THE CANADIAN BAR ASSOCIATION â€¢ SASKATCHEWAN BRANCH
CREATE Justice Officially Launched at the College of Law, University of Saskatchewan | 14
The Canadian Bar Association Saskatchewan Branch
IN THIS ISSUE FEATURE COMMENTARY
FROM THE BENCH 29
The Regina Drug Treatment Court
Saskatchewan Provincial Court Association Essay Winner
Update from the Courts
NATIONAL NEWS CREATE Justice officially Launched at College of Law, University of Saskatchewan
BRANCH NEWS 5
Celebrating our very best: Community Service Award
Law Day 2017: In Review
Time Worth Spending
Encouraging Trust in the Canadian Legal System:
A Fireside Chat with Andrew Arruda: Legal A.I. Innovator
Saskatchewan Law Review: Focusing on our Readership
Cyber Attacks Hit Close to Home Life Insurance or Mortgage Insurance
PRO BONO SPOTLIGHT 27
Sticks and Stones: 2 BARNOTES
SCOTT BELL MLT Aikins LLP KATE CRISP Scharfstein Gibbings Walen & Fisher LLP TRISTAN CULHAM MLT Aikins LLP JARED EPP Robertson Stromberg LLP
LINDSAY HJORTH University of Saskatchewan
AMJAD MURABIT WMCZ Lawyers MICHAEL SCHERMAN Blake, Cassels & Graydon LLP ALIXANDRA STOICHEFF MLT Aikins LLP
The Willms & Shier Environmental Moot
POSTCARD FROM A LAWYER 44
HANNAH ZIP Editor Knott den Hollander
LEAH HOWIE Law Reform Commission of Saskatchewan
Board of Directors
BARNOTES Editorial Board
JACKIE FRANCIS Francis & Company
Introducing Lawyers Financial
41 Meet the new CBA
Meet the New Board
305, 135-21st Street East Saskatoon SK S7K 0B4 www.cbasask.org
JAMES STREETON Wardell Gillis BRENDA HESJE Executive Director CBA Saskatchewan
Peaking Early LAYOUT & DESIGN Katrina Forgrave Graphic Designer
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.
ITEMS OF INTEREST Call for Nominations CBA Annual Meeting Save the Date: 2018 Mid-Winter Meeting Legal Directory Calendar of Events Advertiser Index
28 33 43 45 47 47
CBA Saskatchewan represents more than 1,200 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 1,200 legal professionals. If you are interested in advertising, please contact Brenda Hesje, Executive Director, firstname.lastname@example.org. © CBA Saskatchewan 305,135 - 21st Street East Saskatoon, SK S7K 0B4 www.cbasask.org
LOOKING FORWARD HANNAH ZIP || KNOTT DEN HOLLANDER
s I write these Notes from the Editor for this summer issue of BarNotes, I can’t help but think about the upcoming Canada Day long weekend. It is Canada’s 150th birthday and I cannot wait for the fireworks and celebrations that will mark this historic occasion! It brings to mind how lucky we all are to live in this country, especially given the recent events occurring south of the border.
SECTION REGISTRATION OPENS AUGUST 3 WE’VE CHANGED THINGS FOR 2017-18 CHECK US OUT!
A common theme LETTERS TO THE EDITOR in this issue is the email@example.com important role that the legal profession plays in shaping our country, from the creation of an innovative access to justice Centre (CREATE Justice) at the University of Saskatchewan to the winning essay for the Saskatchewan Provincial Court Association Essay Contest which details the importance of kindness and respect between all members of society. We are reminded of the importance in looking below the surface of what our client’s legal positions are to the interests and goals beneath, whether it is through the rehabilitation into society of addicts through their involvement in the Regina Drug Treatment Court or by advising clients in our own offices. There are many interesting articles in this issue, including the fascinating developments in Artificial Intelligence, gender inequality and criticism within the profession, and some lawyers’ experiences in Ottawa appearing in front of the Supreme Court of Canada. We have much to be thankful for as Canadians and all of the progress that has been made, but we also have a lot of work to do to address the inequalities that continue to exist in our society. Complacency is not an option. Let us all keep in mind how we can impact those around us in both our professional and personal lives to make this country an even better one in the next 150 years. Enjoy your summer and this issue of BarNotes. It’s a good one!
SUMMER 2017 3
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Remember the Sandra Schmirler Foundation in your will and help save the lives of newborn babies and create a legacy of hope and health for the future.
Our funding ensures NICUs are equipped with more of the latest technology. This allows Moms and Dads to stay close to home where family and friends can provide much needed support at this very emotional time.
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Robin Wilson, Leadership Director Sandra Schmirler Foundation 604.230.5871 (cell) firstname.lastname@example.org
PRESIDENT’S MESSAGE NEIL ROBERTSON, QC
he Canadian Bar Association seeks to serve its members and the public interest by promoting the rule of law and defending the independence of the Bar and the Bench. The CBA provides services to members, including education, and provides a representative voice for the profession. This advocacy role is important, but can be challenging. With such a diverse membership, there is always a danger that advocacy may draw both support and opposition from CBA members. Advocacy is also inherently political, but should not be partisan. While some critique of government decisions is inevitable, the CBA should also try to be cordial and constructive in its approach. The CBA supports positions, not political parties. Those positions should be founded upon accepted principles and values, in particular that of justice.
officials. Weyburn lawyers Bill Holliday, Scott Moffat CONTACT THE PRESIDENT and Michael Weger also email@example.com attended the meeting along with other community representatives and Judge Wiegers of Estevan.
Two recent examples of CBA advocacy in response to government decisions resulted from announcements of the federal and provincial governments.
The Weyburn Courthouse, built in the colonial revival style, was completed in 1928 and is a heritage property. Renovations to the Courthouse were completed in 2013 at a cost of 8.4 million dollars. The Government’s estimate of the annual saving from the closure and layoffs is $108,000.
The 2017 federal budget proposed eliminating “billed-basis accounting” for professionals, including lawyers. This change would require payment of income taxes on work in progress, although there had been no billing or payment for those services. This could have serious implications for some lawyers, especially those involved in contingency fee arrangements or class actions where the amount of compensation is uncertain and payment for services is deferred. Changes in tax treatment of these fee arrangements could deter lawyers from taking on such cases which could, in turn, reduce access to justice for persons seeking compensation for harm they have suffered. While the CBA was not alone in raising concerns with the proposed changes, its prompt and reasoned lobbying likely contributed to the decision of the Canada Revenue Agency to issue a revised bulletin on 28 April 2017 clarifying that contingency fee arrangements would not be affected. The CBA will continue its efforts on this file. The Government of Saskatchewan announced in November of 2016 that the Queen’s Bench Registry Office and Sheriffs̕ Office in Weyburn would be closed and relocated to Estevan effective January 1, 2017. I wrote the Minister of Justice on November 15, 2016 stating the CBA’s concern with the announced reduction in services. On December 21, 2016, Kathryn Gilliss and I represented CBA Saskatchewan at a meeting in Weyburn with the Minister of Justice, Hon. Gordon Wyant, QC, and his
The CBA expressed concern with the manner in which this decision was made, since the consultations followed the announced decision. The CBA, at its 2016 Mid-Winter Meeting in Ottawa, adopted a resolution to “encourage the federal, provincial and territorial governments to consult with the CBA, its branches, and the law societies prior to considering whether to close any court”.
While one can sympathize with the Government in dealing with its current budget shortfall, it is difficult to reconcile this closing with the Ministry’s Mission Statement that “All Saskatchewan citizens will benefit from accessible and timely resolution of civil, family, criminal and administrative matters.” The closing of this courthouse significantly reduces public services to and removes a vital institution from the community. As one of the local business people said during the meeting in Weyburn, “courthouses are sacred places”. It is difficult to believe that Saskatchewan’s tenth largest city, which has experienced steady population growth over the past decade, does not merit a staffed courthouse. Weyburn is 86 kilometres from Estevan and 116 kilometres from Regina. While some of us have means to travel, many citizens do not. And given our climate and weather, travel is not always possible. Indeed, the originally scheduled consultation meeting with the Minister in Weyburn had to be cancelled due to dangerous winter road conditions that day. While the Weyburn Courthouse remains in use as a circuit point for Provincial Court, it has no staff and is effectively closed, except when the circuit party attends. As a result, the Court of Queen’s Bench no longer sits in Weyburn. The CBA will continue to monitor the effects of this closing.
SUMMER 2017 5
CELEBRATING OUR VERY BEST 2017 COMMUNITY SERVICE AWARD TIM HAWRYLUK || ROBERTSON STROMBERG LLP
t is with great honour that I have been asked to introduce tonight, Leslie Prosser, QC, the 2017 recipient of the CBA Saskatchewan Community Service Award. Such award recognizes the valuable contributions made by a CBA member who served their community and Province, and who has demonstrated outstanding dedication, service and commitment to their respective communities. PROFESSIONAL BACKGROUND Les is a graduate of Queen’s University, having graduated with a Bachelor of Commerce in 1970 and a Bachelor of Laws in 1974. He was called to the Saskatchewan Bar in 1975. For the majority of his legal career, Les has practiced with Robertson Stromberg and is a former managing partner of the firm. He is currently a senior member of the firm’s Corporate/ Commercial group. While Les is no longer a Partner with RS, he remains an integral part of the firm and someone who is routinely called upon by all of our firm’s lawyers, including our Partners and members of our management committee for his advice and guidance. From all indications, Les has had a remarkable legal career, and has developed both an impeccable reputation and an enviable client list. Aside from his busy practice, Les has found time to serve his profession, having served in a number of roles including: (a) President of the Saskatoon Bar Association; (b) Vice Chair of the Saskatchewan Legal Aid Commission; (c) Bencher with the Law Society of Saskatchewan from 1998 to 2001; and (d) President of the Law Society of Saskatchewan in 1992.
In addition to his contributions to RS and the legal profession, Les has not hesitated to give back and support his community of Saskatoon through philanthropy, community involvement and volunteerism. Over the years, Les has offered his time and expertise to a number of Boards and non-profits, including: (a) YMCA of Saskatoon; (b) Granite Curling Club; (c) Meewasin United Church; and (d) Saskatoon Girls Group Home.
He has also made valuable contributions to our Saskatchewan Business Community, currently serving: (a) As Secretary to the Board of Directors for the Global Institute for Food Security; and (b) Having recently been appointed to Chair of the Saskatoon Airport Authority Board of Directors. During his time on the Airport Board, Saskatoon’s Airport has been named by Airport Council International as the most improved airport in North America, and the best airport in North America in the under Two Million passenger category in 2016.
In addition to his Board work, Les has also donated time to local charities including the United Way of Saskatoon, the Saskatoon YMCA and the Denny Carr Foundation – where he has been heavily involved with the Foundation’s Secret Santa initiatives. Saskatoon City Hospital Foundation CEO Steven Shannon describes Les with the following: “One of Les’s personal friends was a community leader, the late Denny Carr. Not only did he support Denny with his many community involvements thanks to the Denny Carr radio show, but Les stepped up to
serve after his friend passed away. To ensure that Denny’s good work continued in a lasting legacy, Les served as a member of the Friends of the Denny Carr Committee. That Committee successfully fundraised for a statue that is positioned beside our riverbank pathway where Denny used to jog daily. The plaque reminds us all of what one person can do to impact a community. Les was asked to join the Denny Carr Secret Santa Board of Directors. Denny’s dream was that every child has a toy at Christmas. Not only did Les join the Foundation Board, but also engaged fellow employees to rally around Denny’s mission. As a Board Member Les not only provides much needed advice, but helps out every year with building 800 food hampers, in just over one hour prior to the distribution day. On the day where the recipients receive the toys and boxes of food, Les takes the day off of work to help carry the boxes and toys to the waiting cars of those in need. Making Saskatoon a better place in which to live is what Les Prosser is all about. Serving selflessly to fulfill the dream of a dear friend exemplifies service in my mind.”
Les, on behalf of RS and your family including your wife Bernie, daughter, Tonie, Erin, Bre, Jade and Bronte, I congratulate you on this well-deserved honour and thank you for all the contributions that you have made to our community and the Province of Saskatchewan. Congratulations Les!! Tim Hawryluk is a Partner with Robertson Stromberg LLP in Sasktaoon.
BRANCH ANNUAL MEETING
SUMMER 2017 7
LAW DAY 2017: IN REVIEW CHRISTOPHER WEITZEL || SASKATCHEWAN GOVERNMENT INSURANCE
system to treat all individuals fairly given both the need for neutrality and the need to take into account the diverse identities in Canada.
