THE CANADIAN BAR ASSOCIATION • SASKATCHEWAN BRANCH
Summer/FAll 2015
Bar Notes
VOL. 30.1
Developing Aboriginal Rights Case Law & Implications for Resource Development | PAGE 9 Will We Answer the Calls to Action? | PAGE 12
IN THIS ISSUE... Branch News President’s Message by Gail Wartman, QC ........................................ 4
Meet the 2015/2016 Executive Committee ..................................... 5
2015 Law Day: In Review by Charmaine Panko ....................................... 6
FEATURE Commentary Developing Aboriginal Rights Case Law & Implications for Resource Development by Dwight Newman ....................................... 9
Some Recent Aboriginal Rights Cases of Note by Julia Kindrachuk ...................................... 10
Commentary Will We Answer the Calls to Action?
J.J.’s Case: A Landmark Decision on Aboriginal Rights or a Judicial Oddity? by Mitch McAdam, QC
Recent Trends in Canadian Intellectual Property Law
Calendar of events ............................. 43
Lora Bansley Communications Chair Information Services Corporation
by Craig Zawada, QC ..................................... 26
CBA Encouraging & Sponsoring Young Lawyer in “Re-Thinking” the Association
Learning the Practice in the Provincial Court of Saskatchewan by Kathryn Gilliss ...................................... 31
The Law of Attraction: Fashion Advice for Men & Women by Hannah Zip ...................................... 32
Action Committee’s
2 BarNotes | Summer/Fall 2015
Jared Epp Robertson Stromberg LLP
...................................... 34
Update from the Court of Queen’s Bench for Saskatchewan ............ 37
Postcard from a lawyer Ethiopia & Tanzania by Bryan Salte, QC ...................................... 39
Azure-Dee Farago SaskPower Corporation Jackie Francis Francis & Company
...................................... 18
Danielle Graff MacPherson Leslie & Tyerman LLP
A Guide to Strategy for Lawyers ...................................... 23
Steven Larocque College of Law, University of Saskatchewan
CBA Membership ..................................... 30 2015/2016 Legal Directory ..................................... 33 National News ...................................... 35 Change Offices? ..................................... 43
by Carson Hurley
Update from the Provincial Court of Saskatchewan ............. 36
...................................... 22
Bar Judicial Council Reps ....................................... 7
2016 Mid-Winter Meeting
From the Bench
Celebrating our very best: Branch Awards
Kate Crisp Scharfstein Gibbings Walen & Fisher LLP
Young Lawyers
by James Steele
..................................... 19
Items of Interest
Section Registration ..................................... 13
Emmett Hall
by Lloyd Stang
Scott Bell MacPherson Leslie & Tyerman LLP
by Brea Lowenberger ...................................... 28
Six Guiding Principles
Saskatchewan Prosecutor at the International Criminal Court
2014-2015 eDITORIAL bOARD Ashley Smith Editor MacPherson Leslie & Tyerman LLP
Work Life Balance as a Mom of Three
...................................... 16
Judicial Appointments Announced
www.cbasask.org
................................. 29
Pro Bono spotlight
..................................... 14
APPOINTMENTS
306, 105-21st Street East Saskatoon , SK S7K 0B3
...................................... 24
by Beth Bilson, QC ...................................... 12
by Stephanie Dobson
The Canadian Bar Association Saskatchewan Branch
Front Cover Acknowledgements The photograph featured on the Summer/Fall 2015 issue was taken by Editorial Board member Scott Bell.
Nolan Kondratoff Leland Campbell LLP
Amjad Murabit College of Law, University of Saskatchewan Michael Scherman Blake, Cassels & Graydon LLP James Streeton Wardell Gillis Hannah Zip Knott den Hollander Brenda Hesje Executive Director CBA Saskatchewan Kayla Stuckart Communications Officer CBA Saskatchewan BarNotes is a quarterly publication of CBA Saskatchewan. This publication is intended for information purposes only and should not be applied to specific fact circumstances without the advice of counsel. CBA Saskatchewan represents more than 1,100 members and is dedicated to improving access to justice, reviewing legislation and advancing the administration of justice. BarNotes is published 4 times per year
and circulated to over 1,100 legal professionals. If you are interested in advertising, please contact Kayla Stuckart, Communications Officer, kayla@cbasask.org.
© CBA Saskatchewan
EDITOR’S NOTES New Beginnings Ashley Smith| MacPherson Leslie & Tyerman LLP
It is hard to believe that summer has come and gone. It feels like school just ended and everyone started their migrations to the lakes for a bit of rest and relaxation. In the blink of an eye the holidays have come and gone and school bells have started to ring across the province. Where does the time go? If we had that answer I am sure may Saskatchewanians would be pushing pause to have the summer last as long as possible. I know I would be among them.
developing Aboriginal Rights case law. If you find this of interest, you will likely enjoy Julia Kindrachuk’s comments on Recent Aboriginal Rights Cases of Note and Mitch McAdam, QC discussing J.J’s Case. We also have Beth Bilson discussing the Truth and Reconciliation Commission’s recommendations released on June 2, 2015.
Fall is a wonderful season however. You can’t beat the colorful trees just before the leaves take their last tumble to the ground. It is also a season of new beginnings, whether it’s the start of a new school year or activities, or most peoples’ favorite-pumpkin spice latte season.
CBA Saskatchewan has had some momentous moments since our last issue, including the award of our 2015 Community Service Award to Brenda Walper-Bossence, QC. Brenda’s fantastic contributions to her community are highlighted in this issue. The CBA’s “Re-think” is also discussed by Brea Lowenberger who recently attended the Re-Think Prairies Workshop in Calgary this past June.
New beginnings has been a very strong theme for our Barnotes’ editorial board of late. Our editorial board members have had some amazing “firsts” to celebrate. Scott Bell welcomed baby Max, while Kate Crisp welcomed baby Gabriel. Jared Epp married his lovely bride. Please join me in congratulating them on these exciting events!
Enjoy reading about Lloyd Stang’s time as a Prosecutor at the International Criminal Court and Bryan Salte, QC’s time in Ethiopia and Tanzania. James Steele tells us about Emmett Hall and our Young Lawyer section has Kathryn Gilliss discussing practice in the Provincial Court of Saskatchewan. While Hannah Zip provides fashion advice to young lawyers.
As an editorial board we are already planning a new year of Barnotes issues. Our “super-sized” Summer/Fall issue marks the end of our first year as an editorial board. It has been an immense pleasure to spend the last year working with a group of immensely talented and hardworking people. I know we cannot wait to provide you with further issues of Barnotes and to help us in the coming year, I would like to welcome our two newest editorial board members, Steven Larocque and Michael Scherman. Welcome to the team Steven and Michael!
Many more articles await you in this issue and we hope you enjoy it as much as we do! As always, we hope you will consider being a contributor to Barnotes. Please do not hesitate to contact either myself or any member of our editorial board regarding contributing an article or with your feedback and comments.
We are also looking at the digital future of Barnotes. Readers have been able to enjoy Barnotes on the CBA Saskatchewan website (www.cbasask.org) and in paper form for quite some time. However, we know some of our readers prefer reading Barnotes in its digital form versus its paper form. We are now offering readers a chance to opt into receiving only a digital copy. If you are interested, then please contact Kayla Stuckart at kayla@cbasask.org.
As we all settle into new routines and new activities (and planning our winter vacations), we wanted to provide you with some high quality reading to see you through. For those with an interest or practice area in Aboriginal Law, this issue is for you. Our feature article is by Dwight Newman and discusses
Letters to the Editor: asmith@mlt.com
Summer/Fall 2015 | BarNotes 3
BRANCH NEWS ... And it draws to a close GAIL WARTMAN, QC | McDougall Gauley LLP This is the final article of four during my year as President. With the great experience this year has provided, and as I approach the 35th anniversary of my admission to the Saskatchewan bar, I want to share with you a few bits of wisdom that are important to me. 1. Being President of the CBA is a big time commitment – but it is worth it. Indeed, all the meaningful volunteer work all of us do is a big time commitment, and if we take it on, we want to do it right. I am inspired by all of the volunteers that keep our communities and organizations alive and healthy – across our organization, and around the globe. It connects us and makes us better people. And on that note, congratulations, Brenda Walper-Bossence, QC, on being this year’s recipient of the CBA Community Service Award. 2. In the practice of law, nothing is more important than ethical practice and civility. All of our skills, our best practices, our Rules of Court – those are the tools of our trade, basic things that are taught to us from the beginning. The ethical practices, the civility – those are taught (or not taught) mostly by mentors. Ours may be an adversarial system, but if one pays attention to the evolution of what our courts, the rules, and the demands of society in general are telling us, what we are supposed to be doing is fixing problems – finding solutions and settling disputes - while advocating tirelessly for our client. Finding negotiated settlements is what 99% of clients want. Unfortunately, our billable-hours system contains an inherent conflict of interest in that the more we foment dissent and conflict, the more money we can make. It is always disappointing to take on a file where opposing counsel is of that philosophy. Sometimes going to court is inevitable because of the nature of the conflict and the parties. But it should not be invoked merely because one (or both) of the counsel finds it more lucrative to go there. 3. Don’t let important milestones pass you by. Do you ever get into the mindset that you do not have time to do anything optional, or fun? Some of us feel guilty about every moment we spend away from the office, or doing non-billable work. This has been a year of lots of guilt for me, to the extent I adopt that mind-set. But I have taken on the role of president and have greatly enjoyed it, and I hope I have contributed well during my term. At the 4 BarNotes | Summer/Fall 2015
same time, our family has been faced with four hospitalizations and two major surgeries for our elderly mother, and we have a wedding to plan and host for early summer – our son’s. Many of the important joys and burdens of our lives are relatively unexpected when they happen. And then there are friendships to maintain, community and church obligations to keep up – as much as possible. But even at the conclusion of a year like this, I urge us all to keep things in perspective. For people of my age, if we still have our parents, it won’t be for long. The marriage of a child is a blessed and wonderful thing. The opportunities to celebrate and honor the high holy times, and the low sorrowing times, must be taken, or lost forever. I was at my desk at the law office on the morning my little girl started kindergarten. I thought it would be OK – my husband was able to be with her that day - and that she would not miss me. I was partly right. It was OK with her. But it isn’t with me. And so I ask you every day to keep in mind the things that bring us together as human beings, that assist and enrich our communities and organizations, and that make the practice of law more humane and human. Make your voice heard in the CBA Re-Think as to how our organization can help you. And I challenge you to live a well-rounded, balanced life, a life that allows you to treat yourself with compassion, and those around you – your family and friends – as the most important people in your world.
Do you have questions or feedback for the Branch? Contact Gail: » Ph: (306) 694-0052 » gwartman@mcdougallgauley.com
BRANCH NEWS Meet the 2015/2016 Executive Committee President
Legislation & Law Reform Chair
Saskatchewan Ministry of Justice Constitutional Law Ph: (306) 787-5584 sharon.pratchler2@gov.sk.ca
Merchant Law Group Ph: (306) 227-2222 emerchant@merchantlaw.com
Vice President
Membership Chair
Robb & Dowling Ph: (306) 522-2032 robertson@sasktel.net
Saskatchewan Ministry of Justice Regina Prosecution District Ph: (306) 787-8207 loreley.berra@gov.sk.ca
Treasurer
Professional Image Chair
Riou Law Office Ph: (306) 228-3778 mriou@rioulawoffice.ca
Saskatchewan Government Insurance Ph: (306) 775-6432 cweitzel@sgi.sk.ca
Immediate Past President
Executive Director
McDougall Gauley LLP Ph: (306) 694-0052 gwartman@mcdougallgauley.com
CBA Saskatchewan Ph: (306) 244-3781 Toll-Free: 1-800-424-8288 brenda@cbasask.org
Sharon Pratchler, QC
Neil Robertson, QC
Michel Riou
Gail Wartman, QC
Communications Chair Lora Bansley
Information Services Corporation Ph: (306) 798-0513 lora.bansley@isc.ca
Evatt Merchant
Loreley Berra
Chris Weitzel
Brenda Hesje
You are invited to contact members of the Executive Committee or the CBA Saskatchewan Branch Office if you have any questions or concerns regarding the CBA. In addition to the Executive Director, CBA Saskatchewan Branch Staff includes:
Kayla Stuckart, Communications Officer Ph: (306) 244-3898 | kayla@cbasask.org Accounting Ph: (306) 244-3899 | accounting@cbasask.org
Summer/Fall 2015 | BarNotes 5
BRANCH NEWS 2015 Law Day: In Review Charmaine Panko | Miller Thomson LLP This year’s Law Day committee was an enthusiastic and creative group of mostly new committee members. Special thanks to Tom Baldry, Andrew Dickson, Megan Lorenz, Bonnie Reddekopp, Neil Robertson, QC, and Chris Weitzel for all of their hard work! I am pleased to advise that these members have agreed to continue on the committee for the next year under the leadership of the new CBA Professional Image Chair, Chris Weitzel.
CBA Mock Trial Five teams participated in the 16th annual Mock Trial competition held on April 18, 2015 at the Saskatoon Courthouse with Yorkton Regional High School taking home the coveted McKercher Cup for the second year in a row. CBA Saskatchewan is grateful for the continued support of this event by the courthouse staff, sponsors and the Judges who volunteer their entire Saturday to provide invaluable feedback and insight to the competitors.
Run for the Law & Lynn Smith Memorial Run Our Run for the Law (Saskatoon) and our Lynn Smith Memorial Run (Regina) saw our biggest turnouts yet raising $6,690 for PBLS, CLASSIC, and the Native Law Centre. Including the Native Law Centre as one of the beneficiaries of the funds raised increased awareness of, and participation in, the event and we look forward to including them again next year.
Law in your Life Library Series The Law in your Life library series is a partnership with the Regina Public Library, Saskatoon Public Library and PLEA. The libraries host free public presentations, as well as showings of films that contain law related themes. Regina Public Library also hosted a presentation by the Saskatchewan Police College on April 20, 2015 and the CBA Privacy Section on April 13, 2015. This is a partnership that continues to blossom with the addition of the Law Day Fair that was held at the Rusty Macdonald Branch Library in Saskatoon on April 19, 2015. We were also pleased to partner with the Johnson-Shoyama Graduate School of Public Policy to offer a presentation to the public as yet another Law Day event that we hope to offer annually.
Multi-media Contests We received over 50 entries in our multi-media contest with very creative and unique submissions, ranging from YouTube videos to dioramas. The winners and their families joined us at the Law Day Awards Banquet on April 18, 2015.
Law Day Fair We hosted the first annual Law Day Fair in Saskatoon on April 19, 2015. The event was well attended by participants as well as the public. We hosted numerous displays, presentations, and an opportunity to have “15 minutes with a lawyer or mediator”. We were pleased to have the Mayor bring greetings on behalf of the City of Saskatoon, Judge Agnew bring greetings on behalf of the Provincial Court, and to have some local media provide coverage of the event. We are excited to expand the Law Day Fair to Regina next year and across the province in rural centres over the long term. Continued on Page 7...
6 BarNotes | Summer/Fall 2015
BRANCH NEWS Continued from Page 6...
Magna Carta CBA Saskatchewan and the Canadian International Council (Saskatchewan Branch) co-sponsored the Honourable Andrew Scheer, MP, on April 7, 2015 in Regina in celebration of the 800th anniversary of the Magna Carta.
BAr Judicial COUNCIL Reps The Bar Judicial Council deals with matters of concern between the Branch and the Bar. If you have suggestions on how the administration of justice can be improved, suggestions can be given to the appropriate representative listed below.
Court of Appeal Murray Sawatzky, QC McDougall Gauley LLP, Regina msawatzky@mcdougallgauley.com
Christine Glazer, QC McKercher LLP, Saskatoon c.glazer@mckercher.ca
A
Court of Queen’s Bench Jeff Grubb, QC Miller Thomson LLP, Regina jgrubb@millterthomson.com
Jenn Pereira Robertson Stromberg LLP, Saskatoon j.pereira@rslaw.com B
Provincial Court Bonnie Missens Saskatchewan Indian Gaming Authority, Saskatoon bonnie.missens@siga.sk.ca
Suzanne Young Grayson & Company, Moose Jaw syoung@graysonandcompany.com C
(A): Group Photo of the 2015 Lynn Smith Memorial Run. (B): Multi-Media Award Winners with Guest Speaker, The Honourable Gerald Seniuk. (C): Michelle Ouellette, QC, presenting the Mock Trial Winners Yorkton Regional High School (Team #2) with the McKercher Cup.
Summer/Fall 2015 | BarNotes 7
Save time. Save money. Submit online.
ISC’s Online Submission (OLS) eliminates the need for form-based packet submissions, allowing you to fully complete Land Registry submissions online. OLS now supports all types of Land Registry transactions, including condo transactions.
