EXTRADITION HEARINGS | IMMIGRATION LAW | HUMAN SMUGGLING
DECEMBER 2013 | cbabc.org
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GEORGES A. GOYER, QC MEMORIAL AWARD FOR DISTINGUISHED SERVICE The B.C. Branch of the Canadian Bar Association awarded two outstanding B.C. lawyers at the 2013 Annual Bench and Bar Dinner. Donald J. Sorochan, QC and Glenn Gallins, QC were bestowed the CBABC’s highest honour – the Georges A. Goyer, QC Memorial Award presented by B.C. Branch President, Dean Crawford. The annual Georges A. Goyer, QC Memorial Award was created in 1992 to recognize exceptional contributions to the legal profession, to jurisprudence, or to the law in British Columbia. The award was established in memory of Georges A. Goyer, QC, a respected member of the B.C. Branch, who passed away after a courageous battle with cancer.
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VOLUME 25 / NUMBER 6
4 FROM THE PRESIDENT Moving Forward on Access to Justice by Dean Crawford 5
EXECUTIVE DIRECTOR What a Busy Fall! by Caroline Nevin
PRACTICE TALK Crises Abound by David J. Bilinsky
DAVE’S TECH TIPS
NOTHING OFFICIAL One Cheque Two Cheque Red Cheque Blue Cheque by Tony Wilson
17 FROM THE CHAIR 2013 BarTalk Reader Survey Results by Michael Welsh
SECTION UPDATE Immigration Law Refugee Lawyers Group Overseas Lawyers Group International Law
SECTION NEWS Chatter with Chairs — Dwight Stewart
Features 12 CANADA’S “MISSING” REFUGEES by Laura Best 13 THE RIGHT TO AN EXTRADITION HEARING by Tamara Duncan and Casey L. Leggett 14 R. V. APPULONAPPA by Peter Edelmann
SUCCESSFULLY IMPLEMENTING FLEXIBLE WORK ARRANGEMENTS by Marta Davidson
15 WHAT LAWYERS DO IN THE COMMUNITY 16 TRAINING TUNISIAN JUDGES by Bill Sundhu
Inside This Issue BarTalk makes history with its first solely online edition and we hope to hear from readers on how they find the experience. This well-travelled issue looks at recent developments in immigration and refugee law and how B.C. lawyers are making a difference abroad in Central America, Tunisia and Ethiopia, in such diverse activities as film-making, summiting mountains for charity and assisting legal systems in areas of tumult.
News and Events 2 Georges A. Goyer, QC Memorial Award 18 CBA Intervenes in Minister of Citizenship and Immigration, et al. v. Mohamed Harkat, et al. Federation of Law Societies of Canada v. Canada (Attorney General) CBA Welcomes NAC Report on Access to Justice When Access is Not a Good Thing 19 Kazemi v. Islamic Republic of Iran Leaking Information 20 View from the North by Clint Sadlemyer, QC CLEBC Update 21 Legislative Update UBC Law Awards First-Ever Allard Prize for International Integrity to Anna Hazare 2013 Mentoring Receptions at UBC and UVic 22 CBABC WLF News 28 The Honourable Christopher E. Hinkson Appointed Chief Justice of the Supreme Court of B.C. First Digital-Only Issue – Win an iPad mini CBABC 9th Annual Branch Conference
Also In This Issue
2 19 23 24 25 26
NEWS MEMBER SERVICES LAW FOUNDATION OF BRITISH COLUMBIA PROFESSIONAL DEVELOPMENT DISPLAY ADS BAR MOVES
29 NEW MEMBERS
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FROM THE PRESIDENT DEAN CRAWFORD
Moving Forward on Access to Justice The time for study is over
There is a serious access to justice problem in Canada. The civil and family justice system is too complex, too slow and too expensive. It is too often incapable of producing just outcomes that are proportional to the problems brought to it or reflective of the needs of the people it is meant to serve. While there are many dedicated people trying hard to make it work and there have been many reform efforts, the system continues to lack coherent leadership, institutional structures that can design and implement change, and appropriate coordination to ensure consistent and cost effective reform. Major change is needed.” So begins the opening words of the final report of the Action Committee on Access to Justice in Civil and Family matters. A sobering assessment to be sure. But amongst the Bar, I expect many of us acknowledge there is much truth to the committee’s characterization of our justice system. Very few of us, I suspect, have not had a client complain about the cost or length of time to have a matter resolved. The committee, chaired by Justice Cromwell of the Supreme Court of Canada, published its report, Access to Justice in Civil and Family Matters: A Roadmap for Change, in October. It follows on the heels of the Canadian Bar Association’s report, Reaching Equal Justice: An Invitation to Envision and Act, which was released in August. Together, the two reports spell out dozens of recommendations on improving access to justice for Canadians. If you have not read the reports, I urge you to do so. The reports’ conclusions – that the justice system is too costly and inaccessible to most low-income and middle-income Canadians – should be of concern to us all. Without confidence in the justice system, citizens will not support increased investment by government in the courts, in the appointment of judges or legal aid. In turn, the system will atrophy, causing a fur4 BARTALK / DECEMBER 2013
ther loss of confidence. It’s a vicious circle. But there is hope and a path forward. In reading the reports, I was struck by the following: THERE IS MUCH GOOD WORK BEING DONE, BUT CO-ORDINATED LEADERSHIP IS NEEDED The Bar, the judiciary, public legal education bodies, pro bono providers and many other stakeholders are making real efforts to improve access to justice, but we need to act together, in a co-ordinated fashion, to ensure constant, cost-effective reform. The Action Committee calls for the creation of Access to Justice Implementation Commission’s in each province to bring together stakeholders under one umbrella. WE KNOW WHAT TO DO As noted by the CBA’s Reaching Equal Justice report, there is a broad consensus on the need for significant change to improve ac-
cess to justice and an evolving consensus on the central directions for reform. The time to act is now. PUT THE PUBLIC FIRST Justice system reform must focus on the people who need to use the system – the public – and not on the perspectives of lawyers and the judiciary. As noted in the Action Committee’s report, “Litigants, and particularly self-represented litigants, are not, as they are too often seen, an inconvenience; they are why the system exists.” The reports make several recommendations for concrete reforms that we can begin implementing now, with others of a more long-term nature. To name just two initiatives, the reports call for the spread of legal expense insurance to middle- and low-income Canadians and the unbundling of legal services via limited scope retainers. There are many more recommendations worthy of implementation. At the CBABC, we’ve started the conversation with our justice system partners on how we can work together to do so. Expect to hear more on these initiatives in the months ahead.
firstname.lastname@example.org Twitter: @deancrawfordvan
EXECUTIVE DIRECTOR CAROLINE NEVIN
What a Busy Fall!
A rich and active time at the CBA
ow can it possibly be that people are already preparing for the winter holidays? It seems just yesterday we were welcoming new Chairs of Sections and Committees, and introducing everyone to our new website and Volunteer Portal (check it out – upper right hand corner of the home page where you see “SIGN IN”). It’s been a very busy few months since then. In September, our amazing volunteers, supported by our fantastic staff, began a program of activities that has included more than 100 Section meetings so far. I’ve attended as many as I can fit in, including a fascinating discussion about IBAs – Impact Benefit Agreements – among lawyers working with First Nations communities (Aboriginal Law/Aboriginal Lawyers joint meeting) and a scary but useful overview of the new reality of liability when it comes to the Corruption of Foreign Public Officials Act (CCCA Corporate Counsel meeting). The quality of PD and networking our Sections are offering is unbelievable – and for those participating, it’s either free or at a very modest cost. Every CBA member gets one free Section included with membership, and a 20 per cent discount on additional Sections if you choose a Portfolio or Portfolio Plus membership package. In October, I went to what has become my favourite and only major professional development program I attend to help me be a better Executive Director of your Association: the annual meeting of the International Institute of Law Association Chief Executives. This year the meeting was held in Berlin, and I was asked to speak on a panel on changing demographics in the profession and some practical ideas for responding – I presented on our hugely successful REAL Rural Education and Access to Lawyers program. I was also asked to chair a
panel on Resilience, a topic that those of you who read my last column know is a personal passion (thank you to the many people who wrote to me in response). The conference program was full of educational topics that relate directly to working to benefit the legal profession in an environment that is constantly changing. There is honestly nothing more invigorating than spending days talking to people who face the same challenges and conundrums, and who are willing to openly share their successes and failures in dealing with them. It was time well spent. In November, President Crawford and I attended a two-day Justice Summit along with about 70 others leaders in government, the defence bar, Crown, judiciary, police, corrections and community groups. There were many CBA faces among the lawyer representatives, a testament to the credibility and influence of our great volunteers. Throughout the
event, new Attorney General Suzanne Anton was clearly attentive and interested in hearing everyone’s diverse views, experiences, frustrations and ideas. We all know there are no easy answers or large pots of available cash, but it was heartening to see so many thoughtful people willing to engage in the challenge of improving outcomes and the overall sustainability of the justice system. December is now upon us, and you are viewing one of the highlights of this month – the first digital-only edition of BarTalk. We are producing two editions this year that will have no environmental footprint and will save members money on production and distribution. We are responsible for ensuring that member dollars are well stewarded and put to direct member service as much as possible, and I’m pleased to see this evolution in how we deliver this high quality magazine to you. As 2013 draws to a close, best wishes from all of us at the CBABC for a happy and prosperous New Year.
