Bar Notes
THE CANADIAN BAR ASSOCIATION • SASKATCHEWAN BRANCH
WINTER 2016
THE WORK OF THE TASK FORCE ON MARIJUANA LEGALIZATION AND REGULATION |10
VOL. 31.2
WEEDING OUT THE ISSUES: THE LEGALIZATION AND REGULATION OF MARIJUANA IN CANADA |14
BARNOTES EDITORIAL BOARD
IN THIS ISSUE FEATURE COMMENTARY The Work of the Task Force on Marijuana Legalization and Regulation.....................................20 Weeding Out the Issues: The Legalization and Regulation of Marijuana in Canada..................21 BRANCH NEWS
ASHLEY SMITH Editor Saskatoon Police Service
Faulty Workmanship Exclusions ........................................................17 Counsel for Children Program ........................................................23 Criminal Code Provisions Still on the Books......................................26 BARELY BARRISTERS On a Roller Coaster to Law ........................................................29
President’s Message.................... 4
PRO BONO SPOTLIGHT
Invitation to Attend Mid-Winter Meeting........................................... 5
Annual Lawyers’ Charity Gala ........................................................30
Membership Update................... 7 FROM THE BENCH At the Crossroads on Access to Justice and Reconciliation........... 8 COMMENTARY
STUDENT CORNER Women and the Practice of Law ........................................................31
POSTCARD FROM A LAWYER
Bill C-226.......................................11
Get it Over With – Go to Italy! ........................................................36
Decorating Your Office..............15
ITEMS OF INTEREST Call for Nominations..............................................................................13 Call for Volunteers..................................................................................27 CBA Bar Judicial Council Representatives.........................................27 Gown to Gown Lawyers’ Charity Gala................................................30 Calendar of Events.................................................................................39 Advertiser Index......................................................................................39 2 BARNOTES
KATE CRISP Scharfstein Gibbings Walen & Fisher LLP TRISTAN CULHAM MacPherson Leslie & Tyerman LLP JARED EPP Robertson Stromberg LLP JACKIE FRANCIS Francis & Company LEAH HOWIE Law Reform Commission of Saskatchewan LINDSAY HJORTH University of Saskatchewan AMJAD MURABIT WMCZ Lawyers MICHAEL SCHERMAN Blake, Cassels & Graydon LLP ALIXANDRA STOICHEFF MacPherson Leslie & Tyerman LLP JAMES STREETON Wardell Gillis HANNAH ZIP Knott den Hollander BRENDA HESJE Executive Director CBA Saskatchewan
Miss Universe Canda…………….34
MAID: In Canada........................... 9 A Northern Adventure...............14
SCOTT BELL MacPherson Leslie & Tyerman LLP
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. 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, brenda@cbasask. org. © CBA Saskatchewan 305,135 - 21st Street East Saskatoon, SK S7K 0B4 www.cbasask.org
EDITOR’S NOTES
SO LONG, FAREWELL ASHLEY SMITH || SASKATOON POLICE SERVICE
I
t is with bittersweet emotions that I edit my last issue of BarNotes. Having served four years as a BarNotes Board Member before spending the last two years as Editor, it is time to hang up my hat and pass the torch.
My journey with BarNotes started even before I found my way to the Editorial Board. In 2005 I was a summer student and the then Editor, Michelle Ouellette, QC, asked if I would be willing to write a short article for BarNotes. I agreed and wrote a case comment on an occupiers’ liability case. To have that published in BarNotes was one of the coolest things I had done as a newly minted law student. Even my parents displayed that edition of BarNotes in their home for several months because they were so proud of my first publication. I guess everything is about perspective, as I don’t think that article warranted such treatment! Fast track to the fall of 2009. I had just returned from clerking in Ontario and had begun my career in private practice in Saskatoon. One of my colleagues, Penny Yeager, was stepping down from the BarNotes Editorial Board and asked if I would be interested in taking her place. With my past experience with BarNotes, I was excited to get more involved in the actual creation of the publication and maybe get an opportunity to write some more articles. I learned the ropes of BarNotes under two Editors, Heather MacMillan-Brown, QC and Kaylea Dunn. As you can see, my BarNotes journey has many people to thank. Michelle and Penny — thanks for getting me involved with BarNotes. Heather and Kaylea — thanks for showing me how to be an Editor. I wouldn’t have stuck around for so long if I didn’t enjoy working on BarNotes. I believe it provides value to the Saskatchewan legal community. It is an outlet not only to stay up to date with CBA news and what is happening in different areas of the law, but also a way to learn more about our colleagues. As Editor, I wanted BarNotes to have more of a magazine look, have professional photos and to highlight members of
the legal community more. I hope you have noticed and enjoyed the changes that were made. We also fought to keep the hard copy of BarNotes going to CBA members in a world going completely digital (although you can receive BarNotes digitally if you wish).
The highlight of my time as Editor had to be our 30th Anniversary issue. This was an important issue in BarNotes history but it also felt like one of the first issues where the magazine vision really came together. Some of the issues that followed, like our young lawyer and music issue, was also a meaningful issue to me (Sound of Music reference in the title case in point). I would be remiss if I didn’t thank Scott Bell, who as a professional photographer/lawyer, really made the new vision for BarNotes come true with his wonderful photos. Kayla Stuckart was also instrumental in creating our new magazine like layout. It took patience to get my snapshots of magazine layouts I liked and then turn them into something similar for BarNotes. She also willingly changed colors, designs and fonts to make our look more modern and distinctive then ever before.
I also cannot forget all of the BarNotes Board Members during my time as Editor. They are the people that come up with great ideas for content and were willing to write articles or “hit the streets” to get articles. Their ideas and vision helped shape BarNotes to what it is today. All of you were a blast to work with and I will miss our meetings. Thanks to Azure-Dee, Alix, Amjad, Danielle, Hannah, Jackie, James, Jared, Kate, Leah, Lindsay, Lora, Michael, Nolan, Scott, Steven and Tristan. Thank you also to Brenda Hesje for her tireless work for the CBA and on BarNotes. We wouldn’t be able to do it without her. Thank you to everyone who contributed articles. BarNotes relies heavily on the participation of members of the legal community for its content and you are all busy people (the CPD credits have to help right?)!
LETTERS TO THE EDITOR
Ashley.Smith@Police.Saskatoon.sk.ca
I also need to thank you, the readers, for your kind comments about our work and even the one piece of anonymous “hate mail” because you didn’t like an article. It was nice to know that BarNotes was being read and appreciated (most of the time). Hannah Zip will be taking over as Editor, so I know that BarNotes will be in good hands. I look forward to reading the next issue without my red pen in hand and just enjoying it as a reader. I hope you enjoy this issue. It features articles on many timely topics including the legalization of marijuana, medical assistance in dying and proposed changes to drinking and driving laws.
Read about Siera Bearchell’s journey to becoming Miss Universe Canada and Mike Russell’s adventures in Italy (you have to read it to believe it). Also, Lindsay Hjorth tells us about Marie Henein’s recent speech at the College of Law. These and many other interesting articles await you in this issue! For the last time, I wish you happy reading on behalf of myself and the Editorial Board. Thanks for the memories BarNotes!
WINTER 2016 3
BRANCH NEWS
PRESIDENT’S MESSAGE NEIL ROBERTSON, QC
T
he rule of law is one of the great achievements of civilization, the means of peaceful and proactive resolution of conflict. Lawyers do this every day in many different ways, small and big, all of which contribute.
Law does not exist for its own sake. It is a means to an end. One goal is order, but that again should be a means to an end, not an end in itself. The law can be used either to achieve justice or to maintain a state of injustice. Which prevails derives from the content and application of the law, which in turn depends upon the ethics of those who create, apply and administer the law. The rule of law in Canada seeks to achieve justice for all. While we as lawyers are usually concerned with legal justice, economic and social justice are just as important.
When I began working, my father told me not to expect justice. If I did, he said I would often be disappointed. He told me to be glad when I found justice, but not to let the fact of injustice make me cynical or indifferent to my duty to work for justice. Justice is not inevitable. It is achieved through dedicated service and sometimes sacrifice. Allowing injustice, on the other hand, does not require effort, merely neglect by those who could prevent or remedy injustice. As lawyers we enjoy many privileges. But we also have exacting duties. In accepting the privileges, we must also accept those duties. The fact is that for most of us, the privileges far 4 BARNOTES
outweigh the duties. The privileges and duties join in our special ability to help others who cannot help themselves. Our education, training and position allow us to open doors closed to others.
John F. Kennedy, in his address to his home state of Massachusetts Legislature on 9 January 1961 only days after taking office as President, stated the moral obligation of those who serve in public office to their duty. But these words apply equally to all who serve in the profession of law. While the first sentence is well remembered, the rest is worth repeating:
"For of those to whom much is given, much is required. And when at some future date the high court of history sits in judgment on each of us — recording whether in our brief span of service we fulfilled our responsibilities to the state — our success or failure, in whatever office we hold, will be measured by the answers to four questions: First, were we truly men of courage —with the courage to stand up to one’s enemies — and the courage to stand up, when necessary, to one’s associates — the courage to resist public pressure, as well as private greed? Secondly, were we truly men of judgment — with perceptive judgment of the future as well as the past — of our mistakes as well as the mistakes of others — with enough wisdom to know what we did not know and enough candor to admit it?
CONTACT THE PRESIDENT
Ph: 306-535-3139 robertson@sasktel.net
Third, were we truly men of integrity—men who never ran out on either the principles in which we believed or the men who believed in us—men whom neither financial gain nor political ambition could ever divert from the fulfillment of our sacred trust?
Finally, were we truly men of dedication — with an honor mortgaged to no single individual or group, and comprised of no private obligation or aim, but devoted solely to serving the public good and the national interest? Courage — judgment — integrity — dedication — these are the historic qualities … which, with God’s help … will characterize our Government’s conduct in the 4 stormy years that lie ahead."
BRANCH NEWS
2017 MID-WINTER MEETING
THRIVING IN COMPLEXITY
FEBRUARY 2 & 3, 2017 | SASKATOON
INVITATION TO ATTEND THE 2017 CBA MID-WINTER MEETING CHARMAINE PANKO || PANKO COLLABORATIVE LAW AND MEDIATION
A
s Chair of the 2017 MidWinter Planning Committee I encourage you to mark your calendar and plan to attend the CBA Mid-Winter Meeting on February 2nd and 3rd, 2017 in Saskatoon! Building on last year’s theme “Thriving in Complexity”, the 2017 conference program includes, not only informative presentations covering many substantive practice areas, but also sessions to support and assist you in both your professional and personal life. HIGHLIGHTS INCLUDE:
• Annual “Breakfast with the Minister”, the Honourable Gordon Wyant, Q.C. with greetings from MLA member Nicole Sarauer on behalf of the Opposition;
• Updates from the Law Society Justicia Project;
• Cross-cultural training by the Saskatchewan Intercultural Association;
• The President’s Forum guest speaker Saskatoon Police Service Chief of Police, Clive Weighill; and • Author, lawyer, and Crown Prosecutor, Harold Johnson.
You will want to be sure to also take in the Thursday evening social event “Barristers and Bluegrass” at The Woods – an evening of food, beverage, and fun with musical entertainment by The Barrelmen!
And as always, remember attendance at the CBA Mid-Winter Meeting is a great source of continuing professional development credits, including ethics hours! We look forward to seeing you there!
REGISTRATION NOW OPEN REGISTER ONLINE FOR THE MID-WINTER MEETING AT WWW.CBASASK.ORG. Online registration can be completed with Visa, MasterCard or Cheque. A copy of the Program Brochure is included with this issue of BARNOTES.