BENEFITS OF OLS: 3 Spend less time completing packets 3 Less rework 3 Improve efficiency Take advantage of OLS’s auto-populating data entry and pre-submission validation features. Submitting online helps speed up the application process and catches errors before they are submitted (reducing re-work), allowing you to get more done in less time! Visit our website to learn more:
ISC.ca/onlinesubmission F
R
E
E
T
R
A
I
N
I
N
ISC provides free, instructor-led hands on training for your staff. Learn more at ISC.ca/training
G
FEATURE COMMENTARY Developing Aboriginal Rights Case Law and Implications for Resource Development Dwight Newman | College of Law, University of Saskatchewan Saskatchewan lawyers will sometimes not feel certain on how they or their clients are affected by developing Aboriginal rights case law from British Columbia or other non-treaty areas. The past year frames some important answers. First, some of the monumental case law of the past year has implications for resource development issues in which Saskatchewan lawyers/clients may be involved. Second, there has been some interesting case law that speaks directly to treatyrelated issues as well. The Aboriginal rights case that rightly got the most attention in the past year was the June 2014 Supreme Court of Canada decision in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44. The case resulted in a historic first-ever declaration of Aboriginal title in a Canadian court. It did not formally change the test for Aboriginal title—which is still based on sufficient, exclusive occupation of lands prior to the assertion of European sovereignty (with continuity coming into play if present occupation is part of the evidence) —but it clarified that sufficient occupation can be made out through past seasonal or periodic use. This makes Aboriginal title claims possible for historically mobile Aboriginal communities. The specific results in the case were perhaps less dramatic than may have seemed to be the case in media reports—the Tsilhqot’in won a title claim to only 2% of their traditional territory—but aspects of the reasoning could have broader implications than has even been realized. First, one implication for Aboriginal communities is that the group holding a right (specifically, a title right, but with potential perhaps for other contexts too) does not necessarily correspond to current governance structures. Several legal First Nations grouped as the historic Tsilhqot’in Nation so as not to have overlapping title claims and so as to have a successful claim. Questions related to future rights claims and future governance structures are an important area for thought after the case. Second, the case maintained and even extended some inherent limits on the scope of Aboriginal title in ways that have important implications. Aboriginal title is said to include the economic benefits of the land, but the Court also reasons from the communal nature of Aboriginal title to a claim that it is held not only for the current generation but for future generations as well, with a resulting implication that it cannot be used in
ways inconsistent with its benefiting future generations. What that means is frankly still partly unclear. Some lawyers, however, argue that it indicates that those entering agreements with Aboriginal communities need to have broader ratification of those agreements, to try to get a better signal of the agreement’s validity, and there is certainly something to be said for that view. Third, the Court specifically avoided citing the United Nations Declaration on the Rights of Indigenous Peoples, even though the Declaration had been cited at length in argument (especially by the intervener Amnesty International). That said, some think the Declaration might have influenced the Court’s comments on consent. There are some interesting – and, at least for some, frightening – statements on consent in the judgment. One paragraph (para. 97) refers to consent as a way of avoiding issues of whether there had been infringement of Aboriginal title or breaches of the duty to consult, seeming to ratify practices of seeking agreements with Aboriginal communities. Another (para. 92) contains a warning that a project carried out without consent on land that is later found to be subject to title might in some (unspecified) circumstances be subject to cancellation. That statement is not a reassuring one for some of your potential clients who may be contemplating significant investments in areas subject to title or other rights claims! Fourth, the case elaborated the principle that provincial legislation and regulation can apply on Aboriginal title lands, subject to the test for justified infringements. Weeks later, this principle that was developed in the title context took on direct implications for treaty-based jurisdictions like Saskatchewan as well. The Supreme Court in Grassy Narrows v. Ontario, 2014 SCC 48, cited and extented Tsilhqot’in as if it were a long-standing precedent to say that provinces can justifiably infringe treaty rights as well (something that past decisions seemed to have denied). It is worth mentioning that the Grassy Narrows decision also contains important interpretation of the “taking up” clause in the numbered treaties, which permits provinces to “take up” lands for agriculture, mining, and other development. There have been other important treaty rights cases in recent Continued on Page 10...
Summer/Fall 2015 | BarNotes 9
FEATURE COMMENTARY Continued from Page 9...
months as well. I would mention Wabauskang First Nation, 2014 ONSC 4424, in which some argument on the point led to the Ontario Divisional Court pronouncing that Treaty 3 does not contain rights to resource revenue-sharing or to shared decisionmaking. The First Nation is appealing, but if confirmed, the case is a potential precedent for analogous numbered treaties, such as in Saskatchewan, on some very controversial issues. And, of course, the very significant recent case from the Saskatchewan Court of Appeal, Buffalo River Dene Nation v. Saskatchewan (Minister of Energy and Resources), 2015 SKCA 31, has seen the Court reject any requirement of early application of the duty to consult at the stage of disposition of subsurface minerals at auction, with the Court concluding that treaty rights are not affected by that disposition. In some ways, that last case is an exception in Saskatchewan, which has largely avoided litigation on Aboriginal and treaty rights issues. Indeed, most of the present Court of Appeal justices have never sat on such a case, and those who have no more than
two or three times. But, as in some other recent litigation in Saskatchewan, the First Nation brought in counsel from outside the province to try to pursue its claim aggressively. Within the province, we may be seeing just the beginnings of some more confrontational litigation, and for a number of reasons, Saskatchewan lawyers best pay heed. I would add that Saskatchewan lawyers who have anything to do with clients in the resource sector should be paying attention to the Aboriginal and treaty rights case law more broadly. This comment—and the accompanying article from Julia Kindrachuk, a student working as a research assistant in my research programme on these issues—highlight just some important recent developments within a complex and still-developing area of law. This is an area we need to get even more engaged with in Saskatchewan, as there are big issues still ahead. The above article is based partly on my presentation at the 2015 CBA Saskatchewan Mid-Winter Meeting as part of a panel organized by Mitch McAdam, QC – thanks to Mitch for including me in that panel and his comments on my presentation.
Some Recent Aboriginal Rights Cases of Note Julia Kindrachuk | Research Assistant, College of Law, University of Saskatchewan
Third Party Liability and Aboriginal Rights Claims
10 BarNotes | Summer/Fall 2015
COMMENTARY
ual 12th anneon en
Lunch
Fashion
r e s i a r d n show Fu
Friday, September 18, 2015, TCU Place Doors Open: 11:00 am Program: 11:30 – 1:30 pm
Tickets $50 - Table of 8 - $400 Tickets Available: (Visa, MC, and Debit accepted) Saskatoon Sexual Assault & Information Centre 306.244.2294 • #201 – 506 25th Street East, Saskatoon, SK Or Paramount DaySpa Salon & Boutique 702-2nd Avenue North, Saskatoon, SK
Saskatoon Sexual Assault & lnformation Centre lnc. Proceeds to fund our 24 hour crisis line and programs to end sexual violence upon individuals in our community.
While the federal government did conduct consultations on the amendments as expressly required by the Tłįchǫ Agreement and the MVRMA, the parties disagree with respect to whether the consultation requirements were met.1 During a review of regulatory systems beginning in 2007, senior energy lawyer Neil McCrank met with Tłįchǫ representatives while preparing a report outlining recommendations.2 Following the government’s announcement of its plan to restructure regulatory regimes in the North, the Chief Negotiator met with Tłįchǫ representatives who maintained their Government’s objection to the elimination of the WLWB.3 The Tłįchǫ Government maintains that the proposed amendments violate their right to effective and guaranteed joint management over their traditional territory under the Tłįchǫ Agreement and that the Agreement does not permit or contemplate such amendments.4 An appeal brought by the Government of Canada will be heard by the Northwest Territories Court of Appeal in October 2015. In April 2015, the Continued on Page 12...
w w w. s a s k a t o o n s e x u a l a s s a u l t c e n t r e . c o m
1 2 3 4
Ibid at paras 15, 22, 25. Ibid at paras 17-18. Ibid at paras 19-20. Ibid at para 21.
Summer/Fall 2015 | BarNotes 11
COMMENTARY Continued from Page 11...
Federal Court of Appeal heard an application for judicial review brought by the Hamlet of Clyde River. Clyde River alleges that a June 2014 National Energy Board decision to authorize for seismic testing in Baffin Bay and Davis Strait breached the Nunavut Land Claims Agreement and their s. 35 rights and should be quashed. The proposed seismic testing area is home to sea mammals, including narwhals, bowheads, walruses and seals that the Inuit of Nunavut rely on for food, livelihood and the ability to practice their traditional culture.5 During the NEB’s consultation process, the Hamlet of Clyde River made clear that it would only support 5 Hamlet of Clyde River v Canada (AG), 2015 Court File A-354-14 (Notice of Application for Judicial Review, at paras 13, 15-16).
extraction projects if they would not cause substantial harm to their traditional hunting economy and culture.6 The proponents of the project were unable to answer questions about the impact of seismic testing on marine life and the Benefits Plan submitted to the NEB has not been shared with affected communities. 7 A decision has yet to be rendered.
6 Ibid at para 19. 7 Ibid at paras 20-22.
Will We Answer the Calls to Action? Beth Bilson, QC | College of Law, UnivERSITY of Saskatchewan On June 2, 2015, the Truth and Reconciliation Commission issued its recommendations based on six years of hearing the stories of survivors of Canada’s Indian residential schools. The Chair of the Commission, Mr. Justice Murray Sinclair, characterized the residential schools policy as representing “cultural genocide,” echoing the language used by the Chief Justice of Canada in a speech at the Aga Khan Museum a few days earlier. The recommendations take the form of “Calls to Action”, and they are addressed to many players in Canadian society, including governments, the health care system, the courts and the schools. The recommendations are tied to two objectives: redressing the legacy of residential schools and advancing the process of Canadian reconciliation. Two of the recommendations are specifically addressed to the Federation of Law Societies, the national regulator of the legal profession, and the law schools that prepare students to join the profession: 27. We call upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal– Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism. 12 BarNotes | Summer/Fall 2015
28. We call upon law schools in Canada to require all law students to take a course in Aboriginal people and the law, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and antiracism. The “truth” part of the work of the Truth and Reconciliation was intense, harrowing and difficult. In many cases for the first time, survivors had an opportunity to describe the physical, sexual and psychological abuse visited on them in the residential school system; to talk about the pain caused by the loss of their languages and the estrangement from their cultures; and to lay before the Commission the details of the cross-generational legacy left behind. The Commission has created and archived a significant body of documentation and evidence supporting the “truth” of the conclusions they have drawn. The recommendations themselves, however, look forward - to redress, and to reconciliation. Reconciliation is a big word, and it would be easy to shrug off the concept as purely aspirational – a goal which cannot possibly be achieved, and which can therefore be safely ignored. If finding the truth was hard, how much harder it would be to achieve national reconciliation, a true and respectful engagement between all members of Canadian society. What the recommendations do, however, is to point the institutions, officials and individuals they are addressing towards specific kinds of strategies that will support a shift towards reconciliation.
COMMENTARY There are some striking features of the parallel recommendations aimed at the development of lawyers in different phases of their careers. The first is that the recommendations recognize the power of knowledge to have a transformative effect. The premise is that the absence of knowledge – about Treaties, about Aboriginal law and Aboriginal rights, about the legacy of the residential schools themselves – has been one of the factors that has prevented the legal profession from understanding the legal framework within Indigenous Canadians live, and has helped to perpetuate a legal system in which the perspectives and traditions of Aboriginal people have not been fully recognized or taken into account. Secondly, the recommendations understand the process of moving towards reconciliation to be, in part at least, a matter of developing appropriate skills. The recommendations ask the institutions responsible for the professional formation of lawyers give the kind of attention to intercultural competency that is given to other significant skills such as legal analysis and oral advocacy.
have retained an elder to provide cultural advice to students in the clinical law program. All of these steps represent progress. Still, there is much more to be done, and there is no ground for self-congratulation. There are few opportunities for our students to hone their skills in intercultural understanding, to examine their own cultural assumptions, or to reflect on how their future practice will be influenced by the significant presence of Aboriginal people in their society. We need to answer the Calls to Action in the recommendations of the Truth and Reconciliation Commission aware of the daunting nature of the task, but aware too that each of us can make a positive contribution to the process.
No one would suggest that the path to reconciliation will be an easy one. Bringing about true understanding and respectful relationships on the foundation of a history characterized by ignorance and racism will require a level of commitment that has not yet been demonstrated, and a determination to rectify wrongs that go back hundreds of years. Our habits will be hard to break, all the harder for being something we are not always aware of. Still, the recommendations of the Truth and Reconciliation Commission have presented the task of reconciliation as one in which everyone can play a part. All Canadians should be able to see themselves somewhere in the process, and to have some idea of their role. As a profession and as law schools, we have homework – we are assigned the task of gaining knowledge and developing skills that will build our abilities to better understand and serve the interests of Indigenous people. From my chair at the College of Law, I can say that my colleagues have already made some efforts to have the law school curriculum and the law school community more engaged with Aboriginal issues. We have incorporated attention to Aboriginal issues in courses, we have representation from Aboriginal student organizations on College governing bodies and committees, we
To read a copy of the Truth & Reconciliation report and the “Calls to Action” visit: http://bit.ly/TRCreport
Section Registration Now Open! | www.cbasask.org
Summer/Fall 2015 | BarNotes 13
COMMENTARY Work Life Balance as a Mom of Three Stephanie Dobson | Kindrachuk Dobson Work-life balance – it actually is possible as a private practitioner – believe it or not! I am a Collaborative Family lawyer, Family Mediator, and Parenting Coordinator with offices in Lloydminster (Alberta/Saskatchewan), Wainwright (Alberta), and soon also in Paradise Valley (Alberta). I am also a mom of 3 children, ages 5, 4, and 3 – and no nanny! In my spare time, I am also a farm wife. Believe it or not, I work full-time in my law practice with an active role in managing the business. I was asked to write an article about how I do it. The real answer is – I have no idea! But, when I started to think about how I have set up my practice, I realized that I have been very conscious about how I have structured things so that I can not only fulfil my passion for my practice, but also lead a meaningful and wonderful family life. We know that the practice of law is demanding, fraught with long hours, and extremely stressful. How can we compartmentalize to ensure that we are not allowing our practice to spill over into our personal lives? I know for me, time with my kids would always win out over longer hours in my practice, but sometimes we have to make compromises. Here are some of the ideas that I have implemented: 1. Be strict with your work schedule – have your kids’ calendar set up as a 2nd calendar on your computer, and enter into that calendar all of your kids’ activities and special occasions. Mark into your own calendar times that you are “available”, and tell your assistant that he / she is only to book you in for appointments during your “available” times. This way, if you want to take your kids to swimming lessons, hockey, or gymnastics, or you have to do the playschool/school pickup and dropoff, you won’t be tied up with clients during these important personal hours. Of course, billable hours are important, and you may need to make up some of these missed work hours, and that’s where the next tip comes in. The reason that I don’t have a nanny is because I know that if I was given the flexibility to come home later, my personality has a hard time leaving the office. When you know that your child care is done at a certain hour, you are forced to leave. 2. Create opportunities to work outside of the office – be mobile. I have set up my practice as a paperless and semi-virtual office. I am usually in the Lloydminster office 1-2 days per week, Wainwright 1-2 days per week, and working from home 1-2 days per week. 14 BarNotes | Summer/Fall 2015
My paperless system allows me to take my “office” (my laptop) with me everywhere I go. When I take my daughter to dance, my “office” comes with me, and I can both watch her on the screen in the reception area, and get thru my emails or work on client files. I connect to the internet with my cell phone’s personal hotspot and have full remote access to my office files. I don’t usually have time to make phone calls when I’m in the office, so I use my cell phone to make the phone calls I need. I’m strict about my clients not seeing my cell number, so I switch off my caller ID on my phone on a phone-call-by-phonecall basis. In our office we use Skype messenger to communicate about the on-goings of the office. Each morning, as soon as I’m available for business, I Skype to my staff to advise that they can put calls thru to me, so that when someone calls in for me, they are simply asked to hold, and they are connected to my cell phone. My phone has Skype as well, so my staff is in constant contact with me in or out of the office. Our fax is internet based, approximately $15.00 per month, so we can then send a fax from wherever we are working. Faxes come in thru email to our info@email address which our staff checks regularly. The lawyers get a copy of any emails going to info@, so we all see any faxes as they come in. All of our letterhead is built into our letters thru Word. To sign any document, I proof it in Word, then convert it to PDF (Pro), and then sign it electronically. I am the only one with access to my own electronic signature. Once signed, my assistant can do what she needs – email, fax, print and mail, etc. I am never physically needed in the office – we don’t go thru much printer ink at our office. It is strange that the only real reason that my staff needs me in the office is to sign cheques or to meet with clients. Even my bookkeeper does everything remotely! 3. Practice in an area which is conducive to the time commitment you want to put in. Although I practice family law, I do not have a court practice. I made this switch primarily because of my belief in the positive effects that alternative dispute resolution processes can have on families, but the secondary reason was because I did not want to have the stress of family
COMMENTARY applications being served on me at anytime. I work more effectively when I can have my calendar planned well in advance, and can anticipate that there will be few emergencies that will arise. I wanted to know that I would not miss my children’s important events because I had to prepare for an unexpected court appearance. 4. Create boundaries and expectations with everyone you work with. I am lucky in that I work for myself, so the only people I need to answer to are my clients. I talk with my clients about my family (generally), and when I’m asked whether I can schedule an appointment after my client’s workday is finished, I only do so if I have the support of my husband or child care provider(s). I actually tell my clients “I have to get back to you – I only have daycare until 4:00 pm” or “I could if it were the winter time, but in the Spring and the Fall I’m a farm wife and have to be the primary parent while my husband is farming”. I find that this helps clients to relate to me, and they respect my boundaries. With our team at the office, I usually cannot get things signed or reviewed during the day, but I tell whomever that I will review it in the evening and they will see it by the morning completed. I still put in the hours, but I do it around my kids’ schedule.