email@example.com DECEMBER 2013 / BARTALK 5
practicetalk DAVID J. BILINSKY
Are we doing all we can? r
Shift Happens Then and We Did All That We Could Have Done… r
— Music, Lyrics and recorded by: Harriet Ohlsson
hat did one paradigm say to the other paradigm? The answer: Shift happens. I believe we are at the edge of an event horizon that indicates that we are shifting from an old paradigm of how the legal profession works to a new paradigm. However, the indications are that the future for the legal profession may not be all that rosy. What are the indications? Above the Law reports that in the US, the employment rate for law graduates are down for the 5th year in a row. Things are not much different in Canada. Christina Fitzmaurice writing in Canadian Lawyer magazine states: “In my opinion, the current ‘articling crisis’ is symptomatic of a larger problem that won’t be easily eradicated by creating additional positions or abolishing the articling requirement.” Lack of articling positions and a dearth of jobs following call is but one symptom. The growing access to justice problem is another. The CBA has documented the decline in Canada’s justice system with the growth of the self-represented litigant, the fact that only corporations and wealthy individuals can afford to use the non-criminal legal system and the fact that people have just given up trying to access justice in today’s system. The changes are not limited to North America either. Mark Smith in an article entitled, “Change is coming: the slow destruction of the legal profession,” says: “But at least here in the UK, change is very definitely afoot.
6 BARTALK / DECEMBER 2013
Underpinned by the Legal Services Act, accelerated by the tough economic conditions, and with outsourcing and technology slowly beginning to take a foothold in the market, suddenly the future looks very different.” He continues with what I think is the crux of the matter: “The dark horse is technology. The role played by technology in the delivery of legal services to date has been fairly limited. Aside from basic document production and management plus communication and collaboration platforms, the vast majority of legal work is still undertaken by humans. But as we see document automation and proofing technologies become more advanced and adoption rates picking up, and ediscovery tools becoming both more sophisticated and more widely accepted, it becomes clear that technology can play a much more significant role in the future of law.”
The CBA’s Futures Initiative, in its Trends and Issues report, says: “Because of partnership structures and tax laws, very few firms re-invest profits in basic research and development, new processes, services, and technology.” They go on: “By the same token, these types of market changes raise the question of whether current regulatory constraints on business structures and economic dealings unduly limit innovation.” In other words, non-lawyer businesses have the freedom to experiment and the access to capital markets to invest in R&D and technology. Witness the growth of LegalZoom.com. However, law firms, at least currently, do not. Therefore, are we effectively dooming the legal profession by being too timid in failing to allow changes to the structure of how law firms can access capital markets and can operate (in alternate business structures)? Continued on page 7 >>> The views expressed herein are strictly those of the author and do not reflect the opinions of the Law Society of British Columbia, the CBABC or their respective members.
David J. Bilinsky is the Practice Management Advisor for the Law Society of British Columbia. Email: firstname.lastname@example.org Blog: thoughtfullaw.com GO ONLINE FOR MORE INFORMATION
dave’s techtips Legal Futurists to Watch There are a number of legal futurists to watch who are saying that change is a’coming to the legal profession. Whether you agree with all, some or none of what they say, they always make for an interesting read. Here is a smattering of them: Richard Susskind (susskind.com) Professor Richard Susskind OBE is an author, speaker, and independent adviser to major professional firms and to national governments. His main area of expertise is the future of professional service and, in particular, the way in which the IT and the Internet are changing the work of lawyers. Jordan Furlong (law21.ca) Jordan is a lawyer, speaker, and consultant based in Ottawa, Canada. He is a partner with the global consulting firm Edge International and a senior consultant with legal web development company Stem Legal Web Enterprises. Jordan
specializes in delivering dynamic and thought-provoking presentations to law firms, practice groups, and legal organizations at a time of unprecedented marketplace change. Ron Friedmann (prismlegal.com/blog/) Ron is a lawyer by training and has spent over two decades working in the legal market. He is currently a consultant with Fireman & Company. Prior to joining the legal market, Ron worked as a strategy consultant at Bain & Company and as an economic and financial analyst for Data Resources, Inc. (a McGraw-Hill company). Dan Pinnington (ow.ly/qKHPU) Dan is a prolific writer, speaker and blogger on legal malpractice, risk management, legal technology and law practice management. Dan has just completed a five part series on the Future of Law on his avoida-claim blog. Mitch Kowalski (kowalski.ca) Mitch has spent more than 20 years in different roles for a wide variety of legal service providers – he states he is not happy with what he found. Mitch believes that there are much
better ways to deliver legal services; ways that reduce costs for law firms and clients, increase efficiency, enhance the lawyer-client relationship, improve access to justice and improve a lawyer’s quality of life. Simon Chester (heenan.ca) Simon is a partner in the Litigation and Business Law groups at Heenan Blaikie LLP with responsibilities for knowledge management, opinions, and research. He holds law degrees from Oxford University and Osgoode Hall Law School in Toronto, and held a Canadian Rhodes Trust Foundation Scholarship. His current interests include innovation by professionals and the cultural impacts of technology. You can follow Simon’s posts on slaw.ca. Karen MacKay (phoenix-legal.com/team_ mackay.php) Karen is a globally recognized expert on the challenges, expectations and motivations of the generations at work in law firms today, in particular the management challenges around motivation, reward and retention of associates, of women and of partners nearing retirement. © 2013 David J. Bilinsky
Continued from page 6
Are we serving the public need by failing to place law firms on an equal competitive footing to our up-and-comers such as LegalZoom? Are we drying up the
market for bright and innovative young people to look at a career in the legal profession? Yes, I think shift is indeed happening. The question is: do the
changes occur within the legal profession or outside of it? Thirty years from now, will we be asking ourselves: did we do all that we could have done? DECEMBER 2013 / BARTALK 7
nothingofficial TONY WILSON
One Cheque Two Cheque Red Cheque Blue Cheque Don’t forget the rule of law when discussing senators
t was fascinating to watch American politics during the month of October when what I’ve called the “Tea Party Taliban” (a term I stole from HBO’s The Newsroom) orchestrated a shutdown of the US government and tried to prevent the debt ceiling from rising; something that might well have pushed the US government into default and potentially started a deeper recession than the last one. All this to stop funding a law that was passed by the House of Representatives, passed by the Senate, signed off by the president, and which the Supreme Court of the United States upheld. In other words, the rule of law in a free and democratic society was complied with in all respects, except that the losers in the last US election didn’t like the law. Fortunately, we don’t have these sorts of shenanigans in Canada, but we do have to remind our politicians from time to time that the rule of law applies to Parliament and parliamentarians as much as it applies to ordinary citizens. I’m speaking of the Senate expense scandal, and the brouhaha that we’re hearing in the press about Mike Duffy’s $90,000 expense claim, Nigel Wright’s payment of that money (and his subsequent firing and admonishment), whether the Prime Minister knew about the $90,000 payment all along, another cheque for Duffy’s legal expenses, and similar stories respecting the expenses of Pamela Wallin and Patrick Brazeau. I must say, the scandal over Duffy, Wallin and Brazeau is entertaining, but it’s nothing like political bloodsports in the United States. In comparison, Canadian scandals are more reminiscent of my time in student politics. The outrage is so strong because the stakes are so small. It’s easy to make fun of Duffy, Wallin and Brazeau and paint them eating from the “patronage trough.” But remember, if the rules for Senate
8 BARTALK / DECEMBER 2013
expenses weren’t clear in the first place, or the “Gang of Three” were given assurances from higher ups that their expenses were “fine” under those fuzzy rules, maybe the fault lies elsewhere and we should not be so quick to judge. The audit of Duffy, Brazeau and Wallin will cost the taxpayers $529,000, but if the audit, the investigation and the move to fire the senators is more politically motivated and directed from the Office of the Prime Minister (PMO) simply to placate his “base,” I have some problems with that. If so, then isn’t the motion to expel Duffy, Brazeau and Wallin from the Senate more reminiscent (though obviously less severe) of the Soviet political show trials from the 1950s and 1960s, where the Kremlin told the “court” what the verdict was going to be without hearing the evidence? If the PMO directed that all Conservative senators vote to expel Duffy, Wallin and Brazeau,
notwithstanding they haven’t been convicted of anything (and if they seemed to be complying with the rules then in place), I think Canadians should be just as concerned. Arguably, if Mr. Duffy is appointed a senator for PEI, or Pamela Wallin is appointed the senator for Saskatchewan, why shouldn’t they be entitled to travel to, and even maintain a residence in the provinces from which they are notionally appointed? If not, then the PMO shouldn’t be appointing senators to represent such provinces in the first place, should it? A good reason perhaps, why senators should either be appointed by the provinces themselves, or elected by the voters of those provinces. When a citizen (senator or not) hasn’t had due process, or hasn’t had the right to be heard by an impartial tribunal, and hasn’t, as yet, been convicted of breaking a law or rule clearly applicable to him or her, then the body punishing that individual doesn’t strike me as complying with the law it is bound to uphold, and becomes something more akin to a kangaroo court. I’d love to see what the Supreme Court of Canada says about this one when it comes down the pipe, as it most surely will. The views expressed herein are strictly those of Tony Wilson and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members.
