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Form 47

DID YOU KNOW... Law Society rule 3-56(2) requires that all disbursements of trust funds must be made by issuing a cheque from the lawyer’s trust account. Faxing instructions to your bank to wire funds from the trust account to another account is not in accordance with the rules.

A Member of SC International with Offices Throughout the World 1200-609 Granville Street, Vancouver P: 604-687-0947 F: 604-687-6172


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IN MEMORIAM It is with deep sadness that Carswell learned of the death of John Lorne (Jack) Gibson. Jack passed away November 7, 2003. He practised law in Saskatchewan and in British Columbia. Jack started his association with the Attorney General’s department in Nanaimo. Later, he moved to Chilliwack, British Columbia where he was Regional Crown Counsel for 25 years until his retirement in 2001. Jack was an esteemed Carswell author.

Carswell extends its condolences to his family and friends.

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OFFICERS AND EXECUTIVES LAW SOCIETY OF BRITISH COLUMBIA William M. Everett, Q.C.—President Peter J. Keighley, Q.C.—First Vice-president Ralston S. Alexander, Q.C.—Second Vice-president BENCHERS EX OFFICIO The Honourable Geoff Plant, Q.C. Attorney General of British Columbia LAY BENCHERS Michael Falkins Patrick Kelly Patrick Nagle June Preston

Lilian To Dr. Maelor Vallance ELECTED BENCHERS Robert D. Diebolt, Q.C. Ian Donaldson, Q.C. Anna K. Fung, Q.C. David W. Gibbons, Q.C. Robert W. Gourlay, Q.C. John J.L. Hunter, Q.C. William Jackson Gerald J. Kambeitz, Q.C. Robert W. McDiarmid, Q.C. Margaret Ostrowski, Q.C.

G. Glen Ridgway, Q.C. Patricia L. Schmit, Q.C. William J. Sullivan, Q.C. Grant C. Taylor G. Ronald Toews, Q.C. Russell S. Tretiak, Q.C. Ross D. Tunnicliffe Gordon N. Turriff, Q.C. James D. Vilvang, Q.C. Anne K. Wallace David A. Zacks, Q.C.

CANADIAN BAR ASSOCIATION—BRITISH COLUMBIA BRANCH EXECUTIVE COMMITTEE Stella Frame, Officer, Equality Committee Representative Tracey Brice-Nicolson, Officer, Young Lawyers’ Representative Sabrina A.S. Ali, Officer

Robert C. Brun, President Michael C. Woodward, Vice-president Meg E. Shaw, Secretary-treasurer David A. Paul, Past President Frank C. Kraemer, Executive Director

Diana L. Dorey, Officer Sharon D. Matthews, Officer Frits Verhoeven, Officer Caroline Nevin, Associate Executive Director

ELECTED MEMBERS OF THE NATIONAL COUNCIL CARIBOO (Fraser Fort George) Jan Christiansen Thomas B. Townrow (Peace River) Leslie G. Dellow (Thompson-Nicola, Central Coast) Gary J. Lilienweiss KOOTENAY E. Patricia Boyd R.G. Stacey Kenneth R. Steidl, Q.C. John C. Zimmer NANAIMO (Courtenay/Comox) Brian E. Hutcheson

(Cowichan) Donald E. Taylor, Q.C. (Oceanside) C. Vaughan Allin Adam de Turberville (Campbell River) Daniel A.J. Wickham PRINCE RUPERT Don Brown Tim D. Klaassen Michael J. Shaw VANCOUVER Sabrina A.S. Ali Cleta Brown Grace G. Choi Diana L. Dorey Stella Doreen Frame

Michael Gianacopoulos Douglas Harrington Ravi R. Hira, Q.C. Sandra J. Jakab Kenneth M. Kramer Lana K.L. Li Elizabeth B. Lyall Paul D. McLean Sharon D. Matthews Marina Morgan Scott Alan Nielsen Allan Arnold Parker R. Mark P. Powers Theresa Louise Stowe Eva Christine Un Eileen E. Vanderburgh Frits E. Verhoeven James O’C Wingham

VICTORIA Kathryn A. Berge, Q.C. Robert S. Gill J. David Ibbetson Barri A. Marlatt Kay Melbye Eugene Raponi Margaret Sasges Anne K. Wallace WESTMINSTER William A. Andrew Kenneth Armstrong Vikki M. Bell, Q.C. H. Alex Dantzer Maria Fazio

J. Lorne Ginther Valerie M. Little Andrew Edward Rebane YALE (Central Okanagan) Meg E. Shaw Lisa H. Wyatt Barbara Miriam Young Nicholas R Zaseybida (North Okanagan) Douglas A. Betton (Thompson-Nicola) Lorianna Bennett

BRITISH COLUMBIA BAR ASSOCIATIONS ABBOTSFORD & DISTRICT Andrew E. Rebane, President Gordon N. Beebe, Secretary Barbara L. Bergen, Treasurer BURNABY Floyd Gradley, President Ronald P. Dumont, Treasurer CAMPBELL RIVER David Fitzsimmons, President CARIBOO Patricia L. Schmit, Q.C., President William D. Bernath, Secretary CHILLIWACK & DISTRICT Paul R. Blessin, President Lawrence Smith, Secretary-treasurer COMOX VALLEY (Courtenay) Mark S. Kelly, President Azim Datoo, Q.C., Treasurer COWICHAN VALLEY Hugh J. Armstrong, President Jeff Arndt, Vice-president Richard Friedrich, Secretary-treasurer FRASER VALLEY G. Garry MacDonald, President Richard W. McMullan, Treasurer Rebecca Darnell, Secretary Lawrence W. Coulter, Past President

KAMLOOPS Lorianna Bennett, President KELOWNA Robert E. Groves, President Eric C. Ledding, Vice-president Meg E. Shaw, Treasurer Sean T. Pihl, Secretary Alaine B. Ball, Director-at-Large James A. Paterson, Past President KOOTENAY Patricia D. Gartner, President Gerald N. Kent Vice-president Susan Kurtz, Treasurer NANAIMO CITY Sandra L. Dick, President NANAIMO COUNTY Robert J. Whittome, President Sheila L. Andreychuk, Secretary NEW WESTMINSTER Vikki Bell, Q.C., President Kenneth Armstrong, Vice-president Samantha Hulme, Secretary-treasurer Gregory M. Rideout, Past President NORTH SHORE Gerald R. Green, President Giorgio Verdicchio, Vice-president Charles Piercey, Treasurer Susan Hart, Secretary PENTICTON & DISTRICT Richard Donavon Covell, President

Pat Bell, Vice-president Kate Lundman, Treasurer Andrew Vandersluys, Secretary PORT ALBERNI Todd Patola, President PRINCE GEORGE Oliver Hui, President PRINCE RUPERT Michael J. Shaw, President QUESNEL Jennifer C. Johnston, President SALMON ARM Dennis W. Zachernuk, President VANCOUVER Executive Joseph M. Doyle, President Todd R. Davies, Vice-president Miriam Kresivo, Secretary-treasurer Timothy J. Delaney, Past President VERNON Leanne F. Rutley, President Ronald Braun, Secretary-treasurer VICTORIA Executive Dean P.J. Lawton, President Paul Pearson, Vice-president Robbie Sheffman, Treasurer Paul Pearson & Roxanne Helme, Social Secretaries Leslie A. Slater, Past President

Changes to the rosters of officers and executives of the Law Society and the various bar associations will be recorded in the issue following the month when they are reported by those bodies to the Advocate business office, subject to time limits imposed by the Advocate’s production schedule.

the ADVOCATE “Of interest to the lawyer and in the lawyer’s interest”

Published six times each year by the Vancouver Bar Association Established 1943 ISSN 0044-6416 GST Registration #R123041899

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169 173 177

Subscription rate $27.50 + GST per year Single copies $7.00 + GST EDITOR: Thomas S. Woods EDITORIAL BOARD: David Roberts, Q.C. The Honourable Madam Justice Mary Southin The Honourable Mr. Justice J.C. Bouck The Honourable Judge Philip d’A. Collings Rodney Taylor, Q.C. Robert M. Dick, Q.C. COMMITTEE: Timothy J. Delaney Miriam Kresivo Joseph M. Doyle BUSINESS MANAGER: Barbara J. Murphy COVER ARTIST: Anne-Marie Harvey EDITORIAL OFFICE: 1600 Cathedral Place, 925 West Georgia Street, Vancouver, B.C. V6C 3L2 Telephone: 604-685-3456 Fax: 604-669-1620 BUSINESS & ADVERTISING OFFICE: Suite 300 - 1275 West 6th Avenue, Vancouver, B.C. V6H 1A6 Telephone: 604-732-6566 Fax: 604-732-6590 Web site: <> E-mail: <>

193 203 211 217 235 241 245 247 249 251 253 257 261 263 275 285 297 301 303 305 309 317

Entre Nous On the Front Cover: Elizabeth Edinger By Tony Sheppard Recent Developments in Aboriginal Law in the United States, Australia and New Zealand: Lessons for Canada? Part II—By James I. Reynolds Goodbye, Sir Robert—Hello, Feoffment By Charles H. McKee Discovery of Electronic Evidence in British Columbia By William Morley The Natural Order of Things By Anne Giardini The Federal Environmental Damages Fund By Harry J. Wruck, Q.C. Australia Calling By Tony Ferrers The Advocate Wine Column—By David Roberts, Q.C. News from the B.C. Courthouse Library Society CLE News LAP Notes Announcing the 2004 Advocate Short Fiction Competition UBC Law Faculty News The Attorney General’s Page Law Society & Miscellaneous Notices Nos Disparus New Judges New Books & Media Classified Letters to the Editor Legal Anecdotes & Miscellanea From Our Back Pages Bench & Bar Contributors


Elizabeth Edinger has made an inestimable contribution to the law and legal education in British Columbia. (She is one of a handful of people in the common law world who both understand renvoi and can explain it to others.) Read more about this profoundly modest but extraordinarily gifted teacher, lawyer and mentor-to-many at page 173 et seq.


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Law, justice and human concern

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t is as unfashionable these days to compliment lawyers as it is fashionable to disparage them. And to some it might seem a little self-serving for a journal that aims to be “of interest to the lawyer and in the lawyer’s interest” to buck the general trend and shower a few kudos on its own constituency. But we at the Advocate are no strangers to bucking trends. If the kudos are warranted—and we think they are—then it seems only reasonable to hand them out. The issue for discussion is client service. If not an obsession, it is at the very least an extraordinary preoccupation of the legal profession. (And as obsessions and preoccupations go, client service isn’t a bad one to have.) Type the search terms “lawyers +‘client service’” into Google and you will get about 22,600 hits. Try the same search for engineers and the number is 12,000. For physicians it’s about 6,120,1 and for chiropractors it’s 591.2 Plumbers aren’t professionals, but the way they charge for their time you’d think they were. The number of hits for those crouching guys with the de rigueur low-rise jeans and the pipe-wrenches? A pathetic 840. We readily concede that the foregoing is the most unscientific of assessments, but like all informal windows on human experience, anecdotal accounts have their place and should not be discounted altogether. The anecdotal record shows clearly that client service is very much on lawyers’ minds. We believe that this concern is in turn reflected in the nature and quality of the work they and their support staff do for those who engage them. Regrettably, most people when booking a doctor’s appointment know that they could spend as much as an hour in the waiting area reading last year’s Time magazines before they are seen. It doesn’t always happen, but it happens often— too often. Place a call to have a cablevision or telephone hook-up installed, and the first thing you’ll discover is that these services aren’t rendered on weekends,



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but only on weekdays. So, you’ll have to take time away from your work so these prima donnas can do theirs. Worse still, at best you will be given a four-hour window of time within which to expect someone to arrive at your door. Is there a government agency that does not interpose a formidable automated telephone answering system between itself and taxpayers needing important information? We all have had the experience of navigating through a maze of endless touchtone menus and submenus, directories and subdirectories, only to arrive, eventually, at the end of a virtual Soviet bread line where, in the company of hundreds of other weary callers, we do a slow burn while listening to a bad recording of Vivaldi’s Quattro Stagione that is interrupted at 45-second intervals by a cheery voice telling us that our calls are important and will be answered more quickly if we stay on the line instead of dialling again. Whatever one may say about lawyers, the vast majority of them know better than to make these obvious client service mistakes. If there’s a law firm out there that uses an automated telephone answering system during ordinary business hours, we haven’t come across it. Law firm clients are seen, with very rare exceptions, within minutes of arriving for their appointments. These, of course, are the easy aspects of client service; but for some reason they apparently aren’t easy for everybody. Lawyers figured out the basics of client service a long time ago, and good on them for doing so. We acknowledge again that the profession is not monolithic and that there are exceptions to every statement we have made in this editorial. But in general, there are few in the service sector who labour harder and agonize more than lawyers about getting things right for their clients. True, lawyers charge handsomely for their time, but there is a pervasive culture within the profession that places a premium on generating excellent work product, on time and on budget. That is why lawyers will sometimes put in 24-hour days to prepare for a closing, or a big cross-examination at a trial. That is why they regularly write reporting letters to their clients to keep them apprised of the progress being made on their files. It sounds hackneyed, but our clients deserve the best we have to give, and by and large we deliver. That is something about which, as a profession, we should be justly proud. Not smug, but justly proud. We do not contend that lawyers always measure up from a client service perspective, or indeed from any perspective. Like all who are burdened with human failings, sometimes they underperform, and we freely admit there is always room in our profession for improvement. Indeed, our law society has even prepared a client survey to assist us in identifying ways to improve client relations.3 But we think it is fair to say—admittedly on the strength of mostly anecdotal evidence—that, collectively, the profession as a whole displays quite remarkable insight into the need for top-drawer client service and the ways in which it can be provided. Maybe that is why lawyer jokes are told mostly by those who are not our clients.

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ENDNOTES 1. Okay, when the search term is changed to it’s “client service” or “patient service”, read “physicians + ‘patient service’”, the dentists don’t get up over 2,000. number goes up to about 12,300, but 3. See Felicia Folk’s Model Client Survey that’s still only half. on the LSBC Web site at <www.lawsoci2. When the search term is changed to read practice/body_prac“chiropractors + ‘patient service’”, the tice_clientsurvey.htm>. number falls from 591 to 580! Whether



D. Harry Bell-Irving Q.C.

D. Jane Dardi

Gordon MacRae

Nicholas P. Smith

Elaine E. Reynolds

Genevieve N. Taylor

Alistair G. Campbell

Mark Hicken

Kerry D. Sheppard

Nicole C. Todosichuk

Robert B. Carrothers

Carol Anne Humphrys

James P. Shumka

Ian Worland


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ELIZABETH EDINGER By Tony Sheppard n 1975, when David Roberts, Q.C. (who was then editor of the Advocate), was looking for someone to take over editorship of the case notes, I immediately suggested my academic colleague and former classmate, Elizabeth (“Liz”) Edinger. I thought Liz would be ideal because she had done such a fine job of editing the UBC Law Review in our graduating year, 1967. In due course, Liz took over the editorship of the case notes, beginning with volume 33, part 5, and has served continuously in that capacity to the present. Few editorships can have endured so long and been so successful. When I visited Liz’s office at the Faculty of Law and she was performing her editorial functions, she would wrestle a huge box of unreported decisions of the B.C. Court of Appeal and B.C. Supreme Court into submission. Working under tight deadlines, Liz would quickly open the box and allocate the unreported cases into piles all over her office, according to subject matter. When the allocation was finished, Liz would immediately dispatch each pile to a designated specialist, keeping any remaining piles for editing by herself. Upon receiving a pile of decisions, the designated volunteer would select and brief cases warranting publication in the case notes. Decisions that were significant to the law of British Columbia, and that were unlikely to be published in the law reports, were especially prized entries in the case notes. The volunteers, who were comprised of practitioners and academic colleagues, would brief their assigned decisions, possibly adding a short explanatory comment, according to the standard format of the day. Liz would receive and assemble the submissions






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into the case notes and send them off to David Roberts, and latterly Thomas Woods, for publication in the upcoming issue of the Advocate. Congratulations and thanks from the profession of British Columbia are due to Liz, and to the numerous anonymous contributors, for many hours of devoted and invaluable service in preparing the case notes. As a result of their efforts, thousands of otherwise unreported decisions and useful short comments have graced the pages of the Advocate and helped to expound and explain the law of British Columbia over the last 30 years. I understand that the case notes are being terminated, having fallen victim to the ongoing technological revolution in the reporting of judicial decisions. Now that decisions may be found so promptly and readily on the B.C. superior courts Web site, or other services, the case notes feature of the Advocate is ending. Only such a major upheaval as the computer revolution could have brought an end to the case notes. Liz has been part of other changes to the legal profession. When she started law school in 1964, only a handful of women were enrolled in all three years of the LL.B. program. In the class of ’67, there were only two women, including Liz, out of 100 or so. From the beginning of her studies, Liz displayed efficiency, incisiveness and an economy of words. She always finished her law examinations before time, to the consternation of her classmates. As one of her struggling classmates, I can say that it was always disconcerting for us to look up from our protracted and stressful labours, only to see Liz coolly and calmly handing in her answer paper and leaving the room at least 15 minutes early. These qualities served Liz well in her role as associate dean of the Faculty of Law from 1988 to 1992, and from 1997 to 2002, establishing Liz as the faculty’s longest-serving associate dean. The same qualities assured Liz’s success as the case notes’ editor. While Liz was associate dean, she had the great pleasure of seeing the graduation of her son, H. David Edinger, B.A. ’87 and LL.B. ’90 (UBC). Subsequently, David attained an LL.M. (Lond.), articled and entered practice with the law firm of Heenan, Blaikie, at its Vancouver office. Liz began her teaching career in 1973 at the UBC Faculty of Law, where she was the first woman appointed to the full-time teaching staff. Over the years, Liz has become one of the most popular and versatile teachers on the faculty, currently teaching large classes in legal institutions, conflicts and federalism. Liz’s range of teaching is so broad as to have encompassed not only the abstractions of constitutional law but also the nitty-gritty of creditors remedies. Liz has been nominated by the students for the law faculty’s Killam Teaching Excellence Award many times, but she declined nominations until 2000, when she finally bowed to the inevitable and accepted the award. As recounted by Justine Wiltshire, LL.B. ’98, her class managed the rare feat of outmanoeuvring Liz. In 1998, as in previous years, Liz declined nomination for the teaching excellence award, claiming she was undeserving. The students who had nominated Liz were not to be denied, however. Justine and her classmates created a

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one-off “Excellence in Associate-Deanship Award” just for Liz, which Justine presented to her at the graduating class dinner. Justine recounts that “with a rueful smile”, Liz graciously received a certificate, which states as follows: Presented to Professor Liz Edinger, for outstanding contribution and unfailing devotion to the students and faculty of UBC Law. On this sixteenth day of March, 1998, the students make this prestigious award, which includes: • The Mushy Heart Award; • The Slave Labour Award; and the • Longest Legs in the Law School Award. Thank you for your kindness, competence and dedication.

As the certificate implies, Liz is very adept at avoiding recognition, but on this occasion at least, the students managed to offer her their collective thanks for all her efforts on their behalf. The award recognizes the unfailingly creative and empathetic steps she has taken to help students overcome financial, emotional and other obstacles that impede their progress to graduation. Liz treasures this award and keeps it on her desk. Liz is an accomplished and widely cited scholar; her publications are both practical and policy-oriented. They have been cited and followed at every level of the judicial system: from decisions of local masters of the B.C. Supreme Court, through to decisions of the Supreme Court of Canada, and even the Judicial Committee of the Privy Council (New Zealand appeal). One of Liz’s most endearing qualities is her lack of pretension. Liz shuns the limelight and has dodged many opportunities for public recognition. Along with many others, I’m delighted that the Advocate prevailed over Liz’s reticence with respect to the tribute reflected in the decision to place her on the front cover. The profession’s thanks to Liz are long overdue for all that she has done for the advancement of legal knowledge and legal education.

ARBITRATION RBITRATION &&MM EDIATION A EDIATION DAVID ROBERTS,Q.C. Q.C. DAVID ROBERTS, Commercial, Securities, Banking, Commercial, Securities, Banking, AAdministrative dministrative Law, Law, Trusts && FiFiduciary Trusts duciary Relationships Relationships Tel. (604) 922-9745 (604) Tel: (604) 661 -7635 FaFax: x: (604) 922 922-4725 -4725 Cell: (604) Cell: (604) 23230-6371 0 -6371 E-mail:


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RECENT DEVELOPMENTS IN ABORIGINAL LAW IN THE UNITED STATES, AUSTRALIA AND NEW ZEALAND: LESSONS FOR CANADA? PART II By James I. Reynolds This is the second part of this article. Part I appeared in the January 2004 issue of the Advocate. It considered recent developments in United States law and some of the recent Australian law on Aboriginal title. This part will complete the discussion of Australian law, consider some recent developments in the law of New Zealand and make some concluding comments on the possible implications of the developments in the laws of the United States, Australia and New Zealand for the law in Canada. RECENT AUSTRALIAN LAW ON ABORIGINAL TITLE (CONTINUED) Western Australia v. Ward This decision of the High Court of Australia in Western Australia v. Ward1 was given on August 8, 2002. Like Yarmirr, it is somewhat intimidating in length, being almost 300 pages long and having over 1,000 footnotes. There were four separate judgments (although McHugh J. agreed with Callinan J.), and a majority of the court upheld all the appeals from the Full Court of the Federal Court of Australia. Four of the judges (Gleeson C.J., Gaudron, Gummow and Hayne JJ.) wrote the joint reasons. The litigation was commenced to determine if there was a valid claim of Native title under the Native Title Act to land in the area of the state of Western Australia known as the East Kimberley. In total, the claimed area was approximately 7,900 square kilometres. The judgments are complex both in terms of the facts and the law. They deal mainly with the requirement in s. 223(1)(c) of the Native Title Act that the Native title rights and interests be “recognized by the common law of Australia” and the question of whether those rights had been extinguished. The Full Court’s determination of the extent of the Native title rights and interests disappointed both claimants and the state, which appealed to the High Court of Australia. The judgments also contain a great deal of discussion about extinguishment.


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The majority judgment The joint reasons of the majority approved the approach adopted by two of the judges of the Full Court. They had rejected the adverse dominion test adopted by the primary judge based on the dissenting judgment of Lambert J.A. in Delgamuukw v. British Columbia.2 As described by the primary judge, the test required: 1. a clear and plain expression of intention by Parliament to bring about extinguishment in that manner; 2. an Act authorized by the legislation that demonstrates the exercise of permanent adverse dominion as contemplated by the legislation; and 3. unless the legislation provides that extinguishment arises on the creation of the tenure inconsistent with an aboriginal right, there must be actual use made of the land by the holder of the tenure which is permanently inconsistent with the continued existence of Aboriginal title or right and not merely a temporary suspension thereof. The application of this test by the primary judge led him to conclude that the claimants had Native title to much of the land they claimed which had not been extinguished. On appeal to the Full Court, the majority declined to apply the adverse dominion test and concluded that Native title rights and interest had been rejected in much of the area claimed. The High Court agreed with the majority of the Full Court in rejecting the adverse dominion test and following the inconsistency of incidents test for extinguishment. This latter test requires a comparison between the legal nature and incidents of the statutory right which has been granted and the Native title rights being asserted. In words quoted with approval in the joint reasons of the High Court, Beaumont and van Doussa JJ. of the Full Court had said: The question is whether the statutory right is inconsistent with the continuance of native title, rights and interests. It is to be noted that Lambert J.A. in Delgamuukw said that he did not think that there was any basis in principle for saying that inconsistency between the grant and native title necessarily means that it is the native title that must give way. This view is not consistent with the inconsistency of incidents test adopted in Australia.

The joint reasons also clarified that references in earlier cases to the need for a clear and plain intention to extinguish Native title did not require any consideration of subjective intent. “Nor is it relevant to consider whether, at the time of the act alleged to extinguish Native title, the existence of, or the fact of exercise of, Native title rights and interests were present to the minds of those whose act is alleged to have extinguished Native title.”3 Rather, the inconsistency of incidents test is “an objective inquiry which requires identification of and comparison between the two sets of rights”.4 The joint reasons also rejected the view that the degree of inconsistency was relevant: Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment. Absent particular statutory provisions to the contrary, questions of suspension of one set of rights in favour of another do not arise.5

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The joint reasons proceeded to consider the different grants that were said to be inconsistent with the Native title. For example, the terms of pastoral leases were examined in detail, and it was held that many Native title rights to use land subject to pastoral leases “probably continued unaffected”.6 This conclusion was tentative because the limited findings of the primary judge and the Full Court as to the content of the Native title made it impossible to say whether there was an inconsistency. The joint reasons emphasized that “the basic inquiry is about inconsistency of rights, not inconsistency of use”.7 The vesting of fee simple extinguished all Native title to the land involved.8 On the other hand, the grant of mining leases “was not necessarily inconsistent with all Native title rights and interests in respect of that land”.9 Again, further findings of fact and a more precise determination of the Native title rights and interests were required. “However, it is apparent that the right to control access to the land is inconsistent with the rights of access arising under each of the relevant grants.”10 Likewise, “there is a fundamental inconsistency between the public right to fish in tidal waters and a native title right and interest said to amount to an exclusive right to fish those waters.”11 It should be noted that the joint reasons commented that the validity of some of the legislation that was inconsistent with Native title rights and interests was subject to the Racial Discrimination Act. Other judgments Kirby J. gave a concurring judgment, although he recorded certain reservations in relation to the “recognition” of Native title rights and interests and their “extinguishment”. He expressly agreed with the inconsistency of incidents test.12 However, he repeated his view in Yarmirr that Native title rights “could retain a characteristic of exclusivity while being qualified by other public rights in the same area”.13 For this reason, he said, “I do not agree that the Native title right to ‘speak for country’ was necessarily extinguished in respect of [non-exclusive mining] interests.”14 He summarized, at para. 596, the differences in his approach from that of the joint reasons: Most crucially, the difference between my opinion and the opinions expressed in the joint reasons would manifest itself in a lesser willingness on my part to regard supervening third party rights and interests as inconsistent with the continued enjoyment in law and fact of native title rights and interests; the broader view that I would take as to what the latter may lawfully include under the NTA and State and Territory counterpart laws; and the stricter view that I would favour as to the “clear and plain intention” that must be established in legislation to have the consequence of depriving those who can establish continuing Native title of the rights and interests that go with it.

Callinan J. gave a dissenting judgment of almost 400 paragraphs. He also rejected the “adverse dominion” test propounded by Lambert J.A. in favour of the “inconsistency of incidents” test. In his view, none of the three elements of the adverse dominion test set out above form part of Australian law.15 The requirement of a clear and plain intention distracted attention from the proper inquiry and “is inappropriate in circumstances in which the known intention was almost


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certainly to the contrary”.16 Native title does not include the right to exploit minerals.17 He examined the decision in Wik and concluded that “a ratio in Wik is, to say the least, elusive”.18 His review of the various grants and legislation led him to the conclusion that Native title “has been extinguished with respect to all lands that are the subject of these appeals. That extinguishment occurred for the most part on the grant of pastoral leases over the lands. Most of the further dealings that have occurred have, or would have, produced the same result.”19 He concluded his judgment by making the following general comments at paras. 969–970 on the status of Native title in Australia, which, although lengthy, deserve to be quoted in full: Mabo [No. 2] was a brave judicial attempt to redress the wrongs of dispossession. But its “recognition” of native title has involved the courts in categorizing and charting the bounds of something that, being sui generis, really has no parallel in the common law. The Court has endeavoured to find a way of recognising, and to a degree protecting, that anomalous interest without unduly disturbing the law of Australian property. The results of this enterprise can hardly be described as satisfactory. The decisions of this Court and of lower courts have resulted in something that is not strictly property, as common lawyers would understand it, being regarded as a burden on the Crown’s radical title. Long settled understandings about land law relating to exclusive possession and leases have been questioned. Parliament has been compelled to intervene, repeatedly, to secure the validity of acts that were never before thought to be problematic. And we now have a body of law that is so complicated, shifting and abstruse that it continues to require the intervention of this Court to resolve even the most basic issues, such as the effect of freehold or leases on native title. Judging from the submissions to this Court and the native title legislation that we have had to consider, few people, if any, have been able to thread this labyrinth of Minos unscathed. To these drawbacks flowing from the recognition of native title may be added others: considerable uncertainty has been created; commercial activity and therefore national prosperity has been inhibited; much time and money have been expended on litigation; and, I fear, the expectations of the indigenous people have been raised and dashed. I do not disparage the importance to the Aboriginal people of their native title rights, including those that have symbolic significance. I fear, however, that in many cases because of the chasm between the common law and native title rights, the latter, when recognised, will amount to little more than symbols. It might have been better to redress the wrongs of dispossession by a true and unqualified settlement of lands or money than by an ultimately futile or unsatisfactory, in my respectful opinion, attempt to fold native title rights into the common law.

McHugh J. gave a judgment agreeing generally with Callinan J. He added some comments of his own concerning the important issue of whether pastoral leases issued in Western Australia and the Northern Territory before the enactment of the Commonwealth Racial Discrimination Act, 1975 extinguished Native title rights.20 He proceeded to review the nature of such rights and to criticize and distinguish the highly controversial Wik decision, which he found unpersuasive. In the course of doing so, he referred to the history of ancient Greece and the views of Karl Marx.21 Like Callinan J., he concluded his judgment, at paras. 560–561, with some general comments on the unsatisfactory state of the law on Native title: I also agree with his Honour that the current state of the law of native title “can hardly be described as satisfactory”. The present case took 83 days to hear at first instance and 15

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days on appeal to the Full Court of the Federal Court. The orders of the majority Justices in these appeals now send the case back to the Federal Court for further hearing. Further evidence may be taken, and further litigation in this Court is a possibility. The Yorta Yorta case took even longer to hear at first instance—114 days. By the standards set by those two cases, Yarmirr v. Northern Territory was quickly disposed of at first instance. It took only 23 days. The dispossession of the Aboriginal peoples from their lands was a great wrong. Many people believe that those of us who are the beneficiaries of that wrong have a moral responsibility to redress it to the extent that it can be redressed. But it is becoming increasingly clear—to me, at all events—that redress can not be achieved by a system that depends on evaluating the competing legal rights of landholders and native-title holders. The deck is stacked against the native-title holders whose fragile rights must give way to the superior rights of the landholders whenever the two classes of rights conflict. And it is a system that is costly and time-consuming. At present the chief beneficiaries of the system are the legal representatives of the parties. It may be that the time has come to think of abandoning the present system, a system that simply seeks to declare and enforce the legal rights of the parties, irrespective of their merits. A better system may be an arbitral system that declares what the rights of the parties ought to be according to the justice and circumstances of the individual case. Implementing such a system in the federal sphere may have constitutional difficulties but may not be impossible. At all events, it is worth considering. [emphasis in original]

Wilson v. Anderson The Wilson v. Anderson22 decision was given after an application for special leave to appeal from a decision of the Full Court of the Federal Court of Australia. There was full argument on the merits of the proposed appeal, and the court rendered detailed reasons. The central issue was whether Native title rights and interests claimed in New South Wales were extinguished by a grant of “a lease in perpetuity”. Much of the judgments is taken up with detailed reviews of the incidents of this form of tenure and how it differed from the leases that were in issue in Wik.23 In fact, the relevant legislation had been amended in response to that case. Glesson C.J. gave a judgment agreeing with the joint reasons of Gaudron, Gummow and Hayne JJ. He stressed that the true test of extinguishment was that of inconsistency of incidents rather than any specific intention to extinguish Native title. Wik was distinguished as it dealt with different legislation and different instruments of lease. In this case, the lease in perpetuity gave exclusive possession and extinguished the Native title. The joint reasons also distinguished the pastoral lease in Wik. The three justices held that the lease in question extinguished any Native title to the land covered by it. Callinan J. wrote a separate judgment concurring in this result. McHugh J. agreed with his judgment. Callinan J. referred to his decision in Western Australia v. Ward, delivered on the same day, and declared that, for the reasons given in that case, “the notion of a ‘clear and plain intention’ to extinguish Native title forms no part of our law and courts should be careful to look to the legal effect of what was granted.”24 He again criticized and distinguished the Wik decision. The final judge, Kirby J., held that the lease in question did not include a right of exclusive possession and did not lead to a complete extinguishment of Native title over the leased area. It was neces-


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sary to conduct a detailed analysis of the facts and the law to determine if there was an inconsistency of incidents between the lease and the Native title. Kirby J. made some general comments in the course of his judgment. He commenced by referring, at para. 126, to “the jungle of native title legislation”: That impenetrable jungle of legislation remains. But now it is overgrown by even denser foliage in the form of the Native Title Act 1993 (NSW) (“the State Act”). It would be easy for the judicial explorer to become confused and lost in the undergrowth to which rays of light rarely penetrate. Discovering the path through this jungle requires navigational skills of a high order. Necessarily, they are costly to procure and time consuming to deploy. The legal advance that commenced with Mabo v. Queensland [No. 2], or perhaps earlier, has now attracted such difficulties that the benefits intended for Australia’s indigenous peoples in relation to native title to land and waters are being channeled into costs of administration and litigation that leave everyone dissatisfied and many disappointed.

He said that the only way to pass through the jungle is to retain one bearings “as the explorers of Australia have traditionally done, by keeping the eyes fixed on clear sources—like the rising sun in the morning or, at night, the constellation we call the Southern Cross”. He found that guidance in the requirement of a clear and plain intention to extinguish Native title rights: From the start of this new legal journey, it has been unquestioned that Aboriginal native title rights may be terminated by inconsistent dealings in the land on the part of the Crown (meaning, relevantly, in modern times, the organs of government of Australia acting under, or pursuant to, legislation). From the beginning it has been clear that the enjoyment of native title to which successively the common law, the NTA and other legislation gave recognition, was “precarious” or “inherently fragile”. Nevertheless, once the Rubicon was crossed, as it was in Mabo [No. 2], and once it was made clear that the Australian legal system did, after all, accord recognition and protection to the native title rights of Australia’s indigenous peoples in certain circumstances, it was fundamental that such rights would persist, in the face of legislation said to be inconsistent with them, “unless there be a clear and plain intention” to extinguish such rights. It cannot be doubted that this has been one of the guiding principles of this filed of jurisprudence, regularly applied and never questioned. In a world of uncertainty it has been a constant. It is a beam of light in the legal jungle. Moreover, it is a bright beam because it is the product of “conventional [legal] theory”. [at paras. 138–139]

The requirement was not limited to Native title. It applied to cases in which it is asserted that legislation has taken away the civil rights of non-indigenous Australians. There was no reason why it should not also inure to protect the rights of indigenous Australians. He stated, at paras. 142–143: Where the rights concern native title, they may be fragile but they are still protected against accidental, unintended, collateral or unnecessary extinction. To be extinguished, a clear purpose on the part of the legislature must be manifest. The inquiry is, of course, an objective, not a subjective, one.— It follows that I do not agree with the opinion of Callinan J. that the “clear and plain intention” requirement “forms no part of our law”. A lot of law would be thrown overboard by me before I would contemplate discarding a principle so central to the fundamental postulate of equality before the law of this country.

Members of the Yorta Yorta Aboriginal Community v. Victoria Members of the Yorta Yorta Aboriginal Community v. Victoria25 is the most recent decision

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of the High Court of Australia on Native title and was delivered on December 12, 2002. The members of the Yorta Yorta community applied for a determination of Native title to land and waters in northern Victoria and southern New South Wales under the provisions of the Commonwealth Native Title Act. The claim area had a total area of approximately 5,000 square kilometres. Four separate judgments were given, and by a majority of five to two, the High Court of Australia upheld the rejection of the application. The key provision of the Act was s. 223, defining “Native title” as the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a)

the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and


the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and


the rights and interests are recognised by the common law of Australia.