5. Consciously decide the amount of money you want to earn – then have the conversation with your partner / employer about the structure that you will maintain to determine how you can best achieve this. There are loads of different financial arrangements you can design which suit your desired work-life balance. Maybe you want to work part-time, or maybe you can move to a structure where you are paid based on your fees collected. Being designated as part-time, you will be paid accordingly and the expectations of your time will be set. With the “fees collected” basis for compensation, you have the opportunity to earn as much or as little as you want – the more you work (and collect), the more you will earn. In my own firm, I’ve always worked in space-sharing arrangements whereby the lawyers share expenses but not revenues. These types of arrangements limit the expectations of the “billable hour”; I can work as much or as little as I want, so long as I contribute to my share of the expenses. Ensure that you are open with your business partners or employer about the schedule that you intend to keep – if you are seen to be leaving daily at 2:30, you may be seen to not be pulling your weight. If, however, you become somewhat virtually based, you may still put in the billable hours without the traditional 9-5 workday. I typically get into the office at 9:30 after my morning workout, stay until about 3:30, then spend the rest of the afternoon with my kids, then work from about 7:30 pm until I need to in the evening to get the rest of my day completed. It’s perfect for me. You will have to figure out what works best for you. There are tons of different systems that you can implement to make your work fit into your life. You will never regret that extra time you spend with your family. Don’t let the practice of law consume you. Practice for the love of the practice. Choose a practice area that you enjoy, so that when you are away from your family you’re feeling like it’s a good thing not a bad thing. If you love what you do, you will never “work” a day in your life. Surely, if the respondent straw purchaser had been acquainted with the mortgage application documents and fraudulently executed them—all without disclosing to her solicitor that, as a straw purchaser, she was not going to be owning, living in, or making payments on, the property—then the solicitor might never have discovered the irregularities. A solicitor should normally be able to rely on the declarations made by a client.
Summer/Fall 2015 | BarNotes 15
COMMENTARY Emmett Hall james Steele | Robertson StromberG LLP
Introduction This year marks the twentieth anniversary of the death of Justice Emmett Hall. With interest mounting as to whether Saskatchewan will offer the next Supreme Court appointment, it is fitting to remember the last justice named directly from our province. As lawyer, judge, and public policymaker, Emmett Hall truly influenced some of the defining features of Canadian life during the past half century. The descendent of Irish immigrants, Emmett Matthew Hall was born in a small village north of Montreal in 1898. Seeking opportunity in the Canadian West, his parents made the dusty journey to Saskatchewan in 1910. Emmett spent his formative years in a booming Saskatoon, where family life revolved around the Roman Catholic Church. Each winter saw the Halls dutifully trek over the ice of the South Saskatchewan River to attend St. Paul’s Cathedral. An early memory was seeing Prime Minister Wilfred Laurier speak at the site of the future University of Saskatchewan. Years later, the same young lad in the audience would become chancellor of the very institution whose cornerstone had been laid that day. Hall entered adulthood just as his generation was called to the battlefields of Europe. While poor eyesight precluded him from personal service, he came to count this initial disappointment as a blessing when recollecting in later years of the many Saskatoon enlisted men who had never returned. Interested in the law since high school, Hall began apprenticing with the Saskatoon firm of Murray and Munro in 1916. The articling system of that day paired law office work with concurrent attendance at the College of Law. Hall spent his morning and evening hours listening to lectures from men such as J.W. Estey, later to become the second Saskatchewan appointment to the Supreme Court of Canada. Amidst his other duties, Hall found time for such extracurricular activities as amateur debate. One such contest in February of 1919 saw Hall teamed with a certain classmate named John Diefenbaker, only to see the pair go onto defeat. While different men in many ways, their shared law school experience formed the basis of a remarkable friendship between Hall and Diefenbaker. Following graduation in 1919, Hall ultimately settled in Saskatoon while Diefenbaker’s professional career took him to Prince Albert. The two never lost touch however, and their continuing closeness is illustrated by a letter from Hall in the early days of the Depression: “Being very hard up yesterday and having to raise money to save myself from being closed out in more ways than one, I took the liberty of drawing 16 BarNotes | Summer/Fall 2015
upon you for the sum of $60...I would ask you to meet this draft and raise hell with me afterwards.” Hall’s legal career in Saskatoon would see his involvement in a number of remarkable cases. Though it seems scarcely believable now, the late 1920s had seen the Ku Klux Klan gain a foothold throughout our province. When one Saskatoon newspaper editor denounced an arriving Klan figure with the headline “Well Known Hatred Breeder Comes to Town”, he was charged with criminal libel. For his defence efforts on behalf of the editor in the resulting trial, Hall was reportedly burned in effigy by the Klan one summer evening. Hall courted further controversy by defending participants in the 1935 Regina Riot. Driven to despair by joblessness and dismal relief camps, some 1,600 unemployed men had begun a trek to present their demands in Ottawa. While camped en route in Regina, an attempt by police to arrest leading trekkers descended into a pitched battle. The dust cleared to reveal two dead and hundreds injured. When 24 hikers were eventually brought to trial, Hall was invited to serve as co-defence counsel. Helping to spare most of the men from conviction, Hall grew to sympathize with his clients as miserable unemployed seeking sustenance from their government. The trekkers had been branded as Bolsheviks by many in Hall’s own circle however, and he himself remembered years later that “friends who used to call and invite me to dinner every time I came to Regina suddenly didn’t know who I was.” The Regina Riot case did much to establish Hall’s reputation as a civil libertarian. Never one to flinch from unpopular causes, he accepted cases that few Catholic lawyers of his day would touch. In 1945, Hall defended a local doctor against charges of procuring abortions for five women. Immersing himself in medical literature, he consulted daily with a leading gynecologist throughout the trial. The doctor was cleared on all counts, with Hall establishing that the abortions had been vital to preserving each woman’s life. Hall’s firm also handled much of Saskatoon’s divorce work in an era when scandal still clung to the word. All the while, Hall – a devout churchgoer – served on the board of St. Paul’s Hospital and performed gratis corporate work for various Church causes. For all his progressive instincts, Hall was no radical liberal. In 1936, when a sympathizer of the Spanish Republican cause addressed the Saskatoon Kinsmen Club, Hall stood and began to fiercely denounce him as a communist. The surprised Master
COMMENTARY of Ceremonies was compelled to distract the audience by having “Moonlight and Roses” performed on the xylophone.
to the Supreme Court, setting the stage for what many predicted would be the reversal of a blatant injustice.
Hall’s allegiance to the Tory party also testified to a conservative side to his nature. Although unsuccessful both times, he even stood for office personally under that banner. After his own string of early failures, his former classmate John Diefenbaker had begun to enjoy a measure of electoral success however. As Diefenbaker rose in the Conservative ranks, Hall threw his energies behind him. The crowning achievement came in June of 1957, when Diefenbaker led his party out of the wilderness to end two decades of Liberal reign.
However, eight of the nine justices were unmoved and refused to overturn the conviction. Conspicuous in his lone but forceful dissent, Hall stressed that “even the guiltiest criminal must be tried according to law.” Truscott, Hall believed, had not received a fair trial and deserved a new one. Though Hall did not live to see it, in 2004 Justice Minister Irwin Cotler indeed found a reasonable basis to conclude that Truscott had likely been subject to a miscarriage of justice.
Diefenbaker wasted little time in offering opportunities which his old friend would never have otherwise enjoyed. Long possessed of judicial ambitions, Hall had always felt thwarted by Saskatchewan’s powerful Liberal baron, Jimmy Gardiner. Before 1957 was out however, Hall had been named Chief Justice of the Saskatchewan Court of Queen’s Bench. Hall and his wife left their beloved Saskatoon and purchased an elegant home near Wascana creek. Even while joining the city’s elite, Hall did not lose his inborn sense of equality. After becoming a member of the exclusive Assiniboia Club, he began a quiet but successful drive to undo the club’s exclusion of Jews. Though Diefenbaker thereafter elevated Hall to the Court of Appeal, Hall would not serve on either court long enough to leave a significant legacy. In 1962, he was called upon to leave the province entirely on his appointment to our nation’s highest court. While the responsibilities of a Supreme Court justice are daunting to any new appointee, it must be remembered that Hall shouldered them in addition to the labours of the landmark Royal Commission on Health Services. Tasked with examining Canadian health care in light of the universal health insurance recently adopted by Saskatchewan, Hall ultimately called for measures even more radical than those of Tommy Douglas. Now regarded as a founding father of Medicare, Hall’s leadership resulted in a unanimous report endorsing the creation of the public health care we enjoy today. On the bench however, Hall found himself out of sync with brethren who often approached the law as an exercise in dry and technical interpretation. Hall had come to believe that sound judicial decisions had to recognize social reality, and could not merely be a mechanistic application of pre-existing rules. As biographer Frederick Vaughan describes, “Hall always had difficulty comprehending the strict-constructionist approach of some of his colleagues…For Hall, the only approach was to see if an injustice had been done and, if so, find a way to correct it.” Hall’s devotion to justice was on clear display in the appeal of Stephen Truscott. Tried for murder at age fourteen, Truscott had been found guilty on circumstantial evidence. His case became a Canadian cause célèbre, with members of Parliament visiting him in prison. In 1967, Prime Minister Pearson referred his case
It was in the field of Aboriginal law that Hall created his most enduring judicial legacy. Knowing of how First Nations had suffered at the hands of successive governments, Hall wrote in one opinion of “the lamentable history of Canada’s dealings with Indians in disregard of treaties.” In R. v. Drybones, at issue was a law criminalizing drunkenness by Aboriginals while off a reserve, even in a private residence. Conversely, a Caucasian could face a charge only for public drunkenness and even then with a lesser penalty. In his concurring opinion, Hall joined the majority in condemning the law as a denial of the equality guaranteed by the 1960 Bill of Rights. He emphatically dismissed the idea that the Bill of Rights was not offended so long as all members of a particular class – i.e. First Nations – were treated equally. All Canadians, declared Hall, were entitled to freedom from legal discrimination regardless of race. While Drybones gave voice to Hall’s passion for fundamental freedoms, it proved a fleeting victory. In the remaining decade and a half before the Charter revolution, the Supreme Court never again consistently invoked the Bill of Rights. As Hall was to remark sadly, this statutory declaration of human rights “went from a high point of great expectancy down a short steep slope to near oblivion.” A more important contribution to Aboriginal law came in R. v. Calder. In the late sixties, Chief Frank Calder sought a declaration that Nisga’a title to territory in the Nasa River valley had never been lawfully extinguished. Upon reaching the Supreme Court, a majority of Hall’s colleagues dismissed the requested declaration. Three of the four majority members held that any title had been extinguished by previous colonial proclamations and exercises of sovereignty. Hall strongly dissented. Finding that Aboriginal title existed through countless centuries of occupation, he declared that it could only be extinguished through surrender or by competent legislative authority. Consequently, any future taking of Aboriginal land would require compensation. As Vaughan writes, Hall deeply regretted that his was not a majority judgment, “since he could think of no better way to end his career as a judge than to see a long-standing injustice to native peoples corrected.” However, Hall did not write in vain. Today’s visitors to the College of Law library will see a bust of Hall, its plaque
Continued on Page 18...
Summer/Fall 2015 | BarNotes 17
COMMENTARY Continued from Page 17...
crediting his dissent in Calder with having influenced the modern Aboriginal land claims process in Canada. Viewed broadly, Hall’s jurisprudence reflects a reverence for fairness and individual rights. He decided for the accused in over eighty percent of the criminal appeals he heard. As one former law clerk observed, Hall “was particularly interested in the rights of the individual. Whenever a case arose where it was the state against the individual, he almost always ended up on the side of the individual.” Though his time on the court saw the Bill of Rights fall into disuse, it is fascinating to contemplate what might have been had Hall served in the era of greater judicial powers offered by the Charter. Hall retired from the court in February of 1973. Far from seeking a leisurely retirement, he presided over a series of important royal commissions and national arbitrations. In the field of judicial reform, Hall made an exhaustive study of the Saskatchewan court system. It is him who we may thank for such things as reform of the outdated magistrates court and a transition to our unified family court system. Hall also studied the question of status for the Regina campus of the University of Saskatchewan. His ultimate recommendation in favour of its autonomy would cost him an old friendship however. Then serving as chancellor of the institution, Diefenbaker never forgave Hall for dismembering his beloved university. The ill feeling ran so deep that the retired Prime Minister even struck Hall off the list of proposed pallbearers and invitees to his funeral. When Diefenbaker was ultimately interred on campus grounds, Hall was reduced to wistfully watching the proceedings from his balcony across the South Saskatchewan River.
Save the Date!
2016 Mid-Winter Meeting
Thriving
in Complexity
Conclusion Emmett Hall remains one of the most respected justices in the history of our Supreme Court. While his closeness to our thirteenth Prime Minister thrust him into national renown, it was Hall’s own accomplishments which secured his place in history. From publically-available health care to fairness and due process, he championed basic human rights for all Canadians. A Conservative stalwart, his progressive instincts nevertheless earned the title of “friend of the working people” from the Canadian Labour Congress and saw him serve as Honorary Chairman of the Canadian Civil Liberties Association in his retirement. Hall’s legacy as a jurist may never rank him as a Cardozo of the North; his own colleague Ronald Martland once described him as competent, but not “one of the stars of the court.” Nevertheless, his integrity and unswerving devotion to fundamental social values – both on and off of the court – have left an enduring contribution. 18 BarNotes | Summer/Fall 2015
February 4 & 5, 2016 Delta Regina Hotel | Regina, Saskatchewan
COMMENTARY Saskatchewan Prosecutor at the International Criminal Court Lloyd STang | Ministry of Justice, Department of Public Prosecutions I have always been very interested in criminal law. In law school I took every class I could in criminal law and in my early years as a lawyer I devoted as much time as I could to criminal defence work. The opportunity to work full time in the field of criminal law came in 1998 when I was hired as a Crown Prosecutor in Meadow Lake. My interest in this area of law has also included International Criminal Law. Following her appointment as Chief Prosecutor of the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia I wrote to Justice Louise Arbour1 with an inquiry about her work and the possibility of employment in Arusha or The Hague. I recall receiving a very encouraging response from Justice Arbour but other aspects of life intervened and I decided the timing was not right for a formal application. Of course, my interest in International Criminal Law did not go away. The 1990’s was an important period for International Justice and International Criminal Law. In addition to the establishment, by the United Nations, of tribunals such as the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia,2 the international community was busy working toward the formation of a permanent court that would have jurisdiction over individuals accused of war crimes and crimes against humanity. These efforts came to fruition on July 17, 1998 when 120 states adopted the treaty known as the Rome Statute in order to establish the International Criminal Court (“ICC”). The court was formally created on July 1, 2002 after the Rome Statute was ratified by 60 countries,3 including Canada.4 To date 122 countries, and most recently the State of Palestine have ratified the Rome Statute. 5 The creation of the ICC, this new international, permanent and independent criminal court, was fascinating to me and I regularly read all available news of its ‘birth’ and developments in its early 1 At the time a Judge with the Ontario Court of Appeal Louise Arbour was appointed as Chief Prosecutor of the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia in 1996. She continued as Chief Prosecutor of these tribunals until her appointment to the Supreme Court of Canada in 1999. 2 In addition to establishing the International Criminal Tribunal for the former Yugoslavia (1993) and the International Criminal Tribunal for Rwanda (1994), the United Nations has continued to create other ‘ad hoc’ tribunals in an ongoing effort to bring legal redress to atrocities committed in various countries. These include: the Special Court for Sierra Leone (2002), the Special Tribunal for Lebanon (2007), the Special Tribunal for Cambodia (2003) and the Ad-Hoc Court for East Timor (2000). 3 The ICC at a Glance, [ http://www.icc-cpi.int/iccdocs/PIDS/publications/ICCAtAGlanceEng.pdf ] 4 Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24 5 The ICC at a Glance, supra; and ICC Press Release of 01 April 2015, [ http://www.icc-cpi.int/en_menus/icc/press%20 and%20media/press%20releases/Pages/pr1103.aspx ].