guest MARTA DAVIDSON
Successfully Implementing Flexible Work Arrangements Culture, respect and clear expectations
awyers face increasing and competing demands on their time. There is a need within the profession to effectively balance the fulfillment of professional obligations, familial responsibility, personal time and community involvement. Flexible work arrangements (“FWAs”) are a valuable and viable option for firms and lawyers to consider as part of a solution to this balancing act. Generally, such an arrangement refers to a situation where the time which a lawyer devotes to work is restructured, reduced or relocated from the office (aka “flex place” arrangements). FWAs may involve a reduction or rearrangement of hours worked, job sharing, working on a case or file basis, or practising at an alternate location. Regardless of form, the keys to successful implementation of FWAs include a professional culture accepting of alternative work arrangements, mutual respect and clear expectations. Before such arrangements can become popularized, there needs to be a culture of greater acceptance of FWAs in the legal community, without associated stigma. One way to promote this may be for firms to implement FWA policies (“FWAPs”) on a proactive basis, and for lawyers to expect such implementation. Parental leave policies were once rare, but are now common in firms of
all sizes. There should be a similar expectation regarding FWAPs. Most law societies in Canada have model FWAPs and/or guidelines on their websites, including B.C., Alberta, Saskatchewan and Upper Canada. Publication of such guidelines implicitly suggests that implementation of FWAPs is a progressive step toward resolution of certain problems encountered with fulltime traditional office legal practice. Implementing a written FWAP demonstrates a firm’s commitment to take the policy seriously, encourages use of such arrangements and promotes talent attraction and retention. FWAs may assist in retaining lawyers struggling with a long
Flexible work arrangements are a valuable and viable option for firms and lawyers to consider. commute or family or child care commitments which are incompatible with a firm’s core hours. Importantly, a FWAP implicitly communicates a firm’s perception of what constitutes a “good lawyer.” Good lawyers are not limited to those who sit behind a desk five days a week, 10 hours a day.
Rather, good lawyers are individuals who are competent, complete work in an efficient, timely and reliable way and create a positive client service environment. When implementing a FWAP, it should be made clear that lawyers using the policy are not being given special privileges, that quality of work standards remain the same and that the lawyer’s salary is commensurate to any reduced work schedule. Successful use of FWAs should incorporate a continued assessment of the practicality and fairness of the arrangement. There will be inevitable circumstances where a lawyer working under a FWA must be available and meet client demands regardless of set hours. This is where consistency in work, clear expectations, and a mutual respect between the firm and the lawyer come into play. The lawyer’s organization level and time management skills will also be key factors in determining FWA success. Lastly, neither firms nor lawyers should assume that FWAs will simply “not work” for them, or in their practice area. FWAs can be successfully adapted to all schedules and practice areas. Firms should not underestimate the boost to morale, firm loyalty and value in giving lawyers some control over their practice and schedule, while supporting them in balancing work life with other commitments. Marta Davidson is a securities lawyer at Robertson Neil LLP working under flexible work arrangements. DECEMBER 2013 / BARTALK 9
sections SECTION UPDATE
The Immigration Law Section Keep Current A review of uholds regular monthly meetat the Law Courts Inn from provincial Section meetings. ings September â€“ June, with most of
Immigration Law Meeting in Review: October 30, 2013 Speakers: Mojdeh Shahriari and Andrew Wlodyka Topic: IAD Updates â€“ Residence Obligation, Sponsorship, Removal Order Appeals
Refugee Lawyers Group (Immigration Law Section Subgroup) Meeting in Review: October 21, 2013 Topic: Refugee determination and various issues affecting refugees
Overseas Lawyers Group (Immigration Law Section Subgroup) Meeting in Review: October 10, 2013 Speakers: Various Topic: The latest developments in immigration and citizenship law and policy, shares practice tips
International Law Meeting in Review: September 23, 2013 Speaker: Tina Cicchetti, Fasken Martineau Topic: Arbitration of Natural Resource Development Disputes
10 BARTALK / DECEMBER 2013
their meetings available as live webinars. The evening of Wednesday, October 30, 2013, Mojdeh Shahriari and Andrew Wlodyka joined their peers to speak about the Immigration Appeal Division (IAD). The IAD hears and decides appeals on immigration matters such as appeals from refused sponsorship applications and from removal orders. The presenters updated the Section on recent developments at the IAD and offered advice on evaluating issues that are likely to arise. The in-person audience was joined by several lawyers connecting remotely on their computers. Both remote and in-person attendees had numerous questions for the guests about how recent changes to family class application rules might affect their clients. A handout from Mojdeh Shahriari and a PowerPoint from Andrew Wlodyka, as well as a webinar recording of the entire presentation, are available to members of the Immigration Law Section with the minutes of the meeting on the CBABC website.
Refugee Lawyers Group Refugee Lawyers Group is uThe a sub-group of the CBA Immigration Section that holds meetings that deal specifically with issues relating to refugees. Their topics of discussion consist of refugee determination, including issues arising at the Refugee Protection Division (RPD), Refugee Appeal Division (RAD), and Federal Court, legal aid
issues, and building links with and identifying support groups for refugees in the community. Aside from refugee determination, they also discuss various issues affecting refugees, including exclusion, detention, removal and admissibility issues, as well as alternative processes for obtaining protection or permanent residence, primarily pre-removal risk assessment and humanitarian and compassionate applications. At the October RLG meeting, the group was briefed on the recent IRB Consultative Committee meeting with respect to current statistics and developments at the RPD and RAD. Also discussed were issues relating to Canada Border Services Agency interventions in refugee claims, and the recent creation of a Cessation Unit by the Minister, and a recent surge in applications by the Minister for cessation of refugee protection under s. 108(1)(a) and strategies in making legal challenges to such applications. Toronto lawyer Barb Jackman, a leading litigator on Charter issues pertaining to immigration and refugee issues, attended the meeting as a guest.
Overseas Lawyers Group Overseas Lawyers Group uThe (OLG), a sub-group of the Immigration Law Section, meets on the second Thursday of every month, from September until June. They meet informally over breakfast at Ricky’s All Day Grill, located on Dunsmuir at Abbott. The group discusses the latest developments in immigration and citizenship law and policy, shares practice tips and discusses challenging case scenarios. The Chair of the OLG, Meera Thakrar, typically
circulates an agenda in advance, and members are encouraged to contact her with any items they would like to see discussed. These meetings are also typically accredited for CPD credit by the Law Society of B.C. As a subgroup of the Immigration Law Section, Overseas Lawyers Group meetings are open to all members of the Section.
Chatter with Chairs — Dwight Stewart,
International Law Cicchetti, a lawyer in uTina the Litigation and Dispute Resolution group at Fasken Martineau, recently delivered a talk to the International Law Section entitled “Arbitration of Natural Resource Development Disputes.” Tina covered a range of considerations and challenges that may arise when a natural resource company finds itself involved in an international dispute with a partner or a host state. Tina presented the Section tips on how to mitigate the legal risks and protect a client’s investment before it results in a dispute. She also offered strategies to find information on the jurisdiction of the arbitration and to improve the chance of success in arbitration processes resulting from these disputes. A webinar recording of this meeting and Tina’s PowerPoint presentation slides, are available to International Law Section members in the minutes of this meeting on the CBABC website. For enrolled CBA members, click here more detailed information and available minutes from the Section meetings.
CRIMINAL SECTION As the CBABC Criminal Section Co-Chair on the northwest coast, there is one thing I want to say to young lawyers in B.C. – Come North! I moved here one year ago from Vancouver. You will not find a more collegial and welcoming Bar and there is more work here than there are lawyers. A busy, challenging and rewarding practice is here if you want it. Beyond the work, the natural beauty is breathtaking, at your doorstep, and in a home you can afford. This picture is my “backyard!” You will never regret the time you spend practising criminal law in the North.