In the joint reasons of Gleeson C.J., Gummow and Hayne JJ., the focus was primarily on paragraph (a) and the requirement for the rights and interests to be possessed under “traditional laws” and “traditional customs”. Applying a jurisprudential analysis, they decided that the laws and customs had to be found in the normative rules of the Aboriginal societies that existed before the assertion of sovereignty by the British Crown in 1788. They went on to say: [T]he normative system under which the rights and interests are possessed (the traditional laws and customs) [had to be] a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist. And any later attempt to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs out of which rights and interests must spring if they are to fall within the definition of native title.26

They noted that “[w]hen the society whose laws and customs existed at sovereignty ceases to exist, the rights and interests in land to which these laws and customs gave rise, cease to exist.”27 In their view, “acknowledgment and observance of these laws and customs must have continued substantially uninterrupted since sovereignty.”28 In the case before them, the trial judge had made findings that the forebears of the claimants had ceased to occupy their lands in accordance with traditional laws and customs and that there was no evidence that they continued to acknowledge and observe those laws and customs. Upon those findings, the claimant had to fail. McHugh and Callinan JJ. wrote judgments concurring with the majority. Gaudron and Kirby JJ. dissented. In their view, the trial judge was in error in including a requirement that the claimants and their ancestors must have substantially maintained a traditional connection with the land. “The relevant issue under ss. 223(1)(a) and (b) of the Act is simply whether the Yorta Yorta people now


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acknowledge and observe traditional laws and customs by which they have a connection with the land and waters claimed by them.”29 THE NEW ZEALAND LAW Aboriginal law in New Zealand is a complex interplay of a treaty, case law, legislation, settlement agreements and statutory extinguishments.30 The sovereignty of the British Crown over New Zealand (and thereby that of the New Zealand Government) is derived from the Treaty of Waitangi in 1840. This treaty is only a few paragraphs long and has versions in English and Maori that are not consistent with each other.31 New Zealand courts have tended to apply the principles of the treaty rather than the actual wording. It may be noted that the Douglas Treaties in British Columbia were based on the Treaty of Waitangi. From the time of its introduction, the New Zealand common law has recognized Aboriginal title: R. v. Symonds,32 Nireaha Tamaki v. Baker,33 and Te Runaga o te ika Whenua v. Attorney-General.34 However, it is important to note that the Ngati Apa claim discussed below was not based on the common law but the Maori Land Acts, which were first introduced in 1862 (although the judgments of the Court of Appeal do discuss the common law as received in New Zealand). Under those Acts, “Maori customary land” is a concept that forms part of a statutory scheme to convert such land into Maori freehold land. The current definition of “Maori customary land” is found in s. 129(2)(a) of the current Maori Land Act or Te Ture Whenua, which defines it as land “held by Maori in accordance with tikanga Maori”. Section 3 of the Act in turn defines “tikanga Maori” as “Maori customary values and practices”, which are to be determined by the specialist Maori Land Court rather than the ordinary courts applying common law principles. Unlike common law Aboriginal title as applied in Canada in Delgamuukw35 and in Australia in Mabo [No. 2],36 tikanga Maori is based on the Maori customary values and practices at the time of the claim and not as at British sovereignty. The impact of the New Zealand Aboriginal law on the development of the Canadian law has been negligible. The Marlborough Sound Case (Ngati Apa) The decision of the New Zealand Court of Appeal in the Marlborough Sound case, or Attorney-General v. Ngati Apa,37 originated in an application made by eight Maori tribes in the northern part of the South Island to the Maori Land Court to determine whether they had and continue to have customary rights over the foreshore and seabed. Ellis J. of the High Court heard the appeal from the Maori Land Court in June 2001.38 He first noted the national significance of the issues involved and said, “Stated shortly, the eight tribes claim that the foreshore and bed of the Marlborough Sounds is customary land within the meaning of those words used in Te Ture Whenua Maori Act 1993 (also called the Maori Land Act 1993).” After setting out the questions in the case stated and the relevant legislation, he reviewed the ownership of territorial waters at 1840 and the decisions in Gann v. Free Fishes of Whistable,39 Iveagh (Earl) v. Martin,40 The Queen v. Keyn41 and The Sea and Submerged Lands Case.42 He then concluded, at paras. 21–22:

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There can be no doubt that the Imperial Parliament had the power to legislate for the control and use not only of the foreshore but also the marginal waters and the seabed beneath it. In summary I conclude that the colonists, the governors and the legislature would be of the view that the Crown owned the foreshore and enclosed waters subject to the common law rights of navigation and fishing and that the Imperial Parliament and the New Zealand legislature could legislate in respect of the high seas and seabed beyond low water and beyond the limits of enclosed waters, certainly in respect of the territory now before the court. In doing so the rights of navigation and fishing would be of paramount importance.

Ellis J. then considered s. 147 of the Harbours Act 1878, which prohibited grants of areas below high-water mark. He observed at p. 672: It is plain that the legislature considered the Crown owned such territory and could grant the fee simple or other rights in it, but insisted that such could only be done by the legislature itself. The significance of the foreshore, seabed and enclosed waters was obvious. They were held by the Crown for the benefit of all and exceptions could only be made at the highest level.

He pointed out that there was no provision under any other legislation, in particular the Native Land Acts, to make such grants. Legislation bearing on Maori lands was then considered. Reference was made to decisions of the Maori Land Court declining jurisdiction to deal with claims to the seabed and to the Ninety-Mile Beach43 decision of the New Zealand Court of Appeal. In that case, it was held that there could be no claim to the foreshore unless the Maori had title to the contiguous dry land. Although that decision was controversial, it was nevertheless binding on him and, in view of his other conclusions, he agreed with it. He added, however, that he thought rights less than those amounting to freehold could still exist in the foreshore for example to fishing, navigation and passage between high tides which do not depend on ownership of the contiguous dry land. This may be particularly so in Ninety Mile Beach. I add that those rights cannot exclude all others, as otherwise those owning the continguous dry land would be prevented from obtaining access to the sea to their land, and their land to the sea.44

He next expressed the view, based on the Territorial Sea and Fishing Zone Act and the Territorial Sea and Exclusive Economic Zone Act 1977, that â&#x20AC;&#x153;the territory in issue in this case from low watermark out to sea is deemed to be, and have always been, the property of the Crown.â&#x20AC;?45 The Resource Management Act 1991 enabled Maori to obtain recognition of their rights through a comprehensive code for resource management. However, that Act did not dictate the ownership of the foreshore or seabed. The Treaty of Waitangi Act 1975 and a number of other cases were then briefly reviewed together with the arguments of the parties. Having completed his review of the relevant case law and legislation, Ellis J. concluded by rejecting the claims of the Maori claimants to the foreshore and the seabed. There had been no previous finding to that effect.46 The government had assumed full control over those areas for the public good. In his view: Until these claims were filed, there have been no findings by the Maori Land Court of its predecessors that an area of foreshore or seabed was Maori customary land (at least without reference to contiguous land, and even then I was not given an example). At all times the government from time to time has assumed full control over the foreshore, seabed and seas that wash them and dictated their use for the public good. The consequences of agree-


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ing with the arguments adduced by the applicants would be highly detrimental to citizens as a whole, including Majori other than the applicants. All legislative action has proceeded on the basis that there was no significant private ownership of the foreshore, seabed or seas. [at para. 51]

He therefore held that, although the Maori Land Court has jurisdiction to inquire as to whether the foreshore is customary Maori land, “where the dry land contiguous to the foreshore is not or is no longer Maori customary land, the foreshore itself cannot be Maori customary land.”47 Further, “the land below the lowwater mark cannot be or have been Maori customary land.”48 The present position is that the seabed and internal waters are vested in the Crown under the Territorial Sea and Exclusive Economic Zone Act 1977. However, the foregoing findings did “not preclude Maori from establishing customary rights over the foreshore, the seabed and the waters over them short of a right of exclusive possession”. This might be achieved under the mechanism provided by the Resource Management Act 1991, the Treaty of Waitangi Act 1975 or other mechanism.49 The decision of Ellis J. was reversed by the New Zealand Court of Appeal in a decision released on June 19, 2003. Four separate judgments were given, but all the judges agreed in the result. The court decided that it was appropriate to answer only the first question posed for determination, which dealt with the jurisdiction of the Maori Land Court. The answer to this question was that the Maori Land Court has jurisdiction to determine the status of the foreshore and seabed. Chief Justice Elias noted that “whether or not the appellants will succeed in establishing in the Maori Land Court any customary property in the foreshore and sea bed lands claimed and the extent of any interest remains conjectural— nor will the appeal resolve questions of the nature of any property interest in land (whether it approximates a fee simple interest or whether it is a lesser property).”50 She noted that even if the land below high-water mark was mainly Crown land, as the government maintained, it was not clear whether there might be a basis on the facts for an application under s. 18(1)(i) of Te Ture Whenua Maori Act for a declaration it is held in a fiduciary capacity for the Maori.51 Chief Justice Elias summarized her judgment, at para. 13, as follows: For the reasons given below, I consider that in starting with the English common law, unmodified by New Zealand conditions (including Maori customary proprietary interests), and in assuming that the Crown acquired property in the land of New Zealand when it acquired sovereignty…the judgment in the High Court was in error. The transfer of sovereignty did not affect customary property. They are interests preserved by the common law until extinguished in accordance with law. I agree that the legislation relied on in the High Court does not extinguish any Maori customary property in the seabed or foreshore. I agree with Keith and Anderson JJ. and Tipping J. that In Re the Ninety-Mile Beach was wrong in law and should not be followed.

She noted that the principle of respect for customary property rights until they were lawfully extinguished was of general application. As to the content of customary property interests, she referred to Delgamuukw and noted the Supreme Court of Canada has recognized that “they may extend from usufructory rights to exclusive ownership with incidents equivalent to those recognized by fee simple title.”52

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In the case of New Zealand, she noted (between paras. 37 and 47): New Zealand was never thought to be terra nullius (an important point of distinction from Australia). From the beginning of Crown colony government, it was accepted that the entire country was owned by Maori according to their customs and that until sold land continued to belong to them. *** The land became subject to the disposing power of the Crown by Crown grant only once customary ownership had been lawfully extinguished. *** The Native Lands and Maori Lands Acts from 1862 until enactment of Te Ture Whenua Maori Act 1993 were a mechanism for converting Maori customary proprietary interests in land into fee simple title, held of the Crown. Only such land could be alienated by the Maori owners to private purchasers. *** Under Te Ture Whenua Maori Act a vesting order obtained under s. 132 continues to change the status of customary land to Maori freehold land. But the Maori Land Court may now make a declaration of status of customary land under s. 131 without that consequence. The current legislation is therefore no longer an inexorable mechanism for conversion of customary land into freehold land. *** For present purposes it is enough to note that any property interests in foreshore and seabed land according to tikanga may not result in vesting orders leading to fee simple title and that the Maori Land Court may not be the only forum available for recognition of such property. *** The Crown has no property interest in customary land and is not the source of title to it. That is the background against which the arguments based upon In Re Ninety-Mile Beach and the legislation said to vest ownership of the seabed and foreshore in the Crown must be assessed.

Following this review of the legal status of customary interests in land, she turned to ownership of the foreshore and seabed at common law. She commented, at para. 49: Any prerogative of the Crown as to property in foreshore and seabed as a matter of English common law in 1840 cannot apply in New Zealand if displaced by local circumstances. Maori custom and usage recognizing property in foreshore and seabed land displaces any English Crown Prerogative and is effective as a matter of New Zealand law, unless such property interests have been lawfully extinguished.

Elias C.J. rejected the government’s argument that there was a presumption against private ownership of land covered by the sea and in favour of Crown ownership. As the review of Keith and Anderson JJ. demonstrated, interests in the soil below low-water mark were known under the laws of England. They included interests which had arisen by custom and usage.53 She also rejected the jurisdictional objection that “land” in the Te Ture Whenua Maori Act excluded sea areas.54 She then considered the argument that Parliament had extinguished any property rights that the Maori had in the area. In her view, the legislation did not have that effect.55 Finally, she reviewed the decision of the court in In Re the Ninety-Mile Beach, which was relied upon by Ellis J.56 She concluded that it was wrongly decided as


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being contrary to the principle that customary property rights continued until extinguished by consent or in accordance with statutory authority. Any presumption of the common law inconsistent with recognition of customary property was displaced by the circumstances of New Zealand.57 She commented, at para. 85: The common law as received in New Zealand was modified by recognized Maori customary property interests. If any such custom is shown to give interests in foreshore and seabed, there is no room for a contrary presumption derived from English common law. The common law of New Zealand is different.

Gault P., Keith and Anderson JJ. and Tipping J. gave separate concurring judgments. Keith and Anderson JJ. referred to decisions from the United States, the Judicial Committee of the Privy Council, Australia, Canada and New Zealand for the proposition that “the onus of proving extinguishment lies on the Crown and the necessary purpose must be clear and plain”.58 In his judgment, Tipping J. noted: [I]n view of the nature of Maori customary title, underpinned as it is by the Treaty of Waitangi, and now by the Te Ture Whenua Maori Act 1993, no court having jurisdiction in New Zealand can properly extinguish Maori customary title. Undoubtedly Parliament is capable of effecting such extinguishment but, again in view of the importance of the subject matter, Parliament would need to make its intention crystal clear. In other words Parliament’s purpose would need to be demonstrated by express words or at least by necessary implication. [at para. 185]

He then expressed the following opinion: In my view it follows that in principle, and subject to any clear statutory indication of extinguishment, the question whether Maori customary title existed and continues to exist over the seabed and the foreshore is essentially a matter of fact which is both general and specific to the site in question. [at para. 186]

Tipping J. also agreed with the analysis by the chief justice of customary title: As already noted, it was not a matter of the Crown granting customary title to the Maori. They already held it when sovereignty was proclaimed and continued to hold it thereafter unless and until it was lawfully extinguished. As the Chief Justice has said, the contrary approach conflates sovereignty with absolute ownership. The Crown’s ownership is and never has been absolute in this respect. It is and always has been subject to the customary rights and usages of Maori as regards their lands. [at para. 204]

The reaction of the New Zealand government to the decision of the New Zealand Court of Appeal in Ngati Apa was swift and controversial. The attorney general announced plans to legislate to extinguish Maori customary title to the foreshore and seabed, although some customary rights such as fishing rights would be permitted to continue.59 The Maori reaction was to threaten international court action. Maori members of Parliament have expressed their opposition to the proposed legislation, especially over the lack of consultation. Waitangi Tribunal Reports A turning point in New Zealand Aboriginal law was the enactment in 1975 of the Treaty of Waitangi Act 1975. This established the Waitangi Tribunal. Under s. 6, the

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tribunal has the duty to inquire into claims submitted to it. As amended, the section provides that where any Maori claims that he or she, or any group of which he or she is a member, is likely to be prejudicially affected by any ordinance, Act, regulations or other statutory instrument passed or made on or after February 6, 1840, or by any policy or practice (whether or not still in force) adopted or proposed to be adopted on behalf of the Crown, or by any act done or omitted to be done by the Crown and that the matter complained of was or is inconsistent with the principles of the treaty, he or she may submit that claim to the tribunal. If the tribunal finds the claim well founded, it may recommend to the Crown that action be taken to compensate for or remove the prejudice or to prevent other persons being similarly affected in the future. It should be noted that the reports are not binding on the New Zealand government, which has indicated, for example, that it will not accept all the recommendations in the recent report on the nationalization of oil and gas resources. Recent reports of the Waitangi Tribunal have included a report on aquaculture reforms which the tribunal found had failed to adequately protect Maori interests. The report found that the coastal marine area was a taongo or treasure protected by art. 2 of the treaty and that the Crown had breached its treaty responsibility in failing to adequately consult with the Maori and protect their rights. Another recent report dealt with the interests of the Maori in Wellington and its harbour and recommended â&#x20AC;&#x153;substantial compensation consisting of the return of Crown landâ&#x20AC;?. A report released on May 21, 2003, found that the government had breached the treaty when it nationalized oil and gas reserves in 1937.60 CONCLUSION I cannot claim that the above discussion of recent cases could form the basis of any considered comparison of the principles of Aboriginal law as applied in Canada, the United States, Australia and New Zealand. A much more detailed discussion extending over a longer period would be required. However, I believe the following tentative conclusions may be suggested: 1. The United States law demonstrates that traditional principles of trust and fiduciary law can, and should, be applied to the relationship between Canada and its Aboriginal peoples. In Canada, there has been confusion as to the application of such principles due to the repeated use of the unhelpful description of the relationship and of Aboriginal title as sui generis.61 The use of the term sui generis adds nothing to explaining the nature of that relationship62 and serves to confuse and frustrate the orderly development of the law. It is time to abandon it. 2. The sorry state of the Australian law on Aboriginal title and the reaction of the New Zealand government to the Ngati Apa decision show the importance of some constitutional protection for Aboriginal rights, such as is found in Canada in s. 35 of the Constitution Act, 1982. In the absence of such protection in Australia, legislation and judicial timidity have largely


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dashed the hopes of Aboriginal peoples, raised so high a decade ago by the Mabo decision. 3. The Australian law also demonstrates the importance of the fiduciary relationship to the protection of Aboriginal rights. One of the lawyers for the Aboriginal claimants in the Mabo case has expressed the view that, if he were to start again, he would endeavour to establish the existence of a freestanding fiduciary duty owed by the Crown to traditional owners when dealing with their land.63 Another Australian writer has pointed out: “Despite the many flaws and the impotence of the fiduciary doctrine from Canada, Australia offers sobering reflection of what can happen if there is no recognition of the doctrine.”64 4. Turning to New Zealand, in my view, that jurisdiction has not received the attention that it deserves from Canadian courts and legal scholars. Its early recognition of Aboriginal title, its experiences with the Treaty of Waitangi, the Waitangi Tribunal, the statutory settlement of Maori commercial fishing rights in exchange for shares in a major fishing company65 and now the Ngati Apa decision of the New Zealand Court of Appeal all offer lessons that may prove valuable in Canada as we seek the reconciliation of the interests of Aboriginal peoples with those of the rest of Canadian society. Of most value is the concept of a partnership between the Maori and the non-Maori of New Zealand and the corresponding fiduciary-like duties imposed on each party by the Treaty of Waitangi.66 It remains to be seen how this concept will survive the government’s reaction to the Ngati Apa decision. 5. The decision of the High Court of Australia in Yarmirr on the Commonwealth’s appeal and the decision of the New Zealand Court of Appeal in Ngati Apa indicate that Aboriginal title to the foreshore and seabed should be determined by applying the same legal principles as apply to land. There are no common law rules applying to the foreshore or the seabed that would prevent such application. It is essentially a question of applying the requirements of Delgamuukw67 to the facts of such claims.68 ENDNOTES 1. (2002), 191 A.L.R. 1. 2. (1993), 104 D.L.R. (4th) 470 at 670–672. 3. Supra note 1 at para. 78. 4. Ibid. 5. Para. 82. 6. Para. 196. 7. Para. 215. 8. Para. 280, but cf. Fejo (1998), 156 A.L.R. 721 (H.C.A.). 9. Para. 340. 10. Para. 341.

11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21.

Para. 388. Para. 589. Para. 591. Para. 593. Para. 625. Para. 625. Para. 638. Para. 696. Para. 965. Para. 472. Paras. 528–529.

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22. 23. 24. 25. 26. 27. 28.

29. 30.


32. 33. 34. 35. 36. 37. 38.

39. 40. 41. 42. 43. 44. 45. 46. 47.

(2002), 190 A.L.R. 313. (1996), 141 A.L.R. 129. Supra note 22 at para. 194. (2002), 194 A.L.R. 538. Ibid., para. 47. Para. 53. Para. 87. For the relevance of continuity in Canadian law, see R. v. Marshall, 2003 NSCA 105 at paras. 157–181 per Cromwell J.A. He distinguished the Australia law on the grounds that, in Australia, continuity is concerned with whether there continues to be an identifiable group which can assert the claim of Native title. In Canada, it is concerned with continuity of occupation where present occupation is relied upon as proof of pre-sovereignty occupation. There is no need to show continuity if there is no such reliance. See also Bernard v. The Queen, [2003] 4 C.N.L.R. 48 (N.B.C.A.). Para. 124. See generally on the New Zealand law: Paul McHugh, The Maori Magna Carta (Auckland: Oxford University Press, 1991). Reproduced in the First Schedule to the Treaty of Waitangi Act 1975, 1975 No. 114, reprinted with amendments: R.S.N.Z. vol. 33, p. 907. [1847] N.Z.P.C.C. 387. [1901] N.Z.P.C.C. 371. [1994] 2 N.Z.L.R. 20 (C.A.). [1997] 3 S.C.R. 1010. (1992), 175 C.L.R. 1. (June 19, 2003), CA 173/01, CA 75/02, online at <>. [2003] N.Z.L.R. 661. For commentary see The Maori Law Review, June 2001; and Andrew Eureti, “Native Title Claims To Sea Country”, [2001] N.Z.L.J. 415. (1864–65), 11 H.L. Cas. 191, 207–210. [1960] 2 All E.R. 668. (1876), 2 Ex.D. 63. (1975), 135 C.L.R. 337 at 486–488. [1963] N.Z.L.R. 461. [2003] N.Z.L.R. 661 at 675. Ibid. at 677. Ibid. at para. 51. Para. 52.


48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59.

60. 61.


Ibid. Ibid. Para. 9. Para. 10. Para. 31. Paras. 50–51. Paras. 55–57. Paras. 58–76. Paras. 77–89; see In Re Ninety-Mile Beach, [1963] N.Z.L.R. 461 (C.A.). Para. 85. Para. 148. The New Zealand Herald, June 24, 2003. On December 17, 2003, the government of New Zealand announced legislative proposals in response to the decision: < cfm>. Crown title to the foreshore and seabed is to be replaced by a public domain title visiting the full legal and beneficial ownership in the people of New Zealand. The Maori Land Court will be able to award a customary title that would “sit alongside the public domain title”. A statutory commission will be appointed to expedite the identification of customary rights. Statutory customary title will confer the ability to participate in decisions affecting the right of the holders. However, customary title will not prevent public access to the foreshore or seabed. Copies of the reports can be found online at the tribunal’s Web site: <>. See Guerin, [1984] 2 S.C.R. 335 at 382, 385 and 387. It has been suggested that this term was adopted by Dickson J. from an uncited student case note on Mitchell II, 463 U.S. 206 (1983), which misstated the United States law: Richard H. Bartlett, Indian Reserves and Aboriginal Lands in Canada: A Homeland (Saskatoon: University of Saskatchwan Native Law Centre, 1990) at page 197, note 102. Before his appointment to the Supreme Court of Canada, Ian Binnie commented that “the description, first coined in Guerin, has been repeated in subsequent cases as if repetition will make it a definition as opposed to an adamant refusal to essay a definition”: W.I.C. Binnie, “The


Sparrow Doctrine: Beginning of the End or End of the Beginning?” (1990), 15 Queen’s L.J. 217 at 222. However, in Wewaykum Indian Band v. Canada, 2002 SCC 79, 220 D.L.R. (4th) 1, he continued to refer to the relationship in this way when giving judgment for the court. 63. B.A. Keon-Cohan, “The Mabo Litigation: A Personal and Procedural Account”, [2000] M.U.L.R. 35, text accompanying note 358. 64. Larissa Behrendt, “Lacking Good Faith: Australia, Fiduciary Duties, and the Lonely Place of Indigenous Rights,” in Law Commission of Canada, In Whom We Trust (Toronto: Irwin Books, 2002) at 264.

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65. Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, 1992 No. 121. 66. New Zealand Maori Council v. Attorney General, [1987] 1 N.Z.L.R. 641. 67. [1997] 3 S.C.R. 1010. 68. See C. Rebecca Brown, Starboard or Port Tack? Navigating a Course to Recognition and Reconciliation of Aboriginal Title to Ocean Spaces (LL.M. Thesis, UBC Faculty of Law, 1999) [unpublished]; James I. Reynolds, “Aboriginal Title to the Seabed: A Comparative Introduction”, in Pacific Business & Law Institute, Aboriginal Rights to Water and Water Resources (Ottawa, June 5 & 6, 2003).

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GOODBYE, SIR ROBERT— HELLO, FEOFFMENT By Charles H. McKee Equity is A Roguish thing, for Law wee have a measure know what to trust too. Equity is according to ye conscience of him yt is Chancellor, and as yt is larger or narrower soe is equity. Tis all one as if they should make ye Standard for ye measure wee call A foot, to be ye Chancellors foot; what an uncertain measure would this be; One Chancellor ha’s a long foot another A short foot a third an indifferent foot; tis ye same thing in ye Chancellors Conscience.1

and is wealth. In virtually every society from the time of the cave man to the modern day, land has been the basis of wealth. In hunting and gathering cultures, agricultural societies and modern industrial civilization, the control of land has indicated wealth. Although, throughout history, many wars have been disguised as ideological conflicts, most were actually a struggle to seize or defend territory. As society evolved, laws were developed to control the ownership of land. Land law as it now exists in British Columbia developed from the English feudal landholding system. In that system, the king held all the land absolutely, the nobility held in fee simple as tenants-in-chief and their subordinates held lesser interests from the nobility as subtenants. Transfers of interests in land were achieved through a process known as “feoffment with livery of seisin”. The feoffment was the formal statement made by the feoffor (transferor) upon transferring his or her interest. The transfer was completed through livery of seisin, in which the parties walked the boundaries of the property and the feoffor (transferor) physically and publicly transferred a handful of dirt to the feoffee (transferee). The British Real Property Act2 later enabled parties to transfer by deed without performing the livery of seisin ritual; if the deed was lost, however, title could not be proved. The industrial revolution changed England; the old forms of land transfer were not appropriate for the transfer of factories or construction of railways. Oral arrangements were difficult to prove. The British Parliament recognized this problem and took a major step forward in 1677 with the passage of the Statute of Frauds.3 This statute represented an attempt to eliminate uncertainty and perjury from the system by requiring that transfers of interests in land be evidenced by writing in most instances. It was no longer enough to walk the boundaries of a field and throw dirt over one’s shoulder. As society became more complex and land ownership became more widely distributed, the need for certainty increased. In response to this need, deed registration systems were introduced. These systems permitted the deposit and recording of instruments. However, deposit and registration did not provide any guarantee that the instruments were legally effective.



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In 1858, Sir Robert Torrens developed a registration system that was designed to provide certainty and indefeasibility of title to land, simplifying transfer and reducing associated costs and litigation.4 In this system, title was evidenced by a certificate; this certificate was guaranteed by the government and set out the exact state of title to the parcel covered, including ownership and charges. Interests could no longer be acquired through long use; prescription was abolished. Only the register could provide notice. All deeds and charges were required to be in writing and in a specific form. If one was to acquire an interest in land, the transfer had to be in the correct form and filed in a government office. In British Columbia, a Torrens-based system of land registration was first introduced in the colony of Vancouver Island in 1860 as the Land Registry Act.5 The modern-day Torrens system is governed in British Columbia by the Land Title Act.6 It is an essential aspect of the Torrens system that what appears on the register— and nothing else—is what a person concern himself or herself with when dealing with the registered owner.7 Section 27 is very clear, viz.: 27 (1) The registration of a charge gives notice, from the date and time the application for the registration was received by the registrar, to every person dealing with the title to the land affected, of (a) the estate or interest in respect of which the charge has been registered, and (b) the contents of the instrument creating the charge so far as it relates to that estate or interest, but not otherwise. [emphasis added]

The draftsman applied the belt and suspenders approach to clearly direct the courts to look only at the register.8 Even if the person dealing with the land had express notice of an unregistered interest, that did not of itself matter: Effect of notice of unregistered interest—s. 29 29 (1) For the purposes of this section, “registered owner” includes a person who has made an application for registration and becomes a registered owner as a result of that application. (2) Except in the cases of fraud in which he or she has participated, a person contracting or dealing with or taking or proposing to take from a registered owner (a) a transfer of land, or (b) a charge on land, or a transfer or assignment or subcharge of the charge, is not, despite a rule of law or equity to the contrary, affected by a notice, express, implied, or constructive, of an unregistered interest affecting the land or charge other than (c) an interest, the registration of which is pending, (d) a lease or agreement for lease for a period not exceeding 3 years if there is actual occupation under the lease or agreement, or (e) the title of a person against which the indefeasible title is void under section 23(4). [emphasis added]

It is hard to imagine either plainer or more detailed drafting. Actual notice is of itself not fraud, otherwise the italicized words in subsection (b) would be

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meaningless. Something more is required, such as telling the holder of an interest not to bother to register that he or she could continue to use a right of way. A review of the record, appeal books and counsel’s trial and appeal briefs show that these sections were clearly before both courts and simply not addressed by the judges. That old rogue equity reared its shining head and blinded the courts. Recently the B.C. Supreme Court and the B.C. Court of Appeal have made a number of decisions based on equitable doctrines that undermine the Torrens system of land registration in the province. The decisions of the B.C. Court of Appeal in Banville v. White9 (hereinafter, Banville) and the British Columbia Supreme Court in White v. Banville10 (hereinafter, White) are of particular concern. There was no finding of fraud in either the Supreme Court or the Court of Appeal. Chief Justice Finch would have granted rectification with no pleading or finding of fraud and quoted the trial judge with approval as follows: I find the Banvilles had constructive notice of both the retaining wall and the turnaround at the time they purchased lot 1.12 [emhasis added]

It is hard to reconcile the clear wording of s. 29 (2) of the Land Title Act with such a finding. The other two justices of the Court of Appeal sent the case back to the trial judge for more factual findings. White was eventually decided on the basis of the equitable doctrine of rectification. This doctrine provides that a contractual document can be “rectified” if it fails to reflect the intentions of the parties to the contract. This situation most often arises in cases of mutual mistake. Neither party in White was a party to the original contract; however, the doctrine of rectification provides that a claim can be asserted against a subsequent purchaser if the purchaser had notice of the mistake.11 Section 24 of the Land Title Act provides: 24 All existing methods of acquiring a right in or over land by prescription are abolished and, without limiting that abolition, the common law doctrine of prescription and the doctrine of the lost modern grant are abolished.

It seems that the courts’ equitable consciences were moved to create what is unquestionably a prescriptive easement cloaked in the doctrine of equitable rectification. THE FACTS The purpose of a factual review is to demonstrate the factual mischief of White that the legislators in 1677 and in 1860 were trying to overcome with the Statute of Frauds and the original Land Registry Act. In 1677, it had to be in writing, and in 1860, it had to be registered. Jaded memories and what was apparent or seen on inspection were not to be relevant. A simple application of what had been the law for all this time was all that was necessary in White and Banville. This case involved a dispute between neighbours; the Banvilles owned lot 1 and the Whites owned lot 2. These lots were originally owned by a single family, the Dilays. The Dilays subdivided in 1978 and granted reciprocal easements over each of the two lots for use as a common driveway. Soon after subdividing, the


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Dilays sold lot 1 to the Kittlesons, and in 1989 they sold lot 2 to the current owners, the Whites. The Kittlesons sold lot 1 to the Banvilles in 1994. DILAYS • Subdivided in 1978

KITTLESONS • Purchased lot 1 in 1979

WHITES • Purchased lot 2 in 1989

BANVILLES • Purchased lot 1 in 1994 Upon purchasing lot 1 from Mrs. Kittlerson, the Banvilles signed a disclosure form on which Mrs. Kittleson had ticked a box to indicate that she was aware of “encroachments, unregistered easements or unregistered rights of way”. YES

In this case, the primary issue involved a paved “turnaround” area at the end of the common driveway. This “turnaround” was located entirely on lot 1, the Banvilles’ property, and was not included in the registered easement. A protracted dispute, involving a number of visits by the local constabulary, developed. The issues included missing tools and linens, parking on the easement, a septic field and retaining wall that encroached on the Banvilles’ property, and a dead dog YES buried on the Banvilles’ property. The Banvilles threatened to tear up and fence the paved “turnaround” area to prevent the Whites from using it.

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THE FIRST TRIAL Pursuant to s. 35 of the Property Law Act,13 the Whites sought modification of the easement to include the “turnaround”. Modification was granted.14 THE APPEAL The Court of Appeal held that modification was not available to the Whites. The Whites, for the first time, requested rectification as an alternative to modification; they argued that the easement should be rectified to reflect the actual intention of the original owners, the Dilays. Finch C.J.B.C. found that the Dilays had originally intended to include the turnaround in the easement. He also found that because the Banvilles had not inquired about the nature of the encroachments or unregistered easements referred to in Mrs. Kittleson’s disclosure statement, they must have assumed that the turnaround was on the easement. Finch C.J.B.C. would have granted rectification based on these findings, but Ryan J.A. and Low J.A. held that because rectification had not been pleaded at the first trial, a new trial would be required. THE SECOND TRIAL At the second trial, the Whites requested rectification and again argued that the original owners had always intended to include the turnaround in the easement. Walter Dilay’s affidavit evidence supported this argument. In his affidavit, he claimed that the exclusion of the turnaround from the easement had been a mistake that did not reflect his and his wife’s actual intentions as co-owners. He further claimed that they did not realize that it had been excluded and that the surveyor had been at fault for not requesting further instructions. The trial judge accepted this evidence, finding it improbable that the Dilays would intentionally have excluded part of their own driveway from the easement. The issue then became whether the Banvilles were bona fide purchasers for value without notice of the mistake. The Banvilles claimed to have realized at the time of or soon after purchase that the “turnaround” was their unencumbered property; they believed it was a parking space for their use when they drove down to the waterfront portion of their property. The trial judge rejected their evidence. He found that it was not until a property survey was conducted in 2000 that the Banvilles began to object to the Whites’ use of the turnaround. He believed that the Banvilles would have objected much earlier had they known it was not on the easement, given the acrimonious and protracted nature of the dispute between the parties. The trial judge also referred again to Mrs. Kittleson’s disclosure statement. Although the Banvilles had signed the statement upon purchase, they had made no inquiries about the status of the turnaround. The trial judge found that the Banvilles had not inquired because they had naturally assumed that the turnaround was included in the easement. He held that because the Banvilles had purchased under this mistaken impression, they had had notice that the turnaround was intended to be included in the easement. He found that the Whites were entitled to rectification.


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ANALYSIS There is little indication in the decisions that the Land Title Act or the Torrens system of land registration were brought to the attention of the courts. However, the trial and appeal briefs indicate that counsel for the Banvilles strenuously argued that the Land Title Act and the principles of the Torrens system precluded rectification. In particular, counsel cited s. 29(2) of the Land Title Act, which states that, in the absence of fraud, a purchaser is unaffected by notice of an unregistered charge. To support her argument that rectification conflicts with the principles of the Torrens system, counsel for the Banvilles cited Fowler v. Henry.15 In Fowler, adjoining property owners were mistaken with respect to their property boundaries. A number of lots had been conveyed according to a registered plan but staked out according to a pre-existing (and inaccurate) plan. All owners were under the impression that the stakes marked their property boundaries, and the owners built accordingly. On appeal, Hunter C.J. (with whom all members of the panel agreed) held: [T]he mere fact that a registered owner has been under a wrong impression as to what he was getting by his deed raises no equity against another registered owner upon whose land he is found to be trespassing. One of the chief objects of the Land Registry Act [the predecessor to today’s Land Title Act] was to compel the transfer of subdivided land according to registered plans in order to prevent the uncertainty and confusion that would ensue by such loose methods of alienation as are sought to be supported here, and which depend for their proof on recollections of oral negotiations of distant date.16

Irving J., concurring, held that if the boundary modification was granted in this case, the “Land Registry Act might just as well as not be torn up.”17 Although there was never any suggestion that the Banvilles had acted fraudulently, the B.C. Supreme Court in White rejected counsel’s submission and found that rectification was authorized by equity. The court held that McQuiggan v. Sharp18 and Hawkes Estate v. Silver Campsites Ltd.19 provided authority for the proposition that rectification was not precluded by the Land Title Act. White changes what practitioners had assumed to be the policies of the legislatures since the passing of the Statute of Frauds and the Land Title Act. It now appears that parol evidence of intentions of years ago is to take precedence over the register. Because of this change of policy with respect to interests in land, the courts proceeded to examine the facts in order to determine whether or not the register should be amended. Some of the factual findings are surprising in light of the evidence: • In the first and second trials as well as on appeal, the courts found that that the turnaround was the only possible place to turn a vehicle at the bottom of the common driveway; however, the surveyor’s affidavit20 and the accompanying photo indicate that a turnaround on the Whites’ property would occupy only a small portion of their lot. A regular passenger vehicle is currently able to turn around on their existing driveway.