.
years. My fascination finally led to action in early 2011 when I completed an online application for a term position as a Trial Lawyer with the Office of the Prosecutor. Several months later after many emails and phone calls I was selected for a comprehensive telephone interview with a panel of officials from the court. A few weeks after that I was invited to The Hague for a further interview with the Prosecutor. In early July, 2011 I flew to The Hague and interviewed with the Prosecutor, Louis Moreno-Ocampo and the Deputy Prosecutor, Fatou Bensouda.6 The interview went well but did not result in a job offer. I was however advised that my name would be added to their roster of suitable candidates for future Trial Lawyer positions that may become available. By the end of 2011 life was pretty much back to normal in Meadow Lake. All the excitement of the interview process had subsided and the possibility of working for the ICC and living in Europe was ‘in the past’; or so I thought. In early 2013 I received an e-mail from the ICC inquiring if I was still interested in a position as a Trial Lawyer. Following my affirmative response I had one more telephone interview with the new Deputy Prosecutor, Mr. James Stewart, and several weeks later I accepted an offer for a term position as a Trial Lawyer with the Prosecution Division of the Office of the Prosecutor at the ICC. By the end of June, 2013 my wife, my children and I had moved to The Hague as my first day of work at the ICC was July 1, 2013. My initial term of employment was for a period of six months and it was extended for an additional year. The 18 months I spent working at the ICC was indeed a tremendous experience and was as interesting and challenging as I thought it would be. During the first couple of months at the ICC I often felt like a fish out of water. There was much to learn, including office procedures, the software programs associated with the fact that the ICC is a paperless “e-court” and the complex evidence management database, to name but a few things. Upon arrival I was assigned to the prosecution team for the situation in the Ivory Coast and the cases resulting from that situation. Thus I Continued on Page 20...
6 Mr. Moreno-Ocampo’s term as the first Prosecutor of the ICC ended in 2012 and, following her election by the Assembly of State Parties, Ms. Bensouda took over as Prosecutor on June 15, 2012.
Summer/Fall 2015 | BarNotes 19
COMMENTARY Continued from Page 19...
also needed to quickly learn all I could about those cases. This included becoming familiar with the enormous body of evidence and ongoing investigative activities. I would also mention that another important skill I needed to learn was how to work effectively as part of a team, which is in fact very different from the high degree of autonomy one has as a Crown Prosecutor in Canada. Fortunately I learned to work well with the team leader, Senior Trial Lawyer Eric MacDonald, who is an extremely gifted trial lawyer (and who happens to also be a Canadian), and with the other members of the team who are all very intelligent and talented lawyers and legal professionals. Working at the ICC was a great experience and for me it was very personally and professionally rewarding, however I would be remiss if I did not mention that working on cases that involve crimes against humanity also has many challenges, including the pressure that is associated with trying to hold accountable persons who are allegedly responsible for human atrocities. In October and November 2010 a nation-wide Presidential election was held in the Ivory Coast.7 This was the first such election to be held in over a decade.8 The incumbent was President Laurent Gbagbo and the challenger, after the first round, was Alassane Ouattara. The final outcome of the vote was contested and a political and humanitarian crisis ensued.9 The Independent Electoral Commission, with the support of the international community, gave the victory to Ouattara. Gbagbo refused to accept this result and the ‘pro-Gbagbo’ president of the Constitutional Counsel purported to annul results from certain ‘pro-Ouattara’ areas. This, according to the Constitutional Counsel, altered the vote count sufficiently to give the victory to Gbagbo. Both Ouattara and Gbagbo swore an oath of office, chose ministers, and claimed to be the legitimate government of the country. A dominant feature of the post-electoral crisis was extreme violence including rapes of hundreds of women and girls, thousands of serious injuries, and the deaths of approximately 3,000 people. In particular, much of the violence that occurred in the city of Abidjan, including violence against civilians, was committed by Military and Police elements still loyal to Gbagbo. The dispute over who was to be President of the country came to an end on April 11, 2011 when Gbagbo was arrested by proOuattara forces with the assistance of International Military elements. Unfortunately, the violence associated with the postelectoral crisis continued for some time after Gbagbo’s arrest.
7 The first round of voting was held on October 31, 2010 and the second on November 28, 2010. 8 The last previous Presidential Election, also having a disputed result, occurred in 2000 and resulted in Gbagbo becoming the President of the Ivory Coast. 9 It must be understood that the post-electoral crisis was not solely caused by a disputed election result. Rather the disputed election result was a key event that triggered the violence. The ‘causes’ of the crisis have their roots in decades of conflict, including a civil war and a de facto division of the country from 2002 until the election of 2010. The underlying interests and conflicts were many and were complex. Unfortunately the scope of this article does not permit me to even summarize the many ‘causes’ or ‘reasons’ underlying the post-electoral crisis of 2010 – 2011 in the Ivory Coast.
20 BarNotes | Summer/Fall 2015
For their roles and alleged responsibility for much of the violence, which violence included crimes against humanity, the Office of the Prosecutor sought and obtained warrants of arrest for Laurent Gbagbo,10 his spouse, Simone Gbagbo,11 and his former Minister of Youth and Employment, Charles Blé Goudé.12 Laurent Gbagbo was transferred into the custody of the ICC on November 30, 2011 and he made his first appearance before Pre-Trial Chamber III on December 5, 2011.13 His confirmation of charges hearing14 was held before Pre-Trial Chamber I from February 19, 2013 to February 28, 2013. Following this hearing Pre-Trial Chamber I issued a decision that did not confirm or dismiss any of the charges against Gbagbo. Instead the decision, by majority, was to adjourn the hearing for approximately six months in order to give the Prosecutor time to gather and present more evidence as part of the confirmation of charges proceedings.15 This decision of Pre-Trial Chamber I was issued on June 3, 2013. The date of this decision is significant for me because I started working for the Office of the Prosecutor a month later; and I was assigned to the trial team dealing with this case. Consequently, I was quickly placed “in the thick of it” to use a colloquial expression. One of the significant differences with my past experience as a prosecutor was the fact that Lawyers with the Office of the Prosecutor are significantly involved in the investigation activities of the various cases. Working directly with the members of the investigation team as their investigation moved forward was indeed one of the highlights of my time at the ICC. In the case against Gbagbo these further efforts proved fruitful. A substantial amount of further evidence was obtained and presented to Pre-Trial Chamber I as part of the confirmation of charges process against Gbagbo. In addition to this further evidence our team also prepared and presented an ‘Amended Document Containing the Charges’16 and further final written arguments17 to persuade the Chamber that it should confirm the charges against Gbagbo. These efforts, by all involved, paid off. On June 12, 2014 Pre-Trial Chamber I issued its decision,18 by majority, confirming all of the charges against Gbagbo.
10 Pre-Trial Chamber III issued the warrant of arrest for Laurent Gbagbo on November 23 2011; and the warrant of arrest was unsealed by Pre-Trial Chamber III on November 30, 2011. 11 Pre-Trial Chamber III issued the warrant of arrest for Simone Gbagbo on February 29, 2012; and the warrant of arrest was unsealed by Pre-Trial Chamber I on November 22, 2012. 12 Pre-Trial Chamber III issued the warrant of arrest for Charles Ble Goude on December 21, 2011; and the warrant of arrest was unsealed by pre-Trial Chamber I on September 30, 2013. 13 Judicial ‘pre-trial’ responsibility for the cases arising from the Ivory Coast was subsequently transferred to Pre-Trial Chamber I. 14 The closest equivalent in Canadian Criminal law would be a ‘preliminary inquiry’, there are, however, many significant differences. 15 Decision adjourning the hearing on the confirmation of charges pursuant to article 61(7)(c)(i) of the Rome Statute, ICC-02/11-01/11-432; [ http://www.icc-cpi.int/iccdocs/doc/doc1599831.pdf ]. 16 Document amendé de notification des charges, ICC-02/11-01/11-592-Anx1; [ http://www.icc-cpi.int/iccdocs/ doc/doc1710471.pdf ]. 17 Prosecution’s final written submissions on the confirmation of charges proceedings, ICC-02/11-01/11-642-Red; http://www.icc-cpi.int/iccdocs/doc/doc1772142.pdf ]. 18 Decision on the confirmation of charges against Laurent Gbagbo, ICC-02/11-01/11-656-Red; [ http://www.icc-cpi. int/iccdocs/doc/doc1783399.pdf ].
COMMENTARY home insuranCe exCLusive to LegaL ProfessionaLs
great rates! JUdgE FOR yOURsELF.
Join the thousands of Canadian LegaL ProfessionaLs who are sPending Less on their home insuranCe! CALL OR CLICK FOR A QUOTE
1-877-314-6274 www.barinsurance.com/homeauto
Certain conditions apply. CBIA Sponsored Home & Auto Insurance is underwritten by The Personal General Insurance Inc. in Quebec and by The Personal Insurance Company in all other provinces and territories. Certain products and services may not be available in all provinces and territories. CBIA Insurance Services is a division of 3303128 Canada Inc., a licensed insurance broker. Auto insurance not available in Manitoba, Saskatchewan or British Columbia due to government-run plans. The clauses and terms pertaining to the described coverage are detailed in the insurance policy. Certain restrictions and exclusions are included therein.
Simone Gbagbo has to date not been transferred into the custody of the ICC. She was arrested with her husband on April 11, 2011 and has been in the custody of national authorities in the Ivory CBIA_Ad_3.75x4.75_CMYK-2013.indd 1 6/20/13 10:55 AM Coast since then. The national authorities of the Ivory Coast have resisted the ICC’s demands that Ms. Gbagbo be transferred to the ICC. In particular, on September 30, 2013 the government of the Ivory Coast filed a formal challenge to the admissibility of the case before the ICC.19 This challenge was based on the principle of complementarity20 and the claim that Ms. Gbagbo is being actively prosecuted in Ivory Coast’s national courts for the same conduct that forms the basis of the alleged crimes against humanity pending before the ICC. This is a fascinating aspect of international criminal law and I was fortunate to be directly and substantially involved in preparing the Office of the Prosecutor’s response to the Ivory Coast’s admissibility challenge. On December 11, 2014 Pre-Trial Chamber I issued its decision21 dismissing the admissibility challenge and reminding the Ivory Coast of its obligation to surrender Ms. Gbagbo to the ICC. The Ivory Coast subsequently filed an appeal of this decision and the appeal process is ongoing before the Appeals Chamber of the ICC.
of Gbagbo’s former Minister of Youth and Employment, Charles Blé Goudé. As Gbagbo’s political regime was coming to an end in April, 2011 Charles Blé Goudé fled the country and remained at large until he was arrested in neighboring Ghana on January 17, 2013. The Ghanaian authorities immediately extradited him to the Ivory Coast where he remained in custody until he was transferred into the custody of the ICC on March 22, 2014. The timing of Blé Goudé’s transfer to the ICC put to rest any notions our team had of resting a bit following the submission of the Prosecution’s final written arguments regarding the confirmation of charges in the Gbagbo case. Our team immediately got to work preparing the case against Blé Goudé which preparation specifically included getting ready for his confirmation hearing. For this case the Prosecution filed its Document Containing the Charges22 on August 22, 2014 and the formal confirmation hearing was held September 29, 2014 to October 2, 2014 before Pre-Trial Chamber I. An enormous amount of work went into the preparations for this week long confirmation hearing and my participation at the hearing is certainly one of the high points of my time at the ICC. The hard work put in by all the team members resulted in very high quality presentations to the Chamber, and I am proud to have participated in this hearing. Once again our team’s hard work paid off. On December 11, 2014 Pre-Trial Chamber I issued its decision23 confirming all of the charges against Blé Goudé. With this decision the Prosecution Division of the Office of the Prosecuted ended 2014 on a positive note and I was able to leave the ICC on a ‘high note’ knowing that the Gbagbo and Blé Goudé cases would be proceeding to trial in the near future. As of the writing of this article the trials for Gbagbo and Blé Goudé have not yet started. However, Trial Chamber I recently issued a very important decision granting the Prosecution’s request that the two cases be joined and thus there will be only one trial.24
Interested in learning more about the International Criminal Court? » Contact Lloyd Stang: lloyd.stanc@gov.sk.ca » Visit: www.icc-cpi.int
The third case from the Ivory Coast that I worked on was that 19 There is no citation for the formal document filed as that document was filed confidentially, which status has not been changed. The date the challenge was filed is however confirmed in the public version of the decision cited below at footnote 21. 20 In summary, this principal stands for the proposition that national authorities and the ICC both have jurisdiction to try someone for crimes against humanity or war crimes, and that a national prosecution (provided that it is being conducted in good faith and does actually pertain to the same conduct) will have precedence over an ICC prosecution. 21 Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo, ICC-02/11-01/1247-Red; [ http://www.icc-cpi.int/iccdocs/doc/doc1882718.pdf ].
22 Version publique expurgée du Document de notification des charges avec notes de bas de page, ICC-02/11-02/11124-Anx2-Corr-Red; [ http://www.icc-cpi.int/iccdocs/doc/doc1882433.pdf ] 23 Decision on the confirmation of charges against Charles Blé Goudé, ICC-02/11-02/11-186; [ http://www.icc-cpi. int/iccdocs/doc/doc1879935.pdf ]. 24 Decision on Prosecution requests to join the cases of The Prosecutor v. Laurent Gbagbo and The Prosecutor v. Charles Blé Goudé and related matters, ICC-02/11-02/11-222; [ http://www.icc-cpi.int/iccdocs/doc/doc1939586.pdf ].
Summer/Fall 2015 | BarNotes 21
Call for Nominations Queen’s Counsel Queen’s Counsel appointments are made by the Cabinet with the judiciary, The Law Society of Saskatchewan and CBA Saskatchewan providing input. The appointments are traditionally announced in December each year. CBA Saskatchewan will be considering eligible members whose names may be put forward to the Minister of Justice. Members who know of likely candidates for this are invited to submit nominations to the CBA QC Nominating Committee. The pre-requisites are: 1) that the individual has been entitled to practice law for at least ten years; and 2) he or she has enhanced the profession through distinguished work or dedication to the profession. A third criterion exists to be eligible for a nomination by CBA Saskatchewan; which is such that a CBA nominee must be a CBA member. All nominations, along with background information and the reasons you believe the nominee should be honoured, should be forwarded to: CBA Saskatchewan, Attention: QC Committee, 306, 105 - 21st Street East, Saskatoon, SK S7K 0B3.
Deadline for Submission: September 15, 2016 - 4:30 PM | NOMINATION FORMS available online: http://bit.ly/QCNoms
Distinguished Service Award The Distinguished Service Award recognizes exceptional contributions and/or achievements by members of the Branch in the area of law. Eligibility: must be a member of CBA Saskatchewan; must have made exceptional contributions: involving a significant law-related achievement for the benefit of residents of Saskatchewan; or to the legal profession in Saskatchewan; or to the jurisprudence in Saskatchewan or Canada; or to the law or development of the law in Saskatchewan; members of the current Executive Committee are not eligible; except under extraordinary circumstances, former members of the Branch Executive are not eligible for this award for a period of three (3) years from the date that their respective service on the Executive ended; except under extraordinary circumstances nominees must be able to attend the Award presentation event.
The nomination must include the following: a nomination form including full details as to why the individual should receive the award; the signatures of three (3) members; written confirmation from the nominee agreeing to have his/her name put forward for the Award; the full name, address, telephone, and email information of both the nominee and the three (3) nominators; a concise curriculum vitae of the nominee; and letters of support, if possible. Complete nominations must be submitted to the Executive Director of CBA Saskatchewan. Selection made by CBA Saskatchewan Awards Committee; nominations are valid for two (2) years; the number of Awards to be presented annually will not exceed two (2).
Deadline for Submission: November 16th, 2015 - 4:30 PM | Nomination Forms available online: http://bit.ly/CBASK-DSA
Celebrating our very best Branch Awards 2015 Community Service Award: Brenda Walper-Bossence, QC The Community Service Award was created to recognize valuable contributions of CBA members who have demonstrated outstanding dedication, service and commitment in serving the communities of our province. Brenda Walper-Bossence, QC, was recognized as the 2015 Community Service Award recipient. Brenda graduated from the College of Law, University of Saskatchewan with the Class of 1974. Other illustrious graduates of the Class of ‘74 include Fred Zinkhan (Olive Waller Zinkhan & Waller LLP), who introduced Brenda prior to the award presentation, former Justice Michael Ryan; Madam Justice E. Gunn; Justice Peter Whitmore; and Chief Judge Jim Plemel.
(L-R) CBA Saskatchewan President Gail Wartman, QC, and 2015 Community Service Award Recipient Brenda Walper-Bossence, QC.
