly acknowledge the gold medal winner and class valedictorian. We would also like to acknowledge eight students who graduated with distinction: Dallas Boyer, Tara Christensen, Eric Cook, Prince Dhillon, Cailey Harris, Vanessa Locke, Amelia Neo and Conrad Parken.

TRU LAW GOLD MEDALIST

Vanessa Locke was awarded the Law Society of British Columbia gold medal. The gold medal is awarded to the top student at each law school. Before law school, Vanessa received a bachelor of arts degree in English with a minor in psychology from the University of Victoria. She also worked at two law firms as an administrative assistant and as an accounting clerk.

While at law school, Vanessa was a teaching assistant for Tort Law, acted as a student mentor and was the finance executive for the TRU Women in Law Society. Vanessa was a dean’s list recipient, received the dean’s course prizes in Tort Law and Advanced Legal Research and Writing, and received the Lawson Lundell LLP Award for Top Performing First Year Law Student, the Donich Entrepreneurial Scholarship in Law, and the Alvin and Lydia Grunert Scholarship. Following her 1L year, she worked at an employment

* Ryan Gauthier is an associate professor at the TRU Faculty of Law. He applied to study law at UBC and UVic beginning in fall 2006. After a few detours, he was finally sworn in as a member of the Law Society of British Columbia by Peter Gall, K.C., on May 30, 2024. You can’t accuse him of rushing things, that’s for sure.

law firm in Port Moody. Following her 2L year, she worked at Farris LLP, where she is returning to complete her articles.

TRU LAW VALEDICTORIAN

Mostafa Elfakhani was the class valedictorian. Mostafa joined TRU Law from Beirut, Lebanon. Prior to joining TRU Law, Mostafa received a bachelor of business administration degree, with a minor in theatre, from the American University of Beirut. Between his undergraduate degree and beginning studies at TRU Law, Mostafa taught improvisational theatre workshops to underprivileged school children in Beirut, and worked in e-commerce in Dubai, United Arab Emirates.

Mostafa has been deeply engaged with the TRU Law community. Mostafa worked as a teaching assistant in Property Law, worked at the TRU Community Legal Clinic and worked with Professor Craig Jones, K.C., on a BC Human Rights Tribunal case. Mostafa was also on the 2024 TRU Law BC Law Schools Moot team that won their competition. In addition, he somehow found time to help create the student-run satirical law newspaper The Gavel, volunteer with Pro Bono Students Canada by hosting a radio segment on the Canadian Charter of Rights and Freedoms, and receive the dean’s course prize in the Law & Film course. Following his 1L year, Mostafa worked at a full-service law firm in Vernon. Following his 2L year, he worked at Dolden Wallace Folick LLP, where he is returning to complete his articles.

TRU LAW CLASS OF 2014 REUNION

The TRU Law Class of 2014 held their 10-year reunion from May 17 to 19, 2024. This reunion is notable as the Class of 2014 is TRU Law’s inaugural class.

When the inaugural class started at TRU Law in 2011, these students were pioneers. TRU Law was the first law school to open in Canada in over three decades, and these TRU Law students did not have local upper-year students to learn from. Fortunately, students from the University of Calgary provided mentorship in those early days.

At the reunion, the TRU Law alumni reflected on the unique position they were in, to help build TRU Law from the ground up. This included establishing the Society of Law Students, various sports teams and tournaments, and affinity groups.

Since graduating in 2014, these alumni have gone on to careers both in and outside of the law. Taylor-Marie Young, a partner at Rush Ihas Hardwick LLP and TRU Law’s first gold medalist, was “heartened but not surprised to hear

how well everyone has thrived in the past decade. The inaugural class has always been and remains enthusiastic, enterprising and resilient—qualities that make them ideal for the legal profession and to serve the community.”

Meanwhile, James Gill, founder and partner at Apna Law, said that “[i]t was nothing short of amazing to see what my classmates have gone on to achieve both professionally and personally in the years since we first walked into the House of Learning in 2011. It reminded of me of all the tough times we went through but survived because we all had each other, as well as the students in the cohorts below us. I’m truly proud to have been a part of the program, and I continue to be excited for what lies ahead for TRU Law.”

WORKPLACE INVESTIGATIONS CONFERENCE HELD AT TRU LAW

TRU Law hosted a conference on workplace investigations in Canada on May 30 and 31, 2024. The conference brought together scholars, industry experts and practitioners. The conference attendees discussed issues such as privilege, social media issues, threshold assessments, party perspectives and matters of bias, among others.

The conference was put together by Assistant Professor Matt Malone in partnership with Fulton & Company LLP as well as the Association of Workplace Investigators.

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

Available at Kurbatoff Gallery, 2435 Granville St., Vancouver

Visit the website: kurbatoffgallery.com

THE ATTORNEY GENERAL’S PAGE

By the Honourable Niki Sharma, K.C.*

IMPROVING THE FAMILY LAW LANDSCAPE IN BRITISH COLUMBIA

Going through a divorce or separation is a difficult time for everyone involved. The justice system should be there to help—not make it harder. We are committed to making family law work better for families, and through the work we are undertaking, we hope to make an already difficult time a bit less stressful.

While there is a great deal of work in progress, I would like to highlight a few of the top actions we have taken that are helping to build a more equitable family justice system that works for more families in British Columbia. These investments work to improve the family legal framework, as well as provide several paths to accessible and responsive services, in particular:

•British Columbia’s network of Family Justice Centres and Justice Access Centres (“JACs”), and the early resolution services they provide, that bolster the use of non-adversarial approaches to family justice;

•an expansion of financial eligibility and improved intake capacity to ensure more people have timely access to family legal aid services; and

•the development of a multidisciplinary trauma-informed family law clinic to open later this year.

Modernization and Continuous Improvement

I have previously discussed the people-centred, multi-phased approach we are taking to the review of the Family Law Act, including pension and property division, Indigenous cultural property division and spousal support.

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

The Family Law Amendment Act (May 2023) addressed most phase-one issues, and implementation is in progress.

At the end of April 2024, we concluded public engagement on the current phase of Family Law Act topics, including:

•guardianship;

•parenting arrangements and contact;

•relocation of a child;

•child-centred decision-making;

•children’s views and parenting assessments and reports; and

•family violence and protection orders.

Thanks to all who spread the word or directly contributed; we received 42 written responses to the technical paper and 609 responses to the four topic-specific surveys. We are grateful to those who shared their experiences in dialogue sessions, which added important input and perspective from First Nations, Métis, new immigrants, people living with disability, and youth. Ministry staff are analyzing the input to identify next steps in this important work.

This past year, we worked with the Provincial Court of British Columbia to seek input on the family forms. That input led to redesigned forms that are clearer and more usable for the average person. Again, we thank all who participated through surveys and other feedback and prototyping opportunities.

Family Justice Services and Early Resolution

Across British Columbia, people have access to free family justice services through our network of 20 Family Justice Centres and five JACs. Through virtual and in-person services, people with family law matters can receive early access to information and referrals, screening for family violence and online parenting education courses. In addition, JACs offer facilitated negotiation of child and spousal support with specialized child support officers, as well as accredited and specially trained family justice counsellors that provide consensual dispute resolution services to help families reach resolution out of court on issues such as parenting arrangements, contact with a child, guardianship and support.

People with early access to information, referrals and services have a better understanding of their non-legal and legal issues and are more likely to reach resolution through consensual dispute resolution processes. They also have increased awareness of how to access and work with other service providers or parts of the system. Building on existing family justice services, the Provincial Court of British Columbia and the Ministry of Attorney General introduced the Early Resolution Process (“ERP”) for family law

matters. This process is currently available in Victoria and Surrey. In November 2024, it will be expanded to the Port Coquitlam Provincial Court family registry, and between April and November 2025, to Abbotsford, Chilliwack, New Westminster, North Vancouver, Pemberton, Richmond, Sechelt and Vancouver (Robson Square). Most families with family law matters in early resolution registries must complete services through a Family Justice Centre/JAC prior to filing an application about a family law matter (or a reply to an application) in Provincial Court. Results from the evaluation of the ERP in Victoria indicated overwhelming support of the model from clients and increased readiness for those who did proceed to court, resulting in a substantial reduction in new family court cases, appearances and overall demand on Provincial Court time related to family matters.

Family Legal Aid Eligibility and Family Legal Aid Clinic Model

To promote access to justice, government has made consistent investments in legal aid, increasing the annual Legal Aid BC (“LABC”) budget by over $70 million since 2016/17. In February 2024, we announced $29.1 million over three years to significantly expand financial eligibility for family legal aid services to more people, improve intake capacity and create a new multidisciplinary trauma-informed family law clinic. Our government, LABC and Centre for Family Equity (“CFE”) worked together to create these changes that will increase access to fast and free legal assistance for people.

Funded by government and delivered by LABC, the new multidisciplinary family law clinic will offer critical and extensive family law services to clients experiencing family violence. In addition to providing representation to help clients stabilize their family legal situation, the clinic will have paralegals and navigators to support clients by providing information and referrals to non-legal community-based support. Clinic services will be offered both in-person and virtually. To inform the development and implementation of the clinic, LABC is working closely with the CFE and other partners to engage community and the expertise of other organizations in the sector. The clinic is expected to begin offering services before the end of the year, and until then, lawyers with new clients who would be eligible for clinic services once in operation can access an additional 25 hours of legal aid services.

Fair Systems for All

The ministry is continuing to improve and develop systems that work for the diverse range of people and families who live in British Columbia. This ongoing work requires that we all continue to listen and adjust as the needs of individuals and families grow and change. It is meaningful work that has immense potential to improve the lives of all people living in British Columbia.

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

NOS DISPARUS

By R.C. Tino Bella

William Edmund Ireland, K.C.

Bill Ireland, K.C., was a remarkable and generous man. He passed peacefully at age 89 with his wife Heather and their children, David, Signy and Erik, at his side.

From the time of his call to the Manitoba bar in 1959 until 1970, Bill practised in his hometown of Winnipeg with Pitblado Hoskins. He was recruited by Derril Warren to join what was then Owen, Bird and Campbell, a small firm that had broken away from Campney Owen & Murphy. On June 28, 1970, Bill wrote an acceptance letter to Walter Owen, who would later become British Columbia’s Lieutenant Governor, saying, “I am excited by the challenge of this new association, and feel that I am taking a major step of long range consequence both to my family and myself.” Indeed it was. Bill was a member and anchor of Owen Bird until his retirement 48 years later, earning his Queen’s Counsel appointment in 1984.

As was the norm in the 1970s, Bill’s early practice involved not just solicitor’s work but also litigation. While John Bird was a nationally prominent maritime barrister, Bill recognized the need for a young dedicated litigator, and in 1971 was involved in bringing Barry Kirkham from Alberta. Barry became a legendary litigator and a pillar of Owen Bird for nearly 50 years until his retirement. In a 1971 letter to Barry about his arrival and call in British Columbia, Bill said:

I am sure we can scare up a gown and a vest. … On the occasion of my own call, I think I had borrowed each item from a different source and felt rather like a traditional bride, or a war surplus barrister.

Bill was impossibly gracious and well spoken. He had many loyal clients and handled their most pivotal transactions. One of those was the purchase

of Crown Zellerbach by Fletcher Challenge, one of the largest transactions the province had seen. The effort was complicated by having to work across 12 time zones and New Zealand office hours. This prompted Owen Bird to buy what was said to be one of the first fax machines in Vancouver. The volume of correspondence became so heavy that the New Zealand postal service came to believe that Owen Bird was the delivery point in Vancouver, sending correspondence for third parties to pick up from our office. Other loyal clients whose major transactions were handled by Bill included Empire Stevedoring and UPS Canada, which remain clients to this day.

Along the way, Bill volunteered time and talents to the community, including as chair of the BC Cancer Agency, where he was involved in creating new cancer centres around the province; as a supporter of the BC Dance Centre, raising over $9 million for the Scotiabank Dance Centre; as registrar of the Anglican Diocese of New Westminster; and as commodore of the Burrard Yacht Club. He held directorships with the Vancouver Neurological Centre, the Vancouver Oral Centre for Deaf Children, the Council of University Teaching Hospitals, the Vancouver Playhouse, the Vancouver Symphony Society, Science World, the West Vancouver Community Centre Service Society and the Princess Louisa International Society.

Bill became honorary colonel of the British Columbia Regiment, and was extraordinarily well read, especially on matters of history and the world wars. As honorary colonel, he ignored the “honorary” and participated in full military training exercises at the tender age of 75. He is proudly wearing his uniform on the cover of the Advocate’s September 2009 issue.

Bill mentored generations of lawyers on the professionalism and dedication it takes to be leaders in the profession. He spent thousands of hours helping young lawyers find their way within the firm, with clients and in the community. He demonstrated and taught junior lawyers (and senior ones) not only the law itself, but how to approach and creatively solve challenging issues and problems. He demonstrated an outstanding ability to bring people together and find solutions. By his example, he has also shown both his contemporaries and younger colleagues the importance of life balance, fitness and service outside of the office. He inspired us to be better lawyers, colleagues and friends; to prioritize family; and to become dedicated community volunteers.

For the legions of those who had the privilege of spending time with Bill, his human touch was particularly noteworthy. Someone would mention a trip or an interest, and he would show up to give them a book on the subject—usually the history of it. Shortly after his retirement, I was appointed Q.C., and he came by the office with his silks, saying he did not need those old things anymore, and pretending the gift was no big deal. Of course, it was

a very big deal and as much an honour as the appointment itself. The Ireland robes have been worn with pride and with both name labels ever since then.

