THE CANADIAN BAR ASSOCIATION • SASKATCHEWAN BRANCH
WINTER 2019
VOL. 34.1
9|
IMMINENT PERSONAL PROPERTY SECURITY LEGISLATIVE REFORM IN SASKATATCHEWAN
11 | TAX LITIGATION 101: COLLECTIONS 14 | PROFILE: JUDGE GERALD M. MORIN
TOGETHER TOWARDS TOMORROW. MID-WINTER MEETING PROGRAM ENCLOSED — REGISTER NOW
IN THIS ISSUE
The Canadian Bar Association Saskatchewan Branch 305, 135-21st Street East Saskatoon SK S7K 0B4 www.cbasask.org
BRANCH NEWS 3
Editor's Notes
5
President's Report
7
Together Towards Tomorrow, The 2020 Mid-Winter Meeting
COMMENTARY 9
Imminent Personal Property Security Legislation Reform in Saskatchewan
11
Tax Litigation 101: Collections
13
Let's Not Build A Wall
FROM THE BENCH 14
Profile of Judge Gerald M. Morin
NOW ACCEPTING NOMINATIONS Saskatchewan Branch Treasurer December 15
NICOLE HAMM Olive Waller Zinkham Waller LLP
TONYA LAMBERT Student − College of Law
Elected Members of Council
CHRISTINE LIBNER Stevenson Hood Thornton Beaubier LLP
December 15
AMJAD MURABIT Saskatchewan Human Rights Commission
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HANNAH ZIP Editor
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BARNOTES Editorial Board
BarNotes is a publication of CBA Saskatchewan which is published 3 times a year. This publication is intended for information purposes only and should not be applied to specific fact circumstances without the advice of counsel.
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Advertiser Index
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Contact Monteen Dent, monteen@ cbasask.org for information on advertising. © CBA Saskatchewan 305,135 – 21st Street East Saskatoon, SK S7K 0B4 www.cbasask.org
EDITOR’S NOTES
LET'S GET COZY HANNAH ZIP LETTERS TO THE EDITOR hannahzip@gmail.com
The ground is blanketed in snow and there is a chill in the air winter has arrived. Whenever the temperature dips below zero I crave carb-heavy foods to sustain me through the cold months. In order to assist you in preparing for the upcoming holiday season, and winter in general, below is a perogy recipe that I make whenever the urge for hibernation begins. So cozy up with this issue of BarNotes and read about the
upcoming CBA Mid-Winter Meeting, immigration, tax issues, a profile of Judge Gerald M. Morin and much more, while savouring a plate full of warm, potatoey carbs. No Fail Perogy Dough This dough is perfect to make a day ahead of time so that you can throw your perogies together faster when you want to devour them. This recipe makes a lot of perogies, so freeze extras on a cookie sheet, without touching, for a few hours until solid and then transfer to a freezer-safe bag. Ingredients: 1 tsp salt 2 eggs, beaten 1 1/2 cups sour cream 2 Tbs melted butter
4 cups all-purpose flour Instructions: 1. Mix salt, eggs, sour cream and butter together. Stir in the flour until just combined and knead with your hands until you have a smooth ball of soft dough. 2. Cover and let rest for 2-24 hours. 3. Roll out to approximately 1/8 of an inch thick and cut into 3 x 3 inch squares and place one tsp of your favourite mashed potato recipe, or other filling, in the centre of each square. Fold the dough over the filling and pinch close. 4. Boil until perogies float, then fry in butter and onions, and top with fresh dill, sour cream and/or mushroom sauce. Eat them all!
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WINTER 2019 3
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BRANCH NEWS
PRESIDENT'S REPORT LORELEY CHEKAY SASKATCHEWAN GOVERNMENT INSURANCE lchekay@sgi.sk.ca (306) 751-1221
It has been an exciting start to the year and I really need to thank Nicholas Cann Q.C. for his leadership and continued friendship. CBA Saskatchewan began the year in full swing with a focus on various core issues for our Branch – member recruitment, sections and our response to the TRC. In September, CBASK began a very important dialogue with local Indigenous lawyers. The discussion highlighted the need for CBASK to self-reflect on its own processes, to identify what changes could and should be made and what contributions CBASK could provide to addressing the calls to action in the Truth and Reconciliation Task Force report. This dialogue will continue with a goal of becoming a core value for the Branch.
experiences and value to the community as lawyers and volunteers. One such event was held at the College of Law “Bringing Indigenous Law before the Courts”. We were fortunate to have Marilyn Poitras, Director, Native Law Centre and two Federal Court Judges attend thanks to the wonders of technology allowing Justice Paul Favel to attend via video link while Justice Sébastian Grammond joined us at the College. And of course, our Sections are now well underway and back into action. We have 31 active sections providing a plethora of topics that we hope you take advantage of.