GO ONLINE FOR MORE INFORMATION
DECEMBER 2013 / BARTALK 11
features LAURA BEST
Canada’s “Missing” Refugees New laws deter claims despite global crisis
he number of refugee claims in Canada has hit historically low levels following recent legislative changes. In the past twenty years, Canada has referred an annual average of 28,534 refugee claims to the Refugee Protection Division for determination. Acceptance rates by the tribunal have hovered around 44 per cent or 12,147 accepted refugees a year. While acceptance rates were slightly lower from 2009 to 2012 (between 3542 per cent), in each of those years more than 10,000 people were determined to be in need of refugee protection in Canada. Since massive reforms to the refugee determination system came into force in December 2012, the number of refugee claims referred to the tribunal has dropped by more than 50 per cent. A total of 9,100 new refugee claims are projected to be referred to the Refugee Protection Division in 2013. While the acceptance rate of new claims has been above average at 53 per cent, Canada is on track to reducing the number of accepted refugees by half. This amounts to an annual reduction of more than 7,000 people. The stunning drop in referred refugee claims is likely attributable to tougher laws facing refugee claimants in Canada. Under the December 2012 reforms, timelines facing refugee claimants were severely tightened.
12 BARTALK / DECEMBER 2013
Refugee claimants previously had 28 days to file the forms detailing the basis of their claim; this was reduced to a maximum of 15 days. Refugee hearings, which used to take months or more than a year to schedule, must now be heard within a maximum of 60 days. Limitations on access, tight time frames and burdensome evidentiary requirements limit the usefulness of the newly-instituted Refugee Appeal Division. Refugee claimants from designated “safe” countries (including Mexico and Hungary) face even shorter timelines and no right to appeal. Further, the stakes for claiming refugee protection are higher than ever. Other options for permanent residency have been cut off for refugee claimants. Previously, foreign nationals could file for refugee protection and for permanent residency on humanitarian and compassionate grounds simultaneously. The test for a grant of refugee status is persecution or a risk of torture, risk to life or risk of cruel and unusual treatment or punishment; the standard for a humanitarian and compassionate application is a lower “unusual, undeserved or disproportionate hardship.” With few exceptions, as of June 2012, those with pending refugee claims,
or those who have lost a refugee claim within the last year, cannot apply through the humanitarian and compassionate stream. The Pre-Removal Risk Assessment, which used to be provided to all failed refugee claimants prior to removal from Canada, is no longer available to an individual whose refugee claim was denied in the past year. Further, deportations are to happen in short order. Canada Border Services Agency is now legislatively required to remove failed refugee claimants “as soon as possible.” While deterring fraudulent refugee claims may be a valid policy goal, those who need and merit Canada’s protection have also been deterred from accessing the system. Even with a higher acceptance rate of 53 per cent, Canada is still missing more than 7,000 individuals who would be granted refugee protection in Canada over previous years. The drop in referred claims suggests that those individuals are either staying in countries where they continue to face persecution or remaining in Canada without valid immigration status for fear of coming forward. The drop is particularly alarming, as the United Nations’ High Commissioner for Refugees estimates there are currently 45 million displaced people worldwide, the worst refugee crisis in 20 years. Canada, in discouraging refugee claimants, is only adding to the crisis. Laura Best is an immigration and citizenship lawyer at Embarkation Law Group.
TAMARA DUNCAN AND CASEY L. LEGGETT
The Right to an Extradition Hearing Under the Extradition Act
ections 36(1)(c) and 36(2)(c) of the Immigration and Refugee Protection Act S.C. 2001, c. 27 (“IRPA”) purport to render inadmissible to Canada some foreign nationals and permanent residents and thereby authorize immigration officials to detain and deport foreign nationals and permanent residents on the grounds of criminality for “committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament.” However, we believe that if a foreign state seeks the assistance of Canada to have a fugitive returned there for prosecution, that foreign state must bring the appropriate extradition application through diplomatic channels pursuant to the Extradition Act, S.C. 1999, c. 18 (“E.A.”) and the accused should be entitled to the protections afforded to him or her under the E.A. and Canada’s international treaty obligations. Our view is that for Canada to detain someone and deport them subject to s. 36 of IRPA, when they should have been subject to extradition proceedings, is an abuse of process. As Madam Justice Molloy held in U.S.A. v. Tollman (2006) 212 C.C.C. (3d) 511, the power under the IRPA to refuse a foreign national entry to Canada on the grounds of serious criminality is a discretionary one.
This is to be contrasted with the scheme under the E.A. The E.A. clearly states that a foreign state wishing to have a person returned to it from Canada to face charges must proceed under the E.A. Our position is that the E.A. sets out the exclusive and mandatory process for extradition further to which the foreign national has considerably more rights than under IRPA. Furthermore, the extent that these provisions of IRPA purport to allow for the deportation of permanent residents and foreign nationals to foreign states where they face criminal prosecution and a loss of liberty, without affording them the substantive and procedural safeguards afforded to similarly situated persons proceeded against under the E.A., they violate s. 7 of the Charter. The procedural safeguards under the law of extradition in Canada are robust in comparison to rights under IRPA. Section 36 of IRPA therefore provides a perverse incentive for the government to illegally circumvent extradition rights. The panoply of constitutionally enshrined protections available to a person who is subject to the E.A. stands in sharp contrast to the lack of protections offered to a similarly situated person subject to
an IRPA admissibility hearing based upon allegations made pursuant to s. 36 of IRPA. Examples include: the right to a fair hearing and the requirement upon the Crown to prove a prima facie case before committal; the requirement that the evidence relied upon be sufficient to justify prosecution and be available; the unfettered right to appeal and to apply for bail pending appeal; the right to pre-surrender ministerial review; the ministerial obligation to protect the Charter rights of the person sought prior to the authorization of surrender; and the unfettered right to appeal the surrender order requirement, etc. all distinguish E.A. proceedings from IRPA proceedings. Foreign nationals are not bereft of rights. In our view, while non-citizens have rights under IRPA, in certain circumstances, they are constitutionally entitled to greater procedural fairness under the E.A. Lawyers should be alive to these situations and be prepared to argue at the Immigration and Refugee Board of Canada (IRB) that a deportation hearing is a disguised extradition and an abuse of process. If the IRB refuses to take jurisdiction to determine whether or not there was an abuse of process, then counsel might consider asserting that sections 36(1)(c) and 36(2)(c) of IRPA are unconstitutional and of no force and effect as they violate s. 7 of the Charter. Tamara Duncan and Casey L. Leggett, Martin+Associates, Barristers. DECEMBER 2013 / BARTALK 13
feature PETER EDELMANN
R. v. Appulonappa Overbreadth of the Human Smuggling Provision in the IRPA
n January 11th of this year, Mr. Justice Silverman of the B.C. Supreme Court struck down section 117 of the Immigration and Refugee Protection Act (“IRPA”), finding it to be of no force or effect as it is unconstitutionally overbroad. The decision arose in the context of the prosecution of four men alleged to have been crew members on the Ocean Lady, a ship carrying 76 Sri Lankan Tamil men, which landed in B.C. in the fall of 2009. All four men were charged under s.117, which at the time read as follows: “117. (1) No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act.” Justice Silverman found that although the law had been passed by Parliament with the objective of combating human smuggling, it was drafted in an overly broad fashion encompassing conduct beyond that objective. In particular, the section would capture anyone who aided and abetted a refugee claimant to come to Canada, even if they did so for altruistic or humanitarian reasons. The reason the section has this effect is because refugee claimants, by definition, do not have the documents required by the Act. Therefore, anyone who or-
14 BARTALK / DECEMBER 2013
ganizes, induces, aids or abets a refugee claimant to arrive in Canada is liable to prosecution under the section. It should be noted that Canada, along with the other signatories to the Refugee Convention, recognizes that a person fleeing persecution will often not be able to obtain proper documentation in the course of escaping from their country. Individual refugees are protected under s.133 of IRPA from prosecution for a series of offences, such as using false or improper documents, as long as their claim is successful. However, the protection under s.133
Mr. Justice Silverman of the B.C. Supreme Court struck down section 117 of the Immigration and Refugee Protection Act, finding it to be of no force or effect as it is unconstitutionally overbroad. does not extend to the offence under s.117. The absurdity of the situation can be illustrated using the example of an Afghan woman with an infant child arriving to make a
claim. If the woman were to come alone, although she does not have the proper documents, she is protected from prosecution if her claim is successful. If she brings her infant child, she is liable to prosecution because she is aiding and abetting the coming into Canada of the child who does not have proper documents. The situation is similar for spouses, family members or even friends who assist each other to come to Canada as refugees. The overbreadth of the section also affects others, such as humanitarian workers or family members in Canada, who assist refugees for altruistic reasons. This problem had been raised at the time IRPA was before Parliament, and the issue again came to public attention in 2007 when charges were laid under the section against Janet Hinshaw-Thomas, a humanitarian worker who was assisting refugees to make claims at the border in Quebec. Although the charges were ultimately dropped, the law itself was not changed despite strong calls from several quarters for it to be amended. The Crown has appealed the decision and Justice Silverman suspended the effect of his ruling pending a decision on the appeal. The matter was heard before the Court of Appeal on October 7th and 8th of this year and the decision is under reserve. Peter Edelmann practises criminal defence and immigration law with Edelmann and Company. He acts for one of the individuals charged in the Appulonappa matter.