Bill was a longtime and avid boater, skier and cyclist. Boating for Bill and Heather began on Lake of the Woods, and they brought a 26ft CrisCraft to Vancouver on a trailer, before joining a couple of Calgary lawyers in the purchase a 40ft Supercraft in 1973. Originally named by the Albertans Costa Lotte, Bill and Heather eventually became the owners and changed the name to the far more dignified Serena. With an understanding of how boats can be all-consuming, he developed a trick for getting hard-to-reach people on the phone: he would leave a message, saying it was their boat mechanic calling.

Boats were not Bill’s only beloved form of transportation. He adored trains and rode iconic ones all over the world. He loved European cars and, beginning with his first car, a Renault Dauphine, he owned a Renault Caravelle, a Citroen station wagon, a Peugeot and a Citroen SM with a Maserati engine (his absolute favourite) among other treasures.

Owen Bird became the first tenant of Bentall 3 in 1973. After 50 years there, it became the first tenant in Vancouver Centre II. As it happens, Bill came to tour the new offices and visit old colleagues, triggering for many of us a flood of great memories and a chance to enjoy his signature warmth and grace. It would turn out to be our last reunion with Bill. He passed away just a few days later.

Bill was one of the finest gentlemen to pass this way. He left an unforgettable mark on our profession, his firm, his family and his many friends.

Daniel W. Burnett, K.C.

Kathryn (Kathy) Sainty, K.C.

Many of us in the Vancouver legal community were heartbroken by the news of the death of Kathryn (Kathy) Sainty, K.C. Kathy died on January 27, 2024, of acute myeloid leukemia, which she had been bravely fighting for the previous three years.

There are people who come into your life who have a lasting imprint, as if they somehow changed your DNA, and whatever you do in life reaches back to their support, their words of wisdom, their guidance, their encouragement, their nudging and

ЖЖЖ

sometimes their just being silent and listening. Kathy was one of those people.

Kathy had a fascinating life, even before law school. Her last year of high school was spent at Pearson College near Victoria, and she was very much involved in supporting that institution.

After receiving her bachelor of arts degree from the University of Toronto, Kathy obtained her law degree from UBC in 1985, and articled at Davis & Co. She subsequently moved to Kane Shannon and Weiler, then in Surrey, where she practised family law and general litigation until 1997. She left Kane Shannon and Weiler to become legal counsel to the Chief Justice and Associate Chief Justice of the Supreme Court of British Columbia and in 2010, Kathy was appointed the Registrar of the Supreme Court, serving in that role until 2014. One of her more famous decisions as registrar was Hungerford Tomyn Lawrenson and Nichols v. Wilson, 2011 CSC 1440, where she determined that a contingency fee agreement upholding an award of $9 million in legal fees was neither unfair nor unreasonable in the circumstances. Despite the award being substantially reduced on appeal, her decision (and its appeals) are still taught in law schools. “The law of contract seemingly applies to everyone … except lawyers”, she once whimsically said.

After her time as registrar, Kathy obtained mediation training from Harvard Law School and pursued her passion for alternative dispute resolution. As a mediator, Kathy helped bring many disputes to a consensual resolution. She was appointed Queen’s Counsel in 2015 for her exemplary service to the legal profession. She also served as Chair of St. Jude’s Anglican Home, the Sorrento Centre and Charlford House Society for Women.

Kathy was a valued and trusted friend, colleague and mentor to many inside and outside of the legal profession. She was generous with her time and spent countless hours volunteering both in and outside of the legal profession, particularly in the support of women and female lawyers. Kathy served as chair of the Women Lawyers Forum in British Columbia and was involved with the BC Women Lawyers Forum executive in various capacities for eight years, after which she served as the national chair of the Women Lawyers Forum from 2018 to 2019.

She was known for her kindness, her dedication to her friends and her unfailing sense of humour, even through adversity. One of Kathy’s legacies was “paying it forward”. She always had time to mentor and talk to other lawyers and to shine a spotlight on others instead of herself. Indeed, in her last few days, many in the legal community came for visits to the hospital, and some even stayed the night to keep her company, particularly her close friend, Teresa Mitchell-Banks.

In 2000, she met and subsequently married the love of her life, Timo Sokkanen, who was by her side when she passed. Kathy and Timo loved to travel, particularly to the home they shared in Palm Desert. She loved the price of fine wine in California and dinners with friends. She also had a lifelong love of Pearson College. Kathy’s optimism, despite her illness, was an inspiration to many. Her positive impact on those around her, particularly in the legal profession, will be felt for many years to come and she will be deeply missed by those who knew her.

She was predeceased by her parents Geoffry and Iris Sainty. She is survived by her husband Timo; her sisters Wendy King (Stan), Barbara Sainty and Sue Matthews (Rick); her nieces Sarah, Heather (Cullam), Kirsten (Mark), Hayley (Dylan) and Maggie (Liam); her nephew Mikko; her grand-niece Daisy; and friends and family around the world.

Tony Wilson, K.C., and Kamaljit Lehal

Leonard H. Polsky

Len Polsky was many things to many people. He was a son, a spouse, a parent, a leader, a teacher, a mentor, a partner and a friend. Len will be missed by his family, his friends, his colleagues and those whose lives and careers were affected by his friendship and mentorship.

Len was born on June 27, 1944 in Brandon, Manitoba. He died on January 16, 2024 in Vancouver. A service was held at the Temple Sholom in Vancouver on January 19, 2024.

Len moved from Brandon to Vancouver in 1956 with his sister and his parents. He went to Magee High School. He obtained his bachelor of arts degree in 1966 and then his law degree in 1969 from the University of British Columbia. Len went on to obtain his LL.M. from the London School of Economics and Political Science in 1970.

He was called to the bar 1971 and became a registered Canadian trademark agent in 1972.

In 1970, Len articled at what was then Ray Wolfe Connell Lightbody & Reynolds. He practised there as an associate from 1971 to 1974 and was a

ЖЖЖ

partner at the successor firm of Ray Connell from 1974 to 1990. In 1990, he joined Ferguson Gifford (including its national law firm affiliation, Goodman Lapointe Ferguson) as a partner and practised at Ferguson Gifford until 1999. He then moved to Gowling Lafleur Henderson LLP (now Gowling WLG (Canada) LLP) and was a partner there from 1999 until his retirement in 2014.

In 1996, Len obtained a certificate in advanced commercial mediation. He then completed an International Special Fellowship Course for International Commercial Arbitrators at the Chartered Institute of Arbitrators in London, England in 1997.

Len had both a keen academic legal interest in the areas in which he practised and, at the same time, a very practical and effective approach to problem solving for his clients. For most of his professional life, Len’s focus was franchise and distribution law. Len was one of the foremost practitioners in this area, provincially, nationally and internationally, for virtually all of his professional career.

Len was a committed and engaging speaker at legal conferences, again provincially, nationally and internationally. Similarly, Len wrote or contributed to a startling number of legal articles and commentaries on franchise and distribution law, far too many to review here. He was also a member of a multitude of legal organizations, particularly those involving franchise, distribution and trademark law. In particular, Len was a member of and regularly attended Canadian, American and International Bar Association events. He was also an associate editor of The International Journal of Franchising Law, on the editorial board of the Franchise and Distribution Law Journal and a certified franchise executive of the International Franchise Association from 2010 to 2013.

Len was recognized by LexisNexis Martindale-Hubbell Peer Review Rating as AV Preeminent 5.0 (the highest rating available) from 1992 onward as well as receiving awards and recognition from many other guides, publications and organizations.

Len was also closely involved and contributed to the development of franchise legislation throughout Canada. He was a member of the Franchise Working Group of the Uniform Law Conference of Canada’s National Franchise Law Project Committee from 2002 to 2005. He was a member of an advisory committee of the British Columbia Law Institute that issued a report in 2014 recommending franchise legislation for British Columbia. He was a member of the legal and legislative affairs committee of the Canadian Franchise Association from 1991 until his retirement in 2014 and was chair of that committee from 1995 to 2001. He was also a member of the Legal and

Legislative Affairs Committee of the International Franchise Association from 1999 to 2014.

But Len was so much more than his numerous professional accomplishments. Although it could be said that Len was devoted to franchise law, this interest was far surpassed by his care and attention for family. Len married Carol, whom he had met while studying in England, in 1970 and they had two children: Jesse, who was born 1978, and Sarah, who was born in 1981. Eventually, grandchildren Mitchell and Emmy joined the family. The family home was in Vancouver, but Len and Carol and the family spent many wonderful times, both before and after Len retired, at their cottage on Mayne Island. This cottage was part of a cooperative and, over the years, Len helped guide that cooperative through many interesting times just as he helped guide the strata corporation after Len and Carol moved to a condominium located on the UBC endowment lands.

Unfortunately, Carol passed away from cancer on October 18, 2019, only a few years after Len had retired. Len provided much care for Carol during her illness.

Mayne Island was the environment that allowed Len’s family to connect, stay close, celebrate and continue traditions. Len and Carol hosted New Year’s Eve celebrations annually for more than 35 years at their place on Mayne Island, missing only one or two years due to the cabin being rebuilt and the pandemic. Len loved inviting his friends over to Mayne Island as well, and he had annual weekends where he and his friends would spend time enjoying the quiet calm, fresh air and a scotch or two. Len enjoyed going for walks on Mayne Island, but his real love was sitting in the leather recliner that his family bought for him with a good book and cup of tea.

Len was a supportive father and loved being a grandfather. For Len, there was nothing more important than family, and this was evident whenever he spoke about his children or grandkids. Len enjoyed attending recitals and graduations and would cheer his family on, celebrating their accomplishments. A month before he passed, Len was given the news that there was one more grandkid on the way as his daughter and her partner were expecting their son and had plans to move to Mayne Island to spend time in the place they loved and be closer to Len.

Len had many other interests and hobbies. Len was extremely well read, and that continued after retirement when he had more time to devote to literary pursuits, particularly his interest in espionage fiction. He was a huge Steely Dan fan. Len would go see Alan Doyle, formerly of Great Big Sea, whenever he had that chance and he often talked about seeing Paul Simon in Vancouver during the Graceland Tour. He attended the Vancouver Folk Festival for years with Carol and would meet up with other family members

and friends during the weekend concerts. Len also had a lifelong interest in photography and would seek out and attend events such as the Abbotsford Air Show and unique urban events to experiment using a newly collected lens which was destined to join his extensive Konika collection. He was a director and secretary of the World Festival of Photography Society.

Len was a devoted Vancouver Canucks fan following them closely, even through the many difficult years. He often brought his son or daughter to watch Canucks and BC Lions games. Both of his kids have fond memories of that.

He enjoyed good food and company, and was keen to organize Indian dinners for franchise lawyers in cities all over North America where franchise law conventions were held, watching with a whimsical eye as other lawyers sampled the extra spicy vindaloo. He was an engaging, clever companion and conversationalist with a great sense of humour. He enjoyed and was good at telling stories.

No description of Len’s life would be complete without a discussion of his passion for single malt scotch whiskey, featuring Len’s study and knowledge of scotch whiskey and scotch whiskey lore as well as his fabled scotch whiskey collection. Len made several trips with friends to Scotland over the years to visit the home of scotch whiskey, often touring several distilleries per day. He was a member of scotch whiskey clubs and wherever he traveled, business or pleasure, he would tirelessly pursue his scotch whiskey quest. As much as Len enjoyed scotch, he loved to share his knowledge and get other people interested too. He greatly enjoyed, in particular, the comradery of the Scotch Malt Whisky Society, and the discussions had during the various tasting events he attended with his friends and family.

Another very important part of Len’s life was his Jewish faith. Tradition, family and history were incredibly important to Len. For many years, he and his family hosted holiday celebrations, including the Jewish High Holidays. Len was open to analyzing his beliefs and having lively discussions with his family about how to continue observing tradition in a relevant and meaningful way.

One of Len’s greatest qualities was his empathy and understanding of other people. He had the patience and respect to listen to other people, including the junior lawyers who worked with him. Anyone who worked or dealt with Len could not help but be impressed with his calm but persuasive confidence and competence. He put those qualities to great use as a lawyer and as a mentor to others in the legal community, particularly those lawyers who owe their professional careers at the franchise bar to him. He put those qualities to even better use as a person and as a friend.

Tony Wilson, K.C., Peter Snell and Martin Palleson

John Laxton, K.C.

John Laxton, K.C., died on June 4, 2024 surrounded by his family.

John was a great family man and friend. He was also an outstanding lawyer.

He was born in London, England in 1932. His father had been a Welsh coal miner. John was proud of and never forgot his Welsh roots (even though he was a fierce Manchester United supporter).

John immigrated to Canada with his then-wife Valerie. They raised three talented daughters, all superbly educated and with fine occupations: Glenda, a leading Vancouver naturopath; Chandra, who worked with John at his real estate development company; and Jenna, who is in London, involved with marketing and finance as well as managing real estate for John and herself in England.

On arriving in Vancouver in 1957, John became a door-to-door vacuum cleaner salesman. He studied law at UBC and was called to the bar in 1960.

John articled at Shulman, Tupper and Company (“Schulman”), and continued there as a labour lawyer. Robert Gibbens, K.C., John’s longtime partner at the firm he founded after leaving Schulman, notes that John could not remember ever winning an injunction case during this period. Some readers may remember the infamous ex parte injunctions issued by the courts then.

According to Robert, John’s favourite case was a hilarious one involving the Georgia Straight newspaper and its editor-in-chief: R. v. Georgia Straight Publishing Ltd. and McLeod 1 The accused (John’s clients) were charged in connection with, among other things, publishing an allegedly obscene advertisement stating, “Young man wants to meet woman to 30 yrs. old for Muffdiving”. John hired a Dr. Bowers, an English professor at UBC, to untangle the knotty issues arising from the term “Muffdiving”. The accused were acquitted.

In the late 1970s, John transitioned to high-profile personal injury cases.