An upcoming opportunity to continue this dialogue and provide the profession with an educational opportunity is the 2020 Mid-Winter Meeting in Regina on January 30 and 31. As part of the outstanding program, the President’s Forum will provide a platform to hear from legal, community and government participants of the MMIWG inquiry.
At the national level President Vivene Salmon is moving the organization through its continued transformation. One such objective is Shared Services where branches collaboratively utilize resources and infrastructure by providing greater efficiencies and value for membership. The organization continues to focus on membership growth and value.
September is also the time we kick off the year with various events providing an opportunity for the Branch and its members to educate and share our
I am looking forward to a rewarding and challenging year as President with other members of your Board, Christopher Weitzel,
Réche McKeague, Kathryn Gilliss, Charmaine Panko and Jana Linner. CBASK is about its members and member input is invaluable. As always we welcome any comments, questions and suggestions.
WINTER 2019 5
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BRANCH NEWS
TOGETHER TOWARDS TOMORROW, THE 2020 MID-WINTER MEETING STEVEN DRIBNENKI SASKATCHEWAN URBAN MUNICIPALITIES ASSOCIATION
“Together Towards Tomorrow” is the theme of the CBA Mid-Winter Meeting, January 30 and 31, 2020 at the Delta Regina Hotel in Regina, on Treaty 4 Territory and the Homeland of the Métis. This year brings lawyers from across Saskatchewan together for insights from leading experts, using an innovative format that combines targeted sessions on key areas of law, “crossovers” linking lawyers in different practice areas, and a focus on the big issues affecting our whole province. By bringing us all together, we can work towards a better tomorrow. This year’s highlights: • Justice L. Schwann, Justice C. Dawson, and Associate Chief Judge M. Beaton will discuss current topics facing the courts and justice system, including ethical and practice issues for lawyers; • Justice G. Mitchell, Beth Bilson Q.C., Rick Engle Q.C., and Amy Groothuis will review applying the Charter in administrative decision making; • At the annual "Breakfast with the Minister", the Minister of Justice and Attorney General for Saskatchewan, The Honourable Don Morgan Q.C., will speak on matters of interest to the profession;
• At the President’s Forum, Macrina Badger, Constitutional Law Branch, Erica Beaudin, Regina Treaty/Status Indian Services and Katrina Swan of the Regina Police Service will reflect on lessons learned from the National Inquiry into Missing and Murdered Indigenous Women and Girls; and • Michael Herman and Dr. Anriyka Papish will discuss mental health issues affecting the legal profession and how to raise awareness and create a work culture that helps build resilience. A sample of the other big topics on offer: For all lawyers: a panel reviewing Saskatchewan’s perspective on carbon pricing, discussion on artificial intelligence in practice, a presentation on the importance of diversity in the legal profession, and crisis management lessons learned from the Humboldt Broncos tragedy. For solicitors: trends in purchase and sales transactions including privacy and employment issues, a practical update on condominium law, and a crossover presentation on wills and estates litigation. For criminal law lawyers: an indepth review of sexual assault law, a criminal law update, and a crossover presentation reviewing one year of legal cannabis, including perspectives on the effects on rental properties and workplaces.
For family law lawyers: an expert panel speaking on current issues in family law, including support, custody, and property division, and a crossover presentation with a business law practitioner on valuation and distribution of corporate assets. Other great sessions: get up to date on developments in immigration law, hear about external and inhouse counsel cooperation, take part in a workshop on responding to cybersecurity breaches, and attend an exciting session on contract drafting designed for all lawyers. Please check out the brochure for the entire educational program. The Law Society of Saskatchewan has approved the educational program for credit of 12.5 CPD hours, including 12.0 ethics hours. The Mid-Winter Meeting is not all business! Join us for “All Together” on Thursday, January 30, 2020 at the Casino Regina in the Telegraph Room for socializing, delicious appetizers and drinks. Finally, I would like to acknowledge the support of our sponsors and exhibitors and the CBA Saskatchewan Branch staff, Monteen Dent and Jodi Snow. I also want to extend my appreciation to our exceptional committee members – Holli Kuski Bassett, Loreley Chekay, Lindsay Ferguson, Marc Kelly, Kristél Kriel, Jana Linner, Ahmed Malik and Graham Quick for all their excellent work and tireless efforts. We look forward to seeing you at the 2020 Mid-Winter Meeting in Regina!