She commenced her articles in Moose Jaw on June 1, 1975 with Roy Dickinson, QC, as her principal. Roy has since retired but prior to his retirement, practised law in Moose Jaw from 1958 until 2000, a period for 42 years and then had a semi-retired practice from his home, for a further 13 years until 2013. Mr. Dickson was in attendance to see Brenda receive the award. Brenda moved from Dickinson and Chow, to Chow Walper and then to Chow Walper Ocrane. On March 2, 1986 she launched a solo practice in Moose Jaw, where she still practices today, some twenty-nine years later. Brenda has been an active volunteer, not only with The Canadian Bar Association, but also within the community. She devotes much of her time to various organizations within her community, including the Moose Jaw Rotary Club, John Howard Society, and Minto United Church. Brenda currently sits as a member and President of the Moose Jaw Non-Profit Housing Corporation, and is an owner/ manager of several Moose Jaw properties, including William Milne Place, which is a low-income housing unit for men and women over the age of 50. The design for William Milne Place has received numerous Heritage awards. The Moose Jaw Non-
Profit Housing Corporation’s most recent building project includes Wakamow Place, a centre for adults with severe mental illness, which has won a national award from CMHC for its ‘green’ initiative. Brenda’s support and consideration for the community are also evident in the everyday work that she does, especially within the legal community, being involved in the National Women in Law and Saskatchewan Trial Lawyers’ Association, as well as PLEA and (formerly) SKLESI. “I see the Community Service Award as being recognition for that person who makes lawyers look good in the community and who helps make the community a better place,“ says Gail Wartman, QC, President of CBA Saskatchewan, “Brenda Walper-Bossence is a great example of the role model in this community.” The 2015 Community Service Award was presented to Brenda on June 18th, at the DoubleTree by Hilton Hotel & Conference Centre Regina, following the Branch Annual Meeting.
COMMENTARY J.J.’s Case: A Landmark Decision on Aboriginal Rights or a Judicial Oddity? Mitch McAdam, QC | Saskatchewan Ministry of Justice The opinions expressed in this article are mine alone and do not necessarily represent the views of the Ministry of Justice. In November, 2014 Judge G.B. Edward of the Ontario Court of Justice held in Hamilton Health Sciences Corp. v. D.H.1 that D.H., a member of the Six Nations of the Grand River, had an existing Aboriginal right to pursue traditional First Nations medicine, which was protected under section 35 of the Constitution Act, 1982. This right allowed D.H. to withdraw consent to chemotherapy treatments for her daughter, J.J., who had been diagnosed with acute lymphoblastic leukemia, a form of bone cancer. The decision generated a large amount of controversy. It was hailed by some as a long overdue and precedent setting recognition of Aboriginal rights.2 It was criticized by others as a likely death sentence for J.J.3 My purpose in writing this article is not to debate the pros and cons of traditional First Nations medicine. Rather, my intention is to point out that Judge Edward did not follow the full analytical framework for deciding Aboriginal rights cases that has been laid down by the Supreme Court and to suggest that the value of his judgment as a precedent can therefore be questioned. The case arose as an application under section 40(4) of Ontario’s Child and Family Services Act to have J.J. apprehended as a child in need of protection after her mother withdrew consent for chemotherapy treatments. In addition to the Aboriginal rights issue, the case had a number of odd side issues that were not discussed in the judgment. The first was that the application was brought by the doctors treating J.J. and the hospital, not the local children’s aid society. The society had decided that J.J. was not in need of protection because she had a loving mother who was only concerned with her best interests. With respect, this is not the legal test. A second side issue was whether Judge Edward should have been hearing the case. Judge Edward is also a member of the Six Nations of the Grand River, which potentially gives rise to 1 2014 ONCJ 603. 2 “Aboriginal Rights Advocate Applauds Ontario Court Decision”, (18 November 2014) online: Brandon University News < https://www.brandonu.ca/news/2014/11/18/aboriginal-rights-advocate-applauds-ontario-court-decision>. 3 Asher Honickman “A questionable judgment on ‘traditional medicine’” National Post (21 November 2014 online: National Post http://news.nationalpost.com/2014/11/21/asher-honickman-a-questionable-judgment-on-traditionalmedicine>.
24 BarNotes | Summer/Fall 2015
a reasonable apprehension of bias.4 Obviously, if Judge Edward had more than a passing knowledge of J.J. and her family, he should have recused himself. But the fundamental issue here is that this is a case about the Aboriginal rights of the Six Nations. The Supreme Court has defined Aboriginal rights as cultural rights. Aboriginal rights refer to the customs, practices and traditions that were an integral part of the distinctive culture of an Aboriginal community at the date of its first contact with Europeans and which continue to have this significance in their community today.5 The Supreme Court has also indicated that Aboriginal rights are community specific. They depend on the particular historical and contemporary cultures of individual communities.6 The fact that one First Nation has an Aboriginal right to do something does not mean that another First Nation possesses the same right. Accordingly, Judge Edward’s knowledge of the history of his community and, in particular, the role that traditional medicine played in it, is relevant to the existence of an Aboriginal right. At the same time, if Judge Edward does not have any knowledge of the role of traditional medicine in his community either historically or today, that’s also relevant as it suggests that the practice might not be widespread enough or significant enough to qualify as an Aboriginal right. This issue was exasperated by one of the other oddities of this case. While J.J.’s parents were served with the original application, they never appeared in Court. The case was essentially taken over by the Six Nations who advanced the traditional medicine argument. Given that Judge Edward is a member of the Six Nations doesn’t the intervention of the Six Nations effectively mean that he was both a litigant and the Judge in the same case? As indicated, J.J.’s family never appeared in Court in response to the application. They left the jurisdiction at about the time of the first court appearance in order to attend an alternative cancer treatment facility in Florida. Two things need to be said about this. First, I would have expected that once the Judge found out that the child had left the jurisdiction, the application would have been dismissed. At that point, any decision that the 4 See generally Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General) 2015 SCC 25. 5 R. v. Van der Peet, [1996] 2 S.C.R. 507 at p. 548 6 Van der Peet, supra at p. 559
COMMENTARY Judge might make requiring J.J. to be taken into custody in order to obtain medical treatment was moot as he lacked jurisdiction over her.
child in order to ensure that the child receives necessary medical treatment is a justifiable limitation on J.J.’s mother’s Aboriginal right to seek a traditional medicine outcome for her daughter.
Second, the case has been characterized as one that is all about traditional First Nations medicine. But J.J.’s mother withdrew her from chemotherapy in order to take her to an alternative cancer treatment facility in Florida. There has been a lot written in the press about this facility, the Hippocrates Health Institute, and whether it is credible or not. But, the key point from a legal perspective is that J.J. did not stop chemotherapy to seek out traditional First Nations medicine. So, it seems to me, that whether J.J.’s mother possesses an Aboriginal right which includes the right to remove her from chemotherapy to pursue traditional medicine is a moot issue. The facts of the case simply did not line up with the legal arguments.
This would have been an extremely difficult issue to decide. Judge Edward could have taken some guidance from the cases dealing with children of Jehovah Witnesses whose parents refused permission for life saving blood transfusions on religious grounds. The Supreme Court has repeatedly held that the State’s power to intervene in the interests of the children in these cases can justifiably override their parents strongly held religious beliefs.9 But this case would have been even more difficult than the Jehovah Witness cases because traditional medicine is not based solely on faith. It offers an alternative course of treatment. In my opinion, Judge Edward, having been placed in the same position as J.J.’s parents by the Legislature, should have weighed the merits of the two alternative treatments and their likely outcomes for J.J. before making his decision about whether J.J. was a child in need of care under the legislation.
Judge Edward’s discussion of the Aboriginal rights issue is actually quite short. He referred to R. v. Van der Peet as the leading case on what is an Aboriginal right and he set out the right test for proving an Aboriginal right under section 35. He briefly reviewed some of the evidence that was heard during the nine day hearing and concluded that there was “no question” that traditional medicine qualified as an Aboriginal right in the Six Nations community. In my opinion, his conclusion is undoubtedly correct. It seems to me that there is little doubt that traditional medicine was an important cultural component of most, if not all, First Nations in Canada prior to European contact and that these practices continue to play a significant role in many First Nation communities today. Therefore, I think that Judge Edward’s decision on the merits of this case was a “no brainer”. But I disagree with Judge Edward that this conclusion resolved the case. Judge Edward indicated that section 35 is not part of the Canadian Charter of Rights and Freedoms and therefore the “reasonable limits” test under section 1 of the Charter does not apply. However, in my respectful opinion, this is where he fell into error. The Supreme Court has repeatedly indicated that Aboriginal rights and Treaty rights, like all rights in our society, are not absolute. Governments can still override or even infringe these rights provided that their actions are justified according to the test laid down by the Supreme Court in R. v. Sparrow. 7 This test resembles the “reasonable limits” test under section 1 of the Charter. It requires the government to show that the law has a valid legislative objective and that this objective is achieved in a way which upholds the honour of the Crown in its dealings with Aboriginal peoples.8 Therefore, in my opinion, Judge Edward’s decision stops right where it should have begun. He needed to analyze whether a law which authorizes the State to step in and take custody of a 7 R. v. Sparrow, [1990] 1 S.C.R. 1075 at pp. 1108-1109. 8 Sparrow, supra at pp. 1113-114.
In conclusion, it is my view that J.J.’s case will not stand as a significant precedent in future Aboriginal rights cases. The Judge simply did not follow the full analytical framework called for by cases like Sparrow and there are too many oddities associated with the case to give it much precedential value.
A Guide to Strategy
For Lawyers Help your firm adapt to the changing legal landscape.
www.cbafutures.org 9 See e.g. AC v. Manitoba (Director of Child and Family Services) 2009 S.C.C. 30; B.(R.) v. Children’s Aid Society of Metropolitan Toronto [1995] 1 S.C.R. 315.
Summer/Fall 2015 | BarNotes 25
COMMENTARY Recent Trends in Canadian Intellectual Property Law craig zawada, QC | wmcz lawyers Intellectual property law has an aura of being fast-paced and constantly changing. That reflects its application to technology, which shares those attributes. But IP law’s lineage goes back several hundred years. In fact, our current copyright legislation owes much of its structure to UK statutes of the late 1800’s. So perhaps the perspective of rapid change is overstated. Still, as far as law goes, there has been a good deal of change in IP protection in recent years. In Canada, most IP rules are federal so they are national in scope, not just provincial. Saskatchewan’s technology specialties, including ag-biotech and mobile app development, mean that IP laws are front and centre in numerous business situations. We do not have the space for an exhaustive review of recent IP issues. Instead, this article will review a few of the major trends that have arisen over the past couple of years and suggest what they might mean for the future. A broad trend to note is the “Americanization” of IP rules. This is aimed not just at Canada but countries around the world. The influential content lobby in the US (which includes movies, music, software and other IP forms) is trying to impose its perspectives on other countries. Given the power of these industries, American politicians are listening and doing their best to invoke friendly rules in treaties, including current negotiations like the Trans-Pacific Partnership. I will not debate here whether this is healthy or not. The pressure is real, though, and even in the few issues highlighted below you can see that governments are responding to the influence in different ways.
Notice and notice An example of withstanding American pressure (somewhat) is Canada’s “notice and notice” provisions in the Copyright Act which came into effect in 2015. To understand notice and notice you need to appreciate the more stringent “notice and takedown” system that exists in the US. It is trite to say that the internet has wrought change, and even destruction, over a wide variety of industries. The music business was one of these. The rise of Napster and its progeny of file sharing networks in the 1990’s allowed widespread 26 BarNotes | Summer/Fall 2015
illegal downloading of copyrighted songs. More importantly, it permitted that piracy to exist relatively anonymously. The industry was largely powerless to deal with the problem because even if it could identify downloaders there were just too many to smother. Suing some individuals as test cases proved to be ineffective. The bottleneck which could be attacked was the servers hosting these networks or better yet, the internet service providers (ISP’s). If those sources could be closed then the problem of illegal file sharing could be stemmed. That was the theory, anyway. The ISP’s and sites providing content, such as YouTube, wanted no part of this. Not only was it in their interest to have as much content available as possible, they also had little interest (or business incentive) to expose their customers. Any suggestion of liability for them acting as a content pipeline was vigorously resisted. The result was legislation, chiefly The Digital Millennium Copyright Act, which provided “safe harbor” to distributors as long as they worked within a particular system. That system employed notices, given by content owners, that a work was being used without authorization on the provider’s site. Once a notice was received, as long as the provider removed the offending item they were shielded from liability. This owner-friendly solution led to immediate abuses which continue to this day. For one thing, there are still few checks on owners giving notices that are incorrect. It is often impractical to challenge a notice even when it overreaches. While Canada was being pressured to enact similar legislation within our Copyright Act, those abuses were too much to ignore and so the government compromised with notice and notice. Under notice and notice there is no immediate takedown. If a content owner notifies a provider, say an ISP, that infringing material is being used by a customer, the ISP does not have to filter the material or give the customer’s personal information (name, address, etc.) to the owner. The ISP must only give notice to the customer that they have received a complaint and advise them of copyright infringement penalties. The assumption is that this will encourage the customer to see the error of their ways and cease the conduct. There can still be abuses of this system and some have already
COMMENTARY been reported. Yet it is far more user-friendly than the US structure. Content owners are not satisfied and continue to lobby for more stringent penalties. As it stands now there are no legislative changes imminent.
Fair dealing pentalogy Any IP system involves exceptions to the normal protections. One of these in Canada’s copyright law is the so-called “fair dealing” exceptions. A list of activities, such as private study, are included in the Act and exempted from sanction. It is important to note that this was always a circumscribed list. If one’s use did not fit within the predefined exceptions it would be an infringement. Compare this to “fair use” in the United States. Instead of a finite list their legislation expresses a set of principles which judges can apply to determine whether an apparent infringement should be excused. Courts are thus allowed to be flexible and fit the law to facts in a way that a fair dealing system cannot. Fair use permitted the US Supreme Court to affirm home recording of video for private use in Sony v. Universal Studios, despite there being no mention of VCR’s in the legislation. Canada’s legislators have maintained the fair dealing model but courts, particularly the Supreme Court of Canada, have interpreted those provisions in a much more expansive way. In particular, in a series of five judgments centred in 2012 the SCC introduced and confirmed a two stage test that is much more liberal than past interpretation suggested. In fact, scholars such as the University of Ottawa’s Michael Geist argue that the result of the pentalogy is that Canada is now effectively a fair use jurisdiction. In practice this means that uses of protected materials that were infringements in the past may now be permitted as a reasonable exception. This is always subject to legislative change, of course, but for the moment this is one example of the balance of copyright legislation tipping slightly more in favour of the user over content owners.
Access Copyright Collectives are a longstanding feature of the IP landscape. A body represents a group of rights-holders to protect their interests and collect license fees due. These are then distributed according to agreed formulas with a dollop of regulation from the Copyright Board. A prime example is something like the Society of Composers, Authors and Music Publishers of Canada, the collective which represents music artists in Canada. Most revenues generated through music sales, streaming, radio play and so on are administered and distributed through SOCAN.
Another collective is Access Copyright which represents owners of printed works such as books and texts. In recent years Access has actively sought licenses from what I call “choke points” to minimize their costs and maximize the returns to their members. Instead of pursuing every lawyer who copies cases, or every student who photocopies materials in a university library, for example, they will negotiate license charges from the law societies or universities respectively based on some sort of calculation. It might be a flat fee, a peruser charge, or something else. Unfortunately for Access, the Supreme Court pentalogy referenced above and the expansion of fair use/dealing has drastically eroded their position. Given the Court’s broad view of fair dealing, many universities have declined to renew their licenses with Access. They argue that most if not all of the copying done by students and professors is fair dealing and therefore not subject to license fees. On top of that, Canada’s Copyright Board issued a devastating decision against Access in May, 2015 that reduced the allowed licensing fees to a fraction of what had been sought. For example, instead of receiving $25 million over two years the decision awarded them under $400,000. Since this may not even cover their legal and administrative costs it is unclear what Access faces in the future or whether their current business model can survive the new reality. Expect more activity in the legal and political arenas. As it stands, any institutions which might be subject to a group license should assess their options carefully before committing.
Copyright term extensions Another example of “Americanization” of laws is in the term of protection. For instance the US has made a habit of extending the term of copyright, usually due to lobbying by powerful interests such as Disney. The result is time periods far beyond the original terms, which used to be similar to Canada (in this country most copyright terms extend to the life of the author plus 50 years or 50 years from the date of creation). Canada was pressured to increase copyright term and in the 2015 budget implementation legislation it was extended to 70 years in sound recordings and performances. To be fair, this does bring the term in line with many other countries besides the US (about 60 according to the government) but it also is a shift in the relationship between users and owners. IP law is always balancing user rights (to have works go into the public domain where they can be built upon) against owner rights (a monopoly during the term to reward the creation). Increasing the term shifts it away from users. Continued on Page 28...
Summer/Fall 2015 | BarNotes 27
COMMENTARY Continued from Page 27...