MOCK TRIAL COMPETITION
In partnership with Pro Bono Law Saskatchewan a phone clinic was held on April 25th and 26th, where the public could set up a 30 minute appointment to discuss general legal information with a volunteer lawyer.
aw Day 2017 was held Wednesday, April 19th. Events celebrating the signing of Canada’s Charter of Rights and Freedoms took place across Canada. Here in Saskatchewan we had the opportunity to engage and inform the public about the Charter and various aspects of the justice system with a variety of events throughout the month.
The Mock Trial Competition recreates the dramatic centre of the justice system by allowing high school students to play roles in a trial, including: prosecutor; defence counsel; and witness. This year saw 6 teams compete at the Saskatoon Queen’s Bench Court House on April 8th, with Winston Knoll Collegiate from Regina taking home the McKercher Cup!
MULTIMEDIA CONTESTS This event provides an opportunity for Grade 5 - 8 students to learn and demonstrate an understanding of the rights of Canadians through visual arts and written/verbal works. This year the contest focused on Section15 of the Charter. Submissions were displayed on April 8th at the Court of Queen’s Bench (Saskatoon) during the Mock Trial Competition. Over 30 submissions were received, with 2 student winners.
LAWYERS IN THE CLASSROOM Volunteer lawyers attended high school classrooms around Saskatchewan to talk about the Charter, the justice system and being a lawyer. Thank you to the 2017 Law Day Committee for its hard work and effort in making our events a success, as well as the many volunteers that participated in the various events. Members of the 2017 Law Day Committee were Tom Baldry, Lora Bansley, Andrea Johnson, Megan Lorenz, Joni MacKay, Bonnie Reddekopp and Neil Robertson, QC .
LECTURE The CBA partnered with Johnson Shoyama for a Public Lecture “Law Day for Canada at 150” on March 30th in Regina. This was a panel discussion on how public confidence can be maintained and the ability of Canada’s justice
2017 McKercher Cup Champions from Winston Knoll Collegiate in Regina.
Six teams participated in the 2017 Mock Trial at the Queen's Bench Court House in Saskatoon.
Rylund Hunter presents the Best Overall Performance Award to Allison Leegwater on behalf of McDougall Gauley LLP.
Judge Gerald Morin presents the Best Defence Award to Jayden Bissky.
Megan Lorenz presents the Multimedia Contest Visual Arts category winner Darshana Lanke with her prize on behalf of sponsor The W Law Group.
Justice Ron Mills, Judge Gerald Morin, Justice Daniel Konkin and Chief Judge Jim Plemel preside over the Mock Trials.
Deputy Minister of Justice Glen Gardner, QC presents the Best Prosecutor Award to Jina Bae on behalf of the Saskatchewan Ministry of Justice.
Judge Morin presents the Best Witness Award to Brayden Caron on behalf of sponsor Thomson Jaspar & Associates.
Guest speaker Mr. Justice Richard Danyliuk addresses the crowd at the Law Day Awards Banquet.
SUMMER 2017 9
MEET YOUR NEW DIRECTORS 2017/2018
PRESIDENT EVATT MERCHANT
VICE-PRESIDENT NICHOLAS CANN McKercher LLP 306-565-6526 firstname.lastname@example.org
Ministry of Justice 306-787-8207 email@example.com
PAST PRESIDENT NEIL ROBERTSON, QC
LEGISLATION AND LAW REFORM DIRECTOR KATHRYN GILLISS
EDUCATION DIRECTOR RECHÃ‰ MCKEAGUE
Merchant Law Group LLP 306-227-2222 firstname.lastname@example.org
PUBLIC OUTREACH DIRECTOR CHRISTOPHER WEITZEL Saskatchewan Government Insurance 306-775-6432 email@example.com
Trobert Law 306-634-2616 firstname.lastname@example.org
EXECUTIVE DIRECTOR BRENDA HESJE CBA Saskatchewan 306-244-3781 or 1-800-424-8288
TREASURER LORELEY BERRA
Saskatchewan Real Estate Commission 306-374-5233 email@example.com
The new CBA Saskatchewan Board of Directors begins its work September 1, 2017. You are invited to contact any member of the Board with suggestions, questions or concerns. They are here to serve you.
TIME WORTH SPENDING DR. BETH BILSON, QC || COLLEGE OF LAW, UNIVERSITY OF SASKATCHEWAN
lthough I try not to devote too much attention to Donald Trump, I was struck by one the statements attributed to him recently. Sweeping aside charges that his policies are marked by racism, sexism and religious intolerance in his inimitable way, he said, “Political correctness takes too much time.” The term “political correctness” itself has had a troubled history. It was coined, ironically, by those seeking protection from discrimination, as a humorous description of how these efforts were seen by critics of human rights legislation and equality guarantees. It is now, of course, used in a more serious – and scornful – way in the mouths of those who regard strategies aimed at advancing equality as inconvenient and a waste of their time, or as distracting from more important issues. When I was going to school in Saskatoon, I did not see brown or black faces, although a number of my classmates were first generation immigrants from European countries. Nearly everyone I knew well had English as a first language, attended a mainstream Christian church, ate similar food and wore similar clothes – was, in short, like me. My father worked in government and in universities, and those workplaces were marginally more diverse, but not by much. It was an environment where much common ground could be assumed – and I would include assumptions about the prospects for self-fulfillment of women and persons with disabilities. The Canada – and the Saskatoon – of the 2010s is much different. Canada’s major cities are among the most culturally diverse in the world, and Canada continues to welcome significant numbers of immigrants from non-European countries. Increasing efforts have been made to develop better relationships with Indigenous communities, based on a more respectful understanding of the cultural
identity of Indigenous people. The aspirations of women, persons with disabilities and LGBTQ people have been taken more seriously by courts, governments and public and private institutions. It is possible, I suppose, to think back to the world of my childhood and regard it as some kind of golden age, when life was simpler and communities were closer. On the other hand, by assuming that one dominant perspective was the only one needing to be considered, that world was missing out on the richness of cultural diversity and the rewards that come from the sometimes painful process of trying to make respectful and constructive connections with people whose perspectives and experience are different. It is certainly true that building the kind of society we claim we want to have, a society where everyone has an equal chance to participate and fundamental rights and freedoms are protected, takes work – takes time. And I would argue that it is not work anyone can opt out of. The obligation to treat our fellow citizens with respect, to consider their point of view, to modify our own way of doing things in order to make it possible for others to participate fully, is an obligation called on daily and in every context. The attack on the Quebec City mosque, the hate mail directed at an MP who introduced a motion against Islamophobia, the death threats against Peel Region religious leaders and administrators working to create prayer spaces for Muslim students, and the continuing violence against Indigenous women and girls are all reminders of the perils of failing or refusing to do this work, or of assuming that there is no more work to be done. Do we really think political correctness takes too much time?
SUMMER 2017 11
ENCOURAGING TRUST IN THE CANADIAN LEGAL SYSTEM – R. v. GERALD STANLEY NEIL ROBERTSON, QC
n April 6, 2017, Gerald Stanley was committed to stand trial on a charge of second degree murder of Colton Boushie, relating to an incident at Mr. Stanley’s farm near Biggar on August 9, 2016. The trial is expected to be held in Battleford in the Fall of 2017. We have seen instances in the USA where highprofile trials have exacerbated underlying community tensions. Responsible and informed comment by lawyers can counter uninformed and inflammatory opinion. Chris Murphy, a Toronto-based criminal defence lawyer who is assisting the Boushie family, provided such comment at the preliminary inquiry where he was quoted as saying “obviously myself and the Boushie family, all they want is that there be a fair trial and that includes Mr. Stanley's fair trial rights to be protected.” Referring to the trial, Mr. Murphy added “what the Boushie family wants is for the truth to come out at trial.” While our justice system is not perfect, the public should have a high degree of confidence that this case, like any other, has and will be handled fairly and according to law. In both formal and informal conversations, we in the legal community can help to counter misunderstandings. When speaking with other citizens, the following points may be made about the criminal process: • Any criminal charge of murder is serious and involves tragic circumstances. The trial of the accused seeks to provide both justice and reassurance to the community. Family and friends of both the accused and victim are especially affected and concerned that justice be done. However, all citizens rely upon a justice system that has evolved over centuries to provide a high
degree of fairness, effectiveness and impartiality. This is especially important when public sentiment is aroused. • The principles which apply throughout the Canadian legal system are impartiality, independence and expertise by the police, lawyers and judges involved in the administration of justice. • Our Constitution and its conventions protects against political interference or the influence of populist sentiment. Police officers and judges are both appointed to a public office. They swear an oath to the Queen in which they promise to act impartially. • The police who investigate crimes are sworn to uphold the principles in the Canadian Charter of Rights and Freedoms. Before any charge may be laid, the police must be satisfied they have gathered evidence which provides reasonable and probable grounds that the person charged committed the alleged offence. • In many cases, the police will consult with the Crown Prosecutors before laying serious charges. But even if they do not, once the charge is laid, the Crown will review the police investigation to satisfy their own dual test that: 1. there is a reasonable likelihood of conviction; and 2. it is in the public interest to prosecute the offence. The Crown Prosecutor, as a “minister of justice”, does not seek only to obtain a conviction, but is duty bound to ensure that all relevant evidence is brought forward, including evidence which might assist the accused in his or her defence. • At trial the Crown is obliged to prove, by admissible evidence, that the accused is guilty beyond a
reasonable doubt. If the Crown fails to meet this burden, then the accused must be found not guilty. • Our system of justice does not seek to establish innocence, but the presumption of innocence applies to any person accused of a crime. The accused enjoys a right of silence and is not required or expected to prove their innocence. • The defence lawyer is essential to the protection of individual rights and as a safeguard against arbitrary actions. By challenging and testing the evidence called by the prosecution, they support a fair trial. The defence lawyer works under strict ethical rules which balances their duty to their client with their duty to the court. Their honourable work prevents miscarriages of justice that might otherwise occur. • The judiciary represents one of the three branches of government: legislative; executive; and judicial. Judges are independent of the other branches, thus ensuring impartial and expert application of the law. • In the case of trial by judge and jury, the judge is responsible for ensuring a fair trial, including any rulings on procedure and the law, while the jury
is required to make factual determinations. Those findings of fact are made on the basis of evidence presented at the trial. Only that evidence which satisfies rules designed to ensure its relevance and reliability will be admitted. • But no one is infallible and what if a judge or jury do err? Then we look to our Courts of Appeal to whom the Crown or Defence may appeal. The Courts of Appeal, sitting as panels of experienced justices, are available to review trials and court decisions to determine if any serious error has occurred and, if so, to provide an appropriate remedy, including re-trial. • The final safeguard is the open courts principle. Our courts are open to the public. The press reports on court proceedings. This transparency and public scrutiny should reassure the public that justice is not only done, but seen to be done.
Lawyers may take all of this for granted, but we cannot assume that others do. Each of us can do our part to ensure that all citizens understand both how our system of justice works and its great value to our civil society.
law.usask.ca/createjustice SUMMER 2017 13
CREATE Justice OFFICIALLY
LAUNCHED AT COLLEGE OF LAW, UNIVERSITY OF SASKATCHEWAN
BREA LOWENBERGER || DIRECTOR, CREATE JUSTICE AND ACCESS TO JUSTICE COORDINATOR HEATHER HEAVIN || ASSOCIATE DEAN GRADUATE STUDIES AND RESEARCH, UNIVERSITY OF SASKATCHEWAN INTRODUCTION Low and middle income earning Canadians are often identified as needing better access to legal services to help solve every-day legal problems. It is unclear in some circumstances, however, whether Saskatchewan residents fair better or worse than others in Canada. Saskatchewan is known for adopting innovations in justice service delivery. Mandatory post-pleading mediation for civil matters, therapeutic courts and the numerous expert administrative tribunals are but a few examples of how Saskatchewan has continually searched for and implemented processes to reduce costs and deliver appropriate and effective justice to Saskatchewan residents. Members of the justice system, including the Canadian Bar Association, the Courts of Saskatchewan, the Law Reform Commission of Saskatchewan, the Ministry of Justice, the Law Society of Saskatchewan, Pro Bono Law Saskatchewan (PBLS),the Public Legal Education Association (PLEA) and practicing lawyers, have all made these reforms possible. Current initiatives are also underway with groups such as PLEA, the Ministry of Justice, Community Legal Assistance Services for Saskatoon Inner City Inc. (CLASSIC) and the Courts to respond to needs of self-represented litigants. The joint work of the Law Society of Saskatchewan and Ministry of Justice is looking at the delivery and regulation of legal services by non-lawyer professionals. Saskatchewan Legal Aid, CLASSIC and PBLS continue to fill a much needed gap in the delivery of legal services to often marginalized and low-income individuals.
