BarTalk | June 2017 by The Canadian Bar Association, BC Branch

MEDICAL ASSISTANCE IN DYING | CHARTER | CANNABIS AND THE CONSTITUTION

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Constitutional Law

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VOLUME 29 / NUMBER 3

Contents

Departments

FROM THE PRESIDENT The CBA Defends the BBA by Michael Welsh

EXECUTIVE DIRECTOR The Power of the Many by Caroline Nevin

PRACTICE TALK Steps to Guard Your Data by David J. Bilinsky

DAVE’S TECH TIPS

NOTHING OFFICIAL Dare to Be Great by Tony Wilson, QC

Sections

10 SECTION UPDATE Labour Law Municipal Law CCCA BC

Inside This Issue The year 2017 marks 150 years since Confederation and also 35 years since the Canadian Charter of Rights and Freedoms formed part of the Constitution Act, 1982. As one would expect, much has changed in Canada over those years, and more change appears to be on the horizon; for example, tackling the issue of medically assisted dying or legalizing cannabis. This issue highlights current constitutional law issues and provides some insight into how the Charter will influence society in the future. As we celebrate these two big birthdays, we can reflect on evolution of Canada’s legal system and also actively embrace and participate in the journey that has yet to unfold.

News and Events

Features

12 MEDICAL ASSISTANCE IN DYING: FINDING A BALANCE by Kimberly Jakeman and Dionne Liu 13 CANNABIS AND THE CONSTITUTION by Tom Posyniak 14 SCALING UP TO SYSTEMIC CHANGE AND CONSTITUTIONAL CASES by Kim Hawkins AND Raji Mangat 15 THE DIFFERENCE A CASE MAKES by Monique Pongracic-Speier 18 NATIONHOOD AND ABORIGINAL RIGHTS by Lisa Glowacki 19 PROBLEM-BASED LEARNING AT UVIC LAW by Gillian Calder 20

THE FUTURE OF THE CHARTER OF RIGHTS AND FREEDOMS by Patricia Cochran, Janna Promislow and Debra Parkes

FAST TRACK ARBITRATION by Michael Butterfield

Guests

2 Law Week 2017 Recap Photos 22 Law Week 2017 Recap Photos Cont’d Rules of the Road: How Are We Going to Regulate Autonomous Cars? 23 Dial-A-Lawyer Day Stats Did You Know... CBABC Membership Includes... Notice to the Profession: Use of a Support Person in Civil and Family Proceedings 24 CBABC WLF News CLEBC Update 25 BC Legislative Update Branch & Bar Calendar BarTalk Online Extra Feature Articles by Laura Track and Amy Dhillon 26 Tips from Courthouse Libraries BC BC’s Legal History by Hamar Foster, QC 16 27 28 29 30 31

Also In This Issue

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Click here for LEGAL OPPORTUNITIES and ads JUNE 2017 / BARTALK

FROM THE PRESIDENT MICHAEL WELSH

The CBA Defends the BBA We go where others fail to tread

cronyms aside, there are times when the value of the CBA to the legal profession and our clients is made manifest. The latest comes from the proposal in the latest federal budget to tax “Work in Progress” (“WIP”). When it was announced earlier this spring, lawyers across the country were greatly and justifiably concerned. Here is why, and here is how the CBA responded. While most taxpayers must include the value of WIP in calculating income for tax purposes, certain professionals – lawyers, accountants, dentists, medical doctors, veterinarians and chiropractors – may exclude their WIP when computing taxable income, while being able to deduct their costs in the year associated with that WIP. Income is only recognized when the work is billed. This is called billed-basis accounting (“BBA”). While harmonizing tax measures for business is an understandable government goal, there are good reasons why BBA taxation exists for lawyers. Many clients cannot afford to pay legal fees unless they receive a lump sum judgment or settlement at the end of the case. Lawyers have been willing to take chances by acting for them, waiting for potential of payment. Most commonly known is the contingency fee agreement in personal injury cases, but there are many others – persons wrongfully dismissed, denied Workers Compensation Board (“WCB”) benefits, and many parties in family law cases fighting for reasonable property settlement – who cannot pay until their case is over. Lawyers often work for them for years before being paid. Many times, those lawyers also cover the expenses along the way. And sometimes the case does not succeed and they lose it all. If those lawyers must pay income tax for the years before

BARTALK / JUNE 2017

they are paid, while covering their clients’ expenses, many will no longer be able to take these cases. Our citizens, unemployed, in financial distress, will instead be forced into court on their own, or not pursue their legal rights. So when this budget measure was announced, the CBA sprang into action. Rallying members of our Tax Section, Access to Justice Committee and drawing from members, our National office arranged meetings with federal Finance Department officials and the senior political staff of the Ministers of Finance and Justice. They asked us to provide written policy submissions and we also decided to produce a technical report from the Joint CBA-CPA Canada Taxation Committee, comprising CBA Tax Section Executive members and their accounting counterparts who provide technical briefs to Finance on tax issues.

Fortunately, as the first Budget Implementation Act tabled in April does not contain the BBA proposal, we had a window of opportunity to work with government and the Opposition parties to turn the course. Branches and members have acted as well. I have met with MPs from the three major parties. All understood the issue and said they would work within their parties to address it. As of the beginning of May, when I write this, we have scored our first victory. The government has announced that contingency fee agreements will not be included. As there is no assurance of payment, that probability cannot be considered income, but the costs associated with the claim continue as a legitimate expense. As part of our push for access to justice, we will continue to advocate to exclude cases where the lawyer agrees to await payment to assist a client who otherwise cannot afford legal help. It is in work like this that the CBA shines, having the unique mandate and influence to stickhandle potential problems for our profession nationally and locally.

Michael Welsh

president@cbabc.org

EXECUTIVE DIRECTOR CAROLINE NEVIN

The Power of the Many

Why CBA advocacy – and your voice – matters

ave you ever wondered about the CBA’s role in advocating on behalf of Canada’s legal profession? Sure, you pay CBA fees to belong, but perhaps it’s because you like getting free PD through unlimited Sections and online ethics courses. Or, you maximize your professional profile by volunteering, speaking or writing with us. Maybe you support our Access to Justice work at home and around the world, and want to make a difference that way. Or, maybe you don’t pay at all, but happily benefit from everything we do for the profession (if that’s you, THINK about that for a moment, please!). What does it really mean to deliver on “lawyers for lawyers” advocacy in a truly meaningful way? President Welsh has outlined a spectacular recent example in his column: this spring, we put all of CBA’s clout, integrity and

the weight of tens of thousands of lawyers behind a concentrated effort to ask the federal government to revisit “Work in Progress” (“WIP”) tax reform that would inevitably have resulted in unintended negative consequences to the legal profession and to people of limited means. Minutes after the federal government’s new plan was announced, the CBA kicked into action – as it always does when policy or legal matters arise of relevance to our members. We are the only national Association that solely represents the interests of the Canadian legal profession. We have a 100% success rate in achieving Supreme Court of Canada intervention status, and we are regularly invited to appear before both Parliamentary and Senate Committees when difficult legal matters get debated. The media calls us. Members of Parliament and MLAs call us. When there is an important justice or legal concern in the public domain, the CBA is there.

The CBA’s primary role lies in bringing the expertise and influence of 200 staff and 35,000 lawyers across the country to bear on the review of any new policy or law that affects lawyers, legal clients or the administration of justice.

When there is an important justice or legal concern in the public domain, the CBA is there. CBA staff meet regularly with the appropriate civil servants in Ottawa and in capitals in every province and territory, and maintain those relationships through ongoing discussions, even when no specific issue may be on the table. Our credibility and objective expertise opens doors, but it is always personal relationships that make any advocacy organization truly effective. Volunteers and leaders within

the Association also proactively bring forward key issues, and we take their informed counsel and make sure the right people hear their message and any calls to action. The “well-oiled machine” that is CBA advocacy takes on big national issues like money-laundering provisions, solicitorclient privilege, child rights in the law, immigration rights, and the appointment of sufficient numbers of – and diversity of – judges on our courts. Locally, we take that same respectful but dogged approach to issues like notaries scope-ofpractice expansion, Law Society regulation, administrative tribunal amalgamation, and rural access to lawyers. Not to mention really big issues like legal aid funding, no-fault auto insurance... and that damned tax on legal services! All of which we include in this year’s Agenda for Justice (cbabc.org/A4J). Our success as an effective advocate relies on you: as a supporter through your membership, but also through your willingness to share your views and expertise through Sections, Committees and direct communication on issues with your MPs and MLAs. Let us know how we can help.