WINTER 2016 5
E V I D E N C E FIND THE DIG ITAL TRU TH
D I G I TA L F O R E N S I C C O N S U LTA N T S Whether you are working on a criminal case, civil litigation, or an arbitration hearing, digital evidence may be a crucial component of your case. SaskTel Digital Forensic Consultants use court-accepted hardware, forensic software and processes to identify, collect and analyze digital data on any device. From the proper collection and investigation of the evidence to its presentation in a court of law, our Digital Forensic Consultants will help you determine the digital truth.
sasktel.com/digitalforensics 6 BARNOTES
BRANCH NEWS
MEMBERSHIP UPDATE LORELEY BERRA || MINISTRY OF JUSTICE
A
s you all know the Canadian Bar Association is in transition mode. This summer’s Council meeting provided the go ahead to move the CBA into the next phase of its existence. The focus is to create a stronger membership driven association. This transition is not only at the National level but also right here in Saskatchewan. With that comes a lot of work and a lot of patience. However, the important work of advocacy, professional development and value for members continues. We ask for any and all input in what you would like to see, or not to see, of the next generation of the CBA. Saskatchewan membership remains steady and I thank each and every one of you for that. Unfortunately, membership at the CBA generally has seen quite a decline, specifically in the area of New and Young Lawyers. This is a vital area not only to the Association but also to the profession. These lawyers are the lawyers of the future, the volunteers of the future, the future voice of the CBA. As such this area of membership has been identified to be a key focus area to develop and provide services and to target recruitment and retention.
If everyone opted to receive a paperless notice, the savings would be thousands of CONTACT THE dollars – dollars that MEMBERSHIP CHAIR could be re-invested in member programs. Ph: 306-787-8207 This year, CBA sent loreley.berra@gov.sk.ca about 11,000 individual renewal invoices to active members, with an additional 6,500 that opted to receive a paperless notice by email. Please feel free to provide feedback, good and bad, at any time. We can only change and improve when we hear from our membership, and that is you.
Several initiatives have begun - Student representatives on National Section and Forums
• linking a student representative from each of the Law Schools across Canada with a National Section or Forum and CBA Connect. The initiative to have students involved with Sections and Forums is aimed at developing a relationship between the Law Schools and the CBA, educating law students about the contribution the CBA makes to the development of the law and to member services and to provide a platform for pro bono opportunities.
- CBA Connect
• This is designed to connect young lawyers to the people, events, knowledge, education, skills and tools they need to enjoy a fulfilling career—from the first day of law school through their entire career as a lawyer.
And finally, I encourage each of you to sign up for paperless billing. It is as simple as updating your information in your member profile and updating your billing preference.
WINTER 2016 7
FROM THE BENCH
AT THE CROSSROADS ON ACCESS TO JUSTICE AND RECONCILIATION JUDGE PAT REIS || PROVINCIAL COURT OF SASKATCHEWAN
P
rior to my appointment to the Provincial Court about three years ago, I had been working on Access to Justice, as a bencher with the Law Society. We had an outstanding group of benchers, who were led by the then Executive Director, Tom Schonhoffer, QC. After my appointment, I was privileged to spend time with many lawyers, professors, students and judges, including Mr. Justice Thomas Cromwell, as he then was, on this complex goal. Mr. Justice Cromwell’s dedication and leadership will be sorely missed but his legacy will endure. As a Provincial Court Judge and our Court’s representative to the CBA, I have had the opportunity of working on Reconciliation. The efforts of Mr. Justice Murray Sinclair on the Truth and Reconciliation Commission are commendable. More recently, I have been fortunate to work alongside Chief Judge James Plemel, Judge Robert Lane, Judge Gerald Morin, Judge Donald Bird, and Judge Michelle Marquette on our fairly new Aboriginal Communities Committee. We have been reaching out to the Aboriginal communities that we serve (and them to us) on reconciliation and in particular, the calls to action from the TRC’s report. In my view, the goals of Access to Justice and Reconciliation are not separate but rather are inextricable. Furthermore, that Saskatchewan and Canada are at a critical crossroads on these fronts. The opportunity is upon us now and I am optimistic that we will utilize it.
8 BARNOTES
It is with this background, that I share a story with you. After court in Broadview on a beautiful fall day, I attended a meeting with Chief Margaret Bear, her council, elders and numerous other people on the Ochapowace First Nation, which was kindly arranged by Ms. Betty Watson who is their justice worker. On the way out, I knew that it was going to be a good day as we saw two soaring eagles. At the meeting, we discussed many issues with an emphasis on the TRC’s calls to action, especially with respect to justice, in the context of reconciliation. The meeting was held at an inspiring new facility, named after Chief Denton George, which included a metal teepee. The major themes that were discussed included: good relations within their own community, with the police, and with others at large, the overrepresentation of Aboriginal people in custody, a concern for their youth, and the desire for more alternative measures that their community could deal with, respect for elders, the importance of Treaties (especially Treaty 4) and the better education of non-Aboriginal people about the importance of Treaties and their willingness to build partnerships. Those in attendance saw their meeting with me as historic, which I found very humbling. I was further humbled to receive gifts of a star blanket, a handmade and exquisite medallion, braided sweetgrass and special tobacco. After the meeting, we travelled to the Kahkewistahaw First Nation where I was honoured to participate in a sweat
and then a feast. It could not have been a better day. This is just one of the many positive experiences that I, and the other members of our committee, have had. It seems to me that while Saskatchewan is a relatively small province, there is no reason that we cannot lead on the goals of Access to Justice and Reconciliation. It is because of our size and the familiarity that those in our legal community have with each other, that we are best able to seek out, be open to, and to forge new relationships and partnerships with those who are not, in achieving the important goals of Access to Justice and Reconciliation. Everyone in the legal community has a shared responsibility and a role to play in this regard. I would simply encourage everyone in the CBA and our legal community to be proactive and to do what they can to assist in achieving the laudable goals of Access to Justice and Reconciliation. We do not want to lose the opportunity that presents itself, at the pivotal crossroads that we are now at.
COMMENTARY
MAID:
In Canada LYNSEY GAUDIN, ERIN WOLFF, AND KRISTÉL KRIEL1 || MACPHERSON LESLIE TYERMAN LLP
E
arlier this year, Canada's law on medical assistance in dying (MAID) came into force. This article outlines some of the key highlights, issues, and updates relating to MAID in Canada. HIGHLIGHTS:
1. Landmark Decision: The Supreme Court of Canada released its landmark decision on MAID (then referred to as physician-assisted death) in early 2015. In Carter v Canada (Attorney General), 2015 SCC 5, the Supreme Court of Canada struck down the provisions of the Criminal Code that created an absolute criminal prohibition against assisted dying in Canada. However, the declaration of invalidity was suspended until June 6, 2016, to allow the federal, provincial, and territorial governments to respond by enacting legislation consistent with the Carter decision.
2. Interim Period: Prior to the enactment of legislation to address the Carter decision, there was an interim period wherein individuals could seek MAID in QuĂŠbec under its provincial legislation or by application to a superior court in other jurisdictions. A number of applications were granted in reported court decisions during this time. 3. Federal Legislation: Federal legislation was enacted earlier this year in response to Carter. In particular, Bill C-14 (An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)) received Royal Assent on June 17, 2016. As a result of Bill C-14, certain medical professionals, including physicians and nurse practitioners, those who assist them (such as pharmacists), and other persons or professionals who assist or provide information regarding MAID, are exempt from the relevant Criminal Code offences provided that certain conditions are met.
4. Types of MAID: There are two types of MAID available in Canada. Specifically, where a physician or nurse practitioner directly administers a substance to a person, at their request, that causes their death (voluntary euthanasia), or gives or prescribes a drug to a person, at their request, that they may self-administer to cause their own death (medically-assisted suicide). 5. Eligibility: In order for someone to be eligible for MAID, that person must meet a number of eligibility criteria, such as having a "grievous and irremediable medical condition" and giving informed consent to receive MAID after being informed of the means that are available to relieve their suffering, such as palliative care.
6. Grievous and irremediable medical condition: A person is considered to have a grievous and irremediable medical condition only if specified conditions are met, including if the person has a serious and incurable illness, disease, or disability, is in an advanced state of irreversible decline in capacity, is caused enduring physical or psychological suffering (that is intolerable to them and that cannot be relieved under conditions that they consider acceptable), and if their natural death has become reasonably foreseeable. 7. Safeguards: Before a physician or nurse practitioner provides a person with MAID, he or she must ensure that a number of safeguards are met, such as ensuring all eligibility criteria are satisfied, ensuring that a second, independent medical opinion is obtained, and providing the individual with various opportunities to withdraw their consent, leading up to and immediately prior to the provision of MAID.
8. Criminal offences: Criminal offences exist for failing to comply with the required safeguards, forging or destroying documents, or interfering with the rights and obligations created by the Criminal Code provisions relating to MAID.
WINTER 2016 9
COMMENTARY
9. Information Requirements: Medical professionals involved in MAID will be required to provide prescribed information to designated recipients. Bill C-14 contemplates that these requirements for monitoring and reporting on the use of MAID will be prescribed in regulations enacted pursuant to the Criminal Code. However, as of the date of this article, the provisions and regulations relating to information requirements are not yet in force.
10. Further Review: The federal government is required to initiate independent reviews of certain issues not addressed by Bill C-14 by December, 2016, including questions relating to requests by mature minors, individuals who suffer from mental illness only, and advance requests for MAID. The federal government has two years from the date the reviews are initiated to report on its findings and recommendations. At the time of this article, it is unclear whether such reviews have been commenced. In addition to these initial reviews, the federal government is required to initiate a parliamentary review of Bill C-14 by June, 2021.
ISSUES AND UPDATES:
1. Constitutional Challenges: At least one constitutional challenge to the Criminal Code provisions relating to MAID has been launched. That claim, filed by an individual suffering from spinal muscular atrophy and the British Columbia Civil Liberties Association in the British Columbia Supreme Court, argues that the requirements that an illness, disease, or disability be "incurable", that an individual be in "an advanced state of irreversible decline in capacity" and that their natural death has become "reasonably foreseeable" are unconstitutional. The pleadings allege that there are numerous conditions that may cause intolerable suffering prior to natural death becoming reasonably foreseeable and/or prior to reaching an advanced state of irreversible decline in capacity (such as spinal muscular atrophy and multiple sclerosis). Other aspects of the legislation – for example, the requirement that a person be 18 years of age and the requirement that the person give express consent immediately prior to receiving MAID (which restricts advance health care directives that contemplate MAID) – may also be at risk of future constitutional challenges. 10 BARNOTES
2. Monitoring and Information: Given that the provisions and regulations implementing the information requirements relating to MAID are not yet in force, there is limited information available about the implementation of MAID in Canada, including how many individuals have requested and received MAID since the enactment of Bill C-14. Without this information, it is difficult to accurately assess the number of requests for MAID, the medical conditions that motivate requests, the medical conditions that result in requests being granted, whether the safeguards put into place are effective, the demographics of individuals who make requests for MAID, and whether MAID is being consistently implemented across Canada. 3. Interpretation of "grievous and irremediable medical condition": The lack of reported information following the enactment of Bill C-14 makes it difficult to determine what constitutes a "grievous and irremediable medical condition" that would qualify for MAID. However, reported court decisions prior to the enactment of Bill C-14 suggest that MAID is most commonly sought by applicants suffering from end-stage cancer, amyotrophic lateral sclerosis, or multiple sclerosis.
4. Regulatory Guidance: Over the last several months, a number of professional regulatory bodies have implemented guidelines and standards for their members relating to MAID. This guidance provides valuable insight for professionals who receive such requests. In addition, some jurisdictions have made additional information available and/or are beginning to implement additional legislative requirements relating to MAID (for example, British Columbia now has regulations contemplating requirements relating to the reporting of deaths resulting from MAID and standards, limits, or conditions to be followed in the provision of MAID).
In the absence of information reporting requirements relating to MAID, there is a notable lack of information available concerning MAID in Canada to date. Presumably such requirements, once implemented, will go a long way in permitting the assessment of the impact and effectiveness of Bill C-14 and in assisting individuals with making informed decisions about MAID. 1
Our sincere thanks to Turner Ralston, Student-at-Law, for his help
in preparing this article.