Access to competent and appropriate legal services from lawyers has always been and will continue to be an important part of any access to justice solution. Lawyers have always been at the forefront of ensuring protection of legal rights and delivering competent legal advice. Lawyers, as professionals, contribute in significant and meaningful ways to their clientsâ€™ legal needs, to their communities and to community and philanthropic organizations. This occurs through formal and informal pro bono commitments, lowering billing expectations for clients in need, serving on professional organizations and spearheading initiatives aimed at improving our justice system. The University of Saskatchewan, College of Law also has a long history of educating students to become members of this honourable profession. Research and law reform initiatives by professors and graduate students at the College of Law has also played an important role in clarifying and reforming Saskatchewan and Canadian law. In keeping with this history and commitment to the justice system and the legal profession in Saskatchewan, the College of Law has made a significant strategic investment in access to justice related research and law reform through the creation of a new research centre: CREATE Justice. CREATE Justice officially launched at the College of Law at the University of Saskatchewan on March 1, 2017. CREATE Justice stands for the Centre for Research, Evaluation, and Action Towards Equal Justice, specifically in the areas of:
• Addressing Access to Legal Services;
Chief Judge Plemel of the Provincial Court of Saskatchewan;
Janet Fuhrer, President of the Canadian Bar Association (CBA) National;
Neil Robertson, QC, then Vice-President of CBA Saskatchewan;
Chantelle Johnson, Executive Director of CLASSIC;
Joel Janow, Executive Director of PLEA;
Craig Goebel, Chief Executive Officer of Legal Aid;
Charlene Sorensen, Acting Dean of the University Library, University of Saskatchewan;
Chris Lafleur, Acting Director of the Native Law Centre of Canada;
Ken Coates, Director of the International Centre for Northern Governance and Development;
Bill Holden and Isobel Findlay, Co-Directors of the Community-University Institute for Social Research;
Andrew Dunlop, then Director of University of Saskatchewan Community Engagement and Outreach;
Ryan Meili, then Head of the Division of Social Accountability in the College of Medicine; and
Gordon Sarty, Chair of Psychology and Biomedical Engineering.
• Dispute Resolution; and • Systemic Justice.
CREATE Justice has been established at the College of Law in response to both national and provincial local calls to action. The Canadian Bar Association’s Reaching Equal Justice Report called for the establishment of “centres of excellence for access to justice research” at three Canadian law schools. This report followed recommendations from the National Action Committee on Access to Justice in Civil and Family Law Matters in their 2013 Roadmap for Change report, which called upon all justice stakeholders to do their part in improving the state of access to justice in Canada. At the provincial level, members of the Dean’s Forum on Dispute Resolution and Access to Justice (a joint initiative of the then Deputy Minister of Justice Gerry Tegart, QC and former Dean Sanjeev Anand), recommended in 2015 (then lead by the Deputy Minister of Justice Kevin Fenwick, QC and acting Dean Beth Bilson, QC) the establishment of an access to justice research centre at the College of Law. With the support of the acting Dean, Beth Bilson QC, faculty and other access to justice enthusiasts (Sarah Buhler, Brent Cotter, QC, Amanda Dodge, Heather Heavin, Michaela Keet, John Kleefeld, Brea Lowenberger, Glen Luther, QC, and Wanda Wiegers), a steering committee was formed to take this recommendation and transform it into a reality. Law student involvement was also critical, with foundational and ongoing research and writing of the centre proposal undertaken by Rochelle Blocka (JD ’15) and Taylor-Anne Yee (JD’17). Letters supporting this initiative were provided by numerous organizations and individuals within the University and the justice system, including: •
Martin Phillipson, Dean of the College of Law;
Beth Bilson, QC, acting Dean of the College of Law;
Chief Justice Richards of the Court of Appeal;
Chief Justice Popescul of the Court of Queen’s Bench;
CREATE Justice is a significant strategic initiative at the College of Law. It is the second ‘centre’ established at the College, the first being the Native
SUMMER 2017 15
Law Centre founded in 1975 by Roger Carter, QC. The College of Law is one of only three law schools across Canada with research centres dedicated to improving access to justice research in Canada and fills a much needed gap in identifying access to justice needs in prairie, northern and rural areas. (The two other research centres with access to justice mandates include Osgoode Hall Law School’s Canadian Forum on Civil Justice and the University of Victoria’s recently established Access to Justice Centre for Excellence.) The Law Foundation of Saskatchewan was instrumental in enabling the establishment of CREATE Justice through its five-year funding commitment of Brea Lowenberger as the provincial Access to Justice Coordinator and CREATE Justice’s inaugural Director. University approval for the College of Law’s CREATE Justice research centre formally occurred on October 20, 2016 and the public announcement coincided with the Saskatchewan Law Review’s annual lecture delivered by the Honourable Thomas Cromwell, recently retired justice of the Supreme Court of Canada, on October 25, 2016. As author of "A Roadmap for Change" and chair of the National Action Committee on Access to Justice in Civil and Family Matters, the Honourable Thomas Cromwell was made the first Honourary Fellow of CREATE Justice.
particular focus on community and stakeholder engagement in projects that are interdisciplinary, collaborative, and action-oriented. Being located at the University Saskatchewan, CREATE Justice is able to benefit from existing research infrastructure and interdisciplinary relationships. For example, the College of Law currently is one of four partners of The Centre for Forensic Behavioural Science and Justice Studies, which, through funding provided from community organizations, Corrections Services of Canada, the RCMP and Provincial Corrections and Policing, is able to undertake research projects related to criminal and corrections law reform. The College of Law is also able to utilize the resources and analytic skill sets that may not otherwise be available to other justice reform initiatives through its partnership with the University of Saskatchewan’s Social Sciences Research Lab (SSRL). The SSLR, a research support unit unique among Canadian and American Universities, helps facilitate the design, delivery and dissemination of social science research at the University of Saskatchewan. With expertise in both qualitative and quantitative data collection and analysis, CREATE Justice’s relationship with the SSRL can help support data intensive projects that CREATE Justice may undertake in its justice-system related research. CURRENT INTIATIVES On March 1, 2017, CREATE Justice unveiled its new logo and formally announced some exciting research projects that are currently underway. Architects of Justice: Lead investigator: Brea Lowenberger, Director, CREATE Justice and Access to Justice Coordinator Collaborator: Just Rights, College of Law student group
CREATE Justice research is oriented towards two general dimensions of access to justice: transforming legal and justice services, and removing systemic barriers to justice, with a
The Architects of Justice project emerged from the Dean’s Forum on Dispute Resolution and Access to Justice (the Dean’s Forum) theme of “putting the public first.” Architects of Justice is an initiative that, through an exploratory survey, increases public participation in developing access to justice solutions. The survey, launched during the first annual Saskatchewan Access to Justice Week in
October of 2016, was designed to help us understand law in the public’s life and how the justice system can be improved. Saskatchewan Access to Legal Information Project (SALI Project): Lead investigator: Beth Bilson, QC Collaborator: Brea Lowenberger, Director, CREATE Justice and Access to Justice Coordinator. Project partners: • Public Legal Education Association of Saskatchewan (PLEA); • Law Society of Saskatchewan Library; • Saskatoon Public Library; and • University Library, University of Saskatchewan.
The objective of the Saskatchewan Access to Legal Information Project (the SALI Project) is to increase access to legal information for Saskatchewan residents. This project has emerged in the context of the Dean’s Forum as it has identified access to legal information as one of the critical components of access to justice. The SALI Project partners and participants are in the process of planning a conference on October 2021, 2017, during the second annual Saskatchewan Access to Justice Week. The primary purpose of the event is to bring together public library representatives from rural, remote and small urban centres in Saskatchewan, as well as other national and international experts, to further address how greater access to legal information can be achieved through partnering with libraries. Clinical Legal Education and Access to Justice for Marginalized Tenants: Lead Investigator: Sarah Buhler Project Partner: CLASSIC This project, funded by the Law Foundation of Saskatchewan, investigates the impact of advocacy by law students at CLASSIC in the context of housing law hearings. Through qualitative interviews with tenants who were self-represented and who were represented by CLASSIC during their housing law hearings, the research study seeks to understand the
experience of representation and access to justice in an important administrative law context. This study addresses a significant empirical gap in access to justice research in the areas of clinic law and administrative law contexts. PRESSING ISSUES OF CONCERN At the recent Tools of Innovation Conference (hosted by the Canadian Institute for the Administration of Justice), and National Action Committee on Access to Justice in Civil and Family Matters meetings chaired by the Honourable Thomas Cromwell in Vancouver during March 2017, the need for more evidence-based justice reform was clearly identified as an important building block to future justice innovations and reform. While it is clear some data is being collected by justice system stakeholders for operational purposes, there is a lack of knowledge as to what data exists, how the data that does exist might be shared or utilized, and what gaps in data collection or analysis exist. While the National Action Committee on Access to Justice in Civil and Family Matters continues to work on this important challenge, CREATE Justice will continue to work towards identifying projects that could help in the much needed area of relevant data collection and utilization in Saskatchewan. CONNECT WITH US CREATE Justice is interested in research project ideas from private practice lawyers, in-house counsel lawyers, government lawyers, judges, CBA sections and other legal organizations. Brea Lowenberger, Director of CREATE Justice, would be happy to hear from you. To get in contact with us and to learn more, please: Email firstname.lastname@example.org Visit our website and subscribe for our biannual eNews publication: law.usask.ca/createjustice Follow us on social media – Twitter (@CREATE_ Justice) and Facebook (@CREATEJustice) For more information about the Dean’s Forum or the Saskatchewan Access to Justice Working Group, please visit the “Research” tab at law.usask.ca. Also – mark your calendars for the second annual Saskatchewan Access to Justice Week, being held from October 16-22, 2017. SUMMER 2017 17
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A FIRESIDE CHAT WITH ANDREW ARRUDA: LEGAL A.I. INNOVATOR KARL ROEMER || WMCZ LAWYERS
hile recently appearing at the Supreme Court of Canada in Ottawa, I had the chance to catch-up over coffee with my good friend and former law school roommate, Andrew Arruda, who was in town at the same time to hold court with the Department of Justice regarding his company’s ground-breaking work with artificial intelligence (A.I) and the law. Here is what we (mostly) chatted about:
excited is that this is all just the beginning for me and ROSS Intelligence, there's so much more to do! 2. Should lawyers be worried about losing our jobs to ROSS?
Did you know people asked similar questions about other technologies entering the legal field such as the telephone, fax, internet and email? The answer is absolutely not. A.I. is incredibly powerful but the tasks A.I. can help lawyers with center around data 1. Give us a rundown of how someone goes retrieval and the repetitive, so called "grunt work" from graduating from the University of that our clients are not willing to pay us for. Saskatchewan College of Law to Co-Founder Hollywood is a bit to blame when it comes to the and CEO of a world leading A.I. start-up in hyperbole around A.I. replacing human jobs, but just a few short years? this is something we've seen since the beginning of That’s a great question Karl. It all technological advancement. There started with a telephone call from a will always be a need for lawyers friend of mine who was studying A.I. at When it comes to and what I think is most exciting the University of Toronto. My friend, Saskatchewan, I'll never about these new technological Jimoh Ovbiagele, ROSS Intelligence’s get over how beautiful breakthroughs is that they will allow Co-Founder and Chief Technology the sky always looked us as a profession to innovate and Officer, knew I was interested in improve our methods, while also technology and called to tell me about and how amazing the enhancing our ability to best aid our what was possible with A.I. and asked people are — as you clients. if I was interested in teaming up with know I do get back for 3. What are your predictions on him, and our third Co-Founder, Pargles visits! the singularity? Dall’Oglio. For me, it was a no-brainer. Living in Silicon Valley and being the I saw that the future of the legal profession had A.I. CEO of an A.I. company, this is a question I get a at its core, so I left the law firm I was working at and lot. I don't make predictions, as I'm more excited at co-founded ROSS. the prospect of building things, but my gut feeling is From there, it has all come down to execution on that by focusing on questions about the singularity it strategy and plans and working very hard. Working clouds perceptions of what A.I. can do now and how 80-100 hours a week since we started has been the it can enable human professionals to do more than norm, and it was the work ethic I learned at the ever before possible. It also shifts the conversation University of Saskatchewan, College of Law that to a place of fear unnecessarily. I think we need to made it all possible. Of course, it also helps that I love rethink the way we think about A.I. So to answer my job. My passions have aligned and it has meant the question directly, I don't really have one which that I've been able to put in the necessary effort to I know isn't as fun of an answer as you may have achieve what we have thus far. What makes me most expected from your old law school roommate!