Caroline Nevin

cnevin@cbabc.org JUNE 2017 / BARTALK

practicetalk DAVID J. BILINSKY

Steps to Guard Your Data The rule of three

One step forward Two steps back Three steps forward, Go! r r

– Music and Lyrics by M. Raw on, B Farara, R. Foss and M. Cox;

recorded by: Coal Chamber.

here are three things that are assured in life: death, taxes and dealing with a hard drive crash. And, like the rule of three in life, the way that you protect your most valuable data is also known as the rule of three. Here it is advised that you have three backup copies of your data: a local copy, a remote copy and a third, protected copy. I know there are those out there who are shaking their heads at the suggestion that you need three copies. But, ask anyone who has been subject to a ransomware attack; they will personally verify the need for all three copies to assure you and your firm that you can shrug off such an attack. The first copy is the one you maintain at the firm level. Here you have either a large hard drive, a Networked Attached Storage Device (“NAS”), or a set of Redundant Array Independent Disks (“RAID”) hard drives, depending on the size of the firm. The idea is to maintain one continuous copy of all of your firm data in one place that captures all data in real time. This local copy is for swift restores in the event of a failure or accidental deletion of an important file. However, since the copy is maintained as part of the network, it is vulnerable to any virus or malware that infests the system, such as ransomware. The second, off-site copy is a duplicate of the copy at the firm level. But it is maintained at a

BARTALK / JUNE 2017

different physical location to provide reasonable assurance that it will survive any disaster that strikes your main location. This way the physical copy can be retrieved and used to rebuild your network in the event of a flood, fire or other calamity. You can maintain a second backup in the cloud but recognize that restoring any reasonable amount of data from an online backup is slow and expensive. It is why most firms would rather backup to another NAS at a secondary physical location; it is cheaper, faster and easier to retrieve a NAS than to wait for a cloud-based restore. The first two methods will guard against most data loss; the one that they may not protect against is the dreaded ransomware attack. In this situation, stealthy software enters your network and begins encrypting your data. Eventually a notice appears on your screen announcing that your data has

been encrypted and demanding a ransom to obtain the decryption key. Worse yet there are defective ransomware variants that are not able to decrypt your data even if the ransom is paid. This third copy should have certain attributes. One is that it is only backed up at a time when the network is least busy, say 2:00 a.m. A second is that it is disconnected when the backup is complete; maintaining an “air gap” from your network when it is not needed. The third is that this third backup should be fully encrypted, thereby adding another layer of protection between your data and any possible malware that is looking for it. There is software that will automate the generation of all three copies to ease the burden of doing all this. By the way, this column was written on an iPad as the hard drive in my laptop crashed. My iPad is connected to cloud storage Continued on page 7 >>> The views expressed herein are strictly those of David Bilinsky and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members.

David J. Bilinsky is the Practice Management Advisor for the Law Society of British Columbia. Email: daveb@lsbc.org Blog: thoughtfullaw.com

GO ONLINE FOR MORE INFORMATION

dave’s techtips So what devices and websites are there to help you with your backup strategy?

For Windows or Mac OS’s, it can be connected to redundant power supplies. The drives can be customizable RAID configurations, reducing downtime. Built for the multi-user environment, the data can be 256 AES encrypted, providing an extra layer of security. The ease of configuration as well as the suite of tools provided are also benefits. It is cloud-enabled.

EXTERNAL HARD DRIVES For the solo lawyer, you can pick up a Western Digital My Book HD for Mac or PC. With capacities up to 8TB they are a great solution to back up a single computer. WD and others also make external HD’s in larger capacities.

CANADIAN CLOUD STORAGE There are a number of Canadian based cloud storage providers. Bell Business Solutions, cacloud, Canadian Web Services, Radiant Communications, Cloud A, Cloud Pockets and Netelligent are but a few. But my favourite is sync.com. They offer “zero knowledge” storage (only you know your decryption key and password – don’t lose them as they can’t reset them), end-toend encryption, and they act like an external hard drive, making it easy to use. They also state that they are ransomware proof.

CLOUD STORAGE

NAS DRIVES There are a host of NAS’s but one that Is highly rated by techradar.com is the Western Digital DL4100. This unit is available in up to 24TB configurations, making it suitable for small business environments.

Web storage sites such as Carbonite, Google Drive, iDrive, iCloud, Mozy or and others are all available to back up your data to the cloud. Check if they will accommodate all your devices, and ensure that your files on your backup device are being mirrored real time. You may need to obtain greater bandwidth to accommodate your new service. Also be aware that these are all US based, if that is a concern.

Continued from page 6

where I can retrieve my documents, write the column and submit it all while waiting for the laptop to be repaired or replaced. There is no

better feeling than knowing that while a hard drive failure is as assured as taxes, this does not mean the death of all your data; often-

times, it just means taking a step or two backwards, retrieving your data from your backup and then taking further steps forward. JUNE 2017 / BARTALK

nothingofficial TONY WILSON, QC

Dare to Be Great

In defence of the CBC in a world of “fake news”

ne of the more interesting museums in the world is in Washington D.C., right next door to the Canadian Embassy. It’s the Newseum, and it’s dedicated to journalism and freedom of the press. In addition to an exhibit of Pulitzer Prize winning photographs and rooms filled with old radio and TV broadcasts, there’s an entire room featuring a section of the Berlin Wall and an East German watchtower from Checkpoint Charlie (where I passed through in 1968 as a 12-year-old spy, interrogated for bringing a telescope across the border. Duh.) The most emotional exhibit though, is the crumpled top of the broadcast antenna from the World Trade Center, with a video showing how the news was covered that day. In addition to the big newsy exhibits, there are little gems scattered throughout the Newseum. “Anyone who reads the tabloids deserves to be lied to,” read one prophetic sentence on a wall. A small board in a hallway asked visitors to voice their opinion using stickers to be affixed to the board: “Should Twitter be forced by a court to reveal the identity of a Trump critic?” On the “NO” side were an overwhelming number of stickers, but I was flabbergasted by how many stickers were on the “YES” side; suggesting to me that freedom of the press is fragile. There’s a Time Warner truck riddled with bullet holes from the Bosnian War on display, reminding us that journalists are routinely jailed and even murdered for reporting the news. The plight of Mohammed Fahmi, a Canadian-Egyptian citizen arrested and jailed on trumped up charges in Egypt for broadcasting false news and not having a “journalism license” (which was only available to print journalists!) is just one example. And, if you’ve read Pomerantsev’s “Nothing is True and Everything is Possible,” you’ll see how Russia’s television media is just a

BARTALK / JUNE 2017

propaganda instrument for Vladimir Putin. Regrettably, freedom of the press means we also have to put up with the National Enquirer and its ilk, the psychotic Alex Jones, and Fox News; a network that has become a propaganda organ for the GOP and Donald Trump (when it isn’t fighting sexual harassment allegations). When these kinds of outlets don’t like facts, they make accusations of “liberal bias,” or they create alternate facts, which are reported on by other media and believed by people who want to believe that Obama is a Muslim because he’s black. (And behold, Internet trolls are born!) In that vein, it’s irritating when Canadian politicians like Kellie Leitch (famous for her “Barbaric Cultural Practices Tip Line” and the “Canadian Values Test”) vow to dismantle the CBC, ostensibly surrendering our airwaves to even more NFL, NBA, US sitcoms and reality TV shows. The CBC can be faulted for many things, (particularly TV drama), but

not its documentaries and news coverage. Radio 1 may well be among the best radio news networks in the world. “As It Happens,” Michael Enright’s “Sunday Edition” and “Ideas” are three examples of excellence in broadcasting. There’s also “Go Public,” which has exposed stories that include abuse by the Canadian Armed Forces on its soldiers, and staff at Canadian banks being pressured to award credit cards to customers who can’t afford them. Reporters like Rosemary Barton, Margaret Evans, Nahlha Ayed, Erica Johnson, Rosa Marchitelli and Adrienne Arsenault (to name only six) are as good as any of the top journalists on CNN, ABC, CBS or the BBC. For those who say that the CBC should be dismantled, I say the news arm of CBC should actually be expanded, and the CBC should strive to become as important, as watched, as listened to and as relevant as any other English language news broadcaster in the world; a welcome alternative to the perspective of the US networks, which more often than not, only report news about America, Americans and America’s adversaries. Now, if only the CBC played more classical music and jazz on Radio 2 like they used to. Tony Wilson, QC is a franchise lawyer at Boughton in Vancouver and a Bencher of the Law Society. The views expressed herein are strictly those of Tony and do not reflect the opinions of the Law Society, CBABC, or their respective members.

guest MICHAEL BUTTERFIELD

Fast Track Arbitration Building just, speedy and cost effective resolution

n the commercial world, lawsuits can take the focus away from the business, strain cash flow, and drain entrepreneurial energy. The longer that the dispute drags on, the more damage there is to the enterprise. Arbitration offers a faster alternative to litigation. While some arbitrations can take an extended period of time, the ability of the parties to select what process applies to their arbitration means that they can select rules which fast track their arbitration. ADR Canada (“ADRIC”) “Arbitration Rules” provides for fast track arbitration under the Simplified Arbitration Procedure. These arbitrations can generally be concluded within three months; the goal being a just, speedy, and cost effective resolution. The following are the key features of the Simplified Arbitration Procedure under Rule 6.2 of the ADRIC Rules. The goal of fast track arbitration is to balance the requirements of justice with the need for speedy resolution. A speedy resolution, which is unfair, is unjust. Unlike the court process, the arbitrator is actively involved in designing the process and ensuring fair treatment. The arbitration is made up of a single arbitrator (6.2.2. (a)). The parties exchange statements within 10 days of the arbitrator being appointed (6.2.2. (b)). These requirements are described in Rule

