BarTalk April 2021 | Diversity & Inclusion

APRIL 2021 | bartalkonline.org

Diversity & Inclusion

SUBSTANTIVE EQUALITY | #METOO MOVEMENT | A BIAS-FREE WORKPLACE

The Canadian Bar Association, BC Branch is proud to present Agenda for Justice 2021, a collaborative roadmap for action with the BC Government.

We offer more than 40 recommendations to improve BC’s justice system and modernize legislation – including legal aid for LGBTQ2S+ communities and increased collection and reporting of data to promote social change. cbabc.org/A4J

Diversity & Inclusion Features

APRIL 2021 Volume 33 | Number 2

Columns

Why Diversity and Inclusion are Important — and Difficult

2

Lisa Picotte-Li

Agenda for Justice 2021: A Roadmap for Action

Jennifer J.L. Brun

5

Diversity & Inclusion in Dispute Resolution Julie Daum

Executive Director

3

An Unwavering Commitment to Equality, Diversity & Inclusiveness

Kerry L. Simmons, QC

Indigenous Matters

8

More Indigenous Business Professionals are Essential to Achieve True Reconciliation

Geordie Hungerford

Practice Talk

4

6

BC Police Act Reform and Substantive Equality Dustin Klaudt and Tasha Lorenzen-Ewing

10

The Impact of the #MeToo Movement on Labour & Employment

Rose Keith, QC

12

Christina Gray and Jessica Asch

The Transitional Space to Learn Indigenous Law “My Lord” and “My Lady” Reconsidered

13

Lisa M.G. Nevens

16

Nikki Gershbain

Avoiding the Revolving Door

18

Working Toward a Bias-Free Workplace at the PPSC

Baljinder K. Girn

19

This is Your Problem Salima Samnani

The Impact of the Indian Farmers’ Movement on Canadians

From the President

20

Changing Methods in Legal Education

David J. Bilinsky

Dave’s Tech Tips

21

Where does Canada rank in terms of the Rule of Law, Civil Liberties, Diversity and other indices?

David J. Bilinsky

Nothing Official

28

I Am Not a Cat

Tony Wilson, QC

24

Raminder K. Hayre

25

The Need for Diversity on Administrative Tribunals and Boards

Simmi K. Sandhu

From the Branch 7

Advocacy in Action

14

SectionTalk

27

Professional Development

From the Community 17

BCLI/CCEL Update

20

Articles from National Magazine

26

Tips from Courthouse Libraries BC

26

CLEBC Update

29

The Law Foundation of BC

30

BarMoves

Brandon D. Hastings, Committee Chair Editorial Committee Tonie Beharrell Baljinder Girn

Eryn Jackson Isabel Jackson

Greg Palm Lisa Picotte-Li

Crystal Tomusiak Sean Vanderfluit

Carolyn Lefebvre Sanjit Purewal

Jo-Anne Stark Alexandra Suchy

Deborah Carfrae, BarTalk Editor Staff Contributors Alyssa Brownsmith Michaela David

Travis Dudfield Eileen Huster

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FROM THE PRESIDENT JENNIFER J.L. BRUN

Agenda for Justice 2021: A Roadmap for Action

I

t is a true privilege to serve as President during a year when our advocacy culminates in a published document expressing the thought-leadership, hard work, and deep commitment of our Association in advancing the practice of law and the administration of justice. Over 100 CBABC volunteers and staff collaboratively developed Agenda for Justice 2021 (“Agenda”).

It is based on extensive research, consultation with industry stakeholders, collective experience, and previous submissions to government. CBABC members have unique insight into the impact our laws have on people. We practise at the forefront of the justice system, providing services to British Columbians in every area of law. Our voice is credible and influential.

In the Agenda, we provide a roadmap for action with over 40 recommendations across 22 key issues in four areas: Access

to Justice for Families;

Meaningful

Change for Indigenous

Peoples; Modernizing

BC’s Justice and Legal

Systems; and Ensuring

Fairness for Everyone.

ACCESS TO JUSTICE FOR FAMILIES

Most families undergoing a separation or parenting dispute will experience emotional trauma and financial stress.

Low-income families in these situations are often unable to access legal advice.

If they go to court, they face navigating a complex system with two separate but parallel courts. The child protection system is currently failing children, particularly Indigenous children who are disproportionately impacted by state intervention. We advocate for a sustainable model for Legal Aid; 2 BARTALK / APRIL 2021

expanded scope for family law services; transformation of the child protection system; and a Unified Family Court.

MEANINGFUL CHANGE FOR INDIGENOUS PEOPLES

CBABC is deeply committed to promoting the objectives of reconciliation. Our Indigenous communities require and deserve a unique and collaborative approach to justice that addresses the issues more prevalent within their population. We acknowledge the positive steps of the Declaration on the Rights of Indigenous Peoples Act and the BC First Nations Justice Strategy, and call for funding and commitment to their implementation. We also advocate for restorative justice, and improving access to lawyers and technology in rural areas.

MODERNIZING BRITISH COLUMBIA’S JUSTICE AND LEGAL SYSTEMS

Modernization is a key component of adjusting to and moving beyond the pandemic. We recommend investments in enhanced virtual technology and improved processes in civil court scheduling and filing, court services staffing, and data collection and disclosure. We also discuss the need for streamlined, modernized legislation in the areas of virtual witnessing of legal documents, commercial leases, and enforcement of money judgments.

the LGBTQ2SI+ community, mental health detainees, vehicle accident victims, and small business owners, among others, fairly and with respect.

WHAT NEXT?

As President, I will be speaking to key cabinet ministers to introduce them to the Agenda and our immediate priorities. The BC government’s priority heading into the spring legislative session is to ensure funding and systems to support the vaccine rollout and to bolster the economy. That should be the priority but that does not mean our government can delay modernization and investment in our legal and justice systems.

Decades-long underfunding and understaffing have led to long delays in the administration of justice.

These issues were always apparent but a year into the COVID-19 pandemic has made them impossible to ignore.

Now is the time to act. We will strive to secure investment in these recommendations and have that reflected in the provincial budget on April 20.

ENSURING FAIRNESS FOR EVERYONE

So, how can you help activate the Agenda? Discuss it with your colleagues to raise awareness. I am proud of the tremendous effort our volunteers and staff have put into the focused and concise statements of the true issues facing British Columbians today, and how we can effect positive, substantive changes by following this roadmap for action.

Core principles of our justice system are equality, inclusion, and protection of human rights for everyone. We advocate for treating our most vulnerable residents, including seniors,

president@cbabc.org

Jennifer J.L. Brun

EXECUTIVE DIRECTOR KERRY L. SIMMONS, QC

An Unwavering Commitment to Equality, Diversity & Inclusiveness

P

romoting equality, diversity and inclusiveness in the legal profession and the justice system is one of the eight tenets of the CBABC. This commitment draws members to the CBABC as they see that the association can and does undertake activities of education and advocacy to change the culture and reality of the profession. The work required is never-ending, and so is the commitment of our volunteers and staff.

CBABC is proud to be a place to bring together lawyers, students and judges who share these values. To have conversations about experiences, celebrate successes, and explore next steps. To build awareness and education through engaging professional development programs and speakers. To advocate for change within the profession, our courts, and in justice and legal policy. We are united by a desire to achieve equality, respect, and inclusiveness.

For thirty years I worked in several law firms in different roles and witnessed the experience of people from equality-seeking groups. I witnessed many “firsts.” The first female lawyer.

The first Indigenous lawyer, the first LGBTQ2SI+ lawyer, the first lawyer of color. The first female managing partner. And then I saw “the next.”

Those who came first cleared the path for someone to follow, extended a hand, pulled them forward. Examples of the “firsts” and the “nexts” from other workplaces were shared, talked about, and celebrated. Established leadership came to embrace diversity and inclusion and systemic change began.

CBABC established what are now the Women Lawyers Forum (“WLF”), the Sexual Orientation & Gender Identity Community (“SOGIC”), the Aboriginal Lawyers Forum (“ALF”) to promote, retain, celebrate and advocate for its members. Our Equality & Diversity Committee continues to identify best practices & resources and areas for change.

CBABC’s Board of Directors now maintains strong diversity in its overall composition, and while there will still be some of the “firsts” among the future presidents, there are also several “nexts.”

There is absolutely no doubt that more needs to be done to achieve equality and ensure workplaces and career advancement are free from discrimination. The examples are too many. Racialized lawyers are overrepresented among those offered low or unpaid articles. Pay equity among genders doesn’t exist. Indigenous lawyers leave private practice. So do women lawyers. The list goes on.

Being part of an association that values diversity means that you find other like-minded people to work with to build inclusiveness. We can harness the power of the association to bring awareness to issues, to connect people to each other, to learn, and to change.

CBABC members have recommended and created several resources for members and their workplaces to achieve these goals. Building a Reconciliation Response Plan and using the Measuring Diversity Toolkit can help workplaces assess

and move forward with new initiatives. We’ve prepared resources to help members use Gender-inclusive Pronouns in court and at work. Our Programs & Events this year have included the three-part LGBTQ2SI+ Webinar Series, sessions on disrupting and dismantling systemic racism, activating the Calls for Justice from Reclaiming Power and Place: The Final Report on the Murdered and Missing Indigenous Women and Girls.

CBABC continues to partner with the Federation of Asian Canadian Lawyers — BC on the Supporting Relationships Series: Indigenous and PanAsian Communities and partnered with the South Asian Bar Association — BC for Diversity on Boards, Tribunals, and Crown Agencies.

This spring, attend Diversity on the Bench to learn about the judicial appointment process. Hear from Justice Bastarache on the effects of sexual harassment on women in the RCMP. Check out President Brad Regehr’s podcasts on the Calls to Action. Connect with WLF, SOGIC, and ALF. The opportunities to learn keep coming.