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• The courts accepted Walter Dilay’s and Mrs. Kittleson’s evidence that the turnaround had been paved since before the Dilays purchased the lots and that it had always been considered part of the common driveway. However, the surveyor’s affidavit stated that he did not believe the turnaround had been paved or even located in the same place when he surveyed the property for the Dilays in 1978.21 • The courts found that the Dilays had intended to include the turnaround in the easement. In his affidavit, Walter Dilay claimed that not only had they intended to include the turnaround in the easement, they were unaware that it had not been included. However, the Dilays had signed and approved the right-of-way plan, which was quite large and clearly indicated the boundaries of the easement, and according to the surveyor’s affidavit, the boundaries were also clearly delineated on the ground with stakes. • The Banvilles’ claim that they believed the paved area was their parking pad was rejected because the B.C. Supreme Court found that the Banvilles had


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not objected to the Whites’ use of the area until after a survey was completed in 2000. With respect, this was an unsupportable finding of fact by the court. In a letter dated December 7, 1999, the Banvilles had stated in reference to the paved area that “[o]ur property is not a common turnaround nor is it for your convenient parking of many vehicles”22 [emphasis added]. If s. 29 of the Land Title Act and the principles of the Torrens system do in fact preclude rectification, the above facts should have been irrelevant. However, if rectification is available in spite of the legislation, the evidence in White still does not appear to have been sufficient to justify ordering rectification. In Shaughnessy Estates Ltd. v. Vancouver (City),23 McLachlin J., as she then was, discussed the “stringent safeguards” associated with rectification, and stated that this remedy should not be granted without “strong and convincing proof ”. She held that a court should be “particularly reluctant to rectify a contract solely on the oral evidence of the party claiming rectification” and cited two authorities in support of this statement.24 In White, the courts preferred the evidence of 25-year-old memories of biased parties to written documentation in the form of a signed right-of-way plan. CONCLUSION It has always been assumed by real estate practitioners that the British Parliament and the legislature of the colony and then province of British Columbia intended to create certainty when dealing with the basic source of wealth in their respective jurisdictions. The British Parliament required that transfers of interests in land be in writing, and the B.C. legislature required that they be in writing and registered in a government office. Faded and jaded memories of 25-year-old intentions and conversations were not to be considered and weighed. It is the writer’s belief that the practitioners’ assumption is correct and that the recent policy decisions of the courts are incorrect. The courts’ reliance on contradicted evidence, the rejection of the surveyor’s evidence in Banville v. White, and clearly questionable findings of fact prove the soundness of the legislative intent behind the Statute of Frauds and the Land Title Act. The Banvilles were improperly deprived of an interest in their land because of these findings of fact, compounding an error of law. The courts, in order to settle an interminable dispute between neighbours, have, in the words of Irving J., “torn up” the Land Title Act. Lawyers in British Columbia have long derided title insurance as unnecessary because we have a Torrens system. Not any more. Our system is now the equivalent of that which prevailed in England in 1677 prior to the passing of the Statute of Frauds. ENDNOTES 1. R. Milward, ed., Table Talk: Being the Discourses of John Selden, Esq., Relating Especially to Religion and State (1689). For a modern printing, see S.W. Singer, ed., The Tabletalk of John Selden (Freeport, NY: Books for Libraries Press, 1972).

2. 1845 (8 & 9 Vict., c. 106). 3. (1677), 29 Car. II, c. 3. 4. Victor di Castri, Q.C., Registration of Title to Land (Toronto: Thomson Carswell, 1987) at 1–14. 5. Ibid. at 1–18.

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6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18.


R.S.B.C. 1996, c. 250. Ibid. s. 27. Ibid. s. 29. (2002), 100 B.C.L.R. (3d) 88, 2002 BCCA 239 (cited to BCCA). 2003 BCSC 606. H.G. Beale, ed., Chitty on Contracts, 28th ed. (London: Sweet & Maxwell, 1999) at 332. Supra note 9 at para. 15 in Banville, quoting para. 44 in White, supra note 10. R.S.B.C. 1996, c. 377. Banville v. White, 2001 BCSC 628. (1903), 10 B.C.R. 212, 1903 eCarswellBC 61 (S.C.) (cited to eCarswellBC). Ibid. at para. 14. Ibid. at para. 18. [1984] B.C.J. No. 1054 (Q.L.) (S.C.).

19. (1991), 79 D.L.R. (4th) 677 (B.C.C.A.). 20. Paragraph 14 of surveyor D. Carrier’s affidavit: “In my opinion it is possible to construct a turn around for a passenger vehicle entirely within lot 2.” 21. Paragraph 13 of surveyor D. Carrier’s affidavit dated January 31, 2003: “I have recently re-examined the property and to the best of my knowledge the current paved turn around location is not where it was in 1976 or 1978 and the garage on lot 2 has been moved.” 22. Supra note 10 at para. 33. 23. (1982), 40 B.C.L.R. 389 at 395 (S.C.). 24. Tucker v. Bennett (1887), 38 Ch.D. 1 (C.A.); Fredensen v. Rothschild, [1941] 1 All E.R. 430 at 436 (Ch.).

À NOTER DANS VOTRE AGENDA DÉJEUNER LE VENDREDI 28 MAI 2004 À 12 h 30 LAW COURTS INN CONFÉRENCIER : L’honorable juge Michel Bastarache de la Cour Suprême du Canada Ce déjeuner et la présentation de l’honorable Michel Bastarache, en français, sont offerts aux membres de la communauté juridique intéressé.es. L’espace étant limité, vous êtes prié.es de communiquer avec l’Association aux coordonnées suivantes dans les plus brefs délais afin de vous inscrire. Addresse :

1555, 7e Avenue ouest, bureau 229, Vancouver (C.-B.) V6J 1S1

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L’Association des juristes d’expression française de la Colombie-Britannique veille au développement professionnel des juristes d’expression française en Colombie-Britannique. La présentation de l’honorable Michel Bastarache se fera dans le cadre de la Journée de droit 2004, en français, sur des sujets juridiques courants. Une opportunité idéale pour discuter du droit en français. Addressez-vous à l’Association pour plus de détails.


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DISCOVERY OF ELECTRONIC EVIDENCE IN BRITISH COLUMBIA By William Morley* lthough the discovery process in British Columbia mainly remains focused on the production of paper documents, documents are increasingly taking electronic form such as e-mail, computer logs or computer financial journal entries. Because electronic documents can be altered or erased at will, a simple printout of documents held on a computer hard drive may represent an inaccurate or incomplete response to a Demand for Discovery of Documents. Computer databases can contain significant background information that can corroborate or negate the accuracy of conventional documents. How the present B.C. Rules of Court govern production of such “background information” is unclear.


NATURE OF INFORMATION HELD IN A COMPUTER Over and above information stored on portable floppy disks, computers that are used in business and office applications have data stored in two locations: 1. hard drives located in the various computers, including personal computers or desktop computers, and file servers; 2. backup tapes and other storage media used to preserve information. A hard drive is a disk designed to store information that is contained in each computer. It is a magnetized disk. The operating system of a computer inputs data by way of binary code (numerals one and zero) that magnetically adheres to the disk. An indexing system labels the data input by the operating system and places the data in “sectors” on the disk. An individual letter of text is made up of eight pieces of binary code. A sector of a disk can normally hold up to 512,000 pieces or “bytes” of binary code. When one deletes a document on a computer, the indexing system merely marks a sector or portion of a sector known as “slack space” as available for storage of code. The original stored information is retained until overwritten with other text. Further, original information may be retained in a file server even if it no longer remains on the hard drive of a personal or desktop computer. A file server is simply another hard drive or series of hard drives operating as a system to which personal computers or desktop computers “back up” or send information for storage on a regular basis. The regularity with which information is “backed up” on * I want to acknowledge and thank Alex Cameron, an associate at Fasken Martineau DuMoulin, LLP, who practises in the intellectual property area, for his assistance with much of the research for this article.


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servers varies in each office; it could be hourly, daily or weekly, depending on the design of the system. Backup tapes and other storage media are other means by which information from desktop and personal computers, or servers, is stored. The tapes are a means of magnetized information storage and are similar to audio cassette tapes in appearance and function. The backup tapes go through a hard drive sector by sector and store the information contained on it. Some systems store only the information “seen” by the operating system; others store all the information on the hard drive including information deleted but not yet overwritten. Through the use of modern computer software technology, one can inspect and make exact copies of the information contained in hard drives on a computer and other computer storage media (such as backup tapes) so as to: (a) obtain the information stored on them; (b) preserve the information stored on them; (c) recover information previously deleted; (d) obtain information not contained in the written text of documents such as date of creation, dates of amendments or deletions, and the actual text of deletions or alterations; and (e) obtain information contained in the slack space of the drive. In order to obtain such information, a computer expert must use software to obtain a “byte stream” image of various hard drives. A byte stream image is in effect a mirror image of the hard drive from which forensic computer software can be used to extract data. The backup tapes also have to be copied and restored. This restoration process involves imaging the tape, restoring the image to another computer, potentially re-imaging the computer drive to which the tape was restored, and then using forensic software to extract data. Similar processes are applied to e-mail servers and file servers in order to extract data. All these processes can be conducted without altering existing data.1 An example of the use of retrieved computer information in a courtroom setting is found in Prism Hospital Software Inc. v. Hospital Medical Records Institute (1991), 62 B.C.L.R. (2d) 393 (S.C.), where a defendant opposed the admission into evidence at trial of “deleted” data recovered from computer disks it had produced during the course of the litigation. AMBIT OF THE RULES OF COURT The B.C. Rules of Court require parties to produce all relevant documents. There is an issue as to whether hard drives, backup tapes, file servers and other such holders of computer data are “documents” within the ambit of the B.C. Rules of Court such that a party is compelled to produce them. Rule 1(8) of the Rules of Court defines “document” as follows: “Document” has an extended meaning and includes a photograph, film, recording of sound, any record of a permanent or semi-permanent character and any information recorded or stored by means of any device.

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Rule 26(1) requires a party to produce a list of the “documents” in its possession or control in response to a demand, and Rule 26(10) gives the court power to order the production of a “document” for inspection or copying. In Northwest Mettech Corp. v. Metcon Services (unreported), Vancouver Registry No. C955055, August 30, 1996, Master Joyce refused to order production of a computer hard drive finding that the hard drive was not a “document”. The Mettech case involved the alleged appropriation of confidential corporate information by a former employee. The employee had transferred some drawings from an old personal computer to a new personal computer. He threw away the old computer and hard drive. Master Joyce refused to order production of the hard drive, holding that it was a “filing cabinet” rather than a document, and that therefore the applicant was not entitled to production of the hard drive itself. At paragraph 10 he did order: The plaintiff is entitled to know with certainty, however, that all relevant electronic data which is resident on the hard drive has been disclosed. Accordingly, I order that the defendant Mr. Delcea provide an affidavit verifying all of the files still resident on the computer hard drive which relate to the matters in issue.

Master Joyce’s reasons reflect a desire to protect the party owning the hard drive from the production of irrelevant or confidential information that production of the entire drive would entail. A simple printing out of the information contained on the hard drive would, however, omit background information the applicants presumably sought, such as the dating of changes and content of changes that would form part of the hidden data contained in the “empty” space in the hard drive. With respect, Master Joyce’s characterization of the computer disk as a filing cabinet is not apt. A filing cabinet contains papers that have information recorded on them. A computer hard drive has the information incised into it; a hard drive is like a filing cabinet that had information incised or etched onto its metal walls in addition to the papers it held. In such a case the cabinet itself is evidence and a “document”, being a “record of a permanent or semi-permanent character” within the meaning of Rule 1(8). The definition of “document” in Rex v. Daye, [1908] 2 K.B. 333 at 340, is apt: But I should myself say that any written thing capable of being evidence is properly described as a document and that it is immaterial on what the writing may be inscribed. It might be inscribed on paper, as is the common case now; but the common case once was that it was not on paper, but on parchment; and long before that it was on stone, marble, or clay, and often it was, on metal.

In the United Kingdom the courts have extended this reasoning process so as to apply to computer databases. In Derby & Co. Ltd. v. Weldon, [1991] W.L.R. 652 (Ch. D.) at 657–659, it was held: The first question raised by this application is whether the database of a computer’s online system, or which is recorded in backup files, is a document within the meaning of Order 24. An analogous question came before Walton J. in Grant v. Southwestern and County Properties Ltd., [1975] Ch. 185. The question there was whether a tape recording of a telephone conversation was a document. In Beneficial Finance Corporation Co. Ltd. v. Conway,


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[1970] V.R. 321, McInerney J. had held that it was not, on the ground that although a tape recording records information and serves a function corresponding to that of a document, it is not a document because the information is not capable of being visually inspected. Walton J. took the opposite view and pointed to the absurdity of the conclusion that if two parties to litigation recorded a conversation, one on a tape recorder and one in shorthand, the one record would and the other record would not be discoverable, though both were ways of recording the same conversation and, although if the second were written in a private shorthand system, both would need a key before the message could be read. He said [at] [1975] Ch. 185, 197: “[T]he mere interposition of necessity of an instrument for deciphering the information cannot make any difference in principle. A litigant who keeps all his documents in microdot form could not avoid discovery because in order to read the information extremely powerful microscopes or other sophisticated instruments would be required. Nor again, if he kept them by means of microfilm which could [not] be read without the aid of a projector.” I respectfully adopt that statement of principle. It must, I think, apply a fortiori to the tape or disc on which material fed into a simple word processor is stored. In most businesses, that takes the place of the carbon copy of outgoing letters which used to be retained in files. Similarly, there can be no distinction in principle between the tape used to record a telephone conversation in Grant v. Southwestern and County Properties Ltd., which was an ordinary analogue tape on which the shape of sound waves is, as it were, mimicked by the pattern of chemical deposit on the tape, and a compact disc or digital tape on which sound, speech as well as music, is mapped by coordinates and recorded in the form of groups of binary numbers. And no clear dividing line can be drawn between digital tape recording messages and the database of a computer, on which information which has been fed into the computer is analyzed and recorded in a variety of media in binary language.

Other Canadian courts have accepted that the term “document” is wide enough to include computer disks, hard drives and similar media: see Bank of Montreal v. 3D Properties Inc. (1993), 110 Sask. R. 303 (Q.B.); Cholakis v. Cholakis, [2000] M.J. No. 6 (Man. Q.B.); and Reichmann v. Toronto Life Publishing Co. (1988), 66 O.R. (2d) 65 (H.C.). Courts in the U.S. have also accepted that electronic databases are “documents”: see, for example, Playboy Enterprises v. Welles (1999), 60 F. Supp. 2d 1050 (U.S. D.C.). In Coleman v. Spong, B.C.S.C., Duncan Registry No. 7398, January 16, 2002, Mr. Justice Curtis accepted that computer hard drives, servers and backup tapes were documents and directed counsel to devise a method, of which more will be said below, for their production. Mr. Justice Curtis issued no reasons for judgment. AMBIT OF PRODUCTION In order to copy or reproduce a hard drive, byte stream imaging must be performed. Accessing data from this byte stream requires use of a key word search. The key word search can result in numerous disks full of information. The more precise and narrow the key word search, the more the volume of information will be narrowed. It is important that a qualified expert conduct the byte stream imaging so that it does not taint the underlying data. This imaging and data retrieval process when performed by an expert can cost tens of thousands of dollars. Hav-

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ing made this investment, the party, its expert or its counsel must spend perhaps days or weeks, if the search is a wide one, reviewing the searched data to vet it for relevancy and privilege. The Rules of Court in B.C. contemplate a party listing relevant documents in response to a demand for production of documents. If electronic databases are documents, a strict reading of the Rules of Court would require a party to list all computer databases that had information recorded in them. These databases will probably contain irrelevant or privileged information such that it would be inappropriate to produce the entire database in the litigation. This raises the question of whether a party must, through its own resources or by retaining an expert, copy and produce its computer databases in response to a demand for discovery of documents in any litigation. In Derby, above at 659, the English court took the view that disclosure at the discovery stage should be made of the information recorded in the database, and that upon application to inspect or copy a document the court had a discretion to put parameters upon the inspection process by ordering perhaps just a printout of hard copy documents or a more extensive copying and inspection process. In Derby, both partiesâ&#x20AC;&#x2122; experts were able to agree on the extent of information available and the extent to which it could be restored. Most of the cases in the U.S. and Canada have been in response to motions for production, inspection and copying, and do not address the issue of what ought to be disclosed and produced from the outset. In the U.S. this may be because the documents production regime appears to be somewhat different, entailing an obligation to respond to specific requests for documents. Some U.S. courts have held that a party is obliged to disclose electronic databases: see for example, Bristol-Myers Squibb Securities Litigation, 205 F.R.D. 437 (D.N.J. 2002), and Kleiner v. Burns, 48 Fed. R. Serv. 3d 644 (2000). On the other hand, courts in the U.S. have refused to require parties to restore and search archived databases where there was only a remote possibility that the search would yield fresh evidence: McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001). A recent U.S. case which conducts an extensive assessment of the relevancy and process governing the production of electronic evidence is Zubulake v. UBS Warburg, 02 Civ. 1243 (SAS) (U.S.D.C. Southern District of New York). In Zubulake the court approached the production of electronic evidence in a manner similar to Derby, holding that electronic media were documents. However, the court also tried to set out more formal criteria governing production and particularly who should bear the cost of production. Zubulake concerned the allegedly discriminatory dismissal of a highly paid UBS Warburg employee. Much of the UBS documentation consisted of e-mails. It appeared that an incomplete production of e-mails had been made. In Zubulake at page 32 the court set out seven factors governing production: 1. the extent to which the request is specifically tailored to discover relevant information; 2. the availability of such information from other sources;


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3. the total cost of production, compared with the amount in controversy; 4. the total cost of production, compared with the resources available to each party; 5. the relative ability of each party to control costs, and its incentive to do so; 6. the importance of the issues at stake in the litigation; and 7. the relative benefits to the parties of obtaining the information. The court indicated that the most weight should be placed on the first two factors (which go to the utility of the information). Next were the cost factors, and last was the importance of the litigation itself. The court distinguished between obtaining information from relatively accessible sources such as optical disks, and active servers or hard drives, and inaccessible sources such as backup tapes and erased, fragmented or disrupted data from hard drive slack space. UBS Warburg contended that the cost of restoring all e-mails from backup tapes would be in the range of $300,000. In the result, the court ordered the defendant to produce and bear the cost of producing all electronic data from active sources such as optical disks and active servers. It was also required to produce at its own expense computer data from five backup tapes selected by the plaintiff. After production of that information the court intended to assess the results and costs with a view to determining whether the cost of further production should shift to the plaintiff. Other cases in the U.S.—Playboy, above, Simon Property Group L.P. v. mySimon Inc., 47 Fed. R. Serv. 3d 247 (U.S.D.C. Ind 2000)—are helpful in terms of setting out a protocol whereby a party’s computer data is copied and produced, but confidentiality of non-relevant information and privilege is maintained. The courts in those cases required that: 1. the applicant select and pay for an expert to take a byte stream image of the databases; 2. the expert provide this data to counsel for the respondent database owner and, as much as possible, provide only the relevant portions; 3. counsel for the respondent database owner then vet the data for relevancy and privilege, and provide pertinent information to the applicant; 4. the expert retain the byte stream image until the conclusion of the litigation. The expert was to function as an officer of the court and not disclose information as to the contents of the files to the applicant or any others; and 5. the expert file a report for the court setting out the scope of the work performed and describing in general terms the volume and types of records provided to the database owner’s counsel. The three reported Canadian cases (3D Properties Inc., Cholakis and Reichmann) discussing production of computer databases do not cite the U.S. case law. Although all required computer databases to be produced, they each adopted differing approaches to the procedure and costs of production.

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In the 3D Properties case, above, the Saskatchewan Court of Queens Bench required the database owner’s counsel to copy databases but to edit any document “clearly protected” from disclosure. The cost of the copying, editing and producing process was to be borne by the applicant. In Cholakis the Manitoba Court of Queen’s Bench required the database owner to copy the computer information (a disk) and provide it to the applicant. The court left open the potential for providing edited data but put the onus on the owner to satisfy the court as to accuracy if other than an exact copy was provided. The costs of copying were to be borne by the owner. In Reichmann, a disk containing a manuscript was in issue. The court ordered the disk produced in its entirety. In Coleman, the British Columbia Supreme Court ordered that computer data be produced under terms to be agreed upon by counsel. Counsel agreed on terms similar to those in the Playboy and Simon cases, which were subsequently embodied in a court order. PRACTICAL CONSIDERATIONS If a party believes electronic evidence may be in issue, it should put the other party on notice that electronic evidence should be preserved. This is important in that many companies have documents “retention” policies that put a time limit on how long media such as backup tapes should be held before being overwritten. Simply retaining backup tapes may be insufficient, however, because as noted earlier some backup tapes do not copy information stored in the slack space of a hard drive that can be overwritten if the hard drive continues in use. If a party is sufficiently concerned about preserving evidence, it should insist that a byte stream image of the appropriate databases be made. Disputes as to expenses involved can be resolved by way of chambers application. If a party is contemplating obtaining the advice of its own expert about copying an opponent’s or its own computer data, it is very helpful to have information on hand about those systems, including: • number, type and location of desktop computers; • number, type and location of servers; • number and type of laptop computers used by employees; • operating systems and types of software used currently and previously; • archiving procedure, software and storage media (e-mail may be stored separately on optical disks, CD-ROMs, etc.); and • locations of replaced computers or hard drives. Such information can be obtained through interrogatories or the examination for discovery process. CONCLUSION Computer data adds considerable complexity to the documents production process. How the B.C. Supreme Court Rules can be adapted to govern this process


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is not yet clear, but the methods set out in the Derby, Zubulake and Playboy cases offer useful guidance. Computer databases can be a powerful tool for assessing the truth about the genesis of a document and the completeness of individual documents, as well as the completeness of overall production of documents. With the move to “paperless” files, it will be increasingly important to develop a coherent approach to the production of computer data. ENDNOTES 1. The foregoing technical description of 2. A useful article about obtaining comthe manner in which computer databases puter data from an applicant’s perspecstore information, and how that infortive in the U.S. context is “Success in mation is retrieved, is based on informaElectronic Discovery”, by C.H. Wilson tion provided to me by Rene Hamel and Jr. and D.A. Cherry, (2002) 38 Trial 60. Garry Gill of KPMG’s forensic computer services group.


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THE NATURAL ORDER OF THINGS* By Anne Giardini y next-door neighbour Sarita has in the past few years acquired a posterior the size of a wheelbarrow. My ex-husband Clarence sports a middle with the shape and heft of an inner tube. My secretary Camille sashays through the office with the substantial hips and expanding thighs of the more authentic kind of belly dancer. But I have always been thin and resolute. I weighed 110 pounds at age 20. I weighed 105 pounds when I married Clarence, and when we divorced, having lost 5 pounds each time to stress. I weighed a touch over 45 kilos at the cusp of the new millennium, having gone metric to celebrate the event. And 46 kilos or less I planned to go into my coffin. I refused to give in, to let myself go, to accept that age, and what my doctor Hector Wong refers to as “the inevitable, Ramona, the inevitable,” would rob me of my familiar, sharp-angled, bony body. There is no medical term for the expansion that happens to most of us in our late thirties or early forties, Dr. Wong tells me. “No diagnosis, no pathology, no cure,” he said, raising his shoulders and turning his hands outward in what struck me as a less than completely professional shrug. Becoming a turnip with cellulite and bulges was “inevitable…inevitable.” Well, not for me. To me, inevitable has always been just another word for: what can I do to prevent it? This is just how I am. When I was in grade seven at Wee Blossom Academy, Sister Ann, who taught my class of thirty girls “hygiene”—she had been cloistered until the year before—admonished us that she had never been kissed by a boy and had vowed she never would be. After our graduation ceremony, I brought my eight-year-old brother Sam up to her, and he reached up and gave her a quick peck on the cheek. That cost me $20, but it was worth it. I had taken matters into my own hands and, albeit in a small way, thrown a wrench into nature’s orderly clockwork, tripped up the busy dancers of life’s tarantella. Not that my goal is disorder. Quite the opposite. What I long for, dream of, is immutability, permanence, perhaps even a touch of the eternal. I hate entropy and all it represents. Decay. Falling apart. Loosening. Slackening. The body’s relentless decline, softening and spreading into middle age and later. I have a job that suits my nature perfectly. I maintain the corporate records at Cantonin, Carter, a smallish law firm (there are only Del Cantonin, Sara Carter, Camille Walker and me) in a small town at the railhead of the old Victoria & Albert line. Port Walker is where Vancouver Island’s gold and coal and iron ore finally gave out, with only profitless granite and scrub to the north as far as the Pole. Camille is a great, great granddaughter of the town’s founding family, one of only two descendants left, in fact, and isn’t really my secretary, but Del and


* First-prize-winning entry in the 2003 Advocate Short Fiction Competition.


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Sara’s, although she does help me out with envelopes and mail merges and the larger photocopying jobs. I haven’t had children. “By choice,” I tell anyone who asks. But I have brought hundreds of companies into the world, and I make sure they are kept presentable, with impeccable articles, and complete and accurate filings. I wipe their little noses, so to speak, hitch up their pants, and inspect their small hands and nails, before sending them out into the world. I have discovered that every corporation has its own distinct personality, even the numbered companies. When I drive past Continental Barbers on 5th, for example, I take pleasure in knowing that its real name is 79456 British Columbia Limited, that silent Joe Fontorini is the treasurer and secretary, and that buxom Pina Fontorini is the president. Like its directors, 79456 is modest but quietly and steadily flourishing. The five Fontorini children will do well by it. StanNova Enterprises Ltd., a cheque cashing company with florescent-lit offices over on Wilmott, on the other hand, is a brash upstart of a company, and evanescent by nature, likely to go the way of a dot-com or firecracker—noisy and dazzling today, burnt out tomorrow. Now and again, a company that hasn’t been properly taken care of comes to me for repair. I’ve seen it all. Companies about to have their assets escheat to the Crown. Sloppy filings. Lost or destroyed share certificates. Improperly held general meetings. Unqualified directors with misspelled names and P.O. box addresses, as if they made their homes in tiny metal boxes at the post office. I set to work with my tongue between my teeth and singlemindedly undo all the errors and omissions of the years. It can take days, sometimes months, to establish the proper directors and officers, revoke and replace inappropriate resolutions, and make all the requisite filings. Del Cantonin appreciates my efforts. “Nice work, Ramona,” he has said to me more than once. “I didn’t think it could be done.” My life has always been as orderly as the neat rows of completed and up-todate record books in the vault at Cantonin, Carter. I am the kind of person who does her laundry on Sunday night, goes to the library on Monday, watches Adventures of Northern Wildlife on Tuesday at 8, eats dinner at White Spot on Wednesday, does her shopping on Thursday evening, reads books over a toast and bacon and egg supper on Friday and goes to a movie on Saturday. That kind of person. Which is how I met Barney. Barney was on his own too, since the death of his wife after a long illness that I have never quite liked to enquire into the precise nature of. He took his dinners at White Spot on Wednesdays and we were often placed in adjacent booths, the two smaller ones at the back near the swinging kitchen door with the glass panels so the waiters and waitresses can see if anyone is coming before giving it a push with their shoulder (waiter) or hip (waitress). And he was often at the same movie on Saturday, sitting alone, as I did, although, unlike me, he didn’t keep his nose in a book until the lights went down. He would have been hard to miss, even if I hadn’t seen him quite so regularly. Barney is enormous. The size of a house my mother would have said, although you can’t say that kind of thing any more, no more than you can say that some-

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one you know has a rear end with the dimensions of a lawn tractor, although not being able to say it certainly doesn’t seem to limit whether you think it. I couldn’t imagine what Barney weighed. Hundreds. He filled a banquette at White Spot where three of me could have sat with room for our coats and purses. His seat at the Odeon squeaked when he sat and groaned when he stood. And he ate! Boston clam chowder. Two or three Triple O’s. French fries. Caesar salad loaded with dressing and croutons and grated cheese. Deep-fried zucchini sticks. Baskets of bread and butter. Key lime pie. Strawberry milkshakes. At the movies he devoured enormous, refillable buckets of popcorn, drowning in golden topping, and vats of cola, light on the ice. I observed him peripherally over the course of a year, marvelling at his stamina. Then we met. At work, as it happened. Camille Walker introduced us. “This is my cousin Barney,” she told me, escorting him into my tiny office, or, rather, the parts that could fit. Barney ducked his head in behind Camille, but the rest of him, the bulk of him, stayed in the corridor. We recognized each other immediately. I could feel the heat of a blush rise into my face from my chest. Camille excused herself, leaving me to provide Barney with resolutions for a meeting of the shareholders of the Walker Bakery (B. D. Walker Baking Limited). That Saturday, at the opening night of Never A Lonesome Evening, staring Hugh Grant and the perennially perky and slightly irritating Meg Ryan, Barney, tentative on his surprisingly small feet, approached me in the Odeon. “Do you mind if I take this seat?” he asked, indicating with the little finger of his left hand the seat immediately to my right. Aside from this one small finger, his hands were full, supporting a flimsy cardboard tray on which were arrayed a tub of popcorn, a plastic cup of Pepsi, a large bag of red liquorice whips and a stack of napkins. “No, no. It’s free,” I said, thinking, with a snake lick of pride and a dust mote of annoyance, that he was probably looking for some free para-legal advice. There had been a slightly tricky question of dividending out some deferred profits that had not yet been completely resolved. Barney lowered himself into the seat and spread his provisions on his generous lap. Perhaps I was imagining it, but it felt as though the entire row was now listing just slightly to the right. “Annoying, isn’t she?” Barney whispered as the movie started. “Who?” I asked, slightly startled. For who did we know in common other than gentle, sashaying Camille? “Meg Ryan,” he answered, lifting his drum of popcorn and offering it to me. I took one of the least yellow kernels and began to nibble at it. “She’s such a damn sparkplug,” Barney continued. “She must be approaching forty; isn’t it time she began to act her age?” “I suppose,” I replied inadequately. Why was Barney sitting in the fold-out seat beside me? Why was he chatting about movie stars? Why was I working on my sixth piece of popcorn? I never eat at movies. I hate popcorn. I hate golden topping. “Forty’s not so old,” I ventured to add, reaching into the tub that was now perched on the chair arm between us.


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“Prime of life,” Barney said comfortably. He whipped the paper sleeve off a straw, jammed it into the slit in the cover of his vat of cola, and offered the drink to me with the same smooth confidence with which Hugh Grant had presented a dozen roses to Meg Ryan last week in the trailer for Never A Lonesome Evening. I leaned over and took a long, slow sip. “Thanks,” I said. I reached up and tucked a wisp of hair behind my ear. “Delicious.” The next Saturday, Barney called for me at my apartment, and we went together to see Jackie Chan in Shanghai Shakedown. I admired the view of town from the high front seat of Barney’s white delivery van, which smelled appealingly of yeast and flour, with a suggestion of diesel fumes. “Here,” Barney said as we drove along Front Street. He handed me a heavy paper sack. Inside, arrayed on a Styrofoam tray and paper doily, were six sticky buns, dripping with caramelized sugar and stuffed with pecans and slivers of crystalized fruit. “I made them for you today over at the store.” “Oh,” I said. I shut my eyes and folded the bag tightly closed. “I couldn’t. I can’t. They’re lovely. It’s just that they’re so…rich.” “Ramona,” said Barney gently. “I think you’ll like them. I know you will. Just try one, OK? For me?” I reached into the bag. I broke off the crisp edge of one of the pastries and placed the fragment gingerly into the centre of my tongue. It melted there with a burst of burnt sugar, vanilla and something else. Anise? “Oh my,” I said. “Oh my.” Barney eased the truck into a parking spot in front of the Odeon. He turned toward me. My muscles tensed, then relaxed. He leaned over and undid my seat belt. “Thanks,” I said. My voice sounded faint, lost in a ringing in my ears and a static buzz inside my head. The needle on the scales I kept beside the sink in the bathroom began to rise, to 47, 52, and then 55. Barney, on the other hand, began to shrink. Our, relationship, or whatever it was, was causing antithetical reactions in each of us. His shirts ballooned. The apron he wore behind the counter at work billowed. His old wedding ring, which he had moved to his right hand, spun freely. When Barney’s assistant Anita went down with the flu in April, I took a week of banked vacation time and went to help out in the kitchen and behind the counter. Barney’s pies and cookies and breads were displayed in strict ranks, by kind and size. His books of account were beyond reproach, his countertops swept free of fingerprints and crumbs. Customers took a number as they came in through the door with its clean plate glass, polished brass fittings and jangling bell. Each was served in orderly sequence. Barney danced lightly behind the counter. He conveyed buns, bread and cake to his customers on outstretched palms with the serene, assured calm of a celebrant serving his congregation. I sighed and loosened the ties on my apron. I felt at home. After another month, I had almost run out of clothes to wear to work, or anywhere. On the day even my shoes felt tight, I told Barney that we were ill-suited,

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that I had been mistaken, that I saw no future. Within days, I was back to 105 pounds, too dispirited to work out the metric conversion. Then, one rainy morning in April, driving to work, I took a wrong turn and caught a glimpse of Barney inside his store. Bathed in harsh electric light, he was larger than he had ever been, and clearly on the increase. I turned my car around, went home and shoved my scales deep into the darkness under my bed. “You’re a rare woman, Ramona,” Barney told me over dinner at the Bombay Palace the next Saturday night. Neither of us had wanted to see Horrority, the sorority slasher film that was that week’s movie. “We rub along pretty well, don’t we?” I felt the restaurant floor tip and shudder as he took my hand. I blinked and tried to clear my head. What had I imagined to be the natural order of things? I couldn’t remember. The waiter set several dishes in front of us all at once, and Barney slid one of them toward me across the table. Its fragrance rose up in a cloud of steam between us, spicy, sweet, rich with foreign mystery and promise. The steam cleared and there sat Barney, as solid and reliable as they come. I thought: the past is certain, but the future can never be known, much less shaped to our will. He will get smaller. I will grow bigger. We will, perhaps, meet somewhere halfway. “Have some vindaloo,” Barney invited, and of course I said yes, I said yes.

zzz Errol D. Soriano, partner with Low Rosen Taylor Soriano


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Because youâ&#x20AC;&#x2122;re a legal beagle, you know that many people want to make provision for injured, sick, and abandoned animals in their will. The obvious beneficiary for such a bequest is the SPCA. The BC SPCA has been here for the animals for over 100 years. Serving communities throughout British Columbia. Simon Trevelyan, Director of Planned Giving British Columbia Society for the Prevention of Cruelty to Animals 1245 East 7th Avenue, Vancouver B.C. V5T 1R1 Call 604-647-1329 or Fax 604-681-7022 E-mail:

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THE FEDERAL ENVIRONMENTAL DAMAGES FUND By Harry J. Wruck, Q.C.1 One of the most pressing issues confronting modern industrial man is his concern over the natural environment. Contaminants of one sort or another enter the air and water and are deposited on the land. Our lakes and forests are dying. Our scientists warn us that we must exercise better management over the only planet in our universe on which life, as we know it, exists, or civilization itself will be threatened.2

he purpose of this article is to describe how the federal government has attempted, through the establishment of the Environmental Damages Fund (“EDF”), to combat the effects of environmental contamination and to rehabilitate the environment. The EDF is a special holding or trust account established by the Treasury Board of Canada to receive, hold and eventually expend monies in rehabilitating the environment after pollution has occurred. It is a vehicle created to receive contributions from settlements or judgments in either regulatory or civil cases involving the federal government or voluntary payments or other awards obtained through various domestic or international liability funds. The EDF is managed and administered by the federal Department of the Environment (“Environment Canada”). Each award or payment to the EDF is accounted for separately in order to ensure that the monies are used only to fund projects in the area where the pollution incident occurs. Environment Canada does not act unilaterally, but rather consults with other stakeholders in remediating and restoring the environment to its pre-pollution condition. Community organizations and environmental groups play a key role in designing and implementing the restoration projects. These groups usually have special knowledge of local conditions, environmental issues and resources in the communities affected by the pollution.3 There is no question that the establishment of the EDF is critical, given the ongoing degradation of the environment as reflected by global warming, the proliferation of greenhouse gases, ozone depletion and climate change. This has led to a host of efforts at the international level to deal with these difficult environmental contamination issues through the Kyoto Protocol, the recent efforts by the International Maritime Organization of the United Nations to eliminate most single-hull oil tankers by 2015 and continued efforts to reduce the use of ozone-depleting substances, to name a few. Even if one is not prepared to accept that incontrovertible evidence exists that adverse environmental changes are taking place, there can be no doubt that pollution is causing substantial harm to the environment and that steps need to be taken to reverse those adverse effects as much as possible. The EDF was created to assist in rehabilitating the environ-



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ment where environmental damage has occurred as well as to promote education and an awareness of the critical issues facing Canadians in seeking to protect the environment. Before further elaborating on the EDF and what impact it has on protecting the environment, it is necessary to understand how legislatures and courts have defined the environment and what environmental damages are. WHAT IS THE ENVIRONMENT? The definition of “environment” varies, depending on the federal or provincial statute in question.4 Generally speaking, the term “environment” refers to the land, air, water, animals, plants and ecosystem in which all of these constituent parts interact with one another. The Supreme Court of Canada, in Friends of the Old Man River v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, provided an even more comprehensive definition of “environment”. LaForest J., writing for the court, described the environment as not being confined to the biophysical environment alone but rather as having to be understood in its generic sense as encompassing the physical, economic and social environment. It is a diffuse subject matter, inextricably interrelated with economic, social and health issues.5 LaForest J. recognized that the protection of the environment is one of the major challenges of our time and that its environmental protection and preservation must be taken seriously by courts, legislatures and the public. The Supreme Court of Canada in R. v. Hydro-Quebec (1997), 118 C.C.C. (3d) 97 at 163–165, went even further and held that protection of a clean environment is a public purpose of superordinate importance. This is also in accord with the Supreme Court of Canada’s statement in Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at para. 55, that the protection of the natural environment is a fundamental and widely shared value of Canadians that is seriously contravened by environmental pollution. This shared value amounts to nothing less than a right to a safe environment. WHAT ARE ENVIRONMENTAL DAMAGES? Given the broad definition attributed to the environment by the Supreme Court of Canada in Friends of the Old Man River, it follows that environmental damage can include not only injury to plants or animals and property, but it also extends to include 1. adverse effects upon human health and safety; 2. impairment of the quality of the natural environment for any use that can be made of it, be it economic or non-economic; 3. damage to property, plants or animals so as to make them unfit for their use by people; and 4. interference with a person’s business. The problem in Canada is that there is very little jurisprudence that defines environmental damages. For the most part, the federal Parliament and the provin-