4.10. The statements lay out the nature of the claim, the defences, and counterclaim, if appropriate. This also includes the exchange of digital copies of any documents to be relied upon in the arbitration. Preliminary matters under Rule 2.3 must be completed within 90 days of appointment. However, the goal should be within 45 days in order to conclude proceedings within three months. These include procedural issues but also such relief as interlocutory injunctions and security against judgment. There are no oral discoveries unless the parties agree, or at the arbitrator’s discretion (6.2.2. (d)). There are no transcripts of the proceeding (6.2.2. (e)). The approach to oral evidence is also streamlined. Evidence is presented in affidavit form in lieu of evidence in chief, subject to oral cross examination, and reexamination (6.2.2. (f)). The parties can decide to forego oral evidence completely and proceed solely on affidavits and documents. This is similar to a Chamber’s Application in BCSC. The arbitrator is responsible for maintaining the Record of Arbitration, which includes all documents relied upon in the arbitration: exhibits, affidavits and any

other documents pertinent to the arbitration procedure (6.2.2. (g)). Once the hearing is concluded, pursuant to Rule 4.26.1, the arbitrator must deliver the award and reasons within 14 days. Since arbitrators can withhold their award pending the payment of their fees, it is beneficial to ensure all deposits are paid in advance. In many cases, the arbitrator will offer a flat fee for service. The fundamental benefit of arbitration is that the participants control the process. By selecting the appropriate rules, the parties can ensure speedy and just resolution. The goal of every arbitration is to let the parties get back to what they do best – building their business. PRACTICE TIPS Select

an arbitrator who has experience in the area of business under dispute. Many arbitrators are not lawyers, but process significant expertise in any given area. In many commercial arbitrations, the cases turn on complicated or esoteric fact patterns. Having someone who understands the nuances of an industry is essential. Use the initial meeting to determine timelines and select appropriate rules of arbitration. For example, there are specific rules for certain industries like the “Rules for Mediation and Arbitration of Construction Disputes” produced by the Canadian Construction Document Committee. Michael Butterfield is a Victoria, BC-based ADR professional and past president of the CBABC ADR-Victoria Section. JUNE 2017 / BARTALK

sections SECTION UPDATE

Keep Current A review of provincial Section meetings Labour Law Meeting in Review: March 28, 2017 Speaker: Diane MacDonald, BC Teachers’ Federation, and John Rogers, QC – Victory Square Law Office LLP Topic: The Supreme Court of Canada’s Decision in British Columbia Teachers’ Federation v. British Columbia, 2016 SCC 49

Labour Law Meeting in Review: December 14, 2016 Speakers: J. Geoffrey Howard, Roper Greyell, Martin Sheard, Tevlin Gleadle Curtis, and J. Berry Hykin, Woodward & Co. Topic: The Supreme Court of Canada’s decision in Wilson and Atomic Energy of Canada and its Implications for your Clients

Municipal Law Meeting in Review: December 6, 2016 Speaker: Alyssa Bradley, Partner, Young Anderson Topic: BC Court of Appeal decision Cowichan Valley (Regional District) v. Cobble Hill Holdings Ltd.

Labour Law MacDonald and John uDiane Rogers, QC, counsel for the BCTF, discussed the long road to the Supreme Court of Canada and the comparatively short proceeding before the Court. They spoke to the implications and implementation of the decision by which the majority of the Court held that the Education Improvement Act, S.B.C. 2012, c. 3 unjustifiably infringed teachers’ freedom of association under s. 2(d) of the Charter for the dissenting reasons of Justice Donald of the Court of Appeal.

Labour Law BC lawyers Geoff Howard,

uMartin Sheard and Berry

Hykin discussed the Supreme Court of Canada’s recent decision in Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29. They shared their insights and perspectives as counsel to employers, employees, and First Nations respectively. These experienced practitioners provided participants with a summary of the key findings by the Court respecting the unjust dismissal provisions of the Canada Labour Code and the implications that flow from this decision for your clients, be they employer or employee.

Municipal Law Canadian Corporate Counsel Association (“CCCA”) BC Meeting in Review: April 7, 2017 Speaker: Nate Kube, General Electric’s former Chief Technology Officer for Cybersecurity, David Wotherspoon and Nathan Schissel, Partners at MLT Aikins Topic: Cybersecurity and Data Breach

BARTALK / JUNE 2017

Alyssa Bradley discussed the

urecent Court of Appeal deci-

sion Cowichan Valley (Regional District) v. Cobble Hill Holdings Ltd., 2016 BCCA 432. The case dealt with the local government’s jurisdiction over the reclamation of a rock quarry that involved the permanent encapsulation of

contaminated soil in engineered cells. The Cowichan Valley Regional District is seeking leave to appeal the decision to the Supreme Court of Canada. There have also been related hearings before the Environmental Appeal Board. Alyssa represented the respondent, Cowichan Valley Regional District.

CCCA BC The experienced guest speak-

uers brought a practical focus

on the role that corporate counsel can play in (1) helping the company be aware of current cybersecurity risks, (2) proactively preparing for inevitable attacks, and (3) responding in the event that the company is hacked. The discussion included: why cybersecurity is now a key issue in the boardroom and not just the IT department; who is looking to hack you; how hackers find their way in and what they do when they get there; how to respond if you are hacked; corporate governance issues; maintaining privilege over your response; privacy and public relations; catching the hackers; and class action concerns.

CBABC ABORIGINAL LAWYERS FORUM (ALF) On June 16, come and join the ALF in celebrating their 6th Annual Retreat & 10th Anniversary National Aboriginal Day Auction Reception, taking place at the Westin Wall Centre, Vancouver Airport in Richmond. In line with the theme of Aboriginal Peoples and Canadian Law: Taking our Place, the seminar boasts a healthy list of speakers that will be presenting on a variety of topics. Topics featured are: Case-Law Year-in-Review, TRC Calls to Action – Implementation within the BC Legal Systems, Removing Indigenous Meaning from the World – The End Game of Canada’s Colonial Jurisprudence, UNDRIP, Indigenous Legal Traditions and Oral History Panel, and a Judges Panel: Processes and Perspectives – Working Together for a Stronger, More Diverse Judiciary. The ALF will also be recognizing Professor Gordon Christie, UBC Allard Hall. Following this, the ALF will be hosting an evening function to celebrate the 10th Annual National Aboriginal Day Auction Reception, with special entertainment by Candy Palmater, Mi’kmaw Comedian.

SECTION ENROLLMENTS – A CBA MEMBER BENEFIT Need to get CPD hours or legislative updates pertaining to a particular field of law? CBABC Section enrollment is open yearround and you can update your enrollments for any of our 75 Sections. Stay connected! Section Enrollments for the upcoming 2017/2018 term will be autoselected for all current members based on your previous enrollment selections for the 2016/2017 term. Login at anytime to update your enrollment for any of the 75 Sections to receive email notifications for meetings, news, legislative updates and much more.

DID YOU KNOW?

There are no additional costs to enroll in Sections.

During the 2016/2017 CBABC Section Term, our 75 Sections hosted a total of 300+ Section meetings, welcoming 400+ guest speakers from a wide variety of backgrounds and presenting on hundreds of topics of interest to the legal community.

As a CBA member, you get access to all Section meeting minutes, materials, webinar recordings and news and legislative updates, not only for the Sections you are enrolled in, but for all Sections! Login using your membership number and get instant access to these benefits. If you are a CBABC member who has not completed your enrollment for this current term, enroll today to carry over your enrollments for the new term. Stay Enrolled, Stay Informed!

JUNE 2017 / BARTALK

feature KIMBERLY JAKEMAN AND DIONNE LIU

Medical Assistance in Dying: Finding a Balance The debate continues

s we celebrate the 35th anniversary of the Canadian Charter of Rights and Freedoms it seems appropriate to contemplate one of the most significant Charter challenges in recent history. It is particularly apropos as the enactment of Bill C-14, SC 2016, c 3 (An Act to amend the Criminal Code and to make related amendments to other Acts [medical assistance in dying] [“MAiD”]), approaches its first anniversary. The conclusion in Carter v. Canada (Attorney General), 2015 SCC 5 (“Carter”), without question, touches every Canadian. Bill C-14 created an exception to homicide and assisted suicide to allow for MAiD in some circumstances. The debate continues, now shifting to who should have access to MAiD, but the centre of the debate remains the balance between individual autonomy and protecting the vulnerable. Further consideration of whether MAiD will be available for advanced directives, for patients only suffering from mental disorder, and for mature minors is underway but in the meantime the first court challenge was filed in British Columbia only ten days after the Bill was passed. In Lamb v Attorney General of Canada (“Lamb”), the plaintiff challenges the constitutionality of three out of the four criteria Bill C-14 establishes for a grievous and irremediable medical condition. 12

BARTALK / JUNE 2017

The Bill qualifies “grievous and irremediable medical condition” with terms like “incurable,” “advanced state of irreversible decline” and “the patient’s natural death has become reasonably foreseeable.” The claim in Lamb alleges these criteria infringe the ss. 7 and 15 of the Charter of Rights and Freedoms in a manner that is not saved by s. 1. The Attorney General’s response to the claim in Lamb centres around the objectives of Bill C-14, which include protecting vulnerable individuals from being induced to end their lives in moments of weakness and recognizing the public health issue of suicide. The Attorney General pleads the declaration of unconstitutionality in Carter was only with respect to the absolute prohibition

Any clarification from the courts on the criterion required to qualify for MAiD would be welcome to all who consider Bill C-14. of assisted death. The Attorney General says the limits imposed by the eligibility criteria are connected to and not grossly disproportionate to the objectives of Bill C-14

and that any violation of ss. 7 or 15 is saved under s. 1. In Quebec, the Health Minister recently announced the government would be looking at ways to broaden access to MAiD. Quebec will ask the courts to clarify the “natural death has become reasonably foreseeable” criterion, as a result of complaints from professionals that the language is too vague. This is not surprising given that even before the passing of the legislation, there was much debate in the public and in the Senate about what that criterion would mean in practice.