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COMMENTARY 4. Anything new and exciting we can expect from ROSS in the near future?
Always. We have been making great progress both in expanding the areas of law ROSS can assist lawyers with, as well as deepening ROSS' capabilities within the practice areas our A.I.'s currently live in. Folks can stay up to date on ROSS developments by checking out our website: rossintelligence.com or via our blog at: blog. rossintelligence.com 5. Now that weâ€™ve seen the emergence of ROSS, when can we expect the release of RACHEL?
This may be one of my favorite questions to date and I've had the chance to be interviewed by a ton of media outlets. We may have to build a MONICA A.I. before the RACHEL one! It's funny because when we named ROSS we did it because we all really liked the name and didn't really think of all the famous people and characters named "Ross." Since releasing ROSS we get all sorts of questions about Ross from Friends, Ross Perault, Diana Ross and even Bob Ross. We are happy the folks really like the name and how it has captured everyone's imagination. 6. What are your favorite memories of the University of Saskatchewan and the province of Saskatchewan?
My favorite memories include hanging out in the College of Law student lounge playing foosball late at night between studying for exams. Also, grabbing lunch with friends like you in Lower Place Riel are memories that I'll never forget. I also have to include performing and MC'ing Legal Follies as a highlight as well. I had such great times. When it comes to Saskatchewan, I'll never get over how beautiful the sky always looked and how amazing the people are -- as you know I do get back for visits! 7. How do you feel the legal market in Saskatchewan compares to other places in terms of technological adaptations in the practice?
I think the legal market is very similar across the board so I'd say Saskatchewan is similar to any other legal hub. It can stand to adopt more technology but the same can be said consistently for all legal markets. I do think that adopting more technology in Saskatchewan is of particular importance as 20 BARNOTES
technology can enhance access to justice and I know there are a lot of overworked lawyers serving on the front-lines that could benefit from a technological assist. 8. When can we expect to see ROSS breaking into the Canadian market, and in particularly Saskatchewan? We are working hard to expand ROSS across the globe, as you can imagine, between family and friends, the pressure to bring ROSS up to the Canadian market and in particular, Saskatchewan, is heavy, so I'm ensuring we work as hard as we can. Stay posted!
SASKATCHEWAN LAW REVIEW: FOCUSING ON OUR READERSHIP HEATHER HEAVIN || COLLEGE OF LAW, UNIVERSITY OF SASKATCHEWAN
he Saskatchewan Law Review holds a special place in the hearts of many Saskatchewan practitioners and College of Law graduates. I myself recall many hours spent editing submissions to the Saskatchewan Law Review with fellow members of the editorial board, debating the use of semicolons versus commas, and whether a split infinitive was a grammatical error or merely a style choice. The intention of the Saskatchewan Law Review has always been to provide a forum for explaining, analyzing and critiquing case law, legislation, and law reform proposals that are of relevance to Saskatchewan practitioners and legal academics. The Saskatchewan Law Review is a double-blind, peer-review journal edited by a College of Law student editorial board and a Law faculty member. The process that is followed is for articles submitted for publication consideration to be first internally reviewed by the student editorial board and faculty editor. If the submission passes internal review, the article is sent anonymously for review to two ‘legal content’ experts. These experts may be legal academics or experienced practitioners, depending on the nature of the article submitted. Accordingly, there is no other legal publication with this Saskatchewan focus and of the same academic quality as the Saskatchewan Law Review. The editorial board is very conscious of the needs of the readership of the Saskatchewan Law Review. In our first stage of ‘internal review’ all articles submitted for publication consideration are judged against several criteria. However, the first and most critical question that is asked is as follows: Is the Topic Appropriate? Within this question, we offer other probing questions and insights to help focus the answer:
The Saskatchewan Law Review and the Law Society of Saskatchewan have a long history. Commencing in 1936, the Saskatchewan Bar Review (the precursor to the Saskatchewan Law Review) was first published by the Law Society of Saskatchewan. The editorial board was comprised of David Tyerman, Stuart Thom, Dean Cronkite and representatives from the Benchers. These shared editorial duties continued until, in 1943, both Mr. Tyerman and Mr. Thom were overseas in the armed forces and the Dean of the College of Law and its faculty assumed full editorial duties. This continued until 1963 when student editors were added to the editorial board. In 1967, with significant changes occurring at the College of Law (including a new law building), the name of the journal was changed to the Saskatchewan Law Review, and, in keeping with other law schools in Canada and the United States, students began to receive ‘course’ credit for their editorial duties. Currently, there are only 18 positions available on the student editorial board, which positions are reserved for second and third year law students that are the top students in their year. These top students are invited to apply for positions on the editorial board by the Dean of the College of Law. As a result, the Saskatchewan Law Review designation is both an honour and a signal to prospective employers of the academic quality of the student. Two to three summer Law Review editors are also hired to continue the work of the journal during the summer months. The summer editors become ‘managing editors’ for the upcoming year, gaining experience in running
SUMMER 2017 21
COMMENTARY meetings, keeping notes and helping organize our annual Saskatchewan Law Review lecture. This past year, the managing editors were Mike Crampton, Evan Hutchinson and Jon Milani with current managing editors of Jayme Anton, Jeremy Barber and John Mansbridge. Students that serve on the editorial board receive three (3) credit units for the Law Review course, but are expected to undertake their duties for the entire academic year. In addition to internal review of submitted articles, they also edit two yearly issues of the Saskatchewan Law Review. The editorial work is exacting, but the students who serve on the editorial board take their work very seriously, becoming experts in editing, grammar, research, and citation. Students are also expected to publish a book review as well as complete an article on a topic of interest to the Saskatchewan Law Review readership. The best of these articles are published in an edition of the Saskatchewan Law Review. This past year, the Saskatchewan Law Review updated its website and added a ‘blog’ section entitled “Comments”. These on-line posts are shorter than the typical article published in the Saskatchewan Law Review, but are intended to provide our readership with continued Saskatchewan and Canadian specific content. “Comment” posts include case comments, law reform ideas or practical issues of interests to practitioners. At this time, I would like to invite everyone to check out our webpage at www. sasklawreview.ca and subscribe to our “Comments” mailing list. This past year, the Saskatchewan Law Review’s Annual lecture was delivered by former Supreme Court of Canada Justice, the Honourable Thomas Cromwell. This event corresponded with Saskatchewan’s inaugural, “Access to Justice Week”. The fall issue of the Saskatchewan Law Review published articles we hope are of interest to Saskatchewan practitioners and members of the Law Society including our annual review of Saskatchewan Court of Appeal decisions, an article by Tom Irvine, QC on Language Rights in Saskatchewan, an article by Rod Wood (Estey Chair) on the Codification of Commercial Law, as well as an article by Mark Whitten considering the Trinity Western University Law School dispute. In our current issue, published at the end of April, we honoured Distinguished Professor, Ron Cuming, QC with numerous papers all focused on Commercial and Business Law, including an article by Professor Cuming himself on Saskatchewan Mortgage Law.
Over the years, the Saskatchewan Law Review has tried to keep costs at a reasonable level. In 2012, Dean Anand, select faculty and the members of the Law Society Executive met to discuss the funding and operations of the Saskatchewan Law Review. At that time, we undertook a significant reduction in our publication and mailing costs by reducing the number of print copies provided to subscribers. As a result, unless a member specifically requested a print copy, all Law Society of Saskatchewan members were granted electronic subscriber access through the ‘Members section’ of the Law Society website. While we will continue to look for appropriate costs savings opportunities, the Saskatchewan Law Review will always maintain dedicated publishing articles of relevance to the Saskatchewan legal community. If you are interested in submitting an article for publication consideration, please visit our website at www.sasklawreivew.ca and while you are browsing, remember to sign-up for our ‘Comments’ mailing list.
CYBER ATTACKS HIT CLOSE TO HOME MARK ANDERSON || CERTIFIED INFORMATION SYSTEMS AUDITOR
t’s May 2017 and everyone is talking, finally, about IT security. It took a ransomware attack of nearglobal proportions, but now more people are becoming aware that their computers and networks are vulnerable. The fact is, ransomware has been around for years and has disrupted businesses, and law firms in the past. Additionally, ransomware is far from the only cyber threat.
getcybersafe.gc.ca/cnt/rsrcs/pblctns/smll-bsnss-gd/ index-en.aspx. Note that these two resources are not detailed IT security standards. The goal at this point is to build a basic understanding and to equip yourself to have informed, useful conversations within your firm and with your IT staff and service providers. Once you have someone in charge, what's next? Build IT into your risk management program to create and maintain an effective IT security posture. A good risk management program is one that is documented and repeatable.
2016 data from the Government of Canada indicates that about 70 percent of Canadian businesses have been victims of cyber attacks. Expectations are that professional firms Start by making will see increasing attacks in the furure. The Financial Times in December 2016 sure that someone indicated that lawyers, along with accountants, are increasingly “prime is in charge of targets” for cyber attacks.
This is where the IT security standards come in. IT security standards vary greatly in detail, complexity, and in the amount of practical advice they provide. It can be tough to navigate through them. The main ones (and cyber security. here I highlight COBIT 5, the NIST It is essential—not to mention required Cybersecurity Framework, NIST by professional standards and legislation—that SP800-53, the ISO 27000 series, and the Center you take steps to protect your information assets, for Internet Security Critical Security Controls) including the information you safeguard on behalf of provide accepted, objective and rigorous assistance your clients. in establishing effective IT security. How? Start by making sure that someone is in charge of cyber security. If this is you, and you are new to the area, you need to build your knowledge. A great place to start is actually a UK source, called 10 Steps to Cyber Security. You can find the executive summary here: https:// www.ncsc.gov.uk/guidance/10-steps-executivesummary. Another good source is the Get Cybersafe Guide for Small and Medium Businesses https://www.
The key in using any of the IT security standards is not to use them as rote checklists. Rather, it is to do the work, with expert assistance as necessary, to apply the standards in the context of your practice. That is, using an accepted standard; which includes the following: • Identify what is important—what are the key information assets that must be protected given the nature of your practice, professional standards, and legislation;
SUMMER 2017 23
• Consider the risks, and how they affect what you have identified as important; • Come up with a practical plan to implement additional controls in a limited number of priority areas; and • Carry out the plan by implementing the controls and testing their effectiveness.
COBIT 5 www.isaca.org NIST http://csrc.nist.gov ISO www.iso.org CIS Controls www.cisecurity.org
These steps are quickly stated, but not so quickly carried out. There is detail and work involved in each of them. What type of controls are out there? There are governance-type controls such as staff education, technical controls like network perimeter security devices, and there are workflow controls, i.e. how and when you use cloud services. The key is to do your due diligence to implement effective controls to reduce the likelihood that your firm will be victim to a cyber attack.
References and additional links: Masters, Brooke. Lawyers and accountants are prime targets for cyber attacks. The Financial Times, December 29, 2016. https://www.ft.com/content/ f52f6fee-ccf4-11e6-864f-20dcb35cede2 (23 May 2017). Department of Finance, Canada. . October 16, 2016.
IT / Cybersecurity / Business Continuity
https://www.fin.gc.ca/n16/16-133-eng.asp (23 May 2017).
Do you know what your risks are? Lawyer / Certified Information Systems Auditor with extensive experience carrying out detailed IT and cybersecrity risk assessments firstname.lastname@example.org 306-205-6587 www.mtanderson.ca
LIFE INSURANCE OR MORTGAGE INSURANCE DAWN MARCHAND || CANADIAN BAR INSURANCE ASSOCIATION / LAWYERS FINANCIAL
our $1 million offer for a house in a great neighborhood has just been accepted. Together, you and your partner earn a good living and have qualified for an $800,000 mortgage, but if one of you dies, then an important part of the financial equation disappears.
In contrast, insurance benefits are paid directly to your designated beneficiary (i.e. spouse) and they are able to determine how best to use the funds (for example, paying the mortgage and/or covering other expenses such as education, debt or to supplement a loss of income).
So before you go to the bank to sign on the dotted line, do a bit of homework and check out your options for insuring the amount of your mortgage. The bank will offer you mortgage insurance but as a member of the legal community, you have exclusive access to term life insurance through the Canadian Bar Insurance Association (CBIA).