John was for many decades one of the most successful plaintiff lawyers in Canada. He fought in over 400 cases, including many appearances in the Supreme Court of Canada. Among John’s significant cases were Robitaille v. Vancouver Hockey Club, 2 which gave rise to a duty of care owed by a hockey club to a player in reacting reasonably to a player’s complaints and symptoms and providing appropriate medical care; Scarff v. Wilson, 3 recognizing

the right of a tax gross-up in personal injury cases; Just v. British Columbia, 4 defining the liability of the Crown for negligent operational acts as opposed to matters of policy under the rubric of the duty of care; and Unruh v. Webber5 and Zapf v. Muckalt, 6 which were hockey cases involving spinal cord injuries incurred from hits on the ice.

The last major case in which John was involved was Henry v. British Columbia, 7 involving the liability of the Crown and the appropriate damages for a man wrongly convicted of a crime.

As John’s obituary in The Vancouver Sun said, “[h]is advocacy with respect to damage awards for his clients raised the bar for damage awards across the country. He had a tireless work ethic, was committed to justice and was never afraid to take on especially difficult cases.” In addition to working extremely hard in pursuing his cases, he was a very skilled cross-examiner and a very imaginative counsel.

John was appointed Queen’s Counsel in 1980.

Over the years, John had numerous students and associates including, at Schulman, Tom Berger (later a justice of the B.C. Supreme Court) and, as a student, Don Brenner (later Chief Justice of the B.C. Supreme Court); Wally Oppal (later a justice of the B.C. Supreme Court and Court of Appeal, and Attorney General of British Columbia); Marion Gropper and Nate Smith (both justices of the B.C. Supreme Court); and many other senior counsel around Vancouver.

Being an outstanding lawyer was not John’s only activity. He was also a very successful developer and real estate owner. His obituary noted that “[h]is developments across downtown Vancouver, including the Flat Iron building, Harbourside Park and the Evergreen Building in Coal Harbour will forever stand as monuments to his legacy. His masterpiece is his property in West Vancouver, which he considered paradise on earth.”

The West Vancouver property he owned involved an Arthur Ericksondesigned main house, a beach house and three other neighbouring houses he purchased. They were all situated on an oceanfront cove beside Lighthouse Park. They had magnificent views from Bowen Island to the Strait of Georgia. John, being the generous friend he was, allowed our son Justen and his wife Natalie to have their wedding and celebration party on the stunning waterfront area at the property.

John also owned properties in Cabo, Mexico; London, England; and Ibiza, Spain.

As John’s obituary concludes, he “was a loving soulmate to his partner Shawn, a beloved brother to his sister Barbara, a good friend to his ex-wife Valerie, a devoted father to his three daughters and their partners: Chandra

(Jeanine), Glenda (Horst), and Jenna, an involved advocate in the lives of Shawn’s children Matt and Laura, and an inspirational role model to his beloved grandchildren Bryn, Tessa, Tate, Talia and Raphael. Papa you are a force of nature that we will carry with us always.”

Finally, if all these family, friend, lawyer, developer/real estate owner and investor activities were not enough for one mortal, John did try becoming a politician in 1969. He ran with Norm Levi in the Vancouver South byelection in support of NDP leader Tom Berger. I was asked to help lead the constituency’s campaign team’s canvassing and election day. John lost. He said he had had enough of electoral politics, although he was a lifelong supporter of the NDP.

John, we miss you.

1. (1970), 5 CCC 31 (Co Ct).

The Honourable Mike Harcourt, O.C.

ENDNOTES

2. (1981) 124 DLR (3d) 228 (BCCA), on appeal from 19 BCLR 158 (SC).

3. [1989] 2 SCR 776.

4. [1989] 2 SCR 1228.

5. [1994] 5 WWR 270 (BCCA).

6. (1996), [1997] 1 WWR 617 (BCCA).

7. Decisions in this case include 2016 BCSC 1038.

Paul & Company

WHEN CONSIDERING MEDIATION, EXPERIENCE COUNTS

With over 900 mediations and a career spanning four decades, David Paul, K.C. has a proven record of results resolving disputes in diverse legal areas:

F Family Law

F Civil Litigation/Personal Injury

F F Estate Disputes (including the estates of Indigenous Persons) Construction Disputes

Court delays and the high cost of litigation should be pointing you and your clients to a mediated settlement. David Paul can help parties resolve matters effectively in person or in an online forum, lowering costs for all parties, while still maintaining confidentiality.

F Over 36 years of courtroom experience

F 29 years of mediation experience

F Modern, secure technology emulating face to face communications at any location

F Competitive rates

F Mediation facilities available

NEW JUDGES

By R.C. Tino Bella

The Honourable Judge Sheryl Wagner

British Columbia gained an excellent lawyer and very fine human being as a new Provincial Court judge when Sheryl Wagner was appointed on March 4, 2024.

Sheryl is very much a self-made woman, and her life journey spans coast to coast. Her parents Margaret and Donald met in Saint John and had three daughters: Krista, Sheryl and Wendy. Margaret moved with her three girls to Alberta in the mid-1970s. Sheryl’s childhood and formal education were centred in Edmonton, where she graduated from the University of Alberta with a bachelor of commerce degree with distinction. She carried on to law school at the University of Alberta, getting on the dean’s list in 1991 and 1992 and graduating in 1993.

Sheryl has fond memories of her time at the University of Alberta and in Edmonton. While she made studying her focus, she spent her spare time with close friends at one of the many lakes surrounding Edmonton engaging in water sports or mountain biking in the river valley. She also worked at various odd jobs during university, including waitressing at a pizza restaurant. One of the friends she made at the pizza restaurant described himself as being at a low point in his life at this time and often unapproachable because of his bad mood. He said Sheryl was never affected by his mood or his behaviour and would walk up to him smiling and laughing while other staff would avoid him. He credits her for helping him get out of this low period and they are still dear friends to this day.

After law school, Sheryl heeded the westward call and moved to Vancouver for her articles. The only people she knew when she arrived were her law school friend Liz and her cousin Bobby. It took no time, however, for

Sheryl to accumulate a myriad of friends, many of whom she continues to see over dirty gin martinis, live music and theatre, dog walks and North Shore hikes.

In 1993, Sheryl articled at what was then Connell Lightbody. She then practised personal injury defence litigation at Stewart & Company. In 1999, Sheryl’s desire to expand her geographic horizons resulted in an 18-month stint in Sydney, Australia, where she mediated credit union disputes. Little did she know that the skills she honed as a mediator would stand her in such good stead in her current role: listening patiently and attentively to both sides, figuring out what really is at issue, and helping get the matter resolved to the satisfaction, or at least grudging acceptance, of all parties.

In the summer of 2000, Sheryl bade her Sydney friends adieu and returned to Vancouver where she acquired new friends and colleagues while practising insurance defence litigation at Whitelaw Twining, and then Guild Yule.

Feeling that she was not destined to devote her career to civil litigation, Sheryl made the leap to being Crown counsel, joining the Abbotsford Crown office in 2005. That was the start of a completely fresh chapter in Sheryl’s legal career. She recalls one day, very early in her Crown career, making submissions in court about a witness named “Mr. Linew”. A friendly colleague who happened to be in the courtroom at the time passed her a note telling her that “Witness LNU” denoted “last name unknown”. There was lots of humility on offer in those early days.

After getting the hang of criminal law in the Abbotsford Crown office, Sheryl moved to the Port Coquitlam office where she remained until 2012. Sheryl quickly distinguished herself as a fearless and intelligent advocate. She prosecuted every type of criminal file at both the Provincial Court and the Supreme Court and was particularly adept with vulnerable victims and complex points of law.

Sheryl then began the first of two secondments to what is currently titled the Organized and Major Crime unit (“OMC”), where she worked with teams prosecuting many serious criminal offences.

Sheryl’s job with the OMC involved more travel than she anticipated. None of it was particularly glamorous. Her first trial assignment after joining OMC was a kidnapping file where the rescued victim had subsequently been jailed in the United States. Sheryl was required to travel to sunny California, not for a beach getaway, but to sit inside a prison beside the incarcerated victim for close to two weeks as he testified by video.

In the middle of her second lengthy kidnapping trial, certain irregularities arose resulting in the immediate cessation of the trial so that Sheryl and

a colleague could obtain, review and categorize thousands of emails and text messages for disclosure purposes. They spent the entire summer holed up in an airless boardroom, decamping only to seek caffeine, stale sandwiches and a glimpse of the sun.

At the conclusion of that lengthy trial, Sheryl happily returned to the Fraser Region to work in the Surrey Crown office, which had just opened its new offices and had a much larger and airier boardroom.

To the delight of her colleagues in the OMC (and the sadness of her Fraser Region Crown colleagues), Sheryl returned to OMC in 2017 where she remained until her appointment to the bench.

As a Crown prosecutor, Sheryl was known for her legal knowledge, which was as vast as her patience, sound judgment, pragmatism and common sense. As well, colleagues from various Crown offices describe her as tough, determined, caring, diligent, an inspiration, a mentor, level-headed, hardworking, supportive, witty and fun. Double black diamond legal issues were Sheryl’s forte. Her ability to remain calm and collected in the face of the most stressful of situations is nothing short of remarkable. For those reasons, Sheryl was always a first-round draft pick when prosecution teams were being assembled for lengthy, high-profile and difficult cases.

While she has always loved the law and was a first-rate lawyer, Sheryl does not define herself by her profession. Her interests outside law are varied and of great import to her. She is a devoted supporter of live music, theatre and comedy, promoting talented artists whenever she can. She loves the Vancouver music scene, and can often be found at a table or pew or on a picnic blanket listening to a wide variety of music, although Sheryl has a special place in her heart for jazz and blues. Sheryl is a shy but exuberant singer, and some close Crown friends will tell you that Sheryl’s karaoke version of “Thank You” is much better than the original by Dido and that she does a mean rendition of “Gloria”. She might even serenade you, for a gin martini.

While music may be the shorthand of emotion, Sheryl is a great believer in the mental and physical health benefits and challenges of physical activity. She is an endurance athlete, having completed many marathons, half marathons, long road rides and fondos. One day, during a leisurely run with a friend, Sheryl declared, at the 45-minute mark, that she was now “warmed up” and ready to run.

Another of Sheryl’s favourite pastimes is travel. Her journeys have taken her through Europe, Sri Lanka, Egypt, Mexico, Turkey, Botswana and Zambia. Be sure to ask her about the walking safari and that raging elephant when you see her next.

Closer to home, Sheryl’s heart and soul belong to her four-legged, furcoated roommates. She did not hesitate to brave winter storms on the Coquihalla to drive her beloved black lab Joey for cancer treatment in Calgary. Between treatments, Joey was the de facto hotel dog, bringing out the best in all with his great love for all (women in particular!) and his signature whole-bum tail wag. Sheryl loves animals of all shapes and sizes and according to her, there is no such thing as too many animals.

Sheryl has enjoyed much success and good fortune in her life but she is no stranger to hard times, first as a child growing up with limited financial means and later losing her partner during the start of COVID-19. This was a major blow for Sheryl but she emerged stronger, wiser and more empathetic than ever, with ongoing strong relationships of mutual love, support and respect with her step-children Adamo, Aaron and Amanda and extended family Joanne, Mark and Ralph.

Anyone who appears before Judge Wagner, whether it be a first-time offender, a long-time offender, a civil litigant or counsel, will be afforded her respect and attention along with all the other qualities that have defined her as a marvelous lawyer, friend and family member.

The bar’s loss is the bench’s gain.

The Honourable Judge Karen Leung

Judges, like their robes, share a reassuring similarity (such as competence, integrity and humanity) and yet have bespoke characteristics arising from their circumstances, personalities, efforts and relationships. So, too, these introductions have a malleable template, and thus this introduction of Judge Karen Leung will follow form in its unique way.

1. Initial welcome and comment. On March 4, 2024, British Columbia continued its long and proud tradition of excellent judicial appointments, by adding Karen Leung to the Provincial Court bench, to sit at Robson Square (Vancouver). As will be noted below, Karen has all the technical qualities to

be a judge, a strong array of personal attributes and a history of having generally kept good company during her years in the profession.

2. Early life outline. Karen was born in a Year of the Dragon that puts her in Generation X. She joined mother Anna, father James and brother Gavin. Gavin and Karen were both born in Vancouver, but their parents and grandparents had emigrated from Hong Kong some years before—the paternal side to Vancouver and the maternal side to Toronto. After a short stay in Vancouver’s Strathcona neighbourhood, the family moved to Abbotsford, but spent considerable time with the paternal grandparents in the Strathcona and Chinatown areas.

Father James, an accountant, had grand but limited plans for Karen: she could be a doctor, dentist or lawyer. An aversion to blood quickly eliminated the first two options, so law remained the beacon for her activities and achievements. Karen graduated from the International Baccalaureate program at Sir Winston Churchill High School in Vancouver. In her Grade 11 year (1992), she met Vicki, who had recently emigrated from Singapore. Karen sensed that Vicki was a bit lost and quickly befriended her, and they still remain close friends. They went separate ways for university, Vicki to McGill, and Karen to UBC for psychology because of her interest in people: why they are, how they are and why they do what they do. Karen resisted the siren call of a career in counselling psychology, and maintained course by entering UVic law school, chosen substantially because of its robust coop program in order to obtain practical experience during her education.

3. Legal education and career. In her first term, starting September 1998, the CBABC mentorship program matched Karen with Greg Pun (now K.C.). He intermittently exerted some influence on her career choices in years to follow, and their friendship also continues to this day. By her own admission, Karen found her first year of law school to be a struggle and not entirely a positive experience. However, and perhaps foreshadowing her present subject-matter jurisdiction, during her law school years Karen was particularly drawn to professors Don Casswell (evidence), Gerry Ferguson (criminal) and Kim Hart (civil procedure and family).