One might conclude that the issues that have arisen since the enactment of Bill C-14 were “reasonably foreseeable” when the government chose to deviate from the language used in Carter. Any clarification from the courts on the criteria required to qualify for MAiD would be welcome to all who consider Bill C-14. Further, the resolution of the Lamb action will be intriguing to watch as the weighing of values continues. Kimberly Jakeman is a partner with Harper Grey LLP and a leading lawyer in the emerging legal field of MAiD. Dionne Liu is an associate with Harper Grey LLP and works closely with senior counsel on matters related to MAiD.

feature TOM POSYNIAK

Cannabis and the Constitution The end of prohibition may be the beginning of new constitutional frontiers

n April 13, 2017, the federal government tabled legislation designed to end nearly a century of prohibition on the production, sale and possession of cannabis. The government’s plan is ambitious and would make Canada the first G7 country to legalize and regulate cannabis. The government’s scheme on cannabis is actually two bills. Bills C-45 (the “Cannabis Act”) and C-46 (an Act amending the Criminal Code). The Cannabis Act would create a regime governing the legality of possession and sale of cannabis, the licencing of producers, and rules on how cannabis may be advertised. The provinces and territories would be responsible for setting up a legislative regime for the distribution and sale of cannabis, subject to the minimums set out under the Cannabis Act. Bills C-45 and C-46 would also create new criminal offences for those who provide cannabis to youth and create a system for roadside testing for cannabis impairment and new penalties for all those offences. Whether one agrees with the government’s legislation or not, it is a reasonably safe bet that it will result in years of constitutional challenges. There is no doubt that the federal government has the power to determine what is criminal and what is not. To be sure, the Bills do set boundaries of criminal behaviour;

Parliament was careful enough not to try to directly regulate the sale or distribution of cannabis. It had tried this with alcohol, which resulted in decades of constitutional battles. But, wherever the federal government ventures into “purely” regulation, the more it will be open to constitutional challenge as trenching on provincial jurisdiction over property and civil rights. Recent cases suggest that the criminal law power is not as broad as once thought, particularly where Parliament invokes its power to make laws to protect public health.1 Such laws must be directed to something “inherently” harmful. While the government has tried to make the case

The government’s plan is ambitious and would make Canada the first G7 country to legalize and regulate cannabis. that cannabis is just that, one can expect a challenge to the apparent contradiction that if cannabis is not harmful enough for a total prohibition, how can such activities justify a regulatory regime? Even though the federal government avoided trying to regulate the sale and distribution of cannabis,

this does not mean there will not be any friction between the federal and provincial schemes. The provinces are entitled to restrict sales or raise the minimum age for use and possession. A coming constitutional battle may involve the provinces either trenching on the federal criminal scheme or enacting laws that frustrate the Cannabis Act’s purpose or are in conflict with its rules. Beyond federalism issues, Bills C-45 and C-46 could also present Charter issues. To name just two examples, under the Bills, police may demand a roadside saliva sample to test for cannabis, which could then support a reasonable suspicion of impairment and further testing, which raises issues under section 8 of the Charter. The Cannabis Act also contain restrictions on advertising to children. The devil will be in the details here, and the regulations on advertising have yet to be developed. A restrictive regime, like the one for tobacco, may encourage the cannabis industry to bring a challenge against these rules as infringing on commercial expression. The breadth of the legislation and the coming regulations mean that there is a potential for many more legal challenges. For constitutional-law observers, this is an exciting prospect as a formally “yes” or “no” question of prohibition has become an expansive frontier of constitutional law and policy. Reference re Assisted Human Reproduction Act, 2010 SCC 61. 1

Tom Posyniak is a litigation associate at Blake, Cassels & Graydon LLP. JUNE 2017 / BARTALK

feature KIM HAWKINS AND RAJI MANGAT

Scaling Up to Systemic Change and Constitutional Cases Legal clinics as future change-makers

hose working in the not-for-profit sector are familiar with having to do more with less. But the challenges of notfor-profit work come with many opportunities for innovative partnerships and projects. One such opportunity is forming partnerships between student legal clinics and social justice organizations advocating for systemic change. When most lawyers think of legal clinics, they imagine a place where budding lawyers learn practical skills necessary for a successful career: file management, client interviewing, affidavit-drafting, gaining confidence in the courthouse, and navigating forms and procedure. While these are all important skills for students to gain, they are not all that students learn in a clinical experience. At their best, legal clinics provide opportunities for students to critically reflect on the role of law in society: how the law shapes individual rights and responsibilities, and the obligations owed by society and the legal profession to members of marginalized communities. By drawing on feminist, critical race and decolonization theories, legal clinics offer students the space and tools to begin integrating an analysis of power structures into their legal practices and professional identities. This work happens alongside the essence of clinical practice: direct service to individual clients.

BARTALK / JUNE 2017

And students very quickly realize that the access to justice needs of the communities they serve far outstrip any clinic’s individual capacity. To that end, legal clinics are fertile ground for innovation: they equip students with the tools to see the forest and the trees. As clinicians, students work on dozens of files in a particular area of law and develop considerable expertise. Equally, students begin to broaden their perspectives and move from viewing individual client files as discrete, unconnected matters to situating their clients’ legal problems into broader social and political structures, and to appreciating the ways in which a client’s “legal” problem may be only one of many barriers. It is this deepening and broadening of perspective that is critical for students to identify how clients’ equality and other fundamental constitutional rights may be engaged, and creates the potential for student clinics to “scale up” to systemic responses. Clients of legal clinics are among those most excluded from meaningful access to the justice system, and that is no less true when the cause of their legal problem engages the potential infringement of constitutional rights and obligations. While these clients (and

society at large) may benefit greatly from advancing novel, untested legal arguments to address the systemic roots of disadvantage, they are the least able to pay the significant costs (financial and otherwise) of such advocacy. Many practising lawyers (let alone law students) balk at the prospect of mounting such cases on their own. However, with this challenge comes opportunity. Working together, legal clinics and nonprofits are well positioned to secure social change; they can inspire and support one another in

seeking lasting solutions – inside and outside the courtroom – to issues impacting dozens of clients. Drawing on the expertise of social justice organizations – their ability to galvanize community and media resources, mobilize pro bono counsel, engage in law reform, and shape constitutional arguments – student clinicians may be provided with unique opportunities to assist in developing the cases that will populate the legal textbooks of tomorrow. Kim Hawkins is the Executive Director of Rise Women’s Legal Centre, a student clinic providing family law services to women. Raji Mangat is the Director of Litigation at West Coast LEAF and serves as Liaison Lawyer to Rise Women’s Legal Centre.

feature MONIQUE PONGRACIC-SPEIER

The Difference a Case Makes

Three social justice lessons from Insite

hen Insite, North America’s first lawful supervised drug consumption site, opened in Vancouver in September 2003, it was an experiment in intergovernmental cooperation. The experiment succeeded until a change in government at the federal level in 2006 threatened to bring it to a close. Fearing that receding federal cooperation would force Insite to shutter, legal actions were brought to keep the facility open. The actions were hard – even bitterly – fought, but they succeeded. Insite remained open. The current fentanyl overdose crisis started in the wake of the decision in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 (“Insite”). The tenor of governmental response to the fentanyl overdose crisis is quite different from the pitched battle over Insite. Gone are the days when a Minister of Health might question whether supervised injection is health care, or challenge the ethics of physicians who practise harm reduction, as a former Minister of Health did in a speech to the Canadian Medical Association in 2008. Did the Insite case play a role in this change? The following are three observations.

1. FACT-FINDING MATTERS

A key element of the opposition to Insite was the idea that drug use is a choice: people who habitually use addictive drugs can choose not to use them. The trial court in Insite found differently. Justice Pitfield reached an “incontrovertible” conclusion: addiction is an illness, marked by “the continuing need or craving to consume the substance to which the addiction relates.” With this finding of fact, debate about an essential feature of addiction withered. The law’s confirmation of what medicine had already concluded helped frame the starting point of the state response to the fentanyl overdose crisis: the question is not whether people addicted to drugs will use them, but when and how. So, what lesson does Insite teach? The law’s imprimatur on questions of fact is meaningful in matters of social justice. 2. THE LAW MATTERS

Insite confirmed that the state’s response to drug use is not simply a policy question. Instead, a law or government action that puts a person’s life or health at risk by blocking access to health care will engage s. 7 Charter rights. From a social justice point of view, the restatement of this principle,

first articulated in R. v. Morgentaler, [1988] 1 S.C.R. 30, is of central importance. By confirming that state response to drug use is a matter of legal concern, Insite drew people who usually find themselves at the law’s edges within its protection, and decisively extended the benefits of the rule of law to people more traditionally seen as law-breakers. This is a powerful change in perspective. 3. THE COURTS CANNOT FIX EVERYTHING

While litigation can be a powerful tool to advance social justice, Insite also shows some of its limits: it is up to governments, not courts, to respond to the crises of the day. The courts’ job is to ensure that state action is constitutionally valid. As the current fentanyl overdose crisis has shown, governments will wrangle with each other over appropriate responses, their timing and their ramifications. For the most part, this is beyond the courts’ ken. Lawyers, not surprisingly, like legal fixes. But reflecting on the Insite case from the vantage point of the current overdose crisis serves as a reminder that social justice must ultimately be realized through governance. We, as lawyers, must keep our eyes first and foremost on that process. Monique is a partner at the Ethos Law Group LLP and was counsel to the plaintiffs in Canada (Attorney General) v. PHS Community Services Society. JUNE 2017 / BARTALK

