BarNotes Summer 2020

THE CANADIAN BAR ASSOCIATION • SASKATCHEWAN BRANCH

SUMMER 2020

VOL. 34.1

Section Registration Open | Order your Legal Directory at www.cbasask.org

IN THIS ISSUE

The Canadian Bar Association Saskatchewan Branch 305, 135-21st Street East Saskatoon SK S7K 0B4 www.cbasask.org

BARNOTES Editorial Board

FEATURE COMMENTARY

HANNAH ZIP Editor CLYDE DROVER Neil Law Office

14 The Indigenous Law Centre

NICOLE HAMM Olive Waller Zinkham Waller LLP

17 Reconciliation in

LEAH HOWIE Law Reform Commission of Saskatchewan

Saskatchewan: An Indigenous Perspective

TONYA LAMBERT Koskie Law FOLUKE LAOSEBIKAN, PH.D F L K Law Firm

BRANCH NEWS 3

Editor's Notes

3

President's Message

5

President's Welcome

COMMENTARY 7

The Opportunity of The Black Lives Matter Moment

8

The Necessity of Conditional Sentences to Achieve Substantive Equality

11

Tax Litigation 101: Taxpayer Relief and Other Equitable Remedies

FROM THE BENCH 22

Profile of Judge Michelle Marquette

PRO BONO SPOTLIGHT 25

The Importance of Pro Bono Law Saskatchewan (PBLS)

U of S Law Students and The Pandemic

CHINA: A Wonder

13

The Challenges of Deploying Small Modular Nuclear Reactors in Saskatchewan

18

Things to Consider When Witnessing Documents

by Virtual Means

ITEMS OF INTEREST

Working From Home

Advertiser Index

31

Calendar of Events

31

21

2 BARNOTES

JAMES STEELE Robertson Stromberg LLP

LAYOUT & DESIGN Katrina Forgrave Graphic Designer

POSTCARDS FROM THE EDGE 29

AMJAD MURABIT Saskatchewan Human Rights Commission

MONTEEN DENT Executive Director CBA Saskatchewan

STUDENT HUB 27

CHRISTINE LIBNER Stevenson Hood Beaubier Thornton LLP

BarNotes is a publication of CBA Saskatchewan which is published 2 times a year. This publication is intended for information purposes only and should not be applied to specific fact circumstances without the advice of counsel.

CBA Saskatchewan represents more than 1,100 members and is dedicated to improving access to justice, reviewing legislation and advancing the administration of justice.

Contact Monteen Dent, monteen@ cbasask.org for information on advertising. © CBA Saskatchewan 305,135 – 21st Street East Saskatoon, SK S7K 0B4 www.cbasask.org

EDITOR’S NOTES

EDITOR'S NOTES HANNAH ZIP

LETTERS TO THE EDITOR hannahzip@gmail.com

I think it is safe to say that we are all feeling fatigued from the endless Zoom meetings, and that our time would be well spent enjoying this latest issue of BarNotes instead.

Given the pandemic, the BarNotes editorial committee made the decision to delay the release of this publication to the fall, to ensure that we included relevant content regarding COVID-19 and its impact on the practice of law thus far.

On behalf of the Law Reform Commission of Saskatchewan, I would like to highlight that they will be posting two consultation reports this fall. The first is on reform of The Contributory Negligence Act. The second contains tentative recommendations for Saskatchewan to adopt the Uniform Reviewable Transactions Act. The Commission welcomes input from the bar on both projects. The consultation reports can be found on the Commission’s website: lawreformcommission.sk.ca/.

an update on the Indigenous Law Centre, our feature commentary, to witnessing documents by virtual means, there is something for everyone to enjoy in this issue, and I think we can all use some enjoyment in our lives right now.

This is a very special issue of BarNotes, and one that we are quite proud of, as the articles included are both topical and informative. From

PRESIDENT'S MESSAGE LORELEY CHEKAY Q.C. SASKATCHEWAN GOVERNMENT INSURANCE

Well what a year! I am so grateful for having had the privilege to serve as your President this past year. We have all lived through new experiences none of us would have envisioned.

And we will all come out of this time with new skills, experiences and a changed legal profession.

I want to take this opportunity to thank my colleagues on the Board of Directors for the Saskatchewan Branch including our wonderful

staff. We have had some interesting debates and experiences which illustrates the diversity of practice and background that makes our legal profession so strong in this province.

Each of you have worked tirelessly to improve the member experience and I thank you for this.

With in-person activities coming to a sudden end in March, our Section leaders stepped up to the plate and provided some amazing webinars allowing us to broaden our knowledge. As we move forward, Sections will continue to provide virtual education and opportunities to interact with each other. This will allow each of us to access Sections we may never have been able to

before due to geographical location.

So everyone, take the opportunity to broaden your legal knowledge and meet new colleagues.

Thank you to all our volunteers, our organization cannot serve its purpose without you. Your time and commitment are invaluable. CBA SK can support initiatives, provide consultations and advocate on behalf of the profession only with your dedication. Please keep volunteering and encourage your colleagues and legal friends.

This past year saw CBASK address several key and new priorities, including

SUMMER 2020 3

CHOOSE A PARTNER WITH A TRACK RECORD Our record shows that while we are a front runner, we choose to be part of a team, partnering with legal professionals in a winning combination.

We do not support programs that reduce or eliminate your role in real estate transactions. Instead, we focus on providing you with industry-leading title insurance coverage backed by underwriting expertise, innovative solutions and financial strength.

We know that how we work with our clients is the basis for a solid partnership. That’s why service is the foundation of our business and integrity, the keystone in all our dealings.

To learn more, contact Christine Bakke at (306) 370-9330 or christine.bakke@stewart.com.

www.stewart.ca

Š 2020 Stewart. All rights reserved.

See policies for full terms and conditions.

4 BARNOTES

BRANCH NEWS

PRESIDENT'S WELCOME • Identifying and implementing initiatives to respond to the Calls to Action as outlined in the Truth and Reconciliation Commission Report. The Branch will continue to work diligently on this priority.

• Bringing the discussion about mental health to the everyday conversation. Our profession has often stayed too silent on this topic.

We all need to keep this topic in the forefront of our minds. Especially now, as we all face many unknowns and additional unforeseen stresses as we continue our journey through these unprecedented times. The Branch has been fortunate to have several lawyers speak at conferences and webinars about their personal struggles, bringing this topic into the mainstream. So please, take care of yourselves and each other. Ask the questions, be there to listen, offer support. We all need support, so let’s be there for each other.

• Supporting the initiatives of the Courts in their response to COVID through consultation and member feedback.

And finally, to Christopher Weitzel, incoming President, my colleague and friend, you’ve got this! Your year as President will be very different than any other before. Seize the moment and opportunities that these times present for innovation and creativity. The Board is here to support you in delivering valuable services to our members and the legal profession.

Thank you everyone, and let’s have a great 2020-21 year.

CHRIS WEITZEL SASKATCHEWAN GOVERNMENT INSURANCE cweitzel@sgi.sk.ca 306-775-6432

I am extremely excited to be your president this year. I want to thank Loreley as now past president for her great work this last year, it has been a pleasure learning from her. I know I have big shoes to fill. I am fortunate to be joined by Reché McKeague, Jana Linner, Loreley Chekay, Kathryn Gilliss, Anna Beatch, James Steele and Monteen Dent, your CBASK Board of Directors.

It has been a very interesting year for all of us and I expect that it will continue for the foreseeable future.

Our day to day life, be it at work or at home, has been significantly changed. It is tough to envision what effect this will have on all our futures. The CBA continues to be here to help.

I truly believe that a CBA membership is an investment in you and your career. It helps you connect with the people, events, knowledge and skills you need for career-long success.

In addition, it has provided me the opportunity to develop meaningful relationships with lawyers here in Saskatchewan and across Canada.

I am particularly proud of the CBA in our dedication to protecting the rule of law, the independence of the judiciary and the Bar, and improving laws, the justice system and access to justice. We believe in equality, diversity and inclusiveness in the

profession and in the justice system, and we are committed to the process of reconciliation with Indigenous Peoples in Canada. Also, the CBA has called on governments and institutions in Canada and beyond to promote equality before and under the law as a fundamental right and denounce all forms of racism.

Continuing with the work that was done last year, one of the priorities continues to be Sections.

Sections provides a valuable opportunity of education, resources and opportunities for all lawyers, regardless of their time at the bar.

I would invite you to check out Section meetings that you find to be interesting and applicable to your work.

If there is anything you’d like to share with me about the CBA, what we do well, what we can improve, or how you can get involved, please call, email or “teams” me, or any Board member. I hope that you and your family stay safe.

cbasask.org SUMMER 2020 5

INVESTMENT & INSURANCE SOLUTIONS Exclusively for the Legal Community

High-value, low-cost financial products designed specifically for lawyers and their families, law firms, their employees and families.