Karen graduated in spring 2002 and joined Davis & Co. (now DLA Piper) for articles May 2002 to 2003 (after completing summer articles there the year before). This was a job she nearly pre-emptively sabotaged by spilling a full glass of water on the interview table in front of Bob Groves. Luckily for everyone (then and now), Bob saw through that faux pas, hired her anyway and became her articling principal. Inspired by her 1L course in legal research and writing, and influenced by Greg’s career as research lawyer at Alexander Holburn Beaudin & Lang, Karen sought to join the research

lawyers at Davis & Co., Monika Gehlen and Cyndi Millar. However, after her call to the bar in May 2003, with the prompt of Davis partner Kathy Denhoff (now Judge Denhoff), Karen moved to Lindsay Kenney LLP, where she worked with the late Frank Potts and Brad Martyniuk in varied civil litigation, including ICBC fraud cases. During her two years at Lindsay Kenney (September 2003 to December 2005) she also worked with Rob Hamilton and Jacqueline McQueen (both now Provincial Court judges).

In January 2006, Cyndi offered Karen the opportunity to return to Davis & Co. as a research lawyer. During Karen’s time at Davis, she enjoyed working alongside many of the lawyers there, including Maria Giardini, Diana Dorey, Malcolm Maclean and Emmet Duncan (all of whom became Provincial Court judges, although Maria is now a retired Provincial Court judge). Influenced again by Greg’s work as legal counsel at the Court of Appeal, in September 2013 Karen became legal counsel for the Provincial Court, joining Gene Jamieson, Q.C. (now Provincial Court judge), who was replaced in 2016 by current senior legal counsel Caroline Berkey, with whom Karen worked very closely until her appointment. Karen did a short stint of double-duty from September to December 2013, while she was teaching at the Capilano University School of Legal Studies. Karen was in the legal counsel position when she was appointed to the bench.

Karen had the expected involvement in professional organizations, notably being the legislative liaison and chair of the CBABC Legal Research section from 2006 to 2008. Over the years, she mentored numerous law students and young lawyers in practice and through the CBABC and the Federation of Asian Canadian Lawyers.

The foregoing career narrative must be leavened with a few important personal milestones. First, in December 2003 she met James through a mutual friend (although this may not have been their actual first meeting, since they had in fact been in first-year undergraduate math and economics classes at UBC together). Karen and James married in 2007. In 2010, they were joined by daughter Anika, and daughter Kaia completed the nuclear family in 2012.

The work of court legal counsel is not a high-profile position, but it has significant effect on the functioning of the court. For example, court legal counsel assist the Chief Judge and Associate Chief Judges in setting the practices and procedures of the court by drafting the various policies, practice directions and notices to the profession and the public, being involved with consultations for revisions to the rules of court, assisting with answering queries from the media, counsel, self-represented litigants and other justice system actors, and assisting with responses to complaints about the

judiciary. Attendance at the twice-yearly Provincial Court judges and judicial justices education programs kept Karen up to date on law and socialcultural context.

The COVID-19 pandemic instigated numerous changes in the procedures of the Provincial Court. These were originally promulgated in NP-19, now NP-28. Karen served the court by being knowledgeable, giving thorough practical advice, and being clear and succinct. The extensive efforts in this regard, and being surrounded by the strong leaders at the Office of the Chief Judge with their passion for and commitment to access to justice (beginning with former Chief Judge Tom Crabtree, Associate Chief Judge Nancy Phillips and Associate Chief Judge Gurmail Gill, and followed by Chief Judge Melissa Gillespie, Associate Chief Judge Susan Wishart and Associate Chief Judge Paul Dohm) inspired Karen with a new outlook on her career horizons. The necessary papers were submitted, and on March 4, 2024, Karen was added to the Provincial Court bench.

4. Some personal attributes. Karen’s professional achievements, outlined above, are only part of her qualifications, for her abundant personal qualities add much to her value as a judge. Some of these, sadly, will not get much play in the courtroom, like her ready laugh, which has been known to transform difficult moments in meetings. She is fun, spontaneous and adventurous, both in her travels and in her love of food. Her travels have taken her (and friends and family) to destinations including Mexico, Japan, China, Spain, France, England, Tofino, Hawaii, Argentina and Brazil, to name a few, and have displayed her skills as a planner and her habits of being organized, neat and punctual. In similar vein, her daughters and their schoolmates and teammates benefit from her skills in organizing and negotiating carpools.

She loves nature, scenery and the outdoors, although more from the comfort of a hotel than from a tent. Karen has swum with actual stingrays in the Caribbean, so lawyers and litigants should pose no threat to her (although her bravery in the water may not bear close scrutiny). She cares for her own health via yoga and high-intensity interval training classes, and supports her two daughters in their sports, especially soccer and volleyball.

She cares for and engages with the people around her. She is close with her family, including numerous collaterals. Her love of food has combined with her collegiality to the benefit of lawyers and judges at business meetings, by invitations to restaurants that she discovers. Karen is described as a competent cook but better baker (although “rice crispy treats” was cited in support, so the proposition may be more charitable than accurate).

Karen is a good listener, compassionate, empathetic, even-tempered and calm. She is ethical, fair, hard-working and highly respectful. She has exten-

sive procedural knowledge and significant research and writing skills. Karen gets to the point, concisely and efficiently. Her professional and personal experiences (not least being mother to two daughters) have prepared her for the challenges of being a decision maker: to want as much information as possible and being attuned to details, while being aware that one must decide despite imperfect knowledge, and to be firm once the decision is made. She is competent without being arrogant, knowledgeable without being pedantic, decisive without being rash, and humane without being weak.

5. Closing. Our judicial appointment system has made many excellent appointments over many years, and our judges have served the people of British Columbia well. Judge Karen Leung is a meritorious and welcome addition to the Provincial Court bench, who will serve us well. The loss to medicine and dentistry was, and will be, the law’s gain.

The Honourable Judge Mark Erina

The Honourable Judge Mark Erina was happily sworn in as a Provincial Court judge on January 2, 2024, assigned to serve as one of two resident judges in Prince Rupert. His appointment to the bench is the continuation of a lifelong, successful and dedicated career of public service. Mark’s desire to do good and respect “law and order” in our world began in rural Alberta as a park ranger, continued as a constable with the Royal Canadian Mounted Police, and eventually led to a transition as federal Crown counsel with the Public Prosecution Service of Canada (“PPSC”).

When recently asked whether he had any regrets about taking up his new position, Mark replied that he had only one: he wished he had applied earlier. I think most of us who know Mark would agree. It was certainly not lost on his family, friends and colleagues that the bench and Mark were meant for each other. His long-term partner and love of his life, Gloria, his former sister-in-law and Provincial Court judge, Shannon, and his ex-wife, former Crown counsel and current director of Vancouver Police Department’s police academy, Jennifer, were all more aware than Mark of where his future lay. So too were his colleagues: while they knew that his loss to the

ЖЖЖ

PPSC would be impactful, they were happy that the people of this province would be gaining a fair and compassionate jurist, who would respect the precedents of old while adeptly balancing the needs of the present, including the historically marginalized.

If an archeologist entered Mark’s former office, they would quickly begin to understand a lot about Mark—his interests, public and private, on display. A deeper dive through the papers and objects contained within would lead them to correctly conclude that the office’s occupant was part thinker, part teacher, part artist and part athlete, and above all, someone who valued his colleagues, his friends, his family and especially his memories.

White binders, neatly arranged, containing legal opinions, precedents and training material, lined his bookshelf. Some of the content dated back to his time as embedded legal counsel with the RCMP’s Integrated Money Enforcement Team. Most of the materials concerned tax evasion, bankruptcy and fraud, carefully curated from the time of his appointment as Team Leader of the Economic Crime Group (“ECG”) in 2012. Investigators and colleagues from all across Canada would seek Mark’s advice and input on all aspects of economic crime, including issues surrounding its investigation. Mark would often present on these subjects both inside and outside of the PPSC.

Yellow file folders both in and out of binders lay vertically on his shelf, desk and floor, representing charge approvals, files to be assigned to counsel and appeals, past and current, that he valuably contributed to over the years. While an excellent trial lawyer, Mark’s preference was to be in court less and think about the law more, which resulted in him spending the better part of a decade writing factums, reviewing appeal memos and appearing before the Court of Appeal.

Scattered among his papers were training materials from the Law Society and the PPSC on biases, intersectionality and Indigeneity, along with materials on the application of Gladue factors in criminal matters (especially relevant in his new role in Prince Rupert). Also included were materials on ethics, on which Mark shared his thoughts on panels during internal training. On his shelves, near the white binders, were his materials used as an instructor on written advocacy at the PPSC school for prosecutors. He was an advocate of the “less is more” approach in legal writing; if there were a better word to use in an argument or a factum, Mark certainly would find it.

Behind his desk, awkwardly arranged in various piles, were books on history and politics. They usually contained similar themes, such as humankind’s failure to learn lessons from the events of the past. Mark would often ponder their messages, especially about our inhumanity, and

consider their messages within the context of our own Canadian history, including on the mistreatment of Indigenous and other peoples.

Mark had a reputation among the criminal bar as being “firm, but fair”. He was gifted this description years ago from a prominent member of the criminal defence bar, and that philosophy carried through in his pragmatic approach to charge approval and file resolution. Right from the beginnings of his tenure as Crown counsel at 222 Main Street starting in 1998, defence counsel appreciated the hard work and open-mindedness that Mark brought to his files. His time in the RCMP also gave him a balanced perspective on what motivated people and what was just and fair personal and general deterrence.

The pencil sketches taped and pinned to the various surfaces in his office were works of time, patience and perfection. They were constructed generally from a collection of dots and lines, of various sizes and different shades, blended together into clear and beautiful images of mountains and landscapes, trees and bodies of water, and abandoned buildings. Taking up space on the upper walls of his office were his large, vibrant prints of his photographs of similar themes. His inspiration came from his love of hiking and paddling, alone or with friends, during his downtime.

His written work shared similar characteristics. Mark is a wordsmith, carefully choosing the tone, texture and tenor of his arguments, blending together words, phrases and concepts into persuasive, succinct, plain language advocacy. His dedication to factum writing was legendary, and he was a natural fit to teach the written advocacy course.

Haphazardly strewn in the office corner were his backpack and his clothes. Mark is ninety per cent function and ten per cent fashion. His jacket, less city and more mountain. The backpack, of course, was made to withstand a Thursday evening downpour in the local mountains during an early evening hike. Inside he often carried his kayaking accessories, including his GoPro camera. Not surprisingly, his personal phone was housed in a case that could withstand a roll of his kayak under water. From his time as a park ranger in Kananaskis Country in Alberta, Mark always preferred the presence of nature over the city. His holidays were often spent kayaking rapids at Surge Narrows and the waves of Tofino, rather than spending time in big cities (except for trips with his children).

On the upper shelf of his office was a collection of misfit items which shared a common theme: friends, colleagues and family. While people were not the subjects of his sketches and photographs, his colleagues, friends and family were very important to him. There were toys from his kids’ childhood, discoloured from the passage of time; paintings made by his mother,

long departed; regalia from his time as a constable with the RCMP; and a Brady Bunch-styled painting from his legal assistant, of his ECG colleagues chatting on MS Teams. These people were important to him and, not surprisingly, Mark was important to them.

Mark Andrew Erina was born in the early 1960s in Ottawa, but moved shortly thereafter first to Calgary and later to the small town of Edson, Alberta, a two-hour drive west on the Yellowhead from Edmonton. He is the younger of two children. His love of nature and the outdoors was a byproduct of his father’s retirement from the Canadian military and the family’s desire to live in a small town. He describes his time as a park ranger as being very meaningful to him, and in his later life, he looked to the outdoors as a way to recharge from the practice of law. He worked hard and exercised hard. During his time at the RCMP, he took part in competitive duathlons (run, bike, run); later, during his legal career, he shifted his focus to adventure kayaking and hiking.

Mark received a B.Sc. from the University of Alberta (Class of ’85). While working in Kananaskis Country, he spent time chatting and visiting with members of the local RCMP detachment, leading him to enlist in the RCMP shortly after his university graduation. After his stint at depot in Regina, he took his first posting in North Vancouver where he remained as a member for six years. Mark was more interested in the academic side of law and order and when the opportunity to go to UBC law school presented itself, he took it, graduating in 1995.

Mark split his articles between two small civil firms, Goldsmith and Harthshorne and Kerr, Mouzarakis, Redekop & Leinburd. His focus, however, was on criminal law, so he began his career as a new prosecutor with the federal Prosecution Service at 222 Main Street in Vancouver. He later moved to prosecuting economic crimes, first in-house with the RCMP’s Integrated Market Enforcement Team and later within the ECG of the (now) PPSC. In 2012, Mark became Team Leader of the ECG, remaining in that position until his current appointment.

It is not at all surprising that Mark’s first geographical choice to sit as a judge of the Provincial Court was in Prince Rupert, with all of its natural beauty. It was a choice made in concert with Gloria, who is, as we all are, very proud of Mark’s accomplishments. While it means being away from his children, who are now grown young men, and what seems like lifetime colleagues and friends, Mark is looking forward to ensuring that the public benefits from a just, restorative and compassionate bench. We applaud him in his illustrious career to date and have utmost confidence that he will “do good” and uphold “law and order”.

GEIGER LAW PRACTICE SALES

BRITISH COLUMBIA PRACTICES

• SURREY FAMILY LAW FIRM – NEW ON MARKET

Multi-lawyer Family Law firm with offices in Surrey high net-worth area.

Excellent opportunity to add or grow a family law practice. The firm has been in operation for 35 years and is highly profitable. 5 year annual revenues range between $2 - $3.3 million with continued growth expectations.

There are currently 5 lawyers and 7 staff in a team environment. The premises can accommodate an additional 4-5 lawyers and 3-4 staff so the office could function as a satellite office to an expanding Lower Mainland firm, for example.