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feature LISA GLOWACKI

Nationhood and Aboriginal Rights R. v. Desautel (2017 BCPC 84)

n March 27, 2017, the BC Provincial Court released R. v. DeSautel, a significant decision in which the Aboriginal rights test is applied where the creation of Canada geographically severs the ancient territory of Aboriginal Peoples. Mr. DeSautel is an American citizen and member of the Lake Tribe in Washington state. He was charged with unlawful hunting in British Columbia and successfully raised an Aboriginal rights defence based on the pre-contact hunting practice of the Sinixt people. Judge Mrozinski found that the pre-contact Sinixt utilized a territory along the Columbia River from north of Revelstoke south to Kettle Falls, Washington. That territory was divided by the establishment of the Canada-US boundary. Most Sinixt moved to the American portion of the Sinixt territory, with few Sinixt remaining in British Columbia. For some time, Canada recognized an Arrow Lakes Indian band, which included Sinixt peoples, and allotted a reserve to the band, but declared the band extinct in 1956, after the last remaining member died. Nevertheless, some Sinixt people continued to live in British Columbia with membership or affiliation in different bands (mainly Okanagan). In the United States, 18

BARTALK / JUNE 2017

Sinixt were and are members of the Lake Tribe. According to the judge, it was indisputable that at contact with Europeans, hunting throughout their territory was an integral feature of Sinixt culture, founding the basis for an Aboriginal right. The issues in the case, therefore, dealt with continuity of that practice to the modern right, and, the ability of Mr. DeSautel, an American with membership in an American tribe, to hold an Aboriginal right protected by section 35 of the Constitution. The judge’s “continuity” analysis addressed the connection between the Sinixt’s pre-contact practice of hunting throughout their whole territory and the claimed modern right to hunt in BC. She found that numerous historial events impacted their ability to continue to hunt in BC, including depopulation, the establishment of the border and an 1896 law that prohibited non-resident Indians from hunting in BC. Although after about 1930, Sinixt did not hunt in the BC portion, their recollections of hunting and attachment to that territory in BC remained important. Taking into consideration the larger historical forces at work and that ongoing connection of the Sinixt, the fact

that the Sinixt did not physically hunt in BC for those decades did not break the chain of continuity or undermine their right. The other element of continuity in the case relates to successorship of the Lake Tribe to the Sinixt pre-contact practice, and specifically, whether an American citizen with US tribal affiliation can claim a right under s. 35, which protects the rights of the Aboriginal Peoples of Canada. The judge found that s. 35 was not meant to exclude rights on the basis of nationhood. Rather, the “of Canada” element, in this case, was established by identifying the existence of an Aboriginal Peoples at contact, along with their continued existence as a group in Canada into the twentieth century, with some descendants remaining still in the country. The judge did not require (or need to decide whether there was) a Canadian successor group to hold the right. The conclusion that the Lake Tribe was a successor to and holder of the Sinixt Aboriginal right does not necessarily preclude other First Nations or collectives in Canada from also doing so. It will be interesting to see how or if these issues play out, not only in the Crown’s appeal, but in future Crown consultations with the Lake Tribe (which appears to be a new circumstance for the Crown) as well as with Canadian-based First Nations. Lisa Glowacki is a partner at Ratcliff & Company LLP, where she practises Aboriginal, constitutional and environmental law.

feature GILLIAN CALDER

Problem-Based Learning at UVic Law Educating the whole lawyer

common thread tying debates in the academy and practice today is a shared desire to “educate the whole lawyer.” Across spaces of legal learning, questions of how to ensure deep engagement with ethical questions, to centre concerns with access to justice, and to respond to the Truth and Reconciliation Commission of Canada (“TRC”) are pressing and real. And, while there are incredible steps being taken across legal circles to incorporate more opportunities for experiential learning, we are often held back by conversations, lacking in nuance, about a need for more “skills” training. This is particularly so in the context of the first-year curriculum in law school. These questions prompted one constitutional law professor to change their course to centre principles of “problem-based learning.” After consultations with colleagues in the academy and the Bar, alongside a paradigm shifting decision from the Supreme Court of Canada in Canada (AG) v Bedford, and new law from the federal government (Bill C-36) the “problem” the course sought to address was “the problem of prostitution.” Instead of teaching the course by introducing students to principles of law and then evaluating them by hypothetical problem in December and April, the course began by setting out a complex, social, economic, political, ethical and

multi-legal problem. The course was presented to the students as a means through which to assess how to effectively address complex social issues using constitutional law and policy while developing their skills as ethical professionals. Through problembased learning, the course addressed some ongoing concerns with introductory legal teaching. The first was how not to compartmentalize federalism, Indigenous laws, and the Charter, three enormous areas of law addressed in constitutional law. By using a thick, messy and boundary-challenging problem like the sex trade the integrated questions of jurisdiction, colonialism, and rights remained present throughout all components of the course.

... a client’s situation and needs do not come neatly categorized in compartments of contract, tort, common law, statutory law and so on. Real life problems require imagination, creativity and intellectual flexibility.1 The second was how to develop skills in first-year students that are integral to the ethical professional: including creativity, imagination, empathy, collaboration,

and critical thinking. This entailed challenging the pedagogy used in each class: creating a flipped classroom through podcasts, more guest speakers, visual and literary arts, more access to legal advocates, and more examples of differing forms of legal writing. It also meant integrating evaluative methods into the learning of the course, rather than leaving them as a means of assessing a mark at the end. Using assignments that asked students to work together, to write creatively, and ultimately to draft facta that challenged, defended or intervened in a court action on Bill C-36, moved them beyond issue-spotting to problem-solving. Ultimately, ensuring that the human “problem of prostitution” was before the students made it possible to teach the integrated and difficult questions of federalism, colonialism and rights with heart. Educating the whole lawyer is a collective endeavor, one that the academy shares with the Bar. Similar work is necessary for responding to the TRC with integrity. Teaching law as a series of integrated problems is one unique way to bring out the best in our students, to have hope in tomorrow’s lawyer and to transform our educators along the way. Julie Macfarlane and John Manwaring, “Using Problem-Based Learning to Teach First Year Contracts” (1998) 16(2) Journal of Professional Legal Education 271-298 at 277. 1

Gillian teaches Constitutional Law and Family Law at UVic Law where she presently serves as Associate Dean, Students. JUNE 2017 / BARTALK

feature PATRICIA COCHRAN, JANNA PROMISLOW AND DEBRA PARKES

The Future of the Charter of Rights and Freedoms u We asked three law professors, one from each law school in BC, to answer one question — Where do you see the Charter

going and how do you see it influencing society in the next 35 years? — Here are their responses: UVic Patricia Cochran is an assistant professor at the Faculty of Law, University of Victoria where she teaches and researches constitutional law, evidence and legal theory.

The Charter is the textual home for the constitutional protection of individual rights and freedoms. Over the 35 years since its entrenchment, much of its interpretation has been dedicated to working out the role of courts in modulating the balance between the rights of individuals and the constitutional authority of the state to make laws in the broader public interest. This intellectual framework for thinking about the Charter – individual rights vs. democratic legislatures – will always have an important role to play in a liberal democracy. However, many of the most pressing justice concerns facing Canadian society are complex problems with an undeniable collective component; they are problems that have deep historical 20

BARTALK / JUNE 2017

context and implicate relationships beyond the individual’s relationship to the Canadian state. Among these complex problems are the challenges posed by climate change, deepening and persistent poverty for some communities in a wealthy society, and the building of respectful relations between Indigenous and settler communities. I suggest that the Charter will be useful to us in coming years and generations to the extent that it facilitates our collective engagement with these kinds of problems, as well as problems that speak more squarely to the state-citizen relationship. Thinkers and commentators from many disciplines suggest that one way to imagine this possibility is to think directly about relationships as the key concept in constitutional rights, an approach advocated by thinkers from a wide variety of disciplines. This would include the relationship between individuals and the state laws that bind and affect them. It would also include relationships between the legal orders that claim to have authority over individuals.

Moreover, this approach calls on us to question the constitutional relationships at stake when we talk about the natural environment. Focusing on relationships is useful in part because it opens Charter law to conversations about both substance and procedure. The quality of a relationship is judged, not only by the outcomes it produces, but by the nature of the interactions between the parties along the way. For its next 35 years, the Canadian Charter of Rights and Freedoms has the potential to help us build those respectful relationships, if we are able to draw out its wisdom in focusing on both the content of rights and the practices we engage in to uphold them.

TRU Janna Promislow is an associate professor at Thompson Rivers University, Faculty of Law.

Early critics of the Charter warned of the judicialization of politics. Each year, I see the critics’ concerns animated by the new crop of law students mostly in their 20s.