Investments • Investment Funds • Guaranteed Interest Products • Individual & Firm Plans • RRSPs • TFSAs • RRIFs • Non-Registered Accounts • Pensions

Insurance • Life • Critical Illness • Disability/Business Expense • Health & Dental • Employee Benefits • Commercial Office • Home & Auto • Travel

Connect with your local Lawyers Financial advisor Jim Britton 306.596.2934 or j.britton@lawyersfinancial.ca lawyersfinancial.ca Lawyers Financial products and plans are sponsored by The Canadian Bar Insurance Association (CBIA). Lawyers Financial is a trade mark of CBIA.

COMMENTARY

THE OPPORTUNITY OF THE BLACK LIVES MATTER MOMENT BETH BILSON, Q.C. UNIVERSITY OF SASKATCHEWAN

Though it began some years ago as a slogan devised to draw attention to the mounting toll of Black American deaths at the hands of the police, “Black Lives Matter” has more recently become an international touchstone for many people marginalized by their race, ethnic origin or sexual orientation. Despite the restrictions and stresses engendered by a global pandemic, the urgency of the Black Lives Matter message has led to waves of public protests; calls for the redirection of funding for police forces to ameliorate chronic social deficits experienced by marginalized groups; demands for the elimination of historic monuments and memorials tainted by racism and intolerance; and an insistence that it is surely time to listen to the concerns being expressed and to allow those whose frustrations are encapsulated in the Black Lives Matter phrase to speak for themselves.

In Saskatchewan, Indigenous people have caught the spirit of the moment to point, yet again, to the inequities they experience on a daily basis – the disproportionate incarceration rates for Indigenous men, the tragedy of missing and murdered Indigenous women, the failure of Canadian governments to attend to critical gaps in housing, education and services for families.

In a speech given as he left the Saskatchewan legislature after two decades, MLA Greg Brkich lamented the “divisive” implications of the tag Black Lives Matter, and indicated a preference for the term “all lives

matter”. He acknowledged that this formulation has been controversial in the United States as trivializing the matters the Black Lives Matter movement have brought to light. He indicated that he thought the sentiment should not be as problematic in this country. As it turned out, he was wrong about that. The premier, who immediately disowned the statement, has been one of many Canadians who have seen the term as a way of demeaning the claims of the protesters and ensuring that the historic pattern of ignoring these claims continues.

Members of the Black Lives Matter movement are at pains to point out that they are not saying Black lives matter instead of white lives; rather, they are trying to draw attention to the disadvantages suffered by marginalized people because white societies have failed to identify and address those disadvantages; they are underlining a history in which, to use the trenchant wording of a US Twitter group, “Black Lives Didn’t Matter.”

As lawyers, we are, of course, bound to some degree by the structures, conventions and rules of legal institutions that have a lengthy historical pedigree. We have obligations to the courts, to governments and to the web of common law and legislative rules that provide the framework within which we have to operate. On the other hand, these structures and processes are not immutable; as the COVID-19 pandemic, among other things, has shown, our assumptions about how things should be done are open to challenge and to change. Lawyers are trained to identify inconsistencies, unfairness and harm, and in fact are expected to do that. The legal profession has a unique platform for providing a critique of the system, of tempering respect with clear-eyed

analysis of its failures.

The Black Lives Matter current that has swept across western countries provides an opportunity – some would say another opportunity – to refocus on critically important questions of how racism and homophobia infect our social structures, the formation of our public policies and the content and administration of our laws. For the legal profession, it is an opportunity to see these issues in a new way, based on listening carefully to the issues as they are articulated by the people most directly affected, without resorting to our common “lawyers know best” assumptions. In developing our own strategies, we should be asking ourselves questions like the following: • Are we listening carefully enough to what our clients and others are trying to tell us about how they are experiencing the legal system or the social system, or are we following the common pattern for lawyers of leaping to conclusions about what the bottom line is going to be?

• Do we understand that our privilege and position may prevent us from seeing clearly the boundaries that cut us off from the experience of many marginalized people in our society?

• Are we looking for opportunities to nudge our corner of the legal system in a direction that will be more equitable and more aligned with the aspirations of our clients and constituents?

• Do we seek openings to leverage the weight still accorded to the comments of lawyers to influence positive change?

CONTINUED ON PAGE 9

SUMMER 2020 7

COMMENTARY

THE NECESSITY OF CONDITIONAL SENTENCES TO ACHIEVE SUBSTANTIVE EQUALITY BROOKE JOHNSON

Another Harper-era “tough on crime” law has bit the dust.

In 2012, Parliament enacted the Safe Streets and Communities Act (the “Act”), which included the amendment to section 742.1 of the Code to eliminate the availability of a conditional sentence for a broad array of offences.

The accused in R v Sharma, 2020 ONCA 478 (“Sharma”) successfully challenged two of these conditional sentence prohibitions.

The accused was sentenced to seventeen months’ imprisonment after pleading guilty to importing two kilograms of cocaine, contrary to section 6(1) of the Controlled Drugs and Substances Act. At the time of the offence, the accused was a twenty year old single mother to her three year old daughter. She had no prior criminal record. She found herself in desperate financial circumstances and was facing eviction. In an effort to avoid homelessness for herself and her daughter, she agreed to transport cocaine from South America to Canada for her boyfriend in exchange for $20,000. The accused was a member of the Saugeen First Nation and had endured a constellation of Gladue factors. She was characterized by the sentencing judge as an “intergenerational survivor of the government’s residential school effort to eradicate the cultural heritage of her people.”

8 BARNOTES

Despite the sympathetic facts of her case, a conditional sentence was not available to Ms. Sharma due to sections 742.1(c) and 742.1(e)(ii) of the Code. Ms. Sharma appealed her seventeen month custodial sentence and requested that the court strike down sections 742.1(c) and 742.1(e) (ii) of the Code on the basis that they contravene two sections of the Charter: 1) they contravene section 15 of the Charter because their effect is to discriminate against Aboriginal offenders on the basis of race; and 2) they contravene section 7 of the Charter because they are arbitrary and overbroad in relation to their purpose.

The Ontario Court of Appeal decided in a 2-1 majority that legislation which prevented drug traffickers from receiving conditional sentences is unconstitutional. More specifically, the court in Sharma concluded that the prohibition of conditional sentences for offences which carry a maximum penalty of fourteen years or life in prison and offences which include the importation of a drug and have a maximum penalty of ten years imprisonment violate sections 7 and 15 of the Charter and cannot be saved by section 1.

The majority determined that while the intent of the Act is to incarcerate convicted offenders of certain offences, the reality is that the Act will result in more Indigenous offenders serving their sentences in custody rather than in their communities. In enacting the Act, the Parliamentary

debates reveal that no consideration was given to the potential effect of the amendments on Aboriginal offenders.

The majority in Sharma acknowledged that the conditional sentence is a central tool provided to sentencing judges to apply Gladue factors and that by restricting the availability of the conditional sentence, the impugned amendments deprive the court of an important means to redress systemic discrimination against Aboriginal people when considering an appropriate sanction.

Resultantly, sections 742.1(c) and 742.1(e)(ii) were found to be contrary to section 15 of the Charter as the benefit of a conditional sentence is denied in a manner that has the effect of reinforcing, perpetuating, or exacerbating the disadvantage of Aboriginal offenders.

The majority concluded that the impugned provisions of the Code are contrary to section 7 of the Charter because they resulted in the deprivation of the accused’s liberty in a manner that was not in accordance with the principle of fundamental justice of overbreadth. The court concluded that there was no rational connection between the purpose and some of the effects of sections 742.1(c) and 742.1(e)(ii).

The Sharma decision underscores the pivotal importance of tailoring sentences to the situational and contextual reality of individual offenders, rather than to what the maximum sentence is for a given offence. Many offences within the Code have substantial maximum sentences.

However, very few offenders actually receive the maximum

COMMENTARY sentence. This is likely because the maximum sentence of an offence is rarely a measure of the severity of the offence. One’s degree of moral blameworthiness can be committed under a vast array of circumstances.

Because of this, it does not make sense to stymie a sentencing judge’s discretion or blunt an important tool within their sentencing toolkit to determine appropriate sentences for individual offenders with specific and unique circumstances. An appropriate sentence for a specific offender should not be unavailable due to a codified maximum penalty. The Sharma case is a perfect example of this.

Perhaps most importantly, this decision acts as a necessary reminder that Gladue sentencing principles are the aspiration and conditional sentencing is a tool that is provided

to sentencing judges to put the aspirations of Gladue into effect.

The availability of the conditional sentence has the ability to achieve substantive equality to disadvantaged and marginalized offenders and is necessary to achieve the promise of Gladue.