To contribute to the CBABC’s work in any of these areas, volunteer with your colleagues. Together, we will make the legal profession the diverse and inclusive place it can be.

Kerry L. Simmons, QC

ksimmons@cbabc.org APRIL 2021 / BARTALK 3

feature LISA PICOTTE-LI

Why Diversity and Inclusion are Important — and Difficult

Engage in it anyways and be prepared to fail, over and over

A

n often repeated phrase is that diversity is having a seat at the table, inclusion is having a voice, and belonging is having that voice be heard. If more voices are heard, then more people will feel valued and, if more people feel valued, then we will have achieved a noble goal. But if people feeling good is not a worthwhile goal, then the driver of that value toward higher performance and better outputs is at least an objective that most businesses understand.

Diversity and inclusion help people live better lives. It also solves a business problem — today’s workplace needs to reflect social values, the needs of the client, and optimize the potential of every individual. The way to do that is to recognize ourselves in one another and choose empathy over apathy, acknowledge that compassion for other human beings must extend to the powerless and appreciate how humanity has behaved inhumanely.

But this is hard. Our perspectives and theoretical frameworks inform the resolution of tensions between private and public interests.

What happens when you climb the steps of ideology and fall off at the highest point? How a person approaches exclusion and assimilation is complex. We must humanize equality because the consequences 4 BARTALK / APRIL 2021

are otherwise incomprehensibly inhuman. Inequality means being equals born into an unequal world and the harm we do, we do to ourselves. As Anatole France observed, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to be in the streets, and to steal bread.”

What is ultimately important is the effect of what is happening, the message of marginalization that is conveyed.

Approaches to equality must recognize that the law is rarely better than the lawmaker and we must be mindful of our own myopic vision. It is better to persuade

We will ask the wrong questions, use the wrong terms, and even hold the wrong beliefs. The key is to stay connected to those things that unite people, not those that divide. than to compel and only a few individuals have the opportunity to be born in opposition to one’s beliefs.

We have the opportunity to live in opposition to long-held beliefs.

We can fight our battles not in the

hope of “better, later” but with the knowledge that we can listen to one another’s remarkable stories and influence feelings by taking action.

People cling to hate because without it, they must deal with pain. But psychological discomfort helps us learn and grow, contribute, and be recognized for doing better once we know better.

Diversity and inclusion are worth the effort. And we will get it wrong, over and over. We will ask the wrong questions, use the wrong terms, and even hold the wrong beliefs. The key is to stay connected to those things that unite people, not those that divide, and remember that life will present unexpected opportunities to learn and be vulnerable with another human being. It is hard to know in advance what those important moments will be, but the direction of our lives bends toward our convictions.

Instead of working toward diversity and inclusion, become diverse and inclusive. Look for ways to confirm your beliefs to be wrong and, when people take the time to explain, hear what they have to say. Build competency, not perfection, and strive to listen, learn, and grow — sometimes, painfully. What is the one thing that you can do today that will meaningfully change the systems of the future? What is the one thing that you can do today to change what goodness you find into greatness?

Lisa Picotte-Li is the director of operations at a provincial safety regulator and adjudicates the correction and discipline of federal inmates. She is passionate about promoting diversity and inclusion in the legal profession and improving access to legal services.

feature

JULIE DAUM

Diversity & Inclusion in Dispute Resolution

A Wet’suwet’en mediator’s perspective

A

s dispute resolution professionals, we bring our whole selves to our work. And yet, it is common to gloss over, or even resist, sharing aspects of ourselves in service of an often unquestioned assumption that making connections and commonalities explicit somehow interferes with one’s ability to do our work.

Recently, I was reminded of the difference it can make to create space for sharing. I was co-facilitating with three new colleagues. We started with “standard” introductions: names, roles, summary of our work experience. This didn’t make us comfortable enough to imagine easy collaboration, and so we introduced ourselves like my nation, the Wet’suwet’en, do: where did we grow up, what do we do for fun, where do we live now, who are our families?

In doing so, we discovered small connections to each other that we didn’t know we had – a spouse we’d met; an event two of us had attended. Having shared and connected about who we are, we began working together much more comfortably — which made the work itself better.

That kind of exchange can happen with diversity in the room and can strengthen our ability to work together collaboratively. Part of my self can sometimes connect with a part of someone’s whole self to create that shared sense of “they get it.”

“It” might be geography, remoteness, ethnicity, language, religion, ability, or sexuality, or age; what matters is

that there is a sense of connection in the room. Rather than excluding, that connection invites others to also connect and assists in creating an atmosphere that makes resolving conflicts and sorting out differences much more comfortable.

That everyone doesn’t always introduce themselves this way or feel the need to develop connections/relationships was a revelation to me. The Wet’suwet’en always address the room to describe who they are and where they come from and who their clan, house, and family are. That is respectful to others, helps everyone find their place, reassures them that business will be done properly, and they are accountable for

Sharing offers protection against the hidden biases that we may not even realize we bring to our process. their words and actions. We seek to understand connection to each other; this is protocol.

The importance of connecting in preparing to do the work of conflict resolution is something I discuss often in working with professionals who worry that connection negatively

impacts our roles in our work. I am sometimes questioned about whether I can conduct a truly neutral process when I share ethnicity with one or more parties, and sometimes I am specifically asked whether, as an Indigenous person, I can facilitate a process with Indigenous and non-Indigenous participants without bias. It is my experience that clarity of roles in a process is very possible even when we share ourselves and build connections; connecting brings comfort but does not negate our ability to carry out our roles. In fact, sharing offers protection against the hidden biases that we may not even realize we bring to our process.

As a mediator, I work to develop a relationship with all the parties in the room because as humans we seek connection to each other. My experiences show me the importance of greater diversity in our mediation rosters and ensuring that our community is informed by diverse approaches to our work.

This involves thinking in different ways, examining our rules and habits, and wondering what keeps some people out of mediation practice and favours others in ways that we may not have been able to see. It includes being uncomfortable sometimes, but we ask our participants to do that in every process, and while it may not be easy, it will be worth the work. I am happy to be at the table, inviting folks to come sit beside me and help me do the work.

Julie Daum is Chair of Mediate BC Society, leads its Calls to Action Committee, and is a mediator, facilitator, and conflict coach. @joolzdaum | mediatebc.com

APRIL 2021 / BARTALK 5

feature

DUSTIN KLAUDT AND TASHA LORENZEN-EWING

BC Police Act Reform and Substantive Equality

T

he Special Committee on Reforming the Police Act review is timely given ongoing racial, lesbian, gay, bisexual, trans, queer, two spirit, intersex, and other sexual minority (“LGBTQ2SI+”) and other group-based disparities in police interactions. CBABC members and the public should carefully follow this work and actively advocate for reforms promoting justice for these communities disproportionately affected by aggressive and ineffective policing. The social context of the Black, Indigenous, and Persons of Color (“BIPOC”) and LGBTQ2SI+ communities interactions with Canadian police forces is illustrative of the dire need for reforms.

These communities suffer from a double-edged sword, overrepresented in negative interactions with police, yet underrepresented in accessing policing resources for serious crimes against them.

Police-involved deaths remain tragically high (BC’s rates are the highest in Canada per capita) and disproportionately involve the BIPOC community. There were 98 police-involved deaths from 2000-2017 in BC. Indigenous persons accounted for 14% of those deaths (despite BC’s Indigenous population being only 4.6% of BC’s 2016 census population).

There were also 25 fatal incidents where the deceased’s race/ethnicity was unknown, suggesting that these racial disparities could be even higher. In Toronto, data shows that from 2013-2017 a Black person was nearly 20 times more likely to be involved in a fatal police shooting. The absence of a comprehensive police deaths and 6 BARTALK / APRIL 2021

injuries data registry or collection process, nationally and provincially, (that considers and reports race and other equity variables) remains a continuing obstacle to understanding the full scope of this problem.

Similarly, data from 2008-2017 showed that Indigenous and Black persons were disproportionately involved in Vancouver Police Department (“VPD”) street checks. The Union of BC Indian Chiefs and BC Civil Liberties Association reported that street checks of Indigenous and Black persons were 16% and 4%, and those groups population rates were only 2% and 1% in Vancouver. These disparities are amplified when reviewing race’s and LGBTQ2SI+ status’ intersectionality. The November 2020 TransPULSE report from Ontario reports that 73% of all racialized trans persons were worried about negative police interactions. Trans persons also reported an eight-fold difference (16% vs. 2%) in negative justiciable legal problems involving police when compared to cisgender Canadians.

Under-policing also affects the BIPOC and LGBTQ2SI+ communities when crimes targeted against them go uninvestigated and unaddressed. During the COVID-19 pandemic, in Vancouver, Anti-Asian hate crimes have risen by 717% and hate crimes generally by 97%. The Missing and Murdered Indigenous Women and Girls Inquiry heard many accounts of BC police showing little concern for Indigenous victims. Further, last summer, there was

a high-profile assault incident, after anti-LGBTQ2SI+ hate street preachers repeatedly espoused their rhetoric in the Davie Street enclave over several days, without the VPD intervening. More education for police and corresponding greater enforcement of hate crime provisions will, hopefully, reduce future disturbing incidents.

Only comprehensive reforms will remedy these disparities. Steps like eliminating arbitrary street checks, collecting better demographic data on police interactions, greater accountability and liability for policeinvolved deaths (including reforming wrongful death compensation laws), and better education leading to antihate crime enforcement will start to

narrow the gap. However, a collective paradigm shift on police funding levels and the need for carceral state action to remedy social ills best addressed with other measures, is likely necessary to see true reconciliation and transformation addressing the equality gaps in policing.