COMMENTARY
BILL C-226:
PROPOSED LEGISLATION TO REDUCE DRUNK DRIVING AND DRUNK DRIVING LITIGATION
BRIAN PFEFFERLE || PFEFFERLE LAW OFFICE I. INTRODUCTION Impaired driving continues to leave a path of heartache and destruction on Canadian roadways. Legislators, both federally and provincially, have attempted to legislate the problem away – or at least reduce it. These attempts have ranged from “tough on crime” amendments to Criminal Code sentencing, to the legislative removal of the so-called “twobeer” defence, to the outrageous de-criminalization of most drunk driving in British Columbia. The latest variation of legislative drunk driving problemsolving may come from Bill C-226’s complete reconfiguration of drunk driving legislation in Canada. The Private Members’ Bill, introduced by the Honourable Steven Blaney, not only provides for new mandatory minimum sentences for certain offences, it also overhauls many investigative rules. The proposed Bill C-226 amendments could lead to some interesting litigation as the investigative rule changes do not appear prima facie to meet Charter scrutiny.
Summary of Proposed Bill
Without doubt, Bill C-226 is the largest overhaul of impaired driving laws since the inception of the Criminal Code provisions on impaired driving. The changes are vast and beyond the scope of this brief article. Among the changes proposed by the bill on impaired driving: •
A new offence making it a criminal offence to drink after you have already stopped driving.
• A trial judge would now be able to apply consecutive sentences if more than one person was killed, and give escalating penalties for repeat offenders.
• Impaired driving offences would be included in the list of offences exempt from obtaining a record suspension.
• •
Mandatory random screening allowing law enforcement to ask any driver at any time to provide a breath sample, whether the vehicle was in motion or not. A police officer’s conclusions respecting an accused’s impairment are to be taken as fact.
• A mandatory minimum sentence of five years and a maximum of 25 years for impaired driving causing death. •
The maximum sentence for impaired driving causing bodily harm would go up from 10 years to 14 years.
The statute begins with a preamble to the bill outlining numerous principles which are virtually uncontroversial with the exception of d and e. The preamble notes that:
a. Dangerous driving and impaired driving injure or kill thousands of people every year b. Dangerous driving and impaired driving are always unacceptable in all circumstances
c. It is important that sentences should be severe enough to reflect the risk to the public by dangerous driving and impaired driving. d. It is important to simplify the law relating to proof of blood alcohol concentration. e.
It is important to deter people from consuming alcohol after they have driven a conveyance, when it is reasonable to think they may have to provide a breath or blood sample.
f. Is important for Canada to deter the commission of offences relating to impaired driving and dangerous driving.
While this may be the stated intention of the legislation, the contents leave much to be desired as numerous problematic sections exist – only some of which are reviewed in this article.
II. OVERVIEW OF JUST SOME OF THE PROBLEMATIC SECTIONS The New Offence: An Offence to Drink AFTER Driving
One of the new offences created by the proposed Bill is “having a blood-alcohol concentration of over 80 mg of alcohol in 100 mL of blood within two hours of ceasing to operate a conveyance”. This proposed section could make it a criminal WINTER 2016 11
COMMENTARY
offence for individuals to consume alcohol after driving. The legislation would permit the accused to argue that they shouldn’t be convicted because (a) they consumed alcohol post-driving when there was no reasonable expectation they would have to provide a breath sample, and (b) their blood-alcohol concentration was both under the legal limit and consistent with the approved instrument’s reading (the onus is on the accused). While the section will prevent those who run the post-driving bolus drinking defence, the proposed charge will clearly lead to wrongful convictions – especially those who cannot afford to hire a toxicologist to conduct an alcohol consumption read-back.
Police Officers Take Over From Trial Judges
The proposed Bill also usurps the ability of a trial Judge to make certain findings of fact. For example, it states as a fact that “the analysis of a sample of a person’s breath by means of an approved instrument produces reliable and accurate readings of blood alcohol concentration” which directly contradicts R v By, 2015 SKQB 86. Furthermore, the Bill states that “evaluating officers are qualified to evaluate whether a person’s ability to operate a conveyance is impaired by a drug or alcohol”. The latter clause is particularly troubling as the Bill attempts to suggest that if an officer testifies that someone’s ability to operate a motor vehicle is impaired by alcohol, a conviction should follow automatically – completely removing the necessity for a trial. One cannot see this clause standing up to constitutional challenges and will surely lead to trial judges seeking to retake their rightful position as fact-finders.
Removal of Time Limits for Making a Demand
The Bill also removes the current requirement that the peace officer believe that the accused had committed the offence within the proceeding three hours. This is obviously an attempt to remove the procedural hurdle that is currently in place to protect police from making demands of an accused well after the time of driving. One could think of ridiculous examples where this could be applied to the new impaired driving offence, causing an insurmountable consumption read-back for an accused.
Removing Grounds for an ASD
Currently, pursuant to s. 254(2), if a police officer suspects that someone has alcohol in their body while driving, they can demand a sample of their breath into an Approved Screening Device at the roadside. A lawful demand, pursuant to the amended s. 254(2), was required to be: (a) Made by a peace officer; (b) Who has reasonable grounds to suspect that a person has alcohol or a drug in their body (d) And that person has, within the preceding three hours, operated or had the care or control of a motor vehicle, whether it was in motion or not. If a court finds that an officer does not have a reasonable suspicion to ask for a roadside, then the subsequent breath samples can be excluded pursuant to s. 24(2). 12 BARNOTES
Bill C-226, however, proposes a list of factors that, alone, would constitute reasonable grounds to suspect a person has alcohol in their body. They include erratic movements of a car, a person’s admission of consuming alcohol, the odour of alcohol on someone’s breath or in their car, and involvement in an accident that resulted in bodily harm or death. Under the current regime, an officer typically needs to establish at least an admission of consumption and an odour of alcohol from the person’s breath (not just the cab of the vehicle). This proposed change widens the scope of police arrest power significantly and should likely cause s.7, 8, and 9 litigation. It is not uncommon to have cases where the bag of bottles is headed to Sarcan, or the designated driver is driving the carload of drunken passengers leading to a smell of alcohol from the motor vehicle. Clearly demanding breath samples from such drivers is impermissibly infringing on individual freedoms. Bill C-226 proposes the ability of police to nevertheless make a demand in such circumstances. The subjective “erratic movements” of a motor vehicle suggestion is also vague enough that it should be fertile ground for litigation. Not only is this concept hard to define objectively, vehicle movements that are irregular can be attributed to many things – avoiding potholes, lighting cigarettes, changing radio stations, using cell phones and momentary losses of concentration – amongst other things. Allowing roadside demands on the basis of just one indicia of bad driving or a single sign of consumption is a significant change to the current laws.
Random Roadside Demands
Bill C-226 goes even further to say that if a police officer has ASD in their possession, then they can randomly stop drivers to demand roadside breath samples. Of course an accused person is not permitted his or her s.10(b) right to counsel at the roadside. This limitation on s.10(b) has only been saved by s.1 in limited circumstances. The new Bill permits not only randomly stopping motorists – which is arguably already permitted by traffic safety legislation – but also permits random searching, which is not permissible. While the writer acknowledges that mandatory screening greatly increases the perception that if you drive impaired, the chance of getting caught is high, the ability for police to abuse this power is virtually limitless. Random stops are often effected upon our most vulnerable of citizens making this amendment problematic.
Right to Silence Will No Longer Apply to Accident Investigations
The Bill proposes to eliminate “use immunity” related to accident statements, by proposing that a statement made by the accused to a peace officer, including a statement compelled under provincial statute, is admissible in evidence for the purpose of justifying a breath demand.
COMMENTARY
This is obviously in violation of s.7 of the Charter and would not likely withstand constitutional challenge given numerous case authorities on the use-immunity provided to accused persons compelled to given statements against interest.
CALL FOR NOMINATIONS
Limiting Relevant Disclosure: Trial By Machine
The Bill also states that the prosecutor shall disclose the information as sent by the Alcohol Test Committee on Canadian Society of Forensic Science’s webpage, and that this is sufficient to adequately assess whether the improved instrument was in proper working order. It further proposes that if the accused is not satisfied with this, they must file a disclosure application which must take place with 30 days notice to the Crown, 30 days before the trial. This makes disclosure applications expensive and inconvenient – leading to delays in conducting trials.
The Bill also allows the Crown to establish that the approved instrument was “in proper working order” if it complied with the procedures set out on the Canadian Society of Forensic Science’s webpage. One could see this developing in an unfair manner, given the responsibility of disclosure has been downloaded onto an unelected interest group. Furthermore, this clearly conflicts with case law from Saskatchewan, R v Pankiw, 2016 SKCA 60 and the Supreme Court of Canada’s decision in R v St-Onge Lamoureux, 2012 SCC 57. It is unlikely the presumptive accuracy of the breath devices would withstand a constitutional challenge given that the accused’s right to disclosure is essentially circumscribed by the Canadian Society of Forensic Science, and the documents that they choose to put on their webpage.
III. CONCLUSION
The war on impaired driving is unquestionably a noble one. The proposed Bill at least attempts to reaffirm that the Government of Canada continues to view impaired driving as both SERIOUS and CRIMINAL. One wonders how British Columbia’s decision to reduce drunk driving to a ticket will look if this tougher on crime legislation becomes law. Unless considerably changed, it is difficult to see how many of the proposed sections could withstand Charter scrutiny. If it does become law, we can expect decade after decade of litigation to follow.
NOW ACCEPTING NOMINATIONS 2017 - 2018 CBA SASKATCHEWAN BRANCH TREASURER
Deadline: December 15th
2017 - 2019 ELECTED MEMBERS OF COUNCIL Deadline: December 15th
Nomination Forms & Information:
www.cbasask.org
WINTER 2016 13
COMMENTARY
A NORTHERN ADVENTURE DR. BETH BILSON, QC || COLLEGE OF LAW, UNIVERSITY OF SASKATCHEWAN
T
he establishment of Nunavut on April 1, 1999, was an important step towards self-determination for the Inuit of the Eastern Arctic, and in the excitement of developing a social and political framework for the new territory, it was to be expected that thoughts would turn to meeting the need for legal structures and legal services. A visionary group of Nunavut residents formulated a plan to create the beginnings of an Indigenous legal profession by offering a law degree program in the north. The Akitsiraq program, administered by the University of Victoria, was a four-year program that culminated in 2005 with the graduation of eleven students with the LLB degree.
of Saskatchewan to pursue particular electives or research interests.
It is also expected that the program will incorporate opportunities for summer work or internships in different professional settings. Though Nunavut public sector legal organizations are an obvious choice for such placements, the planning group also hopes to identify additional internship opportunities, possibly outside Nunavut.
Though the College has a lengthy history of preparing students for entry into legal careers, there are admittedly some unfamiliar challenges in creating a program that will serve the needs of Inuit students in Nunavut. The political and constitutional significance of the Nunavut Land Claims Agreement as a foundational legal document; Students in the the virtual absence of a resident private bar; program will also the importance to the Inuit of Indigenous have a chance to legal traditions, languages and culture; the logistical and technological difficulties spend a term at created by geographic distances – all of the University of these are factors that must be considered in Saskatchewan to designing and implementing the program.