Despite the considerable discussion of Gladue factors within the decision, Sharma does not simply declare sections 742.1(c) and 742.1(e)(ii) of the Code inapplicable only to Aboriginal offenders. Instead Sharma struck down the two provisions entirely. While the Sharma decision is only binding in Ontario courts, it does provide a thorough framework for challenging sections 742.1(c) and 742.1(e)(ii) of the Code in other Canadian jurisdictions.

CONTINUED FROM PAGE 7

• Do we think of what we are doing as a vehicle for social change rather than just a job or a means to our own aggrandizement?

• Are we using our well-developed research skills to examine the roots of disadvantage and inequity?

• Are we thinking creatively about possible ways to reduce inequality rather than writing off all ideas as impractical?

This Black Lives Matter moment has renewed attention to issues that have been raised before, and that have never been adequately addressed. Our protestations that we are going to get around to addressing them eventually have been rightly characterized as lacking credibility and commitment. It is to be hoped that we do not squander another chance to place a higher priority on the calls for justice that are so eloquently being made.

SAVE THE DATE

2021 VIRTUAL MID-WINTER MEETING “STAY WARM - STAY INFORMED” January 26, 27, & 28, 2021

Online 8am to 1pm − Offering concurrent sessions SASKATCHEWAN

SUMMER 2020 9

A SASKATCHEWAN FIRM WITH GLOBAL REACH. McDougall Gauley LLP is a Saskatchewan law firm with a diversified local, provincial, national, and international practice. Since 1891, McDougall Gauley has served the legal needs of domestic and international financial institutions, insurance companies, individuals in business, government, law and finance, as well as, local, national and multinational corporations.

DIVERSIFIED EXPERIENCE With over 80 legal professionals, we provide counsel with the skills and resources to deliver the widest range of legal services to our clients.

McDougall Gauley offers legal services in English and French.

MCDOUGALLGAULEY.COM REGINA (306) 757-1641 • SASKATOON (306) 653-1212

10 BARNOTES

Building, buying, selling, refinancing?

Our real estate team can help.

Starting or expanding your business?

Let us help you work through the details.

Class Action. Insurance. Commercial. Estate.

Contact our experienced litigation team today.

Family Law. Mediation. Collaborative Resolution.

Our family law lawyers provide trusted, solutionfocussed advice.

What will your legacy be?

Meet with a wills & estates lawyer today.

COMMENTARY

TAX LITIGATION 101: TAXPAYER RELIEF AND OTHER EQUITABLE REMEDIES AMANDA S.A. DOUCETTE STEVENSON HOOD THORNTON BEAUBIER LLP

LAUREN E. SCHARFSTEIN STEVENSON HOOD THORNTON BEAUBIER LLP

This is the last article of a series of 3 articles on the topic of tax litigation. In Part 1 of the Series, we discussed filing objections and appeals with Canada Revenue Agency, and in Part 2 of the Series, we discussed various issues relating to collection of taxes.

If a taxpayer disagrees with the content of his or her Notice of Assessment/ Reassessment, the typical remedy is to file a Notice of Objection with Canada Revenue Agency (“CRA”).

However, if the taxpayer’s dispute is with respect to the imposition of interest, and/or if the taxpayer cannot pay the amount owing, and/or if the assessment/reassessment is the result of a mistake or error, other remedies should be considered.

Taxpayer Relief The Minister of National Revenue (“MNR”) has the legislative authority to grant relief to a taxpayer from tax, interest and penalties in four key circumstances: 1. Waiving or cancelling of penalties and interest; 2. Extending a filing due date for elections; 3. Authorizing a refund of tax to an

individual even though a return is filed past the statute-barred period; and

4. Authorizing a reassessment or redetermination for an individual past the three-year reassessment period, where the adjustment would result in a refund or reduction in the amount payable.

The forms of relief mentioned above are subject to the discretion of the MNR. An application must be made within 10 years of the relevant tax year in which relief is sought. The MNR may grant relief from penalties and interest in any of the following circumstances: (a) Extraordinary circumstances beyond the taxpayer’s control (ex: natural disaster or serious accident or illness to the taxpayer); (b) Actions of the CRA that contributed or impacted the penalties/interest; or (c) Inability to pay or financial hardship1.

A taxpayer’s application for relief from penalties and interest should be made using Form RC4288 (and Form RC376 if financial hardship is argued).

In determining whether relief is merited, the MNR will consider the taxpayer’s history of tax compliance and knowledge of the balance and accrual of interest, and whether the taxpayer acted quickly to remedy the matter.

Rectification and Rescission If the assessed amount is otherwise correct but is disputed because there is an error/mistake in the underlying legal documentation or transaction, then consideration should be given as to the applicability of the equitable

remedies of rescission.

rectification

and

Rectification is an equitable remedy granted by the superior court of each province. This remedy is utilized when there is a legal document that does not match the original intention of the parties. If rectification is granted, the legal document is amended retroactive to the date of the original document. The following evidence is required (at a minimum) to make such an application: (1) proof of the original intention of the parties; (2) an admission from the person who made the mistake; and (3) an underlying legal document that can be amended.

Rescission is also an equitable remedy granted by the superior court of each province. This remedy allows a transaction to be retroactively cancelled, annulled or set aside. An application for rescission requires: (1) a mistake; and (2) evidence that the mistake is of sufficient gravity that it would be unconscionable, unjust or unfair to leave it uncorrected. If rescission is granted, the transaction or document at issue is cancelled and the parties are returned to their precontract positions.

The scope of rectification was narrowed significantly following the release of the Supreme Court of Canada’s decision in Fairmont Hotels2 and Jean Coutu3. At one extreme, it has been suggested that rectification can only be used to fix clerical errors.

Similarly, there was speculation that the scope of rescission had also been narrowed. However, recent case law in British Columbia suggests that rectification and rescission may still be available in broader circumstances.4

SUMMER 2020 11

COMMENTARY

Remission Orders Remission orders are issued by the Governor in Council, pursuant to the Financial Administration Act5. This is one of the only ways to obtain relief from payment of underlying income taxes and goods and services taxes that are otherwise owing. In addition, remission orders can sometimes include interest and penalty relief.

Very little has been published on the topic of remission orders.6 When seeking relief from in connection with tax debt, an applicant is required to fit within one of the categories set out by CRA in its “Remission Guide”, namely: (1) extreme hardship; (2) financial setback coupled with extenuating factors; (3) incorrect action or advice on the part of CRA officials; or (4) unintended results of the legislation. The process for requesting a remission order is very informal and can be completed

12 BARNOTES

without the use of any prescribed forms. Commentary on these orders suggests that a remission application should be a last resort and should not be sought if one of the other remedies is available in the circumstances.

As set out above, taxpayer relief is only available for a 10-year period, and only extends to relief from penalties and interest. Therefore, if a taxpayer is looking for relief from underlying taxes and/or in connection with debt that has been outstanding for over 10 years, an application for remission would be appropriate.

Income Tax Information Circular IC07-1R1 outlines the CRA’s general administrative guidelines applied in determining whether to grant or deny relief. See also ss.

220(3.1) of the Income Tax Act (Canada).

1

2016 SCC 56.

2

2016 SCC 55.

3

See for example, Crean, 2019 BCSC 146, and Collins, 2019 BCSC 1030.

4

R.S.C., 1985, c. F-11, section 23.

5

The most recent comprehensive study on the issue was published in the Dalhousie Law Journal, see: Samuel Singer, “Evaluating Canadian Tax Remission Orders: A Debt Relief Vehicle for Taxpayers” (2019) 42:2 Dal LJ 397. Prior to Mr. Singer’s article, the last comprehensive review of remission orders was completed in 1986 by Arnold and Jeffrey Sherman.

6

COMMENTARY

THE CHALLENGES OF DEPLOYING SMALL MODULAR NUCLEAR REACTORS IN SASKATCHEWAN ANDREW DUSEVIC MACKAY & MCLEAN

Canada is gearing up to become a leading country in the Nuclear industry, with Saskatchewan in the front seat.

On June 24, 2020, the Minister of the Environment, the Honourable Dustin Duncan, announced the creation of the Nuclear Secretariat, an office within the Ministry of the Environment, to coordinate nuclear policy for the deployment of small modular reactors, or “SMRs”. This follows the Memorandum of Understanding Saskatchewan entered into with Ontario, and New Brunswick in December, which aims to develop strategies to deploy SMRs in Canada.

However, there remain many obstacles before Saskatchewan can deploy an SMR of its own.

SMRs take its namesake from their small size and modularity, which decreases construction times and costs, permits mass production, and allows them to be used for a variety of applications not feasible for larger nuclear power plants.

SMRs are particularly alluring for Saskatchewan because they have applications for the natural resource and mining industry, remote communities relying on diesel powered generators, and utilities hoping to increase their power load or offset their carbon emissions. SMRs have the potential to create a big impact in Saskatchewan as the province relies on fossil fuels for approximately 84% of its power, 58% of which is consumed by industry.