WINTER 2019 7
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COMMENTARY
IMMINENT PERSONAL PROPERTY SECURITY LEGISLATIVE REFORM IN SASKATCHEWAN CLAYTON BANGSUND COLLEGE OF LAW, UNIVERSITY OF SASKATCHEWAN
RONALD C.C. CUMMING, Q.C. COLLEGE OF LAW, UNIVERSITY OF SASKATCHEWAN
According to the late Grant Gilmore, “[t]he only legal certainty is the certainty of legal change.” In this regard, Saskatchewan, in another pioneering moment in the arena of personal property security law, recently became the first province to implement changes recommended by the Canadian Conference on Personal Property Security Law (the “CCPPSL”). The CCPPSL furnishes a forum for the exchange of views and experiences among persons working in the area of personal property security law. At its 2014 annual meeting, held in Halifax, Nova Scotia, the CCPPSL tasked a Working Group (of which we are both members) with examining of the Canada’s common law provinces and territories for the purpose of identifying potential items of reform. The review began in earnest and in 2017 the report was finalized by the Working Group, then ratified by the CCPPSL at that year’s annual meeting in Edmonton, Alberta. In light of the
success in Canada
and abroad, the CCPPSL report does not call for whole-scale reform, but instead recommends a patchwork of refinements and innovations that improve the substance and structure of the statute. The report sets out 21 items of reform which apply, to in each varying extents, to the of Canada’s common law provinces and territories. These items address a range of matters involving perceived omissions, troublesome court interpretations, wording ambiguities, and the need for statutory updating in response to technological advances. Substantive topics addressed in the report include, non-exhaustively: recognition of electronic chattel paper, and control as a method of perfecting a security interest therein; purchase-money security interests and cross-collateralization; refinancing of purchase-money security interests; allocation of payments between secured and unsecured debt; time for determining priorities; knowledge of buyers or lessees of collateral; elimination of mandatory serial number registration for consumer goods; security interests in statutory and contractual licences; standardization of the attachment requirements for after-acquired property; simplification of negotiable property priorities; clarification of rights of account debtors (i.e. set-off); and conflict of laws. (the “ ”) passed third reading before Saskatchewan’s Legislative Assembly on March 12, 2019, and received Royal Assent on May 15, 2019. The amendments will take force of law upon Proclamation
by the Governor in Council. The specific topics addressed in the include all of those items in the CCPPSL report that are relevant to Saskatchewan, as well as a few additional items including: provisions in both the PPSA and recognizing a prepaying buyer’s equitable interest in the property subject to the sale; provisions subordinating nonpurchase money security interests to the interests of pension plan beneficiaries; a provision repealing conflict of law amendments that were enacted in 2010 but never proclaimed, and that have been superseded by the updated version of conflict of law provisions introduced in the . The legislative amendments in the necessitate changes to According to our sources, the overall suite of amendments may take force this fall. contains features too numerous to describe in this article. We have set out below brief descriptions of some of the more significant features. New Conflict of Laws Rules Sections 5-8 of the current PPSA are displaced in the with a revised set of conflict of laws rules. The changes are designed to provide the basis for much greater uniformity of conflict rules among Canadian jurisdictions and to interface with features of the conflict of laws provisions of the American However, until all Canadian common law jurisdictions adopt the CCPPSL
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COMMENTARY recommendations, the new provisions have parallels only with the Ontario and British Columbia Protection of Pre-Paying Buyers addresses the issue The that arose out of the 1987 decision of the Saskatchewan Court of Appeal in Subsections 30(2.1) and (2.2) provide that an ordinary course buyer who has paid a substantial part of the price of the goods has an equitable interest in goods acquired by the seller even though legal title to the goods has not passed to the buyer. The effect of the provision is to give priority to a prepaying buyer over a secured party that has a security interest in the seller’s inventory. Parallel amendments to section 20 of produces the same result where the seller becomes a bankrupt before title to goods passes to a buyer. Expansion of the “Garage Sale” Priority Rule is Section 30(3) of the current amended to provide that a buyer of consumer or farming goods need not be concerned about security interests in the goods purchased or leased if the price or market value is $1500 or less. This is an increase from the current amount of $1,000. Knowledge as a Factor in Priority Subsection 20(3) of the places buyers in a similar position as that of secured parties when competing with prior unperfected security interests. Under the current , a competing secured party that has a perfected security interest need not be without knowledge of the prior unperfected security interest in order to have priority. The provides that a buyer for value is given priority over an unperfected security interest in goods even though the
10 BARNOTES
buyer has knowledge of the security interest. Serial Number Registration and Bankruptcy extends to security The interests in consumer goods the approach that currently applies to security interests in equipment. In order to have priority over the debtor’s trustee in bankruptcy, it is not necessary for a secured party to include the serial number of serial numbered goods; a registration based on the debtor’s name is sufficient. The result is that a trustee in bankruptcy cannot defeat a security interest in consumer goods merely because the registration relating to the security interest does not include the serial number of the goods. CrossCollateralization of Purchase Money Security Interests As a result of new sections of the , where is there a series of transactions with one financer providing for purchase-money security interest in inventory, the purchase-money priority extends to all inventory acquired with the financing, and all amounts owing by the debtor to the financer under the arrangement are deemed purchasemoney obligations.