Submissions to the Committee are due by April 30, and we encourage readers to make their voice heard on this critical social justice reform process (either through ongoing CBABC submissions or other group or individual submissions).

Dustin Klaudt is Co-Chair of CBABC SOGIC and Chair of the CBABC Equality and Diversity Committee. Tasha Lorenzen-Ewing is a TRU law student, and member of the SOGIC Executive.

advocacyinaction PROVINCIAL GOVERNMENT NEWS The legislature resumed on March 1, 2021 and is expected to sit until June 17, 2021; watch for important news on legislative updates under the Professional Development section of the CBABC website. The provincial budget will be announced on April 20 and CBABC representatives will be working hard that day to analyze the funding and determine whether core advocacy initiatives will make the cut. Funding and programs to improve court services and implement technological solutions remain a key priority for members as they provide essential services during the ongoing State of Emergency in BC. CBABC continues to lobby government and stakeholders for improvements to the legal and justice system, as outlined in the Agenda for Justice 2021.

MONEY LAUNDERING The Cullen Commission Inquiry into Money Laundering in BC will be wrapping up in the coming weeks, after two years of compiling documents and reports, and hearing from witnesses in a variety of industries from countries around the world. CBABC plans to file a final written submission, which addresses the responsibilities of lawyers to preserve the foundational principles of the lawyer-client relationship, including the independence of

\ EMAIL: ADVOCACY@CBABC.ORG

the legal professional, solicitorclient privilege, and the duty of confidentiality. While money laundering is a serious matter in BC, solutions are needed that will not overreach and endanger the independence of the Bar, nor unnecessarily invade the privacy of citizens. Significant improvements in enforcement — from investigations into financial crimes to the laying of money laundering charges — are needed to deter criminals from money laundering activities in BC.

CIVIL RESOLUTION TRIBUNAL (“CRT”) The CBABC’s Auto Insurance Working Group was consulted to address concerns regarding the role of the CRT in determining minor injury claims, and these concerns were outlined in a formal submission to the Attorney General in May of 2020. The BC Supreme Court has now struck down provisions in the Civil Resolution Tribunal Act as being unconstitutional, in a decision rendered March 2, 2021.

POLICE ACT REFORM A consultation group of members was formed in February and is in the process of finalizing a written submission to the Special Committee on Reforming the Police Act. Concerns around police disciplinary proceedings, arbitrary seizures, wrongful death and civil liberties were identified as key

areas by the group. In addition, a recommendation for more robust data collection and increased transparency will be made, to identify any negative impact on segments of the population and to drive change in policies and education.

SPOTLIGHT ON THE INDIGENOUS JUSTICE ADVOCACY COMMITTEE The Indigenous Justice Advocacy Committee, otherwise known as IJAC, was formed in 2019 to develop the CBABC position on issues that include: Restorative

justice initiatives; courts; Expansion of legal aid services; Child protection reform; Enhanced cultural competence among all justice system participants; and Indigenous-specific victim services.

Indigenous

This standing Committee meets regularly to discuss these issues and to connect with other stakeholders to develop a set of recommendations to amend legislation and improve government policy. The implementation of the Declaration on the Rights of Indigenous Peoples Act (DRIPA) and the BC First Nations Justice Strategy remain a key priority. This committee’s work will be presented to the CBABC Board for consideration in the coming weeks.

WANT TO GET INVOLVED? CBABC’s policy development and advocacy priorities are determined by members through CBABC Sections and Committees. Volunteers are always welcome. Contact the Director of Advocacy, Jo-Anne Stark at jstark@cbabc.org.

APRIL 2021 / BARTALK 7

Indigenousmatters GEORDIE HUNGERFORD

More Indigenous Business Professionals are Essential to Achieve True Reconciliation

W

e all know that Canada has frequently marched its Indigenous Peoples down an often ugly and cruel path.

But the 21st Century has marked a new era of hope and optimism — hope that we can walk a different path together.

We have seen two Prime Ministers apologize for residential schools. The current government looks to embrace the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) and pursue a path toward modern self-government for First Nations.

The Government of British Columbia has adopted UNDRIP and a mandate of Reconciliation, including full partnership with First Nations in the economy. These are steps toward true Reconciliation, and steps on a path that leads to a new relationship based on mutual respect and understanding between Canada and Indigenous peoples.

Indigenous Economic Reconciliation creates a pride of Indigenous ownership, of nation-building and of Indigenous individuals’ self-actualization, but also has the potential to reduce the cost to Canada of administering programs that deal with the consequences of poverty (and use that funding for economic capacity development), to contribute to the Canadian GDP, and to lead to new markets for Canadian business that benefits all communities.

The First Nations Financial Management Board (“FMB”) has calculated the value of revenues of Indian Act bands at $13.5 billion; this is the tip of the iceberg of what is possible.

As CEO of the FMB, a federal organization that develops financial and administrative capacity in First Nations, I feel fortunate to be playing a role in the monumental change that is happening 8 BARTALK / APRIL 2021

in First Nations communities across the country as we start down this path toward Economic Reconciliation.

First Nations, Inuit, and Métis are asserting their Indigenous rights and title with a strong voice, backed by a series of decisions from the Supreme Court.

UNDRIP has made it clear that Canadian Indigenous peoples should expect free, prior, and informed consent before economic activity takes place on their traditional territories. The motto is “Nothing about us, without us.”

However, the assertion of these legal rights alone does not take Indigenous peoples fully down the path of Economic Reconciliation. At FMB, we see many First Nations that find it difficult to analyze and develop the economic opportunities before them or to raise meaningful levels of capital at a reasonable cost. This is in part because First Nations lack the financial, mercantile and administrative professionals needed to do this.

Corporate Canada is also facing challenges with Economic Reconciliation; without developing respectful relationships with Indigenous peoples, businesses face greater uncertainty as to whether development projects in Indigenous traditional territories can go forward or be funded or insured at a reasonable cost. Corporate Canada needs more Indigenous professionals in its ranks to help them engage in Reconciliation, including adopting the Truth and Reconciliation Commission’s Call to Action #92 Business and Reconciliation, to create more positive, win-win outcomes.

Across the globe, capital markets, retail, and institutional investors are increasingly focused on Environmental, Social, and Governmental (ESG) factors, sustainable development, and Indigenous rights. Investors are demanding more disclosure and accountability for development in First Nations traditional territory. And, yet, few organizations and individuals can bridge the communication divide between Indigenous communities, regulators, businesses, and investors. It’s clear, the shortage of Indigenous professionals is stunting Canada’s economic growth.

The federal and BC governments know that part of unleashing this growth will be the modernizing of self-government policies, finally recognizing Indigenous peoples right to develop their own capacity to embrace their new role as a third order of government. But the governments’ efforts to implement UNDRIP and spur on Economic Reconciliation too are stunted by the lack of professional capacity in government to do so.

So, we can see that all parties — industry, government, and First Nations — need to speak to each other in the language of finance and business, combined with an understanding of Indigenous expectations and perspectives. We must work quickly to build the capacity to do so.

Before the days of the European trader, First Nations had sophisticating trading economies, using interpreters to understand other tribes and get deals done. When the fur trade arrived, members of First Nations learned to interpret English and French on behalf of their Nation or on behalf of the Hudson’s Bay Company.

Now, our Nations need our members to become a new kind of interpreter.

These interpreters need to speak the different languages of finance, accounting, engineering, and law. We need a surge of Indigenous business professionals — working for their communities, in corporate Canada, and in government.

Yet Indigenous peoples are almost never found in the executive positions or on corporate boards in Canada, nor in the finance industry nor in the financial organs of government.

Around 5% of Canada and BC’s population is Indigenous. But, according to the 2020 Diversity Disclosure Practices study by Osler of over 200 federally-incorporated public companies, Indigenous directors made up only 0.5% of board seats. Only seven companies had an Indigenous director.

And it was even worse for executive officers. Only two companies had at least one Indigenous executive officer!

We need more and better data. But based on my anecdotal discussions with professional bodies keen to embrace Reconciliation, Canada generally has a stunning lack of Indigenous professionals. This is particularly true in areas like accounting, assurance, financial management, investment management, finance, legal deal-making, and engineering. Accordingly, there is little presence in leadership of the professional services firms, although some firms like Deloitte are leading the change with a Reconciliation Action Plan.

Likewise, in the organs of government that make the rules on the economy — the Bank of Canada, the financial regulators, the Ministries of Finance — there is limited visible Indigenous leadership. With little Indigenous business capacity, how will industry and government manage the transition to Economic Reconciliation?

We need all First Nations to have an Indigenous professional mercantile and financial class, so they have the

capacity to embrace the large opportunities of Economic Reconciliation.

At present, 10.9% of Indigenous peoples aged 25-64 have a university degree, compared to 29.3% of the non-Indigenous population. Indigenous graduates tend to be concentrated in fields such as education, social work, Indigenous studies — and Indigenous rights and title law. There are fewer business professional role models in Indigenous communities.

At the FMB, we help build the accounting and finance capacity for First Nations. We see the issues with the lack of Indigenous accounting professionals on reserve. We also see the great turnaround that First Nations can make with even one or two Indigenous professionals on reserve to balance the books, focus on good governance or design and evaluate deals for the community.

Well-managed First Nations like Membertou in Cape Breton have been able to show that Economic Reconciliation is achievable building a team of Indigenous professionals. Indeed, who would have thought even a decade ago that First Nations would be major financial partners in a $1 billion business acquisition like the recent Clearwater seafood deal?

SO HOW DO WE MOVE ECONOMIC RECONCILIATION FORWARD? HOW DO WE GET MORE INDIGENOUS PROFESSIONALS?