Please note that all inquiries into this practice should come through Ms. Geiger (geiger@lawyer.com)

• NEW ON MARKET – LOWER MAINLAND

Highly profitable small firm employing multiple lawyers in litigation and solicitor practices with growing profits of over $1.5m annually; transferable assets and brand, not linked to partners’ identities. • DOWNTOWN VANCOUVER FAMILY LAW AND SOLICITOR’S PRACTICE •

CLASSIFIED THE ADVOCATE

SURREY CENTER MALL PRACTICE FOR SALE

Busy real estate, desk order divorce, wills and estates practice for sale, with mentoring and bank financing options for entrepreneurial solicitor/litigator. Three lawyer offices with 5 staff stations. Free parking and adjacent to Skytrain and bus station.

Contact: info@surreylawoffice.com

teach Supreme Court family rules and procedures to your legal assistants, paralegals, articling students & lawyers! In-office Power Point Presentations along with supporting materials, and approved for CPD credits!

PROFESSIONAL OFFICE SPACE AVAILABLE WITH OTHER LAWYERS DOWNTOWN SPECTACULAR VIEW…SPECTACULAR SPACE

SERVICES AVAILABLE

• Offices tastefully furnished

• Receptionist

• Xerox, Postage, Supplies

• Secretarial station

• Full boardroom with Balcony

• Telephone system with separate telephone number

• Staff lunchroom

• Separate identity and telephone answering

IF YOU ARE INTERESTED IN THIS UNIQUE OPPORTUNITY CALL (604) 315-4377 (Office Manager)

PROVIDING CIVIL ENFORCEMENT SERVICES FOR OVER 50 YEARS

• Filing your Court Order at the Court House

• Executing all Court Orders

© Writs/Orders of Seizure and Sale, Writs of Possession, Forced Entries, Writs of Delivery, Sale of Land, Ship Arrests

• As well as all other forms of Commercial Civil Enforcement

© Rent Distresses and Terminations, Warehousers Lien, GSA’s and PPSA’s

ЖЖЖ

LEGAL ANECDOTES AND MISCELLANEA

By Ludmile B. Herbst, K.C.*

GAVELS IN THE COURTROOM

“A gavel is a small wooden hammer that the person in charge of a law court, an auction, or a meeting bangs on a table to get people’s attention. ‘Let’s take a ten-minute recess’, the judge said, pounding his gavel.”1

Of course, gavels are not found in Canadian courts, nor are they part of British courtroom tradition. They are associated with U.S. courts, as well as certain international tribunals that adopted U.S. practices. How gavels came to be an “American accoutrement”2—and much about gavels otherwise—is somewhat unclear.

Gavels most likely found their way into U.S. courts as part of that country’s more general adoption of Masonic symbolism at the time its institutions were being shaped. Masonic membership was “common throughout the colonies and especially among the Revolutionary generation that founded the United States”.3 Gavels were among the “tools of working stone cutters” adopted in Masonic ritual: “[a] master Mason holding the gavel at a meeting carries the symbol of his authority as the presiding member of the Lodge.”4 When Masons such as George Washington and John Marshall (a “Founding Father” and ultimately the fourth chief justice of the United States) searched for “forms and symbols” that could be used in the new republic, they turned to what they knew.5

Correspondingly, the cornerstones of both the White House and U.S. Capitol were laid in Masonic ceremonies.6 Forms of gavel were adopted in both the U.S. Senate and House of Representatives. A gavel made of a single elephant’s tooth (with no handle and an hourglass shape) was used to call the first U.S. Senate to order in 1789 and used until 1954. In 1954, then vice president Richard Nixon broke the old gavel while presiding over a heated,

* Ludmila B. Herbst, K.C., is the assistant editor of the Advocate. The tune “If I Had A Hammer” rang through her head while writing this piece.

late-night Senate debate over nuclear energy. India graciously supplied a replacement ivory gavel, which was subsequently replaced by a still-used gavel made of white marble.7 Successive “prosaic” wooden gavels, most made in the House carpenter’s shop, have been used in the House of Representatives.8 Placement of gavels in U.S. courts may be simply another example of this Masonic tradition.

This said, the gavels found in U.S. courtrooms may harken back to even earlier—indeed, even mythical—times. One version that should impress Marvel fans is that the gavel represents the hammer of the Norse god Thor, “who was a patron of justice”; the gavel is “symbolic of Thor’s might and authority”.9 (Anxious to make clear that gavels are not part of British tradition, one British observer duly sniffed, “[o]ur judges are not mini-Thors.”10)

Putting forward a rival theory, the Florida Supreme Court Historical Society says “[t]he use of a gavel during court proceedings is an ancient custom that dates to the time in English history when hammers or mallets were weapons of war.”11

Despite the dramatic antecedents explored above, today’s judges are obviously not supposed to hit anyone with their gavels.12 While that point seems uncontested, however, the actual role that gavels are to play in U.S. courtrooms is, for the most part, unclear—other than in the case of the U.S. Supreme Court and courts following its model. In those appellate contexts, at the sound of the gavel (wielded by the marshal or deputy marshal), those present in the courtroom are to rise and remain standing until the justices come in and are seated.13

Popular belief seems to be that in trial courts, judges themselves bang on their gavels frequently during the course of proceedings to maintain order. Notes one (inadvertently cheeky) purveyor of robes and “judge accessories”: “When judges bang their gavel or sit on a high chair, it reminds people that they must listen and respect the rules of the court.”14 A purveyor specifically of gavels, called “Justice Gavels”, notes sympathetically: Life inside the courtroom is hard enough as it is. If you’re a judge, you encounter the clamor and discord brought by agitated defendants, prosecutors and witnesses. Arguments and dissent can get heated, and sometimes, these mixed emotions can reach their peak where everyone starts talking. You know better than to delve knee deep into the chaos. There’s only one thing left to do – bang your wooden gavel for as many times as you need until the room falls back into order.15

However, in fact, “it is difficult to find an American attorney who has actually seen a gavel being used in court.”16 In most U.S. courtrooms, gavels seem to be silent for the most part, even if they are present in the courtroom at all. They may not be: some judges do not even own a gavel, and if

they do, they may keep it at home.17 No codes of conduct seem to exist for when gavels may or should be used in U.S. courtrooms.

Given how rarely gavels are struck in practice, some observers tend to be quite dismissive about gavels’ utility. One commentator who surveyed San Diego judges about why they have gavels (apart from being gifted them) said most “were stumped for a real answer. Gavels make handy paperweights, and you could crack walnuts with them, a few suggest.” The author also noted, helpfully, that “gavels might come in handy to make emergency structural repairs” to the courthouse where a judge might be sitting.18

This said, a competing and more serious view is “not that the gavel is outmoded”, but rather, “it has been internalized”: from this perspective, the gavel’s physical silence is a mark of success, with its effect no longer depending on being struck repeatedly.19

The possibility that gavels’ influence on litigants is chiefly symbolic may explain the fact some gavels are located outdoors—that is, visible en route to the courthouse, even if not necessarily physically brandished during proceedings. The world’s largest (wooden) gavel is found on the porch of the Clark County Courthouse in Marshall, Illinois, where Abraham Lincoln defended a case in 1850. It is 4.8 meters long and was unveiled in 2018.20 There is also a sculpture called Gavel (which, indeed, looks like a gavel, but made of stainless steel) installed in a water feature outside the Ohio Judicial Center (where the Supreme Court of Ohio sits) in 2008. It is 9.1 meters long.21

Judges do, of course, have means other than gavels to maintain order in their courtrooms. The B.C. Provincial Court notes that Canadian judges “control court proceedings with their voices and demeanour”.22 A judge of the High Court of Australia once noted, “Why do you need to be hammering away on the bench? A few kindly or strong words, a few frosty glares, and the whole place falls into the right situation.”23 A U.S. judge acknowledged— in good American fashion—that “his bailiff’s sidearm” is “more effective at keeping order in the courtroom than any gavel”. 24 Indeed, even John Adams, the vice president who initiated use of the gavel in the U.S. Senate, apparently preferred, as a practical matter, to get attention by tapping his pencil on a water glass.25

Are you nonetheless looking for a gavel as a gift or for yourself? One gallery in New York specializes in vintage and antique gavels, for sale or for rental as props.26 Amazon also has a wide selection of new gavels, including ones that boast ergonomic handles, bring “an unparalleled level of elegance and gravitas to any professional setting”, produce “a clear loud sound when hammered”, or are “ideal for [any] environment where a bold and authoritative presence is essential”.27

In addition, NBC sells a Law & Order mini-gavel set with sound (the “dundun” sound from between scenes of the show plays when the gavel strikes its base).28 Mike Post, the composer of the Law & Order theme, who is also responsible for the “dun-dun”, describes the “dun-dun” as a synthesized combination of sounds including “various drums, the sound of a hammer hitting an anvil, a jail door being slammed shut, and the sound of 500 Japanese men stamping their feet on a wooden floor at a ‘monstrous Kabuki event.’”29 As is entirely consistent with the ambiguity surrounding the history and use of gavels, Post does not mention the banging of a gavel among the sounds he synthesized. This said, making the leap often made when featuring gavels in popular entertainment, The New York Times has described the “dun dun” as evocative of “a judge double-pumping to gavel a courtroom to order”—as well as “condens[ing] into the length of a heartbeat” “all the apprehensions and tensions of an urban night”.30

ENDNOTES

1.“Gavel”, online: <www.collinsdictionary.com/dic tionary/english/gavel> [emphasis in original].

2.Keith Bracken & Monique W Dull, British Columbia Courtroom Procedure, 2d ed (Lexis), Ch. 4(H).

3.Stephen C O’Neill, “Of Gavels and Maces in the Modern Court” (2001) 7 Mass Legal Hist 55 at 56; James EK Parker, “Gavel”, in Jessie Hohmann & Daniel Joyce, ed, International Law’s Objects (2018), 214 at 220, online: <academic.oup.com/book/ 7963/chapter/153286604>.

4.O’Neill, supra note 3 at 56.

5. Ibid

6.Chris Ruli, “Freemasonry and the White House”, online: <www.whitehousehistory.org/freemasonryand-the-white-house>.

7.“Gavel”, Wikipedia, online: <en.wikipedia.org/ wiki/Gavel>; Peter Grier, “Where Did the House and Senate’s Big Gavels Come From?” (10 January 2011), The Christian Science Monitor, online: <www.csmonitor.com/USA/Politics/Decoder/2011 /0110/Where-did-House-and-Senate-s-big-gavelscome-from>; “The Senate’s New Gavel: November 17, 1954”, online: <www.senate.gov/about/tradi tions -symbols/senate-gavel.htm>; “Traditions of the United States Senate”, Wikipedia, online: <en. wikipedia.org/wiki/Traditions_of_the_United_States _Senate>.

8.Grier, supra note 7.

9.Judge Mark McCabe, “Some Courtroom Traditions and Legal History”, Tri-County Times (9 October 2019), online: <www.tctimes.com/columnists/ask_ the_judge/some-courtroom-traditions-and-legalhistory/article_0a801872-ea0b-11e9-96e0-7b0 351ecee28.html>; “Emblems of Law and Justice”, The Law Student (15 March 1928) 10 at 15. Reflecting a potential interplay between theories of gavels’ origins, the Canadian Masonic Supply Shop itself sells a “Thor style” gavel—see online: <masonic

supply.ca/thor-style-gavel-walnut-wood/>. Although named after a different Thor and not found in a courtroom, the opportunity is also too good not to mention “Thor’s gavel”, which has been wielded by successive presidents of the United Nations General Assembly. The gavel is named after the Icelandic ambassador who, in 1952, presented the first gavel of a series (that first one was used until banged too hard in response to Nikita Krushchev’s banging of his shoe in the assembly, in 1960). “Stylistically, ‘Thor’s gavel’ does not look much like an instrument of peace, making one think more perhaps, of the Viking era of pillage and conquest. But as history shows, even in the world’s parliament at UN Headquarters in New York, from time to time, a bit of oldfashioned Viking force is needed, to bring world leaders to heel.” See “Thor’s Gavel”, Wikipedia, online: <en.wikipedia.org/wiki/Thor%27s_gavel>; “The Thor’s Hammer that Broke When [Krushchev] Banged His Shoe”, online: <unric.org/en/the-thorshammer-that-broke-when-kruschchev-banged-hisshoe/>.

10.Paul Magrath, “Gavel Bashing” (21 November 2011), online: <www.iclr.co.uk/blog/archive/ gavel-bashing/> [emphasis added]. There is one caveat to this: apparently, somewhat akin to the practice in the U.S. Supreme Court, in the Inner London Crown Court, clerks do hit a gavel to announce judges’ arrival in the courtroom: “Gavel Use Officially Sanctioned at Inner London Crown Court”, online: <inappropriategavels.tumblr.com/post/105 266422796/gavel-use-officially-sanctioned-atinner-london>.

11.“History of the Passing of the Gavel in Florida”, online: <flcourthistory.org/History-of-Passing-ofGavel>.

12.See “Judge’s Courtroom Gavel, Wood Round Head & Handle Detailed Workmanship”, online: <www.

roadshowcollectibles.ca/products/judges-courtroom-gavel-wood-round-head-and-handle-beauti fully-made-detailed-workmanship-tracing-wherethe-gavel-came-from-is-difficult-because-it-doesnot-have-a-specific-date-or-place>; “Gavel and Robe: Symbols of Authority in the Courtroom”, online: <judicialshop.com/blogs/news/gavel-androbe-symbols-of-authority-in-the-courtroom>.

13.“The Court and Its Procedures”, online: <www. supremecourt.gov/about/procedures.aspx>; “How the Court Works – Oral Argument”, online: <supreme courthistory.org/how-the-court-works/oralargument/>.