guests What Lawyers Do in the Community Here and abroad Make it a Year to Remember! Join the 2014 Ascent for Alzheimer’s Team. Barbara Devlin, a partner at the law firm of Alexander Holburn invites you to take up the challenge of hiking Mt. Kilimanjaro, Tanzania, which stands at 19,340 feet above sea level. Barbara completed the hike in 2012 to help the Alzheimer Society of B.C. continue its amazing work of assisting other families to create joyous memories despite the difficult circumstances that accompany the disease – something her family was able to do in her father’s final years. In addition to raising awareness of the illness and funds for support programs and services, Barbara and the 2012 Ascent for Alzheimer’s Team also helped two team members set a Guinness World Record by documenting their ascent. Martin and Esther Kafer, who are both in their 80s and are celebrating their 60th wedding anniversary this year, now hold the record for being the oldest man and oldest woman to climb Mt. Kilimanjaro. Currently in its 16th year, there are now more than 180 Ascent alumni who have collectively raised more than $2 million. This is a team experience, from training to the onthe-mountain trek, and is symbolic of the commitment to ensure that no one is alone on the journey with dementia. To read more about Barbara’s story and to learn about how you can join the 2014 team click here or call 604-681-6530 or toll-free at 1-800-667-3742.
Stephen Herman Filmmaker and Lawyer Since 2010, Vancouver lawyer Stephen Herman has been volunteering with the Justice Education Society of B.C. (JES) to help document their international work. He has completed documentaries about JES work in Vietnam, Ethiopia and Central America. This most recent documentary, The Most Violent Place on Earth, chronicles the work of JES staff and volunteers to transform justice systems in Central America. As Herman stepped up to introduce the film at the premiere screening in April he jokingly apologized: “I’m not a filmmaker, I’m a lawyer” he said, with self-deprecating good humour. But as the film began it became clear that – despite reservations about his own abilities – Herman managed to capture the heart of the JES work. View this documentary
Building Effective Justice Systems in Ethiopia A team of B.C. lawyers, including prosecutors Anita Ghatak, Sandra Cunningham, Shannon Halyk, Sandra Dworkin along with defence counsel Marvin Stern, Janet Winteringham and Madam Justice Barbra Fisher, have been assisting the Justice Education Society (JES) in a justice reform project in Ethiopia. The goal of the project is to help build the capacity of police, prosecutors and judges to better address cases of violence against women. Funded by the Canadian International Development Agency, over the past 18 months this team has trained local judges and prosecutors in case management and investigation and oral trial advocacy. The training provided has not only reached more than 140 Ethiopians judges and prosecutors but now has resulted in developing a team of local trainers to continue delivering the training through the National Training Centre for Judges and Prosecutors. Left photo: Shannon Halyk with Ethiopian prosecutors working at Integrated Care and Justice Centre for Women and Children. Middle photo: B.C. delegation visits Supreme Court in Addis Ababa, Ethiopia. Right photo: Marvin Stern teaching an oral trial advocacy training course. DECEMBER 2013 / BARTALK 15
guest BILL SUNDHU
Training Tunisian Judges International Human Rights Law
he Tunisian revolution of January 2011 sparked the “Arab Spring” prodemocracy movements that led to the fall of Arab dictators. The aftermath of revolutions involve messy transitions in which success or failure of democratic uprisings is determined – think of Iran, after 1979. Tunisia is experiencing a struggle for control of the revolution and future direction of the country. In this evolving context, I recently travelled to Tunis to assist in the training of members of the Tunisian judiciary. The program “Training of Tunisian Judges” was provided through the International Bar Association, Human Rights Institute. The objectives of the program involve infusing the judiciary with knowledge of international human rights law. Judicial independence is a crucial ingredient of democracy and respect for rule of law. International human rights treaties enshrine the fundamental principle of an “independent and impartial” judiciary. The African Charter on Human and Peoples’ Rights enshrines the requirement of a “competent court or tribunal.” The training sessions are intended to build an element of critical mass. My co-trainers were from the UK and Morocco. The training required simultaneous translation in English and Arabic. My seldom used French language skills were useful in social settings. 16 BARTALK / DECEMBER 2013
Despite decades of authoritarian rule, Tunisia is a secular society and that was also reflected in the judicial contingent; one third were women. The training covered safeguards concerning due process and fair trial. My presentations included: introduction to international human rights law and concepts major universal human rights instruments and mechanisms for implementation regional treaties jurisprudence legal standards for protection of persons deprived of liberty judicial independence and the role of the legal professions. The first day involved overcoming skepticism voiced by a couple of judges as to why the program and what human rights meant – including western social values
Tunisia is experiencing a struggle for control of the revolution and future direction of the country. and hypocrisy on Palestine. These preconceptions were addressed and personal rapport established – all the while emphasizing human rights are universal, indivisible, interdependent and interrelated – with practical examples and jurisprudence. The transition has been marred by violence, assassination, a depressed
economy and social unrest. A “moderate” Islamist party – Ennahda – won the polls and there is suspicion as to its real motives and commitment to genuine democracy. A draft constitution makes Islam (not Sharia) the official religion, and while referencing universal human rights, it makes them subsidiary to the constitution. The government dismissed 82 judges without due process and deep concerns about subordination of the judiciary to the executive branch abound. The government judicial bodies are stacked with government appointees. The judges went on a strike and the issue remains up in the air. There is suspicion the government says the right things, but looks the other way with Islamists or interferes and manipulates power outright to create an Islamic state and society. The judiciary itself is divided. The judges are also terribly underpaid and that increases vulnerability to corruption. A goal of the 2011 revolution was to bring judicial independence through democratic transition. The struggle is on and democratic allies and institutions around the world can lend an assisting hand in strengthening democratic groups and institutions, including rule of law and an independent judiciary. There is reason for cautious optimism; I met highly impressive, informed and dedicated people. Ultimately, the fate of the revolution will depend on Tunisians themselves. Bill Sundhu, BA, LLB, Mst (Oxon), is a Kamloops lawyer.
fromthechair MICHAEL WELSH
2013 BarTalk Reader Survey Results
What you like in print and online
ith the major move in this issue to the first standalone digital BarTalk, we summarize highlights of the latest survey of our readers. We set out to discover what you know and like about the digital and print versions we have published and what you do not. All of this is to help us improve your experience reading BarTalk. These surveys are vital for the editorial board and staff in planning to make this magazine relevant and readable. We are very grateful to all those who participated. As with our last survey in 2011, the most encouraging thing you told us is that you read our magazine – in whichever format you have chosen – and read (or at least scan) nearly all the content. (That is with the exception of one reader who plaintively stated: “I read all of the articles – except those relating to technology since my employer refuses to allow the use of new technology.” We sympathize with this reader who is unable to read us online from the typewriter we understand the employer provides.) From all who responded we learned that we need to promote our online version and we will be doing that in the print BarTalk and in B.C. Branch emails and its website. Our next solely online edition will be next August, so this is the first reminder.
Secondly, you told us that you find both the print and online versions valuable, although most of you (about 85 per cent) still prefer to receive BarTalk in print and almost half keep back issues. Do not worry. We will still be printing, just not with every edition. More than 80 per cent said you save articles and would like a systematic way to archive them. This may be a service the B.C. Branch can provide on its website, where all past issues are currently accessible, and we will explore this. In terms of popularity contests, the President’s column and those by Tony Wilson and Dave Bilinsky (including his tech tips) rank highly, as does Bar Moves. Several of you also appreciated that we concentrate on different practice areas in each issue (especially when we get to your own areas). We do need to have a chat with one slightly confused respondent who said, “I tend to read the Discipline Digest because it’s a good reminder of how things deteriorate….” But absent that bit of line-blurring about who we are as compared with the Law Society, the survey respondents liked what we actually do print. Almost 70 per cent are interested in writing for us. So we will be looking for volunteer authors and will let you know in upcoming issues how you can see yourselves in print.