Recently, I have been inspired by leaders like Wes Hall and Rt. Hon. Paul Martin.

They have shown us some solutions.

Wes Hall, the executive chairman of the KSS Group of Companies, wrote about his own experiences with racism in Canada in the wake of the death of George Floyd. He struck a chord with his colleagues in the business community when they heard about his experiences. He then rallied this goodwill to tangibly have corporate Canada support Black Canadian inclusion through the BlackNorth initiative.

In a manner of weeks, a wide range of over 300 business CEOs from banks, manufactures, crown corporations, law firms, universities, name brand consumer products, airlines, and construction companies signed a Pledge toward Black inclusion. The Pledge includes having conversations and education about systemic racism and unconscious bias. Further, it includes developing hiring targets and C-suite and board targets for Black Canadians commensurate with their percentage of the population, working with Black communities to create jobs and economic opportunities, and measuring tangible, meaningful outcomes.

Whereas Former Prime Minister Martin, whose minority government worked with all parties to pass the First Nations Fiscal Management Act that created my organization, has continued his commitment to working with First Nations in his private life and with his own pocketbook. The Martin Family Initiative (“MFI”) creates mentoring and learning opportunities for Indigenous high school students and young professionals in areas like entrepreneurship, accounting, and law. This initiative is helping develop both Indigenous business professionals and role models for our communities.

Taking inspiration from the BlackNorth organization and the MFI, I think it is time to create a coalition of business, educational institutions, NGOs and government focused on creating, hiring, promoting, and retaining more Indigenous business professionals. BlackNorth has shown us it is possible.

Let us walk the path to Economic Reconciliation together.

Haii cho!

Geordie Hungerford, CFA, MBA, LLB, is the CEO of the First Nations Financial Management Board and is a Gwich’in of the Northwest Territories and Yukon. He strongly encourages Indigenous high school students to apply for the Hungerford Family Award for the Bachelor of Commerce programme at Queen’s University.

APRIL 2021 / BARTALK 9

feature

ROSE KEITH, QC

The Impact of the #MeToo Movement on Labour & Employment

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he #MeToo movement that arose from the New York Times investigation into Harvey Weinstein resulted in significant and monumental shifts in workplaces and in the manner in which allegations or sexual harassment in workplaces are dealt with by employers. The #MeToo movement generated discussion around the nature and consequences of sexual harassment, leading to an enhanced general understanding. That understanding led to the dispelling of the many myths associated with reports of sexual abuse and harassment and ultimately permeated the manner in which triers of fact assessed evidence in sexual harassment and abuse cases. The movement demonstrated societal support for victims which had the consequence of increasing reporting.

The increased discussion around sexual harassment led to greater public scrutiny, strengthened anti-harassment legislation and an understanding by employers and institutions of the significant reputational risk they faced if sexual harassment occurred.

Shifts in workplaces followed with an increased focus on bullying and harassment policies and stronger steps being taken to lessen the occurrence of bullying and harassment. The increased understanding of the nature and consequences of sexual harassment in the workplace extended to our courts and Tribunals, with increased awards for victims and a change in the manner in which evidence was assessed.

10 BARTALK / APRIL 2021

Legislative changes included amendments to the Canada Labour Code with enhanced requirements around bullying and harassment and a significant fine for employers who failed to comply. Provincial occupational health and safety legislation has required implementation of bullying and harassment policies, which were implemented with an increased understanding of the

nature and consequences of sexual harassment following the start of the movement.

Tribunals and courts, in the wake of the #MeToo movement, have demonstrated an increased understanding of sexual harassment. Decisions since the movement have explicitly recognized that abuse of power is at the root of sexual harassment, that prior sexual history is not relevant to an assessment of whether sexual harassment has occurred, nor is a lack of protest, a delay in reporting or a pattern of consent. The myths and stereotypes surrounding expected behaviours of a victim of sexual assault or harassment has been highlighted by

the Supreme Court of Canada. The courts have recognized the evolving social context within which allegations of sexual harassment must be assessed and have applied that social context to shift definitions of sexual harassment.

The #MeToo movement brought about a sea change in the way in which sexual harassment was viewed and elevated the understanding of the prevalence of sexual harassment in our workplaces. It led to increased pressure on businesses, with the expectation now being that workplaces will embody diversity and respect and no longer tolerate sexual

harassment. It led to improved policies aimed at eradicating bullying and harassment and providing protections to victims to bring forward complaints. The societal shift that followed the movement greatly contributed to the focus that we now see on diversity, equality and respect in workplaces.

The #MeToo movement and the changes that have followed demonstrate the power that the masses have in focusing and redefining the understanding of an issue.

Rose Keith, QC is associate counsel with Harper Grey. Not only is she a skilled mediator, she also maintains a multi-faceted practice focusing on workplace law.

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APRIL 2021 / BARTALK 11

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CHRISTINA GRAY AND JESSICA ASCH

The Transitional Space to Learn Indigenous Law

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o you recall your first day of law school? We remember that excited, yet uneasy feeling of being part of something new that would change our perception of the world. For many, we are at a similar juncture in our collective learning about Indigenous law.

People have engaged with Indigenous law since before there was a Canada. Indigenous peoples continue to live and practise their laws. Lawyers learn Indigenous law working alongside their clients or from their home communities. Scholars spend careers making Indigenous law visible, articulating and applying it to questions about citizenship, dispute resolution, and gender oppression.

Legal research professionals collaborate with Indigenous communities seeking to revitalize their laws and respond to today’s challenges.

The baseline for this work shifted dramatically over the past five years.

The legal profession experienced collective learning with the Truth and Reconciliation Commission’s Final Report (2015) and its Calls to Action 27 and 28. Lawyers recognize duties to see, learn and engage with Indigenous law in meaningful and respectful ways. This is an important step in addressing the history and legacy of Canadian law, and specifically how it has been used to dispossess Indigenous peoples from their lands and legal traditions.

We are on the cusp of a professional paradigm shift. The opening space for Indigenous law, and its 12 BARTALK / APRIL 2021

accompanying ethical responsibilities, fills some with excitement, trepidation, and even discomfort. For many, this process involves relearning the nature of law and legal practice from the perspective of diverse and distinct Indigenous legal traditions.

How the legal profession responds in this moment matters.

Irrespective of discomfort or debates about Indigenous law’s place in legal practice, the demand from clients, nations, governments and the judiciary to articulate, apply and implement Indigenous law is intensifying. And Canadian law will continue to dominate our legal imaginations if we don’t find ways to take seriously, understand, and include Indigenous legal reasoning, processes, principles, and institutions in these efforts.

Ignoring what challenges us in this moment isn’t an option if we want Indigenous law to flourish in all of its richness. Instead, we might accept personal discomfort as a necessary reflection of what it takes to reimagine our profession. The work ahead requires us to re-think the location of expertise as solely in the body of the lawyer, build relationships and collaborate in new ways, and develop new critical thinking, reasoning and listening skills.

An equally important challenge is mentorship. The first cohort from UVic’s joint degree program in Canadian Common Law and Indigenous Legal Orders (JD/JID) graduates in 2022. These are not the first or only students eager to reflect the multi-juridical reality of Canada. But, they cannot carry this burden alone or without support.

Nor should we dismiss or ignore their education, especially their exposure to Indigenous law and transsystemic legal thinking. Instead, we should welcome, include, and value them for what they can teach us as we collectively reshape and broaden legal practice.

The challenge before us may seem overwhelming or untenable. We invite you to think back to your entry into the legal profession.

It took law school, articling, and years of practise to achieve competency. For many, it will undoubtedly take longer to learn how to make space for Indigenous law on its own terms.

There will be excitement and discomfort. But, if taken seriously, our collective learning will better us, our profession, and our relationships to the diverse legal traditions of the lands on which we practise.

Christina Gray is Ts’msyen and Dene, an associate at JFK Law Corporation, and a UVic LL.M. student. Jessica Asch is a settler from Treaty Six Territory, the Indigenous Law Research Unit’s Research Director, a lawyer, and a UVic LL.M. student. The authors thank Dr. Rebecca Johnson for providing meaningful feedback on this article.

Pole at Lelu Island carved by Ts’msyen artist Phil Gray. Photo courtesy of Phil Gray.

feature

LISA M.G. NEVENS

“My Lord” and “My Lady” Reconsidered Gendered honorifics are ill-fitting in modern courts

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t is a hopeful time to be a gender diverse lawyer in British Columbia. All of our courts now formally recognise that counsel appearing before them might not identify with one of the gendered titles of Mr. or Ms. All counsel may elect to use the gender-neutral title “Counsel” to deemphasise gender.

And non-binary lawyers — those of us who do not identify as exclusively men or exclusively women, and who might identify as neither — may go

by Mx.1 The courts’ efforts to accord equal respect and dignity to all parties and lawyers, regardless of gender identity, are a remarkable and laudable achievement. Yet they presently stop just shy of the Bench.

Put simply, the British Columbia Court of Appeal (“BCCA”) and the Supreme Court of British Columbia’s (“BCSC”) ongoing use of My Lord and My Lady, among other binary gendered honorifics,2 signals that there is no place on their Benches for the growing number of openly non-binary lawyers who are now welcomed within the Bar. While these honorifics were not originally designed to exclude based on gender, they now have that explicit and visible effect: you cannot use a gender-neutral title and also be a Justice.

This is not the first or only cogent argument in favour of moving away from the use of gendered honorifics for Justices, but it is one of the most urgent, as we collectively seek a diverse and representative Bench.

Many of the other arguments are well-known: 1. The current forms of address unnecessarily emphasise the gender of Justices. The role of a Justice is to independently and impartially make findings of fact and law.