DECREASING VS. LEVEL COVERAGE With mortgage insurance, the amount of overall coverage decreases with each mortgage payment made. As your mortgage reduces, your coverage goes down, but your premiums do not. With a term life insurance policy, the benefit amount is guaranteed for the life of your policy. Premium rates will likely increase at regular intervals but at any point you can choose to reduce your coverage amount and, if you do, your premiums would likewise be reduced.
Consider this example: for a 41-yearold male non-smoker, the bank will charge $232.00 per month* for $800,000 of mortgage insurance. CBIA term life would only cost $45.34 per month. Savings for women are even greater; for the same coverage, a 41-year-old female non-smoker will also pay the bank $232.00 per month but her CBIA term life premium is only $33.73 per month. The significant savings is likely reason enough, but wait — there are even more reasons to at least consider term life insurance before signing on for mortgage insurance. OWNERSHIP & CONTROL Unlike mortgage insurance where the bank is the policy owner, with term life insurance, you are the policy owner. When you die, mortgage insurance is paid directly to the financial institution and is used only to pay off the mortgage balance.
UNDERWRITING Typically there is very little prepurchase underwriting required for mortgage life insurance; usually just a few simple questions. This is one of the reasons why premiums are typically higher than for term life insurance. Life insurance typically requires a comprehensive underwriting process prior to purchase. CBIA’s Term 80 product was designed to provide a positive client experience with minimal intrusiveness. The degree of underwriting required is dependent on the amount of life insurance applied for. PORTABILITY If you move your mortgage to
another financial institution, or if you buy a new house and need a new mortgage, or if you simply renew your mortgage for a longer term, you may have to requalify for mortgage insurance coverage. You could be considered uninsurable at that point, and would not qualify for mortgage insurance. In contrast, CBIA’s term life insurance stays intact as long as you continue to pay your premiums, even if you move your mortgage or buy a new home. So caveat emptor! Remember, mortgage insurance is typically sold by bank employees who may not be trained to explain the benefits of different insurance options. With CBIA, you receive quality advice from advisors familiar with the many product options available. Working together, you are assured of determining the coverage that is best for your specific situation. Canadian Bar Insurance Association (CBIA) is committed to being the trusted provider of choice for insurance and financial solutions to the legal community, their families and employees in Canada. Our products and services are planned and designed to meet the needs and reflect the unique characteristics of the legal community at a cost that provides both superior value and stability. It’s all we do!! *all rates quoted are as at January 2017 and do not include PST (where applicable).
SUMMER 2017 25
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PRO BONO SPOTLIGHT
STICKS AND STONES: FEMALE LAWYERS AND GENDERED CRITICISM CARLY ROMANOW || PRO BONO LAW SASKATCHEWAN
e’ve all heard the bad lawyer jokes, i.e. What’s the difference between God and a lawyer? God doesn’t think he’s a lawyer. We’re all aware that lawyers may not be the most publicly loved section of society and these notions of unpopularity are part and parcel of the role of a lawyer. However, it seems that once the jokes are turned toward female lawyers, they become more critical, more personal and more pointed. For instance the popular female lawyer joke, What’s the difference between a female lawyer and a pitbull? Lipstick. More recently with the trial of Jian Ghomeshi, and his defence counsel Marie Henien, and in the more extreme case of Hillary Clinton, critiques of the female lawyer’s professional performances were rife with comments on their attire, their personalities and their gender. Alice Wooley, a professor at the Faculty of Law, University of Calgary and President of the International Association of Legal Ethics, and Elysa Darling, a lawyer in Calgary, recently published an article titled “Nasty Women and the Rule of Law”.1 The article tries to articulate the reasons why female lawyers tend to receive more personal and gendered criticism than their male counterparts. The article’s thesis is that attacks on female lawyers arise from the intersection between the normative structure of the lawyer’s role and sexist stereotypes of females.2 The authors begin by contextualizing the role of the lawyer within the rule of law. The authors argue that the role of the lawyer is to pursue the interests of their clients within the bounds of legality, even where doing so inflicts harm or violates valued norms of ordinary morality.3 The classic example of this is the public disdain for lawyers who represent alleged murders or rapists. The criminal defense lawyer’s role in the justice system is to zealously advocate for a client’s best interest, i.e. acquittal, despite the client’s
allegedly egregious acts. A lawyer in the role of the zealous advocate will always run contrary to someone else’s deeply held values, morals or otherwise.4 This role of agitator or zealous advocate becomes particularly dissonant when combined with the gender stereotypes about the expected and appropriate conduct of women. In general we believe that men ought to be focused on achievement, to “take charge” and to be autonomous and rational.5 Women, on the other hand, ought to reflect communal qualities, to be concerned about others, to seek early resolution and to be emotionally sensitive.6 The gender stereotypes for women are in direct conflict with the expectations and position of the lawyer in our legal system. The authors summarize the conflict as follows: By virtue of her role – pursuing client interests within the bounds of legality – a lawyer is required to be competent, authoritative and rational. She acts in the interests of (the) client, not in the interests of others, and will not be deferential, generally concerned with the interest of others or act with emotional sensitivity, except insofar as doing any of those things advances her client’s interest within the bounds of legality. But by acting in this way, she not only violates our expectations of what women can do, she also violates our standards about what women ought to do.7
As a result of this conflict between the traditional role of a lawyer and the traditional role of a woman, the critiques of female lawyers are harsher and more personal, the authors argue, because being a good lawyer means being a bad woman.8 The role of a lawyer itself violates gender norms for women. Female lawyers may be seen as less suitable for the role and may find the practice of law hostile as a result.9
SUMMER 2017 27
PRO BONO SPOTLIGHT
The authors do not argue that every female lawyer experiences personal and vicious attacks because of her role as a lawyer; however, they argue that every female lawyer is at risk of receiving additional and harsher critiques as a lawyer due to her gender.10
CALL FOR NOMINATIONS
The authors recognize that there have been efforts to increase diversity in the profession of law and to support female lawyers. Yet they point out that “…even if women have better mentoring, or opportunities for flexibility and work-life balance, that will not necessarily place them on the same footing as men in relation to professional opportunities or advancement.”11 Ultimately, the authors did not research and write their article to preach further doom and gloom about the legal profession. The article is to bring light to the issue of gender stereotypes, especially in the legal profession and to challenge the way that we view and critique female lawyers. The authors conclude with the following: [W]e also think it’s important for people to see it – to see the gender stereotypes that underlie how we perceive, discuss and criticize women lawyers, and to appreciate the costs that that imposes for the particular women subject to it, but also to women lawyers as a whole. … [T]he profession as a whole needs to be aware of the unique costs to women in occupying the lawyers’ role, however central that role is to the accomplishment of the rule of law in a free and democratic society.”12 1. Alice Wooley and Elysa Darling, “Nasty Women and the Rule of Law”, January 21, 2017, University of San Francisco Law Review. 2. Supra, at page 3. 3. Ibid. 4. Supra, at page 22. 5. Supra, at page 23. 6. Ibid. 7. Ibid. 8. Supra, at page 26. 9. Ibid. 10. Supra, at page 28. 11. Supra, at page 30. 12. Supra, at page 32.
NOW ACCEPTING NOMINATIONS QUEEN'S COUNSEL DESIGNATION
Deadline: October 3, 2017
2018 DISTINGUISHED SERVICE AWARD
Deadline: November 15th
2018 - 2019 CBA SASKATCHEWAN BRANCH TREASURER
Deadline: December 15th
2018 - 2019 ELECTED MEMBERS OF COUNCIL Deadline: December 15th
Nomination Forms & Information:
FROM THE BENCH
THE REGINA DRUG TREATMENT COURT JUDGE MURRAY HINDS || PROVINCIAL COURT OF SASKATCHEWAN
very Tuesday morning the Drug Treatment Court convenes in court room number seven at the Provincial Court Building in Regina. This court has been in operation for over ten years, beginning in October 2006. The object of the Regina Drug Treatment Court is to reduce drug abuse, crime and recidivism through the rehabilitation of individuals who commit crimes to support their drug dependency. WHY IS THERE A DRUG TREATMENT COURT IN REGINA? Because, like most communities in Canada, there is a drug problem in Regina. Substance abuse is common Regina. Many people are addicted to alcohol, marijuana, cocaine, heroin, oxycontin, morphine, talwin, ritalin and methamphetamine (crystal meth). Many drug addicts commit many crimes to fuel their drug addictions. It is estimated that there are over 2,000 intravenous drug users in Regina. The prevalent injection drugs are powdered cocaine, morphine and “poor man’s morphine”, which is a combination of talwin and ritalin. Many other individuals in Regina are addicted to crystal meth, crack cocaine or marijuana, which are smoked. In Regina the drug abuse is largely hidden, behind closed doors. We don’t have a visible area of drug use like East Hastings Street in Vancouver. However, drug abuse is a problem in our city. It is reflected in our high crime statistics. In addition to the costs of policing, courts, jails and probation services there are other real costs to society that accompany drug abuse. These costs include the much greater use of the health care system and social services for children whose addicted parents cannot properly care for them. The simple truth is that drug addicts are expensive people in our society.