Plant Breeders Rights The Plant Breeders Rights Act is like a patent system for seeds and varieties. Developers and owners are given a monopoly for a period of time, subject to exceptions such as husbandry customs and industry norms. In February, 2015 the PBRA was modernized to bring it into compliance with the International Convention for the Protection of New Varieties of Plants (UPOV 91). Previously the Act had been based on the older UPOV 78. UPOV 91
strengthens some protections for breeders but it also explicitly recognizes the “farmer’s privilege”. This includes the right to save, condition (clean and treat), and store seed produced from a protected plant variety, and use it for replanting on their own farms. Farmer’s privilege was considered to be implicit in the old PBRA but the new version codifies it. There have been other changes in IP laws, of course, but these examples illustrate some of the trends in recent times. With the continuing efforts of the powerful content lobby in the US, expect to see an ongoing push for changes which shift the balance of rights from users to owners. While it is always a question of what the correct balance is, we anticipate more debate on the effects of these proposed changes.
CBA Saskatchewan Encouraging & Sponsoring Young Lawyer in “Re-Thinking” the Association Brea Lowenberger | Robertson Stromberg llp As many readers will be aware, the Canadian Bar Association is undergoing an extensive review and consultation process with lawyers across the country, coined “CBA Re-Think”. The CBA Re-Think initiative commenced amid growing change within the legal profession, with the goal to evaluate the Association as a whole and to increase its relevance and value to lawyers. The CBA sought feedback from lawyers with respect to the proposed changes through an online forum as well as a series of Workshops in Moncton, Toronto, Montreal, Vancouver, and Calgary. Saskatchewan lawyers should be particularly interested in this initiative given the changing legal profession, and the benefits that the proposed changes to the Association could have in assisting both urban and rural practitioners’ practices. As one of the province’s young lawyers, I was selected by the CBA Saskatchewan Executive to attend the Re-Think Prairies Workshop in Calgary on June 23, 2015. I completed my articling and became an associate at Robertson Stromberg LLP this summer, and have been engaged in numerous innovative projects and leadership roles throughout law school and articling, culminating in co-teaching a new course at the College of Law this winter called “Justice Innovation – The Dean’s Forum on Dispute Resolution and Access to Justice”. These combined experiences enabled me to meaningfully provide input during the Workshop and the knowledge I gained from the Workshop has, in turn, benefited both my 28 BarNotes | Summer/Fall 2015
legal practice and continued community involvement. The CBA Re-Think initiative was organized into several stages, beginning with a Request for Proposal issued in July 2014; a foundation phase in November 2014; three phases involving interviewing lawyers, concept visualization, and strategic business design; and a final presentation that is anticipated to occur in February 2016. During the concept visualization phase, the Workshop organizers sought feedback from lawyers with respect to nine proposed concepts:
1. A New CBA Website An indispensable one-stop virtual platform for resources to support lawyers in their professional and personal lives;
2. Advocacy 360 A two-way communication tool for CBA members to comment on and stay informed about advocacy issues that are relevant to them;
3. CBA Career Advisor Provides lawyers confidential access to unbiased, independent career advice, tools,
COMMENTARY and programs, aimed at helping members through life events and career transitions;
4. Virtual Service A CBA-managed service that provides access to remote assistance and delivery of tasks to help members focus and use their time more effectively;
5. Collective Wellness Program Provides CBA members and organizations access to wellness experts, online resources, and reporting systems with the goal of supporting employee wellbeing;
6. Lawyer Camp
CBA Saskatchewan Executive supported me, a young lawyer, in attending the Workshop in Calgary. It is clear that the CBA values the unique perspectives that lawyers at diverse stages of their careers can bring to new initiatives. Based on the proposed timeline outlined by the CBA, the project will be moving from the concept visualization to the strategic business design phase in October 2015. This process will involve synthesizing the feedback about lawyers’ needs from the Workshops, and strategizing about changes to the Association’s business design and organizational structure in order to implement the proposed changes. The presentation to the CBA Board of the final findings and recommendations is scheduled for February 2016. More information with respect to the next steps of CBA Re-Think can be found at: www.cba.org.
A four-day offsite experience centered on social, personal, and professional development;
7. Peer-to-Peer Exchange A platform through which CBA members can share knowledge and learn from the experiences of others;
8. Life Coach for Lawyers A service for lawyers to access when they have professional or personal challenges; and
9. Skills for Success Provides access to continuing education in the form of practical skills programs, based on member needs and interest. The Workshop organizers made it clear that these concepts are not set in stone, but that the goal of the online forum and Workshop was to review, reflect on, and provide input for the concepts. We were divided into groups and analyzed and provided both written and online feedback on the topics. The Workshop organizers explained that the initiative is focused on collaborative-based change aimed at creating long-term value for CBA members. They further recognize that the CBA has a complicated structure, and that a clear mandate, mission, and point of entry for members are all essential to remain relevant to its existing members, and to attract new members. The organizers specified that another intent of the Workshop is to identify gaps in CBA services beyond the proposed concepts, and contribute ideas for solutions to improve the gaps.
CBA LEADERSHIP CONFERENCE FOR PROFESSIONAL WOMEN
CREATING OUR FUTURE November 20-21, 2015 Vancouver, BC Learn more & register online: www.cbapd.org
Participating in the Workshop was an opportunity to contribute feedback to proposed changes to the CBA, and to engage with lawyers from across the prairies as the CBA undergoes this “rethinking” process. With many changes occurring within law schools and the legal profession alike, it is a noteworthy time to be entering the legal profession. I was encouraged that the
Summer/Fall 2015 | BarNotes 29
THE POWER OF PROXIMITY
THE CBA’S PROVINCIAL AND TERRITORIAL BRANCHES UNITE THE FINEST LOCAL LEGAL PROFESSIONALS TO ENGAGE IN VITAL DIALOGUE, DISCUSS PRESSING ISSUES, SHARE THEIR VISION AND ADVOCATE FOR THE NEEDS AND REALITIES OF THEIR INDIVIDUAL REGIONS.
CBA MEMBERSHIPS EXPIRE AUGUST 31ST, 2015 We’re rewarding increased engagement in the CBA. Learn more about membership options and quickly renew your membership online at cbamembership.org www.cbamembership.org atcbamembership.org
WWW.CBAMEMBERSHIP.ORG
YOUNG LAWYERS Learning the Practice in the Provincial Court of Saskatchewan Kathryn gilliss | Trobert Law Firm Submitted by Judge Patrick Reis: The winner of the 2015 Articling Student Proficiency Award, sponsored by the Saskatchewan Provincial Court Judges Association, is Kathryn Gilliss. As of this spring, Kathryn is articled to James Trobert at Trobert Law Firm in Estevan, Saskatchewan. Her essay, entitled Learning the Practice in the Provincial Court of Saskatchewan, is reprinted below. We congratulate Kathryn, and wish her the best in her legal career. After eight grueling years in university, only three of which truly focused on what would become my profession, I couldn’t wait to show off my knowledge and my fancy new degree on the first day of the rest of my life. I quickly knew that litigation was where I wanted to focus my career and I was just itching to get into the courthouse to finally put my legal skills to work. As an articling student in a smaller center, I am truly fortunate to get many opportunities to appear in court. When my first appearance came I knew one thing and one thing only – that I had no idea what I was doing. I stood before the court shaking through my first adjournment request, praying I would be able to get out of the courtroom without looking like a complete idiot. After I mumbled through the longest minute and a half of my life, I sat back down in the gallery and decided to observe some more senior lawyers through their submissions. I have since come to realize that a great deal of what I have learned in the past year has come from what I have done and witnessed in Provincial Court. During the past year I have been afforded numerous opportunities to appear in Provincial Court on both criminal and civil files. These files have been a great opportunity to get my feet wet as far as understanding the litigation and court processes. They have given me a fast paced introduction to what the practice of law looks like in a courtroom and helped me to develop many skills such as articulating my point, thinking on my feet, and applying law to real people and real situations. As law students, the vast majority of our education focused on substantive law with only a few courses designed to teach practices within the courtroom. With no disrespect meant to those courses, there is really no substitute for the knowledge gained through real experience. It really wasn’t until I made my first submissions in Provincial Court that I truly felt I understood the court process. While mock trials and submissions certainly provided me with a starting point, the quality of my submissions has grown exponentially as a result of trial and error before the court. (No pun intended.) The Judges and clerks within
the Provincial Court system are extremely patient with new practitioners and supported my transition from student to practitioner. Hearing the submissions of other lawyers in Provincial Court has also helped to improve my advocacy skills immensely. Almost every time I leave the courthouse, I reflect on my submissions and determine there was at least one thing about what I said that I didn’t like. With the opportunity to hear other lawyers appear before the court, I have come to realize what I like and don’t like to hear and have started to tailor my own submissions with that in mind. More importantly, it helps me to see what the judge likes and doesn’t like to hear. Watching my colleagues in Provincial Court has helped me to style my submissions so that I find myself more and more comfortable with what I submit to the court every time I come before it. It has helped me to cut down on my preparation time and has really helped to build my confidence in court, and this, in turn, builds my clients’ confidence in my ability to represent them effectively. In addition to bettering my advocacy skills through submissions, appearing in Provincial Court has advanced my advocacy skills among my colleagues. While so much of the practice of law is focused on the substantive and procedural, an invaluable asset that I have obtained through Provincial Court appearances is face time with other members of the bar. So much of the practice of law involves communication and negotiation with other lawyers. Collegiality is very important for a successful practice and personal interaction is a good way to help facilitate understanding and communication among lawyers. Simply put, it is much harder to be unreasonable or rude to someone you know. Putting a face to a name, or making a colleague a friend, can make all the difference when advocating for clients. I have met a number of lawyers from Estevan and area as a result of appearing in Provincial Court that I might not have met for years otherwise. Now when we are adversaries on a file, I find it much easier to communicate and more often than not we are able to find a resolution that I maintain may have been more difficult to obtain without a working relationship that often started in the Provincial Courtroom. With the ultimate goal of our profession being to effectively advocate for our clients, the Provincial Court provides an amazing opportunity for young lawyers to develop advocacy skills in a serious but relaxed setting. It is a great introduction Continued on Page 32...
Summer/Fall2015 | BarNotes 31
YOUNG LAWYERS Continued from Page 31...
to the procedures of court and the interaction between lawyers and judges without being so overwhelming that the experience is lost. I recommend that all articling students and young lawyers take every opportunity given to them to appear in Provincial Court. Even for those who do not wish to litigate, taking a few
files through Provincial Court will give all lawyers a preliminary knowledge of the court system and will help develop a true foundation for effective advocacy.
The Law of Attraction: Fashion Advice for Men & Women Hannah Zip | Knott den Hollander “Office Casual”, “Professional Dress Code”, “Court Room Appropriate”, “Business Wear”, “Business Formal”, “Wine & Cheese”, “Networking Event” ,“Job Interview”. Do these terms confuse you? Do you want to run for the hills? Do you know what to wear to any of these? Fear not! For I am an actual, practicing lawyer with years of experience in successfully putting on clothes and I am here to help with some tips and wisdom for law students and those brandspanking new to the profession. What you wear in your legal career is important, as it conveys a message about who you are and what you are capable of. It is one way of speaking without saying a word. Many first impressions are formed based on your attire. So read on as I will demystify what to wear to two of the most nerve wracking scenarios that you will face fashion-wise.
Scenario A: The “Wine & Cheese” In law school I had no idea what this meant, and I interpreted it as an opportunity to stuff myself with free wine and cheese. Woohoo! I went to every single “wine and cheese” proudly wearing my orange, Billabong hoodie and flared jeans, with studded belt and Vans skate shoes. I did this for nearly my entire first year at the College of Law until I realized that none of the lawyers from the sponsored events were paying attention to me. Wine and cheese events are actually networking events paid for by law firms and other professional organizations to network with students and poach the young talent for future jobs. You want to impress people at these events and what you wear can impress them. One student, who was much smarter than me, kept a blazer in his locker to throw on “just in case” there was an event that day. Be like him, not like me. Wear a blazer! Gentlemen, below are tips to ensure your blazer fits you like a dream: 32 BarNotes | Summer/Fall 2015
1. Arm length: Sleeves should end where the base of your thumb meets your wrist with a half inch of shirt cuff showing when your arms are at your side. Ask about the store policy when you are buying your blazer, as some retailers will tailor the arm length for free. Who doesn’t love free? 2. Shoulders: Shoulders CANNOT be tailored. The padding should end where your natural shoulder ends. There should be no divots. Fit test: lean against a wall. Your natural shoulder and the padding should touch the wall at the same time.
3. Torso and Collar: Make a fist inside the lapel and the blazer should tighten up. Your blazer is too tight if you button it and the fabric forms an “X” around the button. Speaking of buttons, only button the top button when there are two buttons, the middle button when there are three buttons, and always unbutton your blazer when sitting. There should be no gap between your shirt collar and blazer collar. Fit test: hug the sales associate. If it’s too tight then go up a size.
4. Length: It should cover your butt. That’s it. There is no way to tailor a short blazer, but you can have a long blazer taken up by about an inch. Fit test: hang your arms at your side. Your knuckles should be even with the bottom hem of your blazer. Ladies have more leeway due to the many styles of blazers available, but for a job interview stick with a classic style that follows the guidelines below: •
Fitted across the shoulders, but you should still be able to give a high five;
•
The hem should skim your hipbone;
•
Sleeves should hit mid thumb when your arms are out
YOUNG COMMENTARY LAWYERS in front of you; •
You should be able to button it without pulling, but it should retain its silhouette when open; and
•
If you are between sizes or any part of the blazer is too small, then size up and have it tailored.
Your blazer is a frame, and you are the main attraction my learned friend.
Scenario B: The Job Interview Job interviews can be super stressful! You have so many things to worry about in preparing for your interview - Is your handshake sufficiently firm and confident? Is your smile genuine and eye contact steady and non-creepy? - what to wear should not be one of them. Always wear a suit to an interview! The interview is not the opportunity to “get creative” with your style choices. Keep your attire sleek and simple. There will be plenty of opportunity to showcase your unique sense of style once you are hired and have the chance to evaluate your new work environment. Until then, stick with the basics: •
Wear a classic, conservative, boring suit;
•
Keep skirts knee length;
•
Check for dangling threads and loose buttons and fix them;
•
Ties should be a classic colour or subtle, classic pattern;
•
Ensure your clothing fits you properly and is wrinkle free;
•
If your clothing doesn’t fit, then have it tailored;
•
Keep jewelry minimal;
•
Your jewelry shouldn’t make any noise, like jangly bracelets;
•
Ladies, I hate to tell you this, but it is best to just wear nylons. I know it sucks, but do it for the job interview, and then light them on fire if you must;
•
For women, make sure there is no “button gap” on button down shirts (Check by standing sideways in front of a mirror);
•
Ensure your shoes match your suit and are scuff free;
•
No funny patterned socks; and
•
Grooming is vital.
When they’re gone, they’re gone... Pre-order your copy of the CBA Saskatchewan 2015/2016 Legal Directory: http://bit.ly/LD1516
Legal Directory 2015/2016
Once you have figured out your interview outfit, give it a test drive. Put it on and then sit down. Is your skirt too short? Are you uncomfortable? Is your waistband digging in? Is everything clean? Does it all match? Do your shoes squeak when you walk? Adjust accordingly. If you dress the part, you are more likely to get the part. Good luck and strut your stuff!
Summer/Fall 2015 | BarNotes 33
PRO BONO SPOTLIGHT Action Committeeâ&#x20AC;&#x2122;s Six Guiding Principles: Access to Justice in Civil and Family Law CARSON HUrLEY | JD Candidate, COllege of LAw, University of Saskatchewan Carson Hurley prepared this article for Pro Bono Law Saskatchewan as part of his volunteer activities with Pro Bono Students Canada. PBLS extends its thanks to Carson for his great work! In 2008 the Action Committee on Access to Justice was convened in order to address the ever-growing issue of accessibility in our legal system. The committeeâ&#x20AC;&#x2122;s goal was to implement a coordinated and proactive national strategy, in order to allow for greater effectiveness and cooperation of the countless initiatives that operate across the country. By creating a more standardized and cohesive approach, the committee hopes to provide a framework, through which all members of Canadian society might enjoy fair representation and equal participation within the legal system.
Lawyers Concerned for Lawyers here for you when you need it.
Lawyers Concerned for Lawyers Inc. is a non-profit corporation comprised of Saskatchewan lawyers and judges advocating for those within the legal profession who may be experiencing professional or personal stresses or difficulties. Professional and confidential assistance is available to law students and Law Society of Saskatchewan members and their families whose lives are impacted by personal or professional problems. Assistance is provided at no cost to all those who qualify for the program.