Their gender is as irrelevant to that important task as their race, religion, sexual orientation, or any other personal characteristic. Yet gender alone is referenced every time a Justice is addressed.

2. Repeatedly highlighting a Justice’s gender erroneously signals that gender is uniquely relevant information about the Justice — a lens through which to interpret their decisions.

3. My Lord and My Lady have colonial origins that are out of step with the goal of reconciliation.

4. My Lord and My Lady have classist origins, yet appointments to the Bench are made after a stringent merit-based assessment, not through hereditary privilege, as the terms imply.

5. Shifting away from gendered forms of address for Justices in the BCCA and BCSC would improve synchronicity of practice among BC’s courts, as the Provincial Court does not use these terms. Synchronized practices among the courts reduce confusion and facilitate access to the court system for the general public by simplifying the processes.

6. Alternative ways to respectfully address Justices are readily available, as demonstrated by courts from the Supreme Court of Canada to the Yukon.3 The most common argument in favour of continuing to use My Lord and My Lady in our courts is that they are part of our tradition and legal heritage, which are important. But as our society evolves, so too must our understanding of the impact of our traditions. In today’s British Columbia — where increasing numbers of people are at last finding it safe to be openly non-binary — the current forms of address for Justices are no longer benign traditions. Instead, they serve to actively exclude certain types of people from the Bench.

The importance of tradition ought not outweigh our substantive principles, such as equality before the law, access to justice, and a judiciary that reflects the population it serves. Continuing to use gendered honorifics for Justices makes these substantive principles subservient to the symbolic tradition. That’s upside down.

Pronounced “mix.”

Along with Your Lordship, Your Ladyship, and Madam and Mister Justice, and references to brothers and sisters by judges in referring to their colleagues.

3 Supreme Court of Canada FAQ, How does one address a judge? Supreme Court of Canada — Frequently Asked Questions (FAQ) (scc-csc.ca); Supreme Court of Yukon, Practice Direction General-8, Addressing the Court, February 3, 2021: GENERAL_8_addressing_the_court_amended. pdf (yukoncourts.ca).

1

2

Lisa M.G. Nevens (Mx./they/them) is CoChair of the CBABC’s Sexual Orientation and Gender Identity Community Section.

APRIL 2021 / BARTALK 13

sectiontalk Recent Highlights

u ELDER LAW INITIATIVES At the CBA Annual AGM, held on February 17, 2021, the Elder Law Section proposed and passed Resolution 21-03-A, Improvement of Long-Term Care and Support for Older Canadians, which provided a response to the issues disproportionately facing seniors in long-term care facilities during the pandemic.

The resolution urges federal, provincial, and territorial governments to work together to fast-track the establishment and enforcement of National Quality Standards in long-term care, improve infection prevention controls, and create pan-Canadian strategies to better care for seniors.

In addition, members of the Elder Law Section are in discussion to reform Section 331 of the Criminal Code of Canada to address the abuse of Power of Attorney holders. This reform, proposed by Elder Law Section member Peter Lockhart Gordon, QC, emphasizes the difficulty in proving wrongdoing, thus, the onus of proof must be reversed from the person challenging the conduct of a POA holder to the POA holders themselves.

u SECTION MEETINGS ON DIVERSITY & INCLUSION

During the month of February, several Sections offered a slate of meetings that offered guidance on how to be culturally competent in the practice of law, and knowledge on issues affecting LGBTQ2SI+, First Nations and other systematically disadvantaged individuals:

SOGIC SOGIC hosted Don’t Guess, Just Ask, a Professional Development event on the use of pronouns in practice following the adoption of the Pronouns Policy in the BC courts. They also hosted Trans/ forming the Queer Legal Landscape — Emerging Legal Issues, which outlined queer and legal trans history, and discussed topical issues such as emerging family forms, current practice directives, and more. In addition to Professional Development events, SOGIC also hosted a Section meeting on the study involving the serious legal problems of LGBTQ2SI+ people in Western Canada. They also hosted Outlaws, outreach events for law students in BC.

Aboriginal Law Aboriginal Law — Vancouver Section hosted Myrna McCallum,

Jessica Magonet, and River Shannon to discuss some of the ways to incorporate cultural humility and trauma-informed practices into the legal practice. Aboriginal Law — Vancouver Island Section, on the other hand, hosted Dr. Mary TurpelLafond who discussed her findings in her report In Plain Sight: Addressing Indigenous-specific Racism and Discrimination in BC Health Care.

The report found that a majority of the Indigenous respondents have experienced racism within the health care system. In response, Dr. TurpelLafond recommends that the BC government operate in alignment with the UN Declaration on the Rights of Indigenous Peoples, and to work jointly with First Nations peoples to create culturallyappropriate health facilities.

Social Justice The Social Justice Section invited Garth Mullins, Kali Sedgemore and Caitlin Shane to lead an engaging and critical discussion on what a more effective and compassionate societal drug policy might look like. During the meeting, they touched upon the role of each level of government in contributing to the war on drugs, as well as the importance of including people with lived/living experience to inform law reform.

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SOGIC UPDATE — by Dustin Klaudt

Advocacy and CPD Activities Around BIPOC and LGBTQ2SI+ Intersectional Issues COVID-19 has caused tremendous disruption and racial, gender, and sexual orientation inequities have intensified.

COVID-19’s differential impact based on race has been demonstrated in the United States, yet Canada’s inability to track racial and other healthcare disparity data has been widely shown. Many women have struggled to adapt to managing work and child-care simultaneously from home, or have been unable to flee domestic violence due to lockdown restrictions. Calls for reforms to combat racist policing, have also intensified following police-involved deaths of George Floyd and others in the United States and deaths of Black, Indigenous, and People of Color (“BIPOC”) Canadians, including Regis Korchinski-Paquet, D’Andre Campbell, Ejaz Choudry, Julian Jones, Chantel Moore, James Williams, and recently a Black trans woman in Toronto known as Coco.

In response to these developments, the BC Police Act is undergoing a review, there has been a report commissioned on better disaggregated data collection to illuminate systemic inequalities from the Office of the BC Human Rights Commission, and a second report was commissioned on anti-Indigenous racism in BC healthcare.

Within this context, where understanding on intersectional barriers involving race, gender, and sexual orientation are lacking, SOGIC is planning three upcoming webinars: March 30 uuu Join us for a discussion with West Coast LEAF about its decision to expand its mandate to focus on all people who experience gender-based marginalization, and about the research, findings, and recommendations of the BC Gender Equality Report Card with respect to trans, Two-Spirit, non-binary, and gender non-conforming people; May-TBD uuu with Aboriginal Lawyers Forum — Discussion of the intersection between Indigenous and LGBTQ2SI+ identities — including two-spirit 101, practice tips on respect and inclusion of Indigenous LGBTQ2SI+ clients, and a summary of National Inquiry Into Missing and Murdered Indigenous Women and Girls findings; and June-TBD uuu with Constitutional Law/Civil Liberties — The intersections between BIPOC and LGBTQ2SI+ identities in policing.

WLF UPDATE — by Puneet Klar

Supporting Diversity in the Profession: A Way Forward This last year has fostered a global movement toward demanding a more equal, inclusive, and diverse world. In response, the legal community has increased initiatives to attempt to tackle the issue of equality and diversity in the legal profession.

We had the pleasure of speaking with Zara Suleman, who is a past recipient of the CBABC Equality and Diversity Award and who has done extensive work in this area. In our conversation it became clear that as a legal community, we need to do more critical work, both as a profession and as individuals.

What we require, as Zara put it, is to take action and make conscious efforts to reckon the power structures of law firms, boards, legal associations, committees, and the justice system overall. This means moving beyond diversity training and workplace hiring quotas, and toward engaging in open critical dialogue about the real issues and impacts of systemic racism and intersectional oppressions. That dialogue starts with taking a hard look at those who have the power to influence and change the legal profession, and ensuring that we as a legal community hold ourselves accountable.

APRIL 2021 / BARTALK 15

feature NIKKI GERSHBAIN

Avoiding the Revolving Door

Creating an inclusion program that works

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here was a time when diversity programs were focused on representation. Law firms wanted to bring more diverse people through the door, but few were doing the work internally to ensure that door was not a revolving one.

In recent years, a focus on representation is being matched by an emphasis on retention. There is an awareness that diversity is more than a box-checking exercise, and that members of underrepresented groups need to be set up for success within an organization.

As Chief Inclusion Officer at a large, national law firm, I lead a program focused on recruiting — but more importantly, supporting, retaining, and advancing — Black, Indigenous, people of colour, members of the LGBTQ2SI+ community, people with disabilities, and women. My work involves extricating bias in our policies and practices and create a culture of belonging, where everyone feels valued, and no one has to cover parts of themselves to be successful.

I am often asked by other organizations how they can meaningfully advance inclusion. In my view, there are foundational pieces that need to be in place for any program to be impactful and sustainable. These elements are based on universal principles that apply across workplaces — private or public, legal or non-legal, large or small.

16 BARTALK / APRIL 2021

First, every organization needs a strategy. An inclusion framework will provide a rationale for the work, beyond the business case, guide strategic investments, and help to avoid distractions. Creating a strategy is also an opportunity to be declarative about your values, internally and with stakeholders. I spent my first six months building our firm’s strategy, a plan I still refer to daily.

Second, there needs to be buy-in from leaders.

You will have heard the expression — what interests my boss, fascinates me. Few people are prepared to invest in outcomes not valued by their organization. Our CEO chairs our Inclusion Council and is involved in all of our programs and events. By positioning himself as an active ally, he is leading by example, and incenting others to prioritise the work.

Third, there needs to be accountability. Engagement by leaders is important, but it must be accompanied by a commitment to achieving results.