We received many ideas for future articles that we will use in the coming months, both in terms of areas of law and how to live a well-balanced life as a lawyer. And then there were the really innovative ideas. “Creative solutions to common legal challenges (Restaurant paging system for Chambers hearings, etc.).” “Lawyers in the martial arts.” (We are not sure if this is a suggestion for a return of trial by combat.) “Kijiji or Craigs List for lawyers. Something light and fun other than Tony Wilson.”
facts about local courthouses – I’m scraping the bottom of the barrel here.” “Access to justice times four. We have been flailing about as long as I can remember, with little result. If the medical profession were as bad, all the patients would have died.” And especially the person who made three suggestions and finished with “I don’t have a fourth right now – I’m on holidays.” Now that is a dedicated reader. Finally, we congratulate Krisha Dhaliwal, the lucky winner of our prize (a Kobo Touch eReader). Left photo: Michael Welsh, Chair, BarTalk Editorial Board. Right photo: Krisha Dhaliwal, holding her new Kobo Touch eReader. DECEMBER 2013 / BARTALK 17
news&events CBA NATIONAL NEWS
CBA Welcomes NAC Report on Access to Justice
(L-R): Lorne Waldman and Peter Edelmann at the Supreme Court of Canada CBA NATIONAL NEWS
CBA Intervenes in Minister of Citizenship and Immigration, et al. v. Mohamed Harkat, et al. Pro bono counsel Lorne Waldman of Toronto and Peter Edelmann of Vancouver intervened for the CBA at the Supreme Court of Canada on October 10, 2013 in the Mohamed Harkat appeal to address the constitutionality of the security certificate scheme. They argued that a person named on a security certificate must have the opportunity to know the case against them. The mere appointment of Special Advocates to speak for the named person falls short as a substitute for effective disclosure of secret information. Read the Factum
In August, the CBA released its report, Reaching Equal Justice: An Invitation to Envision and Act. Others are also talking about access to justice, and on October 8, the Action Committee on Access to Justice in Civil and Family Matters issued its report entitled Access to Civil & Family Justice: A Roadmap for Change. Both reports build a strong foundation for collaboration. CBA President Fred Headon welcomed the National Action Committee report saying, “We are pleased at the degree to which its goals are aligned with the 31 targets in the CBA’s Reaching Equal Justice report, released in August.”
CBA NATIONAL NEWS
When Access is Not a Good Thing
CBA NATIONAL NEWS
Federation of Law Societies of Canada v. Canada (Attorney General) Leave to appeal was granted in Federation of Law Societies of Canada v. Canada (Attorney General). The CBA will seek leave to intervene. Since 1999, the CBA has voiced its concerns over proceeds of crime legislation (money laundering) and has worked together with the Federation of Law Societies of Canada to ensure that proceeds of crime regulations do not infringe on solicitor-client privilege and that lawyers are part of the fight against money laundering, in a way that best protects their clients’ rights. Craig Ferris of Lawson Lundell in Vancouver will act for the CBA.
18 BARTALK / DECEMBER 2013
Online surveillance and privacy issues are getting a lot of press lately. National Magazine’s September-October issue takes a look at law firms’ data security provisions in “On Guard” written by Pablo Fuchs.
Read the Article
CBA NATIONAL NEWS
Kazemi v. Islamic Republic of Iran The CBA was granted leave to intervene in the Estate of the Late Zahra (Ziba) Kazemi v.
CBA NATIONAL NEWS
Leaking Information Law firms are custodians of their clients’ information. As such, they’re expected to ensure that confidential information doesn’t fall into the wrong hands. But are they really doing enough on this front? Ever since the Internet went mainstream, hackers have gone to great lengths to access critical corporate information. Now, in the wake of former U.S. intelligence contractor Edward Snowden’s revelations about National Security Agency eavesdropping, there is growing concern about the prying eyes of governments. And there’s more to it than the monitoring of online activities
Islamic Republic of Iran, which is scheduled to be heard by the Supreme Court of Canada in March 2014. The case concerns the applicability of the State Immunity Act in a civil action for the torture and murder of Zahra
motivated by national security concerns. The bigger risk for law firms is cyber-espionage committed by state-sponsored organizations, or governments themselves, looking to obtain corporate secrets for their own benefit. Several of Canada’s major law firms have already had to deal with raids on their information systems. Between September 2010 and April 2011, hackers traced back to China infiltrated the networks of seven Bay Street law firms in an attempt to derail Australia- and U.K.-based BHP Billington Ltd.’s $40-billion proposed takeover of Potash Corp. of Saskatchewan. The deal later fell through for unrelated reasons, but the episode was telling.
Kazemi. David Matas of Winnipeg acts for the CBA with the assistance of the National Section on International Law Chair, Monique Pongracic-Speier and Communications Officer, Noemi Gal-Or of Vancouver.
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DECEMBER 2013 / BARTALK 19
news&events View from the North FROM NORTHEASTERN BRITISH COLUMBIA TO YOU Living and working in the North makes for a busy life. New files come in, old files finally come to trial and are gone. Between the two, all the busy work that the law demands is performed and along the way we celebrate the high points. In the year that I have had the good fortune to practice and live here in the North, I have seen a number of such celebrations. Amongst my favourite of such events are the Regional Call Ceremonies. The journey to the Bar is a long one and I am always in awe of the biographies that I hear recited that reveal the path taken by our newest lawyers to ascend to the summit of their educational goals. Student’s principals typically tell those assembled of the achievements of the student and without exception have an anecdote or two to relate, which reveals something of their personality in the way they handled a situation. Following the principal’s introduction to the assembled, the local Bencher of the Law Society welcomes the new member and then I am often privileged to speak on behalf of our president and almost 7,000 members of the CBABC and relate the good work that we undertake on behalf of the profession and the public. The Supreme Court Justice, who happens to be sitting, then makes some final comments. Good feelings abound. Regional Calls, in these parts at least, are fairly well attended by the Bar, the judiciary, as well as friends and family. Following the call, a social gathering is inevitably held and the new member of the Bar has a chance to meet and introduce the legal community to family and friends. I use member in the singular as it is usually one student being honoured creating an extra special day for the new member. That’s just how we do things in these parts. My View from the North — Clint Sadlemyer, QC
CLEBC Update EDUCATING THE PROFESSION ABOUT WESA CLEBC’s initiative to educate the B.C. legal profession about the Wills, Estates and Succession Act is now well underway. A full suite of course and publication updates, along with an online resource centre, is planned to ensure that the B.C. legal profession has all the tools it needs to fully understand the new statute.
20 BARTALK / DECEMBER 2013
In February 2014, in Vancouver (February 13 and 14), Victoria (February 20 and 21), and Kelowna (February 27 and 28), CLEBC offers a full-day course, followed by a half-day course. The full-day course, “Estate Administration: Navigating the New Rules,” will deal with the nuts and bolts of the new Probate Rules and the WESA’s estate administration provisions. The half-day course on the second day, “Estates Applications under the New Rules,” will examine the rules and forms in more detail. CLEBC created a portal, found at wesa.cle.bc.ca, to connect
B.C. legal professionals with information and resources about WESA. Many informative articles are included, along with convenient listings of relevant print and online publications, and a listing of upcoming WESA events and courses. Check the site often as new information is added all the time. For more information, contact CLEBC customer service at 604-893-2121 or visit CLEBC’s website.
B.C. LEGISLATIVE UPDATE
ACTS IN FORCE Current from September 4 to October 15, 2013 Legislative Update is provided as part of the CBABC legislative and law reform program. It is a service funded by CBA membership fees, and is, therefore, provided as a benefit of CBA membership. The full version of Legislative Update is now only published online and available to CBA members exclusively at cbabc.org. INSURANCE ACT, R.S.B.C.
2012, C. 1 For the purposes of section 5 of the Statute Revision Act, R.S.B.C. 1996, c. 440, section 155 is in force September 27, 2013, sections 156 and 157 are in force March 31, 2014 and section 168 is in force September 27, 2013 WILLS, ESTATES AND
SUCCESSION ACT, S.B.C. 2009, C. 13 (BILL 4) Section 266 is in force March 14, 2014
BRANCH & BAR
14 2013 Annual General Meeting — Vancouver 14 December 2013 Provincial Council Meeting — River Rock Casino Resort, Vancouver
16 CBABC PD: Privacy in Cloud Computing — Online UBC LAW AWARDS FIRST-EVER ALLARD PRIZE FOR INTERNATIONAL INTEGRITY TO ANNA HAZARE The University of British Columbia’s Faculty of Law at Allard Hall presented Kisan Baburao Hazare (better known as Anna Hazare), one of India’s most influential social activists, with the inaugural Allard Prize for International Integrity at a special ceremony on September 25, 2013. The $100,000 prize is one of the world’s largest awards recognizing efforts to combat corruption and to promote human rights. “My lifelong mission to fight corruption and promote transparency is stronger for having received this award,” said Mr. Hazare. “I have never been attracted to money and wealth, but the Allard Prize will help me and all those that are working toward the same cause to continue the fight. I am hopeful that this international recognition will promote a movement for change that will endure beyond my lifetime for generations to come.”