14.“Gavel and Robe”, supra note 12.

15.Online: <www.amazon.com/Justice-Gavels-Premium -Gavel-Sound/dp/B06XD18FWH>.

16. SL Walmsley, “Let’s Stamp Out the Gavel” (Autumn/Winter 1994) Bar News 42.

17.Matthew Alice, “Judges and Their Gavels: 30 San Diego Judges Say They Never Use ’Em”, San Diego Reader (24 February 1994), online: <www.sandie goreader.com/news/1994/feb/24/straightjudges-and-their-gavels>.

18. Ibid

19.Parker, supra note 3 at 223.

20.See online: <www.roadsideamerica.com/tip/615 29>.

21.“Gavel (sculpture)”, Wikipedia, online: <en.wiki pedia.org/wiki/Gavel_(sculpture)>.

22.“Do Canadian Judges Use Gavels?”, online: <www. provincialcourt.bc.ca/enews/enews_08-05-2018>.

23.Justice Michael Kirby, as quoted in “Working Hardly: Random Facts about the Gavel” (11 September 2012), Survive Law, online: <www.survivelaw.com/ post/941-working-hardly-random-facts-about-thegavel>.

24.Alice, supra note 17.

25.“The Senate’s New Gavel”, supra note 7.

26.“George Glazer Gallery”, online: <www.george glazer.com/wpmain/about-gavels/>.

27.See online: <www.amazon.com/Wooden-Handcrafted-Gavel-Lawyer-Auction/dp/B01EU77GZA>; <www.amazon.com/Omniwoodz-PremiumWooden-Gavel-Block/dp/B0CQTKF2HZ>

28.Online: <www.nbc.store.com/products/law-ordermini-gavel-set-with-sound>.

29.Jessica White, “Everything to Know About the Law & Order Theme Song” (20 August 2023), online: <www.nbc.com/nbc-insider/law-order-themesong>.

30.Neil Genzlinger, “Have You Heard This?”, online: <www.nytimes.com/interactive/2017/08/13/arts/ law-and-order-sound.html>.

MARY MARGARET MACKINNON, K.C.

NORTH SHORE NOTARIAL PRACTISE FOR SALE AN EXCELLENT OPPORTUNITY

Starting a legal practise, from scratch, is a daunting challenge. Purchasing an existing Notarial practise, while much less daunting, is a secure investment. You’ve got to spend money to make money.

My notary practice, has successfully served West Vancouver and other North Shore residents, for over 19 years.

With only four BC Notaries, offering notary services in West Vancouver, this is an excellent opportunity for you, whether you are expanding your current practice, or starting as a new lawyer in British Columbia.

If you’re interested in purchasing a well-established notarial practise, consider the North Shore. I can be reached at 604-921-8230 (Ph) or by email at katemanvell@gmail.com

CR Lawyers LLP is a well-established full-service law firm with offices located in four Vancouver Island communities in downtown Campbell River, Comox, Courtenay and Ucluelet.

We are looking for a litigator and a solicitor of any experience level who wants to join a busy practice and live in a vibrant coastal community. A life outside of practice matters. We want our associates to have the opportunity to succeed professionally and have time to enjoy their interests. We offer our associates a positive and supportive working environment, a competitive salary & vacation package, and a benefits program that includes health & dental benefits.

Please submit your resume today.

FROM OUR BACK PAGES

By R.C. Tino Bel

As issues continue to swirl regarding access to justice and appropriate forms of dispute resolution, read Gordon B. Sloan’s 1991 exploration of “alternative” and “enhanced” varieties in “Dispute Resolution: A Skill for Lawyers, A Service for Clients” (1991) 49 Advocate 95.

DISPUTE RESOLUTION: A SKILL FOR LAWYERS, A SERVICE FOR CLIENTS*

By Gordon B. Sloan

Lawyers have begun to show a substantial interest in Alternative Dispute Resolution (“ADR”). Virtually every association of lawyers in North America has a standing committee, special task force or subsection charged with researching and understanding the brave new world of the ADR phenomenon. Hardly a lawyer in the country could claim to lack curiosity about conflict resolution and alternatives to conventional methods of resolving disputes. Yet, as a profession, we are wary to embrace a renovated technology for resolving disputes.

We are following in a history of ADR development which began, in large measure, in the United States. There, the genesis of ADR was associated with grassroots movements interested in local initiatives in community jus-

* (1991) 48 Advocate 95.

tice. Some were religious or politically based. Some were countercultural. Some were grounded in the anti-nuclear movement. All were to some extent anti-establishmentarian. Much of what developed through these experiments was directed against (and was easily distinguished from) conventional legal approaches to dispute resolution.

As time passed, the models of conflict resolution which emerged became distinctly more mainstream and increasingly became the domain of the social sciences. Notably, mediation, conciliation, and principled negotiation were among these. Here and there, a maverick lawyer could be identified.

In the last five years or so, the picture has changed. ADR has been embraced in some American states as a politically palatable solution for the legal, administrative and social ills of clogged courts, litigant expense and neighbourhood enmity. ADR methods are being employed in some of the most procedurally cumbersome arenas such as public policy conflicts, international commercial disputes, native land claim negotiations, and environmental challenges. ADR has gained respect.

In Canada the picture is somewhat different. ADR did not develop in reaction to law. On the contrary, its development has tended to parallel genuine misgivings on the part of the bench and bar about access to and administration of justice. Yet, although some of its methods are advocated by the legal profession, ADR is still not entirely embraced by practitioners. Meanwhile, non-lawyer professionals are experimenting with ways in which models of ADR can assist in their practices. Lawyers are understandably less inclined to risk reputation and pocketbook on such unproven models. Yet the public is slowly becoming aware that alternatives exist to what lawyers usually offer. There is real potential for lawyers as a profession to be left behind.

As a result, lawyers are more emphatically on the outside looking in at ADR. Thus, in the Canadian experience with ADR, it is the legal profession which may be most effective in locking itself out of crafting imaginative alternatives to its normal dispute resolution practice.

To reverse this, we need to take a new look at ourselves and at what we do as lawyers. Lawyers have always been accomplished in advising clients about the law. For millennia, society has seen fit to instruct us. More important, it has relied upon us for counsel and wisdom. We have been quite properly regarded as experts in the law and how to present a client’s cause before the courts. In short, in our milieu, we are expert dispute resolution practitioners.

But for today’s society that may not be enough. There is an almost palpable desire among clients to find a “better way” to address their conflicts:

“We do have to accept that our methods of resolving major disputes and conflicts have been crude and primative, inadequate and expensive, dangerous and destructive. The increasing complexity of the world and the increasing power of our weaponry force us to rethink our conflict solving methods. Even if we were to operate our traditional methods with the best will in the world and with the highest available intelligence, these methods would not suffice. There is a need for a fundamental shift in our thinking approach to the resolution of conflicts.” (from Conflicts: A Better Way to Resolve Them, Edward DeBono, 1985)

Some have not been as prepared to accept as humankind’s task, the responsibility for the needed “fundamental shift.” For many, particularly in the other helping professions, lawyers and the conventional practice of law are at the heart of the problem:

“Lawyers are overutilized in family matters. If the financial issues are complex, they should be referred to an accountant. If the financial issues are simple, then a mediator can handle them at significantly less cost. It is patently obvious that our society can no longer afford the short-term and long-term social and economic costs of couples locked in combat for extended periods of time. It is tearing at our social fabric.” (from in The Best Interests of the Family, Richard M. Haney, M.Ed., in The Social Worker Magazine, Volume 57 (2) Summer, 1989)

Does the “fundamental shift” in approach mean simply that the legal profession needs to embrace “Alternative” Dispute Resolution? Partly. But the new and needed emphasis on dispute resolution should not merely be “alternative”. Dispute resolution is what we do best. ADR should not be seen as an assault on the antique and tested tradition of adversarial representation of one’s client. Instead, we should see alternatives to the litigation tradition as effective additions to an otherwise limited dispute resolution toolchest. If there is a lesson for lawyers to learn from the ADR movement, it is that we are deficient in some of the theory and skills needed to offer our clients a full range of dispute resolution options. What we need as a dispute resolution profession is an expansion of what we already do. We need “enhanced” dispute resolution.

One of the problems with new dispute resolution methods is that the profession is confused about what they are:

“Most people, lawyers included, simply are not familiar with the different processes and therefore tend to lump nearly all non-litigious methods into one large ADR blob. Even people who have a passing acquaintance with alternatives tend to confuse them in speech and writing, in part because processes that are analytically distinct can, in particular cases, work almost identically in practice.” (S. Goldberg, E. Green, F. Sander; Dispute Resolution).

Furthermore, even among those cognizant with various negotiation or mediation theories and practices, there is debate about the extent to which

they can be integrated into conventional law practice efficiently and cost effectively.

Essentially, enhanced dispute resolution skills increase the collaborative components of problem solving which a lawyer might otherwise miss. To add cooperative and collaborative skills to the repertoire of adversarial legal tools available to practitioners could, over the long term, sharply change the effectiveness of the profession. It also cannot help but improve public perception of the profession and the effectiveness of the legal process. Along the way, it is not unreasonable to expect that the use of ADR skills by the profession will increase pre-trial and pre-action resolution.

The Continuing Legal Education Society has developed a curriculum to assist in addressing the knowledge and skills training lawyers will need to enhance their dispute resolution technology. Over two hundred B.C. lawyers have taken courses in the curriculum since its inception in September, 1989. The curriculum focuses upon the four major dispute resolution tracks of negotiation, mediation, litigation, and arbitration. Specific implementation of the litigation and arbitration tracks is being delayed as CLE already offers a selection of courses in these two areas. Negotiation and mediation, on the other hand, are being emphasized through nine courses, repeated at intervals throughout the year. Some courses are recommended as prerequisites for others, so lawyers can move through the curriculum in a gradual and sequenced way, building on experience as they go.

As more lawyers become acquainted with the skills and processes of mediation and integrated negotiation, one result is likely to be the emergence of dispute resolution departments in law firms. This is already the case in many larger firms in the U.S. Such departments are able to pool the procedural and substantive resources of lawyers from a number of practice areas to tackle problems which may be appropriate to collaborative solutions. Disputes among co-developers, intergovernmental disputes, jurisdictional disagreements, land use problems are all examples of these.

Enhanced Dispute Resolution for lawyers requires new skills, and knowledge while building upon our primacy in litigation. It also will require a shift in some of the approaches to dispute with which we have come to be familiar. Some practitioners will find they have a temperament well suited to helping clients and other lawyers see the advantages of using new models for resolving contentious issues. Others will find any change in approach uncomfortable. For those who persist, increased experience with satisfactory outcomes to conflict will greatly expand the breadth of practice opportunities. In the long run, clients will be better served by being able to rely upon a full repertoire of dispute resolution alternatives.

“Neighbourhood Watch” by Kathy Traeger, acrylic on canvas, 48'' x 36'' Available at Kurbatoff Gallery, 2435 Granville St., Vancouver

Visit the website: kurbatoffgallery.com

Hunter Litigation Chambers is pleased to announce that the Hon. Russell Brown and the Hon. John J.L. Hunter, K.C. have joined the firm, both as Associate Counsel.

Mr. Brown was formerly counsel in British Columbia and Alberta, and Professor and Associate Dean of Law at the University of Alberta before serving for over 10 years on the Alberta Court of Queen’s Bench, the Alberta Court of Appeal and the Supreme Court of Canada. At the firm he will provide legal counsel and opinions in complex matters of private and public law, while working as a commercial arbitrator (domestic and international) and mediator.

One of the founders of the firm, Mr. Hunter practised commercial litigation and public law for forty years before his appointment to the Court of Appeal for British Columbia in 2017. In his new capacity, Mr. Hunter will provide support for the firm and its clients on complex trial and appellate matters, including both legal opinions and general advice. He will also work as a commercial arbitrator and mediator.

Both Mr. Brown and Mr. Hunter will support the full range of appellate services at the firm, and will be available to the profession to conduct mock appeals and factum review.

Hunter Litigation Chambers is a leading dispute resolution boutique in Western Canada. Our twenty-four lawyers have a breadth and depth of practice that permits us to provide top quality services across a range complex matters, including in all areas of commercial litigation.

Hunter Litigation Chambers www.litigationchambers.com

BENCH AND BAR

Avast ye! International Talk Like a Pirate Day is fast approaching, on September 19, 2024. Learn more below about who talks or dresses like a pirate (yes, we’re looking at you, Acumen Law), and who has sailed on fair winds, stared down the gangplank or battened down the hatches.

Cory Ryan moves from BLG to Whitelaw Twining. Haley S. Richardson joins Branch MacMaster after articles with Harper Grey. Emma T.T.Y. Newbery is now with Osler, Hoskins & Harcourt, having moved from Dentons. Emma Russell moves three blocks down West Georgia from Norton Rose Fulbright to join Lawson Lundell. A. Scott Boucher and Louise D. McLeod follow suit and also move from Norton Rose Fulbright to join Lawson Lundell. Kelsey Croft moves to Pulver Crawford Munroe from Hamilton Duncan. Also moving to Pulver Crawford Munroe is Suzanne Solsona, who was previously at Ascent Employment Law. Connor G.W. Watt joins Clark Wilson, having been with Boughton Law Corporation. Mary M. MacKinnon retires from Guild Yule and is starting a mediation practice. Kimberley J. Santerre joins Owen Bird from Jenkins Marzban Logan. She is joined at Owen Bird by Lina Yeom, who used to be with Virgin Law Group. Stephen D. Wortley moves from McMillan in Hong Kong to join DLA Piper in Vancouver. Scott Turner and Balpreet Singh Khatra fold up Turner & Co. Legal Counsel and both join Miller Thomson. Anthony Ho opens his solo law firm, Ad Astra Law Corporation, having previously practised as an associate at Tollefson Law Corporation. Lauren E. Cook is now the Director, Legal & Regula-

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

tory Affairs at Elk Valley Resources, having previously been with Teck Resources Limited. Kemily Ho is now with Cooperwilliams Truman & Ito, having formerly been with Eyford Partners. Narwal Litigation welcomes the return of Jennifer (Jenny) Musyj, who moved from Meridian Law Group. Paul G. Kent moves his practice from Lindsay Kenney to KSW Lawyers, where he shall be “Of Counsel”. Amandeep K. Sehmbi becomes the director of Gladue Services at B.C. First Nations Justice Council.