The truism that what gets measured gets done is as true for equity, diversity, and inclusion (“EDI”) as it is for any other business objective.

This is why our firm is creating concrete inclusive leadership competencies for our senior leaders, why all of our people report annually on their EDI activities, and why we compensate meaningful contributions to our inclusion program.

Fourth, inclusion initiatives must be broad and intersectional. For many decades, diversity programs had a narrow lens, focusing mainly on gender. Gains made primarily by white women now need to be matched by progress for all equityseeking groups. Intersectionality refers to the layers of social identities that create systems of disadvantage.

At our firm, we are focused on equity practices that work for everyone.

Finally, inclusion needs to be integrated into the business. A systemswide approach means treating EDI not as an add-on, but as a business priority and a lens through which all issues are viewed. If I have been able to be effective in my role, it is because my mandate is firm-wide, my program is resourced, and I have a seat at our firm’s leadership table.

I began this piece by talking about revolving doors, but I will end it with an entirely different metaphor.

That is, creating an inclusive workplace is a marathon, not a sprint.

Systems and cultures create complex challenges, and change does not happen overnight.

That said, I believe that if an organization is serious about inclusion, and begins by adopting the principles outlined here — a plan, leadership buy-in and accountability, an intersectional lens, and a systems approach — it is possible to establish a foundation for meaningful change.

Nikki Gershbain is Chief Inclusion Officer at McCarthy Tétrault. She speaks and writes regularly on issues of equity, diversity, and inclusion.

communitynews BCLI & CCEL UPDATE

Diversity and Inclusion in Law Reform The British Columbia Law Institute (“BCLI”) is BC’s non-profit law reform agency. The Canadian Centre for Elder Law (“CCEL”) is its division focused on aging. We conduct research and develop law reform reports and educational resources.

CCEL is working with people living with different disabilities to identify strategies to support people living with dementia to be meaningfully involved in everyday decision-making. The Engaging People Living with Dementia in Decision-Making Project is led by a Dementia Advisory Council. Watch the CCEL website for how to participate in upcoming consultation.

Check out these books, articles, documentaries, instagrams, podcasts, and videos exploring Identities.

u

Two current CCEL projects explore inclusion and discrimination in the exercise of decision-making rights. Inclusive Investing examines barriers people living with dementia or intellectual or developmental disabilities face in making investment decisions. Further education and regulation are needed to resist discriminatory assumptions about capacity and remove barriers to supported decision-making. The study paper and tools will be launched in April.

u

Robust law reform requires broad consultation with community.

The impact of laws and policies will depend on factors such as sex, gender, sexual orientation, race, ethnicity, immigration status, disability, socio-economic status, and Indigenous identity. The CCEL’s Older Women’s Dialogue Project reports illustrate this dynamic, bringing an intersectional lens to elder law and policy analysis.

Online CBA Resources

Also, check out this podcast on systemic racism.

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APRIL 2021 / BARTALK 17

feature

BALJINDER K. GIRN

Working Toward a Bias-Free Workplace at the PPSC

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he Public Prosecution Service of Canada (“PPSC”) is a national, independent and accountable prosecuting authority whose main objective is to prosecute federal offences and provide legal advice and assistance to law enforcement. Nationally, the PPSC has more than one thousand employees with offices across the country.

The PPSC’s mission is to “to promote the cause of justice” and serve the Canadian public interest. Fulfilling this objective involves ensuring that the PPSC reflects the Canadian community it serves — diversity and inclusion initiatives are the mechanisms used to reach these goals. Diversity and inclusion in practice is not just about the PPSC “looking” more like the public it serves — it is something that encourages a wider perspective and range of discussion on how the PPSC operates, including, but not limited to, promoting cultural sensitivity amongst Crown counsel, managers, and employees, removing barriers to advancement, increasing workplace engagement, and attracting and retaining diverse talent.

The PPSC has taken steps to become a more inclusive workplace, including in September 2020, the Director of Public Prosecutions, Kathleen Roussel announcing the “Bias Free Workplace Initiative” and appointing two Champions to work with the National Diversity and Inclusion Committee to engage with employees across the country on issues such as the PPSC’s recruitment, development and retention practices and how the leadership team 18 BARTALK / APRIL 2021

at all levels can better reflect the diversity of the organization as a whole and Canadian society more generally.

The Champions were given independence regarding how the initiative should be implemented. One of the most challenging aspects of this initiative was devising a strategy on how to engage with staff given that employees were located all across the country and travelling to each regional office was not going to be possible.

Since most employees were working at home due to the COVID-19 pandemic, virtual round table discussions for employees, supervisors, bargaining agents, and senior management across the country were undertaken. The Champions created a safe space for employees to engage in discussions without management present and a separate platform was created to allow participants to communicate anonymously.

Having had their own lived experiences relevant to this discussion, the Champions knew that it would be difficult for participants to speak openly about systemic discrimination and racism. For many racialized Canadians, fear of reprisal and being stigmatized can prevent them from speaking out.

In practice, the level of engagement was dependent on individuals being comfortable enough to share their own lived experiences of working at the PPSC. For example, in one instance, when an employee shared an

experience of being overlooked for promotions because that person did not fit in with the office culture, others became more comfortable to speak up and share their own experiences, including offering feedback and solutions for change. Since October 2020, twenty-two round table discussions have been held and significant oneon-one discussions and anonymous communications have taken place.

The key themes arising from the round table discussions were ensuring the PPSC attracts, hires, and develops diverse talent, and creates and maintains a culture of awareness and belonging.

The Champions will embark on writing a final report offering recommendations relating to these key themes. The recommendations will include actions for immediate implementation as well as long-term goals to be implemented both regionally and nationally.

The goal of the Champions is that the engagement at all levels of the PPSC and the recommendations in the final report will be the catalyst for positive change toward making the PPSC a bias-free workplace, where everyone feels they belong and can advance in the organization regardless of their gender, race, ethnicity, ability, or sexual orientation.

Workplaces that encourage diversity and inclusion are generally more successful and healthy organizations that perform better and an inclusive PPSC that reflects the public it serves will strengthen the legitimacy of the judicial system, which is part of the effective functioning of our society.

Baljinder K. Girn is senior Crown counsel with the PPSC’s Vancouver office and coChampion of its Bias Free Workplace Initiative. She also serves as a Director-at-Large on the CBABC’s Board of Directors.

feature SALIMA SAMNANI

This is Your Problem Diversity and anti-racism

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lack of diversity and anti-racism work upholds structures of power that favour racial discrimination. Every level of court has settled on this understanding of racism.

Racial discrimination is personally painful as it tears at those that are continually shut out of realizing their full potential as lawyers, and these negative effects trickle down for generations.

What’s in it for you to do this challenging work? You get to live in an equal and just society. This is a tangible personal gain. And if only dollars drive your decisions, research has shown that having an inclusive workforce with equal opportunity increases profits and productivity.

Further, clients want to be served by diverse counsel. Have a look at Coca-Cola’s demand that its outside counsel meet diversity targets or risk losing lucrative contracts. Their frustration, which is widely shared, is that diversity in the law has progressed glacially at best.

And when we do see a commitment to diversity, it typically consists of solely increasing the numbers of a certain racialized group. This approach fails to consider what it means for members of racialized groups to enter a workplace that has not confronted racism and oppression in its programs, policies, practices, and culture — structural racism. Diversity programming that is divorced from anti-racism work

is harmful and leads to the personal degradation of people that already suffer too much.

Anti-racism requires law firms, governments, law schools, and the judiciary to turn the mirror on themselves to scrutinize and dismantle racist systems that are deeply and historically embedded.

Anti-racism work requires the creation of a welcoming workplace where diversity can flourish, and uncomfortable conversations can be had with cultural humility. The benefits of diversity and inclusion are not unlocked by the mere presence of difference around the table, but by a culture that allows difference to infuse structural and programmatic decisions.

If you believe that your organization does not need to engage in antiracism work, then your organization needs it the most. Every single institution is affected by structural racism.

When there is no process for racialized communities to speak-up with safety and see tangible change, the options are to retreat or go public.

Cancel and call-out culture are in part a result of the rising frustration

with the long tradition of silencing racialized people.

If you believe that your organization does not need to engage in anti-racism work, then your organization needs it the most. Every single institution is affected by structural racism. In The Atlantic article Denial is the Heartbeat of America, Ibram X. Kendi writes, “Sexism, racism, homophobia, and anti-Semitism — instead of being seen as systemic and pervasive — are dismissed as being carried out only by those individual red hats and rednecks. Thus, the marginal response to the carnage.”

It is racism that has seen Canada deprived of an Indigenous jurist on the Supreme Court of Canada. It is not a merit deficit that has seen Indigenous peoples shut out of the highest levels of power. It is structural racism cloaked in the insidious belief that qualified candidates are simply nowhere to be found.

If you still believe cultivating diversity and being anti-racist is not something you or your workplace needs to engage in, I leave you with the words of Supreme Court Justice Rosalie Abella, “Indifference is injustice’s incubator; it’s not just what you stand for, it’s what you stand up for; and we can never forget how the world looks to those who are vulnerable.” Regardless of whether we recognize it, we are all either supporting or dismantling structural racism.

Salima Samnani is a lecturer at the Peter A. Allard School of Law and runs a litigation boutique focused on complex workplace investigations.

APRIL 2021 / BARTALK 19

nationalmagazine CBA NATIONAL MAGAZINE

by Sania Chaudhry

Anti-Racism as Part of Continuing Professional Development IT’S ESSENTIAL TO ADVANCE SYSTEMIC CHANGE AMONG LEGAL PROFESSIONALS.