These students are optimistic about what Charter rights signify and can achieve for Canadian society, but largely disinterested and egregiously under-informed about that other lawmaker − the legislature. For better or worse, the Charter influences politics not just directly but also through education about law, government and society in general. The required response is not a rejection of rights-based politics – that ship has sailed! Instead, educators need to instill increased sophistication around the structural limitations of Charter rights, institutional competencies, and more creative and pluralistic notions of the rule of law and law reform. The structural limitations of our Charter are taking root. While the Supreme Court has boldly required significant positive action from government in response to its decisions in some areas (for example, in the realm of criminal law; e.g., R v Jordan, 2016 SCC 27, advocates seeking recognition of social and economic rights appear to have hit a wall; e.g., Tanudjaja v Canada (AG), 2014 ONCA 852. Environmental advocates are calling for an amendment to add a right to a healthy environment to the Charter to overcome this wall (see David Boyd et al and the Bluedot campaign). The ability of any such amendment to deliver the desired results is, of course, debatable, especially in light of the limited impact of Charter rights on distributive justice. A similar wall is being confronted in relation to s. 35 Aboriginal rights. If Indigenous claimants succeed in establishing greater livelihood rights under s. 35, such developments may serve to delineate the distinctive historical and redistributive purposes of

s. 35 rights more clearly from their Charter cousins. Away from headlining issues and cases, the influence of the Charter continues its steady march into administrative realms and will continue into Indigenous contexts as self-government finally gains traction. Such developments will push the justification analysis to evolve beyond the Oakes test, an evolution begun by the Court in Doré and Loyola High School. Protecting constitutional rights through judicial review on a deferential standard is an admittedly challenging proposition, seemingly opposed to demanding rigour in the protection of constitutional rights. Nevertheless, a strong and distributed rights culture is the best direction forward to counteract the political inertia that potentially accompanies an over-reliance on the judiciary as the pinnacle of rights protection.

UBC Debra Parkes is a professor at Peter A. Allard School of Law, The University of British Columbia and Chair in Feminist Legal Studies.

After 35 years, the Charter remains popular among Canadians. In a recent poll, it was named the top Canadian symbol (ahead of the flag and hockey). Our entrenched Charter – and a judiciary that has grown comfortable in its role of enforcing it – has struck down laws prohibiting abortion and assisted suicide. Same-sex relationship recognition, including equal marriage, came to us through Charter decisions, with legislatures and Parliament compelled to follow. However, the existence of a “Charter culture” should not be taken for granted. There are recent

examples from our own country and from south of the border of political leaders publicly undermining the role of the judiciary in interpreting and enforcing constitutional rights. These attacks often go hand in hand with populist fearmongering and the targeting of racialized others. How durable the Charter will be as a check on state power over the next 35 years depends on the culture that is fostered in the judiciary, the Bar, the media, and among legislators and the broader society. Meanwhile, deep inequality persists in Canada. The gap between the rich and the poor is pronounced and growing, with nearly five million Canadians living in poverty. The mass incarceration of Indigenous people is getting worse, not better. The gender wage gap has widened in recent years. The earth’s climate is changing at an alarming rate and our governments are reluctant to take meaningful action to address it. Looking ahead to the next 35 years, I am interested in the unfinished business of the Charter. Recent decisions have closed the door on claims that state failure to meaningfully address poverty and homelessness are rights issues. With few exceptions, our courts have failed to grapple with systemic racism. Young Canadians, in particular, are demanding action on the environment and see it as a rights issue. It is heartening that we have seen a willingness on the Supreme Court to revisit earlier Charter precedents to account for societal and legal change. To be sure, these problems do not have easy solutions in the courts, but seeing them as issues of rights changes the conversation and requires state action to address them. JUNE 2017 / BARTALK

news&events LAW WEEK 2017 RECAP MEET THE CHIEFS STUDENT FORUM

L-R: Chief Justice Hinkson of the Supreme Court of BC, Madam Justice Saunders of the BC Court of Appeal, Ian Hanomansing (host of CBC News Network) and Chief Judge Crabtree of the BC Provincial Court.

On March 28, 2017 a small group of high school students met with Chief Justice Christopher Hinkson of the BC Supreme Court, Madam Justice Mary Saunders of the British Columbia Court of Appeal and Chief Judge Thomas Crabtree of the BC Provincial Court to talk about what really matters to young people in BC. The event was hosted by Ian Hanomansing, host of CBC News Network, and taped in CBC’s Studio 700. Students had an exclusive opportunity to ask questions, interact with the province’s top judges, and have their opinions heard. View the video

BARRY SULLIVAN LAW CUP WINNER

2017 winner, Kalith Nanayyakara of Johnston Heights Secondary School accepts the Barry Sullivan Law Cup from Bill Veenstra, CBABC Vice-President and members of Mr. Sullivan’s family. 22

BARTALK / JUNE 2017

VICTORIA

Some of the cast of the Victoria Law Day mock trial, Zootopia.

NATIONAL MAGAZINE

Rules of the Road: How Are We Going to Regulate Autonomous Cars? Canadian regulators pondering the possibility of a truly autonomous car future must grapple with two alternate realities — one where the necessary technology is right around the corner and the other where it’s way down the road. Either way, the question is how safe is safe enough, and at what cost? Apart from the actual mechanics of driving, there is no shortage of challenges that full car automation may cause, with the threat of hacking and privacy infringement topping many experts’ list. It is also unclear how even the best driverless cars — in huge numbers — would perform in mixed traffic, with unpredictable humans on foot or behind the wheel, or what the impact they would have on society. “Regulators are surely underestimating the near-term turmoil,” said Prof. Ian Bogost at Georgia Institute of Technology, in an email. “This will not be a smooth technical transition.” So what would happen if autonomous cars are sold with technology that isn’t truly up to speed and regulators take a lax attitude? Some speculate that expense and unreliability of operating such vehicles, including finding the necessary insurance, will likely curb people’s enthusiasm. “It will start out in the very high end and it will be very expensive,” said York’s Jenkin. “It may also be very annoying when the car says it can’t handle a situation and has to pull over.”

Read full article

LAW WEEK 2017 RECAP

Dial-A-Lawyer Day Stats

NOTICE TO THE PROFESSION

USE OF A SUPPORT PERSON IN CIVIL AND FAMILY PROCEEDINGS April 10, 2017

PURPOSE

The objective of this Notice to the Profession is to outline the guidelines for using a support person (also referred to as a courtroom companion or “McKenzie friend”) in Provincial Court small claims or family proceedings.

As part of Law Week 2017, Dial-ALawyer Day (“DALD”) operators answered 438 calls, and of those, 20 lawyers picked up a record of 325 calls and provided free legal advice.

SYSTEM STATS

Total Incoming Calls Total Directed Calls

2017 2016 438 325

370 280

Total Callers Male Female

358 161 197

317 136 181

Areas of law Family Wills, Estates & Trust Immigration Tort & MVA Employment Business Real Estate Collection Taxation Condo/Strata Residential Criminal Insolvency Other

112 78 35 31 27 21 17 11 9 8 5 4 3 13

66 85 19 20 27 18 n/a n/a n/a n/a n/a 12 n/a 23

How the callers heard about DALD Media Paper Word of mouth Website LRS/CBABC Facebook/Twitter SUCCESS Other (Courthouse,

104 96 52 24 20 17 13 32

128 32 16 48 5 12 18 58

SURVEY STATS*

Library, LSS, etc.)

*Stats are based on CASH+ reports and operators’ notes.

NOTICE

1. Unless a judge orders otherwise, a litigant may have a support person sit with them in a Provincial Court small claims or family trial or hearing except for: a. small claims settlement or trial conference; or b. a family case conference. 2. A support person may be a friend or a relative. 3. A support person must not be someone who: a. may be a witness in the hearing or trial; or b. is paid for their services. 4. A support person may provide the following help in court: a. taking notes; b. organizing documents; c. making quiet suggestions to the litigant;

d. providing emotional support; and e. any other task approved of by the judge. 5. A support person shall not address the court, or speak on behalf of the litigant except in exceptional circumstances and only with the advance permission of the judge. 6. A judge may refuse to allow a support person to sit with a litigant where the presence of the support person could be or becomes disruptive to the proceedings or would otherwise be unfair to an opposing party. 7. A support person may be allowed to attend a small claims settlement or trial conference or family case conference, with the permission of the judge, and usually only where the opposing party agrees. If the support person is not allowed to attend, the litigant may ask the judge for a break during the conference to speak to their support person outside the conference room.

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news&events CBABC WLF NEWS

2017 CBABC Women Lawyers Forum Awards Dinner Gala More than 450 people packed the Fairmont Waterfront Ballroom on April 27 to congratulate Linda K. Robertson for being bestowed the CBABC WLF Award of Excellence and Rachel Mockler with the Debra Van Ginkel, QC Mentoring Award. The honourees each addressed the packed room with words of wisdom, inspiration and good humour. In addition, guests had the pleasure of hearing the candid and very inspiring remarks of one of Canada’s foremost criminal law lawyers, Marie Henein. It was truly a night to remember – congratulations to the 2017 award winners!

Upcoming Events BOOK CLUB The next WLF book club meeting will be held on Wednesday, June 7, 2017 at 5:30 p.m. to discuss the book, “Nice Girls Don’t Get the Corner Office – Unconscious Mistakes Women Make That Sabotage Their Careers.” Linda K. Robertson will facilitate the discussion. Space will fill up fast, so please register early to avoid disappointment!