Last spring, the Government of Nunavut and Nunavut Arctic College offered the opportunity to create a second law degree program, and the College of Law at the University of Saskatchewan was the successful bidder. A planning group at the College is working to put together a program that will begin in September of 2017. Like the first iteration, the program will begin with a foundational year to take into account that the majority of students are likely to have no postpursue particular secondary preparation. This year will focus on On the other hand, the administration and developing skills in writing, critical thinking electives or faculty are aware that having responsibility and analysis, research and negotiation. It will research interests. for this program creates exciting possibilities, also have a contextual component, equipping not only for the students in the program, students with fundamental knowledge about but for faculty, staff and students of the the historical legacy of colonialism, the College of Law. Built into the program design Canadian legislative and judicial system, the are opportunities for faculty to teach in a stimulating impact of the Nunavut land claims settlement, and Inuit environment, for Saskatchewan students to act as peer traditional law and language. mentors to Nunavut students, and for students from both programs to participate in exchanges or joint activities. The three upper years of the program will more closely Another possibility created by offering this program resemble law degree programs at Canadian law schools, in the north is that of cementing and advancing new with modifications to offer students adequate opportunity partnerships between the University of Saskatchewan and to study subject matter relevant to a future career in the several northern universities – the University of Lapland north. The program will consist largely of face-to-face in Rovaniemi, Finland, the Arctic University of Norway in interaction of students with faculty members who travel Trömsö, and the University of Lund in Sweden. to Iqaluit, augmented where desirable by components of distance and remote learning. Students in the program The establishment of the new Centre for Research, will also have a chance to spend a term at the University Evaluation and Action towards Equal Justice at the College 14 BARNOTES
COMMENTARY
of Law also presents an opportunity for collaboration with the legal profession and the government in Nunavut on access to justice projects, and it is hoped that the students in the Nunavut program will be able to play the same critical role in access to justice discussions there that they have come to play in Saskatchewan. The new centre, as well as the Native Law Centre, may provide a base for other kinds of community-based research projects as well. As the planning group in the College continues to move forward with the many issues that must be determined before the program commences in the fall of 2017, they
continue to welcome proposals and suggestions for enhancements to the program. If you have any bright ideas about mentoring, lectures or mini-courses, travel sponsorships (I would note that round trip fare to Iqaluit costs $3500 and up – just saying), internships or other kinds of experiential learning, or other activities and initiatives that would maximize the quality of the program, they would be delighted to hear from you. Please contact Dean Martin Phillipson (martin.phillipson@usask.ca), or either of the Associate Deans, Doug Surtees (doug.surtees@ usask.ca) and Heather Heavin (heather.heavin@usask.ca) to let them know what you think.
DECORATING YOUR OFFICE:
A.K.A. YOUR “HOME AWAY FROM HOME” HANNAH ZIP || KNOTT DEN HOLLANDER
I
t’s a gross understatement that lawyers spend a lot of time in their offices. It is, in a sense, our home away from home. For better or worse, the office is also a part of our face in the legal community, as it sends a message about who we are as professionals to those who set foot in our work space. Wouldn’t it be nice to be comfortable in our “home” while also being confident that we legal professionals are giving the correct image to our clients? I spoke with the very talented and knowledgeable Tamara Bowman, the Lead Designer and Creative Director of Metric Design Centre in Saskatoon, to get some insider tips and tricks in achieving this lofty goal. As a starting point, Tamara says that you have to consider the type of law you practice. When decorating, you want to keep in mind the experience that you want to give to your clients and others who enter your office. Do you want to impart status and prestige to corporate clients? Would you like your family law client to feel at home and comfortable in order to better create a feeling of trust? It also doesn’t hurt to make your office a place that you actually want to spend time working in either, since we have to be here anyways.
Without further delay, here are Tamara’s Top 5 tips to liven up your office space (all products available at Metric) ADD A FEATURE WALL
One thing Tamara stressed was that you should never have a blank wall behind where you sit. Think of the client as
they are staring at you while you’re providing wise legal advice. They need something to look at!
Use feature walls in the space directly behind you to help open up a smaller space and to give some visual interest without being distracting. Use (removable) wallpaper if that’s an option or another feature material such as wood, a different paint colour, etc. You could also use artwork to reflect your personality and professional image in the space directly behind you. Art adds texture, colour and personality to a space. Be unique in your design choices!
Natural and geometric prints are great options for a professional setting. This wallpaper is a great option for a backdrop or feature wall.
WRAP YOUR WALLS IN A WARM AND INVITING PAINT COLOR Tamara says to exercise caution if using bright reds or yellows in your office, as those come off as flippant and less serious. Use subdued and richer tones instead, which are more appropriate for a law office environment. No hot pink allowed! (I asked.)
WINTER 2016 15
COMMENTARY
The colour shown is called “Revere Pewter” and is a great option that imparts both a professional and comfortable feeling, while also providing a great compliment to wood tones, colourful artwork, and natural stones.
ORGANIZATION AND CLEANLINESS
Having an organized desk is very important. No one is perfect, so make sure to have a way to shelter your stacks of paperwork. A way to accomplish this is to use tiered surfaces, like shelves or stacked trays. You want the client to have a clean visual line when they are looking at you so that they are not distracted. When it comes to the ghastly, tangled mess of unsightly cords, there are plenty of management devices that you can use to hide, disguise or camouflage the cords. There are lots of great options online that you can purchase. Tamara says that if you are handy, you can hide cords behind the baseboards.
This office space is an illustration of how to use stylish storage solutions like boxes, floating shelves and file containers to free up desk space and contain the clutter of paperwork and files.
USE FABRICS FOR COLOR AND TEXTURE Texture is another great way to simulate a home-like environment in your office. Decorate with materials that absorb sound such as fabric covered chairs, carpet instead of tile and wallpaper as opposed to paint. Wood is a great stand-alone texture item and imparts status and longevity, and tells people that they can trust you and use you as their lawyer in the long term. Drapes or blinds can be used to soften a room and to help with acoustics.
An easy way to accomplish this is to use pillows for your chairs to soften the hard lines of a typical office and provide comfort, all while adding to the space's acoustical value. Other points to keep in mind: •
Clients want to know that you are a real person that they can relate to in addition to being an excellent lawyer. Picture frames will humanize you, but don’t have too many or too personal of photographs. A good strategy is to have the frames facing you on your desk.
•
Don’t be afraid to think about the client’s personal experience and to use something like an armchair to remind them of sitting in someone’s home. You can drape a throw blanket over the back of a chair, which Tamara says will mimic companionship.
•
ADD A COOL AND FUNCTIONAL LAMP
When arranging the furniture in your office, think of the traffic paths. You never want people to feel trapped or uncomfortable in your office.
In the end it’s all about the feeling that you want to create in your office space. What image are you projecting?
(Such as the Gower Street Table Lamp pictured) A big trend in decorating commercial office environments is to make the work space feel like home.
Tamara recommends using a lamp in the office to make the overhead fluorescent lighting less harsh. Gold is a great statement finish, boasting both status and vibrancy. 16 BARNOTES
For more ideas check out Tamara Bowman's blog at http://www.metricdesign.ca/blog/
COMMENTARY
FAULTY WORKMANSHIP EXCLUSIONS – WHAT’S COVERED, WHAT’S NOT:
A CASE COMMENTARY ON LEDCOR CONSTRUCTION V. NORTHBRIDGE INDEMNITY INSURANCE JARED EPP || ROBERTSON STROMBERG LLP
O
n September 15, 2016 the Supreme Court of Canada released its highly (at least to some of us) anticipated decision in Ledcor Construction v. Northbridge Indemnity Insurance. The focus in Ledcor was on how to properly interpret an exclusion clause commonly found in commercial construction policies, generally referred to in the industry as “builders’ risk”, “all-risk” or “course of construction” policies. In particular, Ledcor clarified what types of physical damage are insured in situations where coverage would, on the face of it, ordinarily be denied on the basis of the “faulty workmanship” exclusion clause. The Court also clarified that the standard of correctness applied to appeals on questions involving the proper interpretation of standard form contracts. The facts of the case were relatively straightforward. Ledcor was hired as a general contractor to build an office tower in Edmonton, Alberta. As the office windows were dirtied during construction, the Owner, prior to completion, hired Bristol, a sub-trade, to clean the windows. Pursuant to the parties’ agreement, the Owner was required to maintain an all-risk insurance policy, which covered “all risks of direct physical loss or damage” to the property undergoing construction.
this policy results, in which event this policy shall insure such resulting damage.
The basic argument made by the Owner and Ledcor was that the exclusion clause only applied to exclude the cost of redoing the cleaning work itself, but that the replacement of the scratched windows was “resulting damage”. In contrast, the insurers argued that the cost to replace the windows had to be excluded as the faulty workmanship (i.e. the negligent window cleaning) was performed on the very windows that were damaged (i.e. there was no resulting damage from the faulty cleaning, only direct damage to the windows).
At trial, the judge sided with the Owner, citing the rule of contra proferentem. This finding was over-turned by the Court of Appeal. The Supreme Court of Canada was then asked to decide first: what standard of review applied to the interpretation of standard form contracts; and second, how to interpret and apply the faulty workmanship exclusion.
During the cleaning process, Bristol scratched the windows. The damage was significant enough that virtually all the windows required replacement. The cost of replacement was estimated at 2.5 million dollars. Given this cost, both the Owner and Ledcor made claims against their all-risk policies. Both claims were denied by the insurer on the basis of the following exclusion clause, found in both policies:
Writing for the majority of the Court, Justice Wagner first drew a distinction between bespoke and standard form contracts. Although the former might require a complete “factual matrix” to interpret, thus becoming questions of mixed fact and law, the latter were pure questions of law. In coming to this conclusion, Justice Wagner seemed to be most influenced by the need for appellant courts to create precedent and, by extension, certainty for individuals and companies who are required to manage risk on construction projects. Thus the trial judge’s interpretation of the all-risk insurance policy was subject to review on a standard of correctness.
(b) The cost of making good faulty workmanship, construction materials or design unless physical damage not otherwise excluded by
(a) He reiterated the fact that contra proferentum should only be applied if a contract clause
This policy section does not insure:
Applying this correctness standard, Justice Wagner made a number of preliminary comments:
WINTER 2016 17
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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.
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18 BARNOTES
Robin Wilson, Leadership Director Sandra Schmirler Foundation 604.230.5871 (cell) wilson@sandraschmirler.org
COMMENTARY
is ambiguous after applying other principles of construction. It is not a free-standing legal principle that means that standard form contracts should be, in the first instance, interpreted against the interests of the drafter.
(b) He rejected the Court of Appeal’s new test, which required a judge to evaluate the connectedness of a loss, for when the faulty workmanship exclusion clause applied.
Having framed the issues in this way, Justice Wagner concluded, as did the trial judge, that the faulty workmanship exclusion clause was ambiguous in terms of the coverage offered to the Owner. In resolving this ambiguity, Justice Wagner stressed that the purpose of an all-risk construction policy was to provide broad coverage on construction sites to ensure that construction can proceed in an orderly and timely fashion, without parties constantly litigating over who must bear the risk of loss. As a result, he rejected the insurer’s argument and held that the Owner was entitled to the replacement costs of the windows on the basis that their being scratched constituted “resulting damage”. A number of practical insights, which prudent counsel might consider when advising clients, can be drawn from the result in Ledcor:
(a) For owners, consultants and general contractors: consider how scope of work obligations are defined on a project. Justice Wagner specifically noted, albeit in obiter, that had Bristol been retained to install and clean the windows, the damage would have been excluded. To maximize coverage in the future, owners should, particularly where a scope of work might damage a finished product, consider creating separate subcontracts for any existing trade who might also be retained to perform this type of “finishing” or “cleaning” work. Scope of work considerations must form part of risk management on project sites. (b) For subcontractors: ensure the subcontract accurately depicts the work that is being performed. Broadly stated scopes of work or standards for the work, even if the standards might seem obvious, may be cited by insurers as a reason to deny coverage. Consider what would have happened if Bristol’s contract specifically stated that Bristol was responsible for cleaning the windows without scratching or damaging
them. Though it might seem obvious that Bristol was expected not to damage the windows, having this type of statement in Bristol’s contract may very well have changed the result reached by the Court. This would have exposed Bristol to a claim for damages exceeding 2.5 million dollars.
(c) For insurers: consider how standard policy language might need to be modified to ensure that faulty workmanship exclusions can be relied upon; and
(d) For litigants: consider the broader implications of correctness as a standard of review for standard form contracts. Generally the reasons for standard form contracts – certainty, predictability, and efficiency – are the same in insurance as they are for other standard contracts, such as CCDC construction contracts. Defining the standard of review in this way would seem to mean first, that legal disputes involving the applicability or interpretation of standard form contracts ought to be amenable to determination by way of summary judgment application as the judge is, in the first instance, being asked to decide a question of law; and second, that litigants should not necessarily be reluctant to appeal from unsuccessful decisions dealing with standard form contracts, reached at trial or in chambers, as the Court of Appeal has been granted wide discretion to conduct its own interpretation of the contract at issue.