THE TRADITIONAL APPROACH TAKEN BY THE COURTS When drug addicts are apprehended and charged by police, they are caught mostly doing low level crimes such as possession of drugs, selling drugs to feed their addiction, thefts, and prostitution. Such drug addicts generally get short jail sentences, unless they have lengthy criminal records. The Court then places them on probation and orders them not to possess, or use illicit drugs. After a short time in jail such addicts return to their same old neighbourhood where they often encounter addicted family members and friends and nearby drug houses. In short, addicts face many temptations on release from jail. In addition, if they actually want substance abuse programming in the community, there is often a waiting list. The result is a staggering rate of recidivism. Or put another way the revolving door of addiction, crime and jail. Such addicts very often return to their old neighbourhood, back to using drugs, committing crimes, being charged, going to court and eventually back to jail. A DIFFERENT APPROACH IN DRUG TREATMENT COURT The Regina Drug Treatment Court (RDTC) involves a merger of healthcare and law, two distinct cultures. The RDTC involves the concept of harm reduction, that is, programming, treatment and judicial oversight which is designed to reduce (and in time eliminate) the use of drugs, crime, jail and expensive health care. It is a different approach. WHO CAN PARTICIPATE? Participation in the RDTC is open to all adult accused who are referred by RDTC Crown Prosecutor, drug dependent, and whose criminal behaviour is motivated or caused by their addiction. Such participants are assessed by the Regina Drug SUMMER 2017 29
FROM THE BENCH Treatment Centre staff for approximately 30 days. If the staff determines that they can work with the participant they are admitted into the program. Participants must then acknowledge responsibility for their actions by entering a guilty plea to their charges and their participation must not pose a risk to public safety. People charged with offences involving children and youth, serious violence, sexual assaults, and profit -motivated commercial drug trafficking cannot be referred to the RDTC. WHAT IS SO DIFFERENT ABOUT THE REGINA DRUG TREATMENT COURT? It involves a Judge, a Prosecutor, a Legal Aid Lawyer and a Treatment Staff of seven working together as a team to address an individual’s drug addiction as an underlying cause of their criminal activity. The treatment staff works out of a building five blocks away from the Provincial Court House and consists of a Director, three Drug and Alcohol Counsellors and a nurse provided by Regina Qu’Appelle Health Region, a Probation Officer and a Social worker. Why the Probation Officer? Addicts in the program are released from jail on strict bail conditions. The Probation Officer oversees all of the participants. In addition, the Probation Officer assists in “NonCriminal thinking” programming. Why the Social Worker? Addicts are often living “off the grid” when they first come to the Drug Treatment Centre - they often have no stable housing or income and no identification. Why the Nurse? Addicts are often in very poor health which requires referrals to a variety of health professionals. The nurse works with local methadone clinics and doctors who the participants see. The Crown Prosecutor consults with the police and makes the decision whether to refer an individual into Drug Treatment Court. After a series of interviews and checks, that individual is released from custody back into the community on strict bail conditions, which include curfews, a requirement to attend the Drug Treatment Centre - Monday through Friday and to submit to random drug testing by providing
urine for lab analysis. Attendance at the Centre is taken each morning and afternoon. Lates and unexcused absences are noted. During the first 30 days of the program, the individual is assessed by the staff at the Centre to determine their suitability for ongoing treatment. Consistent attendance is required to be admitted into the program. The participant also has to attend Court once a week. The Legal Aid Lawyer helps addicts get referred to and accepted into the Drug Treatment Program. Once a person is accepted into the Drug Treatment program the Legal Aid Lawyer helps them enter guilty pleas to the criminal offences they have been charged with. In addition, the Legal Aid Lawyer advocates for their clients each week in court. The participant agrees to waive their right to immediate sentencing on their criminal charges. Sentencing is postponed until they graduate from the Drug Treatment Centre or are discharged from the Centre. All of the participants report to the Judge every Tuesday morning in court room number seven. The Judge is an authority figure which the participant answers to on a weekly basis. Participants are held accountable for their actions, or lack of action. HOW DOES THE DRUG TREATMENT COURT WORK? Prior to Court - the Judge meets with the Prosecutor, Legal Aid Lawyer and the Drug Treatment Centre staff at 9:00 a.m. every Tuesday. This is called “PreCourt”. The Judge gets a report from the director of the Drug Treatment Centre every week on each individual setting out their attendance, their progress in their treatment plan and the results of drug testing which occurs on a random basis approximately 2 times per week. The Judge then hears from the team of professionals as to how best motivate the individual participants at the Court Session which begins each Tuesday at 11:00 a.m. when each of the participants appears before the Judge. At 11:00 a.m. Court opens to the public. Each participant has to come forward when their name is called. The director provides an update on each participant to the Judge regarding their attendance, participation in groups and counselling and the results
FROM THE BENCH of urine (drug) tests. The Judge and the participant then have a conversation in open court about their progress or lack of progress. If the participant is doing well, incentives are provided such as: the Judge praises and encourages the participant and perhaps give them a hand. Praise and hand clapping can be a very powerful positive experience for people who have never had any positive recognition in their life. The Judge can also reward individuals by loosening their bail conditions (i.e. extending an evening curfew (from 9 pm to 10pm) or perhaps permit them to leave Regina for a few days to visit family) or by moving them into the next stage of the program. If the participant is not doing well, Sanctions are imposed such as: writing assignments, spending extra time at the Drug Treatment Centre, performing hours of community service work, compulsory attendance on their free time at AA/NA meetings, brief remand in jail, being ordered into detoxification and if necessary, discharge from the program. 3 TRACKS There are 3 stages or tracks at the RDTC: (1) Transition; (2) Stabilization; and (3) Maintenance. A certificate is given to participants as they achieve each track. Congratulations are extended by the Judge as they achieve each track. During the program participants are required to attend a 30 day residential treatment facility. There are several to choose from in Saskatchewan. These include: Pine Lodge Treatment Centre; Metis Addictions Council of Saskatchewan Inc.; Cree Nations Treatment Haven; and Calder Centre. HOW TO GRADUATE FROM DRUG TREATMENT COURT It takes about one year to graduate from the Drug Treatment Centre. Graduation involves a huge commitment to change. A graduate of the Drug Treatment Court must be clean or free of all drugs for 3 consecutive months and not have committed any crimes for 6 consecutive months. A graduate must complete a relapse plan. During Track 3 the participant is either attending an accredited school or working. The participant is also required to attend
the Drug Treatment Centre for urine screens and Court. When a person Graduates from DTC they are sentenced by the Judge. Graduates receive lighter sentences than they would have otherwise received. They are usually given a Conditional Sentence and placed on conditions which require them to report to court once a month for several months and abstain from the use of alcohol and non-prescription drugs. Graduates are given a certificate, a medallion and a lunch in their honour at the Drug Treatment Centre. Getting and staying clean often requires a person to disassociate themselves from certain friends and family members. They must make real life changes, like finding and keeping a job. This is no small task for someone truly addicted to drugs and used to living a chaotic and criminal lifestyle. WHEN AN ADDICT SUCCEEDS, WE ALL SUCCEED The addict has a new chance in life. When an addict turns their life around this affects others in positive ways: parents and siblings are relieved, the addict is no longer living a chaotic, dangerous lifestyle, spouses have a clean partner, children have a clean parent and have a much greater chance of succeeding in life themselves. Employers gain a valuable employee. New born babies of women addicts are clean and are not apprehended at birth. The community is also much better off. Police and health care costs decrease. The Courts see one less person constantly before it. Instead of dealing with the addict as a criminal who takes from the community, the community has people who contribute: by getting a better education or training, by being part of and taking care of their family and by working, paying taxes and giving back to their community. If you know someone who is an addict and who is living a criminal lifestyle, consider Drug Treatment Court as an option.
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SASKATCHEWAN PROVINCIAL COURT ASSOCIATION ESSAY WINNER JUDGE PAT REIS || PROVINCIAL COURT OF SASKATCHEWAN The winner of the Saskatchewan Provincial Court Association Essay Contest for 2017 was Travis Lovett. Travis is a Cherokee Indian from Atlanta Georgia. He received his Juris Doctorate from Sandra Day O'Connor College of Law at Arizona State University in 2014 where he graduated with certifications from the Indian Legal Program and the Center for Law, Science & Innovation. Travis is currently articling at Slusar Law Office in Saskatoon, Saskatchewan and is simultaneously pursuing an LLM Thesis from the University of Alberta, Faculty of Law in which he analyzes how impact and benefit agreements can reconcile First Nations with resource development in Canada. After articling, Travis will remain at Slusar Law Office and represent First Nations in areas such as economic development, governance, corporate law, and defense litigation. – Judge Reis.
Important Practice Skills Acquired throughout the Articling Year TRAVIS D. LOVETT || SLUSAR LAW OFFICE
y articling experience has helped me transition from academia to practice. Theoretical opinions and public policy desires have now succumbed to client demands. Mediocre preparation minutes before class allowed me to survive the notorious Socratic Method, but scanning jurisprudence to merely discover the rule of law does not solve client problems. I no longer have the luxury of debating opinions without consequence. My articling experience has taught me that I face real-world dilemmas and that the decisions I make will impact people’s lives. Through articling, I have acquired vital day-to-day skills that have prepared me to meet client expectations and thrive in the legal profession. My articling experience primarily focused on representing First Nation communities. Many of the skills which I have acquired throughout this year relate to managing the attorney-client relationship. English is the second language for many of our clients. Our clients come from distinct cultural upbringings
and sometimes struggle to understand the court process and its formalities. Patience has proven to be a vital virtue. I often remind myself that I was not always a lawyer and that the complexities associated with the legal process were once foreign to me as well. A tactic which helps me to understand the client and to appreciate their cultural concepts is to visualize myself in their circumstances and, in essence, “become the client.” I visit their community, listen to their elders’ stories and attend their ceremonies. This process strengthens the attorney-client relationship and enables me to better advise and communicate with the client. For example, this year a client wanted to legally adopt a child from her community and because I took the time to understand the client’s culture, I was able to effectively explain why a ceremonial adoption was not a legal process recognized by the Ministry of Social Services. Communicating through the client’s cultural lens helps me identify the client’s objective and prepare legal strategies to achieve their goals. My articling experience also taught me the importance of considering solutions outside the court process. Because our clients often lack familiarity with legal processes and procedures, they sometimes suggest impractical means to achieve unrealistic objectives.
FROM THE BENCH
Many of our clients think that litigation is the only means to solve their problems – they want their day in court. Through clear communication, however, instructions and expectations can be tailored to explore non-legal solutions. For example, the rule of law offers little hope for a First Nation wanting to prohibit municipalities from passing zoning laws on provincial land, albeit on their ancestral lands. However, the objective to preserve and protect the First Nation’s ancestral lands can be achieved through private market negotiation. A memorandum of understanding or other agreement can enforce joint regulation and empower the First Nation to participate in regulating their ancestral lands without enduring costly and lengthy litigation. When no alternative solution is available and litigation is inevitable, I frequently remind myself of the remarks presented by Honourable M.T. Megaw during his presentation on oral advocacy when he said that the task of a lawyer is to be a “zealous advocate.” Through articling I have come to appreciate that phrase and what it means. To me, it mandates three essential skills. The first skill to zealous advocacy is learning the file. Before researching the legal issues, I have learned to take the time to painstakingly read all correspondence and any pleadings filed on the matter. Doing so offers insight to opposing counsel’s procedural strategy and sometimes reveals overlooked or new legal issues. The second skill is to never leave any stone unturned. I have accumulated a checklist of preliminary issues to consider before I weigh the merits of any case – jurisdictional objections, procedural barriers, constitutional issues, etc. The final skill set, is to be zealous. A zealous advocate must find strength in the narrative and creativity in the law. They must dissect the statute word by word, edit their brief over and over, and rehearse their argument endlessly. A zealous advocate must tenaciously strive to further client interests and achieve client goals, regardless of how difficult that may be. Above all, however, the most important skill is to be kind. The attorney-client relationship is not the only relationship within the legal profession which needs management. The attorney-secretary relationship must be nurtured with respect and encouragement. Relationships amongst fellow lawyers should not
fall victim to hostility and bitterness despite our adversarial process. Notions of winning or losing are irrelevant if the client’s objective is not achieved; in some cases this does not occur when “winning” a case. Personal vendettas against other lawyers should never prevail over the interests of the client. Being nice to court runners, security personnel, and local registrars proves advantageous. Practicing law is like anything else in life – you get out what you put in. Putting in respect and kindness will produce cordialness amongst the bar and the wider legal profession. During my articling year my life changed in various ways, but the biggest change was that I became a father in November. Looking back on the skills that I have acquired throughout this year, I realize that they are the same skills I want to instill in my daughter. Spend time learning to understand others; be culturally cognizant. Think of alternative solutions to your problems; fighting one another is not always the answer. Be a tireless champion for those who need your help; advocate for them and what you believe in. Finally, be a kind and respectful person to all whom you meet. In reality, this past year of articling has brought to life the skills and virtues which we hope to teach our children. Yet we as adults must sometimes be reminded of them ourselves.
FOR THE FIRST TIME
ALL REGULAR MEMBERS CAN VOTE AT THE CBA ANNUAL MEETING IN AUGUST. Be part of the new vision for the future of the CBA, debate important resolutions and vote. On August 17, 2017, from 11am - 1:30pm CST the CBA is hosting its Annual Meeting in HUBS across Canada or in-person in Montreal. To encourage member participation we have a HUB in Saskatoon & Regina. Be part of the change and register to attend via a HUB (or in person) by visiting www.cbasask.org
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UPDATE FROM THE COURTS: COURT OF APPEAL THE HONOURABLE ROBERT G. RICHARDS || CHIEF JUSTICE OF SASKATCHEWAN
appreciate this opportunity to report on the work of the Court of Appeal and to bring the CBA and its membership up to date on some of the goings on of the past year. That year has been a busy one in which the Court dealt with a large number of appeals in a very diverse range of legal subject areas. Our goal, as always, has been to deliver legally sound and practically workable decisions and to do so on a timely basis. On the personnel front, Justice Ryan-Froslie elected supernumerary status as of May 5, 2017. This means that she will be sitting approximately half time going forward. The vacancy created by her election has not yet been filled. Justice Lane celebrated his 75th birthday, and hence his mandatory retirement, on May 2, 2017. The bottom line is that the Court is presently operating with the equivalent of six-anda-half full-time judges. By way of contrast, it had the equivalent of eight-and-a-half or nine full-time judges from 2007 to 2013. The current membership of the Court is me and Justices Jackson, Ottenbreit, Caldwell, Herauf, Whitmore and Ryan-Froslie. I also wish to acknowledge the work of Justice Wilkinson of the Court of Queen’s Bench, a former member of the Court of Appeal, who sat with us for several weeks last fall and this spring to assist with the Court’s workload. The Court disposed of nearly 400 appeals in 2016, up from about 300 in 2015. It rendered 206 decisions in 2016, as opposed to 156 in 2015. In 2016, about 55 percent of our files involved civil (including family) matters and about 45 percent involved criminal matters. This was a fairly significant shift toward the civil side of our mandate in terms of the civilcriminal balance. Moreover, particularly on the civil side of things, the average or typical appeal appears to be getting more complex.