Electronic Chattel Paper introduces The subsections 2 (1.2), 24.2 and 31 (8) , which recognize that a to the security interest in “electronic chattel paper” can be perfected by “control” without the necessity to take physical delivery of the contracts that comprise the chattel paper. Notice of Enforcement requires a secured The party to give notice of enforcement to both prior and subsequent holders of security interests in the property subject to enforcement.
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COMMENTARY
TAX LITIGATION 101: COLLECTIONS AMANDA S.A. DOUCETTE STEVENSON HOOD THORNTON BEAUBIER LLP
JESSI BROCKMAN STEVENSON HOOD THORNTON BEAUBIER LLP
This is the second of a series of 3 articles on the topic of tax litigation. In Part 1 of the series, we discussed filing objections and appeals with Canada Revenue Agency, and Part 3 will feature a discussion on various relief provisions and equitable remedis available to taxpayers. Canada Revenue Agency (“CRA”) has broad powers of collection. CRA can collect amounts owing from a taxpayer including: income tax; payroll deductions; GST/HST remittances; customs; excise and other levies; and benefit overpayments (including Canada child benefit and GST/HST credit). CRA also has the right to collect amounts owed for other government programs, such as defaulted Canada Student Loans, Employment Insurance overpayments and penalties, and Canada Pension Plan overpayments, grants and contributions payments. Collections Action once Notice of Objection filed Typically, CRA will wait 90 days after issuing a Notice of Reassessment before attempting to collect on tax owing. Subject to specific exceptions
discussed below, when a Notice of Objection is filed by a taxpayer, collections action is held in abeyance pending the results of the objection. Similarly, if a taxpayer appeals further to the Tax Court of Canada, collections action remains in abeyance. However, once a final judgment is rendered by the Tax Court of Canada, CRA is permitted to commence collection action. Even though collections action may be suspended, the taxpayer may choose to pay off the outstanding amount since CRA applies compound interest on all outstanding amounts. If the taxpayer wins their objection, the interest is removed. However, if the taxpayer loses, they are now responsible to pay both the principal and the interest. CRA does not consider payment of an outstanding account to be a sign that the taxpayer agrees with the reassessment. Special rules apply to collections action when the taxpayer is a “large corporation”. 1 Large corporations are not protected from collections action while an appeal is in progress, and are required to pay ½ of the federal tax in dispute immediately upon receipt of the Notice of Reassessment. 2 Exceptions to the Moratorium on Collections Action As a general rule, collections action is held in abeyance pending the results of a taxpayer’s appeal. However, there are several exceptions to this rule, most notably: • CRA is permitted to take immediate collections action respecting
amounts deemed to be held in trust (i.e., CPP, EI, GST); and • Non-resident tax. In addition, if CRA believes that their right to collect the tax is “in jeopardy”, they have the right to seek a “jeopardy order” from the Federal Court – regardless of whether a Notice of Objection has been filed. Communications with CRA Collections When a taxpayer owes money to CRA, they will typically receive a “collections notice” along with a “Statement of Interest Adjustment” which sets out the interest that has accrued on the outstanding amount. This correspondence will be sent by a specific collections officer who has been assigned to the client’s file. When dealing with collections matters, it is always preferable to be proactive. The best chance of making payment arrangements with CRA is when the first collection notice goes out. Typically, it is CRA’s policy that the amount outstanding needs to be paid off in full in 12 months. However, if that is not possible for the taxpayer, the taxpayer will need to provide monthly income and expense information to CRA justifying the amount they are able to pay. In tangent with this, CRA will usually want post-dated cheques for a 6 – 8 months period. Alternatively, taxpayers can make payments online using “My Payments” on CRA’s website, which does not require a “My Account” password or profile.