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cial legislatures have defined environmental damages to mean the cost of restoring the environment to its pre-pollution condition. But no effort has been made to define the intrinsic value of the environment.6 The Supreme Court of Canada is, however, about to deal with this issue in a case arising out of British Columbia, in Canadian Forest Products v. British Columbia, 2002 BCCA 217. In that case, Canadian Forest Products negligently caused a fire that destroyed and damaged some old-growth trees that were protected from harvesting for environmental reasons. Although the B.C. Court of Appeal recognized that ecological damage was sustained, it awarded British Columbia only one third of the commercial value of these old-growth trees because the old-growth forest could not be harvested. The Supreme Court of Canada will now have an opportunity to examine how environmental damages should be calculated where a natural resource cannot be sold on the open market.7 Unfortunately, British Columbia did not adduce any evidence of environmental valuation techniques such as contingent valuation surveys, hedonic pricing or conjoint analysis to estimate the total environmental damages sustained.8 Consequently, the Supreme Court of Canada may have to wait for another case before deciding this very important issue. In cases where a natural resource has a commercial value, it is fairly easy to calculate the value of those resources. However, in cases where harm to the natural resource involves the destruction of old-growth forest, migratory birds or sea otters or the loss of a beautiful vista, it becomes extremely difficult to attribute any value to the resource, since this involves an assessment of the intrinsic value of the environment. That is a complex subject and is beyond the scope of this article.9 ORIGIN OF THE FUND Prior to 1995, any judgment obtained from a court by way of a regulatory penalty or a civil lawsuit or monies obtained from settlements reached between parties or from domestic or international funds involving the federal government had to be paid into the Consolidated Revenue Fund by virtue of the Financial Administration Act, R.S.C. 1985, c. F-11. The only exception to this rule arose in respect to the creative regulatory sentencing provisions under federal legislation for regulatory offences as found in s. 664.1(d) and (e) of the Canada Shipping Act, S.C. 1993, c. 36, s. 9; s. 16 of the Canada Wildlife Act, R.S.C. 1985, c. W-9; s. 16 of the Migratory Birds Convention Act, 1994, S.C. 1994, c. 22; s. 79.2(f) of the Fisheries Act, S.C. 1991, c. F-14; s. 130(1)(i)(j) of the Canadian Environmental Protection Act, S.C. 1988, c. 22; and s. 22(6)(d) of the Wild Animal Plant Protection and Regulation of International and Interprovincial Trade Act, S.C. 1992, c. 52 (WAPPRIITA). This exception will be discussed in more detail later in this article. As a result, those monies could not be used directly to assist in environmental restoration projects, but instead had to be paid into government coffers for general use by the federal government. This problem was particularly underscored in Re: Sause Brothers Ocean Towing, 769 F. Supp. 1147 (D. Or. 1991), where millions of dollars were obtained by the Canadian federal government in a court-assisted settlement from the polluter to assist in restoring bird habitat and other dam-


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aged resources along the west coast of Vancouver Island.10 This case ultimately was resolved before a settlement judge where the polluter agreed to pay $3,349,500 for environmental damages to Canada and British Columbia. The Nuu-Chah-Nulth First Nation received $700,000 for environmental damages. Canada received an additional $4,382,000 for clean-up costs. Environment Canada wanted to use a significant amount of the settlement funds to restore bird habitat along the west coast of Vancouver Island. The issue facing the department was how to gain access to these funds to help rehabilitate the environment and avoid payment into the Consolidated Revenue Fund. Eventually, the polluter, Canada and British Columbia reached a settlement that was conditional upon the environmental-damages portion of the settlement funds received by those two levels of government being used to benefit the environment directly. Under s. 10 of the Financial Administration Act, S.B.C. 1981, c.15, the government of British Columbia with the agreement of the government of Canada established the “Nestucca Oil Spill Natural Resource Damage Fund” to restore the bird habitat. Consequently, this litigation became the impetus for the federal government to adopt a new policy to ensure that a mechanism was put in place so that monies for environmental damages received by the federal government were used to restore the environment as best as possible to its pre-pollution condition. On November 30, 1995, the Treasury Board of Canada authorized the creation of a special holding account pursuant to s. 21 of the Financial Administration Act, R.S.C. 1985, c. F-11, for the purpose of allocating court awards and settlements, as well as voluntary payments and international and domestic funds compensation, or other financial compensation to Environment Canada for damages to the environment.11 This became known as the EDF. The need to ensure that the monies obtained in settlements of litigation or judgments in civil or regulatory cases are not paid into the government treasury finds its roots in the decision of the United States Court of Appeals, First Circuit, in Commonwealth of Puerto Rico v. SS Zoe Colocotroni, 628 F. 2d (1980). In that case the court held that a sovereign state could not expect to receive monies from polluters without ensuring that those monies were used to restore the environment to its pre-pollution condition. Otherwise, to allow the monies to be paid into the treasury would not ensure that the money would be used to rehabilitate the environment that was damaged by the pollution, but would simply result in a windfall to the public treasury. This decision provided some of the underpinnings for the development of the EDF. An additional impetus for the creation of the EDF resulted from the concern that Canada was not taking seriously the need either to combat pollution or to ensure that the environment was restored to its original condition after an act of pollution arose. This was particularly underscored in the United States, where Congress in 1980 passed the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA” or “Superfund”), 42 U.S.C. §§ 9601-75. This legislation provides for natural-resource damage claims arising out of releases of hazardous substances from onshore or offshore facilities as well as from vessels.

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Section 107 of CERCLA provides that any person responsible for the release of a hazardous substance is liable to federal, state and tribal governments for “damages for injury to, destruction of, or loss of natural resources, including the reasonable cost of assessing such injury or loss resulting from the release”. In bringing these claims, federal, state and tribal governments act on behalf of the public as trustees of such natural resources. Under CERCLA, the federal government is authorized to issue regulations outlining the best available procedures for assessing and calculating natural-resource damages based on the cost of restoring, rehabilitating, replacing and acquiring equivalent natural resources.12 As a result of the Exxon Valdez oil spill, Congress enacted the Oil Pollution Act of 199013 (OPA), which provides for natural resource damage claims arising out of oil spills. This legislation is similar to CERCLA in respect to determining the nature, scope and assessment of natural resource damages. At about the same time, the European Union (“EU”) entered into the Treaty on European Union, which expressly dealt with the need for the EU to better protect the environment: Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. Environmental protection requirements must be integrated into the definition and implementation of other Community policies.14

As a consequence of these international events, coupled with the previous factors outlined earlier, Canada recognized that much more had to be done in developing policies that could in a concrete way better combat environmental harm and degradation, and rehabilitate the environment after a pollution incident. This directly led to the creation of the EDF. WHAT IS THE BASIS FOR THE EDF? The EDF does not have a statutory or regulatory basis, nor is it referred to in any federal legislation. The EDF was created by a Treasury Board decision made pursuant to the Financial Administration Act on November 30, 1995, establishing a special holding or trust account called the EDF. The Treasury Board decision provides the framework for managing compensation received in the EDF to rehabilitate and restore the environment as a result of a pollution incident through court orders, awards, out-of-court settlements, international or domestic funds or voluntary payments. It excludes compensation received for actual response and cleanup costs or legal costs and fines. The EDF allows for the carryover of funds from one fiscal year to the next. There is no ceiling for judgments, settlements or awards, but there is a $5 million ceiling for voluntary contributions to the EDF. Although the EDF is not found or referred to in any statute or regulation, this has not created a problem in respect to the receipt and use of any funds paid into the EDF. For example, with respect to regulatory prosecutions, the Parliament of


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Canada has enacted legislation that permits creative sentencing to take place. In other words, courts are given the power and the discretion under legislation like the Migratory Birds Convention Act, 1994, Fisheries Act, Canada Wildlife Act, Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33 (â&#x20AC;&#x153;CEPAâ&#x20AC;?), Canada Shipping Act and WAPPRIITA to impose not only fines and penalties, but also, when sentencing a polluter, to direct monies to be used for various types of environmental purposes, including research and restoration of the environment. In addition, the courts can require polluters to be subjected to environmental audits and perform community service as well as make payments to the EDF. THE OBJECT OF THE FUND The object of the EDF is to assist in the rehabilitation of the injured or damaged environment or natural resource and to ensure that proposed projects to help rehabilitate the environment are cost-effective and technically feasible. Each award or settlement paid into the EDF is accounted for, so that monies will only be used to fund projects in the area where the pollution incident occurred. Environment Canada acts as a custodian and administrator of the EDF and is committed to consulting and building on partnerships with other stakeholders in achieving common goals and objectives regarding the remediation and restoration of the environment. However, it should be noted that the EDF provides a significant amount of flexibility in that the monies paid to it can also be used for several other purposes such as research and education. These purposes must have as their object the protection and restoration of the environment. The rationale behind this approach is again found in the decision of SS Zoe Colocotroni, supra. In that case, the United States Court of Appeals, First Circuit, made it clear that a number of criteria must be weighed in determining whether the restoration costs incurred and proposed by the government are reasonable. In fact, the Court of Appeals held that it would not be prepared to make an award unless a reasonable and prudent sovereign or agency would authorize it and that the restoration plan was feasible and the costs were reasonable. In addition, the court held that the sovereign had to demonstrate that regeneration of the environment through this plan would occur within a reasonable length of time and that there was a real likelihood that natural regeneration would occur. At the same time, the court accepted that in some circumstances it may be appropriate for government to acquire comparable lands for public parks or do alternative-site restoration where the polluted land can no longer be used. These general principles have been followed in the creation of the EDF. The EDF also operates on the precautionary principle that polluters must take responsibility for their actions. It provides courts and litigants with a way to ensure that the money from pollution penalties and settlements is directly invested to repair the actual harm done to the environment. This approach recognizes that early preventive action is necessary for two reasons. First, without taking such action, there is a greater likelihood that the risk of pollution will be greater, and therefore the costs in abating the pollution will be greater. Second, it forces the potential pol-

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luter to develop better ways to reduce the risk of pollution before it occurs. The Supreme Court of Canada in two recent decisions gave its seal of approval to this precautionary approach and the polluter-pays principle in order to encourage sustainable development and to ensure that polluters pay more attention to the need to protect ecosystems in the course of their economic activities.15 The Supreme Court even went so far as to hold that this principle is so important that where there are threats of serious or irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. HOW DOES THE EDF OBTAIN MONIES? After the federal Crown successfully prosecutes a polluter under federal environmental legislation, or where the federal government commences civil litigation against the polluter and either negotiates a settlement or obtains a judgment from a court in relation to environmental damages both with respect to past and future damage, the Crown and the defence can recommend to the court that the monies obtained be placed into the EDF. The court in its discretion can then decide whether to order the accused to pay the monies to the EDF. It should be noted, however, that cleanup costs, actual response costs and legal costs are specifically excluded and cannot be paid to the EDF. The EDF also receives voluntary payments from concerned persons who want to assist in restoring the environment to its pre-pollution condition in a particular area. Through the use of civil remedies and the creative-sentencing provisions of various pieces of federal environmental regulatory legislation, monies can be directed by the courts to the EDF. What follows is a summary of some of the situations in which monies can be paid to the EDF under federal environmental legislation: 1. CEPA, s. 205(1), makes persons who own or have charge, management or control of a substance immediately before an environmental emergency liable for the cost of restoring or remedying the damage to the environment and for all costs and expenses that are reasonable. The federal government can, with the agreement of the polluter, have those monies paid into the EDF. 2. Courts, in sentencing offenders, can direct offenders to pay for research initiatives to the EDF pursuant to s. 291(1)(n) of CEPA and s. 664.1(d) of the Canada Shipping Act, S.C. 1993, c. S-9. 3. Courts, in sentencing offenders, can direct that offenders pay monies to the EDF for the purpose of promoting the proper management and control of the fisheries or fish habitat or the conservation and protection of fish or fish habitat, pursuant to s. 79.2(f) of the Fisheries Act. A similar provision for migratory birds is found in s. 16(d) of the Migratory Birds Conservation Act, 1994. See also s. 22(6)(d) of WAPPRIITA, s. 16 of the Canada Wildlife Act, and s. 291(1)(m) of CEPA. 4. In addition, Environment Canada can enter into Environmental Protection Alternative Measures (â&#x20AC;&#x153;EPAMâ&#x20AC;?) under s. 296(1) of CEPA with alleged


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offenders, for the purpose of diverting the offender from the regulatory prosecution process. The offender then can negotiate an agreement to undertake steps to rehabilitate the environment as well as to pay monies to the EDF.16 It should be noted that courts also have authority under the creative-sentencing provisions of provincial environmental legislation to make orders requiring offenders to pay monies to the EDF. This recently happened in Alberta under the Environmental Protection and Enhancement Act, S.A. 1992, E-13.3, which is discussed in more detail later in this article. In addition, the EDF can also receive monies from domestic and international funds, including the Canadian Ship Source Oil Pollution Fund, as well as from the International Compensation Regime. Under subs. 51(3) of the Marine Liability Act, S.C. 2001, c. 6, the ship owner is liable regardless of fault for all oil pollution damage caused by its ship and for all the costs incurred by public authorities who respond to and clean up discharges of oil. Under certain conditions, ship owners may limit their liabilities for discharges of oil that are not their fault.17 Where the ship owner does not or cannot pay the entire costs of a cleanup and compensation, those costs and compensation may be paid by the International Oil Pollution Compensation Fund or the Canadian Ship Source Oil Pollution Fund. Monies obtained from either a settlement or litigation involving the federal government under the Marine Liability Act from a polluting ship or from international or domestic funds can be paid to the EDF. Until recently, courts, counsel for the polluter and even Crown counsel and government officials were not familiar with the EDF. As a consequence, not as much money has been paid to the special holding account created by Treasury Board to assist in rehabilitating the environment as could have been the case, had the EDF received more widespread publicity. As government officials, prosecutors, judges and defence counsel become more familiar and better educated with respect to the EDF, there is no question that it will be used on a more frequent basis and will become more successful in meeting its objectives. This has been demonstrated over the last few years as courts are beginning to direct, on a fairly routine basis as part of the criminal-sentencing penalty, the payment of a portion of the penalty to the EDF. In British Columbia there have been nine payments of money to the EDF since 1995. Although there have been many prosecutions in British Columbia under the Fisheries Act, CEPA, and the Migratory Birds Convention Act, 1994, very few of those have resulted in monies being directed by the courts into the EDF until recently. This is because Crown counsel, defence counsel and courts are not familiar with the EDF. This is, however, beginning to change. In R. v. Cape Benat,18 the B.C. Provincial Court, on October 21, 2003, ordered $50,000 be paid to the EDF for Canadian wildlife research respecting the conservation and protection of west coast marine birds and habitat. In R. v. White Pass and Yukon Corp., [1997] B.C.J. No. 3192, the B.C. Provincial Court ordered that $20,000 be paid to the EDF arising out of the release of environmental contaminants. On April 4, 2001,

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in R. v. Ocean Selector Ltd.,19 the B.C. Provincial Court convicted the accused under s. 8(2) of the Ozone Depleting Substances Regulations, 1998, enacted pursuant to CEPA, for the illegal importation of ozone-depleting substances and ordered the accused to pay $16,000 to the EDF for ocean marine environmental purposes. There have also been several other convictions in British Columbia that have led to payments of money to the EDF.20 In Alberta, the Provincial Court at the Judicial Centre of Cochran in R. v. Canadian Energy Corp., on July 25, 2003, ordered the accused to pay $67,500 to the EDF for depositing a deleterious substance into waters frequented by fish, contrary to s. 36(3) of the Fisheries Act, and ordered the accused to pay an additional sum of $67,500 to the EDF for violation of a provincial statute, the Environmental Protection and Enhancement Act, under its creative sentencing provisions. Nova Scotia has been a leader in regulatory prosecutions under federal environmental legislation, which has led to substantial moneys being paid to the EDF. In R. v. Maple Leaf Foods Inc., the Provincial Court of Nova Scotia, County of Colchester, made an order on December 20, 2000, that $90,000 be paid to the EDF arising from the deposit of effluent from its water treatment plant into a tributary of the Salmon River contrary to s. 36(3) of the Fisheries Act. In R. v. Irving Shipbuilding Inc., a substance deleterious to fish (arising from sandblasting activities) was deposited by the accused into Halifax harbour, contrary to s. 36(3) of the Fisheries Act, resulting in the Nova Scotia Provincial Court in Halifax ordering that $90,000 be paid to the EDF. Two recent convictions under the Canada Shipping Act for depositing oil off the coast of Nova Scotia by oil tankers resulted in a $125,000 fine being imposed in each case, with $45,000 and $50,000 of these fines, respectively, being directed by the Nova Scotia Provincial Court to be paid to the EDF.21 These discharges of oil along the east coast of Canada are extremely serious; Canadian Wildlife Service studies have indicated that 300,000 birds are killed yearly off the coast of Newfoundland by ships dumping their oil into the waters of this region.22 In R. v. City of Iqaluit (2003), 50 C.E.L.R. (N.S.) 116, the accused was convicted under s. 36(3) of the Fisheries Act of depositing a deleterious substance into waters frequented by fish, namely, approximately 540,000 to 830,000 litres of sewage being dumped into Koojesse Inlet on Frobisher Bay as a result of a pump failure.23 The Nunavut Court of Justice, on August 8, 2002, imposed a fine of $10,000 (which was paid into the Consolidated Revenue Fund), and an additional $65,000 was ordered by the court to be paid to the EDF. The city was also ordered by the court to pay an additional $25,000 to develop a training course for spill response and cleanup and an operational manual to operate the sewage plant.24 HOW IS THE EDF ADMINISTERED AND HOW ARE THE MONIES EXPENDED? The EDF does not require that the monies received in any particular case be spent in the same year. Rather, it permits money to be carried over from one year to the


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next. Treasury Board requires Environment Canada to carry out an audit of the EDF at five-year intervals to ensure compliance with the terms that have been set up for the administration of the EDF. Furthermore, Environment Canada is not permitted to deduct its administrative costs or any training costs in managing the EDF from the monies paid to the EDF. It should also be noted that each award is accounted for separately so that the monies will only be used to fund projects in the region where the pollution occurred. The monies cannot be used for general federal government projects, infrastructure programs, general pollution cleanup, recreation and tourist projects or expenses to attend conferences or workshops. Instead the projects must be aimed at one of three priorities: 1. the restoration or improvement of the damaged natural resource; 2. the development of environmental damage and natural-resource restoration techniques; or 3. the education of the public about the need to combat environmental contamination and to promote nature-resource restoration. Environment Canada, as the custodian of the EDF, is committed to consulting and building partnerships with other stakeholders in achieving common objectives regarding the remediation and restoration of the damaged environment. Environment Canada prefers to fund EDF projects that demonstrate community support and involvement through partnerships with such non-profit organizations as community-based environmental groups, Aboriginal communities and organizations, universities, provinces, territories and municipalities. Environment Canada encourages these organizations to submit restoration, environmental-quality improvement, research or education-based project proposals. This has resulted in Environment Canada finding partners who fulfill three important roles. First, these partners play a role in determining how the monies are spent in rehabilitating the environment. Second, they contribute additional money and resources in the process. Third, they often better understand local conditions and can play an important role in rehabilitating the environment. Accordingly, these partnerships are essential in making the EDF work effectively and at the same time promoting the need for protecting the environment. Environment Canada establishes clear criteria and standards that apply both to applicants and decision makers in relation to the use of the EDF monies for environmental restoration projects. Three important principles govern the process: the restoration projects must be cost-effective, they must be technically feasible and they must be scientifically sound. To a large degree these important principles have been borrowed from American jurisprudence such as the SS Zoe Colocotroni, supra, where the United States Court of Appeals, First Circuit, refused to award damages for restoration of the environment unless the government had a realistic plan in place to restore the environment to its pre-pollution state. An area where polluters have in the past been highly suspicious of government is in the field of environmental research. One common complaint is that the

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monies are often needlessly spent by government scientists attempting to engage in research for the purpose of pursuing their own pet projects. At the same time, polluters are increasingly recognizing that by providing monies for these purposes they can often win the public-relations war and demonstrate to the community that they have learned from their mistakes, and that, in fact, they are good corporate citizens seeking to make a difference in rehabilitating and better protecting the environment. An example of this occurred in 2001 in R. v. Sheritt International Corporation, an Alberta environmental case discussed below. The primary purpose of the EDF is to use monies obtained from court awards or negotiated settlements to restore and rehabilitate the environment to its prepollution condition. Often, however, it is not possible to apply the compensation received directly to a particular incident that caused the environmental damage. An example of this occurs where a court makes an award resulting from a CEPA ozone-depleting substance importation violation. In such a case, a suitable substitution for direct damage is identified and funds are used to support a restoration project to address the damage. This arose in R. v. Sheritt International Corporation, where cylinders for refrigerators were imported from Cuba, which was contrary to s. 7 of the Ozone-Depleting Substances Regulations, 1988 under CEPA. This case was diverted from the criminal process under CEPA (see note 16 for a description of this process). This resulted in $30,000 being paid to the EDF with the agreement of Sheritt. In addition, the company wrote an article in a trade journal describing what it had done to prevent a reoccurrence of this incident in the future. Another example of such a situation arising occurred under WAPPRITTA, which prohibits the importation into Canada of any animal or plant or any part that was taken, or processed, distributed or transported in contravention of any law of a foreign state.25 The accused in R. v. Mohammed Nasim Doost was granted an absolute discharge after pleading guilty in Nova Scotia Provincial Court under s. 6(2) of WAPPRIITA for importing 4,363 pieces of elephant ivory into Canada.26 The ivory was forfeited by consent to the federal Crown under s. 19(2) of WAPPRIITA. The accused also paid $10,000 to the EDF by consent. EDF PROJECTS Environment Canadaâ&#x20AC;&#x2122;s Atlantic Region has been a leader in the application of the EDF. In selecting projects in the Atlantic region, Environment Canada has adopted a priority scale for selecting restoration projects. This project selection priority scale is divided into four categories. The first project selection priority includes projects that directly restore or remediate damage from a specific pollution incident. The second priority is to undertake environmental-quality improvement in the location and community where the pollution incident occurred. The third priority is research and development related to damageassessment methodology. The fourth priority is education for the purpose of promoting environmental-damage awareness and restoration. The Atlantic Region of Environment Canada has collected approximately $500,000 in court awards and voluntary contributions in the EDF. Of this


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amount, approximately $285,500 has been paid out to environmental restoration projects throughout the region. The remaining uncommitted monies have not yet been used, but a number of potential restoration projects and other potential activities are being considered. There are currently six EDF projects in progress in the Atlantic Region: two in Nova Scotia, one in Prince Edward Island, one in Newfoundland and one in New Brunswick. Although some monies have been paid to the EDF in Alberta, no projects have been established to use the monies at this time. In the British Columbiaâ&#x20AC;&#x201C;Yukon region, there have been 28 convictions since 1995, and 10 of these have resulted in monies being paid directly into the EDF. Sixty per cent of those monies deposited to the EDF have actually been spent on rehabilitating and restoring the environment to its pre-pollution condition. The legislation that has been used in directing monies to the EDF in this region include the Migratory Birds Convention Act, the Fisheries Act, CEPA, the Canada Shipping Act and WAPPRIITA. The projects that have been embarked upon under the EDF are very diverse. Some of the projects have involved stabilizing stream banks, restoring vegetation and enhancing fish habitat and creating areas for fish to spawn.27 Another example of a different approach being taken relates to the Halifax harbour projects. This project has sought to identify non-sewage-related environmental problems and to develop a plan to combat these problems. The communities affected must also raise money and must put the plan into effect within two years.28 In British Columbia, the EDF projects have varied as widely as rehabilitating fisheries resources in Mosquito Creek and McKay Creek in North Vancouver, improving a salmon-bearing stream in Port Moody, acquiring equipment for rehabilitating birds that have been oiled, as well as developing and presenting training courses on oiled-bird rehabilitation and funding for research projects concerning oiled-bird rehabilitation. ADVANTAGES OF THE EDF The EDF is one of the first such funds created to use a coordinated approach in restoring the damaged environment to its pre-pollution condition. It is not, however, the only one. Under some of the creative sentencing provisions of the federal legislation previously referred to, courts can and have ordered monies paid to local community groups to help them reverse the effects of pollution incidents. These other funds are used and administered differently than the EDF. What distinguishes the EDF from other local funds is that they are for the most part created on an ad hoc basis when a polluter is sentenced. Furthermore, these local funds are not as accountable as the EDF, nor do those funds have as stringent conditions imposed in respect to the use made of monies paid to those funds. There are four important areas under the EDF that are worth highlighting in that regard: 1. Monies paid into the EDF are fully accountable.

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2. The supervision of the expenditure of the EDF is done by Environment Canada personnel with an interest in remediation and restoration rather than through the court process. 3. The EDF projects funded are usually related directly to the pollution that occurred. 4. EDF projects are undertaken on a partnership basis by interested parties. This approach has proven to be a success because it results in the money being used more effectively and with less waste, and the restoration of the environment always remains paramount in the expenditure of any monies. Consequently, the environment is better protected and the local communities are engaged. Another advantage of the EDF is that administrative costs of managing as well as implementing it cannot be paid out of the EDF. This means, in effect, that all monies paid into the EDF are actually used for an assessment of the environmental damage sustained as well as for the eventual restoration of the environment to its pre-pollution condition or to promote awareness and education of the need to combat pollution. BRITISH COLUMBIAâ&#x20AC;&#x2122;S ENVIRONMENTAL TRUST FUNDS Although it is beyond the scope of this article to examine provincial environmental trust funds, it should be noted that British Columbia has also moved in that direction. In B.C. the provincial government has established two similar funds under legislation. These funds are the Habitat Conservation Trust Fund and the Grizzly Bear Trust Fund. British Columbia has borrowed heavily from the federal government in this area and has also enacted creative sentencing provisions in s. 84.1 of the Wildlife Act, R.S.B.C. 1996, c. 488; s. 4 of the Water Act, R.S.B.C. 1996, c. 483; and s. 56.1 of the Waste Management Act, R.S.B.C. 1996, c. 482. The provincial legislation has gone one step further than the EDF and has established the two provincial trust funds in legislation. A court under these provisions is given express authority to direct payments into these funds if it considers this appropriate for environmental rehabilitation purposes. CHALLENGES FACING THE EDF Three major challenges face the EDF in the near future. The first challenge lies in the fact that the EDF has not been created under legislation, as the British Columbia funds have. This can have the effect of restricting a courtâ&#x20AC;&#x2122;s discretion and jurisdiction to pay monies to the EDF. This could be addressed by amending the creative-sentencing provisions in federal legislation and by expressly providing that courts can order payments to be made to the EDF. This would facilitate the payment of monies obtained either through the court process or through negotiated settlements to the EDF with greater ease. The second challenge is that very few monies are provided by the federal government to Environment Canada to administer the EDF. This funding shortfall is not only hindering Environment Canada in its administration of EDF projects,


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but it may in some cases prevent the department from pursuing worthwhile projects. What makes matters worse is that no interest is payable on monies in this special account. This obviously will have to be addressed in the future if the EDF process is to work more effectively in protecting the environment. The third challenge facing the EDF is the high cost of environmental damage assessment. Most of the over 20,000 spills or releases of oil and chemicals reported through Environment Canadaâ&#x20AC;&#x2122;s National Pollution Reporting Network every year involve spills or releases of contaminants in relatively small amounts. For example, 99.8 per cent of all oil spills involve less than 50,000 gallons of oil. This means that it is difficult to justify spending large amounts of money to measure the extent of environmental damage and to quantify environmental impact. Yet, without doing so, it is very difficult to come up with a plan to restore the environment to its pre-pollution condition, because the cumulative effect of these oil spills causes significant environmental damage. One solution is to train investigators and to develop the necessary tools, which would permit the assessment of environmental damages to be done in a more cost-effective manner. Although the Atlantic Region has made great strides in this area, a great deal of work remains to be done. Furthermore, it may be unrealistic to expect to resolve this problem without spending significant sums of money, which governments do not have available to spend at a time when issues such as health care have taken over the agenda. The United States has taken a different approach. The U.S. Congress has enacted CERCLA, OPA and the National Marine Sanctuaries Act, 16 U.S.C. 1431, which are all aimed not only at ensuring that the polluter pays the costs of restoring the environment to its pre-pollution condition, but also at recovering all response costs and costs incurred in assessing environmental damages, which quite often are substantial. This is consistent with the approach that the EU is taking as indicated by its recent white paper on environmental liability.29 The EU makes it clear that the time has come to fill what it describes as a legislative vacuum and to broaden the notion of damages to cover biodiversity. The main focus of the white paper has been to emphasize the need to seek to recover the costs of environmental damages arising from site contamination and damage to biodiversity as well as damage to health and property. The white paper also encourages valuation methods to be used in calculating both reparable damage and irreparable damage. In cases where costs of restoration are considerably higher than the estimated value of the damaged resources, the compensation to be paid should amount at least to the value of the damaged natural resources. Furthermore, the award of damages must be utilized for providing environmental services of a quality and quantity equivalent to those lost. The white paper also advocates the recovery of the costs of assessment of these restoration costs from the polluter. The United Nations has also taken a similar position. The UN Security Council issued Resolution 687 in 1991 in response to the first Persian Gulf War and affirmed that Iraq is â&#x20AC;&#x153;liable under international law for any direct loss, damage,

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including environmental damage and the depletion of natural resources, or injury to foreign government, nationals and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait”. The Governing Council of the United Nations Compensation Commission appointed a panel of commissioners to review claims for direct losses relating to environmental damage and depletion of natural resources resulting from the invasion. The governing council defined “direct environmental damage and depletion of natural resources” to include reasonable monitoring and assessment of the environmental damages for the purposes of evaluating the harm and restoring the environment. As a consequence, the commission allowed the recovery of monitoring and assessment costs.30 The high cost of assessing environmental damage has even caused some states, such as Washington and Florida, to take a different approach. These two states have enacted legislation that provides a simple system to assess and recover monetary compensation for damages to natural resources in those states.31 Damages are calculated by ascribing mathematical values to certain criteria, which then enables the respective states to determine what amounts should be assessed for the injury to their natural resources. The various criteria include the volume of the discharge, the characteristics of the pollutant discharge and the sensitivity of the natural resources affected by the discharge. After reviewing all of these factors, a calculation is made to assess how much money a polluter must pay as a result of a spill. This approach avoids the necessity of having to spend large amounts of money in assessing environmental damages. Instead, those states have mapped out what environmental resources are found in their territory, and they have determined how sensitive the ecology is to pollution and how valuable these resources are. Determining this baseline data in advance enables the states to ascribe mathematical values to the damaged resources by computer modelling instead of undertaking lengthy and expensive assessment of environmental damages. In the future, Canada may be left with no alternative but to adopt a similar approach, if the EDF is to continue to operate in a cost-efficient and effective manner. CONCLUSION As the Supreme Court of Canada held in Imperial Oil Ltd. v. Quebec (Minister of the Environment), (2003) SCC 58 at para. 19, there is a growing concern on the part of Canadian legislatures and of society at large about the critical need to safeguard the environment. This concern reflects more than the collective desire to protect the environment in the interest of the people who currently live and work in it and exploit its resources. It is also evidence of the acknowledgment by all of Canadian society of the environmental debt owed to humanity and to the world of tomorrow. The creation of the EDF is the first of many payments that need to be made to satisfy that debt. It is not, however, a panacea in dealing with the difficult question of how to rehabilitate the environment after a pollution incident occurs. The establishment of the EDF is only a small step in Canada’s efforts to combat pol-


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lution. It is, however, a very important step. It demonstrates the importance that Canada attributes to the need to protect and rehabilitate the environment. It also underscores how important the environment is, and that when it is impaired by the release of environmental contaminants, the planet as a whole suffers. By ensuring that polluters are required to restore the environment to its prepollution condition through the EDF, those industries responsible for pollution will make greater efforts to prevent the release of contaminants into the environment. This will result in those responsible for the release of contaminants rather than the public as a whole bearing most of the costs of the pollution. Furthermore, it will provide the impetus to persuade and encourage industries at risk to develop better systems to prevent the pollution from taking place. Finally, perhaps it will make potential polluters realize that they are part of the world community and, as such, acknowledge the environmental debt they owe to themselves, to society as a whole today and to succeeding generations. ENDNOTES 1. The statements made in this article are those of the author and should not be taken in any way to reflect the views of the Department of Justice or the Department of the Environment. 2. R. v. Lopes (unreported November 5, 1986, Ont. Prov. Ct.). Similar judicial recognition of the central importance of environmental protection can also be found in R. v. Crown Zellerbach (1988), 49 D.L.R. (4th) 161 (S.C.C.). 3. See the EDF Web site, < edf_e.asp >. 4. See, for example, s. 3 of the Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33: “Environment means the components of the Earth and includes: (a) air, land and water; (b) all layers of the atmosphere; (c) all organic and inorganic matter and living organisms; and (d) the interacting natural systems that include components referred to in paragraphs (a) to (c)”; the Canadian Environmental Assessment Act, S.C. 1992, c. 37, has a similar definition of “environment”; s. 1 of the Environment and Land Use Act, R.S.B.C. 1996, c. 117, defines “environment means all the external conditions or influences in which humans, animals and plants live or are developed”; s. 1 of the Commissioner on Resources and Environment Act, R.S.B.C. 1996, c. 59, defines “envi-





9. 10.

ronment includes air, land, water and all other external conditions or influences under which humans, animals and plants live or are developed”; s. 1 of the Ministry of Environment Act, R.S.B.C. 1996, c. 299, also defines “environment” in a similar fashion, and s. 1 of the Waste Management Act, R.S.B.C. 1996, c. 482. This definition is in accord with the report prepared by Environment Canada, entitled “State of Canada’s Environment”, in 1991. See s. 40 of the Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33; s. 47 of the Marine Liability Act, S.C. 2001, c. 6; and s. 34(4) and (5) of the Fisheries Act, R.S.C. 1985, c. F-14. Leave to Appeal to the Supreme Court of Canada in Canadian Forest Products v. British Columbia granted on January 23, 2003, and the appeal was argued on October 16, 2003, judgment reserved. For an analysis of how assessments of the intrinsic value of the environment are made, see H.J. Wruck, “Recovery of Environmental Damages: A Matter of Survival”, (1992) 3 JELP 143. Ibid. Re: Sause Brothers Ocean Towing, 769 F. Supp. 1147 (D.Or. 1991), concerning an oil spill from the barge Nestucca off the coast of Oregon. The oil made its way to the western coast of Vancouver Island as

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11. 12. 13.

14. 15.


17. 18. 19. 20.

a result of winds and currents. This caused substantial damage to several natural resources, including wildlife. In particular, approximately 30,000 migratory birds were killed by this oil spill. Canada, British Columbia and First Nations sued for cleanup costs and damages to the natural resources. This case ultimately settled before a settlement judge in the United States District Court of Oregon. The citation for the decision deals solely with the limitation of liability issue. The citation for the settlement conference pertaining to the environmental damages clean-up claim is Sause Brothers Ocean Towing, Civ. No. 89-609–RE, May 20, 1992 (U.S. District Court for the District of Oregon). Public Accounts of Canada, 2003, vol. 1, Summary Report and Financial Statements, 4.10 to 4.14. 330 S.S. ss. 2701–2761 (Supp. II 1990). Oil Pollution Act of August 18, 1990, Pub. L. No. 101-380, 104 Stat. 484 (codified as 33 U.S.C. §§ 2701-1761 (Supp. II 1990)). Treaty on European Union, February 7, 1992, 31 I.L.M. 247, art. 130 R. 114957 Canada Lteé v. Town of Hudson [2001] 2 S.C.R. 241 at paras. 31–32; and Imperial Oil Ltd. v. Quebec (Minister of the Environment), 2003 SCC 58. EPAMs were put in place by Parliament under CEPA as a means of diverting alleged polluters away from the criminal justice system after the polluter has been charged. If the Crown and the alleged polluter are prepared to proceed through this process, it can result in an agreement whereby the alleged polluter will clean up and restore the environment to its prepollution condition without being prosecuted. Section 54 of the Marine Liability Act. R. v. Cape Benat, Information No. 131190, Vancouver Registry of the Provincial Court of British Columbia. Court No. 37445, North Vancouver Registry of the Provincial Court of British Columbia. R. v. Princess Cruises (B.C.) Limited, Info. No. 38721-02-C, Provincial Court of



22. 23. 24.