SMRs are also claimed to be safer than

larger nuclear power plants because of their inherent safety. Inherent safety refers to the SMR’s ability to avoid nuclear accidents without any electronic feedback or intervention by the operator. For example, in SMRs with a molten-salt reactor, the nuclear reaction slows down as its temperature increases, preventing runaway reactions that lead to meltdowns.

to develop in the area and because SMRs can vary significantly in design, risk and application. For example, SMRs can: (a) rely on different fuel types and create different wastes; (b) be buried, installed on ships, constructed in pre-existing facilities; and (c) be deployed in series. Hence, the level of consultation required may be uncertain and may vary with each design.

However, with all the good that SMRs bring, there are a lot of hurdles they face before they can be deployed.

Nuclear regulations tend to rely on experience for assessing risks.

Canada has relied exclusively on its CANDU reactor for nuclear power generation since the 1950’s, and uses that experience to regulate. However, SMRs deviate significantly from CANDU technology, are complex and incorporate first of kind technologies that bring new and unfamiliar risks.

Impact assessments of SMRs will also pose challenges as Canada recently replaced the Canadian Environmental Assessment Act, 2012 with the Impact Assessment Act (the “IAA”) in August of 2019. Prior to the IAA, the CNSC had the jurisdiction to perform impact assessments for nuclear related activities, as its mandate under the Nuclear Safety and Control Act includes the prevention of unreasonable risks to the environment. However, under the IAA this responsibility is delegated to a review panel, which is only required to include one member from the CNSC. This may result in panels having insufficient experience with the technology, inconsistent assessment decisions and create increased economic risks for proponents trying to deploy an SMR.

Despite that the agency that regulates nuclear activities in Canada, the Canadian Nuclear Safety Commission (the “CNSC”), has been preparing for SMRs over the last several years, there remain significant challenges with regards to risk assessment, licensing, the duty to consult, and environmental impact assessments.

SMRs are capable of being regulated within Canada’s current regulatory framework; however, the licensing process relies heavily on the CNSC’s experience with CANDU reactors. To overcome this issue, Canada will need to incorporate new risk management approaches and gain experience with the technology. Notably, the CNSC has been actively consulting with industry and stakeholders since May 2016 for this very reason.

The duty to consult may also pose challenges as jurisprudence continues

In the upcoming year, the signatories of the MOU are expected to meet and produce a feasibility assessment and strategy for the deployment of SMRs. Proponents of the technology aim to deploy SMRs in Canada within the next decade. In perspective, the typical time to license a traditional nuclear reactor is 9 years. Considering the lack of operational experience and the challenges associated with the technology, industry and government will need to put significant time, effort and resources to meet that goal.

SUMMER 2020 13

FEATURE COMMENTARY

THE INDIGENOUS LAW CENTRE MARILYN POITRAS DIRECTOR, INDIGENOUS LAW CENTRE

The Indigenous Law Centre is undergoing substantial transformation. Our team has been in a dreaming process for several months to vision the best way to Transform Justice by Growing Indigenous Knowledge. We are well on our way.

As we move into our next halfcentury, the Centre is ready to take a new leadership role in legal innovation, to transform law by growing Indigenous knowledge. As the future of law expands to include Indigenous laws and perspectives, new legal forums will emerge and Indigenous laws will be at the centre of the new discipline we now call law. Ancient practices will revitalize stories, traditions and laws which will supplement and transform the current justice model and our traditional knowledge keepers will lead this innovation.

Our strong, almost half-century history of creating access to legal education for Indigenous students and contributing to Aboriginal law with our publication history has driven our team to review and assess where we are and who we are. Our new and growing advisory board includes our Dean, Martin Phillipson, our Cultural Advisor Maria Campbell, former Provincial

14 BARNOTES

Cree Court Judge Gerald Morin and Senator Murray Sinclair, former Chief Commissioner of the Truth and Reconciliation Commission. They, and our highly engaged alumni, are advising where the Centre needs to grow to meet the needs of the next stage of development in Aboriginal law and legal education.

Dean Roger Carter’s original dream was to create access to law schools for Native people. That dream was realized and since the 1970’s this vision has grown. It came to include a variety of legal education programs and creating a space for Aboriginal case commentary, both live and in print. The Centre has educated over 1,750 students, published books and monographs, built an international student exchange experience and, ultimately, played a significant role to pave the way for Aboriginal law as a legal discipline in Canada. Many of our legal warriors have gone on to the bench, to community leadership, to advocate and to lead in politics and education. We salute the alumni who have gone on to create solid structures, like the Indigenous Bar Association whose lawyers have influenced the courts all over Canada. We also honour the past directors and staff who have worked hard to shepherd students, programs, publications and research through the Centre. Carter’s dream was visionary and he can rest well knowing the impact it has had.

The new path for the Centre will lead the growth of Indigenous law by recognizing the foundation of

those laws as coming from natural and spiritual law. Each Indigenous community’s knowledge keepers are our experts in this field. Building on traditional practices, ancestral teachings and working with contemporary issues, we see that justice, environmental relations and social structures will transform and become responsive, in a good way.

The Centre will become a space for bringing those thought leaders and knowledge keepers together to nurture the changes into reality.

We see this work being built with government, the tech sector, health, environmental centres and, of course, the justice system.

We also hear from our alumni and friends in the courts of the need for the recognition and practice of Indigenous law in a much larger space. We are redesigning our programming and our publications to continue to lead and engage in the transformation of laws and the education of legal participants. An expansion of the internationally known Summer Program, with a new Certificate Program, offering credited law courses in Indigenous and Aboriginal law is under way.

Expansion will include a new and exciting journal to advance Indigenous legal learning, teaching styles and language issues, as well as an increase in our publication, virtual legal education and our information footprint. We will also be trained in the keeping or storage of laws, an area that needs much attention and will be a primary focus for us in the

FEATURE COMMENTARY

future as our laws are brought into the light and our processes become mainstream.

We have begun to diversify our work on and off-campus and we are reaching out to our Sister Colleges across the country to build with them a national network of knowledge-sharing and legal supports. We will create new research, curriculum and engaged models of community participation for advancing traditional knowledge and transforming justice. With diversity as a major component of our thinking and working processes, the Centre is reaching out to fully include university partners, experts and community members working on the Indigenous legal issues

pressuring people today. Our goal: to innovate and co-create laws and legal processes with community; laws that are holistic and inclusive, created through a diverse sharing and that are designed to innovate and support, to teach, reinvigorate and embrace a culture of responsibility.

The legal environment globally is shifting into an inclusive space for Indigenous law and Indigenous people. The Cree concept of wahkotowin - our interdependence and interconnectedness, as humans and to the earth - is becoming a concept many more people can relate to and understand. Thus, wahkotowin will play a key role in the creation of new laws in revitalizing the old ones.

We look forward to being involved with this work at the Centre and invite you to join us.

As the world is shapeshifting, the Indigenous Law Centre team sends out our best thoughts and our support to everyone in this time of seclusion and of change and activism.

Be safe. Think of others. Look after yourselves and family, and we are all family.

In Spirit, Marilyn Poitras

NOW ACCEPTING NOMINATIONS Queen’s Counsel Designation

Saskatchewan Branch Treasurer

Distinguished Service Award

Elected Members of Council

October 3

November 15

December 15

December 15

Nomination Forms & Information: cbasask.org

SUMMER 2020 15

MCKERCHER LLP BARRISTERS & SOLICITORS

Saskatchewan Strength Success does not happen overnight.

And sometimes the path is obscure and a little rocky.

We are proud to travel with our clients providing solutions, advice, and counsel to keep moving forward.

With roots tracing back to 1926, we know the Saskatchewan business landscape and the inherent rough patches that we find along the path to success.

SASKATOON 374 Third Avenue South Saskatoon, SK S7K 1M5 (306) 653-2000 F (306) 653-2669

16 BARNOTES

REGINA 800 - 1801 Hamilton Street Regina, SK S4P 4B4 (306) 565-6500 F (306) 565-6565

mckercher.ca

FEATURE COMMENTARY

RECONCILIATION IN SASKATCHEWAN: AN INDIGENOUS PERSPECTIVE NORDIKA J. DUSSION MINISTRY OF JUSTICE

Reconciliation, as defined by the Truth and Reconciliation Commission of Canada, is about “establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country”.

Reconciliation is a term that we hear and see frequently, especially with the continuous uprising of Indigenous voices and minority groups in Canada.

In 2015, the Truth and Reconciliation Commission of Canada released its Final Report. I encourage you to familiarize yourself with this Report.