2013 Mentoring Receptions at UBC and UVic
Photos from left to right: Heather Burley from UBC receives CBA Financial Services Corporation Law School Achievement Award from Dean Crawford – CBABC President; Branwen Francis from UBC receives CBABC Entrance Award from Dean Crawford – CBABC President; Marion Jane Henderson from UVic receives CBA Financial Services Corporation Law School Achievement Award from Dean Crawford – CBABC President; Margaret House from UVic receives CBABC Entrance Award from Dean Crawford – CBABC President.
DECEMBER 2013 / BARTALK 21
news&events CBABC WLF NEWS
CBABC Women Lawyers Forum Fall Activities Recapped The CBABC WLF kicked off the year on September 18 with the CBABC WLF Fall Launch and our popular Hot Tips from Hot Mentors event at the Law Courts Inn. The event featured a panel of outstanding women leaders, Valerie Dixon, Katherine Ducey, Azmina Kurim, Shona Moore, QC, Madam Justice Janzen, Carla Forth, QC and Linda Wong. Some of the highlights of their “toasty” tips: “If you want that partnership, ASK!” If you’re going to “ask,” make sure you “Know your limits.” Get to know what’s important to you to achieve equilibrium as “A balanced lawyer is a successful lawyer.” “Be prepared for change” as it is inevitable. Embrace change, learn from it, and then, “Pay it forward.” As communicators, it’s essential that we keep passing on what we have learned. We all have “Empathy, an essential ingredient to nurture client relationships. “Find your passion,” stay true to it and never give up on it. Listen to what you already know, love those around you and “Rather than count the days you have left, live each day to the fullest.” Concluding the evening, the CBABC WLF’s Vice Chair, Deborah Taylor, spoke about CBABC WLF’s support for the Ovarian Cancer Canada Walk of Hope and shared the trophy that the CBABC WLF team received for raising more than $38,000, the most of any team in B.C. and in Canada. On October 30, more than 50 CBABC WLF members gathered in Halloween masks and hats for the CBABC WLF Fall/Halloween Pot Luck. New members, including first year law students from UBC, had an opportunity to mingle and meet with women lawyers from all stages of their careers. This event is a fantastic opportunity to network, meet other members of the CBABC WLF, learn about upcoming CBABC WLF events, and of course enjoy a delicious spread of food. Continuing to promote awareness of a cause that is consistent with our broader purpose and of interest of help to our members, information leaflets were available for those who wished to learn more about the signs Panelists at the Hot Tips from Hot Mentors event. and symptoms of ovarian cancer.
CBABC WLF Announces its 2014 “Lunch & Learn” Program In conjunction with the Law Courts Inn, the CBABC WLF will be holding a series of three “Lunch & Learn” events between January and June 2014. The sessions will feature facilitated panel and audience discussions on topics of particular relevance to women lawyers, managing partners, and others responsible for law firm diversity and inclusion initiatives.
Upcoming CBABC WLF Events to Mark in Your Calendars Now! Stay tuned for details of the Senior Women Lawyers’ Dinner to be held in the week of January 13, 2014. Back by popular demand is a Junior Women Lawyers’ Networking event to be held on February 20, 2013. Don’t miss out on this opportunity to mix and mingle in a relaxed atmosphere. Details of the venue and time to be provided in the New Year. And don’t forget International Women’s Day on March 7. The CBABC WLF is planning a networking event and encourages women lawyers to come together to celebrate the achievements of women and women lawyers.
Further information on these and other planned events and programs
22 BARTALK / DECEMBER 2013
grantsapproved LAW FOUNDATION OF BRITISH COLUMBIA
Law Foundation Legal Research Fund: Refugee Law The Law Foundation of B.C. awards grants through the Legal Research Fund, which supports legal research projects that advance knowledge of the law, social policy, and the administration of justice. The fund is open to academics affiliated with law schools in B.C., academics affiliated with other faculties in B.C. whose proposed research project focuses on law, members of the legal profession, and non-profits with expertise in carrying out legal research. Recent changes to Canada’s refugee law through the Protecting Canada’s Immigration System Act (Bill C-31) and the Balanced Refugee Reform Act (Bill C-11) have raised concerns among the legal community in B.C. In November 2012, two of the five grants awarded through the Legal Research Fund were made for
In pixels or print
projects relating to these changes in refugee law. One was awarded to Peter Edelmann, Lobat Sadrehashemi and Suzanne Baustad for “The Implications of Refugee Law Reform on Access to Counsel for Refugees in B.C.” The project will examine how reduced timeframes in the refugee determination process will impact the ability of refugee claimants to access counsel in B.C., and whether the timelines pose any restrictions on the nature of legal representation if counsel is obtained. The second was awarded to Assistant Professors Ruby Dhand and Robert Diab of Thompson Rivers University Faculty of Law for “Canada’s New Refugee Health Care Law Regime: Constitutional and Human Rights Implications.” Professors Dhand and Diab will be examining the constitutional and human rights implications of changes made to Canada’s health care coverage for refugee claimants. These changes saw the elimination of all medical coverage from failed claimants and claimants from countries deemed “safe” by the Minister of Citizenship and Immigration, and exceptions would only be made if there is a potential threat to public health or safety.
2014 Projects The 2014 budget for the project funding will be determined by the Law Foundation Board at its meeting in November 2013. To be eligible for funding, a project must fall within one or more of the five program objectives of the Law Foundation: legal aid; legal education; legal research; law reform; and law libraries. For more information about the project funding (areas of encouragement, grant size, and application process) consult the Law Foundation website or call 604688-2337.
The journal most frequently cited by the Supreme Court of Canada is free to CBA members. Read The Canadian Bar Review online at cba.org/cbr. cba.org/cbr.
cba.org/membership cba.org/membership CBA member benefits also include access to other publications, Professional Development program discounts, advocacy and Sections & Conferences involvement.
DECEMBER 2013 / BARTALK 23
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A Friendly Reminder: Complete your 12 hours of continuing professional development (CPD) by December 31, 2013. At least two of the 12 hours must pertain to any combination of professional responsibility and ethics, client care and relations, and practice management.
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Missing Women Commission of Inquiry New Developments in Cross-Border Tax: Investing in US Vacation Property Applying Knowledge Management for Lawyers: Precedents The Extradition Act (Canada) and your Client New Vistas in Law Practice Management IP Law for the Non-IP Lawyer You can catch up with your CPD hours at your own pace by watching one of the Webinar Repeats. Contact email@example.com for more details.
IN PARTNERSHIP WITH THE CBABC WILLS & TRUSTS SECTIONS Sparkling Hills Resort at dusk.
Upcoming Webinar Privacy in Cloud Computing Date: January 16, 2014 Speakers: James M. Bond, QC, Alexander Holburn Beaudin + Lang LLP and Jack Newton, Clio Moderator: Stuart Rennie, Legislation and Law Reform Officer, CBABC
Retreat & Full Day Professional Development Event in Vernon Date: May 2-3, 2014 Speakers: More details to be announced Location: Sparkling Hills Resort, Vernon
NEW in Professional Development! E-learning On Demand
\\ Our online courses incorporate reading materials, quizzes, audio and video \\ Available 24/7 Requires Internet connection CBABC Professional Development is pleased to introduce our first e-learning on demand courses. Earn your CPD credits easily and conveniently, at the time that suits you best.
Course Title: Introduction to Ethics and Professional Responsibility in British Columbia
\\ Module 1 : Canons of Legal Ethics, Clients and Marketing (1 CPD hour) \\ Module 2: Administration of Justice, Supervision, The Profession (1 CPD hour)
To register, contact Professional Development: Email: firstname.lastname@example.org Tel: 604-687-3404 ext. 329
24 BARTALK / DECEMBER 2013
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DECEMBER 2013 / BARTALK 25
barmoves Who’s Moving Where and When Mike Coburn
Rupinder K. Dhaliwal
has joined Fasken Martineau DuMoulin LLP as a partner in the Tax group. He advises on a broad range of corporate and personal tax matters, specializing in corporate tax and cross-border transactions.
has been called to the British Columbia Bar and will commence her practice in Civil/Commercial Litigation and Personal Injury with Shergill & Company, Trial Lawyers in Surrey.
Kathleen E. Rand
Kimberley J. Santerre
has joined Koffman Kalef LLP’s Corporate and Commercial group. Kathleen articled at Koffman Kalef LLP and was called to the B.C. Bar on May 10, 2013.
has joined Jenkins Marzban Logan LLP as an associate with the Family Law group. Kimberley previously practised family law and commercial litigation at Rush Ihas Hardwick LLP.
Samantha P. Simpson
has joined Kaplan & Waddell as a partner. Sky’s practice focuses on residential and commercial real estate law.
has joined Jenkins Marzban Logan LLP as an associate with the Family Law group. Samantha previously practised family law at North Shore Law LLP.