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COMMENTARY
CRA has broad collections powers, and has no legal obligation to negotiate with the taxpayer for a payment plan arrangement. If the taxpayer is not paying, and a suitable payment plan arrangement cannot be reached, CRA has the legislative right to garnish bank accounts of taxpayers.3 A garnishment notice is typically called a “Requirement to Pay” or a “Third Party Demand”. CRA usually starts by issuing such notices to the taxpayer’s bank to clean out bank accounts and will then send notices to employers, clients or other sources of income. No warning needs to be issued to the taxpayer in advance. A garnishment notice can be challenged in the Federal Court.
respecting another taxpayer, it is important to advise them that they have to comply with the requirement. If they fail to comply, that person can become liable for failing to pay CRA.
If you are representing a client who receives a Requirement to Pay
Shareholders of a corporation could also face liability for a corporate tax
Director and Shareholder Liability Directors and officers of a corporation may be exposed to liability for a corporate tax debt if the corporation fails to set aside and remit GST/HST and source deductions. Generally, directors and officers will not be liable for unpaid income tax of a corporation unless it can be shown that the director participated in a certain decisionmaking process to effect avoidance of the income tax debt. 4
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debt. Pursuant to s. 160 of the ITA, if a shareholder receives a dividend (or other property) from the corporation at a time when the corporation owed income tax debt, CRA can hold the shareholder jointly and severally liable with the corporation for the corporate tax debt (up to a maximum of the amount of the dividend/property so received by that shareholder).
Section 301(1.2) of the Excise Tax Act (Canada) (“ETA”) and ss. 165(1.11) and 225.1(8) of the Income Tax Act (Canada) (“ITA”). There is typically a reference to the status of “large corporation” at the bottom of the Notice of Reassessment.
1
2 Section 164(1.1)(d)(ii) of the ETA and 225.1(7) of the ITA. 3
Section 224 of the ITA and s. 317 of the ETA.
4
See for example, Groscki v. The Queen, 2017 TCC 249.
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COMMENTARY
LET'S NOT BUILD A WALL BETH BILSON, Q.C. UNIVERSITY OF SASKATCHEWAN
One of the hallmarks of the current political scene in the United States is the rancour of the debate over immigration, and the overtly racist nature of many of the contributions to this debate. That drumbeat has been somewhat more muted in this country, but it should not be forgotten that there is a political party of sufficient significance to participate in the televised leaders’ debates which is built on an explicitly anti-immigration platform. Or that an escalating number of Canadians, according to polling agencies, have expressed concern that current levels of immigration pose a threat to “Canadian values”, whatever those might be. In 2019, Canada accepted 300,000 immigrants. Over the past decade, the average has been about 250,000 per year. In an article published in October of this year, the which is not generally seen as an outlet for radical opinion, outlined the business case for maintaining these levels of immigration, or perhaps increasing them. The author, Gabriel Friedman, pointed out that Canada has long depended on regular influxes of new immigrants to refresh and stabilize the economy. He noted that the Canadianborn population has not had a rate of growth that would replace the current population since the 1970s. One of the reasons this has not had
an excessively disruptive effect on the economy is that younger newcomers have been available to replace an aging workforce, a dynamic that will become increasingly important as older Canadians draw more and more heavily on the health care system and other social programs. The author also notes that recent research findings do not support the propositions that current levels of immigration have a negative impact on employment rates for Canadians, or that immigrants draw more heavily on tax-funded social programs than the Canadian-born. Statistics Canada has produced studies that show that immigrants are responsible for initiating a high number of new business enterprises, that those businesses often create new jobs, and that immigrants’ levels of educational attainment are, on average, higher than those of the Canadian-born population. The conclusion in this article and other publications is that it is important to the economic welfare of all of us that immigration be maintained at the current or higher levels, and this is, of course, an important component of any discussion of immigration policy. There is another case to be made, however, based on the benefits of diversity. The contributions of immigrants are embedded in the character of the country, and it is hard to imagine how Canadian society could sustain its vibrancy without these rich components.
What should be the balance between economic and humanitarian concerns in admitting immigrants? How can the qualifications and skills of immigrants be better aligned with the requirements of Canadian employers? What kind of supports and programs are necessary to ensure that immigrants are able to make a successful transition to new lives in Canada? If the concerns being raised about immigration are prompted by issues of this kind, they can be met by continuing review and improvement of immigration policies and programs. If these concerns are instead coded expressions of antipathy to racial diversity, or of an unwillingness to welcome and accommodate newcomers who do not look like us or sound like us, that is more disturbing. It does require effort, and it is often a source of stress, for us to interact with people who come from a different cultural background and have different ways of understanding things. The rewards of this effort, however, have been huge for our society, and the fruits of this effort have played a significant part in making us who we are. It would be unworthy of us to resort to an approach to immigration based on racist premises or some image of homogeneity that is neither accurate nor desirable.