British Columbia at Richmond, January 12, 1998. In this case the accused was convicted of importing into Canada walrus ivory carvings contrary to s. 6(2) of WAPPRIITA, and the court ordered that $10,000 be paid to the EDF to promote public awareness of WAPPRIITA and the purpose of this legislation. In R. v. West Coast Reduction Ltd., Info. No. 131173, Provincial Court of British Columbia at Vancouver, the court ordered $14,000 be paid to the EDF for research on the great blue heron in Georgia Basin and for the conservation and protection of migratory birds in B.C. arising out of a canola spill in Burrard Inlet in Vancouver. In R. v. M/V Baltic Confidence, case no. 1036877, February 25, 2002, Nova Scotia Provincial Court, the accused ship, a Philippines-registered bulk carrier, pleaded guilty to unlawfully discharging a minimum of 850 litres of an oily substance in Canadian waters contrary to s. 664 of the Canada Shipping Act. The court imposed a fine of $80,000 and ordered that $45,000 be paid into the EDF. In R. v. CSL Atlas, November 25, 2002, Nova Scotia Provincial Court, a company owned by Canada Steamship Lines discharged 92 litres into waters southeast of Halifax and was sentenced in 2002 by the Nova Scotia Provincial Court to a fine of $125,000 under s. 664 of the Canada Shipping Act, of which $50,000 was ordered to be paid into the EDF. Tony Lock, Canadian Wildlife Service, Atlantic Region, EDF National Workshop, December 11, 2002. Court file no. 09-01-093, Nunavut Court of Justice. See also R. v. Teck Cominco Metals Ltd., court no. 08-02-558, Nunavut Court of Justice, September 29, 2003, where the court ordered payment of $25,000 to the EDF arising out of a conviction under s. 36(3) of Fisheries Act respecting the deposit of a deleterious substance (diesel oil) into waters frequented by fish. See s. 6 of WAPPRIITA.


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26. The accused consented to forfeiture of the ivory carvings on February 12, 2002, before the Nova Scotia Provincial Court in Halifax. 27. For example, restoration and enhancement on Bailey’s Brook in Tatamgouche, Nova Scotia, June 2001. 28. Halifax Harbour Action Plan, August 1, 2002. 29. Foreign analysis of the white paper: see Holzman (1998) and background papers commissioned by the EU at <>.

30. United Nations Security Council, Report and Recommendations Made by the Panel of Commissioners Concerning the Second Instalment of “F4” Claims, October 3, 2002. 31. The Washington State Pre-Assessment Screening and Oil Spill Compensation Schedule (c. 173183, Washington Administrative Code), which became effective in May 1992; and c. 92-113, Laws of Florida, (1992) established a framework for recovery of damages to the state’s natural resources resulting from the spill of hazardous material into the waters of the state.

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AUSTRALIA CALLING By Tony Ferrers* HIGH COURT OF AUSTRALIA There has been a series of events to mark the centenary of the High Court of Australia, which first sat in October 1903. A creature of our constitution, it is at the apex of Australia’s hierarchy of courts. There are seven judges, who all sit on the cases of greatest importance. More often, the court comprises five judges. Cases come before the court for hearing once the court’s leave has been obtained. Some cases never pass the leave stage. One of its notable and high-profile judges is Justice Michael Kirby. He had previously chaired the Australian Law Reform Commission and had been president of the New South Wales Court of Appeal. He has a lively mind with an amazing intellect and often finds himself in a minority. Apart from his judicial work, he gives many an address and has a huge appetite for work. I think I read once that Who’s Who noted that his hobby was work! I once reviewed a book of his speeches for the Queensland monthly law journal. On receiving a copy of this review, his Honour wrote me at once a letter of thanks containing these striking words: The proudest thing for me to note is not that you described me as an intelligent judge but as a “loving and caring man”. This is indeed an accolade. Thank you for it.

It is true that I perceived these qualities in him through his speeches and said so. But I was astonished that in his busy round he even found time to write to li’l ole me! He went up even further in my estimation! Justice Kirby has contributed a short article to the December 2003 issue of Brief, the monthly journal of the Law Society of Western Australia, whose cover story was the centenary. In it, he made these comments about the present and the future of the court that he graces: The High Court has embraced new technology in ways that lead the world. Suitably for a country of Australia’s size, the judges in Canberra hear applications for leave to appeal conducted by videolink. Transcripts and decisions are immediately posted on the Internet. In future it seems inevitable that proceedings will be broadcast live. Maybe one of the judges will explain the decisions of the Court in simple terms as they are handed down. Maybe some judges will relate more closely to the experiences of women and other minorities. Adaptation to new ways and values is part of the genius of our law, although some of its practitioners need to be dragged kicking and screaming to accomplish the changes… “What do the next 100 years hold? Will some judicial decisions be made by intelligent machines?…Can we continue without a Bill of Rights? Will international and global courts come to supplement or replace our proud national institutions and, if so, at what cost? * An alumnus of Victoria University of Wellington, barrister and solicitor of the High Court of New Zealand; a solicitor of the Supreme Court of Queensland; a Commissioner of Oaths for New Zealand in Queensland; a Queensland Justice of the Peace; and a features writer and frequent contributor of matter from Down Under to the Advocate.


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He also referred to recent attacks on the court and on some of its judges. Those attackers should have known better, in his opinion. They were just undermining the rule of law. In his view, there is a dearth of proper media coverage of the work done by the court. He finds this depressing. This is perhaps because the words emanating from the court’s lofty halls are generally not newsworthy. YOUNG LAWYERS If you have read the trilogy forming the novel The Fortunes of Richard Mahony, by Henry Handel Richardson (a woman, in fact, who wrote delightful prose), you will know that the discovery of gold turned Victoria into a prosperous state, which today is where much of the old money of Australia is to be found. Many banks are headquartered there as a result. It was the trading entrepreneurs who preferred Sydney. Bendigo in Victoria is where the lucky ones from all over the world struck gold between 1850 and 1870 and thereafter sought out the gold fields of the Klondike and elsewhere. A little gold mining is in fact still carried on in and around Bendigo. Some elegant buildings of that era remain well preserved, like the Shamrock Hotel, which was built in 1854. Today the town is the centre of a prosperous farming area, thanks to irrigation. It boasts a population of 60,000, who are not so remote that they can’t dash off southeast to Melbourne some 150 kilometres away to see their favourite Aussie Rules football team or cheer Australia to another victory at the Melbourne Cricket Ground, which will hold 100,000 people and host the Commonwealth Games. In many ways, Bendigo is an attractive regional town, despite the icy chills it suffers in winter. However, young lawyers seem not to find it attractive when compared with the glitter, glamour and glitz of the city. Senior practitioners in the town have become concerned. Where will the locals find their legal advisers in the years to come? There are rich pickings (a different kind of gold) to be obtained in the law in this district during the rest of this century. Word spread even to Melbourne of this disquiet. It resulted in the Law Institute Council of Victoria meeting in Bendigo’s old Town Hall in August 2003. The agenda was limited to discussion on how to revitalize the aging local legal profession and get more young lawyers to stay in the town once their articles had been completed, according the Bill O’Shea, the institute president. A new breed of young lawyers was important, he said, to take care of the town’s future needs as a growing regional centre. The present situation was far from good in that there were only two articled clerks in town and only six lawyers with up to two years‘ post-admission experience. In the cities, specialization is very often the name of the game. In rural and regional areas, by contrast, a lawyer may enjoy a variety of work, allowing no one to get stale in a particular area. Mr. O’Shea saw new opportunities for interesting new developments in water law and agreements relating to genetically modified crops, as well as all the old-time favourites, on which young lawyers could cut their teeth.

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One promising development is commencing in 2004 with the opening of a law school at the Bendigo campus of La Trobe University. In Bill O’Shea’s opinion, this could groom Bendigo’s lawyers of the future. School leavers wanting to study law will no longer have to go to Melbourne or further afield, but will have the fiveyear course on their doorstep. This may be a relief to their parents worried about the temptations of the city on their carefully nurtured progeny, but it may be an annoyance to those seeking to cut the umbilical cord and wanting to burst onto the stage of the wide world. The five-year course will provide degrees, including an accredited professional qualification in law, combined with a degree in arts, business or science. James Leach, president of the Bendigo Law Association, was enthusiastic. He said that this new law school was strongly supported by the local legal profession: It should be a great opportunity to produce lawyers born and bred in Bendigo. And when lawyers complete their articles here, we have to think of ways of retaining them in country areas rather than losing them to the city.

At that August meeting of the council, its members, 20 or so, sat down with local practitioners and collectively did just that, each one with a thinking cap on. They would no doubt have been delighted to hear from Natalie Davey, a solicitor who was to be admitted the next week. She professed to love working in Bendigo and her plan was not to seek other pastures, but to stay put. She expressed herself comprehensively when she said: You are exposed to all areas of law and most aspects of being a lawyer. One day you may be in court or doing a mediation; the next you may be visiting an elderly client to have a will signed. You constantly find yourself working on matters listed in all jurisdictions. Because you are part of a small community, other practitioners from inside and outside your firm are almost always willing to offer advice and guidance. You know all the court staff and are able to establish friendly working relationships with them. The other great advantage is that you can leave work and be home in 10 minutes.

Ms. Davey clearly loves the collegiality and lifestyle to be found in Bendigo, because she also found she was able to enjoy a life outside work, not being tied to long working hours and a budget like some of her colleagues in cities. And if she did want to go to Melbourne, she could without too much difficulty, apart from the logjam of cars once she got there. She could still attend continuing legal education in Melbourne if she felt the need—“It’s just a quick drive down the freeway,” she said. Alternatively, if the Law Institute runs the event, there is the option of a locally run seminar, as well as a telephone or video link at no additional cost. WOMEN IN LAW Victoria has also been astir over women barristers during the latter half of 2003 and, if you’ll pardon the expression, their lack of briefs. Their instructions have declined over five years, despite more women going to the bar. But Rob Hulls, the Victoria attorney general, is on their side and has announced a policy of equitable briefing of government legal work. In August he told The Australian Financial Review:


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[Law firms] have agreed contractually to adopt equal opportunity briefing practices in relation to briefing barristers on behalf of government departments. I would also be very keen for these firms who are doing government work to apply the equal opportunity briefing practices for their non-government work as well.

In Victoria there is a split profession, unlike the case in Western Australia, where there is fusion of barristers and solicitors. In 2002, Hulls announced a policy of requiring 33 law firms that provided legal services to government to follow equal-opportunity principles. In 2003, he extended this policy so that all legal work by large Victorian statutory organizations should be allocated to firms using the same policy. Victoria Legal Aid has the stateâ&#x20AC;&#x2122;s largest criminal practice and is following the A.G.â&#x20AC;&#x2122;s guidelines. It has identified a small group of junior criminal female barristers in whom it has great confidence and who, as their experience increases, will be briefed in cases of greater difficulty than the ones they are now undertaking. Over a two-year period these women will receive instructions in cases with increasing complexity until they have reached a standard where they do not require the support of Victoria Legal Aid. That body will then seek out other juniors and set them on a similar path. Ian Spry, Q.C., is, on the other hand, one of the old school, despite his preeminence as a tax barrister. The AFR has reported that the silk is editor of the conservative National Observer and has devoted an editorial to the topic, stating that consideration ought to be given more carefully to the question of why some women barristers are not briefed. He maintained that assertiveness and aggressiveness were essential ingredients of a barristerâ&#x20AC;&#x2122;s approach to being successful. Apparently he had overlooked the stunning successes of Lord Birkett. He wrote nevertheless: For temperamental reasons most female barristers are relatively low in assertiveness and aggression.

He found them feminine and restrained in most cases. Outrageously, he opined that some women received instructions because of their attractiveness and some were less committed to their work than their male counterparts were because of family and social commitments and attitudes. Unlike Mr. Spry, Rob Hulls hopes that the other states and territories will follow the path that he (Hulls) has marked. The New South Wales Bar Association is all in favour. It considers that large enterprises should try by the way they issue instructions to combat the social bias against women that is still found in the law and business, which prevented women excelling in a similar manner to men. It would help punch through the glass ceiling. However, in the federal government two ministers were at odds over the issue. Senator Helen Coonan, the assistant treasurer, and Daryl Williams, Q.C., the then attorney general, had opposing views. Senator Coonan wished her department to ensure that women barristers had equal access to briefs. Mr. Williams told the president of Australian Women Lawyers that he would oppose a similar approach to that espoused by Rob Hulls. However, Mr. Williams has been shifted

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from his office of A.G. in a cabinet reshuffle, and his successor may have different ideas. The stated policy of Australian Women Lawyers on equitable briefing says: Equitable briefing practices maximise choices for lawyers and their clients, promote the full use of the independent bar and optimise opportunities for practice development of all barristers. The adoption of equitable briefing practices can play an important role in the progression of women in the law, judiciary and wider community. This policy is formulated for adoption by clients and their legal advisers throughout Australia. In selecting barristers, all reasonable endeavours should be made to: • Identify female barristers in the relevant practice area • Genuinely consider engaging such barristers • Regularly monitor the engagement of female barristers • Periodically report on the nature and rate of engagement of female barristers.

Time for a 21st-century Waterloo battle cry—“Up girls and at ‘em!” How soon, as in Canada, will the chief justice of our High Court be a woman?



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Scott W. Fleming, LL.B. J.D. (magna cum laude), has joined Byran Caveâ&#x20AC;&#x2122;s Los Angeles office as Counsel following his graduation from the University of Notre Dame and admission to the California Bar. Scott was most recently a partner of Harper Grey Easton, and continues as a member of the Bars of British Columbia and Alberta. Scott focuses his practice on providing advice, representation and management of U.S. liability exposures on behalf of Canadian counsel and their clients in commercial insurance, personal injury, product liability and class action disputes.

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THE ADVOCATE WINE COLUMN By David Roberts, Q.C. shland, Oregon, lies a half a dozen miles north of the California border, 100 miles inland, in the Rogue River valley. It is an attractive town of some 20,000 souls; home to the South Oregon University and the Oregon Shakespeare Festival—arguably the best repertory theatre in the English-speaking world. The festival was founded in 1935 and runs each year from February to November. About half its plays are Shakespearean; the rest are an eclectic selection of classics, musicals and modern pieces. Occasionally it produces a world premiere. It has three theatres, and one (like the Globe), gives open-air performances. The festival produces 30 performances a week. We have been attending the festival these last eight years; last fall we saw eight plays in seven days. The company, of some 72 actors, is highly professional. The sets are magical and the productions skilled. Two years ago we saw Pericles, Prince of Tyre, without doubt Shakespeare’s silliest plot; but the production was so masterly that when Pericles is reunited in the last scene with the daughter he thought had been drowned at sea, I had a tear in my eye; and nobody can enjoy a play more than that. Ashland is populated by academics, students, retired people, theatre folk and working hippies with dogs. Second-hand bookshops abound, the restaurants are first-rate and there are dozens of cottages and B & Bs for the accommodation of visiting theatre buffs. In eight years, I have never seen a police car in the town. I can only suppose that there must be a small underemployed police department secreted away somewhere in the back streets. Adding to the enjoyment of one’s visit to this theatrical Mecca is the availability of unending quantities of superb wine. The Rogue Valley is just south of the Willamette Valley, which runs south from Portland. That valley produces—I will say it ever so softly—the finest Burgundy in the world. The French get upset if you call wine Burgundy when it is not produced in the country to the west of the Swiss Alps, so the Oregonian vintners call it Pinot Noir, and Pinot Gris.1 Oregon is host to just short of 200 wineries; all produce good wine, and some bring forth quite exquisite vintages. All the wineries welcome visitors and encourage the tasting of their wares. A trip through a few wineries is an enjoyable experience, if a little tough on the liver. If you plan a wine tour, buy first a copy of Oregon Winery Guide, published by the Oregon Wine Advisory Board and available in any wine shop in Oregon. It is a barrel of information, lists every winery and distillery in Oregon and demystifies the etiquette of labelling. Close by the fesival’s three theatres nestles a neat little well-stocked delicatessen. The first time I walked past it, I noticed five wine bottles in the window. They were all different sizes, and four were labelled: “375mls”, “Magnum”, “Rehoboam” and “Methuselah”. I was intrigued by the absence of a label on the middle bottle. I entered the shop and accosted the owner with a question: “Why



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don’t you have a label on the middle bottle in your window?” I asked. He smiled sweetly and said, “Ah. That’s a ruse to entice people like you to come into my shop and ask what you just asked. The middle bottle is a Jeroboam.” His ruse worked. I bought some pâté, two feet of French bread and several bottles of wine. The names of the different-sized bottles intrigued me, and, embarking on some research, I discovered that there seem to be 12 sizes of wine bottle, viz., split, half bottle, bottle, magnum, double magnum, Jeroboam, Rehoboam, Methuselah, Imperial, Balthazar, Salmanazar and the mighty Nebuchadnezzar. I say “seem to be”, because I soon discovered that the size of a particular bottle depended to some extent on what wine the bottle contains. There is a different hierarchy of sizes for Champagne and Burgundy than for Claret, and the amount that a particular named bottle holds seems to depend on who is selling the wine.* The custom of storing wine in glass bottles goes back to the 15th century. Before that, wine was kept in ceramic or metal pots and jugs. Leather bottles were used by travellers. These were known as boutilles, from which the modern English bottle is derived. Towards the 12th century, glass containers came into use and were known variously as flagons, decanters, carafes and flasks. But the modern bottle with its recessed bottom is only 600 years old. The recessed bottom we know today was developed as a means of minimizing the effect of sediment on the wine. Sediment lying in the recess is in contact with less of the wine than it would be if spread across a flat bottom. Different-shaped bottles were developed for different wines; the tall, slim, shouldered bottles for Hock, square-shouldered for Claret, something between the two for Burgundy and, of course, the well-known swollen shape for the Champagne bottle. My research disclosed the following confusing situation. According to Liberty Wine Merchants, Champagne and Burgundy have a fixed hierarchy of wine bottle sizes: • A split is a quarter of a bottle, 7 oz. • A pint is half a bottle, 14 oz. • A standard bottle is 750 ml., one quart or one pint 11 oz. (Yes, I know a quart is two pints, but not in Bottle-ese). • A magnum, two bottles, is also referred to as two quarts. • A Jeroboam is four bottles. * Editor’s note: Mr. Roberts’s enlightening dissertation on collective nouns for bottles of wine put me in mind of a passage from James Joyce’s best short story—“The Dead”—in which the author provides a description of an elaborately set table that includes mention of “squads of bottles of stout and ale and minerals”. It reads: “In the centre of the table there stood, as sentries to a fruit-stand which upheld a pyramid of oranges and American apples, two squat oldfashioned decanters of cut glass, one containing port and the other dark sherry. On the closed square piano a pudding in a huge yellow dish lay in waiting, and behind it were three squads of bottles of stout and ale and minerals drawn up according to the colours of their uniforms, the first two black, with brown and red labels, the third and smallest squad white, with transverse green sashes.”

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• A Rehoboam is six bottles. • A Methuselah is eight bottles. • A Salmanazar is twelve bottles (a case). • A Balthazar is sixteen bottles. • A Nebuchadnezzar is twenty bottles. But Libertys says that for Claret, a Jeroboam is six bottles and an Imperial is eight bottles—just a different name for a Methuselah. The names came about because when the 15th-century winemakers settled on the various sizes of bottles to contain their wine, they consulted the Old Testament and chose the names of Biblical kings and captains. Jeroboam, son of Nebat, was a mighty man of valour. Solomon made him ruler of all the charge of the house of Joseph: 1 Kings 11:28. Nebuchadnezzar was the ruler of Babylon (what is mostly now Iraq), from 630 to 562 B.C. Methuselah (in Genesis 4 called Methushael), was an antediluvian patriarch, said to have lived for 969 years. Balthazar was one of the three Magi. The other two were Gaspar and Melchior. Rehoboam was the son of Solomon and the last king of the united kingdom of Israel: 1 Kings 11–14. The derivation of a Salmanazar was not easy to trace, partly because it is spelt in several ways. The Canadian Oxford Dictionary links it to Shalmaneser, king of Assyria. Five of the kings of Assyria, from 1274 to 721 B.C., bore the same name, though there were other kings interspersed in that period from time to time. He who figures in 2 Kings 17–18 conducted ceaseless campaigns against Assyria’s neighbours, particularly Israel. This part of the Old Testament makes gruesome reading and confirms the opinion that the Near East is in no more turmoil today than it has been, on and off, for 6,000 years. The king referred to in chapters 17–18 of 2 Kings is probably the one whose name now describes (collectively) a dozen bottles of wine. He ruled Assyria from 726 to 721 B.C. In Assyrian the name is Shulmanuasharidu. I have also seen it spelled Salamanazar. Different sources give different sizes for some of the bottles. Bottle sizing seems not to be an exact science. Lichine’s Encyclopedia of Wine holds that a Nebuchadnezzar is only 10 bottles and a Balthazar “sixteen reputed quarts or 12.8 litres”. The Oxford English Dictionary claims that a Jeroboam can be either 10 or 12 bottles. Buying a Nebuchadnezzar of wine would surely be an intimidating experience. One would leave the liquor store carrying a bottle that weighs, by my calculation, about 50 pounds. Drop it, and several hundred dollars’ worth of wine would spill into the gutter. Better to send the butler to fetch it. The editor has exhorted me to end this monologue with some recommendations; he says this is, after all, a wine column. Oregon wines will not be found in B.C. liquor stores, so I cannot usefully recommend any. Upon inquiry as to why Oregon wines are not to be found, I was told that the bureaucratic paperwork required to export wines to B.C. was just not worth the Oregonians’ effort, unless they could market really large quantities in B.C. If you visit Oregon, go to the


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Chateau Lorane winery, 22 miles south of Eugene and close by a village that goes by the charming name of Drain. It produces the most beautiful Viognier I have ever tasted. It is a species of Hock. I am no connoisseur, and have been derided in the past by the Honourable Ralph Hutchinson for buying wine in boxes. (Boxed wine is actually contained in a plastic bag within the box with a neat little tap for drawing the wine. The bag shrinks and lets in no air as the wine is drawn, which minimizes oxidation.) The Honourable Hutch. is unmoved by this argument, so I hide my boxes when he is around. Because there is little point in recommending Oregon wines, since one cannot buy them in B.C., I shall turn to Australia. The liquor store has recently been selling a delicious Shiraz Cabernet, Lindeman’s Cawarra. At $9.95 per bottle, this wine is exceptional value. It comes from Cawarra in the state of Victoria, the original homestead of Dr. Henry Lindeman. From New South Wales come two vintages by Yellow Tail, both priced at $12.95: a Shiraz and a Cabernet Sauvignon. The Cabernet leaps from the glass with a touch of mint over aromas of blackberries, chocolate and vanilla. The seamless structure shows rich berry flavours, peppered with spice and vibrant acids. The palate is tremendously long and well structured with toasted oak, soft fruit and velvety tannins. (Well, that’s what it says on the back of the bottle.) Despite this florid advertising, they are both very good wines for the price. Lastly, I wish to report the discovery of a beautiful fine sherry. It is produced by the Gonzalez Byass people, who also produce Tio Pepe at almost twice the price. The orange-and-white label on the bottle gives the name of the sherry as Elegante, and it is described as a dry Manzanilla–Sanluca de Barramada. It costs $15.42, including the recent gouge of 3 per cent. Tio Pepe seems to have disappeared from the shelves of my local liquor store, but this is much better value and virtually indistinguishable from Tio Pepe. It is much more sophisticated than Alvear’s fino, which is only a couple of dollars cheaper. The advertising on the back of the bottle claims that it is a very dry Manzanilla sherry; a claim amply supported by the taste. It is very delicate and conjures up visions of T.S. Eliot’s “Silken girls bringing sherry”. Of course, Eliot had them bringing sherbet, but no matter. ENDNOTE 1. The Honourable Ralph Hutchinson tells me that the Burgundian wine makers do not make Pinot Gris. They consider it an unworthy grape and instead concentrate on Chardonnay or the really ignoble

grape, Aligote, which they sell in B.C. at $16.00 per bottle, and some of which they market under the name Pisse-dru despite the taste (which he says is accurately reflected in the name).

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BCCLS INTRODUCES WESTLAWeCARSWELL IN COURTHOUSE LIBRARIES As of March 1, 2004, the B.C. Courthouse Library Society (“BCCLS”) is providing free access to WestlaweCarswell’s LawSource on all courthouse library computers outside Vancouver. The Vancouver Courthouse Library will continue to subscribe to Carswell print resources. The wealth of information available on LawSource is being made available to lawyers and members of the public of B.C. as a result of subscription negotiations held between BCCLS and Carswell. There is no cost to access LawSource on the public-access computers at courthouse libraries outside Vancouver. The only cost to users is the standard 25¢ per page charge for self-service printing. The resources available on LawSource include: • Canadian case law • Federal and provincial legislation • The Canadian Encyclopedic Digest • The Canadian Abridgment • KeyCite Canada COURTHOUSE LIBRARY TRAINING AND ORIENTATION SESSIONS In the fall of 2003, staff from the Vancouver Courthouse Library travelled to a number of courthouse libraries throughout B.C. offering orientation sessions on the BCCLS Web site and the electronic products freely available on the courthouse library computers. These sessions will resume in the spring of 2004, to introduce to users all of the resources available through our Web site and as subscription services on our public access computers. Notices will be posted on the BCCLS Web site ( and at our courthouse library locations, advertising the dates of the orientation sessions. For information or questions about these sessions, please contact the Vancouver Courthouse Library at 604-660-2841 or 1-800-665-2570.



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ELECTRONIC FILING AT THE LAND TITLE OFFICE In April 2004, the Land Title Branch Electronic Filing System will be launched. Once in operation, the electronic filing system will enable conveyancing professionals to electronically submit land title forms for registration. To coincide with the launch of the electronic filing system, in March 2004 CLE will release the second edition of the Land Title Transfer Forms Guidebook. For years the Land Title Transfer Forms Guidebook has been an essential resource for preparing and registering “paper” land title forms. The second edition now includes step-by-step instructions on how to complete the new electronic forms. The Land Title (Transfer Forms) Regulation is annotated with commentary and examples specific to electronic forms A to E, and a new form, the declaration general, used only with electronic filing, is included along with instructions for completion. New sections of the Land Title Act on electronic filing are also included in the book. BRITISH COLUMBIA COMMERCIAL ARBITRATION—AN ANNOTATED GUIDE CLE is pleased to announce the release of British Columbia Commercial Arbitration— An Annotated Guide, written by Christine J. Mingie. This volume is the most recent in CLE’s series of annotated guidebooks for the legal profession. Commercial arbitration is an important dispute-resolution option in the commercial world. It is essential for lawyers, arbitrators and others involved in commercial arbitrations to understand arbitral principles and how those principles are interpreted by the courts. This handy guide provides practitioners with quick access to concise summaries of important case law under British Columbia’s Commercial Arbitration Act and International Commercial Arbitration Act, as well as in-depth commentary on the history and significance of principles under each section of the Acts. All of the important information is conveniently found in one place, including the complete text of the statutes, regulations under the statutes, related legislation and a chart summarizing B.C. legislation that requires or permits commercial arbitration. This first edition is current to September 1, 2003. PERSONAL INJURY CONFERENCE ON MAY 7, 2004 This year’s personal injury conference will be in a dynamic new format: it will be organized in much the same way that personal injury lawyers organize a file. The conference will begin with senior counsel providing an update on significant case and legislative developments. In the context of these new developments, presen-


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ters will then discuss their effect on the preparation for and conduct of the personal injury trial. The material will be presented from both the plaintiff and defence perspective. Topics will include presenting and defending a personal injury case, examination of the plaintiff, lay witnesses, employment evidence, other defendants and costs. For more information on any of these offerings, along with current listings of all books and courses, please visit the CLE Web site at <> or call our customer service department at 604-893-2121 or toll-free 1-800-663-0437.

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LAP NOTES By Derek LaCroix* STRESS IN THE LEGAL PROFESSION Stress is a normal, inevitable part of life. It can result from almost anything— job, people, telephone, traffic, change, a move, etc.—and needs to be defined by its effect on one’s self. Something that is very stressful to one person may not be so to another. Negative internal response to stress, called distress, is the problem. Stress can result in such symptoms as excessive daydreaming, anxiety, hostility, change in appetite, accident proneness, apathy, indigestion, loss of concentration, loss of sexual interest, low self-esteem, diarrhea, constipation, forgetfulness, fatigue, irritability, loss of creativity, impulsive behavior, headaches, allergy flare-ups, stuttering, yelling, feelings of rejection, increased smoking, increased use of alcohol, dizziness, moodiness, hyperventilation, menstrual discomfort, frustration and mental blocks. For lawyers and legal assistants, some of the main stressors include: 1. Time constraints and deadlines. 2. High-stakes work, perhaps involving the loss of property, children or freedom. 3. High expectations of expertise and clarity where clarity cannot be found. 4. Constant scrutiny and critical judgment. 5. Conflict with opposing counsel who are out to prove you wrong now or potentially later. 6. Malpractice threats: Murphy’s Law, CYA, changes in law and the rapid pace of practice. 7. Assumption of the clients’ burdens. 8. Decline of professional cordiality. 9. Professional training versus personal style: an aggressive, judgmental, intellectual, emotionally defended or withdrawn style may have practical value but not be so popular outside the office, or even inside the office. 10. Professional training to notice and anticipate the negative, downside potentials in a given situation; the cost of constant vigilance of a threatening world. 11. Group norms, billable-hour expectations, promoting business, drinking. 12. Depletion of energy from high demands, high focus, staying on task. 13. Defensive development of rigidity, compulsiveness, perfectionism, ratcheting down. * Derek LaCroix is the executive director of the Lawyers Assistance Program.


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Summaries of some of the most common ways to reduce stress and supply balance to life are listed below. Don’t try them all at the same time. Pick one and practise it until it becomes a habit. After one item has been thoroughly incorporated into your life, pick another, and work on it until it also becomes a part of your life. 1. Watch your diet. Maintain a balanced diet and regular eating habits. 2. Exercise. Increased stress levels due to the “fight or flight syndrome” are best dissipated through physical activity. 3. Learn time management. In recent study, almost half the lawyers surveyed believed that the greatest source of stress was time pressures and their lack of time-management skills. 4. Learn relaxation and breathing skills. Learning how to breathe deeply can be a simple exercise that brings immediate results. Relaxation techniques such as yoga, transcendental meditation, the Benson relaxation response (constant repetition of a word, such as “one”, “relax”, etc.) have been proven to be highly beneficial. 5. Use positive thinking and self-talk. Your attitude toward stressful situations is critical. If you focus on the positive and pleasurable, positive things seem to happen. 6. Develop a detached attitude. Many of us get caught up in the wins and the losses. When the other side prevails in a lawsuit, a lawyer may say, “What did I do wrong?” and become emotionally involved in the outcome. It is important to develop a “let go” attitude. The important thing is to do the best you can, and then let go of the results. 7. Use prayer. This technique brings about the same kind of stress reduction that relaxation techniques do. People need not have any certain form of religious affiliation or belief. For some people, a spiritual dimension is an integral part of their lives. Relying on that spiritual source can be of great value in dealing with stress and reducing the threat of burnout. This is an individual choice but a proven, effective stress-reduction technique. 8. Develop a sense of humour. Humour and laughter are wonderful stress reducers. When you laugh, endorphins and neurotransmitters in the pleasure centre of the brain are released, creating the relaxation response. 9. Talk to someone about your stress. In all the literature relating to stress reduction, this is the number one way to reduce stress. Having someone to talk to, whether a spouse, a partner, an associate, friend or mentor, is very important. ”Get it off your chest.” You may also benefit from professional help. Everybody gets stuck once in a while. Guidance from a counsellor or therapist can help us break through whatever is blocking us. And remember to have regular checkups with your physician.

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ANNOUNCING THE 2004 ADVOCATE SHORT FICTION COMPETITION ELIGIBLE CONTRIBUTORS Any person who is now, or has been, a member of the Law Society of British Columbia (including lawyers, judges, masters) or who is an articled student. Contest judges and the “staff ” of the Advocate are ineligible to contribute. ELIGIBLE FICTION A fictional work, written in English, limited to 2,500 words, that involves: (a) a dispute over an estate where the deceased was an Irish expatriate living in Italy who died under mysterious circumstances; (b) a British Columbia lawyer with forged credentials and a pending date with a surgeon; (c) a signed, first edition of Malcolm Lowry’s Under the Volcano with several pages roughly torn out; (d) an acre of undeveloped waterfront property near Maple Bay on Vancouver Island; and (e) a piece of unclaimed baggage left in the lobby of the El Dorado Hotel in Kelowna. The contributor must be the author of the work, which must be entirely original and must not ever have been published or submitted for publication or consideration in a writing competition elsewhere. DEADLINE FOR SUBMISSIONS The close of business on Friday, September 10, 2004. Submissions will not be returned, so authors should maintain file copies of their work. ADDRESS FOR SUBMISSIONS Advocate Short Fiction Competition c/o Thomas S. Woods Editor The Advocate 1600 Cathedral Place 925 West Georgia Street Vancouver, B.C. V6C 3L2 FORMAT FOR SUBMISSIONS Two double-spaced, typed manuscript copies, each with a separate cover sheet bearing the work’s title together with its author’s name, address, daytime tele-


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phone number and a word count. The author’s name should not appear anywhere on or in the manuscript itself as all submissions will be judged anonymously, strictly on literary merit. JUDGES Thomas S. Woods and David Roberts, Q.C., of the Advocate. The decisions of the judges as to the literary merit of the contributions shall be final. PRIZES First prize:

$400 gift certificate at Duthie Books and publication in the Advocate Second prize: $250 gift certificate at Duthie Books and possible publication in the Advocate Third prize: $100 gift certificate at Duthie Books and possible publication in the Advocate Winning entries will be selected by, at the latest, March 1, 2005. Contest judges may award fewer than three prizes if, in their judgment, they consider it appropriate. All submissions, including winning entries, will also be considered for possible publication by the Vancouver Bar Association or an independent publisher in a selection of “legal fictions” to be released at a later date. TRANSFER OF RIGHTS In consideration of having their fiction reviewed for: (a) possible selection as winning entries; (b) possible publication in the Advocate; and (c) possible inclusion in a selection of submissions to be published in book form; contributors agree upon submitting their work that the Vancouver Bar Association (publisher of the Advocate), or its licensee, shall have the sole and exclusive right, in Canada and for a period of 15 years, to print, publish and sell their work in such form or forms as the Vancouver Bar Association may in its discretion consider appropriate, such right to revert automatically to all contributors whose works of fiction are not selected as winning entries or for inclusion in the selection of submissions to be published. Contributors further undertake, if required by the Vancouver Bar Association, to execute both a written assignment in order to confirm the transfer of rights described above to the Vancouver Bar Association and a waiver of the moral rights attached to their work, should their work be selected for publication in the Advocate as a winning entry or for inclusion in a selection of submissions to be published in book form. All proceeds or royalties, if any, from the sales of such a selection will be paid to the benefit of the Vancouver Bar Association, a non-profit organization.

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By Catherine Dauvergne* ACADEMIC RESEARCH AT UBC’S FACULTY OF LAW Like other global centres for legal education and research, the Faculty of Law at UBC has experienced an explosion in the breadth and depth of faculty research initiatives over the past decade, in the areas of both domestic law and international comparative law. Our 38 faculty members research and write on a broad range of topics, use diverse research methodologies, publish widely and have become leaders in academic and policy debate. Over the past two years, they have published two dozen books, over 50 book chapters, as many or more articles in peer-reviewed journals and scores of other scholarly works. In addition, Professor Joel Bakan is blazing new paths for legal academics through his simultaneous involvement in the award-winning documentary film and book entitled The Corporation. Traditional forms of scholarship are alive and thriving, of course, including scholarship related to teaching. Several members of the faculty are co-authors or lead authors of widely used casebooks. Professors Bakan and Elliot are represented in Canadian Constitutional Law (3rd ed., 2002). Professor Christine Boyle is a co-author of The Law of Evidence: Fact Finding, Fairness and Advocacy (1999) and Contracts: Cases and Commentaries (6th ed., 1999). Dean Bobinski is a co-author of Health Law Care Law & Ethics (6th ed., 2003). Professors Sarra, Bryden, Davis and Weiler are contributing authors in Corporate Governance in Global Capital Markets (2003), and Professors Sarra and Davis are co-authors of Director and Officer Liability in Corporate Insolvency (2002). Many faculty members also are committed to the process of relating academic research to the profession. Professors Boyle, Bryden, Edinger, Elliot, McClean, McDougall and Sheppard are regular participants in CLE programs and other professional activities. External funding for research has grown in importance over the past decade. Empirical research projects often require external funding for data collection and analysis. Funding also provides support for graduate students, who otherwise might not be able to afford to pursue graduate study. This year, 12 members of the UBC Faculty of Law are involved in eight research projects funded under five different Social Sciences and Humanities Research Council of Canada (“SSHRC”) programs. SSHRC funding for legal research is particularly impor* Catherine Dauvergne is an associate professor at the UBC Faculty of Law.