LEGAL DIRECTORY 2016/2017
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WINTER 2016 19
FEATURE COMMENTARY
THE WORK OF THE TASK FORCE ON MARIJUANA LEGALIZATION AND REGULATION DR. BARBARA VON TIGERSTROM || COLLEGE OF LAW, UNIVERSITY OF SASKATCHEWAN
T
he Task Force on Marijuana Legalization and Members of the Task Force also visited the sites of several Regulation was formed at the end of June 2016 with licensed producers in Canada and met with local officials an ambitious mandate: to gather information and and industry in Colorado and Washington, the first two U.S. views from members of the public, experts in relevant states to legalize cannabis for “recreational” use. A common fields, governments, and representative organizations; piece of advice received in Colorado and Washington was and to use this input to produce a report advising the to “expect the unexpected” and be prepared to adapt to federal government on the design of a legislative and new issues that will undoubtedly arise. regulatory framework. This report will be submitted by It’s impossible to give a brief summary of the diverse the end of November 2016 and the federal government has views and complex information that the Task Force announced its intention to table legislation in the spring of is now considering as it formulates 2017. The Task Force is composed of nine its recommendations. However, a few members with different backgrounds and recurring themes have emerged that cut perspectives, including three members across a number of issues. One challenge with ties to the legal profession (our Chair, The Task Force that immediately and repeatedly faced Anne McLellan; Raf Souccar, who has a law was often reminded the Task Force was how to engage in an degree in addition to years of experience “evidence-based” approach to policy that the new legal in law enforcement; and myself). design in the context of so many gaps environment will look very Over a period of about three months, and so much uncertainty in the available different in downtown the Task Force met with provincial and evidence. It has been and will continue territorial governments and held a series to be important to clarify just what we Vancouver than in rural of roundtable meetings with experts do and do not know about the use of Saskatchewan or a remote and stakeholders, specific groups (youth cannabis and its impacts. Not surprisingly, Northern community. and patients), and representatives the need for more and better evidence on of Indigenous governments and many different issues has been raised in organizations. In addition, the Task Force virtually every discussion. received several hundred written submissions from Another theme is the question of how the new regulatory organizations and experts. The number and diversity of regime can provide consistency on key points but, at the participants and submissions indicates the complexity same time, be sufficiently flexible to adapt to local needs of this issue. A wide range of views was heard from and concerns. The Discussion Paper had raised this perspectives that included health professions, public question explicitly in relation to the issues of minimum health, law enforcement, municipal and local governments, age and distribution models, asking whether these should and a variety of industry organizations. Almost 29,000 be consistent across Canada or whether variation was people also submitted responses to an online survey. The acceptable. Obviously the division of powers between the meetings and survey questions were structured around federal and provincial/territorial governments – as well the Discussion Paper released by the government when the Task Force was announced, which sets out five themes and a series of questions on which input was sought. CONTINUED ON PAGE 22 20 BARNOTES
FEATURE COMMENTARY
WEEDING OUT THE ISSUES: THE LEGALIZATION AND REGULATION OF MARIJUANA IN CANADA AMJAD MURABIT || WMCZ LAWYERS
O
n April 20, 2016, the Liberal party announced its plans to introduce legislation to legalize marijuana in the spring of 2017. The announcement, which improbably occurred on 4/20 (a day of marijuana celebration and consumption), coincided with a poll from the Angus Reid Institute in which 68% of the respondents indicated that they believed marijuana should be made legal. Sixty-four percent of the poll respondents felt that legalization would do more good than harm in the long run. The Task Force on Marijuana Legalization and Regulation was assembled by the Liberal Party to prepare a report on how best to legalize, regulate and restrict access to marijuana. The report is expected to highlight and address the various issues associated with the legalization and regulation of marijuana. Included in these are constitutional issues, age requirements for the purchase and consumption of marijuana, impaired driving under the influence of drugs, and questions about whether or not to permit private cultivation. This brief article will examine how other jurisdictions have approached the regulation and legalization of marijuana and will attempt to predict how legalization and regulation will be achieved in Canada. In December 2013, Uruguay became the first country to nationally legalize and regulate every aspect of the marijuana market. Uruguay has had some difficulties implementing the legislation. Under the legislation, marijuana should be obtainable in three ways: by home cultivation, through marijuana clubs or by purchase at pharmacies. In early 2016, pharmacy sales (the favored means for obtaining marijuana amongst Uruguayan’s according to a study conducted in 2015) were still unavailable as regulators struggled with price controls and questions about whether or not pharmacies are obligated or merely permitted to sell marijuana. The legislation which was intended to shrink the black market has had the opposite effect. Critics have blamed an over cautious government for the growth of the black market. John Walsh, a senior associate who worked with the Uruguayan government on the legislation has suggested, that “to shrink the black market, the legal market needs to be convenient enough to attract users… After all, there is already a vibrant commercial market – the illegal one – and forms of legal access will need to undercut it.”
implemented in the four American states (Washington, Colorado, Alaska & Oregon) where recreational marijuana has been legalized. The laws in these states operate in direct conflict with federal law. The federal government, therefore, has the power to prosecute marijuana users and cultivators if it chooses to do so. In Canada, the relationship between the Federal Government and the Provinces raises interesting constitutional issues relevant to the legalization and regulation of marijuana. Section 91(27) of the Constitution Act, 1867, the Criminal Law power, confers the Federal government with the authority to legalize marijuana. At paragraph 204 of RJR-MacDonald Inc. v Canada, [1995] 3 SCR 199, the Court held that “…Parliament can decriminalize what once was thought criminal, and can also criminalize conduct which was not part of the criminal law at the time of Confederation.” The legalization of marijuana can be achieved simply by removing it from the Controlled Drugs and Substances Act, SC 1996, c 19. Nevertheless, the regulation of marijuana requires provincial compliance.
The criminal law power may be invoked for federal regulation of marijuana in order to protect public health and safety. Regulation under the criminal law power is expected with respect to laws on impaired driving. There is a real possibility that legalizing marijuana will result in increased incidents of impaired driving. In the aforementioned jurisdictions, three different approaches have been taken to deal with the surge in impaired driving. In Uruguay and Oregon, any amount of tetrahydrocannabinol (THC) in the driver’s blood establishes that the driver was impaired. In Alaska, a legal limit of THC has not been set and law enforcement officers, trained in detection of impaired driving, are granted the discretion to arrest those they believe to be driving under the influence of drugs. Alaska’s approach is interesting considering that the Supreme Court of Canada recently heard Carson Bingley v Her Majesty the Queen,
Uruguay’s national law differs substantially from the laws
WINTER 2016 21
FEATURE COMMENTARY
2015 ONCA 439. While a decision in Carson Bingley has not yet been rendered, the Court’s decision will indicate whether a police officer’s opinion, without a scientific foundation, as to whether a person was impaired while driving should be automatically accepted as expert testimony at trial. The Crown is concerned that requiring voir dires, to determine whether such evidence should be permitted, will result in unnecessary delays and complications. The Defence has countered that personal opinions, even by police officers, should not be legally accepted in determining criminal guilt. In Colorado and Washington State, “scientific evidence” in the form of blood tests dictate whether an individual is driving impaired. The legal limit is set to 5 nanograms of THC per milliliter of blood. Canadian companies, such as the Vancouver-based Cannabix Technology, are currently attempting to develop a breathalyzer test for THC. Provincial legislatures are granted the authority to legislate on “property and civil rights in the Province” pursuant to section 92(13) of the Constitution Act, 1867. Provincial regulatory laws will be applicable where compliance with both the federal and provincial law is possible. Provincial laws must not conflict with nor frustrate Parliament’s purpose. This means that, ultimately, one province may choose to regulate marijuana in a different way than another. Provinces may choose to follow the model used by American states, such as Colorado, and create blanket legislation which captures the core aspects of marijuana regulation (such as age requirements and allowable amounts) and then allow each city to create its own specific rules (for example on whether or not to permit sales in retail shops). What might the blanket legislation look like? A review of the law in the aforementioned States suggests three things: (1) an individual will have to be at least 21 years old to purchase or consume marijuana;
(2) public consumption of marijuana will not be permitted; and (3) the maximum amount allowable on one’s person will be 28 grams (one ounce).
The States differ with respect to their stances on the cultivation of marijuana. Washington does not allow for the cultivation of marijuana and, in that State, the only way an individual is able to obtain marijuana for recreational use is through a licensed retailer. Oregon allows for the possession of 4 plants per residence while Alaska and Colorado allow for the possession of six plants, with only three plants mature and flowering at the same time. It will be interesting to see what direction the provinces take with respect to cultivation.
In each state, marijuana is sold by licensed retailers and/ or marijuana dispensaries. There are restrictions on the proximity of retail stores to schools and other locations where minors may be present. Similar to alcohol, each province will be able to control where and when marijuana 22 BARNOTES
is sold. The provinces can choose to authorize sales through licensed retailers and/or choose to sell marijuana through liquor stores or by mail. At around the same time the Task Force on Marijuana Legalization and Regulation submits its report to the Government, California will be voting on Proposition 64, legislation which would legalize recreational marijuana in the state. Canada has the benefit of examining how marijuana law reform has been approached in other jurisdictions, including California, and can improve its legislation by learning from some of the challenges faced and/or mistakes made in these jurisdictions. There are a host of other complex issues which, for the sake of brevity, have not been addressed in this article that must also be considered prior to enacting new legislation. Although the legalization and regulation of marijuana may result in substantial tax revenues for both the federal and provincial governments, it is vital that the Liberal party take advantage of the available information and get this legislation right from the outset.
CONTINUED FROM PAGE 20 as potentially important roles for municipal or local and Indigenous governments – will come into play in shaping the new framework. There are also questions about who is best placed to regulate various matters and how to take account of variations in capacity; for example, the role that large urban municipalities could play in setting and enforcing standards on some issues is not likely to be feasible for many small towns across the country. The Task Force was often reminded that the new legal environment will look very different in downtown Vancouver than in rural Saskatchewan or a remote Northern community. Designing a framework that ensures a level playing field and protects basic interests, while being sensitive to local realities and concerns, will be a central challenge. Moving forward, shared responsibilities also mean that implementation of the new framework will be a complex endeavour, requiring a careful balance between timely action on certain matters and leaving enough time for all of the various pieces to be put in place.
Since this initiative will create a large new legal industry and involve significant social change, it will bring with it a wide range of complex legal issues across many different areas of law. Some are existing issues that are now receiving more attention because of this initiative, others will change once cannabis is legalized, and there may be some that are entirely new. In the midst of so much uncertainty, one prediction is safe to make: the months and years ahead will be fascinating times for those who study and practice law.
COMMENTARY
COUNSEL FOR CHILDREN PROGRAM – REFLECTIONS
UPON ITS SECOND BIRTHDAY LÉA LAPOINTE || MOKURUK AND WOODS LAW OFFICE
T
he Counsel for Children Program has been in place for nearly two years now, with the program having commenced with the pronouncement of legislative changes – i.e. The Public Guardian and Trustee Amendment Act, 2014 (No. 2) and The Queen’s Bench Amendment Act 2014 – on December 2, 2014. For readers unfamiliar with the program, the goals of the Counsel for Children program include: • Ensuring that children and youth have a voice in child protection proceedings; • Ensuring appointments for children’s counsel are made quickly and efficiently;
• Establishing best practices and standards for representing children and youth; and • Ensuring a roster of lawyers with experience and knowledge to meet the demands for counsel for children.