CBA NATIONAL MAGAZINE by Justin Ling

Addressing Racial Injustice THE SCC HAS SEVERAL OPPORTUNITIES AHEAD TO TACKLE SYSTEMIC RACISM IN OUR CRIMINAL JUSTICE SYSTEM. By the numbers alone, it’s hard to ignore the systemic racism baked into Canada’s justice system.

Indigenous peoples represent 27% of federal inmates while accounting for 5% of the overall population of Canada. Black and Indigenous peoples are more likely to be charged with crimes that carry mandatory minimum sentences. Racialized representation on juries is sorely lacking. Courts are still predominantly presided over by white men.

Now the global protests against racism triggered by the killing of George Floyd in Minneapolis in May have heightened demand for changes in policing and criminal justice and put new pressure on our governments to act.

Obviously, there’s no substitute for lawmakers and government leaders committing to taking definite action.

In the meantime, it’s noteworthy that we’re beginning to see signs emerge of a Supreme Court more forcefully tackling issues of racial justice in its rulings lately. But can the court really have a meaningful impact on the workings of our criminal justice system?

In the past year, the top court handed down decisions in R. v. Le and R. v.

Ahmad, two cases at the intersection of race and policing. In the former, the court found that racial profiling offended Canadians’ section 9 right to be free of arbitrary detention. It also engages s.24(2), which forbids evidence obtained by means that would bring the administration of justice into disrepute. In Le, the majority court plainly recognized the “common and shared experience of racialized young men: being frequently targeted, stopped, and subjected to pointed and familiar questions.”

Read the full article 20 BARTALK / APRIL 2021

Racial disparities exist in the law: in its application and its impacts, as an access to justice issue and in the experiences of legal professionals.

Continuing professional development — an essential part of ensuring professional competence among legal professionals — must address this reality. It is all the more pressing that this be done, given the anti-racism and diversity issues that have come to the surface in recent years.

There’s more to competency than getting training in anti-racism, beyond merely diversity, and developing the cultural competency to address client needs. Lawyers must have the knowledge and understanding if they are to take part in changing and disrupting systemic racism and racial disparities.

As a racialized female lawyer who is also a young mother, racial disparities have been all too apparent to me throughout my studies and in my practice. But they are not at the forefront of all lawyers’ minds. Any mandatory CLE program should have courses geared toward race, cultural competency, and anti-racism so that all lawyers are equipped with the tools to serve diverse clients, to be allies to diverse lawyers, and to be agents of change.

Read the full article

CBA NATIONAL MAGAZINE

by Dustin Klaudt and Lisa M.G. Nevens

No Need to Guess TITLE AND PRONOUN USE IN BC COURTS ARE CHANGING WITH THE TIMES. IT’S ONLY COMMON SENSE. Measures to properly identify and respectfully address participants in litigation are well-established in our court procedures and professional practice. We introduce ourselves in court by spelling our names and identifying who we represent in the proceedings. We are careful to call doctors, Doctor; professors, Professor; and opposing counsel, our friends. We ask witnesses whether they wish to swear or affirm, and quickly correct ourselves when we mispronounce someone’s name.

Yet when it comes to people’s gender, we have, until recently, relied on assumptions based on name, appearance, or voice. Or, if those prove unhelpful, we just hazard a best guess.

Fortunately, increased awareness and recognition of the harms of this approach signal that it is time to refresh our professional practice and procedures related to gendered language. The recent changes to courtroom practice introduced by the BC Provincial Court and BC Supreme Court reflect this approach. The courts now ask that those appearing in court provide their titles and pronouns in their introductions. Updating our courtroom introductions in this manner ensures that the judge, court staff, and other parties are aware of how to address everyone properly.

Misgendering in Court Happens Regularly Introduction directions may seem unnecessary if you have never been misgendered. Just as if your last name is Smith, it may seem unnecessary to spell your name at every appearance. Or if you know everyone in the courtroom, it may seem unnecessary to introduce yourself at all. Yet you do.

Read the full article

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APRIL 2021 / BARTALK 21

practicetalk DAVID J. BILINSKY

Changing Methods in Legal Education Something new is coming r Something new is going on tonight I like this grove, it makes me feel so right Darling you know you better hold on tight Something new is coming on tonight... r

— Music and lyrics by A. Mae, N. Yanofsky, F. Golde, J. Faulker, H. Hancock, J. Watley, A. Cymone, R. Kleiner, Q. Jones and recorded by Andrea

I

n an article published February 21, 2021 in legalfutures. com entitled “Legal education and training: Unfit for purpose,” Professor Chris Bones states: “The revolution starts now.

Legal education and training is not fit for today, let alone the future….”

Prof. Bones is Chair of CILEX, the Chartered Institute of Legal Executives (“CILEx”) in the UK. CILEx is the professional association for 20,000 Chartered Legal Executive lawyers, paralegals, and other legal practitioners in England and Wales. They are recognized in England and Wales as one of the three core approved regulators of the legal profession alongside barristers and solicitors.

CILEx offers education and training to become a legal secretary and an apprentice program that leads to being a paralegal, advanced paralegal or Chartered Legal Executive and Chartered Legal Executive Lawyer.

While traditional lawyers are generalists on graduation, CILEX lawyers can achieve a specialist designation on graduation in: Dispute Resolution; Criminal Litigation; Residential Conveyancing; Commercial 22 BARTALK / APRIL 2021

Conveyancing; Employment Law; Business & Commercial Law; Family Litigation; Wills & Probate; or Immigration Law. CILEx claims that their professionals are demonstrably more diverse and representative of the UK population than their peers in other branches of the profession. CILEX does not restrict access to candidates with a specific set of prior qualifications; it opens up the profession to people from all backgrounds, including those who have not gone to university.

Their education program requires their students to work in a legal environment from the very beginning of their studies. CILEx states

... students apply their learning to practical scenarios and build and refine the skills... that students apply their learning to practical scenarios and build and refine the skills of a practising lawyer as they progress. They claim that their model requires their employers to validate their experience and competence at every stage, meaning practical, work-based skills are “baked-in” to the training and that CILEX trainees become adept at using legal expertise to address real-world challenges for their clients from the outset.

They recognize that legal technology holds immense potential to benefit both the consumer and the legal services provider by improving efficiency, by reducing costs and by enhancing accessibility. CLIEx states that they support the responsible uptake of technology and innovation in the legal sector, insofar as such progress continues to benefit the consumer.

CLIEx states that they have a focus on technical expertise and practical skills with the development of the core behaviours required to create forward-thinking, commercially minded, adaptable lawyers who really understand the clients they serve.

The CLIEx Professional Qualification (“CPQ”) program “sets new standards in practice-focused training and work-readiness, broadens access to legal careers and develops professionals at all levels who are equipped from the outset to add real value to their employers and clients.”

Students will be able to register for CPQ in June 2021. Something new is coming.

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, Practice Management Advisor (on leave), Law Society of British Columbia Email: daveb@thoughtfullaw.com Blog: thoughtfullaw.com

dave’s techtips Where does Canada rank in terms of the Rule of Law, Civil Liberties, Diversity and other indices?

LET’S HAVE A LOOK. The World Justice Project Rule of Law Index 2020: Covering 128 countries and jurisdictions, the Index relies on national surveys of more than 130,000 households and 4,000 legal practitioners and experts to measure how the rule of law is experienced and perceived worldwide.

More countries declined than improved in overall rule of law performance for a third year in a row, continuing a negative slide toward weakening and stagnating rule of law around the world. The majority of countries showing deteriorating rule of law in the 2020 Index also declined in the previous year, demonstrating a persistent downward trend. This was particularly pronounced in the Index factor measuring Constraints on Government Powers.

The declines were widespread and seen in all corners of the world. In every region, a majority of countries slipped backward or remained unchanged in their overall rule of law performance since the 2019 WJP Rule of Law Index.”

Denmark, Norway, and Finland were the top three in the WJP Rule of Law Index rankings in 2020. Canada ranked 9th, unchanged from 2019.

Venezuela, Cambodia, and DR Congo had the lowest overall rule of law scores — the same as in 2019. Not surprisingly, the USA fell out of the top 20.

Countries with the strongest improvement in rule of law were Ethiopia (5.6% increase in score, driven primarily by gains

in Constraints on Government Powers and Fundamental Rights) and Malaysia (5.1%, driven primarily by gains in Constraints on Government Powers, Fundamental Rights, and Regulatory Enforcement).

The most downward movement in the rule of law was seen in

Cameroon (-4.4%, driven primarily by falling scores in Order and Security and Fundamental Rights) and Iran (-4.2%, driven primarily by falling scores in Criminal Justice).

The Civil Liberties Index as of 2020 lists the top five countries as: Finland, Luxembourg, Norway, Sweden, and Netherlands. Canada was 6th.

When looking at Political Rights, Canada is the top country in the world! The top five counties list also includes Uruguay, Australia, Japan, and New Zealand.

Interestingly, the USA ranked 66th, below Trinidad and Tobago and just ahead of South Korea.

Wikipedia lists countries by Ethic and Cultural Diversity (as opposed to genetic diversity).

Here the top five countries are: Tanzania, DR Congo, Uganda, Liberia and Cameroon. In this ranking, Canada comes in at 59th just below Malaysia and the USA came in at 84th, below Guatemala.

In terms of racism, Businesstech, in 2016, ranked the most racist countries are: India, Lebanon, Bahrain, Libya, and Egypt. The report listed the 25 most racist countries and Canada was not included in that ranking and neither was the USA. South Korea was 10th and Japan was 25th. © 2021 David J. Bilinsky

APRIL 2021 / BARTALK 23

feature RAMINDER K. HAYRE

The Impact of the Indian Farmers’ Movement on Canadians

I

ndia is currently holding the largest peaceful protest in history. Over 12 million protestors are inhabiting various borders on the streets of Delhi (India’s capital) in tents, tractors, and trucks. Thousands of individuals have joined from other parts of India, alongside the world’s brown diaspora. Since November 2020, protests have occurred for 1) The right to a democratic and peaceful protest, and 2) For the repeal of laws, which millions of people believe will be detrimental to the lives of Indian farmers.