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tant because of university funding structures and small “p” politics. For every dollar that SSHRC awards to a research project, the university receives an additional dollar. A small portion of this add-on is returned directly to the faculty. In addition, the total dollar amount of funding held by the faculty determines the amount of money it has available to fund graduate students and the number of Canada Research Chairs the faculty will be awarded. These multiplication factors make this source of funding a particularly important measure of research strength. Professor Pitman Potter, who also directs UBC’s Institute for Asian Research, heads a research team holding a major collaborative research initiative grant to conduct a five-year-long comparative investigation of dispute resolution processes in China, Japan and Canada. The project brings together researchers and practitioners from those nations, as well as the United States, to investigate dispute resolution, in and out of the courts, in the areas of international trade and human rights. The work is particularly focused on considering how forces of globalization affect the transmission of legal norms across cultures. In addition to Professor Potter, seven other members of the UBC law faculty are involved in this research: Lilijiana Biukovic, Bill Black, Phil Bryden, Michelle LeBaron, Bob Paterson, Janis Sarra and Sharon Sutherland. The project runs until 2008, and the funding is renewable. The faculty is also involved in three projects funded through SSHRC’s Community-University Research Alliance (“CURA”) Program. The alternative dispute resolution CURA was initially spearheaded by Professor Emeritus John Hogarth and is now being carried out under the leadership of Michelle LeBaron, the newly appointed director of the dispute resolution program, and instructor Sharon Sutherland. This broad-based research program focuses on the role of dispute resolution in areas such as family law, personal injury, construction, small claims and human rights. Associate Professor Margot Young, who joined UBC’s faculty this year, is participating in two three-year CURA-funded projects. The first, entitled “The Social Rights Accountability Project”, investigates the prospects for realizing social justice for low-income and other disadvantaged groups through socialrights-based participation in social, legal and political settings. The research team includes academics and community organizations from across Canada. Professor Young’s second CURA project is British Columbia–based and examines the impacts of reforms to provincial public services on economic security. The research team will investigate alternative models for governance and delivery of public programs, with the aim of finding ways to better meet people’s needs while incorporating democratic principles. The project also provides a way for Professor Young to continue her work in monitoring the effects of public-service cutbacks in British Columbia. Professor Ruth Buchanan is part of a project team investigating the social and legal effects of outsourcing work. This project is funded under SSHRC’s special program to pursue understanding of the dynamics of globalization entitled “The Initiative on the New Economy”. The project will include regional case studies

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across Canada examining situations where work has been outsourced to other locations, such as India, as well as cases where work has been relocated to Canada from elsewhere, usually the United States. The research team includes UBCbased scholars from a range of disciplines. Professor Buchanan also holds a SSHRC standard research grant with which she is investigating the place of law in globalization. In this work she is examining in particular how those who might be termed “globalization’s losers” are attempting to use the law as a tool for change. Her investigation focuses on law’s social dimension: its role in the constitution of just societies and in the protection of marginalized groups, which has been called into question by globalization. Susan Boyd, who holds the faculty’s chair in feminist legal studies, is using a SSHRC standard research grant to investigate the reform of Canadian child-custody law. Along with Dorothy Chunn from Simon Fraser University, Professor Boyd is assessing which factors have had the greatest weight in the recent process of reforming laws related to children whose parents divorce or separate. Legislative reform, lobbying by women’s rights groups, lobbying by fathers’ rights groups, media attention to “gender wars” over children, law reform in other countries, and the growth of social science documentation about divorce are among the factors they are considering. Professor Claire Young, who also serves as Associate Dean for Academic Affairs, holds the prestigious SSHRC-administered Therese F. Casgrain Fellowship. This fellowship is awarded once every two years to support research on women and social change in Canada. Professor Young’s research considers whether funding social programs through the tax system can ever be a fair and effective tool for delivering social programs. She considers how this growing public policy trend affects women, and with this project considers the particular instance of tax subsidies for retirement savings. This snapshot of SSHRC-funded projects at the UBC Faculty of Law necessarily misses much research, funded and unfunded, that goes on in the faculty. The Law Foundation, the Hampton Fund, the Law Endowment and a number of important smaller awards, along with project-based support from the private sector, make possible the research, collaborations, conferences, workshops and writing that ensure the ongoing research vitality of the faculty. The challenge for law schools everywhere is to ensure that academic research results are communicated to a wide range of relevant audiences. Law faculty members from UBC and other faculties across Canada are at the forefront of academic debate about some of the most important issues facing the profession and society. We are working to make the results of that research relevant and accessible to lawyers, judges, government officials and policy-makers. We welcome the support of the profession in this endeavour. As one example of the importance of this support, the firm of Farris, Vaughan, Wills & Murphy recently announced a commitment to create a substantial endowment to support faculty research. The Farris Fund will provide an annual grant to a member of the UBC Faculty of Law, in alternating years, in memory of Mr. C. Francis Murphy,


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Q.C., for work on substantive law topics relating to business, corporate or commercial law, and in memory of Mr. Peter W. Butler, Q.C., for work on substantive law topics that are or may be the subject of litigation, or procedural law topics relating to litigation or advocacy. The Farris Fund is designed to support faculty research and/or teaching where a significant component of the project will promote intellectual engagement with, and be of practical application for, practising members of the legal profession in British Columbia and Canada. We are honoured by this investment in our faculty research efforts and look forward to sharing the benefits of this research support with the profession in the years to come.

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THE ATTORNEY GENERAL’S PAGE By the Honourable Geoff Plant, Q.C. COURTHOUSE CONSOLIDATION—TWO YEARS AFTER In October of last year, the provincial government agreed to set up a circuit court in Merritt as part of its ongoing expansion of justice services. Merritt became the fifteenth community to get a circuit court in the last two years, joining places like Grand Forks, 100 Mile House, Creston, Chetwynd, Kitimat, Fernie and Vanderhoof. There are now 44 circuit courts in the province. Circuit courts represent a response to two interrelated challenges facing access to justice. First, the physical infrastructure of the justice system is expensive and in some cases has traditionally been underutilized. Second, British Columbia is a vast province with a widely dispersed population. People are used to thinking of justice as a place—a courthouse in the centre of town —as well as a system for resolving civil disputes and deciding criminal cases. Meeting that expectation at a time when there is also a public expectation that tax dollars will be used prudently and efficiently is, to put it mildly, hard work. The legacy of a myriad of decisions about courthouses over the history of British Columbia was a provincial court system that in June 2001 included 68 courthouses staffed on a full-time basis, and an additional 31 facilities used on a part-time basis for circuit court. We chose to take a hard and principled look at the relationship between the cost of maintaining this infrastructure and the extent to which it was being used efficiently. It became clear that we could no longer afford to keep operating courthouses with full-time registries in so many communities and still hope to maintain, let alone enhance, levels of service. Accordingly, in 2002, as members of the profession are aware, government announced its intention to consolidate by reducing the number of staffed courthouses from 68 to 44. Most were small, one-room locations; and some were midsized facilities; nearly all of them were operating below optimum efficiency. We took care to select locations that had other court options within reasonable travel time. We also began working with several municipalities interested in finding innovative ways to maintain some level of court service within their communities. The outcome of these collaborations was a series of partnerships between the province and municipal governments that have resulted in the creation of 15 new circuit courts. The advantage of circuit courts is that they make better use of limited justice resources. Rather than maintaining full-time staff and offices in a facility that is used only part-time, circuit courts bring judges and support staff into a community on days when court is sitting. They also help take the pressure off larger, * For an updated archive of the attorney general’s articles, speeches and other presentations, visit <>.


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regional courts. These courts are an important addition to communities like Merritt, helping to ensure that people throughout the region have their justice needs addressed in an efficient and cost-effective way, while in some cases allowing for the revitalization of the downtown core. The net result is that we now have a range and distribution of courts roughly comparable to earlier levels, particularly when you look at key indicators like total sitting hours. In 2001–2002, for example, across a total of 99 court locations, court was in session for 108,600 hours. For 2002–2003, across a total of 88 court locations, court sat for 105,500 hours. Locations and sitting hours can only give a rough idea of how our court system is adapting to change. We are monitoring every court location carefully and are already seeing some encouraging results in key locations. In October 2002, for example, Vanderhoof became the seventh community to get a new circuit court. The previous court at Vanderhoof sat just over 100 days a year, yet still carried full-time staff and operated a court registry. To make better use of court resources, Crown prosecutors, court services staff and judges travel from Prince George to Vanderhoof for scheduled sessions in the circuit court. The impact on the regional court in Prince George was significant. After the initial court closures, there was a slight overall increase in the delay for adult criminal cases to be heard, going from five to six months between January and June 2002. But by January 2003, after Vanderhoof ’s circuit court had begun operation, the delay in Prince George dropped to two months. Likewise, family trial delays dropped from seven months at the time of the Vanderhoof closure to five months after the circuit court opened, while small claims delays have declined by about a month. The hard work of many in the justice system, in particular the judges of the Provincial Court, has meant that between December 1997 and June 2003, the adult criminal median time to trial in Provincial Court decreased from six months to five months. Some court locations have experienced dramatic positive change. In Surrey, for example, the adult criminal time to trial fell from 12 months in June 2002 to five months in June 2003. These figures, coupled with the savings to government of approximately $6 million per year, demonstrate that the system as it existed before consolidation was underutilized. The addition of circuit courts has ensured that for over 99 per cent of British Columbians, a courthouse is less than an hour’s drive away—less time than many Lower Mainland commuters spend getting to and from work every day. We will continue to pursue other initiatives that reduce the barriers to justice presented by a traditional dependence on paper documents and personal appearances for even the most routine matters—initiatives like fax and electronic document filing, videoconferencing and procedural changes that allow for written, phone and videoconference submissions in some traffic ticket disputes. As always, I look forward to hearing about improving the court system and access to justice around the province.

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COURTHOUSE AMALGAMATIONS & CLOSURES 2002â&#x20AC;&#x201C;2003* Closing Location

Closed By

Receiving Location

100 Mile House

Circuit Court

Contact Williams Lake


June 1, 2002

Robson Square, Vancouver

Burnaby (Adult Criminal)

June 1, 2002

222 Main Street, Vancouver


Circuit Court

Contact Nelson


Circuit Court

Contact Kamloops


Circuit Court

Contact Dawson Creek


Circuit Court

Contact Cranbrook

(Youth, Family, Small Claims & Traffic)

Delta (Family, Small Claims & Traffic) Nov 1, 2002


Delta (Adult Criminal & Youth)

Nov 1, 2002



Circuit Court

Contact Cranbrook

Grand Forks

Circuit Court

Contact Rossland


Aug 1, 2003



Circuit Court

Contact Smithers


Circuit Court

Contract Cranbrook


June 1, 2002



Circuit Court

Contact Terrace


Circuit Court

Contact Kamloops


June 1, 2002


Maple Ridge

June 1, 2002

Port Coquitlam


Circuit Court

Contact Kamloops


June 1, 2002



June 1, 2002



Circuit Court

Contact Penticton


Circuit Court

Contact Salmon Arm


August 1, 2002

North Vancouver


Circuit Court

Contact Prince George

* As of October 2003


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BRITISH COLUMBIA COURT OF APPEAL NOTICE TO THE PROFESSION USE OF VIDEOCONFERENCING IN THE B.C. COURT OF APPEAL The B.C. Court of Appeal is considering the use of videoconferencing for hearing of appeals where one or more of the parties are located outside the city of Vancouver. The court has already conducted a few chambers hearings using videoconferencing and is favourably impressed with the technology. The Court of Appeal is interested in obtaining the views of counsel and litigants, particularly those who live outside the city of Vancouver, on whether or not videoconferencing offers a viable alternative to travelling to Vancouver for a hearing. Please send your comments to the registrar as follows: Registrar J.L. Jordan Court of Appeal 800 Smithe Street Vancouver, B.C. V6Z 2E1 Fax: 604-660-1951 E-mail: Practice Directions and Notices to the Profession issued by the Supreme Court of British Columbia and the British Columbia Court of Appeal are posted, as soon as received, by the Continuing Legal Education Society on its home page under “Law/Courts” at <>.


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William Grant Anderson

William Grant Anderson laboured in the law, quiet, unassuming, confident and in an utterly professional way. His manner was unruffled, methodical, thorough, understated and always gracious. His eye to the law was almost invariably correct, his judgment sound and his common sense acute. He had a genial tolerance for disagreement and a sense of humour that he played below the surface like the fisherman he was. His practice of law was in the finest tradition of the profession—his clients respected him, sought him out and befriended him. His relationship with them extended to a foundation far deeper than the more modern veneer of “cost efficient and effective legal services”. The news of his untreatable cancer was a tidal wave for those who loved him, and a mere ripple in his calm resolve to carry on and finish off. Strength was one of his defining characteristics. Grant was an urban planner as well as a lawyer. Born and raised in Nanaimo, he attended UBC, receiving a first degree in geography. Subsequently, he migrated temporarily to Ontario to earn a degree in urban planning. After working for several years as a planner in British Columbia, Grant returned to UBC to obtain his law degree (1983). He articled initially at Harper, Grey, Easton and latterly at MacKenzie Lidstone. In 1987, he joined Ray Young and Jonathan Baker as a founder of the present firm Lidstone, Young, Anderson. Grant’s practice was exclusively in the field of local government law, and his background as a planner signalled a special interest in, and predilection for, planning and land use law. He enjoyed both counsel work and solicitors’ challenges. As counsel over the past two decades, he argued many of the leading subdivision, zoning and planning cases in this province. To my knowledge, despite his frequent court appearances, he was only once at a loss for words. Arguing on behalf of a municipality for damages against a defendant who had nefariously (under cover of darkness) cut down a dozen or so large trees in a city park in order to increase the view, Grant commented (off-handedly) in argument that the deed had been done on “Earth Day”. His Lordship (crusty and evidently hard of hear-


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ing) snapped, “Please get on with your case. I don’t see any relevance in that fact that it was his birthday.” Grant proceeded without comment. Grant’s contributions to local governments in British Columbia, local government law, planning and land use law, and to municipal officers and legal, professional and continuing education over the 20 years of his practice, were sustained and significant. His various recorded presentations, lectures, papers and publications in innumerable professional venues constitute an important and influential body of work, and his efforts in this regard display an unstinting dedication to his chosen field and to assisting all of the various professions that play a part in making local government better in this province. Grant was a golfer, an avid fisherman and an incorrigible collector. He organized—truly organized—all that he collected. In that regard, it was never clear whether he collected because he liked to collect, or because collecting was a prerequisite to organizing. He did both in the same way he did everything—well. Grant died on September 14, 2003, at the age of 52—before he should have, but prepared and ready as ever. He leaves his wife and lifetime love, Kathy, and his beloved children, of whom he was so ever proud, Elizabeth, Graham and Erin. Raymond G. Young ‫ﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿ‬


Gordon Hudson Dowding

In 1963, with a freshly minted law degree from the University of Saskatchewan, I sought refuge from the biting Prairie winters to seek articles on the west coast, though as a late-arriving stranger to those shores, I got last pick: a struggling suburban practitioner who, on learning I could type, immediately laid off his secretary. As a civil libertarian, I had hoped to earn my spurs in the criminal courts, fighting for grand causes, but during half a year of typing my own letters I managed to squeeze in only one trial: a juvenile court matter involving a stolen Popsicle (which I lost after having tied up the local magistrate for an entire day with a motion to quash). Rescue came in the form of Gordon Dowding, long-time MLA and partner in a scrappy firm in the heart of Vancouver’s troubled downtown eastside. He invited me to transfer articles, and in the latter part of that year I became indentured to him, one of the happier moments of my life. I was suddenly an overworked trial lawyer defending an endless stream of legal aid or traffic cases (a key client of the firm of Macey, Dowding was an auto association which advertised: “We put a lawyer in your car”).

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One of the sadder moments of my life came almost exactly 40 years later, November 9, 2003, when Gordon died at 85. It was through the B.C. Civil Liberties Association that we met—we were among its founders 40 years ago—though I already knew his reputation: a longtime member of the legislative assembly, proudly socialist, a passionate orator. “We have an opening,” he told me. “Can’t pay much, but you’ll have fun.” I didn’t get paid much, but I did have fun. I also felt I was a part of a family, as did my wife, Tekla: an extended family, with Gordon and his wife Gwen at the head and heart of it, and we spent many lovely days and evenings at their home, ski cabin or lake cottage. The firm of Macey, Dowding was in a homely space beside the police station at 312 Main Street, above a private saloon called the West Coast Club, on Skid Row, where many of our clients came from. They were society’s castaways, who could not afford pricey lawyers but who still got enthusiastic defences from the young barristers of the downtown eastside, from our firm, or Harry Rankin’s, or Angelo Branca’s. Of course, the area served also as the stomping grounds for a lot of out-andout crooks, and the roof above our office more than once provided a landing pad for escapees who worked their way out of the city lockup next door. The firm later reformed as Dowding, Deverell, Harrop, Wood (the latter of whom became Mr. Justice Josiah Wood, and who ultimately escaped from the B.C. Court of Appeal), and we moved uptown, striving for respectability. That didn’t last, and soon we were back where we belonged, on the fringes of Skid Row, in Gastown, where later-to-be Madam Justice Nancy Morrison also joined as a partner, at an address appropriately called 2 Gaolers Mews. Gordon had a blithe unconcern with—or innocence of—fiscal realities. I recall telling him once, before one of our weekend jaunts to his beloved Shuswap Lake, that I was short on funds. “Use a credit card,” he said. “Then you don’t have to pay.” His signal fault as a lawyer was his uncontrollable inability to ask for retainers. He had served his riding in Burnaby since 1956, and he could never quite sort out whether someone seeking advice was client or constituent. Invariably, they got the benefit of the doubt and of free legal services. He was not as generous or gentle as an opposition MLA, using his legal skills deftly, with terrier-like tenacity, winning a reputation as a master at digging up government scandals. At the same time, he used his skills as counsel to achieve political results, forcing the government to policies it was avoiding. One example: in 1960, he sued on behalf of a plaintiff seeking to gain the admission of a developmentally challenged child to Woodlands School when it had a backlog of 800 applicants. Chief Justice Nemetz ruled that an order-in-council preventing the child’s admission must be quashed. The result was that the government was forced not only to admit the child but to open another special school to enrol the entire backlog. Gordon gave up practising when, in 1972, he was named Speaker of the House in Dave Barrett’s government. But in those few years he instituted major reforms,


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introducing daily Hansard and question period, a routine which replaced the cynical former practice whereby only written questions were submitted to the Cabinet, and rarely answered. A vigorous advocate of gender equality, he opened up the ranks of legislative pages to include young women. He returned to practice after being defeated in 1975, spending much time embroiled in the defence of John Meier, former confederate of Howard Hughes, a file of Byzantine complexity. He found more enjoyment in his side business of running a tour company, serving Vancouver and Victoria with double-decker buses. His career, as lawyer, as politician, as civil libertarian, as Speaker of the House, was never animated by cheapening self-admiration and the ambition and trickery that seems, these days, to motivate so many politicians, but by a concern for people, for social justice, for equity. He represented a rare breed in the scandalplagued politics of British Columbia. In recent years, his health declined, and he was obviously toughing it out when I last met him, in the spring of 2003, at the 40th anniversary banquet of the Civil Liberties Association. He is survived by Gwen, his partner of 58 years, by sons Mark and Colin and daughter Lisa. He is also survived by a legacy of commitment and caring. Bill Deverell ‫ﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿ‬

The Honourable David Bertram Hinds

David Bertram Hinds, of Chilliwack, died recently after a courageous struggle with multiple ailments. He served with great distinction as a lawyer, bencher, judge, husband, father, friend and consummate gentleman. He was as fine a man as any I have known. At a memorial service at the Chilliwack United Church for David, attended by most of the members of his extended family and a huge throng of friends and admirers, his friend and colleague the Honourable Bill Davies and I had the honour of paying tribute to our dear friend. While we overlapped a bit on David’s practice, Bill spoke mostly about David’s early days, and I spoke of his role as bencher and judge. In his opening remarks, Bill said, accurately, that if David were with us and saw the size of the crowd he would have said, typically, “My, my, my, my!” Bill told us that David was born in England but came to live in Sardis at the age of about seven, when his father became manager of a large hop farm. Bill said David showed up for school in short pants and a blazer. He was thought by the

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other students to dress and speak “funny”, but he soon overcame those failings and made many, many friends. From his earliest days, David was a good student and a leader in all school matters. His major accomplishment, it seems, was his grade 12 commitment to June, with whom he later shared a perfect marriage, and two lovely daughters: Diane, who now lives with her husband and two children in Australia; and Patty, who lives with her husband and two children in Vancouver. David’s sister was unfortunately unable to travel from her home in Oregon. We learned that David worked as a logger in the Powell River area all through his university days, partly because he was able to find work there with June’s father, and because June summered there. Bill Davies spoke warmly about David’s life-long community service, which included membership in service clubs, volunteering at the local food for the homeless agencies, and serving as superintendent of the Chilliwack United Church children’s Sunday achool. Bill also spoke about David’s law practice in Chilliwack, to which, for chronological reasons, I shall return in a moment. My association with David began in September 1947, when we first met as first-year law students at UBC. We were members of a memorable group of aspiring young lawyers that included the likes of Harry Rankin, Alan Williams and Norm Severide QQ.C., and a great many future lawyers and judges. We became a sort of family that bonded together while we were at UBC, and we remained lifelong friends. At least nine members of our glorious class of ’50 became judges of the Supreme Court, and at one time our class comprised almost a third (four out of 13 regular members) of the Court of Appeal (Seaton, Hutcheon and Hinds JJ.A., and myself). A number of our class were also appointed to the County and Provincial Courts. None who knew David will be surprised to know that he was a dedicated, conscientious, hard-working but quiet member of our class, who took his studies very seriously. But he still found time for some intermural basketball and leadership roles in some other university activities. One of the most memorable moments in my life was the Saturday morning in late April 1950—more than 53 years ago—when we put on our legal robes for the first time, and I found myself standing beside David Hinds as we were called to the bar by the late Mr. Justice Manson in the magnificent assize courtroom of the old Vancouver Law Courts. That memorable judge gave us some advice that I shall always remember, and I’m sure David remembered it well, because it later became an important part of our lives. Mr. Justice Manson told us to work hard, to look after our clients, not to steal their money, and to go to church. Then he added that we would have many opportunities to serve our communities, but he stressed, “The office should seek the man rather than the man seeking the office.” In a moment I will recount how important that advice became to David. After our call to the bar, David, of course, returned to his beloved Chilliwack, and his cottage at Lindell Beach on Cultus Lake, where he and his family enjoyed their vacation times when they were not travelling. He began his practice with his friend, mentor and partner Frank Wilson, who soon became a judge of the


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County Court of Westminster. The name of Wilson Hinds, and soon afterwards, Wilson Hinds and Davies (now Baker Newby) became known throughout the profession as one of the leading law firms in the Fraser Valley. David was an ornament to the bar. First, he served his clients and his community faithfully and well, and he was one of Chilliwack’s outstanding citizens. But he did not confine his practice just to the Fraser Valley. There was an occasion when the attorney general of the day needed an outside counsel to conduct a politically sensitive coroner’s inquest into the death of Fred Quilt, an Aboriginal gentleman in northern British Columbia, possibly at the hands of the police. There had been an earlier inquest that had come unstuck when it was found that one of the members of the jury was an auxiliary RCMP officer. There was much disquietude about the first verdict. With great wisdom, the attorney general appointed David to act as counsel at a new inquest. This time, there was a rational verdict. The redoubtable Harry Rankin, who acted in the matter, publicly acknowledged that it was the sensitivity and fairness of David Hinds, Q.C., that brought peace and calm to that northern community. While I saw David frequently in our years of practice, our paths met again in a significant way in 1971, when Harry Rankin, Mary Southin and I were elected benchers of the Law Society. David was already a senior bencher, and we had an opportunity to observe and admire the fine qualities for which he was so well regarded. As a bencher he was calm, thoughtful, conscientious and pathologically unable to think ill of anyone until the opposite had been proven far and away beyond reasonable doubt. He was a strong advocate for the rural practitioners, and whenever David Hinds spoke, the other benchers always listened. We benchers were personally saddened when David left us upon his appointment to the County Court of Westminster in 1975. However, we were comforted to know that a person with almost perfect judicial qualifications had been entrusted with an important judicial office. He quickly earned the reputation of a wise and enlightened judge. Within a very short time, in 1978, I followed David into the judiciary, and for the next 20 years we were judicial colleagues. It was a matter of great satisfaction to me, and to the bar, when David was successively elevated first to the Supreme Court of British Columbia in 1980, and to the Court of Appeal in 1990. I have to say, however, that on each occasion I had a difficult time persuading him to move to a new court. He was such a modest man (with absolutely nothing to be modest about) that he seriously questioned whether he was qualified for new and increased responsibilities—a concern that was not shared by anyone else. I was able to remind him that the office was seeking him, not the other way around. As a judge, David was equally an ornament to the judiciary as he had been to the bar. No one ever had any doubt that this quiet, exceedingly polite, patient, thoughtful and conscientious judge was doing his very best to be both right in the result and fair to all parties. No one who appeared before him—even those who lost— ever had any reason to doubt that they had received a full and fair hearing.

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David’s gentle nature suited him wonderfully for the bench. Chief Justice Wilson, possibly our greatest judge, said Mr. Justice Coady, who sat in our courts in the 1940s to the 1960s, was his most saintly judge. I believe that was an accurate assessment. David Hinds succeeded Mr. Justice Coady as our most saintly judge. He will ever be remembered as a kind, decent and gentle man—a man in love with his wife and family, in love with Chilliwack, in love with the law, in love with his friends and colleagues and, for his own part, a truly lovely man. I hope we will see his kind again. His last few years were not kind ones, but he courageously withstood the slings and arrows of outrageous fortune—without regret or complaining. At his memorial service, Reverend Ireland told us of visiting David, towards the end, when paramedics had been called to his home for some treatment. One of the paramedics, upon learning that the patient was Mr. Justice Hinds, told David that in his youth he had appeared before him for sentencing for some juvenile offence. He thanked the judge for having straightened out his life. David replied, “Isn’t that ironic: years ago I straightened you out, and now you are going to straighten me out!” Even in illness, he remained the quiet, decent man he always was. David was always true to the ideals on which his life was built, and he was always grateful for the wonderful support he received from June and his family. We share their grief and sadness at his passing. Farewell, old friend, your life has been a tribute to kindness and civility, and an example to us all. Allan McEachern ‫ﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿ‬

James Raymond Insley

Jim Insley was born July 11, 1921, at New Westminster, where his family had arrived in the gold rush of 1848. He spent most of his married life living in Coquitlam, eventually moving to the Walnut Grove area of Langley after retirement. He died peacefully at home on August 1, 2003. He is survived by his loving wife of 55 years, Norma, a daughter, four sons and his wonderful grandchildren. Jim loved his family and friends, his home and garden. Jim served with pride in the RCAF from 1939 to 1945 on the west coast and overseas. He was a member of Vancouver’s 111 (CAC) Squadron at the outbreak of hostilities, and later became a pilot and served overseas with 407 RCAF Squadron. He was a 50-plus-year member of Royal Canadian Legion Branch No. 2 and served on the Provincial and Dominion Commands. He was an early leader in senior citizens’ housing and a recipient of the Legion’s Meritorious Service


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Medal. He was honoured in 1977, when he received the Queen Elizabeth Jubilee Medal for his service to war veterans. Jim attended law school at UBC and was a member of one of the first post-war graduating classes, articling with the firm of Cassady and Munroe in New Westminster. He was called to the bar on September 4, 1952, and spent his legal career at the Cassady firm and its successors until retirement at the end of 1986. For six years, he served as a Provincial Court judge in New Westminster. Jim, like many of his peers, practised law as a generalist in the true sense of this description. He had the good fortune, some would say, of being a lawyer at a time when correspondence was saved on a brass brad rather than in an electronic file. Jim used his telephone as a means of enjoying long discussions with colleagues and friends, unencumbered by voicemail and e-mail. Over the years he developed an expertise in construction law and builders’ liens. He also acted for local hospitals and used his experience in construction matters to see them through times of expansion. As a practitioner, Jim had a reputation for warmth and generosity; he would rather see a just result than a lopsided victory. Opposing counsel knew they would always be treated with fairness. Although Jim had an ample office with numerous chairs, finding an unencumbered place for clients to sit could present a challenge. His desk was simply not large enough to contain all of the widely varied work-in-progress. However, it should be mentioned that this never discouraged his loyal clientele. Jim was appreciated as much by his clients as he was by other counsel, and he maintained a faithful following until his retirement. Jim met life head-on, with courage, enthusiasm and humour. He enjoyed teaching and helping others. Our profession is the better for his service. Edward A. Burgess ‫ﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿ‬

Michael Grattan Spencer McGeer

Michael McGeer passed away on Sunday, October 26, 2003, at the age of 81, from complications arising after hip surgery. His life was celebrated at a memorial service attended by family and friends, on November 8, 2003. Mike was born on May 26, 1922, in Vancouver, the son of Gerry McGeer, the legendary mayor and senator. He was actually christened Grattan Spencer McGeer but was always known as Michael. He attended school in Vancouver, Vernon and St. Catharines, Ontario. He enlisted in the RCAF in 1942 after spending time, following graduation,

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working as a ranch hand in the Chilcotin, and was subsequently shot down in a raid over Germany. He spent the next 13 months in a POW camp, from which he was liberated in May 1945. Mike contracted tuberculosis while in prison camp, and upon his return to Canada spent two years recuperating in Tranquille and Shaughnessy hospitals. He married Trish Rogers in 1949 and then entered UBC law school. He articled with his uncle, Dudley Fitzgerald McGeer, and with Nicholas Mussalleum. Mike was called to the bar on May 15, 1955. Firms he practised with were Mussaleum McGeer and Company (from which he retired in January 1972), and before that, Griffiths & McLelland, McGivern Trainor & McGeer, and Trainor Russell McGeer & Dafoe. Mike McGeer is survived by Trish, his wife of 54 years; his sons Michael and Tim; his daughters Teal, Nancy and Julie; and his 12 grandchildren. He was known for his colourful story-telling, wonderful sense of humour, keen interest in current affairs and politics, love of tennis and his beautiful water-colour paintings of Vancouver and Bowen Island. Mike will be greatly missed by all those who knew him. Tim McGeer ‫ﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿ‬

J. Ronald Grant

J. Ronald Grant died peacefully on October 11, 2003. He was born in Victoria in 1926 and was educated at Qualicum Boys School, Victoria High School and Victoria College. Upon reaching the age of 18, he joined the RCAF, hoping for aircrew training. But shortly thereafter Ron was disappointed when the RCAF terminated Commonwealth Air Training, and he then transferred to the army for the duration. Ron entered the UBC Faculty of Law, and graduated in 1949. He articled with the Victoria law firm of Clearihue & Gregory, which subsequently became Clearihue, Gregory & Grant. Always interested in flying, he joined Canadian Pacific Airlines as legal counsel in 1957 and remained there until 1967. He then moved to the Canary Islands and organized and operated an international travel business, where he largely remained until his return to Canada in 1996. Ron was a memorable and colourful character. An avid private pilot, he served on the board of the Aero Club of B.C. and twice as president of the British Columbia Aviation Council. Ron is survived by two sisters, Beverley and Marilyn. Donald G. Cameron


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Judson Byron Warner

Judson Warner died suddenly on August 7, 2003. Jud was born in Vancouver on June 27, 1953. He attended school in North Vancouver and West Vancouver and graduated from high school in West Vancouver in 1970. He completed his high school while on an accelerated program, completing three academic years in two years. After high school, Jud attended UBC, and in 1974 he received an honours degree in political science. Following this he entered law school at UVic, and in 1978 was a member of the first graduating class from that law school. He then joined Clark Wilson for his articles. After some early experiences in private practice, Jud decided to return to school. In 1982, he obtained his LL.M. from University College, London. Although at times in his career he did solicitorâ&#x20AC;&#x2122;s work and had a criminal defence practice, his first love was criminal prosecution. In 1985, Jud started to work for provincial Crown counsel at the North Vancouver courthouse. This part of his career was interrupted by a major heart attack while he was at the courthouse waiting for witnesses to be interviewed for a trial in the afternoon. Were it not for the prompt and able assistance of a deputy sheriff skilled in first aid, those of us who later met him may never have had the chance. Jud was brought back to good health by the replacement of a failed heart valve with a metal mechanical valve, which in a quiet setting could be heard ticking away like a windup clock. He received more than one comment from court staff and counsel about his loud watch. Once back to work, Jud returned to private practice, until he was once again drawn back to his first love, Crown counsel work. In 1993, he joined the firm of Harris, Threlfall & Oâ&#x20AC;&#x2122;Neill, where he did work in federal prosecutions. In 1995, Jud joined Baily McLean & Company to work on federal prosecutions in Burnaby and New Westminster. Jud loved the camaraderie he found among the practitioners of criminal law. He enjoyed being in the courtroom, whether it was to do routine matters or complicated trials. It seemed like everyone in the criminal bar knew him and liked him. But Jud was not a hard person to like in this professional setting. He was reasonable and reliable. He had the highest standards of ethics. He embraced his professional duties, although often adversarial, with a touch of warmth and respect for his colleagues. Those of us who had the pleasure of working with Jud soon recognized that he had a particular advantage over most of us in that he was endowed with a prodigious memory. He could remember case names from years back without any apparent effort. He could come up with the name of an obscure first-year-law tort

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case without hesitation. He was frequently used as a resource in this regard by his co-workers. This ability was not restricted to the law, however, as he was also a source of unlimited trivia. If you wanted to know the name of a “one hit” singer from the 1960s or ’70s, Jud was the person to ask. Jud was an active person who kept himself busy while not on the job. He particularly enjoyed sailing, and at one time he owned a day sailing boat. When not sailing his own boat, he would crew on his friends’ boats. Jud was a certified scuba diver, and he particularly enjoyed this sport, which would take him to diving locations far and wide. He was an avid reader, with a particular interest in history, and has left a collection of books numbering in excess of 600. Jud never married, and although he had no children he had a nephew, Matthew, and a niece, Rachel, for whom he cared very much. Jud also cared for others who were less fortunate and was a supporter of many charities. He was a “big brother” to several boys, and he would devote his time and resources to providing them with experiences they likely would not have had were it not for Jud. Jud was a gentle person from whom you would never hear a derogatory remark about another person. Those of us who worked with Jud never saw him angry. These characteristics were obvious to those who got to know him, and they are what made Jud the special person that he was. The fact that Jud commanded the respect of his friends and colleagues was evident from the large number of people who attended his memorial service. These included judges, Crown prosecutors, lawyers, police officers and numerous other friends, some of whom go back to his high school days. Jud was 50 years of age when he passed away. He leaves surviving him his parents, Don and Shirley, his sister Ann, his brother Matthew, his niece, Rachel, and his nephew, Matthew. David L. Greenbank


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The Honourable Judge Peder David Gulbransen

Peder Gulbransen was appointed to the Provincial Court of British Columbia on July 18, 2003. He now sits in Abbotsford, B.C. He was at the time of his appointment Regional Crown Counsel for Fraser Region, a post he had held since 1997. Peder joins a number of previous New Westminster Regional Crowns appointed to the bench, including Cullen, J., Stewart P.C.J. and Weitzel P.C.J. Peder spent most of his career with the Crown, following a few years in private practice. He was a member of the Abbotsford Crown office from 1982 to 1987, administrative Crown in Burnaby from 1989 to 1991, deputy regional Crown in New Westminster and finally regional Crown counsel until his appointment in July 2003. He was born in 1948 in Vancouver and was educated at Simon Fraser University, graduating with a B.A. in 1971, and took his LL.B. at UBC, graduating in 1977. Prior to his career with the Crown, Peder articled in Prince George at Wilson King and Company. He was called to the Bar of B.C. in 1978 and practiced as a staff lawyer at the Quesnel Community Law Centre, and later in general legal practice with Bate & Company, also in Quesnel. He joined the Crown Counsel office in 1982. Peder was married to Holly Williams on his birthday in 1988.They are the proud parents of two children, Monica and Mark. Peder has a wide variety of interests and is an avid baseball and football fan. His knowledge of the law is legendary within the Crown system. He reads widely and speaks knowledgeably on many topics. He has been known to launch into a discussion of the life of Francis Bacon and just as readily switch to the history of an obscure semi-professional baseball team from the 1960s. Peder was a great leader in the office and a wonderful boss. You could always count on Pederâ&#x20AC;&#x2122;s support when times got tough, as they do on occasion in the life of a prosecutor. He is best known to his friends and colleagues as a man who