AGM The CBABC WLF will hold its annual general meeting on Wednesday, June 14, 2017 at the Metropolitan Hotel, Vancouver. This year, we are thrilled to announce that our guest speaker will be Dr. Constance Isherwood, QC. Ms. Isherwood was the recipient of the 2016 Law Society Award, which honours the lifetime contributions of exceptional lawyers. She has been breaking barriers throughout her legal education and career, including being one of only six women in her graduating class at UBC law school, being the first woman to receive the Law Society gold medal, and now, the first woman to receive the Law Society of British Columbia’s highest honour for lifetime achievement. We hope you can join us at what is sure to be an incredible evening.

NEWS

CLEBC Update SUMMER SERIES 2017 Summer is finally here and whether you’ll be in the office or on vacation, things are usually (and thankfully!) slower during this time of year. So, take advantage of lazy summer days by completing your CPD requirements at a more leisurely pace, before things get busy again.

BARTALK / JUNE 2017

From July 21, 2017 to August 3, 2017, CLEBC will be rebroadcasting webinars of some our most popular recent courses in our upcoming Summer Series 2017. All Summer Series rebroadcasts are accessible from the convenience of your home or office, and allow for live real-time interaction with your fellow course attendees. Below is a just sample of the many courses offered in this year’s Summer Series: July 21, 2017:

Real Property Assessment & Taxation (6 CPD credits)

August 1 and 2, 2017:

Access to Justice for Children Conference (13.5 CPD credits) August 2 and 3, 2017: Basics of Wills and Estate Planning (12 CPD credits) For the full list of Summer Series 2017 courses or for more information, visit cle.bc.ca/summer2017 or call CLEBC customer service at 604-893-2121 today.

BC LEGISLATIVE UPDATE

ACTS IN FORCE

Current from February 22, 2017 to April 25, 2017 The full version of Legislative Update is now only published online and is available exclusively to CBA members at cbabc.org. CIVIL RESOLUTION TRIBUNAL AMENDMENT ACT, 2015, S.B.C. 2015, C. 16 (BILL 19)

Section 1(g), as it enacts the definition of “tribunal small claim” in section 1 of the Civil Resolution Tribunal Act, except as it enacts the words “or 3.3(1)” in that definition, section 3, as it enacts Division 1 of Part 1.1 of the Civil Resolution Tribunal Act, except as it enacts sections 3.2 to 3.4 of that Division, section 7, as it enacts section 11(1)(e) of the Civil Resolution Tribunal Act, except as it enacts the words “or a facilitated small claim” and “or 12.2” in section 11(1)(e), and insofar as section 11(1)(e) otherwise provides that the tribunal may refuse to resolve a claim if satisfied that, if an application were brought, the Provincial Court would grant an order that the tribunal not facilitate the settlement of the claim or dispute. Also, in force is section 8, as it enacts section 12.1 of the Civil Resolution Tribunal Act, section 10(b) and (c), insofar as that section was not brought into force by BC Reg. 171/2016, section 12, as it enacts section 14.1(1) of the Civil Resolution Tribunal Act, section 18, insofar as that section was not brought into force by BC Reg. 171/2016, section 24, section 27, as it enacts Division 5 of Part 5 of the Civil Resolution Tribunal Act, section 30, except as it enacts the words “or a facilitated small claim” in section 58.1(1) of the Civil Resolution Tribunal Act, section 38, as it enacts section 93(2)(c), (d), (i) and (k) of the Civil Resolution Tribunal Act and sections 43 and 44

COASTAL FOREST INDUSTRY DISPUTE SETTLEMENT ACT, S.B.C. 2003, C. 103 Act repealed on March 1, 2017

FORESTS, LANDS AND NATURAL RESOURCE OPERATIONS STATUTES AMENDMENT ACT, 2016, S.B.C. 2016, C. 11 (BILL 12) Sections 1 to 7, 9 to 12, 14 to 16, 18, 21 to 23, 25 and 26 are in force on March 7, 2017. Section 24, as it enacts section 151(2)(e.2) of the Forest Act, is in force March 7, 2017. Sections 32 to 34, 36 to 38, 42 and 45, 49, as it enacts section 108(2) (f.1) of the Wildlife Act are in on March 31, 2017.

BRANCH & BAR

Calendar

JUNE

9 Battle of the Bar Bands — Vancouver 17 Provincial Council — Richmond 20 CBABC PD Seminar: Wine Tasting for Work: The New Liquor Control and Licensing Act — Duncan 21 CBABC PD Webinar: Adoption Law – The Basics and Then Some... 22 Honouring the Late Allan McEachern — Vancouver 29 CBABC PD Webinar: Taking Off with Drones – The Law in Canada

JULY

12 Westminster County Bar Associations Golf Tournament — Surrey

Online Extra Articles

Available for the 1st time at bartalkonline.org Read

Activist Law – Law’s place in the social change toolkit by Laura Track Read

Recognizing the Reality of Refugees – And their efforts to get to Canada by Amy Dhillon

JUNE 2017 / BARTALK

news&events TIPS FROM

THERE’S AN ASKED AND ANSWERED FOR THAT... Did you know Courthouse Libraries compiles uncommonly and commonly asked legal questions in a searchable database called “Asked and Answered”? Originally a private resource created and maintained by Courthouse Libraries BC to help staff answer users’ questions, Asked and Answered continues to grow as we add new items and update older ones. These short questions and answers are quick to read and easy to share with colleagues or clients who might be wondering about a particular issue. There are a number of constitutional law-related questions in the database, including: Where can I find the Notice of Constitutional question? How do I apply for a Constitutional Remedy under Charter section 11(b) for a traffic violation? And many more... Check out the courthouselibrary.ca website to search the database and see what other resources we have to offer in print and online.

BC’s LEGAL HISTORY by Hamar Foster, QC

LOOKING BACK VI: THE FIRST CASE? What was the first formal criminal case in BC’s legal history? One possible candidate dates back to the fur trade, when northern BC was known as New Caledonia (New Scotland). In 1828, HBC Governor George Simpson set out from York Factory with the canoe brigade for an inspection tour of the fur country. They arrived at the newly constructed Fort Langley three months and more than 3200 miles later. En route, Simpson had to adjudicate an assault charge brought against one of the party, who alleged the victim had been “tampering with his wife.” The trial took place at McLeod’s Lake, where Simon Fraser had established the first trading post west of the Rockies in 1805. Simpson appears to have acted under the HBC’s Charter, which authorized the governor and council to “judge all persons belonging” to the Company. He delivered a judgment of “Not proven,” and recommended that the accused not do it again. He also imposed a small fine payable to the victim “under the benign doctrine of the Scotch Law, i.e., Law of New Caledonia.” Given the preponderance of Scots in the upper echelons of the fur trade, I suppose this made sense. The victim, however, spurned the money, so it was “made over to another to buy liquor at the depot” – at least a thousand miles away. The principle was apparently based on Robert Burns: “When neebours anger at a plea / And are as wud* as wud can be / It’s ae the lawyer’s cheapest fee / To taste the barley bree.” The “beauty” of the judgment was that it pleased neither party but “frightened both out of their... evil doing... and had a most wholesome moral effect.” *angry The account upon which the above is based is Malcolm McLeod, ed. Peace River. A Canoe Voyage from Hudson’s Bay to the Pacific... in 1828: The Journal of the late Chief factor Archibald McDonald (1872; facsimile edition by Coles Canadiana 1970).

BARTALK / JUNE 2017

grantsapproved LAW FOUNDATION LAW FOUNDATIONOF OFBRITISH BRITISH COLUMBIA COLUMBIA

$90,000 COMMUNITY CONNECTIONS SOCIETY OF SOUTHEAST BC Travelling Poverty Law Advocate Program

Outlined below is a list of grants adjudicated at the March 11, 2017 Board of Governors’ meeting. Funding totalling $5,395,000 was approved for the following 30 continuing programs: $870,000 COMMUNITY LEGAL ASSISTANCE SOCIETY Major Programs $450,000 BC PUBLIC INTEREST ADVOCACY CENTRE Social and Regulatory Justice Programs $425,000 WEST COAST ENVIRONMENTAL LAW ASSOCIATION Programs and the Environmental Dispute Resolution Fund $415,000 ACCESS PRO BONO SOCIETY OF BC Major Programs $360,000 BC LAW INSTITUTE Program Grant $345,000 JUSTICE EDUCATION SOCIETY OF BC Major Programs $330,000 PEOPLE’S LAW SCHOOL SOCIETY Major Programs $240,000 TENANT RESOURCE AND ADVISORY CENTRE SOCIETY Tenants’ Legal Advocacy Program $175,000 WEST COAST LEAF ASSOCIATION Litigation & Law Reform Program $130,000 WEST COAST DOMESTIC WORKERS’ ASSOCIATION Legal Advocacy Program

$90,000 POVNET SOCIETY PovNet Program $80,000 ATIRA WOMEN’S RESOURCE SOCIETY Legal Advocacy Program $80,000 BATTERED WOMEN’S SUPPORT SERVICES Legal Advocacy Program $80,000 BC CENTRE FOR ELDER ADVOCACY AND SUPPORT Legal Advocacy Program $80,000 DZE L K’ANT FRIENDSHIP CENTRE SOCIETY Legal Advocacy Project $80,000 MAPLE RIDGE/PITT MEADOWS COMMUNITY SERVICES Poverty Law Advocacy Program $80,000 NORTH SHORE COMMUNITY RESOURCES SOCIETY North Shore Legal Advocacy Program $80,000 QUESNEL TILLICUM SOCIETY Legal Advocacy Program $80,000 SHARE FAMILY AND COMMUNITY SERVICES Poverty Law Advocacy Program SOURCES COMMUNITY RESOURCES SOCIETY $80,000 – Poverty Law Advocacy Program $80,000 – Legal Information and Advocacy Program $80,000 TERRACE AND DISTRICT COMMUNITY SERVICES SOCIETY Poverty Law Advocacy Program $80,000 WATARI RESEARCH ASSOCIATION System Negotiator Program