In the former judicial personages department, the Honourable Russell S. Brown joined Hunter Litigation Chambers as associate counsel. The Honourable John J.L. Hunter, K.C., also rejoined the firm after seven years on the bench. The Honourable Anne MacKenzie joined Hira Rowan.

The Provincial Court recently welcomed the addition of Her Honour Parveen Nijjar and His Honour Paul Pearson as judges and His Worship J. Douglas Jevning, K.C., as a judicial justice.

Piracy is an act of robbery or criminal violence by ship or boat-borne attackers upon another ship or a coastal area, typically with the goal of stealing cargo and other valuable goods. Wikipedia reports that the English word “pirate” was derived from the Latin pirata (“pirate, corsair, sea robber”), which comes from Greek (peirates). The meaning of the Greek word peirates is literally interpreted as “anyone who attempts something”. Over time it came to be used to describe anyone who engaged in robbery or brigandry on land or sea.

Christopher C. Rivers was appointed as a vice chair of the Civil Resolution Tribunal.

Though they did not really want to do so, the Law Society has appointed Brian Dybwad, Lindsay R. LeBlanc, K.C., Bruce LeRose, K.C., and Scott Morishita to the transitional board of Legal Professions BC.

Sandra M. Staats 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, 2026.

Britannica says “[t]he so-called ‘golden age’ of piracy occurred in the Caribbean and in the waters off the American colonies in the century after 1650. This was the era of legendary figures such as Sir Henry Morgan, Blackbeard and William Kidd…”

In Young v. City of Roseville, 78 F. Supp. 2d 970 (D. Minn. 1999), the U.S. District Court for the District of Minnesota examined a municipal ordinance under which the plaintiff, a lawyer, was denied permission to fly an ensign commonly known as the “Jolly Roger” on a flagpole outside his office. The court explained, “The Jolly Roger bears a depiction of a skull and crossbones. Popular legend holds it to have flown over pirate ships. Plaintiff’s Jolly Roger was modified, bearing words identifying his law firm and areas of practice, none of which, apparently, includes piracy.” The municipality also denied permission to the plaintiff to fly the Jolly Roger without text. The court found the ordinance to be unconstitutional.

Music and film piracy is the copying and distribution of recordings of a piece of music or film for which the rights owners have not given their consent. An anti-copyright infringement campaign by the British Phonographic industry alleged that “Home Taping Is Killing Music” and used a stylized Jolly Roger motif in its logo featuring a cassette tape and crossbones instead of a skull and crossbones.

In considering the propriety of an amendment to a pleading and addition of a party, the Ontario Superior Court noted in Gray v. Canada (A.G.), 1993 CanLII 5606 that both sides had been “proceeding along on a reasonable and cooperative manner … until the respondents suddenly and without warning changed course 180 degrees and, rather than proceeding in parallel in the dynamic tension required of litigation, attempted to ram and sink the applicants’ ship. This was without even a whisper of a warning shot across the bow. I acknowledge that a caution is not required in ordinary circumstances but in my view it is required where the other side has been following a discussed course of action. International law has stern sanctions against pirates posing as peaceful merchantmen before suddenly hoisting the Jolly Roger.”

Writing for the majority in Homeplan Realty Limited v. Avco Financial Services Realty Limited, 1977 CanLII 408 (B.C.C.A.), Robertson J.A. noted: “[i]f the legislative assembly intends to produce by statute results that are so brutal and piratical, it has the power to do so, but the courts will hold that that was its intention only if the language of the statute compels that interpretation.”

All hands on deck! Do you have any ideas for a Bench and Bar theme for an upcoming issue? Let us know and see if we can rise to the challenge!

Allan P. Seckel, K.C., was appointed as a member and designated as chair to the first board of the College of Complementary Health Professionals of British Columbia for a term ending June 30, 2026. Jacqueline A. Tarantino was also appointed as a board member for a term ending June 30, 2028. The College was formed in June 2024 and amalgamates the regulation of professional Chiropractors, Massage Therapists, Naturopathic Physicians, and Traditional Chinese Medicine Practitioners and Acupuncturists in the province.

Allan P. Seckel, K.C., was appointed as a member and designated as chair to the first board of the College of Health and Care Professionals of British Columbia for a term ending June 30, 2026. The College was also formed in June 2024 and consolidates the regulation of the health professions of dietetics, occupational therapy, opticianry, optometry, physical therapy, psychology, and speech and hearing.

Allan P. Seckel, K.C., was reappointed to the board of the Insurance Corporation of British Columbia (“ICBC”) for a term ending December 31, 2027.

We are sure there would be no occasion for the following remarks in British Columbia, no matter the regulator, but a New York court applied a piracy label to an ophthalmologist in 1984: “Old fashioned piracy on the high seas and overwhelming greed are at the heart of this case. What makes the case unusual, however, is that the leader of the pirates is not a swashbuckling Long John Silver, but a grasping avaricious New York ophthalmologist who used other people and corporate shells to work his nefarious schemes. Once placed in the position where he might have to face justice, like a story-book pirate, the villain has lied and hidden in his attempt to avoid the repayment of the damages he has caused”: Dow Chemical Pacific v. Rascator Maritime S.A., 594 F. Supp. 1490 (S.D.N.Y. 1984).

Congratulations to everyone recognized at the 38th annual Bench and Bar Vancouver Dinner held on June 24, 2024. Linda D. Locke, K.C., of the Upper Skeena Counselling & Legal Assistance Society received the CBABC Georges A Goyer, QC Memorial Award for Distinguished Service. Victoria’s Fiona Hunter of Horne Coupar was presented the CLEBC Leaders in Learning Award. The firm of Sugden, McFee & Roos took home the LAPBC Lawyers Helping Lawyers Award.

John Tuck was appointed as an Acting Deputy Minister, with the title Acting Assistant Deputy Attorney General, Legal Services Branch, Ministry of the Attorney General.

Justice Kagan, dissenting, in Andy Warhol Foundation for the Visual Arts v. Goldsmith, 598 U.S. 508 (2023), noted how Robert Louis Stevenson, the author of Treasure Island (“one of the most famed adventure stories ever told”), had described its provenance:

No doubt the parrot once belonged to Robinson Crusoe. No doubt the skeleton is conveyed from [Edgar Allan] Poe. I think little of these, they are trifles and details; and no man can hope to have a monopoly of skeletons or make a corner in talking birds. . . . It is my debt to Washington Irving that exercises my conscience, and justly so, for I believe plagiarism was rarely carried farther. . . . Billy Bones, his chest, the company in the parlor, the whole inner spirit and a good deal of the material detail of my first chapters—all were there, all were the property of Washington Irving.” My First Book—Treasure Island, in 21 Syracuse University Library Associates Courier No. 2, p. 84 (1986).

Justice Kagan queried: “Odd that a book about pirates should have practised piracy? Not really, because tons of books do … most writers worth their salt steal other writers’ moves—and put them to other, often better uses.”

Robert Louis Stevenson was originally to study engineering (to which his father’s family had long connections) in university, but the subject did not interest him. He and his disappointed father agreed that the son should nonetheless obtain a professional degree (to provide him with some security), so he studied law. He qualified for the Scottish bar but never practised.

Jacqueline A. Beltgens was reappointed as a member and designated as chair of the Surface Rights Board for a term ending December 31, 2027.

“In 1717, the pirate Edward Teach, better known as Blackbeard, captured a French slave ship in the West Indies and renamed her Queen Anne’s Revenge. The vessel became his flagship. Carrying some 40 cannons and 300 men, the Revenge took many prizes as she sailed around the Caribbean and up the North American coast. But her reign over those seas was short-lived. In 1718, the ship ran aground on a sandbar a mile off Beaufort, North Carolina. Blackbeard and most of his crew escaped without harm. Not so the Revenge She sank beneath the waters…”: Allen v. Cooper, 589 U.S. 248 (2020).

Shannon E. Beckett, Edward M. Takayanagi, Amber L. Prince and Sonya C. Pighin were appointed to the British Columbia Human Rights Tribunal.

“Apparently, many words in pirate language start with the letter f.”: Terrapure Environmental (Envirosystems Incorporated) v International Union of

Painters and Allied Trades, District Council 138 (Jeremy Arnot - Termination), 2021 CanLII 72624 (B.C.L.A.).

Treasure Island Hotel & Casino is a hotel in Las Vegas. Its website explains that it has discontinued its “pirate battle” show, and that the hotel is privately owned by billionaire Phil Ruffin. Forbes says: “Son of a grocer, Ruffin dropped out of college to sell hamburgers with his buddies, then used the profits to buy convenience stores. From there he expanded into real estate: strip malls, office parks and hotels … He bought Treasure Island from MGM in 2009, amid the great recession, for $775 million. In 2019, Ruffin bought Circus Circus and the Las Vegas Festival Grounds from MGM for $825 million.” Apparently Donald Trump was Ruffin’s best man at his wedding to a former Miss Ukraine in 2008.

Sandra J. Jakab was appointed as a director of the BC Financial Services Authority for a term ending June 30, 2026.

Stacey F. Robertson and R. Michael Tourigny were appointed to the Financial Services Tribunal.

The U.S. District Court for the Southern District of Florida noted that in the early 18th century, the King of Spain “annually sent two fleets of ships to the New World to bring back the wealth of the Americas … Each year the two fleets met in Havana, Cuba to voyage homeward together across the Atlantic. This afforded the treasure laden galleons some measure of protection from the pirates of the Caribbean who were well aware of the sailing dates of the fleet and the richness of the prize that was theirs if they could but capture one of these vessels: Cobb Coin Company, Inc. v. The Unidentified, Wrecked and Abandoned Sailing Vessel (Believed to have sunk in 1715), 525 F.Supp. 186 (1981).

Alison Jane Carstairs was appointed as a member of the Port Moody Police Board for a term ending December 31, 2025.

Section 74 of the Criminal Code provides: “Every one commits piracy who does any act that, by the law of nations, is piracy” and “Every one who commits piracy while in or out of Canada is guilty of an indictable offence and liable to imprisonment for life.” Under the heading “Piratical acts”, s. 75 provides that “[e]very one who, while in or out of Canada, (a) steals a Canadian ship, (b) steals or without lawful authority throws overboard, damages or destroys anything that is part of the cargo, supplies or fittings in a Canadian

ship, (c) does or attempts to do a mutinous act on a Canadian ship, or (d) counsels a person to do anything mentioned in paragraph (a), (b) or (c), is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.”

Terrence J. B. Schmaltz is to be appointed to the board of the Association of Professional Engineers and Geoscientists of the Province of British Columbia.

In Tobias v. The Queen , 1978 CanLII 3945 (F.C.), the plaintiff appealed assessments by the Minister of National Revenue for the plaintiff’s 1969 and 1970 taxation years arising from “the plaintiff’s search for pirate treasure rumoured to have been buried, on Oak Island off the shore of Nova Scotia”. The court noted that “because of the course which the hearing of these appeals took, the romantic aspect of the appeals, reminiscent of Robert Louis Stevenson’s Treasure Island, became subservient and secondary to the more mundane consideration of what assumptions the Minister made in assessing the plaintiff as he did and the legal consequences which follow upon the determination of the exact assumptions so made.”

Jason Z. Murray was appointed to the Vancouver Police Board for a term ending December 31, 2025.

A porch pirate steals packages from, well, porches.

Ryan N.A. Hira and J. Richard W. Hall were both appointed to the Hospital Appeal Board for terms of four years.

The Superior Court of Delaware, New Castle County, wrote: “Procedurally, this mixed bag of criminal and civil motions presents a rather unique situation to the Court. Substantively, they involve novel and complex questions of first impression in this State concerning common law and statutory rights and duties of finders of money. Factually, the events leading up to the instant litigation are so bizarre that one might expect this tale to have been spun from the colorful imagination of Robert Louis Stevenson or Mark Twain”: Campbell v. Cochran, 416 A.2d 211 (1980).

99942 Aphosis is a near-Earth object (a.k.a. an asteroid) that is about 335 meters across. On April 13, 2029, Apophis will pass less than 32,000 kilometers from Earth’s surface—closer than the distance of geosynchronous satellites and about 1/10 the distance to the moon.

Michelle L. Casavant was appointed and Lionel R. Yip was reappointed as public members of the board of the College of Physicians and Surgeons of British Columbia for terms ending June 30, 2027.

Marie Diane Louise Irvine, Sherry Shir, Alysha M. Bennett, Lynn Gahyun Muldoon and Jeremy D. A. Bryant were all appointed to the Employment Standards Tribunal for terms of two years.

In Directv, Inc. v. Zed Marketing Inc., 2006 CanLII 8202 (ON SC), the court ruled in favour of changing, in a statement of claim, the term “Piracy Defendants” to “Defendants” or the “Zed Defendants”, and the term “Piracy Technology” to “Technology”. However, the court refused a motion to delete “pirating”, “satellite pirate”, “pirates”, “piracy”, “pirate devices”, “piracy software” and similar terms from the statement of claim. While “Piracy Defendants” and “Piracy Technology” referred directly to the defendants and their conduct, other wording generally described “a generic activity of which the defendant is being accused. This is similar to an allegation of fraud. ‘Fraud’ or ‘breach of contract’ must be pleaded if it is to be proved. A defendant may not like it and it may be incorrect, but it cannot be incorrect to allege that the defendant’s actions constitute ‘fraud’ or ‘breach of contract’. So too with ‘piracy’. Defendants can be alleged as having conducted ‘piracy’ or are acting like ‘pirates’. It is up to the court to decide whether in fact they do.”