1.800.663.1142
TTY: 1.888.384.1152 www.homewoodhumansolutions.com
34 BarNotes | Summer/Fall 2015
Although numerous initiatives dedicated to access to justice already exist and operate in numerous different capacities, the Action Committee is dedicated to uniting them under a common approach. To this end, in a report issued in 2013, the committee outlined six innovative principles aimed at combatting the social ill of inaccessibility. Through these ideas the committee has demonstrated an ability to see beyond the surface of the issue at hand, recognizing that the problem goes deeper than accessibility of legal services. Instead the Action Committeeâ&#x20AC;&#x2122;s proposed approach will focus on the broader issues that pervade the Canadian legal justice system, as well as society at large. The first, and arguably the most important principle is to put the public first. Rather than simply focusing on the internal functioning of the legal system, the Action Committee report stresses the need to view the system in its proper societal context. It is imperative to understand that our justice system exists purely to service the legal needs of the public. Therefore, the focus should be on the experience of those people who use the system. It is a mistake to simply view the legal system as a series of procedures which can be moulded and modified in order to allow for greater efficiency. Instead, it is essential to focus our attention outwardly, with the understanding that efficiency and accessibility are necessarily linked to the functioning of society at large, and the people who live and operate in that society. With this central principle in mind, the second principle of collaboration and coordination flows naturally. In order to achieve a more efficient and accessible justice system, changes must be implemented at all levels and across all jurisdictions. The Action Committee has set itself the lofty goal of improving access to justice on a national scale. Success therefore will be impossible unless the approach is accepted and endorsed all over the country, rather than simply in specified areas, or sectors. The next principle the committee endorses is prevention and education. In order to improve efficiency it is necessary to reduce the strain on the courts. The best way to achieve this is to promote equitable resolutions at as early a stage as possible. Rather than viewing the courts as a reactionary dispute resolving machine, the legal system should be regarded as a
PRO BONO COMMENTARY SPOTLIGHT preventative process. The earlier in the process a dispute can be resolved the less strain it will put on the system as a whole. Therefore, the Action Committee has placed a great deal of importance on alternative dispute resolution initiatives. In order to allow for earlier resolutions, it is imperative that litigants understand the system in which their dispute is being decided. Therefore, the fourth principle endorsed by the committee is to make changes aimed at creating a system that is simpler, more coherent, proportional and sustainable. An essential part of this notion is proportionality. The committee stresses that the system must allow simple issues to be handled in a simple way. It is a common complaint among litigants that the legal system is difficult to navigate. Improvements in efficiency are possible through procedural simplifications that allow for greater understanding among those who use the system. The committee states that such simplifications can be made at each and every stage of the process. The final two guiding principles are taking action, and focusing on outcomes. Although the committee does not discount the importance of research and new ideas, the time has come to put ideas into action on a large scale. The only way that meaningful change can be achieved is through action. To that end it is imperative that the focus remain on the outcomes
rather than the procedure. Through action, new strategies may be tested and modified in order to achieve greater results. An idea’s merits however, should be judged based on the justice of the results which it yields, rather than the procedural fairness. Where a new program or idea is found to yield less than adequate results, it is essential that new changes be made in order to avoid stagnation. Flexibility is necessary in order to achieve a better more accessible system. Access to justice is an extraordinarily pressing problem in our country, and the Action Committee plans to meet it head on. As the Rt. Honourable Chief Justice Beverly McLachlan has said, “the most advanced justice system in the world is a failure if it does not serve the people it is meant to serve.” By adhering to the guiding principles outlined above, the committee hopes to bring the legal system to the people who are in need of its service.1
1 Action Committee on Access to Justice in Civil and Family Matters. (2013). Access to Civil & Family Justice: A Roadmap for Change. Retrieved from http://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf
National News | Highlights from the Association CBA.org to Re-Launch in September
Succession Law Tables of Concordance
Members have been asking for an update and we listened. The new CBA.org will give you a fresh place to discuss, engage and connect with others on the legal and professional topics that are important to you. The new site will be mobile friendly and loaded with new practical tools for CBA members. When you log in, you’ll also get access to a personalized dashboard with content custom tailored to your interests and practice area.
The CBA’s Wills, Estates and Trusts Section has assembled Succession Law Tables of Concordance. The Tables provide a quick reference to basic information about estate and succession laws in Canadian jurisdictions and links to make enquiries to court/land titles officials.
» Learn more: http://bit.ly/CBA-WEB-FAQs
A time to learn: Lawyers and mental health Canadian lawyers have told us they’re getting stressed out and anxious about the state of their stress and anxiety. So CBA Wellness (formerly LPAC) worked with Bell Let’s Talk and the Mood Disorders Society of Canada to develop an online course to help lawyers identify whether they’re experiencing difficulties and what they can do about it. The course was launched at the 2015 CBA Legal Conference in Calgary.
» Learn more: www.cba.org/wellness
» Read the Succession Law Tables of Concordance: http://bit.ly/WillsEstTrusts SAVE THE DATE
Women Lawyers Forum Third National Leadership Conference Women lawyers and professionals across Canada have a unique opportunity to attend a truly inspirational conference that will bring together an international faculty of renowned and celebrated women leaders to inspire, embolden and teach invaluable leadership skills. » Learn more: http://bit.ly/2015WLF
Summer/Fall 2015 | BarNotes 35
From the Bench Update from the Provincial Court of Saskatchewan Chief Judge Plemel | Provincial Court of Saskatchewan The following are remarks made by Chief Judge Plemel at the CBA Saskatchewan Annual Meeting on June 18, 2015. Chief Judge Plemel welcomed the opportunity to speak as Chief of the Provincial Court and thanked the organizers. His term as Chief Judge began on January 1, 2015, when former Chief Judge Carol Snell’s seven year term concluded. He thanked Judge Snell for her assistance during the transition period and also Chief Justice Richards and Chief Justice Popescul for their support. Chief Judge Plemel commented on recent changes within the Court and introduced Judge Pat Reis of Yorkton as the new Provincial Court representative to CBA Saskatchewan. He went on to describe the current administrative structure of the Court, advising that he is no longer the resident Provincial Court judge in Wynyard and that he maintains his office in Saskatoon. In the result, he divides his time between Saskatoon and the Chief Judge’s Office in Regina. He also presides in various other court points around the province. He announced that Judge Murray Hinds of Regina is the new Associate Chief Judge and that there are five administrative judges located in Regina, Saskatoon, Prince Albert and North Battleford. The administrative judge in North Battleford also has administrative duties for Northwest Saskatchewan including Lloydminster and Meadow Lake, and all of their circuit points, in addition to North Battleford and its circuits. The Associate Chief Judge and Administrative Judges are also full time sitting judges. At full complement the Provincial Court has 49 judges. The judges sit in thirteen permanent locations and 67 additional circuit points. The judges and the court party either drive or fly to these points, sometimes as seldom as once every two months, and to other communities as often as several times a week. The Court also has seventeen temporary judges. These judges have retired but have elected to become appointed under The Provincial Court Act to sit when full time judges are unavailable or where additional judges are urgently required to meet the business of the Court. Chief Judge Plemel invited those in attendance to visit the Provincial Court’s website and in particular to look at former Chief Judge Snell’s Biennial Report to learn more about the Court and its activities. He spoke briefly about the Court’s work in 36 BarNotes | Summer/Fall 2015
the area of criminal and civil law including its submission to the Ministry of Justice in response to the Ministry’s recently circulated Small Claims Consultation Paper. He also mentioned the Court’s role as the Youth Criminal Justice Court for Saskatchewan and its concurrent jurisdiction with the Court of Queen’s Bench under The Child and Family Services Act. He described the Court as innovative, pointing out that it has Cree and Aboriginal Courts in Northern Saskatchewan and therapeutic courts in other communities designed specifically to deal with issues of domestic violence, drug treatment and mental health. More communities are expressing an interest in therapeutic courts. The Chief Judge went on to talk about the Commission Hearings which took place in 2014, as well as the Commission Report and the government’s response to it. Due to constitutional requirements, the Commission is established every three years under The Provincial Court Act, 1998. Its purpose is to conduct an independent, objective review of the salaries, benefits and pensions for judges of the Court. The Commission was chaired by Doug Hodson, QC of Saskatoon. Other members were Michelle Ouellette, QC and Doug Frondall, both of Saskatoon. Hearings were held in Saskatoon and Regina in November, 2014. They presented their recommendations to the Minister of Justice and Attorney General and to the Saskatchewan Provincial Court Judges Association before the end of December as required. Besides hearing from the Government of Saskatchewan and the Provincial Court Judges’ Association, the Commission heard from the Saskatchewan Branch of the CBA and the Saskatoon Criminal Defence Lawyers Association as well as from former Chief Judge Snell. The Report refers to the respectful position taken by the government and the association and the helpful submissions of those who participated. The Report’s recommendations were not contested by government and came into effect on April 1, 2015. Chief Judge Plemel thanked the Canadian Bar Association and the Saskatoon Criminal Defence Lawyers Association for their support of this and past Commission Hearings which are very significant in assuring judicial independence of judges of the Court. He also thanked the Provincial Government for respecting the commission process. Chief Judge Plemel stated that there were five appointments to the Provincial Court in 2014, all high quality. They came
from the Bench from a variety of backgrounds including private practice, public prosecutions, and the College of Law. Thankfully, the Government of Saskatchewan continues to respond to the Court’s needs by appointing top notch judges to the Court in a timely manner. The Court could not operate as efficiently as it does if vacancies were left unfilled for very long. Due in large part to timely appointments, the Court recently reported the shortest delay time to trial since 2007 when it first began analyzing this data. The Chief Judge said that he was not surprised, given the high quality of Provincial Court Judges, that the Court of Queen’s Bench has continued to recruit from its ranks. In fact, Justice Labach, formerly of the Provincial Court, was appointed on June 18, the day of this meeting, and Justice Kalmakoff was sworn-in June 19. Chief Judge Plemel stated that he expects very capable and respected lawyers, including those with many years of exceptional legal service, to continue applying for judicial appointment to the Provincial Court.
The Chief Judge stated that the Court’s website contains a great deal of useful information for the legal profession. He pointed out that lawyers will find Practice Directives and Notices to the Legal Profession on a variety of issues including appearances by phone, application for court-appointed counsel and Charter applications. The Court has posted standardized conditions which it uses in probation orders, conditional sentence orders, release documents and the like. It has recently also drafted standardized wording which is helpful in issuing similar orders in Youth Court. The Court has attempted to incorporate plain language while at the same time meeting legal requirements set out in legislation or binding precedent. In closing, Chief Judge Plemel again thanked the Saskatchewan Branch of the Canadian Bar Association for giving Saskatchewan Courts the opportunity to meet with lawyers. He also stated that he is interested in maintaining a dialogue with the provincial bar and is happy to accept further invitations to attend local bar association functions when possible.
Update from the Court of Queen’s Bench for Saskatchewan Chief Justice Popescul | court of queen’s bench for Saskatchewan The following are remarks made by Chief Justice Popescul at the CBA Saskatchewan Annual Meeting on June 18, 2015. Chief Justice M.D. Popescul addressed members at the annual meeting of the Canadian Bar Association, Saskatchewan Branch, on June 18, 2015. He thanked the organizers of the CBA for inviting him to speak at the annual meeting. The Chief Justice reported that the Court of Queen’s Bench, as a Court, is in tremendous shape. The newest judge of the Court, the Honourable Mr. Justice Jeffrey Kalmakoff, will be sworn in at the court house in Regina on June 19, 2015. Today, I was notified that there will be two other appointments made to our Court. I am not able to say anything further at this time. The Chief Justice provided an update with respect to the Saskatoon court house. The addition has now been occupied by the judges. The third floor has opened up with new and refurbished courtrooms. Also, he reported that the Family Law Division, which had been situated on the 9th Floor of the
First Nations building, has moved over to the Spadina Crescent location effective June 15, 2015. Renovations continue with the three courtrooms in the old First Nations building being used only on an as-needed basis. As reported last year, the size of the existing court house facility has almost doubled. There will be eight courtrooms, five pre-trial rooms, and a chambers room. All judges will be under one roof, and there will be three courtrooms capable of handling juries. Further, the Family Law Division and the General Division local registrars have merged. The Chief Justice once again cautioned the members present that there was an administrative notice made effective January 1, 2014 that reminded counsel that pre-trial briefs were to be filed 10 days prior to the pre-trial conference. The administrative notice warns counsel that should there be late filing, they could end up with their matter being adjourned or costs assessed against their clients or themselves personally. After the administrative notice was initially posted, there was a Continued on Page 38...
Summer/Fall 2015 | BarNotes 37
from the bench Continued from Page 37...
noticeable improvement with respect to the filing of pre-trial briefs. Unfortunately, the bad habits are returning. On the one hand, judges are very reluctant to start a pre-trial conference, which is essentially a mediation session, admonishing one of the parties for filing a brief late and awarding costs. On the other hand, in order to encourage compliance with the rule, that is what might need to happen. Also, while the judges are very reluctant to simply adjourn a matter where both counsel have filed the briefs late, that might be something that will have to be entertained in order to enforce compliance. The Chief Justice pointed out that the reason for the rule is not simply to develop a rule for the sake of the rule. In order to ensure that the judge and both parties have a reasonable opportunity to review the material and come to common understandings, it is necessary for the material to be exchanged well in advance of the pretrial conference to ensure the best chances of success. Once again, the Chief Justice also reminded the members present that practice directives and administrative notices can be found on-line at the Court’s website, which is www.sasklawcourts.ca. The Chief Justice then discussed the new Rules that came into force on July 1, 2013. By in large, the new Rules have been working very well. A number of relatively minor changes will be made to the Rules. Most of the changes are by way of clarification ensuring consistency and fixing forms. The Chief Justice invited anyone who has a problem with the Rules to notify the Registrar, Jennifer Fabian, who will then pass on the information to the Chief Justice. The Chief Justice commented that he was surprised that the Rules have not been used by the lawyers to their fullest potential to alleviate, to some extent, the access to justice issues. The Rules were intended to simplify procedures and make them more proportionate. For instance, one recent government publication respecting Small Claims Court, indicated that, anecdotally, one could not litigate any claim less than $100,000. The Chief Justice questioned whether or not such an observation is, for the most part, accurate. Perhaps lawyers need to be innovative and come up with ways to use the Rules so that access to justice issues can be alleviated. The Chief Justice noted that the Court has attempted to amend its Rules so that the procedures are more efficient and proportionality is key. The Chief Justice challenged the lawyers to find ways to use the Rules to advance the objectives of access to justice. The Chief Justice also notified those in attendance that there were amendments to the Summary Conviction Rules that were gazetted in the Canada Gazette on June 17, 2015. These Rules came about as a result of suggestions forwarded by criminal law lawyers who pointed out that the previous amendments were 38 BarNotes | Summer/Fall 2015
not very user-friendly. The Chief Justice noted that the Court listened to the concerns and acted upon them. The Chief Justice reminded those that if anyone had any further changes to the Rules they should notify Jennifer Fabian, the Court Registrar, and she would ensure that the comments are passed on. The Chief Justice spoke about the Queen’s Bench Tariff of Costs. As a result of a discussion at the Queen’s Bench Bar Judicial Council, the point was made that the Queen’s Bench Tariff of Costs had not been amended in many years. A committee was struck by the Chief Justice, that included Mr. Justice Gabrielson, the chair, Justice Pritchard, Justice Danyliuk, Bob Kennedy, QC, Greg Walen, QC, Michelle Ouellette, QC, KaraDawn Jordan, Jennifer Pereira, Naheed Bardai, and Registrar, Jennifer Fabian. This committee worked extremely hard to ensure that the Rules were brought up to date. The Chief Justice noted that he, and the Court, are very grateful to the work of the committee for what they have done. Recently, the Chief Justice indicated that the Tariff of Costs were passed by the Judges of the Court of Queen’s Bench at their en banc meeting in June of 2015. Upon translation, the Tariff of Costs will come into effect. It is anticipated that the Rules will come into effect on or around July 1, 2015. The Chief Justice noted that the Tariff is a wonderful piece of work that strikes a balance between compensating the successful party while not unnecessarily penalizing unsuccessful parties for legitimate actions. He noted that the readers will note that there are two significant stylistic changes shown by the new Tariff. Firstly, the Tariff of Costs follows the Rules of Court. For example, the first item would be the statement of claim which is Rule 3-9. The next item would be statement of defence, Rule 3-15, and so on and so forth. The second significant change is that there are only three columns: Column 1, 2 and 3. Column 1 is to apply in every case unless the Court directs otherwise. The appropriate column is based upon the complexity of the matter. Column 1 represents the least complex matter and Column 3 represents the most complex matter. The parties may agree upon the column to be applied failing which this must be decided by the Court. An example of where things sit are that for a statement of claim Column 1 is $750, Column 2 is $1,500, and Column 3 is $3,000. Finally, the Chief Justice thanked the Canadian Bar Association for speaking for judges when they cannot speak for themselves. He indicated their efforts have not gone unnoticed by the judiciary. He stated that many of the public statements made by the Canadian Bar Association, both locally and nationally, in support of the judiciary have been noticed and appreciated.
POSTCARD FROM A LAWYER Ethiopia & Tanzania BRyan Salte, QC | college of physicians and surgeons of saskatchewan One of the best ways to challenge your beliefs and world view is to travel to a country where the culture, values and beliefs are different than your own. My trip to Ethiopia and Tanzania certainly did that. I had three distinctly different experiences on the trip. I experienced the religious festival of Timkat in Gondar; I spent time in the Omo Valley experiencing the culture of the people who live there and I spent time with local people in Tanzania, particularly the Hadzabe, one of the few remaining groups of hunter-gatherers in the world.