There is certainly a legitimate conversation to be had about immigration policy in this country.
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FROM THE BENCH
PROFILE OF JUDGE GERALD M. MORIN
Gerald M. Morin was born in a log building, which served the community of Cumberland House as a hospital. Cumberland House is often said to be the oldest settlement in Saskatchewan, established in 1774 as a major inland trading post. It is on an island that is approached from the west by the Saskatchewan River, (Saskatchewan is a Cree word that translates to swift flowing river, and is properly pronounced phonetically, soo-getch-chee-one), from the Northeast the Sturgeon Weir River which also connects to the Churchill River. It was this physical feature that determined the permanency of the community during the fur trade era. His parents, John and Mary-Alma Morin had six children and Gerald was the 5th child in what would have been a household of five boys and one girl if they had ever shared one home. Tragic events led to the early deaths of his two older siblings. Gerald marvelled and learned from the strength of his parents. The importance of education was not lost on Gerald. His grandfather, Daniel Morin, in the 1930’s, had allowed his children, including Gerald’s father, the late John Morin, to attend Residential School at Sturgeon Landing. Daniel
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Morin was a Peter Ballantyne Band (Cree Nation) trapper and fisherman. His wife, the former Nancy Custer was born along the Sturgeon Weir River. Daniel had made a promise to his children that if they went to Residential School, he would follow them and live nearby. True to his word, Daniel and Nancy relocated close to their children. A generation later, John, Gerald’s father made a similar promise to his children. Gerald attended school at Charlebois school in Cumberland House to the end of Grade 10. He then had to move to Nipawin in 1969 to take his Grade 11 and 12 at the L.P. Miller High School, as there was no high school in Cumberland House. During this time, he stayed in a boarding home. John and Mary made sure that Gerald made it home whenever he could. Gerald made a similar promise to his son, Daniel, who has now obtained an MBA. After graduation Gerald went commercial fishing with his uncle Jim Carriere. Then, over the winter of 1971-1972, Gerald worked for a contractor constructing a lagoon at Cumberland House. Part of his job was to keep overnight fires going at the frozen evacuation site so that a backhoe could move the dirt the following day. It was around this time that Gerald came to the realization
that his career path needed to take a different direction. Gerald then attended SIAST in Saskatoon and obtained his Social Work Certificate I 1972-73. He then took his Bachelor of Social Work degree through the University of Regina from 1975-1979. Life was busy. He had gotten a job as a Probation Officer and was stationed at Green Lake, then Buffalo Narrows in Northern Saskatchewan. He was married and had a son. Gerald had an interest in community. He sat on the Legal Aid Board and was elected by acclamation to sit on Town Council in La Ronge at the age of 28. He had a competitive and determined side to him. He played both hockey and curling while in La Ronge.
FROM THE BENCH
In 1981 Gerald accepted a teaching position at the University of Manitoba where he stayed until 1984. Then, in May 1984 Gerald attended a seven-week summer law school preparatory program in Saskatoon, called the “Program of Legal Studies for Native People.” This was the start of a legal career in the making. Gerald graduated from the College of law, at the University of Saskatchewan, in 1987 and was called to the bar in 1988. Gerald enjoyed the practice of law. The independence and its accompanying responsibilities along with the accountability allowed him to flourish. He is fluent in both the Cree and English language. This was a major asset. He was able to interpret issues such as Treaty Land Entitlement for Cree speaking people. As a lawyer Gerald quickly gained a reputation as a criminal defense lawyer. He participated in numerous jury trials. He was involved in several inquiries including the Nerland inquiry, which centered around a Nazi sympathizer who had shot and killed an Indigenous trapper. In January 2001, he took on the role as a jurist with his appointment as a Provincial Court Judge. He was tasked with designing a Cree Court to preside in Northern Saskatchewan. Gerald was successful and maintained and expanded this Court over an 18 year career. His cultural sensitivity, knowledge and the fluency of the Cree language was essential. With Gerald’s retirement the Cree Court is now presided over by Judge Mary McAuley. Throughout his career Gerald had established a rapport with various elders and community people which led him to incorporate Cree Court fundamentals in all aspects of his