Kerry-Lynne Findlay, PC, QC, MP
(Delta-Richmond East) was appointed Minister of National Revenue on July 15. She is looking forward to the challenges of her new economic portfolio.
has joined Goodwin & Mark as an associate, practising in the Family Law and Civil Litigation groups. Randall graduated from UBC, articled with Goodwin & Mark and was called to the Bar in 2013.
has recently launched his own collaborative law firm, Predovic Family Law & Mediation. He strives to resolve family disputes out of court with respectful negotiations and client education.
has opened Erica Toews Legal Research, where she provides legal research and writing services to other lawyers. Erica previously practised at Bull Housser and the Municipal Insurance Association of B.C.
26 BARTALK / DECEMBER 2013
SPACE IS AT A PREMIUM AND AVAILABLE ON A FIRST-COME FIRST-SERVED BASIS SO SEND YOUR BAR MOVE (MAX. 35 WORDS) AND PHOTO TO CBA@BCCBA.ORG NOW.
SPACE IS AT A PREMIUM AND AVAILABLE ON A FIRST-COME FIRST-SERVED BASIS SO SEND YOUR BAR MOVE (MAX. 30 WORDS) AND PHOTO TO BARTALK@CBABC.ORG NOW.
has joined Miller Thomson LLP’s Vancouver Office as an associate in the litigation department. He represents insurance clients in a variety of matters and assists senior counsel in a range of litigation.
has joined Pryke Lambert Leathley Russell LLP (PLLR) as an associate of the firm. His practice will focus on general litigation work and insurance defence. Matthew articled with PLLR and was called to the B.C. Bar on Sept. 13, 2013.
has joined Hammerberg Lawyers LLP as an associate and will be practising personal injury litigation.
has joined McCarthy Tétrault LLP as counsel with a focus on environmental and Aboriginal law. Prior to joining McCarthy, Selina was in-house counsel at SNC-Lavalin Environment & Water.
has joined Hammerberg Lawyers LLP as an associate and will be practising civil litigation.
has joined Nordel Law Group LLP as an associate after having completed her articles with the firm. Sarnjeet’s practice will focus on the areas of personal injury and general litigation.
has joined Harris & Company LLP from a large international law firm where she worked in the Labour and Employment group.
joined Roxwal Lawyers LLP as a partner on March 1, 2013. Jason continues to practise primarily in the areas of corporate law, and business acquisitions & sales.
has joined Pryke Lambert Leathley Russell LLP (PLLR) as an associate of the firm. Her practice will focus on all aspects of solicitor’s work. Kate articled with PLLR and was called to the B.C. Bar on Sept. 13, 2013.
has been admitted as an equity partner of Sangra Moller LLP. Mihai’s practice is focused on corporate finance, securities, mergers and acquisitions and commercial law.
DECEMBER 2013 / BARTALK 27
barmoves Who’s Moving Where and When
SPACE IS AT A PREMIUM AND AVAILABLE ON A FIRST-COME FIRST-SERVED BASIS SO SEND YOUR BAR MOVE (MAX. 30 WORDS) AND PHOTO TO BARTALK@CBABC.ORG NOW.
Amy K. Sidhu
has joined Waterstone Law Group LLP’s Chilliwack office. Amy will be practising general corporate/ commercial, commercial lending and real estate.
has joined Oyen Wiggs Green & Mutala LLP as an associate. Christopher’s practice covers all aspects of intellectual property law.
arTalk B f o e u This iss inaugural is our nly issue. digital-o he new
has joined Terra Law. Ms. Bahadoorsingh’s practice is focused on real estate finance, commercial lending, secured transactions and real estate acquisitions and dispositions.
Prime Minister Stephen Harper Announces Chief Justice of the Supreme Court Appointment The Honourable Christopher E. Hinkson, a judge of the Court of Appeal for British Columbia, has been appointed Chief Justice of the Supreme Court of British Columbia as of November 8, 2013. Mr. Justice Hinkson will replace Mr. Justice Robert J. Bauman, who was appointed Chief Justice of British Columbia on June 7, 2013. Mr. Justice Hinkson obtained a Bachelor of Laws in 1975 from the University of British Columbia. He was admitted to the Bar of British Columbia in 1976 and is a past member of the Yukon Territory Bar. He was appointed Queen’s Counsel in 1990. Mr. Justice Hinkson was appointed to the Supreme Court of British Columbia in 2007 and to the Court of Appeal for British Columbia in 2010. Prior to his appointment, he practised with Harper Grey LLP (formerly Harper Grey Easton & Co.) from 1976 to 2007. His practice included medical malpractice, personal injury, professional negligence, commercial litigation, human rights litigation and administrative law. He has served as a Clinical Assistant Professor, Faculty of Medicine and Adjunct Professor, Faculty of Law, UBC and as a lecturer for CLE, Continuing Medical Education, and Inns of Court.
28 BARTALK / DECEMBER 2013
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CBABC 9th Annual Branch Conference Scottsdale, Arizona November 14-16, 2014 More Info 1-888-687-3404
newmembers September & October 2013 Regular Member
Arik W. Broadbent
Fasken Martineau Vancouver
Heather E. Burley
Miller Thomson LLP Vancouver
Aubin Calvert Nathan Carreiro
Owen Bird Law Corporation Vancouver
Guild Yule LLP Vancouver
Sebastian Z. Nishimoto
BFL Canada Vancouver
Donna J. Martinson
Lindsay Kenney LLP Vancouver Thomas DeCoteau
Lindsay Kenney LLP Vancouver Meera Jain
Hartshorne & Mehl Vancouver
Fasken Martineau Vancouver Marie E. Willcock
Scholar Elspeth Kaiser-Derrick
Cindy Shin Ya Kou
Julia Kate Lockhart
Heenan Blaikie LLP Vancouver McCarthy Tétrault LLP Vancouver Wilfred D. Marcotte
Dan Marcotte Law Corporation Prince George
Ludmila Nydia Marenco
North Shore Law LLP North Vancouver Christopher H. McDougall
Carfra & Lawton Victoria Heather P. McMahon
Quinlan Abrioux Vancouver
Jasmin F. Mehroin
Patricia K. O’Neil
Crown Counsel Kelowna Mark M. Racic
Sangra Moller LLP Vancouver Natalie D. Sparling
Ross, Johnson & Associates Victoria Matthew B. Stainsby
Shapiro Hankinson & Knutson Law Corporation Vancouver
McMillan LLP Vancouver
McCarthy Tétrault LLP Vancouver
Samson K. Chan Rosalyn Chan
Ng Ariss Fong Vancouver
Man Chui Chan
Jonathan J. Chandler
Lindsay Kenney LLP Vancouver Leah Schurian
Samantha R. Charalambous
Farris, Vaughan, Wills & Murphy LLP Kelowna
Sarah Chegahno Nardia Chernawsky Mirella Cherny Jennifer K. Choi Vivian Chung
Borden Ladner Gervais LLP Vancouver
Lidstone & Company Vancouver Brian D.N. Bird
Mike Angel Zohal N. Arghandewal
McQuarrie Hunter LLP Surrey
Garen M. Arnet-Zargarian
Crown Counsel Prince George Julia Hincks
Ng Ariss Fong Vancouver Emelie L. Kozak
Gowling Lafleur Henderson LLP Vancouver
Tyson W.C. Lamarsh
Riordan W. Bacha Alexandra Ballantyne Rachelle V. Barnett Robert A. Baxter Kathleen Beavis Michael A. Beckett Connor Bildfell Mieko K. Bond Stacy Bonsu
Miller Titerle LLP Vancouver
Gerald Anthony Law
Jeffrey D. Bradshaw
Wallace M Wong & Co Richmond Bay Shen Loh
Cameron S. Bourne Danielle Brito Kirsten Brokop Camella Budzinski
Kathleen Connolly Stephan Cooper Stephanie Cousineau Kaitlin Coward Christopher J. Crisman-Cox Charles Crittenden Alexander F. Currie Robert Dallakyan Leonard J. Daniels Vanessa de Jong James Delaney Ammanjit Dharni Nimrit Dhillon Catriona Dooley Lindsay E. Dykstra Larissa A. Dziubenko
View all new members, including all Law Students DECEMBER 2013 / BARTALK 29
We take our careers as seriously as yours. • BIV 2013 Forty Under 40, winner • NALSC, President • St. Thomas More Lawyers Guild of BC, Chair • The Lawyers Weekly, monthly columnist • Make-A-Wish Foundation BC and Yukon, former VP and Board Member • The Counsel Network, Managing Partner
Congratulations Warren Smith on being one of BIV’s 2013 Forty Under 40!
www.thecounselnetwork.com VA N C O U V E R