This Report outlines the long and dark history of how Canada was formed and the impacts it had on Indigenous peoples. The truth is, is that Canada was built on the oppression and destruction of Indigenous people, our culture, our language, and our governance structures. Acknowledging, understanding, and accepting this fact is the first step towards true reconciliation.

The Report unearthed a painful truth, brought opportunity for learning, and gave 94 Calls to Action aimed at working towards reconciliation.

For the legal profession, there are calls to ensure that lawyers receive cultural competency training and education of our history, as well as Aboriginal rights, Indigenous law,

and Aboriginal-Crown relations. The Law Society of Saskatchewan is taking steps to ensure that its members have resources available to them in many forms. The Saskatchewan Branch of the Canadian Bar Association has also taken significant steps in incorporating reconciliation in their programming, including seminars, blanket exercises, and reading materials for members. In addition, the College of Law at the University of Saskatchewan has a mandatory class for first year students regarding Indigenous issues, as well as multiple upper year courses that students can choose to take. These are all steps in the right direction for our profession.

understanding about this important topic or if you have questions that you seek answers to, I encourage readers to have those difficult, and sometimes awkward, conversations with one another and with your Indigenous colleagues. Be mindful that you should try to educate yourself first then come to the conversation from a place of respect and a desire to learn.

Do not be afraid to be vulnerable. Be humble. Build relationships. Work towards a better future for all. Be a part of true reconciliation.

We need to look at actionable reconciliation with a mindset of “where can we go from here” rather than blaming and shaming others for historical atrocities. The point of reconciliation is to establish a mutually respectful relationship between Indigenous and nonIndigenous peoples across Canada.

We are all here to stay and we need to figure out how to work with one another so as to not repeat our history.

I encourage everyone to educate themselves further on our history, what makes us all treaty people, and ways to be a good ally to your Indigenous colleagues and minority groups. Organizations such as The Office of The Treaty Commissioner, Reconciliation Regina, and Reconciliation Saskatoon all have readily available resources. In addition, if you want to have a better

SUMMER 2020 17

COMMENTARY

THINGS TO CONSIDER WHEN WITNESSING DOCUMENTS BY VIRTUAL MEANS JON. M PONATH ROBERTSON STROMBERG LLP

Within several weeks of the beginning of the provincial State of Emergency declared due to the viral pandemic of COVID-19, a novel infectious disease caused by severe acute respiratory syn-drome coronavirus 2 (yes, I read Wikipedia), the Government of Saskatchewan enacted temporary emergency regulations impacting The Land Titles Regulations, 2001, The Electronic Information and Documents Act, 2000, The Powers of Attorney Act, 2002 and The Wills Act, 1996. These regulations enabled lawyers to execute and witness certain documents via video conferencing rather than inperson, as long as certain legislative and the Law Society of Saskatchewan (LSS) procedures were followed.

These temporary regulations have recently been repealed and replaced with permanent regulations allowing for remote execution of documents via electronic means (and again prescribing certain legislative and LSS procedures).

The province is beginning to open back up and some aspects of life are regaining a bit of normalcy; however, COVID-19 numbers have been fluctuating. Although Saskatchewan (at the time of writing) has not yet seen some of the drastic uptick in COVID-19 infections as other Canadian provinces and U.S. states, lawyers may consider continuing to limit face-to-face client interaction whenever possible for the

18 BARNOTES

foreseeable future. Below is a list of matters that a lawyer should consider when preparing for a virtual meeting: 1) Review the LSS directives and guides The LSS website contains several resources to help guide lawyers through the COVID-19 pandemic, including resources relating to the execution of legal documents by virtual means.1 The LSS Practice Directive Numbers 1 and 3 are also found on the LSS website, which stipulate what a lawyer must do when virtually witnessing certain documents. Along with the procedures prescribed in the applicable regulations, lawyers must ensure they understand and comply with the procedures established in the practice directives. As an additional resource, the LSS has created a ‘Video Conferencing Checklist’ to guide lawyers through virtual meetings.2 2) Consider ways to minimize risks Given that meetings are not taking place in person, the risks relating to fraud, client understanding of documents and legal consequences, and duress/undue influence are increased.

To minimize these risk, lawyers should be taking additional steps, such as: (i) ensuring the client is comfortable with the chosen technology and is able to see and hear you; (ii) confirming the client has read and understands the documents; (iii) confirming the client is alone in the room; (iv) documenting the virtual meeting using detailed notes; (v) providing a reporting letter to the client shortly after the virtual meeting to confirm discussions and instructions; and (vi) considering following up after the emergency period ends to re-execute certain documents (such as wills) in person.

3) Consider how to adhere to LSS rules governing client identification and verification The LSS rules surrounding client identification and verification remain in force during the public emergency period and proper verification is still necessary when witnessing documents remotely. While identifying a client does not require actual physical attendance, the “standard” manner of verification of identification does.

According to the LSS’ COVID-19 Resources web page, the LSS will take a “reasonable approach in its compliance activity if the member were to conduct the verification of the client’s identity by using video conference technology,” provided that the other methods of verification, as provided by the Rules, is not available and other parameters are complied with, such as: • The member can be reasonably satisfied that the government issued identification is valid and current; • The member can compare the image in the government issued identification with the client to be reasonably satisfied that it is the same person; • The member records, with the applicable date, the method by which the member verified the client’s identification; • The member treats the transaction as a high-risk transaction and continues to monitor the business relationship as a high-risk transaction; and • The member documents the efforts that were made to verify the client’s identity in accordance with the

COMMENTARY

existing Rules and the reasons why the member was unable to verify the client’s identity in accordance with the existing Rules.

While identifying a client by virtual means may be useful during these times, lawyers may not take particular comfort in the LSS taking a “reasonable approach” in determining whether they have met their professional obligations relating to client verification and identification. A better alternative may be identifying a client using the “dual process method,” or obtaining the client’s credit file.

The Federation of Law Societies of Canada’s Guide to the Profession contains detailed information on these client identification and verification methods.

4) Allow for additional time Video-conferencing is a technology that is new to many people, and it may take some time to get it properly set up. There are always little challenges that pop up that add to the meeting time and more time may be required to ensure the client is comfortable and understands the documents.

5) Check that you are wearing pants It only takes one time to be the basis of a complaint.

Hopefully the above suggestions (or some of them, at least) will assist lawyers during the COVID-19 emergency period and beyond. It is encouraging that the legal profession is beginning to use technology to its advantage in an effort to enhance access to justice and increase efficiency

of legal processes, and it is up to lawyers to ensure that the risk of fraud and other shady practices do not outweigh the risks. In the meantime, stay safe and healty out there.

See https://www.lawsociety.sk.ca/covid-19updates/client-resources/; and https://www. lawsociety.sk.ca/media/395900/inventory-oflss-notices-and-resources-april-22.pdf

1

Found here: https://www.lawsociety. sk.ca/media/395858/video-conferencingsaskatchewan-checklist.pdf

2

Found here: https://flsc.ca/ wp-content/uploads/2019/02/ GuidanceLegalProfessionEN.pdf

3

HOME INSURANCE A home insurance program created with you in mind As a legal professional, law firm employee or law student, you have access to: • • •

Exclusive rates The right coverage to match your lifestyle Professional service

Get a quote and start saving!

1.877.314.6274 or lawyersfinancial.ca/home Lawyers Financial Home and Auto Insurance Program is underwritten by The Personal General Insurance Inc. in Quebec and by The Personal Insurance Company in all other provinces and territories (collectively “The Personal”). Lawyers Financial products and plans are sponsored by the Canadian Bar Insurance Association (CBIA). Lawyers Financial is a trade mark of the CBIA and is used under license by the Personal and by Hunters International Ltd. Hunters International Ltd. is a licensed insurance broker promoting the Program. Auto insurance not available in Manitoba, Saskatchewan or British Columbia due to government-run plans. Certain products and services may not be available in all provinces and territories. Certain conditions apply.

SUMMER 2020 19

823 50th Street East Saskatoon, SK S7K 3Y5

P.O. Box 1504 Saskatoon, SK S7K 3R3

contact@ashlow.com

Template - Legal Directory - White Page Ads.indd 1

20 BARNOTES

2015-08-31 9:45:29 AM

COMMENTARY

WORKING FROM HOME NICOLE HAMM OWZW LAWYERS LLP

A few weeks ago, I was cleaning out my work inbox when I came across a series of interoffice emails from March. The emails contained COVID-19 updates and information about our firm's plans and protocols, and reminded me how in the space of a few short weeks, our lives completely changed.

On March 23rd, I left my office not knowing when I would return. The uncertainty made me feel uneasy. I remember wondering how many pages I would have to flip on the wall calendar in my office when I returned. For the next two months and a bit, my kitchen became my makeshift office, and my dog, Roxy, my office "colleague".

The novelty of working from home lasted for a couple of weeks.