career. He saw that the justice system had been told in a variety of hearings over the years that it must acknowledge certain First nation values, culture and spirituality in redressing wrongdoing. Communities were encouraged to find solutions within the process of justice restorative approaches. Healing of the people was a fundamental principle that came to the forefront because of the devastating effect of Residential Schools and the 60’s scoop. Gerald learned from history and used the following principles in understanding who the person in the dock was, as follows: 1. Eh-sah-seep-peetahk (one who doesn’t listen) - this person will generally keep living their life in a manner that shows he has not listened to his parents, teachers, probation officer or the Court orders. 2. Eh-kitimag-gish-siit (although poor by poverty standards but more lifestyle issue) – one who is severely hampered by addictions, lack of/or life skills. Their criminality is based on acquiring ill gotten gains to support an addiction. 3. Eh-gageh-patshiit (one who makes a mistake) – this often describes a person not involved in criminal behaviour but for this one major incident. After years of sobriety, a person makes a bad decision where the consequences are grave in nature. 4. Eh-matchat-shiit (the evil one) – one who does harm
to the community and its members based on brazen acts of criminality without caring about the consequences. Gerald continues to express his belief in the mediation approach, believing the premise that peace keeping between individual community members has a better chance of success as opposed to a Court sanction process. In this regard, he believes the mediation process should be encouraged and enhanced while maintaining respect for the rule of law and incorporating indigenous values. Gerald has now retired from full time judging but will continue to sit in relief when he is available. In his spare time, he enjoys fishing in Northern Saskatchewan, golfing and spending time with family and friends.
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STUDENT HUB
STUDENTS ADVOCATING FOR JUSTICE: CLASSIC'S INTENSIVE CLINICAL PROGRAM TONYA LAMBERT UNIVERSITY OF SASKATCHEWAN LAW STUDENT
Community Legal Assistance Services for Saskatoon Inner City Inc. (CLASSIC) is a free legal clinic providing accessible legal services and programming to low-income community members, while also giving law students the opportunity to gain valuable experience through CLASSIC’s Student Training and Education Program. Students and lawyers assist clients through a variety of programs, primarily the Walk-In Advocacy Clinic (WAC). Students in the semester-long Intensive Clinical Law program serve (under direct supervision of staff supervising lawyers) as advocates for WAC clients. Clients can get assistance from supervised law students in 25 different areas of law, including immigration and refugee, criminal, employment, estates, institutional charges and small claims. Residential tenancies issues and criminal matters together comprise slightly over half of the files. Every student will work on files in multiple areas. This multipractice area model sets CLASSIC apart from similar clinics across Canada, where staff lawyers practice in a sole area and clinics are developed around a sole practice area. “The Intensive Clinical Law program offers multiple benefits to law
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students,” explains Professor Sarah Buhler. “Students work directly with clients in a wide variety of areas of law and have the opportunity to hone skills in client interviewing and counselling, legal research and writing, negotiation, and advocacy before administrative tribunals and Provincial Court.” One of the many valuable skill sets students learn at CLASSIC is how to work with clients. This involves establishing trust, listening actively, communicating clearly and concisely, and managing time and expectations. It is a skill set which comes through experience and is not possible to teach in a classroom. Cheryl Giesbrecht explains what the program taught her about working with clients: “I learned about managing expectations, being thorough, keeping notes, learning to assess what kinds of things a particular client might need emphasized to them.” These skills and many others such as file management, document preparation, negotiating and communicating with opposing counsel, preparing and running hearings and trials and enforcing money judgements are all honed under the close supervision and mentorship of CLASSIC’s supervising lawyers – lawyers who are looked upon with respect nationally for being adept in many areas of law and experts in experiential training. “Each
lawyer
brought
different
things to the table,” says Giesbrecht. “It was helpful to have lawyers who worked in different ways and held varied perspectives and experience. I learned a lot about the practice of law and about the social context that exists around the laws for many people.” “Their edits of my work would often include explanations of why and what I could do differently to improve,” says Kimball Macmillan. “Also, they would explain the law and why procedures were in place. I am a person who likes the ‘why' being answered and not just the ‘how’. They were great for that. Their guidance was invaluable to my overall enjoyment of the program.” The Intensive Clinical Law program includes a weekly seminar on access to justice where students reflect upon and discuss critically issues including the justice system, the law, the legal process and systemic problems. Students who participated in the program report a high degree of satisfaction with the overall experience and that it proves especially beneficial when they article. Notes Buhler, “Students have expressed that this experiential educational program promotes deep and transformational learning about law, professionalism, and advocacy.”