Timkat Flights into Ethiopia arrive in Addis Ababa, a sprawling metropolis of over 3 million people. Modern in some ways, it is distinctly third world in others. The car which took me to the airport to catch my internal flight to Gondor, and the car which brought me back after my trip to Gondar were both very similar – Ladas with no seatbelt on the passenger side, the speedometer did not work, the car rattled and struggled up minor hills and the passenger door seemed poised to open unexpectedly at any moment. I had to sit in a crouched position as there wasn’t sufficient headroom to allow me to sit in an upright position. Walking around Gondar largely reinforced what I had expected - a mixture of pedestrians, donkeys, donkey carts, tuk-tuks and modern vehicles. The women dress in a mixture of headscarves and ankle length dresses and Western dress. Modern technology is largely non-existent. I watched a construction project to build a rock wall. Some of the stones were brought to the worksite by two women who carried the stones on a wooden platform; the remaining stones were brought by an elderly man using an ancient wheelbarrow with an off center steel wheel at the front that creaked badly. The stonemasons shaped the stones by hand with hammers. The people of Gondar provided a warm welcome, which contrasted with the feeling which I have had in some other parts of Africa. When I smiled at people on the street, they almost always smiled back. The children were like many children elsewhere. Some wanted their photographs taken so they could look at the photograph. Some asked for money then, when I don’t give them money, pens. By the end of the first day in Gondar, preparations for Timkat were well underway. I was warned to keep my money safe as it is prime time for pickpockets. One girl who I thought was about
8 years old tried to pick my pocket but was very clumsy trying to do it. A local person, observing this, scolded her loudly. On my second day in Gondar, Timkat began in earnest. Timkat is a spectacular experience for a photographer. The local people save their money for the year so that they can have new clothes and participate in the celebration. People are singing and chanting everywhere. Each church in Gondar, and there are many, has its own procession. The priests from each church lead a procession through the streets of Gondar with a replica of the Arc of the Covenant. The local people believe that the original Arc of the Covenant from Jerusalem was brought to Axum in Ethiopia, where it remains in a monastery. It is interesting to observe a culture in which religion so consumes the thoughts and celebrations of the people. A young priest in training introduced himself and offered his services as a guide. Not only did he explain the rituals associated with Timkat, he was also able to lead me to places which I would not have found on my own. I also accepted his offer to go to his home for a meal at the end of the day. His home was very basic, with an uneven dirt floor and a small amount of old furniture. Other than a moment of awkwardness when I forgot my manners and began using my left hand to eat, it was a most enjoyable evening, complete with a traditional coffee ceremony. It was not a surprise at the end of the evening when my guide began talking about how difficult it was to pay for school fees, and expressed an expectation that I would pay the family. It was a small amount of money by North American standards, but caused me to wonder how many people had had a similar experience in the past.
The Omo Valley The description of the Omo Valley from UNESCO is certainly accurate: The Lower Valley of the Omo is unlike any other place on Earth in that so many different types of people have inhabited such a small area of land over many millennia. It is believed that it was the crossroads of a wide assortment of cultures where early humans of many different ethnicities passes as they migrated to and from lands in every direction. As a result the Lower Valley of the Omo, which is a prehistoric site near Lake Turkana, is renowned the world over. Continued on Page 40...
Summer/Fall 2015 | BarNotes 39
postcard from a lawyer Continued from Page 39...
Sleeping accommodation is basic, with a mixture of campgrounds and very basic concrete tourist accommodation. The Omo Valley is not a place to visit if you value comfort. Much of the Omo Valley is hot and dusty. There is some agriculture, but raising cattle is the major activity. Most of the people of the Omo Valley expect tourists to pay for photographs which they take. As a result, negotiating a price for photographs is one of the major activities when visiting villages. That is one of the few sources of money for the local people. Visiting the open markets is always a highlight. Most of the markets operate once per week. There is a large variety of items for sale, most of it food and household items, but most markets also have carvings and other items for the few tourists who visit. The South Omo Research Centre Museum in Jinka provides another challenge to one’s North American perspective. The museum included a display of statements made by tribal women who had been brought together to discuss topics such as female circumcision, marriage, the duties of the good wife, scarification etc. From the display, it appears that it is a common belief among the women who participated in the discussion that female circumcision is important as it makes a woman more of the female. It removes the “little penis” that a woman otherwise has. Also interesting was the view of violence towards wives. Some of the women interviewed expressed the opinion that it was acceptable for a husband to beat his second wife, provided he beat his first wife equally. While in the Omo Valley we visited villages of the Mursi, Hamer, Dasenich, Karo, Borena and Kanso people.
The Mursi women still use lip plates. At an early age their lower lip is slit and gradually stretched until many of them wear lip plates that are 5 or 6 inches in diameter. The explanation for the lip plates varies – one explanation is that they are a fashion statement. The second explanation is that until recently their villages were frequently raided by slave traders who would not take them as slaves if they had lip plates. The Hamer are the largest tribe of the Omo Valley. We were able to attend a bull jumping ceremony - a coming of age ceremony for young men. It was another challenge to our Western views. One aspect of the ceremony that was difficult to watch was seeing the female relatives of the young man being whipped. The women would cut the whips and demand to be whipped. They clearly demonstrated pride in their ability to withstand pain. There were two older men who watched and intervened when they felt that the whipping should not continue. Several of the women expressed disappointment when the whipping was stopped. Our group had a lively discussion after the end of the ceremony. What ethical examples apply? What right did we as Westerners, without an understanding of the culture, have to judge something which has been part of their culture for thousands of years? Our guide assured us that the event was not affected by our presence. A young woman from the group was the person most comfortable with the ceremony. She asked whether it is really that different than tattooing and piercing, both of which are acceptable in the West. She also emphasized the pride and courage exhibited by the young women and how they would show their bare backs in the markets to display the scars produced by the whips. One more challenge to our Western thought processes. Throughout the Omo Valley we saw a civilization in a state of transition. A road was being built through the valley, linking Ethiopia to Kenya and the ocean. Soon large trucks will be travelling through the area which has been, until now, difficult to access. Some local people were trying to make the transition from pastoralists to agriculturalists to support their growing populations, but drought and famine are a reality for many. I expect that the valley may change rapidly. Anyone who wants to see a lifestyle that has remained relatively unchanged for thousands of years should do so soon.
Tanzania Timkat Celebration
40 BarNotes | Summer/Fall 2015
The highlight of the trip was my visit to the Hadzabe people – one of the few hunter-gatherer groups left in the world. I was also able to spend
postcard from a lawyer some time with Masai, Iraqw and Toga people. After a day’s travel north of Arusha in a four wheel drive we picked up a local guide who could speak both English and Hadzabe. After some time we found the camp where they were staying. A short while after we arrived the men returned from the hunt with a baboon. Baboon meat cooked over an open fire is not much different than a beef barbeque. I spent four days with the Hadzabe. Life for them has remained essentially unchanged for centuries. The men’s only possessions are a pair of sandals, a knife, cutoffs and their bow and arrows. The bows and arrows they make themselves. They barter with other groups for the steel arrowheads, knives and clothing. They sleep in the open, under a rock outcropping. I was invited to join them in the hunt. Their marksmanship was amazing, regularly killing small birds and small animals from a considerable distance. Lunch consisted of small birds, a squirrel and dik-dik cooked over an open fire. I had brought a tin of corned beef to share with them. After tasting it, they concluded “it is not meat”. They were probably right – the fresh meat was much better. Trying to keep up with the hunters gave me new respect for their stamina. Chasing animals under an equatorial sun is definitely a young man’s game. There were two “older” men in the group, one in his 40s and the other in his 50s. They do not participate in the hunt, remaining in the camp to make arrows tend to the children when the women are gone to work, etc. I was there during the dry season. When I arrived the Hadzabe’s source of drinking water was a hollow baobab tree which accumulated water during the wet season. When that water supply was exhausted, they dug a hole in the dry river bed so water could seep into the bottom of the hole. I was glad that I had brought my own water supply. There was no water for washing so after four days in 40 degree heat, both my clothes and my body were fragrant. My local guide translated for me and also gave me information about the Hadzabe. They are nomadic, following the available game. The Tanzanian government has repeatedly offered land for farming but they do not want to leave their nomadic lifestyle. The Tanzanian government has attempted to persuade the Hadzabe to put their children in school, but after one or two years the children would leave the boarding schools and return to their parents. They have their own medical treatments, obtained from the forest. They are reluctant to accept Western medicine, even when it is available. They prefer eating meat, but when the hunt has been unsuccessful, eat roots which the women extract with their digging sticks. There are a number of challenges which they face. The land that they inhabit is scrub brush and not suitable for agriculture. The number and variety of animals
Hadzabe Hunters
is decreasing steadily. Large animals such as kudu and giraffes, which were once a major source of meat, are now almost nonexistent in their area. There are diseases which are very prevalent in the Hadzabe population, including a sexually-transmitted disease which causes miscarriages and sterility. Infant mortality is high. Many of them have worms or other diseases caused by eating raw meat and drinking untreated water. My four days with the Hadzabe gave me experiences which I could not have had elsewhere. Very few people are able to spend time with them – my guide told me that I was one of only 12 tourists who had spent more than a few hours with the Hadzabe during that year. Watching a baboon being skinned and eating baboon and monkey cooked over an open fire is an experience few people can have. They have a zest for life that is hard to match in Western society, with quick smiles and frequent laughter. Hunting and gathering roots occupies only a few hours each day, leaving a lot of time for them to sit around and tell stories. The men and the women spend almost all of their time apart. The men remain on one side of the rock outcrop that is their temporary home and the women on the other side of the outcrop. Several of the people have slight facial scarification performed with a knife. The group consisted of four adult hunters, two youth hunters, the two “old men”, three adult women, two adolescent women and two small children. I hope that they will remember me with the same fondness with which I remember them. One thing which helped us to communicate was the photographs I brought with me. They were particularly interested in photographs of bowmen of Papua New Guinea, the Huarani of the Amazon jungle and animals of Saskatchewan. They spent some time discussing Continued on Page 42...
Summer/Fall 2015 | BarNotes 41
postcard from a lawyer sorry to leave the heat and the flies behind, to experience a shower and wash my clothes.
Continued from Page 41...
where they would try to shoot a bison with an arrow to kill it. There was only one moment of some discomfort. The Hadzabe regard brains as a delicacy and will eat them raw. The hunters split the skull of a baboon and offered the brains to me – which I interpreted as a gesture of friendship. There was some challenge in trying to convey through my interpreter that I was touched by their gesture but that with Prion disease being carried by brain tissue I did not want to eat brains. The hunters
My trip ended with time spent with the Iraqw, Togo and Masai people – almost as fascinating as the Hadzabe, but somewhat less exotic. Most of Africa can be fascinating to visit, but my memories of the time spent in the Omo Valley and with the Hadzabe will always remain a highlight for me.
appeared to accept that and then shared the brains with obvious enthusiasm. Despite the wonderful experience with the Hadzabe, I was not
APPOINTMENTS Judicial Appointments Announced The Honourable Jeffery D. Kalmakoff, a judge with the Provincial Court of Saskatchewan in Regina, was appointed a judge of the Court of Queen’s Bench of Saskatchewan on May 29, 2015. Mr. Justice Kalmakoff replaced Justice D.P. Ball (Regina), who elected supernumerary status on May 9, 2014. Justice Kalmakoff was appointed to the Saskatchewan Court of Justice in 2009. He was previously a Crown prosecutor with the Public Prosecutions Division of the Saskatchewan Ministry of Justice and Attorney General in Regina from 1995 until 2009. Justice Kalmakoff received a Bachelor of Laws from the University of Saskatchewan in 1993. He was admitted to the Bar of Saskatchewan in 1994 and joined Hnatyshyn Singer in Saskatoon. He is a past member of the Saskatchewan Crown Attorneys’ Association and of the Canadian Association of Crown Counsel. The Honourable Daryl E. Labach, a judge of the Provincial Court of Saskatchewan, Saskatoon, is appointed a judge of the Saskatchewan Court of Queen’s Bench. He replaces Madam Justice Y.G. Wilkinson (Saskatoon), who elected to become a supernumerary judge as of May 16, 2015. 42 BarNotes | Summer/Fall 2015
Mr. Justice Labach, from Regina, Saskatchewan, was appointed to the Provincial Court of Saskatchewan on March 17, 2009. Previously, he was an associate and partner with McDougall Gauley from 2001 to 2009, an associate with McDougall Ready from 1998 to 2000, and an associate with Harradence, Longworth, Logue and Harradence from 1996 to 1998. He began his legal career with the firm Allbright & Company in 1989 where he practised primarily in the area of criminal law. Justice Labach received a Bachelor of Arts in 1984 and Bachelor of Laws in 1988, both from the University of Saskatchewan. He was admitted to the Bar of Saskatchewan in 1989. The Honourable Gary Meschishnick, a lawyer with Wallace Meschishnick Clackson Zawada LPC in Saskatoon, is appointed a jugde of the Saskatchewan Court of Queen’s Bench, to replace Justice F.J. Kovach (Regina), who elected to become a supernumerary judge as of November 12, 2014. Justice Meschishnick, from Humboldt, Saskatchewan, was a partner with Wallace Meschishnick Clackson Zawada LPC since 1996. Previously, he was a lawyer
with Macdermid Lamarsh, Barristers and Solicitors, from 1991 to 1996. He practised primarily in the areas of corporate commercial litigation, debtor-creditor law, and insolvency and restructuring law, as well as mediation and arbitration. Justice Meschishnick received a Bachelor of Laws in 1983 from the University of Saskatchewan, and he was admitted to the Bar of Saskatchewan in 1984. The Honourable Vanessa Monar Enweani, a lawyer with MacPherson Leslie & Tyerman LLP, was appointed as a judge to the Provincial Court in Saskatoon on July 24, 2015. Judge Enweani graduated with a law degree from the University of Saskatchewan in 1993. She started her career with MacPherson Leslie and Tyerman law firm in Saskatoon, where she became partner in 2009. Throughout her career, she focused on civil litigation. Judge Enweani replaces Justice Daryl Labach, who was recently appointed to the Court of Queen’s Bench in Saskatoon.
Calendar of Events September 15, 2015 NOMINATION DEADLINE: QUEEN’S COUNSEL September 24, 2015
Executive Committee Meeting
Saskatoon
September 24, 2015
Wine & Cheese Welcome Reception, College of Law
Saskatoon
October 14, 2015
CBA Saskatchewan President’s Dinner
Saskatoon
October 15, 2015
Executive Committee Meeting
Saskatoon
October 15, 2015
Council
October 21-22, 2015
CBA Board of Directors
October 29, 2015
Mentorship “Meet Your Match” Reception
Saskatoon
Toronto Saskatoon
November 16, 2015 NOMINATION DEADLINE: DISTINGUISHED SERVICE AWARD November 18, 2015
CBA Saskatchewan Law Firm Showcase
November 12, 2015
Executive Committee Meeting
Conference Call
November 26, 2015
CBA Board of Directors
Conference Call
December 10, 2015
Executive Committee Meeting
Saskatoon
Conference Call
December 15, 2015 NOMINATION DEADLINE: TREASURER & MEMBERS OF COUNCIL
Moved Offices or Changed jobs? Let us know! We do our best to keep our database up to date throughout the year. If you’ve moved offices or changed jobs, drop us a line to let us know! All changes can be sent to: info@cbasask.org. Written changes can be sent to: CBA Saskatchewan, 306, 105-21st Street East, Saskatoon, SK, S7K 0B3.
217 Jessop Avenue • Saskatoon SK S7N 1Y3 p: 306.955.3373 • f: 306.955.3064 www.globeprinters.com CBA Financial ...................................................................... 15
ADvertisers
Canadian Bar Insurance Association ..................... Insert
Tom Jeffries
c: 306.717.4006 e: tom@globesask.com
CBIA Home Insurance ...................................................... 21 ChildView ............................................................................... 6 Globe Printers .....................................................................43 Information Services Corporation ................................... 8 Mercedes-Benz ................................................. Back Cover Lawyers Concerned for Lawyers ................................... 39 Sexual Assault & Information Centre ........................... 11
Summer/Fall 2015 | BarNotes 43
Special Offer Exclusively for CBA Members. This program rewards Canadian Bar Association members with extra discounts of up to $1500 on select models. These partner discounts are applied in addition to existing special offers, making them truly exceptional savings to your association members. CBA members also receive 20% off MSRP on Mercedes-Benz Genuine Accessories & Collection items. See your delivering dealership for full offer details.
Š 2015 Mercedes-Benz Canada Inc. 1 Figures based on the 2014 SL 550 roadster.
Mercedes-Benz Saskatoon, 715 Melville Street, Saskatoon, SK, 306.242.6024, saskatoon.mercedes-benz.ca.