I will also mention three Court of Appeal access to justice initiatives that might be of interest. First, the Court’s self-help guidebooks (civil and criminal) are now available both online and in PDF formats. Some video elements will be added to the online version this summer. Second, we are launching a “plain language” project whereby the Registrar’s office will bring its standard correspondence more into line with the needs of lay litigants and low literacy individuals. Third, the Court plans to experiment this fall with a “self rep school” wherein self-represented individuals will be able to visit the courtroom before their appeals in order to get instruction on the basics of how matters will proceed. The idea is to help them make more effective and more useful presentations when their day in court arrives. Finally, let me note that 2018 will be the Court of Appeal’s centenary year. In order to mark that milestone, the Court will be hosting a banquet in Regina on March 2. Chief Justice McLachlin is scheduled to attend. We have also commissioned a history of the Court that will be officially released at a reception in Saskatoon in the fall of 2018. My colleagues and I are looking forward to joining with the bar at these events to celebrate the Court’s 100year anniversary. I will close by acknowledging the good work done by the Canadian Bar Association and its membership. The CBA’s efforts on many fronts are appreciated by the members of my Court and by the judiciary generally. We are fortunate to live and work in a jurisdiction where there is such a strong and cooperative relationship between the bench and the bar.
FROM THE BENCH
UPDATE FROM THE COURTS: COURT OF QUEEN’S BENCH THE HONOURABLE MARTEL D. POPESCUL || CHIEF JUSTICE OF THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN
he Chief Justice reported that the Court of Queen’s Bench, as a Court, is ably performing its judicial functions notwithstanding an increased workload and several unfilled judicial positions. There are 33 Queen’s Bench Justice positions in Saskatchewan. In addition, there are 11 supernumerary Justices who contribute to the Court by sitting on a part-time basis. Currently, there are three (3) vacancies on the Court. The vacancies are in the Judicial Centres of Battleford, Saskatoon and Regina (Family Law Division). Three or four more vacancies are expected in the next few months. Although the Court is coping with judicial complement shortages, the Chief Justice expressed his concern about the fact that the Judicial Advisory Committee (JAC) for Saskatchewan has not yet been constituted. On October 20, 2016, the then existing JAC was decommissioned and the existing list of vetted judicial candidates was vacated.
the Court of Queen’s Bench has, with some considerable difficulty, been able to manage. Yesterday, the final report of the Standing Senate Committee on Legal and Constitutional Affairs was released. The document entitled “Delaying Justice is Denying Justice” contains a number of recommendations. Recommendations 16 and 17 are of particular interest. They are as follows: Recommendation 16 - The committee recommends that the Minister of Justice complete the process of nominating the remaining members for the Judicial Advisory Committees without further delay and provide them with the training and support they need to allow them to review applications and make recommendations for judicial appointments to the Minister. Recommendation 17 - The committee recommends that Superior Court Judges be appointed on the day of a known retirement of a Judge and the only exceptions to this immediate replacement would
Unfortunately, for reasons not made clear, the federal government has not yet appointed members to the Saskatchewan JAC. There are 17 JACs in Canada, nine of which have been constituted, eight, including Saskatchewan, have not been. As a result there currently is no pool of candidates from which the government can appoint judges to the Court of Queen’s Bench. Needless to say, there can be no judicial appointments until the JACs are up and running and have had an opportunity to meet to do their work. Even once the JACs are functioning it does take time for the appointment process to take place. Notwithstanding these judicial vacancies and the pressures placed on the court system by
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be an unexpected death or unexpected early retirement of a sitting judge.
The Chief Justice indicated that he wholeheartedly supports these two basic and common sense recommendations. Last year the Chief Justice challenged lawyers to develop innovative practices that respond to access to justice concerns. The trick is to deliver effective, efficient and measured legal services that add value to the process, while still resolving disputes in a principled fashion. At that time he commented that many of the “tools” made available to counsel in the new Queen’s Bench Rules were not being fully utilized. The Chief Justice commented that he has noticed an increase in the use of many of the new initiatives set forth in the “new” Rules. In particular he has seen an increased use of case conferencing (Rule 4-4), case management requests (Rule 4 5) and summary judgment applications (Rule 7-2). He complimented the Bar on the many innovative ways that cases are being moved forward. Lawyers should constantly be thinking how to make the processes available to them work to their advantage, rather than lamenting that things do not work the way they should. The Chief Justice reminded the Bar about the existence of General Practice Directive #7, which sets forth the protocol respecting Chambers adjournments: Consent Adjournments 1.
Where all parties involved in an application have consented to adjourn a matter scheduled for chambers, appropriate notice of the request to adjourn by consent pursuant to Rule 6-16(1), must be provided to the local registrar as soon as possible, and in any event, no later than 4:00 p.m. on the:
a) Thursday preceding Monday chambers; b) Friday preceding Tuesday chambers; c) Monday preceding Wednesday chambers; d) Tuesday preceding Thursday chambers; or e) Wednesday preceding Friday chambers. 2. Where appropriate notice of the request to adjourn by consent is received in
accordance with the time set out in paragraph 1, the local registrar shall adjourn the matter to the date agreed upon and no party will be required to attend chambers to speak to the adjournment unless the presiding Judge otherwise directs. 3. Where appropriate notice of the request to adjourn by consent is not received by the local registrar in accordance with the time set out in paragraph 1, the parties must: a) notify the local registrar as soon as possible that a request to adjourn the matter will be made; and b) attend chambers to speak to the adjournment unless the presiding Judge otherwise directs. 4. Pursuant to Rule 6-16, “appropriate notice of the request to adjourn by consent” means a written request to adjourn signed by all parties involved in the application (or their lawyers or agents), unless the local registrar considers it appropriate to accept an oral consent. Adjournment Requests without Consent 5. Any party seeking to adjourn a matter scheduled for chambers, without the consent of all parties involved in the application must, as soon as possible: a) advise the local registrar of their intention to seek an adjournment; and b) whenever possible, serve and file a written explanation of the reasons for seeking an adjournment and, if known, the reasons why consent from the other parties involved in the application has not been provided.
Failure to follow Practice Directive GA-PD #7 causes frustration for judges because it often results in the chambers judge spending valuable time reading, researching and preparing for an application that the parties know will not proceed. Not only is this impolite and disrespectful, it is a poor use of scarce judicial resources.
FROM THE BENCH
The Court has a number of committees that recommend changes to practice and procedure. This results in changes to our Rules, Practice Directives and Administrative Notices. The Criminal Practice Committee has been particularly busy recently and a number of Criminal Practice Directives have been issued. The changes are not changes for the sake of change, but are a response to the need to clarify and streamline processes in the interests of fairness and justice. All Practice Directives and Administrative Notices are posted on the Courtâ€™s website.
reactions in a time of fiscal restraint and carefully move through the minefield picking out the good ideas and leaving behind the bad ones.
The Chief Justice commented that he sees a tidal wave of change on the horizon. Some of it is good and some of it may not be. Questions relating to such things as the elimination of preliminary inquiries, the licensing of paralegals, mandatory mediation for family law disputes and other such hot topics will require careful thought and consideration. It is incumbent on leaders in the legal profession and organizations such as the CBA to resist knee-jerk
In closing, the Chief Justice thanked the organizers for inviting him to address the members and expressed the hope that he would be invited back next year.
He thanked the CBA on behalf of all judges for speaking up for judges in situations where it is appropriate or where, due to judicial restraint, judges are unable to speak on their own. Judicial independence and the rule of law are cornerstones of our democracy and these concepts cannot be taken for granted.
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UPDATE FROM THE COURTS: PROVINCIAL COURT THE HONOURABLE JAMES A. PLEMEL || CHEIF JUDGE OF SASKATCHEWAN
et me begin by thanking the Saskatchewan Branch of the Canadian Bar Association for your invitation to join you today. Judges of the Provincial Court of Saskatchewan are very appreciative of the role the CBA plays in educating the public about the importance of an independent judiciary and the rule of law. I will speak briefly today about our Court including our workload, our judicial complement and other matters which may be of interest. The increase in the number of adult persons charged federally, which we saw in 2015, continued through 2016, as did the number of adult appearances and charges. Federal for the most part means Criminal Code and Controlled Drugs and Substance Act Charges. Between 2010 and 2014 our court dealt with about 80,000 such charges each year. However it jumped to well over 86,000 in 2015 and well over 94,000 in 2016. These numbers for adults relate to over 38,700 accused in 2015, increasing to over 40,100 in 2016. When I say accused, that does not mean that number of persons, since some persons are accused more than once. On a positive note the number of youth charged and the number of charges they face has been coming down over the years. For example in 2016 there were just over 5,600 accused youth compared to over 7,600 in 2011. We have 49 full time judges. We sit in 13 permanent court locations as well as about 60 circuit points where we hold court in facilities such as community halls or band halls. We also have approximately 20 active temporary judges. These are judges who have retired from full time duty but sit when urgently required to meet the business needs of the court. We are fortunate to have a history of timely appointments to our bench and this assists in managing our workload and keeping our delay time to trial within reason.
We have had 7 new appointments to our bench since I was sworn in as Chief Judge on January 1, 2015 and 4 since I addressed you in June of 2016. Judge Daryl Rayner – November 24, 2016 to Moose Jaw Judge Marilyn Penner – January 12, 2017 to Saskatoon Judge Donna Taylor – March 8, 2017 to Yorkton Judge Michelle Baldwin – June 8, 2017, to Meadow Lake Retirements and effective dates: Judge Singer – December 1, 2016 Judge Gordon – February 1, 2017 Judge Toth – March 1, 2017 Judge Snell – June 1, 2017 Pending Retirements Judge Bird – August 1, 2017 Judge Loewen – August 1, 2017 Judge Reis was transferred from Yorkton to Regina to replace Judge Toth. As I mentioned, timely appointments have helped us avoid some of the problems which plague some other provinces where trial delay is at a crisis stage. We publish our Next Available Trial Dates on our website and there you will see that, in some locations, there is minimal delay and you may be offered a trial date within two months or even less. Often lawyers and accused are not ready within that short a time period. More likely, you will be offered a trial date within the next three to seven months with early dates usually made available if an accused is in custody or if there are other special considerations. There are some locations, especially in the Northwest part of the province, including Meadow Lake, Loon Lake, Buffalo Narrows and La Loche, where we have significant delay issues which we are trying to address. I recently learned that we had two cases which were dismissed in our Court for unreasonable delay, since the SCC decision of R v Jordan in July 2016. You will recall
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that case established a new framework to determine what it means to have a trial within a reasonable time as guaranteed by the Canadian Charter of Rights and Freedoms. That is two cases too many, in my opinion. It is a failure of the system when cases have to be dismissed because we did not get to them in time. As a result of the Jordan decision, at the docket stage judges will now likely require more explanations on the record for multiple adjournment requests and more requests may be denied. More cases are also being case managed well before the dates set, increasing the chance that resolutions will be reached in advance and valuable trial time will not be wasted. Of course this requires Crown Prosecutors and Defence lawyers to play their part and not be complacent in managing their files. Another difference the criminal bar may see in our courtrooms is an increase in video court. Many of our centres handle almost all bail hearings with the accused appearing in court via video link from a correctional centre. In 2016 the monetary limit of our jurisdiction increased from $20,000 to $30,000 exclusive of prejudgment interest and costs. With a larger monetary claim comes increased complexity and longer trials and more protracted case management. The Civil Justice Committee of our Court feels that the consultation process, which was followed in amending the Act, and is now being followed in implementing regulations, is useful and will be beneficial to litigants and the Court. From time to time we will increase or decrease the number of days we go to a circuit point, or even close a court point. This spring as part of that review we announced the closure of four circuit points namely Big River, Carnduff, Watrous and Southey. In closing those points we considered a number of factors. Low volumes played a significant role in deciding to close Big River, Carnduff and Watrous. In the case of Southey a major consideration was its proximity to Regina. We felt we could easily absorb the cases from Southey in our Regina courthouse. Other factors were also considered. There has been an increased interest in municipal policing and bylaw enforcement in a number of communities. Some communities are hiring Bylaw Enforcement Officers or Community Safety Officers, 40 BARNOTES
with authority to enforce bylaws. On occasion I‘ve discussed this with Court Services officials and the Supervising Justice of the Peace because the interest in bylaw enforcement has resource implications for our Court. At present where there is not a stand-alone bylaw court, bylaw ticket matters will continue to come into our Provincial Court dockets. We can only absorb these until they negatively affect our ability to deal with our regular caseload. Saskatoon, Prince Albert, Regina, Assiniboia and Lloydminster currently have Bylaw Courts presided over by Justices of the Peace, rather than Judges of our Court. I expect we will see more as our own workload increases in Criminal and Civil matters and as municipalities increase their bylaw enforcement capacity. We have a disproportionate number of indigenous victims and accused in our systems. This is one of the most pressing issues in our courts in Saskatchewan. I urge all of you to keep educating yourselves on the topic. Read the Truth and Reconciliation Report’s calls to Action, the Gladue and Ipeellee decisions of the Supreme Court of Canada as well as cases from Saskatchewan Courts including R v Whitehead, R v Slippery and R v Chanalaquay from our Court of Appeal. Lawyers should think about how to apply what is said in those cases and materials when they represent aboriginal people in our Court or interact with people from Indigenous Communities. There are specific references in the TRC to communities in Saskatchewan including Kamsack, Gordon’s, Beauval, Prince Albert, Qu’Appelle, Round Lake, Lebret and Onion Lake. There is also a reference to the power of ceremony stating that ceremonies reach across the cultures to bridge the divide between Aboriginal and non-Aboriginal communities. I urge you to attend aboriginal events when they are open to the public, or when you are invited. Also, let’s continue to invite indigenous people to our ceremonies. Those are my comments. Once again, thank you for inviting me here this afternoon. I appreciate the opportunity to meet with you.