Stephen L. Perks was appointed as a member and designated vice chair of the Community Care and Assisted Living Appeal Board for a term of two years.

Kent A. Ashby and Catharine M. Esson were appointed and Dianna R. Robertson was reappointed as government representatives to the Health and Care Practitioners Special Committee for Audit Hearings for terms ending June 30, 2027.

Pieces of eight were Spanish coins also used outside the Spanish empire.

Patricia E. Bood was appointed to the Passenger Transportation Board.

October 6 to 12, 2024 has been proclaimed Make A Will Week. Make your will.

Chi Ming Lo was appointed to the board of Vancouver Community College.

In Smith v. British Columbia (Human Rights Tribunal), 2021 BCSC 331, Justice G.C. Weatherill dealt with an application for judicial review of the Human

Rights Tribunal’s refusal to accept for filing the petitioner’s complaint against ICBC, which was in turn based on ICBC’s refusal to issue his BC Driver’s Licence/BC Services Card with a photograph of him wearing what he claimed was his religious head covering. The judge noted “[t]he petitioner identifies himself as a Pastafarian and member of the Church of the Flying Spaghetti Monster, who are known to wear either a pasta colander or a three-cornered hat known as a pirate’s tricorn on their heads.” As the judge observed, “Canadian courts have previously observed that the practices followed by ‘Pastafarians’ are satirical in purpose”, and in all the circumstances, dismissed the challenge to the tribunal’s decision.

Marilyn S. Loewen Mauritz was appointed a director of Innovate BC for a term of three years.

In Havi Global Solutions (Canada) Limited Partnership v. Canada Border Services Agency, 2008 CanLII 55953 (CA CITT), the issue was whether “Pirates of the Caribbean” bandanas (the goods in issue) are properly classified as “other headgear” or should be classified as “other toys”. The tribunal went with the “other toys” classification, noting “[t]he evidence indicates that the goods in issue were specifically designed to be played with by children pretending to be pirates” and that “although the goods in issue can be worn as hats, in their essence, they are things from which a child derives amusement and pleasure. They are items with play value. Therefore, they are classifiable … as toys.”

In Renshaw v. Parker, 2018 NSSM 7, the court considered a business dispute among “grown men who, in their spare time, dress-up as pirates for fun and profit. Inspired in part by the success of the Pirates of the Caribbean movie franchise, these pirate re-enactors are hired for parties or other functions where they entertain the guests with a combination of theatrics, and (usually) harmless mayhem.”

Natasha Dookie was appointed and Oluwatobi Olaoluwa Abisoye was reappointed as lay members of the council of the Applied Science Technologists and Technicians of British Columbia for terms ending June 30, 2026.

According to the Royal Museums Greenwich, there are three types of pirates: corsairs, buccaneers and privateers. Corsairs were pirates who operated in the Mediterranean Sea between the 15th and 18th centuries. Buccaneers lived on the Caribbean island of Hispaniola and its tiny turtle-shaped neighbour, Tortuga, in the 17th century. At first they lived as hunters, but

later the governors of Caribbean islands paid buccaneers to attack Spanish treasure ships. Not surprisingly, the buccaneers gradually became out of control, attacking any ship thought to carry valuable cargo, whether it belonged to an enemy country or not. Privateers were privately owned (rather than navy) ships armed with guns, operating in times of war. The British Admiralty issued them with “letters of marque” that allowed them to capture merchant vessels without being charged with piracy.

James Cassels, K.C. , was appointed to the board of Vancouver Island University.

Treasure Island is a city in Florida. One author notes its earlier settlers, “after the Great Gale of 1848 and the Civil War, were mostly fishermen, hunters and the occasional pirate or smuggler.”

The Tampa Bay Buccaneers are an NFL team based in Tampa, Florida. They have won two Super Bowl championships.

Andrew N. T. Crabtree and Salima Samnani were appointed as directors of the Legal Services Society for three-year terms.

In Mitchell Repair Information Company v. Long, 2014 FC 562, the court looked unfavourably on the fact that the defendant “attempt[ed] to conceal and obfuscate his identity, including posing as a lawyer warning the plaintiff not to proceed further. In addition, the defendant refused to discontinue infringing copyright when asked and held the plaintiff in derision by taunting it with words to the effect that he could not be found or stopped and showing the ‘Jolly Roger’ sign in one of his rejoinders.”

Erin Lettie Barnes was appointed to the board of Kwantlen Polytechnic University.

Jeffrey R. Nicholls was appointed as a member to the board of Royal Roads University for a term ending July 31, 2025.

Article 100 of the United Nations Convention on the Law of the Sea provides: “All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any state.” Article 105 provides: “On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of

pirates, and arrest the persons and seize the property on board….” Article 107 qualifies the above: “A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.”

Addressing, in Omaha Indemnity Co. v. Superior Court of Santa Barbara County (1989), No. B0936158, why U.S. courts deny writ petitions, the Court of Appeals of California, Second Appellate District, Division Six, wrote: “Just as case law has been disappointing as a source of information concerning the mysteries of the writ, so have attempts to impart information by hierophants of appellate practice. Those who have tried to extract a coherent set of rules from cases and treatises on writs have found it easier to comprehend a ‘washing bill in Babylonic cuneiform.’ (Gilbert & Sullivan, Pirates of Penzance (1879).)”

“If we were charged not only with the task of reviewing the 177 pages of mostly incomprehensible briefing authored by appellant, but also with the task of reviewing a washing bill in Babylonic cuneiform, we would probably find it easier to understand the washing bill”: Wilmot v. Commission on Professional Competence, No. F024660 (Superior Court of Kern Country, 5th Dist. 1998).

Nikhil G. Pandey was appointed as a member of the Delta Police Board for a term ending June 30, 2025.

Anne Bonny and Mary Read were pirates in the Caribbean in around 1720.

Christine J. Deynaka was appointed as a member of the Nelson Police Board for a term ending June 30, 2025.

A dissenting judge in the Court of Criminal Appeals of Texas objected to the attempt by the “aggressive and assertive majority” to send a case he favoured “to Davey Jones’ locker”: Adams v. Texas, 707 S.W.2d 900 (1986).

Acumen Law threw itself into Talk Like A Pirate Day in September 2018. It noted, “Providing legal information as pirates was an interesting project for us with all sorts of challenges … It was clearly unusual for lawyers to dress as pirates and provide legal information from the deck of a ship. We like to think that we’ll start a trend. Perhaps in the years to come lawyers from all over will fire up their video camera and record some legal information from

the perspective of a pirate. Probably not.” It noted its hope that “[its] campy videos assist people in becoming comfortable contacting a lawyer.”

Pawanjit S. Joshi was appointed to the British Columbia Farm Industry Review Board for a term ending July 31, 2025.

In Re Vanderkemp , 2009 CanLII 91195, the Ontario Racing Commission noted that “[r]eciprocal enforcement is a fundamental component of racing integrity”, with the benefit being “self-preservation. Only by death wish could Ontario racing permit itself to become a modern day pirate’s Barbary Coast - a safe haven for pirates of the seven seas.” Somewhat mixing metaphors, the commission continued: “Ontario will not become a landfill site for those whose racing privileges have been suspended, revoked, denied or banned in other jurisdictions.”

S. David Frankel, K.C., John M. Gordon, K.C. and Donnaree G. Nygard were all appointed to the British Columbia Review Board for terms of two years.

Arnold & Itkin describe themselves as “maritime piracy attorneys”, “representing seamen injured in pirate attacks”.

Among the comments of or attributed to Robert Lous Stevenson are the following: “Life is not a matter of holding good cards, but of playing a poor hand well”; “Compromise is the best and cheapest lawyer”; “Politics is perhaps the only profession for which no preparation is thought necessary”; and “Man is a creature who lives not upon bread alone, but principally by catchwords; and the little rift between the sexes is astonishingly widened by simply teaching one set of catchwords to the girls and another to the boys.”

There is no federal law in the United States that prevents owning, buying or selling human remains, unless the remains are Native American. This might at least, in part, explain why the Disneyland ride “Pirates of the Caribbean” which opened in 1967 originally (and presumably lawfully) contained several human skeletons sourced from the University of California’s medical department. Apparently fake skeletons at the time looked too fake and Walt Disney wanted his pirate skeletons to look real. Eventually, as fake skeleton technology improved “a new generation of Imagineers replaced the real ones which were later returned to their countries of origin and given a proper burial.” Nevertheless, rumours abound that at least one real human skull remains within the ride. Dead men tell no tales.

The film series Pirates of the Caribbean (which was inspired by the ride at Disneyland) stars Johnny Depp as the lead character, Captain Jack Sparrow, and two ancient relics as his relatives. Depp based his character in part on Rolling Stone guitarist, Keith Richards. Richards later made appearances as Sparrow’s father Captain Edward Teague, in At World’s End and On Stranger Tides. Later still, Sir Paul McCartney portrayed Captain Teague’s brother, Uncle Jack Teague, in Dead Men Tell No Tales. McCartney had previously been in a band that was briefly named Long John and the Silver Beetles.

Fiona C. M. Anderson, Joash W. Y. Fang, Zahra H. Jimale and Camille J. Karlicki were all appointed to the Property Assessment Appeal Board for terms of three years.

In United States of America v. Goldman, No. 18-13282 (2020), the U.S. Court of Appeals for the Eleventh Circuit noted that “[i]n Robert Louis Stevenson’s Treasure Island, Jim Hawkins memorably hunted for Captain Flint’s hidden treasure.”

“A most ingenious paradox” is described by Gilbert and Sullivan in The Pirates of Penzance, Act II, cited in Woodward Iron Company v. United States of America, 396 F.2d 552 (5th Cir. 1968). By “clumsy arrangement” a person born in a leap year on February 29 is, though living “twenty-one years, … if we go by birth, … only five and a little bit over!”

Marriage “is a field of battle and not a bed of roses”: Robert Louis Stevenson, 1850–1894, Virginibus Puerisque (1881), quoted in Thomas v. Thomas, 2003 CanLII 64346 (ON SC).

Congratulations to 2024 Battle of the Bar Bands Vancouver winner SHAG the Band. The sold-out show raised a record $158,705 for the CBA(BC) Benevolent Society, with the 27 Club raising over $44,000 alone.

Leah Ballantyne was appointed to the board of British Columbia Institute of Technology for a term ending July 31, 2025.

Claire E. Hunter, K.C., received the CBA Sexual and Gender Diversity Alliance Section Ally Award in recognition of her work within the Canadian legal profession in advancing the cause of equality for lesbian, gay, bisexual, transgender and two-spirit communities.

British Columbia boasts several geographical locations for pirates. Pirate Point is on the east side of Pearce Island, which is at the entrance to the

Portland Canal. The Portland Canal divides British Columbia and Alaska and ends at Stewart, British Columbia (Canada’s most northern ice-free port) and Hyder, Alaska. Pirate Rock is off the south end of South Thormanby Island.

Buccaneer Bay Park is a marine park on the southern tip of North Thormanby Island.

We previously wrote in these pages about Brother XII and his Aquarian Foundation cult which was located, in part, on De Courcy Island, British Columbia. De Courcy Island is now the home of Pirates Cove Marine Park, a 31-hectare provincial park established in 1966. As mentioned in our previous issue, people still go there to look for buried gold!

Thought du mois:

Merchant and pirate were for a long period one and the same person. Even today mercantile morality is really nothing but a refinement of piratical morality.

—Friedrich Nietzsche, philosopher (1844–1900)

CONTRIBUTORS

Mike Barrenger has been practising criminal law in Vancouver since 2008. He has particular experience in Charter litigation and has appeared at all levels of court in Canada.

Emily Chan graduated from UVic Law in May 2024. She has previously worked as a student research officer at the Office of the Human Rights Commissioner and starts clerking at the British Columbia Supreme Court in September 2024.

Sebastian Chern practises employment law with Ascent Law in Vancouver. He is a retired rugby player who has shifted his interests to fishing, camping and weightlifting. He is also VP External for the Federation of Asian Canadian Lawyers (British Columbia) (“FACL BC”).

Geoffrey Cowper, K.C., is called to the bars of British Columbia (1982) and the Yukon (1987). Geoff is known for handling complex commercial litigation and complex commercial dinner conversations.

Christopher Green is a former criminal defence counsel, Crown counsel and personal injury lawyer. He is now retired and spends his time travelling.

David Hay, K.C., is a litigator at Richards Buell Sutton. He has been known to ride a bicycle and swing a microphone, although rarely at the same time.

Sharon Malhi is a third-year law student at TRU Law and was until recently the TRU student director on the FACL BC board of directors. Sharon just completed her summer articles at McQuarrie Hunter LLP and will be returning there to complete her full articles after law school.

Tom Posyniak is a partner in Fasken’s commercial litigation group in Vancouver. He has an active appellate practice and is a co-author of the CLEBC Civil Appeal Handbook

Brian Samuels, K.C., is the proprietor of Samuels & Co., a boutique construction law firm in Vancouver. He is a co-editor and co-author of Expert Evidence in British Columbia Civil Proceedings and editor-in-chief of The Journal of the Canadian College of Construction Lawyers.

Calvin Sandborn, K.C., taught environmental and public interest law at UVic Law for 20 years.

Kaymi Yoon-Maxwell is a FACL BC volunteer and graduated from UVic Law’s joint degree program in Canadian Common Law and Indigenous Legal Orders in May 2024.