The Counsel for Children program is part of the Ministry of Justice services provided under the Public Guardian and Trustee of Saskatchewan. The program still uses a roster of private lawyers, as did the program it replaced, which relied on a roster of lawyers coordinated by Pro Bono Law Saskatchewan and the Children’s Advocate’s Office. My colleague, Sheri Woods, discussed this program in Vol. XXVII No. 1 of BarNotes in the fall of 2012. Ms. Woods’ article was one part information-sharing about her role as counsel for the child and youth, and one part call to action for the formalization of a children’s counsel program and for an increase in recognition and appreciation of the importance of child welfare law in Saskatchewan. As one of about a dozen active lawyers on the roster, I am pleased to report briefly on the Counsel for Children program and on two key areas of improvement I have experienced first-hand since its introduction.
First, awareness of the role and value of counsel for the child has increased significantly in the last two years. The legislative amendments and launch of the program created a significant increase in awareness of the role of counsel for a child in child protection matters. As those of us who practiced under the program’s predecessor can attest, we often spent a great deal of time and effort informing members of the bar and the judiciary of our role each time we opened a new file for a child or youth client. Now in many courts across the province, child protection dockets often include at least one matter for which counsel for a child has been appointed. Counsel for children are routinely making submissions on behalf of their clients. It is also now not uncommon for judges to either order that counsel be appointed for a child or for a judge to recommend that the Ministry of Social Services (the “Ministry”) submit an application for counsel. Additionally, it appears that the parties and their counsel increasingly acknowledge that there can be an increased opportunity to resolve matters by consent after children’s counsel has been appointed, the views of the child canvassed, and those views shared with the parties. Mistrust and long-standing history between the parties sometimes prevents them from hearing and understanding each other, whereas counsel for the child can often reframe issues and help bring to the forefront that which is important to the child or youth. Sometimes, counsel for a child can find the common ground between the parties – such as maintaining and supporting the love between children, their parents, and their siblings – even when a youth client needs or wants to remain in the care of the Ministry until adulthood.
Second, I am pleased to report that the program’s capacity and level of knowledge and experience has increased. In almost two years, the program has appointed children’s counsel for over 150 matters involving over 250 children. As mentioned above, there are now about a dozen active lawyers on the roster. Counsel on the roster have participated in initial training, covering both the legal framework for child protection matters and the roleWINTER 2016 23
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COMMENTARY
specific knowledge and skills required to act as counsel for a child within this framework. Although there is some attrition on the roster, we have seen a slow and steady increase in interest in this practice area, with counsel in new areas of the province and with diverse backgrounds (ranging from practice experience in the Residential School Independent Assessment Program to child protection experience as parent’s counsel or as counsel for the Ministry or a First Nations Agency). Ongoing professional development is also facilitated by the Counsel for Children program, including hosting regular conference calls for roster lawyers to discuss practice issues, promoting connections with similar programs in other jurisdictions (thus opening up webinars and conferences from other programs to us), and a recent full-day program, held on October 14, 2016, at Wanuskewin Heritage Park, including experts in the area of working with clients who have experienced trauma, childhood brain development, a panel including Ministry and parents counsel, and so on.
are screened for the roster, etc.), please visit https://www. saskatchewan.ca/residents/justice-crime-and-the-law/ courts-and-sentencing/counsel-for-children, or contact Betty Ann Pottruff, the Children’s Counsel, with the Public Guardian and Trustee, or one of the roster lawyers in your community. Ms. Pottruff and the roster lawyers share a keen interest in continuing to develop awareness of the program and of our role – children’s interests depend on it. Through our shared efforts, we can start to respond to the call to action to create greater awareness of child welfare law, and the necessity to create better outcomes for those involved, in Saskatchewan.
Support and resources are also available to roster counsel with respect to understanding the difference between instructional advocacy and best-interests advocacy. Counsel for a child or youth client must assess, in each case, which role they are fulfilling and be transparent with the court and the parties as to the same. The default position of the program, which is well supported by The Code of Professional Conduct of Saskatchewan, is that the role of counsel for a child or youth is to assess capacity and to provide instructional advocacy (i.e. act on the instruction of the client), unless the child or youth lacks capacity, due to age, maturity, or developmental factors, to instruct counsel. In that case, counsel takes a bestinterests, or amicus curiae, role. In that situation, counsel for the child is as a friend of the court, and the role of counsel is to help ensure that all relevant evidence is before the court, including evidence about the child’s wishes. One of the key roles of counsel for a child or youth client is to help build client capacity to help them understand and make informed choices about their wishes.
In sum, I believe that children involved in child protection proceedings in the province are benefiting from the changes that the introduction of the program have brought. We have an increasingly well-informed bar and bench, we have a growing roster of lawyers, we have an increasingly knowledgeable and skilled counsel representing child and youth clients, and we are having more outcomes that incorporate, in one way or another, the input of the child upon whom the proceedings are focused. If you would like more information on the practical aspects of how the program operates (how to request counsel for a child, how counsel determines if they can take an instructional advocacy role or a best-interests approach, how lawyers
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COMMENTARY
CRIMINAL CODE PROVISIONS STILL ON THE BOOKS — 150 YEARS LATER KATE CRISP || SCHARFSTEIN GIBBINGS WALEN & FISHER LLP
T
he Criminal Code of Canada was first enacted by the MacDonald Government in 1892 following the powers conferred upon the federal government to codify criminal law pursuant to section 91(27) of the Constitution Act, 1867.
Following enactment in 1892, the Criminal Code has been amended and consolidated, as it last was in 1985, but has rarely been subjected to a full review and revision. Accordingly, there are still many provisions in our current Criminal Code that were contained in the original 1892 version. Many of these provisions, including provisions relating to murder, theft, etc. are still relevant and necessary in today’s criminal provision. Some of the provisions, however, show the code’s age, so to speak, speaking to a different time and place in our history. For example, section 49 states as follows:
Every one who wilfully, in the presence of Her Majesty,
(a) does an act with intent to alarm Her Majesty or to break the public peace; or
(b) does an act that is intended or is likely to cause bodily harm to Her Majesty, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
This provision predates even the 1892 version of the Criminal Code, stemming from Britain’s Treason Act, 1842. As one oft finds themselves in the presence of her Majesty, one must remember to cause her no alarm. Section 71 of the Criminal Code, stemming from section 91 of the 1892 code, prohibits challenges to duel. Every one who
(a) challenges or attempts by any means to provoke another person to fight a duel;
(b) attempts to provoke a person to challenge another person to fight a duel; or (c) accepts a challenge to fight a duel, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
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This is certainly a provision we must all keep in mind in our daily practice. While the thought may cross our minds to settle matters with opposing counsel by challenging them to a duel, we best confine our dueling to vigorous debating in the courtroom, or we risk the consequences.
I think my favourite antiquated provision from the Criminal Code, however, relates to corrupting morals... something I aim to do as often as I can. Sections 163 and 167 provide as follows: 163(1) Every one commits an offence who
(a) makes, prints, publishes, distributes, circulates, or has in his possession for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or other thing whatever; or (b) makes, prints, publishes, distributes, sells or has in his possession for the purpose of publication, distribution or circulation a crime comic. ...
167 (1) Every one commits an offence who, being the lessee, manager, agent or person in charge of a theatre, presents or gives or allows to be presented or given therein an immoral, indecent or obscene performance, entertainment or representation.
The wording of these provisions have been amended over the years, but the basic thrust of these sections, no pun intended, can be found at section 179 of the original Criminal Code. So all of you amateur authors and performers out there, please contain your musings to proper and upstanding matters only. Although the work itself might be criminal, I wouldn’t want you to actually go to jail...
The final example for the purposes of this article relates to the practice of witchcraft. 365 Every one who fraudulently
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(a) pretends to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration; (b) undertakes, for a consideration, to tell fortunes; or
(c) pretends from his skill in or knowledge of an occult or crafty science to discover where or in what manner anything that is supposed to have been stolen or lost may be found, is guilty of an offence punishable on summary conviction.
This provision caused me the most personal upset as it means that I’ll have to stop telling people that I attended Hogwarts School of witchcraft and wizardry. So the next time you read some Sherlock Holmes or have your tea leaves read, remember that although it may seem innocent, it is in fact criminal.
CALL FOR VOLUNTEERS
CBA Saskatchewan is looking for volunteers to conduct interviews at its annual Mock Interviews for law students at the College of Law, University of Saskatchewan on Wednesday, January 25, 2017. This event is not only very beneficial to the students, but it also provides law firms an opportunity to meet and interact with law students in a very intimate and meaningful way, earlier than might otherwise be possible.
This year the Mock Interviews are scheduled to begin at 8:30 am, Wednesday, January 25th, and should be finished by 4:30 pm. The day is divided into 20 minute time slots. If you are not available for the whole day, maybe for some portion of it (the morning, the afternoon, or some variation thereof) may be of interest to you. Should you decide to volunteer, your job, within each 20 minute time slot, would be to: 1) conduct a brief job interview; and/or 2) review the student’s cover letter and résumé. Please contact Brenda Hesje (brenda@cbasask.org) if you are interested in participating Interested in participating in Law Day 2017, to be celebrated April 19th? Activities take place throughout Saskatchewan throughout the month of April. We are currently looking for volunteers for several initiatives including: • serving as Legal Advisors for high school teams participating in the Mock Trial;
• participate in a new venture, which envisions lawyers and judges going into the school classrooms throughout the province to talk about the law and the legal profession; and • provide general legal information to the public on a toll free phone line.
Please contact Christopher Weitzel, Professional Image Chair if you have any questions and to volunteer (cweitzel@sgi.sk.ca).
BAR JUDICIAL COUNCIL REPS The Bar Judicial Council deals with matters of concern between the Bench and the Bar. If you have suggestions on how the administration of justice can be improved, suggestions can be given to the appropriate representative listed below.
COURT OF APPEAL MURRAY SAWATZKY, QC McDougall Gauley LLP, Regina msawatzky@mcdougallgauley.com
CHRISTINE GLAZER, QC McKercher LLP, Saskatoon c.glazer@mckercher.ca
COURT OF QUEEN’S BENCH JEFF GRUBB, QC Miller Thomson LLP, Regina jgrubb@millerthomson.com
JENN PEREIRA Robertson Stromberg LLP, Saskatoon j.pereira@rslaw.com
PROVINCIAL COURT BONNIE MISSENS Saskatchewan Indian Gaming Authority, Saskatoon bonnie.missens@siga.sk.ca
SUZANNE YOUNG Grayson & Company, Moose Jaw syoung@graysonandcompnay.com
WINTER 2016 27
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BARELY BARRISTERS
ON A ROLLER COASTER TO LAW DESIREE LALONDE || FRANCIS & COMPANY
T
he transition from law school, to articles, to practicing law, was challenging. A person who enjoys clichés may even say it was an emotional roller coaster ride.
Before a ride even begins, you usually have to stand in line and wait your turn to get on. For me, and many of my classmates, finding articles was difficult. There was a shortage of seats on the roller coasters. Some roller coasters didn’t look my speed or were limited to people who were “this tall”. It was stressful not knowing which roller coaster would be a good fit for me or when it would be my turn to ride. Once I took my seat, panic set in. Was I on the right ride? Was I ready for those plummets, twists, and loops? Did I even want to go on a roller coaster? The merry-go-round was looking way more my speed. I just wanted the ride to start to get it over with.
I was worried that I didn’t know enough about the law, the procedures, or even the adult world, and my principal, other lawyers, clients, judges, and support staff would be disappointed with my work. I wanted to close my eyes and launch to the part of my career where I felt comfortable with the practice. More than my worry that I was inadequate, I worried that I would be unhappy with the ride I had chosen. I spent eight years waiting in line to get into the amusement park and walking around sizing up all of the different rides. Honestly, I wasn’t entirely sold on the roller coaster.
twists to my work. The horseshoe turn in responsibility terrified me. However, along with the liability came more control. I felt relieved that my input had more weight and I could make decisions with more confidence. I gained the ability to make the calls I felt comfortable making, but I continued to have experienced lawyers willing to help.
Throughout the ride, there have been bumps. There were days I got chastised by my learned friend and other days a judge would thank me for my work. Some days I dove into an interesting or meaningful file, other days I had to bribe myself out of bed.