INTRODUCING LAWYERS FINANCIAL The Canadian Bar Insurance Association (CBIA) has launched a new brand – Lawyers Financial. Lawyers Financial is a trade mark of CBIA. CBIA is a not-forprofit insurance and financial association dedicated to providing high quality financial solutions designed specifically for and available exclusively to members of the legal community including lawyers, their families and employees. The new brand follows the amalgamation of CBA Financial Services Corporation (CBAF) with CBIA in late 2016. Prior to the amalgamation, CBAF offered investment products and CBIA offered insurance products; now, all products are available under the Lawyers Financial brand.
suite of products through local Lawyers Financial advisors who have a deep knowledge of the financial needs of the legal community. CBA members also receive an exclusive, additional discount of 0.40% off already low investment management fees for our investment fund products. Connect with your local advisor, Murray Alberts at email@example.com or 306-244-3782 or visit www. lawyersfinancial.ca.
“We believe the time is right for an updated look and approach that better reflects who we are and what we offer, says Henry Kugler, President and CEO of CBIA. “What haven’t changed are our core values and absolute commitment to providing exceptional value to the legal community.” Members of the CBA enjoy unique access to the full
INCOMING BOARD OF DIRECTORS The incoming CBA Board of Directors was announced in May 2017. The new board will commence its mandate on September 1, 2017, and is composted of one member from each province and territory, plus the CBA President. Your 2017-2018 Board of Directors includes: Kerry Simmons, QC - President Nabeel Peermohamed - Alberta Chandran Sabharwa - British Columbia Dean Scaletta - Manitoba René Basque, QC - New Brunswick Twila Eileen Reid - Newfoundland & Labrador Raymond Adlington - Nova Scotia Stephen Mansell - Nunavut
Vivene Salmon - Ontario Nancy Birt, QC - Prince Edward Island Marie Laure Leclercq - Quebec Jeff Howe - Saskatchewan Thomas Ullyett - Yukon The candidate for the Northwest Territories withdrew prior to the election of the Board. A call for applications was issued in early May, and the new candidate will announce shortly. For more information on the incoming Board of Directors, visit http://www.cba.org/WhoWe-Are/ Governance/Elections/Incoming-Board.
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THE WILLMS & SHIER ENVIRONMENTAL MOOT TAYLOR-ANNE YEE, KRISTA COSSAR & SARAH NORDIN || COLLEGE OF LAW STUDENTS
or the 2016 - 2017 Willms & Shier Environmental Moot Competition, Taylor-Anne Yee, Krista Cossar and Sarah Nordin represented the University of Saskatchewan, College of Law. The moot this year was on March 4th, with the competition taking place in the historic Osgoode Hall in downtown Toronto. The whole experience was a whirlwind of practicing, competing and celebrating! The moot problem revolved around two private corporate parties. One party, Thorco Contracting Ltd. and Mr. Thordarson, had been on the land for several decades, storing various kinds of waste. A textile company, Midwest Properties Ltd., purchased the neighbouring property, and soon discovered petroleum hydrocarbons (PHCs) in the soil, which came from Mr. Thordarson’s facilities. Evidence at trial showed Mr. Thordarson’s history of noncompliance with the Ministry of Environment’s certificates and orders.
compensation for the contaminated land. The Trial Judge rejected all of Midwest’s claims, including actions in negligence, nuisance, and Ontario’s Environmental Protection Act (EPA), specifically, s. 99(2). The Trial Judge found actual harm was a requirement for all civil claims, but found no evidence of damage to sustain these claims. On appeal, the Court reversed the decision, awarding both punitive damages and compensation under s. 99(2). Mr. Thordarson applied for leave to appeal to the Supreme Court of Canada, but was unsuccessful. “
Midwest then brought several claims against Mr. Thordarson in an attempt to get remedial
The moot competition focused on s. 99(2) of the EPA. Few cases have applied s. 99(2) specifically, and this case presented the interesting opportunity to further develop the court’s understanding of civil claims under a province’s statute. Not only that, but the problem provided an abundance of interesting issues for the students to grapple with for the moot. The environmental moot is unique because the oralists must argue both sides of the problem, which required a special kind of mental preparation and concentration. Fortunately, the team had plenty of practice to help get them into the habit of arguing for both sides. It was a great learning opportunity to identify flaws in our own argument and to simultaneously try to find counter-arguments to
those flaws. We were extremely fortunate to have an abundance of individuals from the legal community to give us their expertise, insight and ask some pretty tough questions!
3) Guide the judge to make a decision that respects the judicial system -- when they ask questions, they are expressing a concern. Strong answers address that concern; 4) Every judge is different and you will not please everyone -- choose an advocacy style you are comfortable with; 5) A strong workable framework and theme will boost your confidence and make you more persuasive; and 6) Memorize the facts, and when you think you have them memorized, review them again. Know the facts from every perspective, forwards and backwards.
We want to extend a huge thank you to all of our practice judges, and especially to our coach, Leah Howie, who supported us every step along the way. We would also like to thank the generous funders that made our participation in the moot possible. On the morning of the competition, Sarah and Krista argued for the respondents, Midwest, and then after a short break, were set to argue for. Mr. Thordarson, the appellant, against a different team. The team received positive feedback about their ability to answer questions, frame the issues within the party’s position, and build rapport with the bench. Although the team did not pass the preliminaries, they enjoyed watching the semi-finals and finals. Every mooter was clearly well-prepared, hardworking, and intelligent. Judges gave great advice on advocacy and many of the competitors displayed strong advocacy skills. From this, we gleaned many invaluable lessons: 1) Focus on the strongest points of your argument: what fact, statute, or common law principle does the case turn on? A few well delivered arguments are superior to covering every possible argument;
2018 MID-WINTER MEETING FEBRUARY 1 – 2, 2018 |
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2) Address questions quickly, confidently, and succinctly (fight against the urge to over-explain when a simple “Yes” or “No” suffices!);
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POSTCARD FROM A LAWYER
PEAKING EARLY MIKE OCHS || WMCZ LAWYERS
ell...Everyone’s gotta make a living,” the waitress said. Waitresses in Ottawa aren’t impressed when you tell them you’re in town for a Supreme Court appearance. They retreat to the kitchen, look up yesterday’s case on the Court’s Twitter page, and judge you based on its subject matter. Given how many lawyers they undoubtedly meet, perhaps I can’t blame them. I went to Ottawa in February of this year with Karl Roemer and Mark Vanstone. The former is a second year call (and a year my senior); the latter is our boss, tasked with convincing the Court our by right criminal case had some merit. And we thought it did. We spent hours considering every possible path the arguments might take. Who will the panel be? What questions will we hear? If the Court asks X, can we say Y? What are we going to do if they want to talk about that thing? The hours we spent around boardroom and kitchen tables will more than likely go down as the most fun I’ll ever have at work. But they weren’t enough. The Justices, of course, honed in on precisely the issues we wished to avoid. That’s what they do. Mr. Justice Brown, in particular, was unrelenting. Mark did his very best. Yes, but… I appreciate that, Mr. Justice Brown, but… Our submission is that, when you look at the witness’s testimony in its entirety… It was no use. The lone question we received from Madame Justice Cote was likely a lifeline. With our time at the microphone dwindling, it was kind of her to try and change the subject. Watching the arguments from the counsel table, I was relieved that it was Mark up there doing such an admirable job weathering
the storm. I was also, however, very, very jealous. It looked like a hell of a lot of fun. “I’m sorry, Mr. Vanstone, you’ve said everything you could on behalf of your client, but…”. No surprise there. After the beating Mark skillfully endured in argument, Justice Karakatsanis’ reassurance – which she also offered to the losing side the previous day – did little to ease the pain. Three hundred plus hours of work reduced to thirty minutes of argument and an immediate defeat. I did my best to put on a smile for post-Supreme Court pictures (failing miserably, as you can see), changed out of my gown, and endured a long, cold walk back to the hotel. Scotch. When we arrived in Ottawa, Karl and I purchased a very nice bottle. Win or lose, we thought, we should celebrate our efforts, the extraordinary opportunity, and enjoy the trip. And we did. The day after arguments, having never been to Ottawa before, I roamed the streets like a tourist. I ate some very fine ramen after waiting
POSTCARD FROM A LAWYER
in line at a place called Santosei. I sought coffee and pints. The night after the court appearance, I met up with Karl and a friend for a very tasty dinner at a Bank Street restaurant called Fauna. Try the chicken-fried octopus and the pork cheeks. I’m a lucky guy. As an articling student, I got to work on an appeal that earned a dissent from our Court of Appeal. Then, as a first year lawyer, I got to help take that case to the highest court in the land. I am very aware these aren’t normal experiences for young lawyers and I could not be more grateful for the experience. I think I can speak for Karl when I say that neither of us felt particularly worthy of the opportunity to put on a gown and sit at that table. We are, in spite of the result, very proud to say we’ve been there and cognizant of the fact we aren’t likely to return, largely because we both aspire to be corporate lawyers. Everyone’s gotta make a living .
Online registration for the CBA Legal Directory and Legal Directory with Day Planner is now open. Shipping date is early October 2017. Visit www.cbasask.org. MOVED OFFICES OR CHANGED JOBS? Make sure you're accurately listed in the Legal Directory. Send your updated information to firstname.lastname@example.org.
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Warren Dueck FCPA, FCA, CPA (WA) Lori Lui CPA, CGA Steven Flynn CPA, CA, CPA (WA) Candace Doig CPA, CA, CPA (IL)
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SUMMER 2017 45
Reward your success. Mercedes-Benz Corporate Sales is proud to continue a strong partnership with all Canadian Bar Association members. Receive a special incentive on the new 2017 GLC Coupe, which combines the seductive power of a sports coupe with the capabilities of an SUV. This competitive offer reflects our commitment to providing the best ownership experience to CBA members. See additional details at mercedes-benz.ca/cba
© 2017 Mercedes-Benz Canada Inc. 46 BARNOTES
CALENDAR OF EVENTS August 16, 2017 August 17, 2017 August 18, 2017 September 28, 2017 September 28, 2017 October 3, 2017 November 1, 2017 November 15, 2017 December 15, 2017 December 15, 2017 January 24, 2018 February 1, 2018 February 1-2, 2018 April 14, 2018 April 16, 2018 April 2018 June 13, 2018 June 14, 2018
2016-2017 CBA Board of Directors Meeting Montreal CBA Annual Meeting Montreal 2017-2018 Board of Directors Meetings Montreal RIGHT TO KNOW DAY Annual Wine & Cheese Welcome Reception at the College of Law Saskatoon NOMINATION DEADLINE: QC Saskatchewan Law Firm Showcase Saskatoon NOMINATION DEADLINE: DISTINGUISHED SERVICE AWARD NOMINATION DEADLINE: BRANCH TREASURER NOMINATION DEADLINE: ELECTED MEMBERS OF COUNCIL Mock Interviews at College of Law Saskatoon Council Regina MID-WINTER MEETING Regina Law Day Mock Trial Saskatoon NOMINATION DEADLINE: COMMUNITY SERVICE AWARD LAW DAY President’s Dinner Saskatoon (TBC) ANNUAL MEETING Saskatoon
Don’t forget to register for Sections! Sign up online at www.cbasask.org Section activity begins mid-late September or early October and continues until May 2018. Remember Sections qualify as an “Accredited CPD Activity” under the Law Society’s CPD Policy! For more information on the Policy check out http://www.lawsociety.sk.ca/continuingprofessional-development/cpd-program/policy.aspx
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: email@example.com.
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SUMMER 2017 47
E V I D E N C E FIND THE DIG ITAL TRU TH
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sasktel.com/digitalforensics 48 BARNOTES