Working remotely was new to me, but I easily adapted and the work itself continued as normal. I quickly fell into a routine and enjoyed the more decidedly relaxed dress code and very short commute.

My biggest concern was the ongoing isolation and how it would affect my mental health.

I've struggled with depression and anxiety at various points in my life, so I was acutely aware that I needed to monitor my mental health and focus on keeping up those activities

that help me cope. I am happy to say that I thrived.

I enjoyed the break from daily office life. The near-constant sound of phones ringing was no more. Once spring arrived, I started my workday outside, sitting at the patio table on my deck. It was a nice change.

What I missed were my colleagues.

Early on in the transition to working from home, the associates in our firm began having weekly Zoom calls. I looked forward to these calls, as I could check in with my colleagues and see how they were coping with working from home, as well as solicit help and discuss issues that arose.

Those calls built a camaraderie that has continued.

Towards the end of May, our firm began to bring employees back to the office. We returned in three (3) waves, with associates in the second wave at the beginning of June. The firm's partners had remained in the office, while all staff and associates worked from home.

The first couple of days were strange and I felt out of sorts as I reacclimated to office life. But again, I fell back into routine relatively easily.

Around the office, things have changed.

We all participate in cleaning common spaces a couple of times a day. We largely interact with clients by telephone or Zoom calls and screen clients for COVID-19 symptoms before meeting with them in person. We limit interaction between our two (2) office floors so that in the event someone on one floor contracts the virus, their interactions are largely limited to those people on their floor. These processes and protocols will be in place for the foreseeable future.

I know I am lucky. The impacts of COVID-19 on my life were relatively minor. I am grateful that the transition to working from home was not difficult for me and that my firm's return to work plan was successful.

Should a second wave hit this fall, I know that my firm is prepared.

CBA. MORE THAN A

MEMBERSHIP SUMMER 2020 21

FROM THE BENCH

PROFILE OF JUDGE MICHELLE MARQUETTE The Judges of the Provincial Court of Saskatchewan come from diverse backgrounds. Several of the Judges will offer their profile over the next several issues of BarNotes which will demonstrate the diversity of the Court. The second article is submitted by Judge Michelle Marquette of the Provincial Court in Wynyard.

Rural Saskatchewan has been home to Michelle Marquette for most of her life. Michelle was born and raised in the Meadowbank district near Kelvington, Saskatchewan. Her parents, Garnet and Agnes met at a country dance in the early 1950’s. She was the local schoolteacher and he was one of many bachelor farmers in the area. They married in 1955 and established a home on the family farm that was originally owned by Garnet’s parents.

Her mother transitioned from teaching to a full-time job being a mother and homemaker. Her parents operated a successful mixed farming operation in the Meadowbank district.

When Michelle was growing up, it was a robust farming community with family farms situated every few miles and her parents were active members of their community. Her parents worked hard on their farm facing a myriad of obstacles like most farmers but always found time to visit their neighbors and pitch in at community events.

Michelle attended primary and secondary schools in nearby Kelvington, and her parents encouraged her and her two older sisters to participate in school and extracurricular activities as well as

22 BARNOTES

the expectation that they would assist with the farm chores and hold down summer jobs.

Upon graduation, their parents expected each of their children to attend post-secondary education.

From a young age, each of their girls learned that “education, not a diamond is a girl’s best friend” and each pursued post secondary education. Michelle attended one year at the College of Arts and Science at the University of Saskatchewan and then transferred to the SIAST- Kelsey Institute to attend the diploma nursing program. Upon completing the diploma nursing program and obtaining her registered nurse designation, she ventured to northern Saskatchewan taking a job as a general duty nurse at the St. Joseph’s hospital in Ile a la Crosse. The job provided endless opportunities and experiences for a young nurse.

Following her employment in Ile a la

Crosse, she had brief employment at a nursing home in Porcupine Plain and then began working as a community health nurse for the Government of Canada - Medical Services Branch.

Michelle obtained a certificate in community health nursing through the Government of Canada Training Institute in Cornwall, Ontario and worked as a community health nurse on the Yellow Quill First Nation and the Kinistin First Nation.

Although nursing was a rewarding career, Michelle made the decision to return to University and pursue a law degree. She attended the College of Law at the University of Saskatchewan and convocated with distinction in 1993. During law school, her first child was born, and time management became a priority. She was involved with the Law Student’s Association, Legal Follies, Women and the Law and was on the Law Review board.

FROM THE BENCH

Following convocation, Michelle began her articles clerking at the Saskatchewan Court of Queen’s Bench with Mr. Justice David Wright as her principal. Invaluable experience was obtained through her articles and she has fond memories of her work with various members of the Court during that time. In August of 1994 shortly before the birth of her second child, Michelle was called to the bar with the Law Society of Saskatchewan.

Armed with a law degree and two small children, Michelle returned to her roots. She and her husband relocated from the city to Michelle’s family farm. The young couple began to establish their own cattle and hay operation and Michelle began her career with the Zawislak Law office in Wadena, Saskatchewan and they welcomed two more children – twins to their family.

Contrary to many people’s perceptions, a rural law practice provided an opportunity to practice in a variety of areas of the law – criminal defence, family, corporate/ commercial, real estate and wills & estates. The practice was busy and demanding. In 2006, Michelle opened her own practice, the Marquette Law Office in Wadena with a satellite office in Kelvington and continued to operate as a sole practitioner until her appointment to the Provincial Court of Saskatchewan in December of 2014. Her law practice provided her with an opportunity to assist many people (many of whom she had known her entire life) and long-time clients became friends. She developed many strong working relationships with the local bar which included other rural sole practitioners.

However, when the call came with respect to a judicial appointment,

Michelle was ready to accept a new challenge. The appointment still allowed her to continue to live on her family farm and remain connected to her local communities albeit in a different capacity.

The Provincial Court in Wynyard includes three circuit court points; Punnichy, Wadena and Rose Valley as well as the Wynyard court house.

There are regular weekly court sittings in each location as well as special court sittings each month. The work is demanding but very rewarding. In addition to her regular court work, Michelle is the Past President of the Saskatchewan Provincial Court Judges’ Association, a member of the Provincial Court Indigenous committee and the Saskatchewan representative for the Canadian Provincial Court Judges’ Association - Judicial Ethics committee.

In her judicial capacity, Michelle endeavours to provide compassion, empathy and respect to the people who appear in front of her. She seeks to educate people as to the role of the court and is actively engaged with local community stakeholders to understand the roles others play within the court system. Her keen interest in the resources available to people in the community is aligned with her view of the important role of restorative justice in the justice system.

Along with her busy judicial career, she and her husband continue to live and work on the family farm.

SUMMER 2020 23

THERE’S ANOTHER WAY TO GET WHERE YOU’RE GOING. Location matters. To navigate the challenges and leverage the opportunities that exist within this market, you need a team well positioned to deliver.

For legal expertise where you need it, look to us.

Look west.

Overview

MLT Aikins LLP is a full-service law firm of more than 240 lawyers with a deep commitment to Western Canada and an understanding of this market’s unique legal and business landscapes.

Based out of six key centres across the four western provinces, MLT Aikins is the only law firm to have offices in Winnipeg, Regina, Saskatoon, Calgary, Edmonton and Vancouver. As one of the largest law firms in Canada, we have the bench strength and geographic scope to meet the increasingly complex needs of clients.

M LT A I K I N S L L P • M LTA I K I N S . C O M

24 BARNOTES

PRO BONO SPOTLIGHT

THE IMPORTANCE OF PRO BONO LAW SASKATCHEWAN (PBLS) PROGRAMS DIRECTOR AND STAFF LAWYER FOR PBLS

of Residential Tenancies. The Panel Program has expanded to include a Criminal Appeals Panel, Immigration and Refugee Panel, Seniors Panel, Inmate Panel, and General Panel that covers all areas of law not covered by the specified panels.

Since the establishment of Pro Bono Law Saskatchewan (“PBLS”) in June of 2008, the non-profit organization has expanded greatly. PBLS now offers Free Legal Clinics throughout the province, a Panel Program, and Solicitor Program.

Lastly, PBLS has established the Solicitor Program through which clients are matched with lawyers that have volunteered to provide legal assistance to charitable, non-profit, or community organizations of limited means across the Province.

Through the Free Legal Clinic volunteer lawyers meet with clients for up to one hour and provide them with legal advice. Client are scheduled with a volunteer lawyer based on the lawyer's practice areas as indicated to PBLS. After that appointment is done, the lawyer has no further obligations to assist that client, unless they choose to do so. The Free Legal Clinics are run in 10 locations across Saskatchewan, including Regina, Weyburn, Estevan, Prince Albert, Swift Current, Moose Jaw, North Battleford, Meadow Lake, La Ronge and Yorkton. In addition to these locations, PBLS is looking to develop Free Legal Clinics in both Tisdale, and surrounding areas, and Kindersley, and surrounding areas.