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sees the best in people. He is refreshingly optimistic by nature, believes in fairness for all and truly does not have a mean bone in his body. Peder as a lawyer was always willing to help his colleagues with legal questions. It was always easy to ask Peder’s advice about a complicated legal matter, and he was invariably correct when giving an off-the-top-of-his-head opinion on the law. As regional Crown counsel, Peder was the ultimate recipient of complaints from members of the public or police. Sometimes, complaints concerned charge approval decisions or the conduct of an individual prosecutor. There would usually be no warning when a complaint call would come in. More than once when the phone rang, Peder would mutter to himself, “Please let it be somebody nice.” At least now the complaint line has gone silent for Peder. It is doubtful that he will miss that aspect of his former job. Although Peder spent a lot of his time in administrative work, he always managed to make the time to take on high-profile and difficult trials. He was a complete barrister and true gentleman at the bar. Peder has the gift of being both an intellectual and a pragmatist. He is possessed of a great sense of humour, something that is very helpful in the life of a prosecutor and a judge. He is compassionate and unfailingly patient. Peder has demonstrated an ability to give the benefit of the doubt to his fellow man. He listens carefully to people and is unafraid to make difficult decisions, and therefore possesses the right stuff for his new job. A senior judge at a dinner given in honour of Peder opined that Peder would one day be elevated to the Court of Appeal. While a spot on that court may come his way one day, there can be no doubt that Peder will be a great trial judge. The public is fortunate to have Peder sitting for now, at least, in the Provincial Court of British Columbia. He will be greatly missed by his former colleagues. ‫ﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿ‬

The Honourable Judge Kenneth D. Skilnick

Although Ken Skilnick has been assigned to sit as a Provincial Court judge in Prince George, he was given a rousing sendoff by his former colleagues in Abbotsford in March of this year. Ken was born on October 3, 1956, in Yorkton, Saskatchewan, a town best known for its proximity to Manitoba. Ken was one of 10 children. The saints figured significantly in his early education. He attended primary school at St. Alphonsus School (motto: “Open hands, caring hearts”) and secondary school at St. Joseph’s College (which closed following Ken’s graduation in 1973 and only

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reopened some years later, after the Brothers were assured that Ken had left town for good). While at school, Ken played football, baseball and hockey, but was particularly adept at the latter. Ken attended pre-law at the University of Saskatchewan and enrolled in law school at that same institution in 1976. He had written the LSAT on a bet with a friend (lowest scorer bought the winner a “40”). In 1979, he left the U of S with a trophy naming him law school athlete of the year and an LL.B. signed by John Diefenbaker, then chancellor. Ken articled with Paul Hleck, Q.C., in Regina and then joined Lane and Whitmore, which became Whitmore and Company when Lane went on to serve as attorney general for Saskatchewan. Ken served as chief of staff for the Honourable Eric Bertsen, deputy premier, in 1988–89 and later returned to private practice with the firm of Skilnick and Shanks until 1993. In 1993, Ken moved from Saskatchewan to B.C. to start work as a criminal defence lawyer at Abbotsford Community Legal Services (as it then was, and, sadly, is no more). Under Ken’s leadership, this “public defender” pilot project soon set the standard for what was to become the legal aid staff lawyer model. Ken had a prodigious appetite for hard work, as well as for chocolate and ice cream (which he was known to consume a quart at a time). Despite a heavy case load, his trial preparation was always thorough and meticulously researched, whether he was defending a charge of murder or mischief. In 1998, Ken took a six-month leave to become managing lawyer of the Legal Services Society’s legal aid clinic in Gastown. He then returned to Abbotsford, having developed a preference for life in the trenches in a smaller community. Following the closure of Abbotsford Community Legal Services in August 2002, Ken took a position as Crown counsel in Chilliwack, until his appointment in March 2003. The Lower Mainland climate encouraged Ken to pursue his athletic abilities, ranging from coaching baseball and hockey to playing squash and competing in marathons. He has completed 14 marathons, which suggests an independence of spirit and a profound wish, occasionally, to be alone. Ken was also active in a number of community and professional organizations. He was founding president of the Fraser Valley Criminal Justice subsection of the Canadian Bar Association, a member of a number of local community boards and area volunteer for the Lawyers Assistance Program. Somehow, he also found time to write research papers of topical interest and contributed to bar course materials prepared by the Continuing Legal Education Society. His record of public and professional service suggests a willingness to help, a regard for his fellows, a significant depth of professional experience and a surplus of energy, all of which bode well for the work ahead. His colleagues in legal aid will also remember him for his sense of humour, his repertoire of songs (mainly the “lounge lizard” variety) and his eclectic taste in ties. Ken says that the Prince George folk have gone out of their way to make him feel welcome in their community. He is grateful for the opportunity to serve in


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what he calls the most beautiful courthouse in B.C., although we hear he also does his share of travelling to sit in places like Fort St. John, Dawson Creek, Fort St. James, Chetwynd and Quesnel. Ken’s appointment is well deserved. ‫ﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿ‬

The Honourable Mr. Justice William Frederick Ehrcke

The Honourable William Frederick Ehrcke was appointed to the B.C. Supreme Court on October 30, 2003. Bill was born in 1946 in Albany, New York, and grew up in what he has described as a very happy family of six children. He attended the University of Rochester, receiving a B.A. (with highest honours) in 1968. He went on from there to do graduate work in philosophy at the University of Calgary, obtaining his Ph.D. in 1973 on the strength of a dissertation entitled “Theories of Belief ”. Following the academic track, he first became a visiting assistant professor of philosophy at Erindale College, University of Toronto, and a year later, in 1974, he was tempted west to take a similar position in the Department of Philosophy of the University of Victoria. It was at that point that one of those life-changing events happened. The University of Victoria, Bill’s new employer, decided to open a law school. What it would lack in facilities in those first years, it made up for in the quality and promise of its faculty. UVic appointed the redoubtable Murray Fraser to become the first dean, and Murray in turn proved to be an adept judge of ability and character as he assembled his initial cast. There was a conscious decision, given that there were no upper-year students, to choose new students who were slightly older than average and who could show a bit of accomplishment. Bill was of course an ideal candidate, and when the Faculty of Law opened its doors in September 1975, he was among its first 72 students. Thus began an illustrious legal career. Bill proved just as able a student of law as he had been of philosophy. He sailed through law school collecting well-deserved scholarships and prizes. But he did not flaunt his abilities. It was a remarkably cohesive and supportive first-year class, and what Bill’s fellow students remember today is that Bill was one of the most likable of that friendly group, always as ready as anyone to join in the fun, to help the puzzled, to be a positive part of the joint venture. On graduation in 1978 he went on to clerk at the B.C. Court of Appeal. He began as clerk to Mr. Justice McIntyre, and moved on to serve Lambert and Aikins JJ.A. after Mr. Justice McIntyre was elevated to the Supreme Court of Canada. Bill

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then joined the Vancouver firm then known as Shrum, Liddle & Hebenton, where he worked principally in commercial law with Mitch Gropper, Q.C., and others. In 1981, Bill made the second great career decision of his life when he decided to join the B.C. Crown. He started, as so many have before and since, at the “boot camp” of 222 Main St. A visitor in that year would have been amused by the extent to which it seemed to be a graduate school for UVic law students. Fellow classmates Kevin Gillett, Cynthia Fulton, and Marion and Glen Paruk were all beginning Crowns at much the same time. Most young Crowns do a few years, and then are tempted away into private practice. Bill, however, never left. Instead, he built his career within the service, moving first to the Commercial Crime Unit in 1985 and then into the Criminal Appeals Office in 1987. He has remained in that office ever since, becoming in due course the senior appellate Crown counsel in the province and receiving the well-deserved honour of being appointed a Q.C. in 1998. If one wants a quick sense of just how active Bill has been in his 16 years as an appellate Crown, one can type his name into the “counsel” field in QuickLaw’s BCJ database. That exercise will produce almost 600 “hits”. A similar test in the SCC database shows that he has been counsel in nearly 40 full appeals at the Supreme Court of Canada. The list includes some very significant cases—such as Smith (1989) on the right to counsel, Shropshire (1995) on the standard of review in sentence appeals, Robinson (1996) and Seymour (1996) on the effect of intoxication on specific intent in murder cases, Stillman (1997) on conscriptive evidence, Feeney (1997) on the warrantless search of a residence, and a great many others. It is no exaggeration to say that Bill has been centrally involved in the remaking of Canadian criminal law in the age of the Charter. His arguments have not always succeeded, but there is little doubt that they have always been influential. Bill has also done more than his share of contributing to the profession. He has presented courses for CLE on aspects of criminal law, on the Charter and on advocacy. He has been a guest lecturer in criminal law and constitutional law at both UVic and UBC. He has served as a volunteer member on a number of committees of the Law Society of B.C. and the Canadian Bar Association. He has had half a dozen articles published in the Advocate, and for many years he has contributed to the Annual Review of Law and Practice and the British Columbia Annual Criminal Practice volumes. Yet all of the above speaks only about the public man. His more private side is, for those who have known him and worked with him closely, every bit as important. It is now widely known—since Bill’s welcoming ceremony at the court— that he has a keen interest in (and a huge knowledge of) early traditional blues. For many years he has been a volunteer radio host on Vancouver Co-op Radio (FM 102.7), where one has been able to tune in on a Friday afternoon and hear scratchy 78 rpm recordings by long-dead singers whose names are known only to the most serious blues historians. At work, he has inspired love as much as admiration. His co-workers in the Crown office are quite likely to talk first about his willingness to share his knowl-


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edge, his generous mentoring of young counsel, his joyful sense of humour, his genuine thoughtfulness toward office staff. He was the kind who would always enter the office hockey pool, although apparently never lucky enough to win. He would always eat lunch with his colleagues—giving rise to stories about his appalling yet unchanging taste in sandwiches. But the true function and effect of those lunches was to build long and deep friendships as well as a fund of Ehrcke stories on almost any topic. He is famous in that lunchroom for his encyclopedic knowledge of subjects outside the law, and indeed outside the common experience of most of the rest of us. A colleague comments, “When Bill says a proper name for something, you never know if he’s referring to a recent Supreme Court of Canada case or the most recent Norwegian independent film playing at the Cinemateque.” I reserve to the end of this note the truly important people—Bill’s family. They are his daughter, Tara, and her partner, Patrick; his granddaughter, Samantha; and most of all his partner since the early 1980s, Donna. Donna teaches theatre with great skill and enthusiasm at Magee Secondary School, and it is a nice commentary on Bill’s life to know that he and Donna met when they were both taking part in a production of Brigadoon by the Greater Vancouver Operatic Society. Donna, ever the theatrical critic, recalls the performance itself with some chagrin; but her own performance clearly shone, as she has been central to Bill’s life ever since. Bill has been one of British Columbia’s finest appellate barristers, and those who have been lucky enough to have worked with him are convinced that he will make an equally impressive mark as a judge. We will miss him, but we wish him great success and satisfaction in his new career. ‫ﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿﲁﲀﱿ‬

The Honourable Mr. Justice Lance W. Bernard

What can one say about a man who is frequently mistaken for Harrison Ford? A man who, as his law school civil lit prof observed, has a name “right out of a Harlequin romance”? A man who has had a stellar career as a Crown counsel, prosecuting some of the highest-profile cases in recent history, and who has held a variety of challenging posts for the Crown? A man of whom his harshest critics can only say: “He’s allergic to cats”? On August 21, 2003, in New Westminster, Lance W. Bernard was sworn in as a justice of the Supreme Court of British Columbia. Lance is one of those rare individuals who can claim to be an original inhabitant of Vancouver; he was born

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here 48 years ago and has lived in the city even since, graduating from Eric Hamber High School and the UBC Faculties of Commerce and Law. He articled with McFarlane, Pearkes & Co., was called to the bar in 1981 and immediately afterward joined the Crown, where he remained until his appointment. One of Lance’s finest attributes is his ability to maintain a sense of balance and perspective. His highly pragmatic approach was evident early on, in law school, when he carefully analyzed the amount of time and effort required to crack the top 10 list and concluded that it was just not worth the sacrifice. Instead, he opted for a balanced life and maintained respectable marks while enjoying an active and eclectic social life. When not in classes or in the library, he often could be found at an art gallery, at a theatrical or musical event, playing squash or with a bag of Lee‘s chocolates in hand, window shopping and grazing his way up and down 10th Avenue. During university, in the summers, Lance worked as a Gray Line bus driver. He is probably the only person who, having missed the Horseshoe Bay exit, successfully made a U-turn in a passenger bus on the Sea-to-Sky Highway. He expanded his geographical knowledge of the province after acquiring the Victoria and Fraser Valley runs, and much to the surprise of regular passengers, took them on routes hitherto unknown to them or the bus company. However, watching the unfamiliar countryside blur past them, his passengers presumed he knew what he was doing and he forged ahead, unchallenged, with his characteristic aplomb and confidence. There may be moments of bus driving déjà vu for Lance in the months ahead. Although Lance held a number of administrative positions at Crown, including Administrative Crown Counsel at Family Court, and Deputy Regional Crown, his great passion is for the courtroom, and it was there he demonstrated his prowess as a trial lawyer. He prosecuted some of British Columbia’s most highly publicized and sensitive cases, including the pro-life supporters at the abortion clinics for contempt of court, midwife Gloria Lemay for criminal negligence causing death; the Starbucks case, in which the manager was killed by the husband of a store employee; and one of the longest trials in Canadian history, the prosecutions arising out of the Gustafsen Lake incident. When analyzing Lance’s skill as a litigator, colleagues frequently refer to his ability to hone a case to its bare essentials, deal with matters in a practical, commonsense manner and, although eloquent, to use plain language, free of rhetoric. They also often mention his willingness to provide guidance to others and the generosity with which he made time to listen and advise, despite the challenges of his own workload. In 1991, when Lance was appointed Deputy Regional Crown Counsel for the Vancouver Region, his open-door policy was at first regarded with some skepticism by those who didn’t know him well—but they soon learned that he was always willing to share his wisdom or just have a good laugh. One young prosecutor at the time observed that Lance had a daunting reputation, so she was “somewhat intimidated by this very tall, elegant, immaculately dressed and


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groomed man in the large beautifully furnished corner office. But that didn’t last long…” Lance has been described as calm and unflappable, qualities that have made him a highly effective barrister was well as an efficient and approachable administrator. He takes all problems in stride. Soon after he was appointed coordinator of the Gang Prosecution Unit, the neighbours in the house beside him were quizzing him on the dangers of the position and asked him if he wasn’t worried about personal safety. He replied that he wasn’t in the least bit concerned, since gang members are notoriously poor shots. They usually miss their targets, he said, “and hit the house next door”. Not only has Lance been a mentor to his junior colleagues, he has contributed many hours of his own time to the legal profession. He was a popular guest instructor at PLTC, has participated in numerous CLE courses, was a guest instructor at UBC Faculty of Law and was a member of the advisory committee to the Provincial Judicial Council, recently stepping down after three years as its chair. Lance took over as Deputy Regional Crown Counsel in charge of 222 Main Street at a troubled time, and in the ensuing two and a half years he has implemented improvements that resulted in greater order and calm, enhanced its efficiency and boosted staff morale. Apart from the significant procedural and substantive changes for which he was responsible, one of his innovations is still talked about with mixed admiration and disbelief. Lance combined his fine eye for decoration and art, and his skill as one who can stretch a dollar to its most elegant end, when he decided to raise morale by improving the drab Main Street offices. In Victoria, on Crown business, he learned of a vast amount of artwork mouldering in the Provincial Archives, and through undisclosed wheeling and dealing, he managed to obtain several of these pieces to hang on the walls at 222 Main. Later, visitors were astonished to find a Gordon Smith painting in the waiting room and a Jack Shadbolt triptych gracing the boardroom. Lance has an original turn of mind and is well known for his quirky, offbeat sense of humour. He has used this, with great effect, to defuse tension, reduce stress and raise office spirits. At Main Street he issued a directive calling for a quarterly office party and organized the first one, the January Blues Bash, himself. He was a key orchestrator of, and participant in, office celebrations, and starred in numerous skits, most notably the infamous “Full Monty”. His favourite cartoon is The Far Side, and he has still not recovered from Gary Larson’s retirement—although many people suspect that Lance actually is Gary Larson. His creativity and intelligence found scope not only in crafting finely reasoned and well-argued prosecutions but in his personal pursuits. He is an avid and discerning art collector and music lover and has a fine sense of style, both in dress and decor. Over the last few years, Lance has transformed the interior of his house from a very pleasant, albeit ordinary residence, to one of uniqueness, comfort and beauty, all the more remarkable because many of the renovations have been done by Lance himself—though often not without some tribulations. His

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musings, just before beginning his most recent (and fraught) project—“How long can it take? How hard can it be?”—might for anyone else have served as an epitaph. Lance has an insatiable curiosity, and this questioning and questing is apparent in all aspects of his life. He travels abroad frequently and usually comes back with stories of adventure that his friends are happy to experience vicariously. He has been set upon by bandits in the Masai Mara; a travel companion was jailed for a week in Iran before being allowed to leave the country; an opera diva entertained him in her New York apartment; he has hiked into remote areas of the Far East, wandered down the streets of most major European cities and has even travelled the backroad from Burns Lake to Houston. Invitations to Lance’s dinner parties are coveted. A guest is assured an exquisitely prepared meal and dinner companions whose professions and interests span business, the arts, law and academia. And, of course, there is always an abundance of laughter. Over and above his skill as a lawyer and his cultivation of a myriad of diverse interests, Lance’s most admirable quality is his capacity to form deep and enduring friendships. Many of these friendships were established in high school and university days. As he has aged, instead of narrowing his circle of friends, as others tend to do, Lance keeps adding. He knows more people than a politician, and it is rare that one attends a social or cultural event with him where he doesn’t run into at least a few friends. And remarkably, many of the people who know him don’t consider Lance to be just a friend, but one of their best. It is his consideration for others, his deep loyalty, his discretion, his love of fun and his willingness to make light of his own foibles and occasional gaffes that make people cherish his friendship. In a crisis, his friends know that Lance can always be relied upon to lend help and encouragement. A fine ability in the law is vital to the making a good judge. However, a sense of humanity, a knowledge of the wider world, an insatiable curiosity and being a good and caring person add immeasurably to the mix. Lance has all of these qualities in abundance, and his friends and colleagues know that he will put them to good use in his new life on the bench. We celebrate his appointment. M L S MULTIPLE LISTING SERVICE®

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The Law of Evidence (3rd edition), by David Paciocco and Lee Stuesser. Toronto: Irwin Law, 2002. 494 pages, $44.95. Reviewed by Michael D. Sanders Early in my career as a criminal lawyer, I was given a copy of McWilliams’s Canadian Criminal Evidence and told: “Read this.” That experience would have been more valuable and less time-consuming had I been assigned instead this latest offering in Irwin Law’s celebrated Essentials of Canadian Law series. There are many texts on the law of evidence, but most are aimed solely at practitioners. Paciocco and Steusser find their niche in gearing this work to students and lawyers completely unfamiliar with the subject. As a consequence, it is highly readable, full of examples and presented in the style of an engaging lecture. Even though this volume is meant to be a basic primer of the law of evidence, the level of detail makes it potentially valuable for the experienced practitioner or academic as well. Make no mistake; this is not where you go to find three-liner case digests and a quick answer to a fine legal point. However, if you want a map of the lay of the land before focusing your research on evidentiary issues in the areas of character evidence, hearsay evidence, opinion evidence or privilege, you’ll find the basic but thorough approach in those chapters a helpful first step. There are pages devoted to practical advice as well, especially for the lawyer with little courtroom experience in conducting a criminal case. The book’s latter chapters—“Methods of Presenting Evidence” and “Secondary Materiality and Your Own Witness”— provide the nuts and bolts of what you need to know walking into a courtroom (even if you think you know everything). Of course, when it comes to an area like evidence, a bound legal text is no substitute for a looseleaf subscription series. And with new editions of this book scheduled only every two to three years, the authors risk the contents of some of the chapters becoming yesterday’s news. This is particularly true of rapidly changing Charter-related subjects such as self-incrimination and improperly obtained evidence. It’s not just students or practitioners who will find value in this publication. For the academic, this book brings a fresh perspective to the current state of the law. Throughout the text, Paciocco and Stuesser pull few punches in offering their editorial views on some of the leading cases. Distressingly, from a defence


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lawyer’s perspective, the authors would push the current trend toward the elimination of clear and fast rules respecting admissibility even further. For example, they argue that the rule prohibiting the admission of similar facts where a person has been acquitted of criminal charges in respect of those acts should be abandoned, letting admissibility be determined instead by the trial judge’s discretion to exclude evidence where its prejudicial effect outweighs its probative value. It is doubtful that this book will threaten McWilliams or Sopinka as the staple on a criminal lawyer’s bookshelf. That said, this wasn’t the authors’ goal. They set out to explain and critique the main rules and principles of the law of evidence and provide an easy reference for practitioners of the leading authorities in these areas. In this, they have more than accomplished their goal.

Understanding Financial Information: A Family Lawyer’s Guide, by Diane M. Bell et al. (eds.). Vancouver: Continuing Legal Education Society of B.C., 2003. Looseleaf, $155. Reviewed by Patricia Bond Understanding Financial Information: A Family Lawyer’s Guide is an important addition to the Continuing Legal Education Society of B.C.’s looseleaf family law publications. As with the Family Law Agreements Manual and the Family Practice Manual, it is a sound starting point for the family law practitioner struggling to obtain and understand the financial information required in handling property division or support cases. For more senior counsel, it is a concise checklist for disclosure, an excellent resource for preparing counsel to work with a valuator and a resource for calculating income under the Child Support Guidelines. Its looseleaf format allows for updates as the legislation is amended and updated. This comprehensive guide focuses on the assets and income of a business owner. The five substantive chapters are followed by excerpts of relevant legislation, including the Rules of Court, the Federal Child Support Guidelines, the Family Relations Act, the Company Act, the Canada Business Corporations Act and Bill 47, the Business Corporations Act, which was proclaimed shortly after publication. The authors have included a statute table, which indexes the legislation to the text. The book concludes with an index, which when combined with the chapter indices, gives ready access to any topic. Initial Considerations The book opens with a brief description of the law on division of property and describes the structure of common businesses. From there, the reader is prepared to review the sources available for the disclosure of documents relating to a business. The authors have in mind that one may be acting for the business owner or the owner’s spouse. They also consider whether the matter may be amicable or may require recourse to the Rules of Court or expert evidence. The authors include

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helpful cautions, such as consideration of whether the partiesâ&#x20AC;&#x2122; lifestyle corroborates the disclosure one obtains. The first chapter closes with a glossary of basic definitions and terms found in the Income Tax Act and the Company Act. Financial Statements The second chapter describes the purpose, reliability and content of financial statements and provides an overview of basic accounting assumptions and principles. The reader learns the significance of audited financial statements, as opposed to review engagement reports or compilation engagements, as well as the components of financial statements. There is detailed discussion of the information a family lawyer should glean from a balance sheet, income statement, statement of retained earnings, statement of change in financial position and notes to a financial statement. The appendices contain sample auditorâ&#x20AC;&#x2122;s reports with no reservations, adverse opinion, denial of opinion and with qualification, as well as sample financial statements for a holding company, a retail company and a proprietorship. Business Valuations This chapter is a great primer on valuation issues. It emphasizes the importance of recognizing when it is necessary to retain a business valuator. It describes valuation principles and approaches, specific valuation issues and how to interpret, respond to and challenge a business valuation. The reader is provided with a sample retainer letter and engagement letter, a checklist of documents required for business valuations and a sample valuation for holding and retail companies. Income Under Child Support Guidelines The Guidelines and resulting case law have drastically changed the calculation of income for support purposes. Both lawyers and accountants can benefit from the fourth chapter of this book, which identifies the information necessary to determine income, to analyze that income and then actually calculate Guideline income. There is detailed discussion of sources of income, Schedule III adjustments to income and adjustments to the calculation of income under ss. 16 to 19 of the Guidelines. The appendices contain a calculation of Guideline income for a parent who owns a company as well as the financial statements upon which the calculation is based. Tax Aspects of Division of Assets The final chapter provides a clear explanation of tax consequences that result from a division of assets. This chapter is not intended to replace the tax specialist, and the reader is cautioned to consult an expert, if only to ensure that tax issues have not been overlooked. This chapter will assist the family lawyer in identifying situations where a division of assets can be structured in a tax-effective manner, particularly when a business is involved. Again, the authors provide the basics necessary to understand the issues and then get into the particular tax topics, including working with a tax specialist, income tax concepts and principles, capital property (general rules, spousal rollover, principal residence exemption), non-capital property, sole proprietorships, partnerships, corporations, farms, s. 56 of the Family Relations Act, attribution, joint and several liability for


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transferor’s tax obligations, assumption of debt and commodity taxes. The appendix contains a tax checklist for division of assets. Although most of the tax consequences described have been in effect for many years, readers should be cautioned that the information in this chapter is based on law in effect as of January 1, 2003. Tax laws are frequently amended, and the references should be checked for each case. As well, the discussion is limited to situations where both parties are resident in Canada. In General This publication will be an invaluable tool, particularly for lawyers in the early years of their practice. The text is clear, concise and well indexed, which allows for quick reference on any particular topic. It provides the fundamentals required to understand the issues in the five chapters, as well as instruction on a broad scope of issues. While the authors are careful to advise the reader to seek expert advice, they also provide sufficient information to ensure that the reader will be competent to enter into discussions with an expert about the issues. The authors have a refreshing, real-life perspective on the issues and periodically caution the reader not to lose sight of the big picture. For instance, in obtaining disclosure of financial information, readers are reminded to consider the cost versus the possible outcome for the client. The only regret this reviewer can raise about this publication is that it was not available when she was struggling to learn many of these concepts piecemeal from such incomprehensible sources as the Income Tax Act.

What Directors Need to Know: Corporate Governance 2003, by Carol Hansell. Toronto: Thomson Carswell, 2003. 232 pages, $35. Reviewed by Leon Getz What Directors Need to Know is written not for lawyers but for those who are, or contemplate becoming, corporate directors. Carol Hansell’s purpose is to provide, in straightforward and readable language, an introduction to some basic ideas about corporate governance and law, and some practical advice. She has largely succeeded. The book is skilfully written and constructed and very readable. It contains much useful practical advice—about such matters as monitoring management, documenting due diligence, dealing with financial crises (including when, in the case of a company that is in crisis, it is appropriate to resign) and reliance on outside advisers. The discussion is frequently illuminated by illustrations drawn from decided cases and other sources, and the book includes some useful bibliographic material for those who wish to pursue matters further. It is informed, throughout, by the author’s own extensive and varied experience. She is a corporate lawyer, the author of the compendious Direc-

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tors and Officers in Canada: Law and Practice; a corporate governance “maven” who has been a member of or advised almost every committee, institute or association, in both Canada and the United States, concerned with that subject; and she has served as a director on a number of corporate boards. It is not surprising that she writes knowledgeably, without pretension and helpfully. Much of the literature in this field does not get beyond asserting that good corporate governance is “a good thing”, or describing how, except in a relatively formal, rule-bound way, the imperatives of “good” corporate governance are to be realized. What Directors Need to Know seeks to go beyond this. It is not intellectually challenging—it does not set out to be—but it is a valuable sourcebook. It should be read, slowly, by both neophyte and experienced directors who wish to take their jobs seriously. There is much for them to learn from it or, if they have forgotten—as sadly seems far too often to be the case—to remind themselves about.

Personal Relationships of Dependence and Interdependence in Law, by Law Commission of Canada (ed.). Vancouver: UBC Press, 2003. 162 pages, $85. Reviewed by Neill Brown This is the first volume in the new “Legal Dimensions Series” sponsored jointly by several academic societies and the Law Commission of Canada, who edit it. Unluckily for practioners short of time, its editorial supervision didn’t impose anything like the old B.C. Law Reform Commission format, with a crisp summary of the current law followed by an analysis of its shortcomings and clear suggestions for its reform. Such efficiences might be out of reach here, since this particular series aims to mix in both legal and sundry social theories. That’s hard enough, but then to try to apply them, as here, to such unlike relations as patient/therapist, lawyer/client, computer user/internet service provider, bureaucrat/citizen and weak/strong business contractors is bound to hamper getting to a common framework, let alone all-embracing conclusions. Even so, the articles achieve some of the editorial goal of “prompting us to think how to improve our legal models of interdependent relationships”, if little of the other stated goal of considering “paths for law reform in this area”. Sue Campbell, associate professor of philosophy and women’s studies at Dalhousie University, contributed the first and longest chapter, and the one that perhaps most obviously embodies the mixing of social theory and the law. Aided by feminist theory, she critiques the reasons in R. v. O’Connor, [1995] 4 S.C.R. 411, and R. v. Mills, [1999] 3 S.C.R. 668 (especially O’Connor), two Supreme Court of Canada cases that lay down procedures for the production of the records of therapists of sexual assault victims. Dr. Campbell finds liberal equality and privacy-rights theories not up to the job of protecting the privacy of victims’


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records. Liberal philosophy assigns to everyone certain general characteristics that every citizen is presumed to have, instead of giving account to the “concrete realities”, especially the social relationships that shape an individual’s life. The liberal way inevitably leads, Dr. Campbell says, to unequal treatment. Only when judges understand the “concrete realities” and relationships in someone’s life will they be able to make decisions that truly protect privacy and equality rights. Relationships, especially those involving trust and intimate self-disclosure (e.g., those between patients and therapists), may be so critical to a person’s private sense of self that disclosing intimate statements that were confidentially given in such circumstances could seriously damage emotional well-being—and this can have equality implications. Standing on that foundation—much condensed here—Dr. Campbell argues that the court in O’Connor fell down badly in failing (among other things) to see the victim’s records in their proper “relationships context”. She makes some valid criticisms of the majority reasons; but then, so did the minority, whose views held sway, more or less, four years later in Mills. Mills affirmed the constitutionality of Bill C-56, written partly in response to criticisms of O’Connor, raising the bar for access to a complainant’s records a lot higher. A woman’s right to equality and privacy now coexists with the right of full answer and defence; and due consideration must now be given, when judging applications for access, to the historical subjection of women to discrimination and stereotyping as sexual assault complainants. Despite this success for the privacy and equality rights of women reporting sexual assault, Dr. Campbell argues that Mills did not go far enough. It simply should have seen records production as a “practice of gendered inequality” and banned their production outright. Mills also failed to be explicit about the “necessity of attending to the diverse networks of relationships that structure people’s lives, experiences and self-concepts”. She concludes with the hope that as a matter of practice, judges will just “condemn the production of women’s records as inimical to women’s equality before the law”. She does not explain how judges can do this and still exercise their discretion, as they are duty bound to do. Also unexplained is how adopting the rather academic and intricate theories of privacy and relationships tendered by Dr. Campbell would have led the court to alter its reasons in any significant way. Of course, social theories don’t carry with them the burden of the wider duties and responsibilities borne by judges and counsel, who must consider and defend, as the case may be, the rights of the accused as well. William Flanagan’s chapter, “Fiduciary Duties in Commercial Relationships”, incorporates a clearly written account of the somewhat uncertain state of the law in this area (e.g., is vulnerability necessary to create a fiduciary duty in commercial relations?). One ends the chapter wishing Mr. Flanagan had pointed out the best way forward to wind up the uncertainty, especially given his acknowledgement that this is a “particularly risky area for commercial actors”. Ian Kerr, associate professor of law at the University of Ottawa, writes about “Me and my ISP”. He examines the relationship between Internet computer users

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and their Internet service providers (“ISPs”), those Web gatekeepers that Internet users can’t do without, yet whose actual day-to-day works seem hidden behind Wizard of Oz curtains and smoke and mirrors. Since users must depend on ISPs to manage their information and communications and have little choice but to trust them to manage them honestly, Mr. Kerr supposes that fiduciary duties, not just contractual ones, could be imposed on ISP providers in some circumstances. Lorne Sossin, assistant professor at Osgoode Hall, proposes what he calls a “model of intimacy ” in bureaucrat/citizen relations to replace the existing “authoritarian model”, a necessary paradigm change to counter the mistrust and inequality innate in typical bureaucrat/citizen relations. He gamely suggests that if mechanisms existed for bureaucrats and citizens to truly get to know one another, then trust and fairer dealings, and even a few administrative efficiencies, should follow. However, he readily admits to the enormous increase in cost and administrative complexity his “intimacy model” would call for; and neither can he show a way leading to those sunny uplands where officials always smile benignly and listen attentively. Many would counter that a more realistic model would simply see an officialdom with wings carefully clipped, fully accountable and following a transparent set of logical and fair rules. Whether mixing social theory and law strengthens and clarifies the law or weakens and muddies it is debatable; it is a moot question to some extent, since the Supreme Court of Canada has already demonstrated a readiness to consider social theories in Mills. If even for just this reason,the production of a series that incorporates both legal and social theory makes sense. However, despite some good chapters, parts of chapters and interesting perspectives, a good many practising lawyers will find this first volume unconnected and intangible enough to see it as a welcome addition to someone else’s collection.

Mediating Justice: Legal Dispute Negotiations, by The Honourable George W. Adams, Q.C. Toronto: CCH Canadian, 2003. 400 pages, $94.95. Nelson on ADR, by Robert M. Nelson. Toronto: Thomson Carswell, 2003. 280 pages, $95. Reviewed by J. Gary Fitzpatrick and Murray A. Clemens, Q.C. The negotiation of disputes has always been a necessary and important role for counsel. In recent years, negotiation and mediation have been included in the curriculum of all law schools. In British Columbia, since 1991, the Continuing Legal Education Society has conducted courses by which more than 750 lawyers have completed at least 40 hours of training in commercial mediation and over 550 have completed a family mediation training program. If you were to include the


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number of people trained in mediation by other continuing legal education service providers, the numbers would probably double. This interest in negotiation and assisted negotiation demonstrates the recognition and acceptance of alternative dispute resolution as a central and valuable process in the administration of justice. The report of the Justice Reform Committee, “Access to Justice, 1988”, included seven recommendations for the improvement in availability, access to and training in ADR, principally mediation. Two recent publications, Nelson on ADR and Mediating Justice: Legal Dispute Negotiations, add to the growing library on alternative dispute resolution topics. Robert M. Nelson, a trial lawyer and dispute resolution specialist practising with Gowlings in Ottawa, and George Adams, Q.C., former law professor, labour relations board chair, former Ontario Superior Court judge and current uber-mediator, both agree with the view that mediation is “different”. Where Nelson observes: Mediation is not about law—mediation is about people in conflict.

Adams explains: The mediating of justice integrates laws and lawyers with the psychological and social realities of people living together. It is a robust humanistic justice where perceptions, interests and entitlements are all given weight. It is therefore worthwhile to explain in some detail why and how most lawsuits are settled through negotiation. Settlements, we will see, are not mere capitulation to the staggering costs of litigating. Instead, mediating justice showcases our legal system’s daily effort to integrate the rule of law with the needs and interests of real people.

While it may seem unfair to juxtapose these two extracts, they highlight the difference in these two books. While Nelson does deal with dispute and negotiation theory, for the most part he concentrates on the “how to” by providing suggested agreements and checklists for both mediators and participants and recommended forms and styles of mediation to suit certain disputes. Rather than being a “how to” book, Adams’s benchmark publication, Mediating Justice, is a thoughtful, in-depth, academic work that explains the process of negotiation and mediation within the larger context of our society, its legal framework and, most importantly, the human psychology in which the dispute is embedded. Adams’s book is a “must read” for anyone interested in the effective negotiation of complex disputes. Although the book contains hundreds of useful footnotes and a 40-page bibliography, it is more than an academic treatise on negotiation. It chronicles recent developments and changes in the Canadian experience and culture that bear upon legal dispute negotiations. The book includes encouragement and recommendations for improving the delivery of justice through better understanding and utilizing interdisciplinary resources developed in the social sciences for achieving resolutions by integrating parties’ interests, rather than simply reconciling conflicting claims. The book is organized in chapters that develop an understanding of conflicts, analyze what constitutes an issue and encourage an appreciation of the relevance of imbalances of power. Adams discusses the cognitive distortions affecting people in conflict and makes clear the importance of recognizing those distortions

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and choosing negotiation strategies that will best suit and improve the prospects for resolution. In a chapter titled “Barriers to Negotiating Agreements”, the author provides strategies to be used not only by mediators but by negotiators and parties in dispute in dealing with and minimizing those barriers. This chapter also provides strategies for dealing with structural barriers such as multiple parties and limits on authority. Chapter 4 deals with legal dispute negotiations and examines the question of why and how lawyers negotiate, and the strengths and weaknesses in lawyers’ approaches to decision analysis. Adams undertakes a thoughtful consideration of the lawyer–client relationship in dispute resolution, contrasting the skills required of an advocate in the adversarial process of litigation with the lawyers’ peacemaking role and recognizing that [t]he lawyer is not simply an instrument of a client’s wishes. Rather, through the joint deliberations, lawyer and client clarify the client’s goals and review the wisdom. Lawyers, by training, independence and experience, are able to make shrewd assessments about future trouble spots and take steps to avoid them…Indeed, in working together, opposing counsel effectively perform as co-mediators. They have, as affiliates, a common training and distance from the emotions of their clients.