Having survived law school, articles, and a few months as a lawyer, I feel relieved. I have found an area of law that I really enjoy, that is meaningful to me, and that I don’t feel entirely lost in. I have more confidence. I have met and worked on files with some inspiring lawyers that I can learn from. Not just law or procedure, but ways to better our practice for ourselves, our clients, and those who are impacted by the decisions we advocate for or against. Lawyers who are making a splash down. Safely on the platform, I’m glad I chose the roller coaster. The merry-go-round seems so boring now. I don’t think I would enjoy a career I could coast by in. I’m pleased I survived to the end of the ride and the car didn’t fly off the tracks.
Starting at the bottom, the tracks could only lead up. Within the first week of articles, I was settling in to the pace. Things were going surprisingly well, too well. I was anxious for the inevitable thrill elements. The start of CPLED flipped my routine upside down. I had gotten into a groove, so the additional work and time away from the office threw me off. But I held on tight and survived the corkscrew of assignments. Without even getting sick. Being called to the bar brought some
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PRO BONO SPOTLIGHT
ANNUAL LAWYERS CHARITY GALA CARLY ROMANOW || PRO BONO LAW SASKATCHEWAN
P
ro Bono Law Saskatchewan will be hosting the Annual Lawyers Charity Gala on January 27, 2017 at the DoubleTree by Hilton in Regina. The event is a great opportunity for the legal community to mix and mingle all while supporting the great cause of improving access to justice in Saskatchewan. The funds raised will go towards Pro Bono Law Saskatchewan which runs eleven free legal clinics throughout the province as well as provides opportunities for lawyers to provide full representation services on a pro bono basis. As well, the 2016 Pro Bono Service Award will be given out at the event. The Pro Bono Service Award is an award presented jointly by the Law Society and PBLS to recognize an individual who has provided outstanding pro bono service.
GOWN toGOWN SAVE THE DATE
LAWYERS’ CHARITY GALA
JANUARY 27, 2017 DOUBLE TREE BY HILTON 1975 BROAD STREET - REGINA, SASKATCHEWAN
~ MORE DETAILS TO FOLLOW ~
Please contact us at info@pblsask.ca or call 306-569-3098 for more information.
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STAY CONNECTED. STAY CURRENT. View CBA Saskatchewan section meetings online: http://www.cbasask.org/Section/ Section-Registration.aspx
REGISTER FOR SECTIONS: www.cbasask.org
STUDENT CORNER
WOMEN AND THE PRACTICE OF LAW LINDSAY HJORTH || COLLEGE OF LAW, UNIVERSITY OF SASKATCHEWAN
O
ver the last number of years, the legal community has made great strides towards gender equity in the practice of law. Women and men are now entering law schools and practicing law in approximately equal numbers. In spite of this tremendous achievement, there are still areas where the results are less encouraging. In March 2016, Ontario-based Criminal Lawyers’ Association (CLA) produced a study entitled, “The Retention of Women in the Private Practice of Criminal Law.” It found that female criminal defense counsel tend to drop out of the practice at significantly greater rates than their male counterparts; “60 percent of women who’d started out in criminal law had left, compared to 47 percent of men”. This report has opened the door for a much-needed dialog about gender inequity facing women in criminal defense. The practice of criminal defense is of course very challenging regardless of your gender. However, in addition to those challenges that inherently come with criminal defense, women also face additional obstacles because of gender. This underlying sexism was one of the key themes addressed in the most recent installment of the McKercher LLP Lecture Series at the University of Saskatchewan’s College of Law.
Marie Henein is a high profile criminal defense lawyer from Toronto. She became a household name by defending Jian Ghomeshi
against sexual assault allegations, which consumed the media. On September 13, 2016, Ms. Henein addressed a packed auditorium with a speech entitled "An Inconvenient Profession.” An intriguing speech title at first, the audience quickly discovered that she was speaking to "inconveniences" facing a criminal defense lawyer, and more specifically those facing a female lawyer who dares to enter the area of criminal defense.
During the lecture, Ms. Henein spoke to the displeasures that she had felt from the public and media, and to barriers within the profession. She lectured on loyalty to the client, and the fundamental importance of providing criminal defense work to the public. Facing the loss of liberties and the stigma of a criminal conviction is a frightening and lonely experience for any individual. She expressed the importance of being one of only a few people who stands beside someone throughout the criminal procedure and views their client as innocent until proven guilty beyond a reasonable doubt.
She stressed that passion and ability to withstand negativity were essential requirements to working in criminal defense work as a female. Above and beyond the systemic barriers female criminal defense lawyers face within the profession, women tend to be cast negatively in the media during the judicial process. Throughout the Ghomeshi trial, both Ms. Henein and Mr. Ghomeshi were scrutinized
in the public eye. Ms. Henein was characterized as a cold-hearted, cut-throat lawyer, and even a traitor to her gender, simply because she was defending a client with sexual assault allegations. Despite this scrutiny, Ms. Henein says she is not dissuaded or dispirited, and there will not be a day a “tweeter, writer or academic commentator will shake her” because, at the end of the day, she is protecting her client and her client’s interests.
When a female law student asked Ms. Henein about the CLA report noted above, she did not, however, speak only to the challenges. She spoke about the passion required to continue to want to do this job. She spoke to the ruthless hours and the work ethic required to be a criminal defense counsel. She explained the path she took, and the compromises she made in order to get to where she was today. She spoke to the discrimination of being a female defense lawyer when she said, "It is unlikely a male criminal defense lawyer would have been subjected to the public scrutiny she was subjected to throughout the Ghomeshi trial." When asked about all of the negative comments from the media and public she said, “If I were to believe what I read, I would have been on a couch a long time ago. I know what I am and that’s all that matters”. She is apathetic towards the negative comments because according to her, she is an honourable lawyer protecting the legal rights of her clients. She WINTER 2016 31
contact@ashlow.com
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encouraged aspiring female criminal defense law students noting that, "Although the walk may be challenging, do not for one minute think you walk this path alone.”
In the legal profession, overall, it is apparent that we still have gaps in achieving gender equity, particularly in the area of private criminal defense. The recent CLA report stated that “criminal law was a poor environment for women to work in, with others discussing feelings of being “dumped on” by media, Crown lawyers, court clerks, judges, and even their clients. The private practice of criminal law was seen as very much still an “old boy’s club”. It can be disheartening for young female law students eager to enter
practice to discover that after writing the same LSAT, the same law school exams, and passing the articling interviews, females arguably have fewer areas to practice, and face additional hurdles compared to our male colleagues. If women continue to be treated poorly, simply because of their gender, then many will continue to leave the area of criminal defense in private practice. Those who choose to stay in spite of the challenges, as Marie Henein did, will do so because of their considerable passion for advocacy and defense work. It is clear that conversations need to continue regarding gender equality and female empowerment in private practice, and the legal profession as a whole. On September 13th, despite the troubling statistics and frank
discussion on continuing gender inequity, no hint of discouragement was noticed at the College. Rather, the mood was one of inspiration.
“Empowerment” was a universal word female law students used to describe how they felt after Ms. Henein’s lecture. It was a unique experience for female law students to hear from an admired and respected senior female lawyer, and it is very rare in the legal profession that a woman speaks to her past struggles and vulnerability in such a raw manner. She reiterated that we should never feel alone because she was here to stand beside us throughout our struggle, as are many others.
On October 5th, Branch President Neil Robertson, QC hosted the 9th Annual President's Dinner in Regina. Back Row: Ken Ready, QC (91/92), Murray Sawatzky, QC (08/09), Neil Robertson, QC (16/17), Bill Johnson, QC (CBA National President 03/04), Bob Leurer, QC (03/04), Anne Wallace, QC (04/05), Justice Ralph Ottenbreit (02/03), Perry Erhardt, QC (10/11) Front Row: Bill Ready, QC (79/80), Hon. Larry Kyle (81/82), Gail Wartman, QC (14/15), Jeff Grubb, QC (00/01) WINTER 2016 33
STUDENT CORNER
MISS UNIVERSE CANADA – 11 YEARS IN THE MAKING SIERA BEARCHELL || COLLEGE OF LAW, UNIVERSITY OF SASKATCHEWAN
I
n Grade 6, I watched as Natalie Glebova from Canada won the title of Miss Universe 2005. I decided then, at 12 years of age, that I would one day wear the CANADA sash on the Miss Universe stage. Now, 11 years later, I will be doing exactly that. I began my “pageant career” in 2009, just three weeks after losing our family home to a house fire. I was 16 years old and wanted to volunteer and make a difference with the Red Cross. I competed for the title of Miss Teen Saskatchewan. After success at the provincial level, I went on to win the title of Miss Teen Canada-World. I was later Second Runner-Up at Miss Teen World. My experience allowed me to travel around the world to places like Kenya, Africa to build a school with
34 BARNOTES
Free The Children and grow as an individual and a youth leader. I saw opportunity within pageantry and decided to take it to the next level.
I set out to achieve my goal of winning Miss Universe Canada in 2013. While I did not win the title at that time, I came as close as possible by placing as First Runner-Up. I decided I wanted to prove myself on the International pageant stage. I set out to compete for a National title to represent Canada at another “Grand Slam” Pageant--Miss Supranational. I won the Canadian title, and placed as First Runner-Up at Miss Supranational 2015 in Poland. This was the highest placing Canada has achieved at a Grand Slam Pageant since Natalie Glebova won the title of Miss Universe in 2005.
After my International success, I gained many more “pageant fans” and followers from around the world who encouraged me to run again for the National title to represent Canada at the well-known Miss Universe competition. After careful planning and consideration, I concluded that
STUDENT CORNER
the timing was perfect, and I competed for the title once again.
I finished my second year of law school and ran my first full marathon in the few weeks prior to the Miss Universe Canada competition. Consequently, my body did not respond well to all of the stress. Prior to the competition, I developed tonsillitis. While this was, by no means, a positive state to compete in, I battled through the fever, cold sweats, difficulty speaking and decided to be the best I could be during that time. My perseverance proved successful as I won the “Best in Runway Award,” the “Miss Photogenic Award” and landed a spot in the Top 20.
I advanced from the Top 20 to the Top 10 and into the final, Top 5. Next, was the On-Stage Question and Answer which I feared because of my inability to project my voice. I gave it everything I had in the moment and the time came to announce the runner-ups and the winner of Miss Universe Canada 2016. The 4th Runner Up was called, the Third Runner-Up, the Second RunnerUp and I was left standing with my good friend, Amber Bernachi from Ontario. Finally, they announced the First Runner-Up as Amber from
Ontario… and “Miss Universe Canada 2016 is... Siera Bearchell!!”
I did it! I battled through the week and finally achieved my goal, earning the right to represent Canada at Miss Universe. It was 11 years in the making, and I finally had that crowning moment. It felt surreal, but it also felt as though it was meant to be. My state of illness made the victory a little bit sweeter. Since winning the title, I have travelled to Nicaragua and Colombia to work with Operation Smile and
SOS Children’s Villages. Regardless of when and where the pageant will be held (it remains unannounced at this time), I will stand proudly wearing the Canada sash, as a proud Canadian, and as a proud Saskatchewan law student from the Friendly City of Moose Jaw. I recently accepted a position at the Saskatchewan Legislature for the remainder of the year while I fulfill my other duties of Miss Universe Canada including competing at Miss Universe. I will return to my legal studies as soon as my schedule allows.