Now that you have a little bit of background information about PBLS, how do you feel about volunteering?

We know that lawyers are always busy but think about how it would feel to give back to your community in a way that no one else can. Your legal training has made you an invaluable resource to society, but isn’t it unfortunate that most of society is unable to afford this invaluable resource?

LINDSAY BEAUDRY

In addition to the Free Legal Clinic Program, PBLS has developed a Panel Program through which clients are matched with lawyers that have volunteered to provide more extensive legal advice and/or representation to clients. The Panel Program was initiated in 2011, with the development of the Office of Residential Tenancies Panel Program, wherein individuals would be matched with an articling student or lawyer to assist them with matters at the Office

PBLS’S ‘WHY’ Before any individual commits to volunteering their time to a cause, they want to know why the organization needs their help. Here at PBLS, our mission is to facilitate persons of limited means throughout the Province with access to the justice system by providing quality pro bono legal services. Our purpose it to empower people to navigate the legal system, so that they can resolve their own legal matters. Our vision is to have a justice system in Saskatchewan where all people have equal access to quality legal services, regardless of their economic means, but we can’t do this without our most important resource, you, the lawyers!

Our most recent stats indicate that

in 2018 there were 127 lawyers actively volunteering for PBLS, which translates into approximately 7% of all active lawyers in Saskatchewan. Our goal is to have at least 25% of lawyers in Saskatchewan volunteer with PBLS and to increase the geographical reach of PBLS accordingly. Help us reach that goal!

WHY volunteer for PBLS? “What is your why?” This is a question one asks themselves when assessing their motivations. It is highly likely that this will be the question lawyers will ask themselves when it comes to deciding whether or not to volunteer for PBLS, so we have taken it upon ourselves to provide you with some answers that may resonate with you.

1) PBLS has established a volunteering model wherein the time commitments for lawyers are minimal and flexible. If you choose to volunteer for the Free Legal Clinic, the time commitment is approximately 3 hours every two months. If you choose to volunteer for the Panel Program or the Solicitor Program, the time commitment is based on your discretion as to when you can take on files.

2) PBLS provides training materials for their volunteers.

3) Volunteering with PBLS provides lawyers with an opportunity to diversity their practice areas and/or hone their skills in their preferred area of practice by taking on unique and interesting files such as judicial reviews, appeals etc.

4) Volunteering for PBLS is a great way to meet other lawyers in your community and network.

SUMMER 2020 25

PRO BONO SPOTLIGHT

5) Volunteering for PBLS is a wonderful way to give back to your community. Many of our volun-teers have deemed volunteering with PBLS the most fulfilling aspect of their legal practice, but don’t take our word for it! Check out the results from our volunteer surveys below.

• “My PBLS clients are the most appreciative clients I encounter” − Clinic Volunteer 2017

• “Yes, it is a structured and easy way to give back and see the situations some people face that I haven't thought of.” - Clinic Volunteer 2019 If you are interested in volunteering for PBLS or have any questions please contact Lindsey Beaudry at 306-569-6756 or lindsey.beaudry@pblsask.ca.

• “Love this service work. I am very touched by the client’s stories.” − Clinic Volunteer 2018 When asked whether they would recommend volunteering with PBLS, our volunteers responded as follows: • “Absolutely, it is not a large time commitment and you really get to feel like you make a difference.

Thank you for keeping these programs going!” − Clinic Volunteer 2017 • Yes, the fact that PBLS matches your experience and skill set to the file/client is just great with me.

All, well at least 95% for sure, of the files directed in my direction have been in-teresting and the litigation files I am managing are stimulating.” − Panel Volunteer 2018 • Absolutely! The prison law panel is my opportunity to practice exam-in-chief and cross-examination skills that I don't otherwise get to develop. The clients are very polite and appreciative. And the files are interesting! − Panel Volunteer 2018 • “Yes, PBLS makes volunteering easy and I always feel appreciated when I am volun-teering.” − Clinic Volunteer 2019

2020-2021 LEGAL DIRECTORY Order Online cbasask.org

by September 4th to guarantee delivery.

26 BARNOTES

LAWYERS FINANCIAL—Insurance and Investment Solutions along with a deep knowledge of the financial needs of the legal community.

No matter the situation, we can help you be ready.

Connect with your local Lawyers Financial advisor Jim Britton 306.596.2934 or j.britton@lawyersfinancial.ca lawyersfinancial.ca Lawyers Financial products and plans are sponsored by The Canadian Bar Insurance Association (CBIA). Lawyers Financial is a trade mark of CBIA.

STUDENT HUB

U OF S LAW STUDENTS & THE PANDEMIC TONYA LAMBERT KOSKIE LAW

A day after the World Health Organization declared the Covid-19 outbreak a pandemic, Saskatchewan had its first case. The following day University of Saskatchewan students received an email stating the university would be shutting down for three days to switch all classes to an online format. After that, changes to everyday life came swiftly and shockingly. Law students from the U of S adjusted to the new normal by changing course, helping others in the community and embracing new opportunities.

YXE COMMUNITY RESPONSE COVID-19

BY AUSTIN COOPER When the onset of the COVID-19 pandemic in Saskatchewan forced the College of Law to close its doors, now third-year law students Austin Cooper, Will Hampton, Pam Watson, and Xaverie MacLennan teamed up with local gym owner Jordan Marcoux to create “YXE Community Response COVID-19”. The group’s primary goals were to provide services to the city and to connect those who could offer assistance with those who sought assistance. To achieve these goals, a Facebook Group was created to serve two specific purposes. First, to bring awareness to the services that YXE Community Response was offering. Second, to provide a forum that fostered an efficient and accurate

exchange of COVID-19 related news and information.

YXE Community Response operated on an around-the-clock basis from mid-March to mid-May, providing two main services: a grocery pick-up and delivery service, and a children’s care package service.

Along with these two main services, YXE Community Response and its members performed a number of other tasks, favours, and random acts of kindness. From delivering a birthday cake to a frontline worker to delivering food boxes to children and youth in collaboration with local organization CHEP’s School Lunch Box Program, the group remained focused on their goal of providing services in the community. Members on Facebook connected to provide supplies in high demand, answer COVID-19 related questions, and to generally support one another.

As the pandemic continued into the summer months, the individual circumstances of the YXE Community Response’s founding team made it difficult to continue operating on a full-time basis. The capacity of the team to continue organizing and delivering certain services waned.

The group’s services are no longer available, and the Facebook Group has been closed.

CARE PACKAGES FOR KIDS

BY ALLYSE CRUISE AND COURTENAY CATLIN While the months of March and April are usually reserved for frantic exam prep, COVID-19 forced us out of our law school bubble and into the community to respond to the needs of

parents and children. With the abrupt closure of schools, an institution children and guardians rely on for support 5 days a week, guardians were quickly required to take on fulltime childcare responsibilities while navigating a global pandemic. We saw an opportunity to assist with lifting the burden of occupying children through providing families with care packages. Upon reaching out to our community we were able to source funding, donations, volunteers, and other resources. Over the course of 8 weeks we managed to provide care packages that included items like toys, puzzles, books, art supplies, and board games to over 150 families in need, supporting over 450 children.

We heard from guardians how thrilled their children were to receive a care package during tense times, and even had the personal pleasure of seeing grins on little ones' faces when delivering. None of this could have been possible without the support we received from friends, family, mentors, and the broader Saskatoon community. Thank you!

THE 100 INTERNS PROGRAM

BY TONYA LAMBERT, JORDAN DURANT AND DYLAN SHAW When the pandemic hit the Prairie Provinces in mid-March, it created havoc with people’s everyday lives. For law students, this meant transitioning to online classes and exams written from home. It also meant the loss of summer jobs and delayed starts to articling positions.

Peter Sankoff, a law professor at the University of Alberta, quickly realized the devastating impact the pandemic was having on students in

SUMMER 2020 27

STUDENT HUB

terms of their financial wellbeing and future job prospects.

Professor Sankoff began organizing an internship program aimed at bringing together students and lawyers from across the country for three-week paid internships. Three University of Saskatchewan law students – Tonya Lambert, Jordan Durant and Dylan Shaw, were chosen to be part of the #100Interns Program.

“What Peter Sankoff pulled off, especially considering he had a hospital stay midway through filling the spots, is unbelievable,” says Durant, who was placed with Brian Pfefferle of Pfefferle Law Office in Saskatoon.

“My internship actually ended up going beyond the original two or three weeks and Brian has kept me on through the summer. The experience has been amazing. Learning from an experienced lawyer has been so valuable for my future career as a lawyer. I have done research, drafted legal documents, and even attended court with Brian a couple times. It has been an unbelievable summer thus far.