Chapters 5 and 6 deal with mediation and the activities of mediators as distinguished from the roles played by parties, negotiators, lawyers and advisers, concluding that “mediators do not resolve or settle lawsuits, the parties with their lawyers do that. They are responsible for the outcomes.” Later chapters describe the institutionalization of mediation; alternatives to mediation, such as neutral evaluation, arbitration and summary trial; and observations concerning the importance of the creative role of mediators (and, indeed, lawyers) in designing conflict resolution procedures to best suit the special dynamics of a particular conflict and the special relationship of parties to the conflict. Chapter 9 provides methods for dispute resolution process design, including an example for the design of a dispute resolution process for mass tort claims. Mr. Adams’s book is well written and easy to read and may be fairly described as a “page turner” (until we get to the section dealing with the quantitative, quasi-mathematical approach to decision analysis). Although such analysis may be understood and utilized by those with the analytical insights of a social scientist, these reviewers prefer the old-fashioned quantification of risk by counting the number of beads of sweat on each party’s brow. By contrast, Nelson on ADR addresses a large number of topics, some of which are dealt with in an interesting and challenging way, while others lack the in-depth analysis and exposition found in Mediating Justice. In a particularly useful chapter entitled “Mediation—Philosophy and Practices”, Nelson sets out a series of objectives of a mediator. He states that to meet these objectives, a mediator must be able to recognize and acknowledge the needs and concerns of the participants while, at the same time, allowing the participants to open up and lower their protective armour. He then goes on to state:


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When asked what skills were necessary to be a mediator, students at a middle-school in Massachusetts responded “confidence, patience, act of listening, caring about people, calmness, the ability to ask good questions, silence, open-mindedness and not taking sides.”

Unfortunately, these thoughts are not developed. The reader is left with the idea that if a mediator has the aforesaid characteristics and the mediation achieves the objectives, the parties will have a “successful” mediation. Unfortunately, it is difficult to judge the quality of a mediator on a point system, and having a mediator with the right characteristics does not necessarily result in a “successful” mediation. In this regard, we prefer Adams’s approach to flexibility and creatively fashioning strategies to meet the needs generated by specific disputes and disputants. The second half of Nelson’s book deals with arbitration and covers topics from the drafting of arbitration clauses and agreements to arbitrate through to the enforcement of awards. Care has been taken to cite authorities for propositions and legislative context, but the book is almost entirely focused on the Ontario Commercial Arbitration Act and decisions of Ontario courts. Differences between provincial arbitration statutes and access to judicial review are often subtle but real enough, and care must be taken by practitioners in provinces other than Ontario. Given the growing interprovincial mobility of the bar, one would expect that a national publication such as this would include references to the other provincial statutes and highlight important differences in law and procedure. The fact that the material is based almost entirely on Ontario arbitration legislation and common law significantly reduces its value as one edges away from the centre of the earth. For lawyers who feel that by virtue of having had the benefit of years of trial experience, they are qualified to sit as an arbitrator, there are several pages of “skills analysis for the decision-maker to be”. This section will serve as a good reminder and checklist for seasoned as well as first-time arbitrators. The last portion of the book deals with other forms of ADR, such as med-arb and amiable composition (equitable arbitration where decisions are rendered pursuant to “common sense” and “fairness”). These forms of ADR are very interesting because they walk the line between pure mediation and arbitration. Purists on each side will be highly critical of these “in-between” methods; however, in the right place they do have real value. Neither one, but especially med-arb, should be practised by the novice. The author also touches on “arb-med”, a procedure often used in labour disputes in British Columbia. In this process, an arbitration commences, and at a point chosen by the participants, they ask to have the arbitrator act as a mediator to attempt to settle the dispute. If no settlement is reached, the arbitration resumes and is concluded. Nelson sets out the pros and cons of this process and certainly stimulates one to think about opportunities to resort to such hybrid methods. Lawyers are problem solvers. They see the well-drawn agreement as a way to assist people to achieve their goals without disputes. If disputes do arise, most lawyers want to find an efficient and economical way to resolve the disputes. If





































Ê have Ê court is the only way, so be it. However, today, lawyers and their clients a Ê Ê variety of processes available to them. The more familiar lawyers are with these various forms of dispute resolution, the better they will be at assisting their clients to solve 7EBSTER!SSOCIATES their problems. Both of these books will assist in the underÜ Ü Ü° Lof À > ˆthe ˜ ˆ ˜ process Õ À Þ  > Ü°and V > its opportunities. Nelson on ADR will standing and exploration satisfy the casual reader or one looking for a checklist, whereas Adams’s Mediating Justice is for the serious practitioner.



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A new and updated edition of the award-winning text!

The Law of Restitution, Looseleaf Edition

Peter D. Maddaugh and John D. McCamus

Recipient of the David W. Mundell Medal for Excellence in Legal Literature and the Walter Owen Book Prize!


ow available in looseleaf format, this new edition of the award-winning treatise provides an up-to-date and comprehensive account of the law of restitution, and includes coverage of the law permitting recovery of benefits conferred under ineffective transactions, or by mistake, whether of fact or law. It also covers benefits acquired through wrongful conduct such as: • breach of fiduciary duty • breach of confidence • the commissions of torts “ … an excellent book, full of useful insights ... • crimes an essential work of reference for those interested • breaches of contract in any aspect of Canadian private law.” • the use of coercion in the form of duress or undue influence Stephen Waddams Professor of Law With extensive reference to case law, University of Toronto this invaluable service: • focuses on the law of the common law provinces • provides an account of the leading Canadian decisions • includes up-to-date accounts of the leading authorities of other Commonwealth jurisdictions

An essential work!

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VOL. 62 PART 2 MARCH 2004



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Flourishing general practice suitable for 1 or 2 lawyers. Reply in confidence to: Box #OL0104, The Advocate #300 - 1275 West 6th Avenue Vancouver, BC V6H 1A6 ROCKY MOUNTAIN OPPORTUNITY Busy Fernie firm has position available starting April 1, 2004 for a motivated barrister. Take over an existing practice which includes family, criminal and general litigation. Terms negotiable. Fernie is a world class winter and summer resort area. Position would appeal to lawyer with outdoor recreation and family living as a priority. Please contact: Sliva & Summers 401-2nd Ave, Box 490, Fernie, B.C. V0B 1M0 Ph: 250-423-4446 Fax 250-423-4065 E-mail Visit for info on Fernie.

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From Alex Sweezey Dear Sir, I read with interest your thoughtful editorial on the LSBC/CBA relationship in the November Advocate. However, I was disappointed that you did not address s. 3(b)(ii) of the Legal Profession Act head on. You did refer to the LSBC and its “paramount duty to the public”, but that addresses the caption of s. 3(b) only. Section 3(b) does not limit the duty of the LSBC to being merely an aspect of 3(a). It imposes an additional, independent, statutory duty on the LSBC “to uphold and protect the interests of its members” unless it conflicts with 3(a)! It would seem that, if financial support of the CBA is the most reasonable means of fulfilling its mandate under 3(b)(ii), then the LSBC is in fact required by statute to do so unless it conflicts with 3(a). Do you suggest that CBA support not only fails to come under 3(a) but actually violates it? Do you have other suggestions for fulfilling 3(b)(ii) which are more compatible with 3(a)? Since support for the CBA, an otherwise non-arm’s-length body, is arguably the best way to reconcile 3(a) and 3(b), one would otherwise have to argue that 3(a) and 3(b)(ii) are ipso facto irreconcilable, a perverse

approach to statutory interpretation! One would, rather, be tempted to simply accept that the legislature, at least so far, has told us in its wisdom that they are reconcilable, and has ordered the LSBC to get on with it. Alex Sweezey New Westminster, B.C. From the Chair of the Board of the Legal Services Society Dear Sir, Re: Innovation and the Legal Services Society The board of directors and staff of the Legal Services Society (the “LSS”) were very pleased to read the Attorney General’s positive comments in the January edition of the Advocate about the programs we have initiated to improve access to justice for people with low incomes in B.C. Further to his remarks, I would like to acknowledge and thank the Law Foundation and the Notary Foundation for their annual grants to the society. Their contributions cover a significant portion of the funding we are able to allocate to projects such as the family duty counsel, family advice lawyer and enhanced law line pilots. Without their support, much of this work would not be possible. I am also pleased to report that the LSS board has approved extending


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these three projects, along with several others, through to March 31, 2005. Yours truly, Greg Bowden, Q.C. Vancouver, B.C. From Neil A. Davidson Dear Sir, Re: T.V. Hyland (noted at page 947 of the November 2003 issue) I thought it might be of interest to hear a little more re Sgt. Pilot T.V. Hyland (â&#x20AC;&#x153;Vinceâ&#x20AC;?). Vince, O.F. Reinhard and I, all from Vernon (after graduating from the U. of A. Edmonton on the same day) were called to the B.C. bar on the

same day in August 1941 before Morrison J. in Vancouver. We all joined the R.C.A.F. right away, to be trained as pilots, and we all became aircrew. Hyland was killed by flying into a mountainside near Debert, N.S.; Reinhard survived the war (navigator) and practised in Vancouver and died of Alzheimers disease about 10 years ago. I was medically removed from aircrew and served the rest of the war as an air traffic control officer. I have practised in Vernon from 1946 to 1988 when I retired. I remain active in the Vernon area. Neil A. Davidson Vernon, B.C.

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By Thomas S. Woods* AUTHENTICATION OF A SIGNATURE Some years ago, a British Columbian travelling in Mexico was required to execute a transfer document relating to a sale of land back home. He did so before a notary and instructed him to authenticate his signature and then deliver the documents to a law firm in Vancouver for filing in the Land Title Office. Leaving the matter in the notary’s capable hands, the vendor returned to his holiday-making, having no idea that the authentication paper read as follows: [Notary’s name], Notary, Publishes Numbers 3 THREE of this Municipality, C And R T I F I C Of: That the signature that (antecede) of Mr. [vendor’s name], he/she/it/you is authenticate since it was setting in my presence and in the face of my, I ratify and I sign the content of the document that puts on shoes happiness signature. I identify in the face of my with their Migratory Document number 47488 four, seven four, eight, eight sent by the Regional Delegacion of the National Institute of Migracion in Sinalo document that I give faith have visible. Puerto Vallarta, Jalisco, October 22 twenty-two of 1997 thousand nine hundred ninety seven

Showing admirable flexibility, the Land Title Office apparently accepted the vendor’s signature despite its unconventional authentication, and the transfer was registered. LINGUISTIC OBSCURITY OF ANOTHER KIND A reader has brought to my attention the opening paragraph from a paper written by two anthropologists for presentation at a recent conference at the University of Victoria to celebrate the 30th anniversary of the Calder case. The activism addressed here focuses on our praxis within the law and anthropology. Selfreflexivity, if political, is not strictly an exercise in egotism. Frankly acknowledging the ontology of our professional lives in a socially unequal world is a responsible way to combine our lust for abstract comparative projects with the ontology of our praxis on the ground among the peoples we study.

My goodness. Is a “praxis” (a fortiori, a “praxis on the ground”) a type of injury an aging anthropologist might suffer if he chooses to indulge his “lust for abstract comparative projects”? Is “self-reflexivity” really something that anthro* Thomas S. Woods practises civil litigation and administrative law from the Vancouver office of Lawson Lundell and is the editor of the Advocate.


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pologists should be discussing in polite company? We invite any brave readers willing to venture a translation to send it in to us. The opacity of the above-quoted anthropological writing approaches that of the circuitous reasoning of that High Priest of Obscurantism, Donald Rumsfeld, who famously said: As we know, there are known knowns. There are things we don’t know. We also know there are known unknowns. That is to say, we know there are some things we do not know. But there are also unknown knowns, and ones we don’t know we don’t know.

Indeed. Would the location of Saddam Hussein’s vast arsenal of weapons of mass destruction in Iraq have been a “known unknown” or an “unknown known” at the Pentagon in the pre-war dawn of March 19, 2003? I fear I may develop a splitting “praxis” if I try to parse Mr. Rumsfeld’s words in search of the answer to that one. Because my stockpiles of Tylenol are running rather low, I shall not even try. But I will leave you with a link to a Web site where you will find an amusing and thought-provoking article by Hart Seely that recasts Mr. Rumsfeld’s discursive, doomsday logic in poetic form: <>. AH, CLARITY AGAIN! FOWLER’S CORNER Fowler’s astringent wit is well-displayed in his puncturing of the usage purist. We all know them, and the “praxes” that their carping can cause. PURISM. Now & then a person may be heard to ‘confess’, in the pride that apes humility, to being ‘a bit of a purist’; but purist & purism are for the most part missile words, which we all of us fling at anyone who insults us by finding not good enough for him some manner of speech that is good enough for us. It is in that disparaging sense that the words are used in this book; by purism is to be understood a needless & irritating insistence on purity or correctness of speech. Pure English, however, even apart from the great number of elements (vocabulary, grammar, idiom, pronunciation, & so forth) that go to make it up, is so relative a term that almost every man is potentially a purist & a sloven at once to persons looking at him from a lower & a higher position in the scale than his own. The words have therefore not been very freely used; that they should be renounced altogether would be too much to expect considering the subject of the book. But readers who find a usage stigmatized as purism have a right to know the stigmatizer’s place in the purist scale, if his stigma is not to be valueless…

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TAKING THE LAW TO THE PEOPLE* By Michael Harcourt n the September 5 edition of the GAP (the Vancouver Inner-City Service Project’s newspaper), one of our summer ’69 law students, Harry Boyle, very ably described the Vancouver Inner-City Service Project’s Legal Services and Research Program’s objectives. They were: 1. To investigate the legal problems of poverty and to stimulate interest and reform in areas of the law which most directly affect people in the lower income bracket. 2. To provide a limited test of the feasibility of the neighbourhood legal services. 3. To promote, through research and publicity, the establishment of an improved and comprehensive legal aid scheme in this province. 4. To provide a practical educational experience for participating law students. These objectives have not changed. We are attempting to carry them out as follows: 1. Neighbourhood legal advice clinics—Law students with the aid of a supervising lawyer have given advice from June 15, 1969, to November 27, 1969, to 710 people. Neighbourhood clinics operated (till February 5, 1970) Wednesday nights at 2741 West 4th Avenue and 1144 Commercial Drive. On September 15, UBC law students opened an advice clinic. It operated Monday, Wednesday and Friday from 12 till 2 P.M. out of the Student Union Building. A few lawyers, among the many who have so kindly volunteered to supervise the clinics, felt the students were inadequately prepared to advise people on some of their problems. Consequently, a series of training sessions were set up beginning in mid-January 1970. An intensive program of speakers from January until


* Reprinted from (1970) 29 Advocate 89.


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April 1970 will cover the main problem areas that pop up in our clinics—family law, debtor-creditor law, landlord and tenant, consumer law, and small debts court. Students will also be taught such basic skills as how to interview a client, how to extract the truth, what are the limits of a lawyer’s skill in dealing with people’s problems? All this information will be combined with other materials in the form of a training manual. The manual will be made available to students. We are also considering preparing pamphlets on the law. These will be distributed to social agencies and other interested bodies. By the way, we have extended our legal advice services. On February 5, 1970, we opened another office at 5783 Victoria Drive. The clinic at 2741 West 4th Avenue has been shifted to Tuesday night. The citizens have even more access to legal advice. Now offices are open Tuesday, Wednesday and Thursday nights. The clinic at UBC now operates Monday, Wednesday and Friday from 12 to 2 P.M. Seventy to 100 people a week are now receiving legal advice. 2. Juvenile Court—The Juvenile Court program is still operating at high speed. Law students are energetically and competently defending juveniles on transfer applications per section 9 of the Juvenile Delinquents Act. Roger McAfee is coordinating this program in conjunction with the UBC law students’ legal aid committee. He has done an invaluable service not only in making this part of our operation more efficient, but also in thoroughly training each and every student before he goes into court. From July 1, 1969 to November 27, 1969, approximately 85 juveniles, who previously would have appeared without counsel, have had the benefit of competent legal representation. Roger is also investigating extending our services into family court. A program may be instigated in the near future to cover assaults, maintenance and applications per section 7 of the Protection of Children’s Act. 3. Divorces for Deserted Wives on Welfare—Since June 1, the Vancouver Inner-City Service Project’s Legal Services and Research Program, in conjunction with the Law Society of British Columbia and the Vancouver City Social Service Department, has arranged divorces for approximately 40 women on welfare. We would like to thank the Vancouver lawyers who have donated their time and services to handle those divorces. We hope, however, that the program doesn’t become too publicized. We were strained considerably just arranging for 40 women. There is no way we could handle an expanded demand. To demonstrate the situation, two Vancouver lawyers, Mrs. Linda Ragona and Miss Hope Hyslop, in conjunction with our program and the City Social Service Department, have completed a survey on the number of women on welfare who require a divorce. We were astounded by the results. Three of the four units of the City Social Service Department were canvassed. Approximately 650 women responded they would require a divorce. If you add the number of women from the fourth unit, the unknown numbers of employed women who can afford a divorce, and the non-working wives whose husbands do not have the funds for security of costs, the need for divorces appears mind-boggling. Obviously, this is

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an area where the legal system had to be improved either by a better legal aid scheme, easier divorce procedures and/or less onerous fees. Mrs. Ragona and Miss Hyslop have prepared a brief on the Problems of the Deserted Wife on Welfare. The solution they offer extends beyond the need for more legal aid divorces. They mention not only the necessity for proper job retraining programs, but also the need for more day care centres. Mrs. Ragona and Miss Hyslop will be approaching various women’s groups and governments to try to improve this poorly serviced area of the legal system. 4. Legal Research—A great deal of research has been carried out by the Vancouver Inner-City Service Project’s Legal Services and Research Program. Professor Jerome Atrens, who is the Research Director, has just completed a two-and-ahalf-year study on legal aid. It will be published shortly. Furthermore, we have worked closely with the Law Society’s Legal Aid Committee. Members of our program have aided the Legal Aid Committee’s sub-committees, firstly, as to the establishment of a full-time legal aid office in Vancouver, and secondly, as to the need for and form of a comprehensive legal aid program outside of the Greater Vancouver area. Our staff lawyer spent two months on a four-thousand-mile tour of the province talking to lawyers, judges, police and interested citizens. Thirdyear law students who worked on our legal program last summer are preparing reports on such areas as Juvenile Court, Family court, poverty law, and the bail system. We hope to make this information available to the B.C. Law Reform Commission this spring. We will also be approaching the appropriate bar committees. During the next eight months the following areas will be investigated— 1. Welfare law. 2. Consumer protection. 3. Debtor-creditor law. 4. Small Debts Court. 5. Pollution. In conclusion, we hope that our limited program has made the law and the legal system more accessible to those members of our society who have been traditionally excluded from the normal remedies available to most citizens. As the Honourable John Turner, Federal Minister of Justice, has said, It is the poor who suffer most from society masked in the trappings of the law. For it is they who are victimized when urban renewal arbitrarily disrupts a neighbourhood. It is the poor who are hurt when creditors garnishee wages or repossess furniture; it is the poor who are deprived when welfare agencies deny, reduce or terminate welfare benefits on vague, unarticulated or clearly illegal grounds; it is the poor who are hit by bail procedures linked to financial means; it it the poor whose privacy is invaded and whose dignity is denied.

We at Inner-City hope that our program is trying to change this situation so that the less fortunate members of our society can see the law as a friend and not as an enemy, as an aid not as an adversary, as a remedy not as an obstacle.


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he early February sun is shining brightly as we write this. Although the groundhog did apparently see his shadow this year, we remain hopeful and expectant that the rest of the winter will stay mild and usher in a sunny spring in British Columbia. A chill wind does, however, seem to have blown away all but a fleeting memory of the honeymoon phase of the new prime minister’s present term in office. Paul Martin is being buffeted at present by some particularly heavy weather resulting from disclosure documents in which the decimal point was offset by three places in connection with the reporting of government contracts let to his family company, Canada Steamship Lines. Wisely, he has put the entire affair in the hands of the federal auditor-general, who generally gets her decimal points in the right places and who can be depended upon to get to the bottom of the $161 million reporting blunder. In any event, on to moves and changes. Edward E. Bowes, Stephen F.X. O’Neill, Michael F. Provenzano, Michael H. Taylor and Conrad Y. Nest are now practising under the name “Northwest Law Group” instead of “O’Neill & Company”. Alastair G. Campbell has left the tax group at McCarthy Tétrault to join Legacy Tax + Trust Lawyers, where he will continue to practise in the areas of domestic and international tax planning and tax litigation. Fran Crowhurst returned recently to private practice after several years with the Ministry of Attorney General. She has established a litigation prac-


Lawyers who have moved their practices should fax details of their past and present circumstances to the editor at 604-669-1620 to ensure an appearance in “Bench & Bar”.


VOL. 62 PART 2 MARCH 2004

tice in Victoria with an emphasis on public law and land use issues. After 14 years at the B.C. Public Interest Advocacy Centre, Michael Doherty is moving to the Department of Justice. Joe Doyle is now practising with S. Russel Chamberlain, Q.C., under the firm name of Chamberlain & Doyle. Sylvia Andrews is also practising at that firm, whose office is located in Richmond. Ashley Hilliard practised for 27 years with McCarthy Tétrault and its predecessor firm, Shrum Liddle & Hebenton. He has now retired from the partnership but will continue to advise firm clients in real estate and commercial lease matters in the capacity of associate counsel. Nicholas Lang has retired from the Crown Counsel office in Victoria and joined Gordon & Velletta, where he will practise criminal, aboriginal and human rights law. Formerly a partner at Whitelaw, Twining in Vancouver, Ingrid Rost has returned to her home town of Victoria to join Patrick Guy and continue her practice in civil litigation, including insurance defence and commercial disputes. Jonathan D. Waller is joining McEwen, Schmitt & Co.’s maritime law practice. He leaves Baumgartel Gould. John Wasty has left Lovells in Hong Kong, where he was head of insurance and reinsurance, and has returned to London as special counsel with Sedgwick, Detert, Moran & Arnold, where he will focus on reinsurance, D&O and financial transactions insurance. Ivan G. Whitehall, Q.C., has retired from practice as the Department of Justice’s chief general counsel in Ottawa and has taken a position as counsel with McCarthy Tétrault’s Ottawa office. Sandra Wilkinson has returned from a five-year stint in California practising international tax, trusts and estates law to take a position with the B.C. Ministry of Attorney General as the in-house solicitor for the Financial Institutions Commission. And lastly, Bennett Wong, who articled at the Vancouver office of Goodmans LLP, has joined the Calgary office of Gowlings, where he will be practising corporate finance, securities and M&A law. Twenty-two distinguished British Columbia lawyers were appointed Queen’s Counsel on December 12, 2003, and we extend our congratulations to them. They are (in order of call to the bar), Thomas G. Kendall of Kelowna, Charles R. Kennedy of Vancouver, John S. McKercher of Vancouver, John O.E. Lundell of Vancouver, David E. Gillanders of Vancouver, Kenneth J. Yule of Vancouver, John W. Horn of Nanaimo, David F. McEwen of Vancouver, Romano F. Giusti of Burnaby, John L. Leathley of Richmond, Derrill W. Prevett of Nanaimo, W. Ross Ellison of Vancouver, Ian D. Izard of Victoria, John G. Tait of Mission, Catharine Herb-Kelly of Vancouver, Richard B. Lindsay of Vancouver, R. Hector MacKay-Dunn of Vancouver, Joyce W. Bradley of Vancouver, Anne K. Wallace of Victoria, Allan P. Seckel of Victoria, David A. Paul of Kamloops and James L. Cassels of Victoria. Peter W. Brown was elected president of the Kitsilano Chamber of Commerce at its recent annual general meeting.

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Greg DelBigio was awarded the 2003 Canadian Bar Association President’s Award, mainly in recognition of his extraordinary pro bono contributions to various CBA initiatives, including the challenge to the federal government’s planned money-laundering legislation. Kathy Grant’s outstanding legal writing skills have earned her the Department of Justice/Canadian Bar Association’s National Law School Essay Award. Ms. Grant, who is a student at the Faculty of Law at UBC, wrote a paper that analyzed the federal government’s Anti-Terrorism Act and its impact on the rights of the accused. Anne Giardini has won first prize in the 2003 Advocate Short Fiction Competition. Her story, “The Natural Order of Things”, appears at page 211ff. of this issue. Anne is assistant general counsel at Weyerhaeuser in Vancouver. She has published many articles, essays and stories. Her first novel, The Sad Truth About Happiness, will be published by HarperCollins in 2005. Second prize goes to Vello Sork of Surrey for his story, “Mr. Gupta’s Garden”. Mr. Sork is general counsel to Prasad Advanced Materials Inc. John T. Martin of Duncan placed third with his story, “The Last Freight”. We extend our congratulations to all three winners, who will receive gift certificates to Duthie Books valued at $400, $250 and $100, respectively. Ray Young is on leave from Lidstone Young Anderson to pursue academic studies at the Faculty of Law at Georgia State University in Atlanta. He was named a Senior Fulbright Scholar this year and received a research award under which he is looking at, inter alia, comparative takings and the question of how chapter 11 of NAFTA fits into that picture. He returns to Vancouver at the end of May. Whatever view one holds about the Law Society’s policy (its so-called Rand formula, concerning compulsory financial support for the Canadian Bar Association), the fact is that the B.C. Branch provides the profession in B.C. with valuable services. Among other endeavours it publishes Bar Talk six times a year. Bar Talk contains news about the doings of the branch, a bi-monthly message from the president of the branch, news from the 74 subsections with a list of papers delivered at subsection meetings, practice advice, regular legislative updates, articles on current issues of importance to the profession, information about upcoming events and inserts advertising employment opportunities, merchandise, hotels and holidays at discount rates. Bar Talk is very informative about the activities of the B.C. Branch. We have discovered that many members who receive Bar Talk never bother to read it, instead consigning it to the round filing cabinet. These members are depriving themselves of a valuable source of useful information. It takes about eight minutes to riffle through the magazine to select what is of interest. Next time Canada Post deposits it on your desk, give it an eightminute examination.


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ØØ“BOOM BOOM CRASH! BOOM BOOM CRASH! WE WILL…WE WILL…ROCK YOU!”ØØ Mark your calendars now! On Friday, June 11, 2004, the Third Annual Battle of the Bar Bands event returns to the Commodore Ballroom—Vancouver’s premier rock venue! For two years running, this fundraiser has raised tens of thousands of dollars for the CBA (BC) Benevolent Society. Rock bands composed of lawyers and law firm employees will again showcase their considerable talents before what promises to be another sell-out crowd and a panel of demanding judges chosen from the ranks of the British Columbia Supreme Court. Rick Cluff, the wellknown and much-admired host of CBC Radio One’s morning program—“The Early Edition”—will serve as emcee again this year. All indicators suggest that the 2004 event will be the biggest and the best ever. Watch these pages in the May issue for more details. But in the meantime, start lobbying your firm now to purchase blocks of tickets so that you, your colleagues and your support staff do not miss out on the action. Musicians, please note! Bands wishing to enter this year’s event should make contact immediately with Roger E. Holland—by fax at 604-682-1283, by e-mail at <>, or by snail mail at 1200–1125 Howe Street, Vancouver, B.C., V6Z 2K8—to obtain details about competition rules and entry requirements. All bands intending to play this year should understand that their participation will depend in part upon the willingness of their members to commit to reasonable ticket sales/fundraising targets, given that the primary purpose of the event is to generate sufficient revenues to make a meaningful contribution to an important and well-deserving charitable beneficiary. The New Zealand Ministry of Justice has established a program for the education of young witnesses and victims about what it is like to appear in court, focusing on familiarizing children with the court environment and processes. The court’s victim adviser delivers the service usually in the three weeks before the trial. This is intended to reduce the stress on the children and thus to enhance the credibility and accuracy of their evidence. The service does not discuss with the children any aspect of their evidence. The service is designed to meet the needs of children of a range of ages and cultural backgrounds. The Honourable Mr. Justice William Scarth of the Supreme Court of British Columbia elected to become a supernumerary judge as of January 1, 2004. He was appointed to the County Court of Vancouver in 1988 and became a Supreme Court judge upon the merger of the two courts. Debra Hanuse has been appointed to a three-year term on the board of governors of Simon Fraser University. She was a commissioner for the B.C. Treaty Commission and is a member of the Namgis Band.

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Pat Pitsula has been appointed executive director of Pro Bono Law of B.C. Members will remember her as having formerly served as the executive director of the Law Foundation of B.C. for four years. Pro Bono Law of B.C. promotes access to justice for people and organizations of limited means by facilitating and coordinating opportunities for B.C. lawyers to provide pro bono legal services. It is designed to provide a first point of contact for community organizations seeking pro bono assistance for their clients and for lawyers interested in pro bono work through promotion of its Web site <>. The bar of England and Wales is deeply concerned about the appointment of one David Clementi with a mandate to review the way in which legal services are regulated. Both the English law society, which has been the recent subject of savage criticism for the way in which it runs its disciplinary function, and the bar (which has not) are concerned lest they lose their self-regulatory functions. The bar, though it is too diplomatic to say so publicly, is clearly worried that the law societyâ&#x20AC;&#x2122;s alleged inefficacy will cause both to lose their self-regulatory role on the principle that if one is divested of it, logic requires both to be treated in the same way. We in B.C. should remain alert to the recent rise in the incidence of law societies losing their right to regulate themselves. Our disciplinary process must be efficient, fair, swift and above any possibility of the suggestion of any conflict of interest. This latter is potentially our Achilles heel, and the compulsory funding of the Canadian Bar Association may be the spear that strikes that heel. The Kyoto Protocol has been much in the news over the past months. Many do not know exactly what that protocol requires of its signatories. Shortly put, the requirement is that the countries reduce their emissions of greenhouse gases by an average of 5.2 per cent below 1990 levels by 2008â&#x20AC;&#x201C;2012. Since December 1, 2003, it has been an offence in Great Britain to use a handheld telephone while driving. Drivers are required to pull over and turn off their car engines before making or receiving calls. The maximum fine upon conviction for this offence is ÂŁ1,000 (about $2,300 CAD). The National Rifle Association in the United States is in debt to the tune of approximately $100 million. This is a result of its spending its money on costly legal, legislative and political battles over the past 10 years. The association has struggled to help achieve the election of Republican congressmen and presidents and succeeded in the passage of legislation in 30 states banning lawsuits against gun manufacturers. The association admits that in the past three years its membership has declined from 4.3 million to 3.4 million. It is said that memberships rise as election years approach and decline thereafter. Lawyers for a convicted murderer are arguing before the New York State Court of Appeals that the standard of proof in cases where conviction carries the death


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penalty should be more stringent than proof beyond a reasonable doubt. They argue that the prosecution should prove an accused’s guilt beyond any doubt. This reflects growing public concern in the United States about the incidence of innocent people being executed. Of course, a solution to the entire problem would be the abolition of the death penalty. The late Mr. Justice George Murray always maintained that it was harder to obtain a conviction in a murder case before the death penalty was abolished. One of the prominent international air carriers claims never to have killed a passenger. After every flight its pilots complete a form called a gripe sheet to convey to the mechanics any problems encountered during the flight. After correcting the problem the mechanics respond in writing detailing what remedial action has been taken. Examples follow: “P” denotes the problem logged by the pilot. “S” denotes the mechanic’s proposed solution. P. Left inside tire almost needs replacement. S. Tire almost replaced. P. Something loose in the cockpit. S. Something tightened in the cockpit. P. Dead bugs on windshield. S. Live bugs on back order. P. Autopilot in altitude hold mode produces a 200-feet-per-minute descent. S. Cannot reproduce problem on the ground. P. Evidence of leak on main right landing gear. S. Evidence removed. P. DME volume unbelievably loud. S. Volume set to a more believable level. P. Suspected crack in windshield. S. Suspect you’re right. P. Number three engine missing. S. Engine found on right wing after brief search. P. Mouse in cockpit. S. Cat installed. P. Noise under instrument panel; sounds like a midget pounding with a hammer. S. Took hammer away from midget. P. Target radar hums. S. Reprogrammed target with lyrics. Justice Antonin Scalia, of the U.S. Supreme Court, has attracted severe criticism for going duck hunting in Louisiana with Dick Cheney, the vice-president. The problem is that the Supreme Court has granted Cheney leave to appeal to the court from an order that Cheney disclose the names of the members of his energy

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task force, established in 2001, to create a national energy strategy. Environmental groups had accused Cheney of stacking the task force with representatives from the industries involved, many of whom are suspected of being large Republican donors.

UPCOMING EVENTS Most of the upcoming events we note used to be gleaned from the New Zealand Law Society’s monthly publication Law Talk. That journal seems to have discontinued its publication of impending conferences, but has disclosed a Web site where they can be found. The list below is only a portion of the conferences listed at this Web site. We culled those we thought would be of no interest to the profession in B.C. The URL for the Web site is <>. Similarly, the International Bar Association sponsors and offers numerous topical conferences of interest to lawyers around the world. Details may be obtained by visiting the IBC Web site at <>. April 12–14, 2004

May 2–5, 2004

June 21–July 2, 2004

June 30–July 4, 2004

August 1–5, 2004 August 15–17, 2004

Cape Town. IBA World Conference 2004. Contact World Bar Conference Secretariat by telephone +61-7-3236-2477, by fax at +61-7-32361180 or by e-mail at <mail@worldbaronline. com>. Seoul. IPBA Conference 2004. Contact InterPacific Bar Association—an international association of business and commercial lawyers with an Asia Pacific focus—via its Web site at <>. Cologne. Seventh International Commercial Law Seminar. For details about this joint collaboration between the University of California at Davis, the University of Cologne and the German Bar Association, visit the UCD Web site at <>. Regina. 10th International Society for Social Justice Research Social Justice Conference. For further information, visit the ISJR Web site at < isjr.html>. Sydney. 15th World Congress on Medical Law. For details, visit <>. Winnipeg. Annual General Meeting of the Canadian Bar Association. For details, visit <> and follow the links.


August 15–28, 2004

August 24–28, 2004

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Utrecht. International Human Rights Academcy Conference. For details, visit < pub/humanrightsacademy/>. Naples. 42nd Annual Congress of the International Association of Young Lawyers. For more information, contact Andrew Probert by e-mail at <>.

Thought du mois: “…‘cattle’ means neat cattle or an animal of the bovine species by whatever technical or familiar name it is known, and includes any horse, mule, ass, pig, sheep or goat” Criminal Code, s. 2

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Patricia Bond is a family law practitioner with the firm of Bradbrooke Crawford Green in North Vancouver. She is a contributing author to numerous family law publications and sits on the editorial board for the British Columbia Family Practice Manual, a publication of the B.C. Continuing Legal Education Society. Neill Brown has been practising law for 29 years, 27 of them in Abbotsford. His civil litigation practice over the years has been wide-ranging. Since becoming a sole practitioner, he has concentrated on personal injury cases. Mr. Brown has also practised as a mediator for over 10 years. Murray A. Clemens, Q.C., is a commercial litigator, mediator and arbitrator and practises with the firm of Nathanson Schacter & Thompson. J. Gary Fitzpatrick—who sometimes self-describes as a “recovering lawyer”—has been an ADR practitioner and trainer since 1986 and has restricted his practice to acting as a mediator and arbitrator for the last 10 years. Leon Getz is a partner in the firm of Getz Prince Wells in Vancouver. Anne Giardini is assistant general counsel of Weyerhaeuser in Vancouver. She has published many articles, essays and stories. Her first novel, The Sad Truth About Happiness, will be published by HarperCollins in 2005. Charles H. McKee is a real estate and banking solicitor with extensive experience in local and multi-jurisdictional land-related transactions. He was called to the B.C. bar in 1967 and is currently practising as a consultant to First American Title Insurance. William T. Morley is a partner at Fasken Martineau DuMoulin’s Vancouver office. His practice encompasses various areas of civil litigation, including plaintiff personal injury and medical negligence, insurance and products liability law. James I. Reynolds of Ratcliff & Company has over 25 years of experience in Aboriginal and commercial law and has been involved in major litigation and commercial projects for clients. His book, tentatively titled Achieving Justice For Aboriginal Peoples—Guerin and Fiduciary Obligations, is soon to be published by Purich Publishing Ltd. of Saskatoon. Michael D. Sanders is a criminal defence lawyer practising in Vancouver. He is also a coauthor, with Brian Bosworth, of certain titles in the Destination Highways series of motorcycle touring books. Tony Sheppard is a professor at the Faculty of Law, University of British Columbia, where he teaches courses in evidence, creditors’ remedies, equitable remedies and taxation. Harry J. Wruck, Q.C., is senior general counsel with the Department of Justice in Vancouver. He is responsible for complex litigation, including Aboriginal, Charter and environmental litigation and class actions.


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