LET’S GET ACQUAINTED cba.org The Canadian Bar Association is
WINTER 2016 35
Consistent with the new CBA Strategic Direction of
POSTCARD FROM A LAWYER
GET IT OVER WITH – GO TO ITALY! MIKE RUSSELL || MCDOUGALL GAULEY LLP
I
n 2009, Shaunt Parthev told me, “Just get it over with man and go to Italy”. His point was that I shouldn’t “waste [my] time visiting a bunch of places [I’ll] never go back to” because, once you go to Italy, you’ll never want to go anywhere else. I tend to listen to Mr. Parthev—not just because he’s got a QC, but because he’s got very strong opinions on everything (he hates mortar and pestels with a passion, for example) and is often heard to say that an experience: “didn’t change my life”. So when he says something is good, it usually is. I travelled for the first time to Italy in 2009, and I have been back each and every year since then. (Though, in 2014, I went twice, for reasons beyond the scope of this article.) The first thing that struck me was the language. (That’s not true, actually— it was the espresso, which not only tasted wonderful, but woke me up like that time I was dropped into a bathtub of ice water at a party in high school.) But the language fascinated me. It is so romantico and the cadence is mesmerizing. And all of a sudden, I felt so uncool speaking English. I wanted to gesticulate wildly and shout those beautiful words in the cafes and the streets. My Italian’s come a long way since then.
I started with Tuscany, near Pistoia. That’s where I managed to leave my (then) girlfriend stranded in the deep woods of a remote mountain at dusk, surrounded by wild boars. We had taken a long hike down a mountain road and had stopped in a 36 BARNOTES
little town at the base to buy wine and other necessities. The issue we had was that it was getting late (around five), and we still had a three hour hike back along the road. It seemed to me that there must be a shortcut back to the villa, so I asked around if anyone spoke English. No one did. So I tried French, and it turned out that a local woman could get by in French and knew of a shortcut that would take 45 minutes to an hour. But, she warned, “you’ll have to hurry because it’s getting dark and there are wild boars with piglets”. “What did she say?” my girlfriend asked. “Oh. She said that it’s only like half an hour and it’s easy to get there”. And so we set out.
It took about 15 minutes to get to the base of the mountain, and then we discovered that there was really no path. It was a typical dense forest: lots of trees, with a few spaces around the trees to manoeuvre. I quickly switched into “brute-force-stupidman-I-know-this-is-a-brutal-planb u t - I - c o m m i t te d - u s - to - t h i s - s o let’s-do-it-anyway” mode, and we set out through the dense forest in the direction of “up”. After about 40 minutes of intense climbing, slipping, a thousand cuts by bramble and branches and intense perspiration, things got ugly. It was now pretty much dark, and I had become the most reviled man on the mountain (and also the only man on the mountain). My girlfriend had determined she would go no further, and told me she was going back. Then another great idea struck me: “you wait here, and I will sprint to the top and see if we’re close—just keep yelling so I can hear
you. And don’t go anywhere!” So I left her with the provisions and ran like hell up this ridiculous mountain. I could hear her calling for a while and then… nothing. After about ten minutes, I decided to give up and go back to her. It was getting really dark, I had lost her, and a new development was driving my anxiety levels up: the unmistakable screeching and crashing of wild boars in the forest. We had seen a few from far away before, and I remembered remarking that I did not want to meet one.
I ran faster down that mountain than I imagined possible, and when I got to the spot where I thought I had left my unfortunate climbing partner, she was nowhere to be found. The boars were getting louder and closer. I was yelling to her all the while, but she was gone. The time for trying to negotiate with the mountain had run out, and it was time to bail. So I bailed down that mountain, taking branches in the face and scraping my legs repeatedly. I got down to the base in what must have been a village record, but then I had a new problem: a big river with only one bridge, it’s very dark and I don’t know where the bridge is. At this point, I realized that the situation was dire. But I pressed on. After a frantic 15 minute search, the bridge appeared, and I was again sprinting to get back to the tiny village. I arrived at the local bar, completely drenched in sweat, totally out of breath and looking like a madman. I ran into the bar.
POSTCARD FROM A LAWYER
The French-speaking lady was there. She looked at me, and you could see regret all over her face for giving directions to this drenched fool. “Where is the girl?” she asked. I pointed up the mountain. “Cazzo!!” was her reply in Italian. Then a bunch of locals began gathering around us, and there was much gesticulation and shouting. Pretty soon the mountain rescue (firefighters) and the Carabinieri (military police) began arriving. There were probably fifty of them, and a search party was formed. “I’m in good hands”, I thought. It had been determined that I spoke very little Italian, they spoke very little English, but that I spoke French. And so an Italian man who spoke some French was summoned as the interpreter, and he proceeded to inform me that I would be leading the search party. “There must be some mistake”, I told him. Surely the mountain rescue team was more qualified. “No!” he replied: “only you know where you went and where you left the woman”. This was a fair point.
So over the bridge and up the mountain we went. We climbed steadily for about 40 minutes, with me in the lead in shorts and a completely drenched t-shirt (the only way I could have been more illdressed would have been if I had been wearing sandals). At one point, one of the firefighters slipped on a rock and almost went to his demise into a ravine. But he was gingerly caught by two other men and pulled back from the precipice. Then, suddenly, the crew began gesticulating and shouting loudly, and the interpreter told me to stop. “Do you recognize this place? Do you know where we are?” Of course I didn’t recognize the place or know where we were. We were three quarters the way up a bloody mountain in the pitch dark, and I had a profound lack of familiarity with this mountain, mountains in general and mountain navigation. (I am about as
familiar with mountains as family law, though I understand both can lead to misery.) I told him I had no idea where we were. This did not go over at all well. A collective wave of fury went up amongst the rescue team, and then the interpreter said: “we are going back to the bottom to start again. Now you’ll have to get it right this time”. Perfect. So back down we go, with several slips and falls and many loud exclamations from the men which I guessed were really bad parolacce (curse words).
So we started all over again, and climbed that mountain in some new random way that my mind devised (it would, of course, never be possible to retrace the path except by some random coincidence). And then, suddenly, about 45 minutes into the second ascent, a man came over the radio and a collective cheer went up. The poor girl had been located. Apparently, she had intended on going back to the base of the mountain, and had started out, when she suddenly came face to face with a herd of wild boars which proceeded to chase her up a tree. The herd did not go far, and beset her. Finally, after deciding she could wait no longer up that tree, she decided to make a run for it. The way down the mountain was fraught with boars, so she ran like hell up the mountain and did not stop. She encountered another herd near the top of the mountain, which chased her in the opposite direction she had been running in. And then, as she emerged through the trees at the peak of the mountain, she saw a familiar road and found that she had been chased to the villa. Unbelievable. A bottle of vino was apparently promptly opened and consumed. Meanwhile, the relieved but disgruntled search party was on its way back to the village (interestingly, I was no longer in the lead). When we arrived, there was a big man waiting beside a black car with a lot of shiny things on his
lapel. I was presented to the man, who was called “il Capitano”. He told me in English that he was happy to hear that everything was okay. I thanked him profusely, and apologized for bringing most of the residents of the nearby villages out of their houses, along with dozens of military police and firefighters. He put his hand on my shoulder and replied: “Just a wait a till a you a get a the bill”. But it’s not all drama. I’ve developed a bit of a circuit over the years. I like to start in Venice. There’s an area near the Ponte dell'Accademia (Accademia Bridge) that I love. I will stay a few days at Palazetto Pisani, a fifteenth century palace which faces out upon the Grand Canal, and then I will move to cheaper airbnb digs in the Venetian Ghetto in the Cannaregio sestiere, a distinctly local area where you can escape the tourists—though you can never escape yourself. Nearby Palazetto Pisani is the Chiesa di San Vidal (San Vidal Church), which has been converted into a concert hall for an orchestra called Interpreti Veneziani. These musicians are remarkable. Several of them can play the Venetian composers (Verdi, Vivaldi, etc.) off by heart, and the solos are amazing—particularly cello player, Davide Amadio (youtube this: you won’t believe how good this guy is). Then very close to the concert hall is Casanova’s birthplace. I have read almost all of his memoirs (about 3,500 pages), so I find that spot particularly interesting and compelling (I have watched the sun set and rise here).
I will usually go to Rome for some days to see friends. Then I will head to Salerno to stay with the D’Arcangelo family, who are also absolutely wonderful. Salerno is lovely because it is minutes from the Amalfi Coast and close to the Island of Capri, both favourites of mine. This year, I went on a scooter expedition up the Amalfi Coast with my crazy friend Lucio at WINTER 2016 37
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the controls. We made it back with bottles of limoncello and colatura di alici (oil of the anchovies) in one piece somehow. If you ever have the chance to try it, make your noodles and drizzle the anchovy oil on top with some parsley or cilantro mixed in with parmigiano reggiano. It will change your life.
Then I like to stay in Tuscany (though I’ve swapped mountains for vineyards, thank you very much, so I now stay farther South). I sleep in an old vintner’s cottage on the estate near Palazzone. Palazzone is a beautiful little village near Montepulciano and the Tuscany/Umbria border with a population of about 300 people. Two major wine producers have cantinas in Montepulciano: Contucci and Poliziano. (I got a bit carried away at those last time I was there, and left with far too many bottles to cart home.) Nearby, in San Casciano dei Bagni, at a “secret” location that only the locals know, is the Bagno Grande, which is a thermal bath built by the Etruscans. The waters contain sulphur, calcium and flourides, and come out of the spring at 42 degrees celcius. It’s glorious. My favourite part of Tuscany is dining with la famiglia Mori. I met the family back in 2012, and they took me under their wing. They make wine, olive oil and do a bunch of other things. The head of the family is zio (Uncle) Mario. Dining with the Mori family is amazing. Not only do they keep Spanish hours (which I love), I love their quintessentially Italian ways. When Uncle Mario invites me to dinner, it will sometimes be in person or through one of his 38 BARNOTES
daughters on facebook. If in person, the invitation will be something along the lines of (in Italian) “you will dine with us tonight. 8:45” (which means 9:00 because, in the North, everyone is always about 15 minutes late—in the South, it can be more like two hours). If it’s facebook, the message (which is a bit tricky to translate properly) will be like: “Uncle Mario requires your presence at table tonight. 8:45”. There is no option to say no (not that I ever would). So I usually get there around nine. Dinner is served at around 9:30, and then everyone starts eating. Except Uncle Mario, who isn’t there yet. Then, around 9:45 or 10:00, Uncle Mario arrives, and like an emperor, he takes his seat. Then he pours a glass of wine (Mori reserve red) and settles back to observe. Uncle Mario is a great observer. Then after dinner, we play music. I will play guitar with daughters on vocals and piano. One night, Uncle Mario retired to his room, and I said to the daughters, “shouldn’t we stop playing?” “No.” I was assured that, “when Uncle Mario has had enough, you will know”. About an hour later,
as we are breaking into a rousing rendition of “Wonderwall”, a message came down with the son: “Uncle Mario says… it’s enough”. Now, at my parents’ house, when I’m playing music and my father says it’s time to stop, we definitely finish the current song (and maybe sneak one or two more in). Uh uh. Not with Uncle Mario. We were building to the crescendo of “Wonderwall” where the singing gets really loud. But as soon as that edict came down, everyone stopped, and I got the hell out of there. The next time ended a bit differently. Uncle Mario came out of the room himself. I stopped playing immediately. He handed me a figurine of a lion which he had brought from Kenya and said, “keep it to remember”. It is to remind me that I have promised to go to Cuba with him at Christmas. (He didn’t have a figurine from Cuba, so this would have to do.) Then he said, suoniamo! (play!). So we continued. Anyway, I could go on. But all of this is to say: if you haven’t been to Italy, just get it over with and change your life. Just one word of warning: I wouldn’t suggest getting married there. But
The Mori Family
CALENDAR OF EVENTS December 15, 2016 NOMINATION DEADLINE: BRANCH TREASURER December 15, 2016 NOMINATION DEADLINE: ELECTED MEMBER OF COUNCIL January 13, 2017
Executive Committee Annual Planning Meeting
Regina
January 25, 2017
Mock Interviews at College of Law
Saskatoon
January 27, 2017
Gown to Gown Charity Gala
Regina
February 2, 2017
Council
Saskatoon
February 2-3, 2017
MID-WINTER MEETING
Saskattoon
February 24, 2017
CBA Board of Directors
Ottawa
April 17, 2017
NOMINATION DEADLINE: COMMUNITY SERVICE AWARD
April 19, 2017
LAW DAY
June 15, 2017
ANNUAL MEETING
Regina
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WINTER 2016 39
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