I can't say enough how thankful I am for this experience and I hope that I can pay it forward one day when I am a lawyer with knowledge to pass on.”

Lambert is also very grateful for the incredible effort Sankoff put into organizing the program, from soliciting donations to finding lawyers and pairing them with students to organizing payment. “I had an incredible experience interning with Joanna Birenbaum of Ursel Phillips Fellows Hopkinson in Toronto,” says Lambert. “I did some very interesting research to help prepare a leave application to the Supreme Court!” After her internship was over, Lambert continued to do research for Birenbaum until starting her articles with Koskie Law in Saskatoon.

28 BARNOTES

Shaw, who interned with Sarah Innes of CGIS Law in Winnipeg, also found the experience to be rewarding, calling it “a glimmer of positivity in these unprecedented times.” His project focussed on enhanced credit given for pre-trial custody and its relation to Covid-19, a very timely topic. Shaw notes that it was a great way to be introduced to the professional legal world.

The complete suite of tools for family law professionals is now securely in the cloud

Learn more at divorcemate.com, call 1.800.653.0925 x407 or email Steve at skrieger@divorcemate.com

www.cbasask.org

POSTCARD FROM THE EDGE

CHINA: A WONDER HANNAH ZIP

China was never on my bucket list of countries to visit, but when my mom was chosen as the keynote speaker for an international nursing conference in China, with free hotels and meals thrown in for incentive, I decided I would be a fool not to take the opportunity to visit. This was in 2018, and given the recent events which shall not be named, I am beyond glad that I experienced China when I had the chance. My mom’s conference was hosted in Hohhot, Inner Mongolia, and it is there that we began our epic 2-week journey across three Chinese provinces.

The culture shock began immediately upon deboarding the plane in Hohhot and being informed that there is no Google, GoogleMaps, email access, Facebook, or Instagram in China.

The only way to communicate with others is through the app “WeChat”, the official Chinese version of Facebook, and that you can only speak to those who have already downloaded the app. If you want to discover how useless you are without the internet, travel to China. Want

to know what the weather will be that day so you don’t get caught in a rainstorm? Too bad. Trying to map a destination to the closest place that serves coffee? Not going to happen!

Tasks that would take minutes with a smartphone, like finding some coffee to drink in the morning, took me hours in China. Turns out that coffee is not popular at all in Inner Mongolia, and to find a rare cup of caffeinated goodness we had to crisscross the city on foot for over two hours. Without the internet as a crutch, I quickly learned to rely on the kindness of strangers to navigate my surroundings. I also learned to stock up on bottled coffee sold at convenience stores after paying $15 CDN for a single cup of coffee.

While my mom was at her conference, I went on a guided tour of Inner Mongolia’s grasslands. I was expecting the grasslands to resemble the prairies but I was surprised at the stunning beauty

of the region. I was able to ride a horse, attend an acrobatic horse show, have a traditional lunch in a yurt, and go on a camel ride. Horses are very important to Mongols, and Mongolians are considered to be among the best horsemen in the world. It is traditionally said that "A Mongol without a horse is like a bird without the wings.”

Xi’an was our next destination and we arrived there after an exhausting 14hour train ride in an uncomfortable hardback seat (we had originally booked a sleeper car but that train was cancelled due to a bridge being washed away in a rainstorm that morning). Xia’an is the centre of China and contains many culturally significant sites, most notably the Terracotta warriors where we spent a day being shown around by a local history teacher. The food in Xi’an was especially amazing and we visited a world famous food alley, Fenxiang Alley (also known as “Snack Street”)

SUMMER 2020 29

POSTCARD FROM THE EDGE

where one can sample every food imaginable, from crunchy insects on sticks to handmade dumplings.

Beijing was the conclusion of our grand adventure. We explored the Forbidden City and Ti'annamen Square, the Summer Palace, saw pandas in the Beijing zoo, and walked on the Great Wall, which was the highlight of the trip as it truly is a wonder of the world. The Great Wall literally perches on the very top of the mountain ridge. It was a clear day, so we had an amazing view of the scenery on both sides of the Wall.

I was surprised to discover that the stairways to the watch towers on the Wall do not have any guardrails whatsoever. Understandably I was a tad worried about plunging over the side to my death, so I climbed most of the staircases on my hands and knees,

30 BARNOTES

which was very embarrassing for my mom.

China was a wonderful country with some of the most generous and hospitable people I have ever met. I would not have had such a good trip without the help of Chinese expats in Saskatoon who assisted me in filling out my Visa application, explained the tricks to booking hotels and travelling between provinces, and, most importantly, the necessity of downloading WeChat onto my phone prior to leaving Canada. In China locals met us at the airports and drove us to our hotels, where they even negotiated lower rates on rooms for us. They translated tours of museums and the Mongolian grasslands, spent full days showing us around their cities, ordered cabs for us, drew us maps and wrote “I don’t eat meat” on

signs for us to show at restaurants. It was the people in China who made this one of my most memorable trips.

I loved China and have so much more that I can say about my time there. It was an experience that enriched my life and broadened my perspective on humanity and how people live in other parts of the world. I left with a solid addiction to handmade noodles with egg and tomato and a WeChat account full of new friends.

It is also worth mentioning that my mom and I still get along after our trip and that I look forward to traveling with her again once it is safe to do so.

CALENDAR OF EVENTS

Aug 31

Annual Membership Expires – Renew Online www.cbasask.org

Sep 1

New CBASK Board of Directors Installed

Sep 1

Section Meetings Begin - FREE to CBASK members www.cbasask.org

Sep 4

Legal Directory Order Deadline (to Guarantee Delivery) www.cbasask.org

Oct 3

Q.C. Nomination Deadline www.cbasask.org

Nov 15

Distinguished Service Award Nomination Deadline www.cbasask.org

Dec 15

Treasurer & Elected Members of Council Nomination Deadline www.cbasask.org

Jan 26-28

Mid-Winter Meeting Virtual

Jan TBD

Council Meeting Virtual

CBA Saskatchewan Branch Section year begins September 1, 2020. This fall all Section Meetings will be FREE to CBASK members and delivered via Zoom.

Register Free for Sections at cbasask.org to ensure you get section notices of upcoming meetings and then register for Free to get the link.

Also visit cbapd.org and learn about great webinars from across Canada relevant to your areas of practice which you can access as part of your CBA membership.

ADVERTISER INDEX

AJEFS ........................................................................... 12 Ashmeade & Low ..................................................... 22 Childview .................................................................... 19 Divorcemate ................................................................8 Globe Printers .......................................................... 31 Lawyers Financial ........................................................6 Lawyers Financial Home Insurance .................... 19 Lawyers Financial Travel Insurance ..................... 24 McDougall Gaulley ................................................... 10 McKercher Barristers & Solicitors ....................... 19 Mercedes Benz ........................................................ 32 MLT Aikens................................................................. 22 Stewart Title .................................................................4

CBA SASKATCHEWAN 2020-2021 Board of Directors

PRESIDENT Christopher Weitzel | SGI Saskatchewan Government Insurance 306-775-6432 | cweitzel@sgi.sk.ca VICE-PRESIDENT Reché McKeague | City of Saskatoon Solicitor’s Office 306-975-3270 | reche.mckeague@saskatoon.ca TREASURER Jana Linner | MLT Aikins LLP 306-347-8427 | jlinner@mltaikins.com PAST PRESIDENT Loreley Chekay | SGI Saskatchewan Government Insurance 306-751-1221 | lchekay@sgi.sk.ca EDUCATION DIRECTOR Anna Beatch | MLT Aikins LLP 306-956-6952 | abeatch@mltaikins.com LEGISLATION & LAW REFORM DIRECTOR James Steele | Robertson Stromberg LLP 306-933-1338 | j.steele@rslaw.com PUBLIC OUTREACH DIRECTOR Kathryn Gilliss | Trobert Gilliss Law Firm 306-634-2616 | keg.tglaw@sasktel.net EXECUTIVE DIRECTOR Monteen Dent | CBA Saskatchewan Branch 306-244-3781 | monteen@cbasask.org

217 Jessop Avenue • Saskatoon SK S7N 1Y3 p: 306.955.3373 • f: 306.955.3064 www.globeprinters.com

Tom Jeffries

c: 306.717.4006 e: tom@globesask.com

SUMMER 2020 31

Safety that holds up under cross-examination.

Mercedes-Benz Corporate Sales is proud to continue our longstanding partnership with the Canadian Bar Association by offering up to $2,000 in savings on our newest Mercedes-Benz models, in addition to any existing special offers available.

Now that’s what we call a winning argument. Visit Mercedes-benz.ca/cba and take advantage of exclusive membership savings today.

Š 2020 Mercedes-Benz Canada Inc.

32 BARNOTES

CBA Sask Fleet_7.5x10.indd 1

2020-03-12 10:34 AM