$70,000 WACHIAY FRIENDSHIP CENTRE Wachiay Advocacy Outreach Program $65,000 UPPER SKEENA COUNSELLING & LEGAL ASSISTANCE SOCIETY Advocacy Program $60,000 COMMUNITY LEGAL ASSISTANCE SOCIETY David Mossop QC, Public Interest Articling Fellowship $60,000 MEDIATE BC SOCIETY Major Programs $20,000 UNIVERSITY OF SASKATCHEWAN Native Law Centre $60,000 LAW FOUNDATION GRADUATE FELLOWSHIP Alan Hanna Eleanor Brown Jennifer Doreen Bergman Kyle Andrew McCleery Moira Aikenhead

Funding totalling $710,000 was approved for the following five grants: $200,000 BC CENTRE FOR ELDER ADVOCACY AND SUPPORT Elder Law Clinic $175,000 ENVIRONMENTAL LAW CENTRE SOCIETY, UNIVERSITY OF VICTORIA Environmental Law Centre Clinic Program $175,000 PIVOT LEGAL SOCIETY Homelessness and Police Accountability Programs $80,000 KI-LOW-NA FRIENDSHIP SOCIETY Friendship Society Family Law Advocacy Pilot Project $80,000 QUESNEL TILLICUM SOCIETY Family Law Advocacy Program

JUNE 2017 / BARTALK

professionaldevelopment

WEBSITE: CBAPD.ORG \\EMAIL: PD@CBABC.ORG \\

CBABC Professional Development courses are designed to meet the needs of lawyers while still maintaining the opportunity to network, advance one’s career, practice and business. We pride ourselves on bringing courses to lawyers that will provide the required professional responsibility and ethics, client care and relations, and practice management components for 2017 Law Society reporting.

Upcoming In-Person Seminars Wine Tasting for Work: The New Liquor Control and Licensing Act After hosting a successful webinar and first ever live wine tasting on the new Liquor Control and Licensing Act, the CBABC is coming to the beautiful Vinoteca on the Vineyard in Duncan, BC to host a joint in-person afternoon seminar with the Nanaimo Bar Association. For those who practice in patents and trademarks, and/or have clients that are in the wine, brewing, distilling, hospitality and tourism industry, this seminar is for you. Join Michael Welsh, CBABC President, & former VQA wine judge, and Christopher Wilson, Norton Rose Fullbright, as they explore wine industry legal issues, licensing, trademarks and labelling. This session will be followed by a wine tasting session led by Michael Welsh, where you will indulge your senses with the fine art of tasting and pairing. After the seminar, guests will also have a chance to unwind and socialize during dinner at the restaurant. Date: June 20, 2017 Location: Vinoteca on Vineyard, Duncan, BC Speakers: Michael Welsh, Mott Welsh & Associates and CBABC President; and Christopher Wilson, Norton Rose Fullbright

Upcoming Webinars Adoption Law: The Basics and Then Some... You asked for it and we’ve delivered. Many family lawyers and others end up puzzled when confronted with the unique twists of adoption law. Join Delia Rowsbotham, lawyer and Executive Director of Sunrise Adoption Services and Jasmeet K. Wahid, Partner of Kahn Zack Ehrlich Lithwick LLP who focuses on adoption practice, as they bring us through the twists and turns of adoption law. We will look at domestic, international, stepparent and ministry adoptions. Date: June 21, 2017 Moderator: Meghan A. Maddigan, Law Society of BC Speakers: Jasmeet K. Wahid, Partner, Kahn Zack Ehrlich Lithwick LLP; and Delia Ramsbotham, lawyer and Executive Director of Sunrise Adoption Services

flying and recording information everywhere. Their use is rising in industries like real estate, tourism, film, agriculture, safety inspections, mapping, surveying, construction, forestry, search and rescue, criminal investigations and personal recreation. This webinar will cover key legal issues involved in drone use, such as civil and criminal liability, privacy and trespass. The webinar also includes Transport Canada regulations and best practices for what you legally can and cannot do while operating a drone. Date: June 29, 2017 Moderator: Stuart Rennie, Legislation and Law Reform Officer, CBABC Speakers: Brian Cheng, Lindsay LLP; and Darryl G. Pankratz, Alexander Holburn Beaudin + Lang LLP

Taking Off with Drones: The Law in Canada Have you seen a drone hovering over a park or playground or around the city? These unmanned air vehicles are readily accessible for the public to purchase and operate quite easily. These new devices are capable of

Two Hours of Complimentary PD All CBABC members receive complimentary access to special PD modules that fulfill the LSBC’s ethics/ practice management requirement. E-Learning Ethics Modules 1 & 2 (2 CPD hours)

BARTALK / JUNE 2017

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barmoves Who’s Moving Where and When Yvonne Hsu

Parveen B. Karsan

joined Grandview Law Group LLP in January 2017 as an associate. Called to the Bar in 2004, Yvonne’s practice areas are conveyance, immigration, corporate, commercial, family, wills, estates, and probate.

has founded Karsan Law Group, a boutique firm specializing in tax, trust and estate law. Karsan Law Group has offices in downtown Vancouver and Burnaby, BC.

Brandon Easton

Catharine Herb-Kelly, QC

joined Grandview Law Group LLP in February 2017, as an associate. Called to the Bar in 2009, Brandon’s practice areas are family law, civil litigation, corporate, and estate litigation.

joins Branch MacMaster LLP as associate counsel, practising primarily in the areas of health law, administrative law and adult guardianship.

Yaro Y.N. Gavrylko

Richard Bennett

moved his family law and general civil litigation practice from McEachern Harris & Watkins of Maple Ridge to Laughlin & Company in Port Coquitlam expanding the growing general practice law firm of the Tri Cities.

joined DLA Piper (Canada) LLP as senior tax counsel. With 30 years of tax experience, he will significantly expand the firm’s tax capabilities in serving our domestic and international clients.

Hakemi & Ridgedale LLP is pleased to announce the addition of associates Byron Yep and Nolan Hurlburt to our growing litigation practice. Mr. Yep and Mr. Hurlburt will bring much value and depth to our growing commercial litigation practice in downtown Vancouver.

suite 1500 - 888 dunsmuir street, vancouver hakemiridgedale.com | 604.259.7678

BARTALK / JUNE 2017

Bar Moves space is at a premium and available for free to members on a first-come first-served basis, so send your Bar Move (max. 30 words) and a high-resolution headshot photo to bartalk@cbabc.org now.

TO VIEW ALL BAR MOVES GO TO CBABC.ORG/BT/BM_1706.

Anne M. Stewart, QC renowned corporate, infrastructure and project finance lawyer, joined Fengate Real Asset Investments as a consultant.

newmembers March & April 2017 Associate Joseph Eldridge XENON Law Offices Mohali

Lawyers

Sunny Aujla recently became an associate at Hamilton Duncan where he continues to practise in the areas of corporate/ commercial, commercial finance, franchising and real estate.

Peter Hagel joined Hamilton Duncan as an associate where he continues to advise clients on matters relating to commercial finance and lending, real estate, land development and estate planning.

David Perry

J. Morgan Best Barbeau Evans LLP Vancouver Tanya M. CampbellBrown Larry McCrea Law Corporation 100 Mile House Emerald Chhina Darnell & Company Law Office Langley M. Elizabete Costa Victoria Jane Ingman Baker Singleton Urquhart LLP Vancouver Kelly N. Kim Overwaitea Food Group Langley Bill Olaguera McQuarrie Hunter LLP Surrey

joined Hamilton Duncan as associate counsel, where his practice will consist primarily of insurance defence, as well as some commercial litigation and environmental litigation.

Adam A. Panko Woodward & Company LLP Victoria

Scott Howie

Articling Students

joined Harper Grey LLP as an associate with their Business Law group. Scott was called to the BC Bar in 2014.

Sonia Virk Virk Viyas & Associate Lawyers Surrey

Morgan Baker Borden Ladner Gervais LLP Vancouver Chris H. Lee Borden Ladner Gervais LLP Vancouver

Adrian Petraroia Farris, Vaughan, Wills & Murphy LLP Vancouver Michael Prah Hergott Law West Kelowna Struan Robertson DLA Piper (Canada) LLP Vancouver Avichay Sharon Vancouver Auke Visser Borden Ladner Gervais LLP Vancouver

Law Students Caitlyn A. Fleck Vancouer Clayton J. Gray Victoria David Heinrich Vancouver Nicholas Krishan Vancouver Silvia Macedo Vancouver Steven S. Mangat Surrey Graham May Victoria Ema Quiroga Vancouver Roxanna M. Sabir Abbotsford Michelle L. Sagert Abbotsford Shinpe Saito Calgary Siobhan Small Vancouver Tyler B. Tardi Coquitlam Kimberly Webber Victoria Katelyn M. Willmott Surrey Marta Zemojtel Vancouver JUNE 2017 / BARTALK

RETURN REQUESTED TO: The Canadian Bar Association, BC Branch, 10th Floor, 845 Cambie Street, Vancouver, BC V6B 5T3