STUDENT STUDENT HUB HUB
CIRQUE DE DE CLASSIC CLASSIC CIRQUE
FRIDAY JANUARY JANUARY 24, 24, 2020 2020 FRIDAY
Join CLASSIC CLASSIC for for aa family family friendly friendly evening evening of of circus circus themed themed fun fun at at the the Sheraton Sheraton Join Cavalier Saskatoon Saskatoon Hotel. Hotel. All All proceeds proceeds from from this this event event will will benefit benefit CLASSIC CLASSIC Inc. Inc. Cavalier
For more more information, information, please please For contact Kim Kim Pidskalny Pidskalny at at contact 306-657-6100 or or by by email email to to 306-657-6100 kim_h@classiclaw.ca. kim_h@classiclaw.ca.
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LEGAL DIRECTORY 2019/2020
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PRO BONO SPOTLIGHT
DEMAND DRIVES EXPANSION OF NORTHERN AND RURAL INITIATIVE PIERRE E. HAWKINS PRO BONO SASKATCHEWAN
When clients can’t afford to hire a lawyer in private practice but are not eligible for Legal Aid, they turn to Pro Bono Law Saskatchewan. In the last year, PBLS has seen a surge in demand for legal clinic appointments. Nowhere has this been more pronounced than in the rural and northern areas of Saskatchewan. Providing service to rural and northern regions comes with its own set of logistical challenges. For several years, PBLS has organized the Northern and Rural Initiative, where lawyers in urban areas hold hourlong phone and videoconference appointments with clients in rural areas in order to assist them to represent themselves. Lawyers in urban areas, and particularly in Saskatoon, have done a tremendous job in making sure that PBLS programs are able to reach clients all over the province. Using this approach, PBLS has leveraged our use of technology to maximize our volunteers’ efficiency in delivering legal services to clients in locations which are difficult to reach. As a result of the success of this program, wait times are growing. In some PBLS clinics, clients must now wait up to seven weeks for an hourlong appointment with a lawyer. As a single legal matter may require several appointments to progress, the wait
18 BARNOTES
time for clinic appointments adds unnecessary delay to proceedings and stress to their participants.
PBLS is therefore seeking to expand the Northern and Rural Initiative. To that end, we seek volunteer lawyers in all areas of the province willing to help clients in places which are typically hard to reach. The demand is particularly strong in the areas of criminal and family law, but practitioners in all areas are welcome.
Clinics last one morning or afternoon at a time, where three to five clients are usually seen. The Northern and Rural Initiative is our most flexible clinic with opportunities available at a variety of times and days of the week. Lawyers can even volunteer from home. All you need is half a work day, a phone, and a desire to help those in need. If you are interested in volunteering with the Northern and Rural Initiative or any other PBLS program, please contact Carly Romanow at carly.romanow@pblsask.ca or (306) 569-3098. Your experience and skill will be of great service to clients, the legal profession, and the courts.
Clients seeking assistance from PBLS clinics often seek basic advice on procedure, argument, and forms. What may seem second nature to a lawyer is often a minefield for clients who have little exposure to the court system. PBLS clinics are staffed by a base of tremendous volunteers of all ages and years of call. Included among them are retired and inactive lawyers, who have the option to continue practicing as members with Pro Bono Status through PRO B ONO LAW SAS KATCHEWA N PRESEN TS: the Law Society 2 N D AN N U A L of Saskatchewan, which waives their P R O B O N O R O C KS practice fees.
F U N S P I EL
As volunteers with PBLS clinics, we ordinarily ask lawyers to commit to six clinic dates per year, or one clinic every two months.
JAN
18
2020
1 PM | S A TUR D AY CALLIE CURLING CLUB
DOORS OPEN AT 1:00 PM CURLING BEGINS AT 2:00 PM SUPPER AT 6:00 PM CONTACT INFO@PBLSASK.CA OR 306-569-3098 FOR MORE INFORMATION
CALENDAR OF EVENTS Nov 15
Distinguished Service Award Nomination Deadline
Dec 15
Treasurer & Elected Members of Council
Nomination Deadline
Jan 30
Council Meeting | Delta Regina
Jan 30 & 31
2020 Mid-Winter Meeting | Delta Regina
Apr 4
Law Day Mock Trial | Saskatoon
June 11
CBA Saskatchewan Annual Meeting | Saskatoon
For information on any of the above events please visit www.cbasask.org or email info@cbasask.org.
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217 Jessop Avenue • Saskatoon SK S7N 1Y3 p: 306.955.3373 • f: 306.955.3064 www.globeprinters.com
Tom Jeffries
c: 306.717.4006 e: tom@globesask.com
WINTER 2019 19
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