These laws were passed during COVID without consultation of farmers, and opposition parties. In short, they do not guarantee farmers a minimum support price for their crops (previously regulated), they restrict farmers from going through a dispute in court, and allow corporations to withhold monies owed.

When you think of a democratic protest, do you picture water cannons, batons, tear gas, and police brutality? This is how their rights have been defined on several occasions under S.19 of India’s Constitution, which allows for a peaceful protest without arms. This may seem far away, but the last 90+ days have shown that this movement involves worldwide oppression, discrimination, and barriers when cultural competency is not practised.

Many South Asian lawyers in BC are first or second-generation Canadians — many having ties to farming in India.

24 BARTALK / APRIL 2021

As Canadian or British Columbian lawyers, the right to a democratic process is at the forefront of our practice, the judiciary, and the rights of the public at large. What has become apparent is that the [perceived] duties that lawyers may uphold as advocates for society, is diminished when freedom of information, and expression is tampered with.

Both online and television news outlets have spread misinformation, and have taken a strong tone by calling Canadian protestors extremists. Their attempts for the release of rapid information fell flat as they spread propaganda to the masses.

This has had long-lasting effects as protestors in Canada have had to correct the media. If the legal profession chooses to ignore this, then only the layperson will seek justice and accuracy. BC law-

In order to understand our clients, we have to find ways to empathize or educate ourselves in their experience. yers take an oath that includes, “upholding the rule of law and the rights and freedoms of all persons according to the laws of Canada and BC.” The law — is arguably the truth.

How this plays a role in “cultural competency” may seem convoluted, but it is simple. Lawyers apply the Canadian Charter, and within that

comes the safeguard of not being discriminated against. The lack of awareness around how discrimination exists in different demographics is crucial to having a well-rounded understanding of the professionals we work alongside, and the general population we aim to represent too.

In order to understand our clients, we have to find ways to empathize or educate ourselves in their experience. Telling one that the situation is foreign, means that lawyers restrict what it takes to “fit in.”

The intersection of oppressive factors like race, religion, socioeconomic status and so forth are concerns that the legal profession has been addressing when it comes to addressing, “unconscious bias” as a systemic barrier. This resistance limits access to justice as it is within not just the system, but the professionals as well.

The world looks to Canada and progressive provinces like BC to see how individuals that, “want equality,” are treated. Though there is arguably a long way to go with establishing protocol for equitable change, dismissing the voices of those abroad as “international and not global concerns,” will inevitably redefine our melting pot and multicultural country as one of privilege and oppression. Those that are immigrants, and refugees will be forced to assimilate at rapid speeds. Lawyers are “public doers.”

If racialized individuals are told that their voice is not attributable to the Canadian democracy, how is the profession culturally competent?

Raminder K. Hayre is a commercial litigator in Vancouver, and was called to the BC Bar in 2018.

feature

SIMMI K. SANDHU

The Need for Diversity on Administrative Tribunals and Boards “If we are to fully meet the challenges of judging in a diverse society, we must work toward a bench that better mirrors the people it judges.”

— The Right Honourable Beverley

McLachlin, P.C., former Chief Justice of Canada

A

s true as this is for the judiciary, it may be even more so for administrative tribunals and decision makers.

Administrative tribunals make a wide variety of decisions that affect all aspects of our lives: from workers’ compensation and safety, residential tenancies, protection against discrimination, drivers’ licensing, small claims and strata disputes, to property assessment and taxation. It would be fair to say that the lives of British Columbians are more often affected by the administrative justice sector of the legal system than any other sector, including the courts.

Therefore, it is imperative that tribunals reflect the population they serve.

Decision makers strive to be neutral and impartial, but are also shaped by their life experiences and perspectives from their communities. A representative tribunal or Bench allows these different experiences and perspectives to inform a deeper and fuller understanding of issues and, as well, enhances public confidence in the decisions.

WHY BE ON A TRIBUNAL? It is a form of rewarding public service.

By making fair and impartial decisions that directly affect the lives of parties, tribunal members provide

an important public service in the specific areas that they operate.

DIFFERENT TYPES OF APPOINTMENTS: Not only do tribunals offer positions in a variety of subject matters, there are different types of appointments available. Most tribunals have full-time and part-time (or “as needed”) members. Some part-time members adjudicate a few cases per year while others may work almost full time in their roles adjudicating, mediating and managing cases. The level of commitment and participation required depends on workload, availability, and also the member’s interests and qualifications.

Some tribunals are “expert” tribunals that require specific expertise from their members. For example, members of the Property Assessment Appeal Board should have expertise in property valuation (as appraisers or other real estate professionals) or in law (particularly statutory interpretation).

It is critical that tribunal members not only be representative of British Columbians, but qualified to make complex and wide-reaching decisions.

THE APPOINTMENT PROCESS: Section 3 of the Administrative Tribunals Act, SBC 2004, c 45 provides that a member may be appointed by the appointing authority (cabinet), after a merit-based process and consultation with the chair, to hold

office for an initial term of two to four years with reappointments for up to five years.

The appointment process can be slightly different for full-time or part-time members and for different tribunals. Generally, if appointments are required by a tribunal, the Crown Agencies and Board Resourcing Office (“CABRO”) will post a Notice of Position outlining the position’s requirements and core competencies. Once closed, candidates will go through a merit-based process, which can include shortlisting, written assessments, oral interviews and reference checks.

The process for parttime appointments may be less rigorous. The chair will then recommend a candidate to CABRO, who will place the request on cabinet’s agenda. If agreeable, cabinet will issue the appointment through an Order in Council.

Treasury Board Directive 1/20 mandates the categories and range of remuneration for each tribunal. The level of remuneration can be a barrier but this can be balanced with the rewards of public service, worklife balance, and interesting adjudicative issues.

Lawyers and other legal professionals should consider serving on administrative tribunals not only because decision makers need to better mirror the people we serve, but because diversity leads to better and more inclusive decision making.

Simmi K. Sandhu, Chair of the Property Assessment Appeal Board, acting Chair of the Circle of Chairs, Judge of the United Nations Appeal Tribunal, and prior recipient of the British Columbia Council of Administrative Tribunals Award for Exceptional Service to the Administrative Justice Community.

APRIL 2021 / BARTALK 25

communitynews TIPS FROM

DIVERSITY, INCLUSION, PROXIMITY, AND DISCOMFORT

As with many firms and organizations in the justice sector, CLBC has verbalized our commitment to diversity, respect, and equity inclusion.

Our job postings do this, as did our recent call for volunteer Board members, which explicitly invited racialized, non-urban, Indigenous, and other individual members of historically underrepresented communities to join our governance. This said, ending systemic injustice is rarely as simple as writing the ending in our policies.

Bryan Stevenson, the well-known US attorney, author, and founder of the Equal Justice Initiative, talks about four necessities for tackling hard issues: Proximity, Narrative, Hope, and Discomfort. The middle two need less explanation, but Proximity means this: to end a problem, you must first live inside and become intimate with it (it must be personal). Discomfort means embracing uncomfortable feelings as a normal part of the learning experience.

One way our staff has found to do this harder, more intimate work is to invite an anti-racism facilitator to kick off conversations with us. This led to an internal anti-racism book club, plus an area of our intranet for sharing diversity and inclusion resources of all kinds. Systemic racism, personal racism, white fragility, white supremacy’s dominance in oppressive systems — these are all terms that status quo institutions should get intimate with. Books like How to be an Antiracist, Me and White Supremacy, and White Fragility may not replace the need for equity-minded policies, but they bring true intimacy into the equation more so than obverse terms like equity, diversity, and inclusion. These titles may not be among our own library collection, but they are eye-opening books to start with for anyone in the legal sector.

CLEBC Update TRANSFORMING LEGAL PRACTICE: LAWYERS INCREASING ACCESS TO JUSTICE On January 27, 2021, we proudly co-sponsored the Access to Justice BC event “Transforming Legal Practice: Lawyers Increasing Access to Justice,” along with CBABC, The Law Foundation of BC, and the Law Society of British Columbia.

The session inspired attendees to meet the legal needs of British Columbians in new ways. Keynote Speaker Rebecca Sandefur of Arizona State University,

26 BARTALK / APRIL 2021

and Fellow at the American Bar Association, discussed all the sides of access to civil justice, and a panel of BC lawyers shared how they transformed their practices with initiatives like unbundled services, transparent pricing, e-signatures, online payments, and fully cloudbased and paperless practices.

of the Divorce Act, the Child Support Guidelines, the Supreme Court Family Rules, and the Provincial Court Family Rules.

In our continued effort to promote access to justice in BC, we are pleased to be able to share the recording of the presentation available here: cle.bc.ca/a2jbc

The update to the British Columbia Family Practice Manual will also be released in May and will discuss the changes to practice and legislation, including the new procedures at Provincial Court, and provide many of the new and revised court forms for Supreme and Provincial Court in Word format.

SIGNIFICANT NEW FAMILY LAW DEVELOPMENTS

To view all of CLEBC Family Law resources, visit: cle.bc.ca/fam21.

This year’s edition of Annotated Family Practice will be released in May and will contain consolidations

professionaldevelopment

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

CBABC Professional Development webinars are designed to meet the needs of lawyers to advance their career, practice, and business. We produce programs that provide the required professional responsibility and ethics, client care and relations, and practice management components for your Law Society reporting.

PD Webinars & Virtual Conferences A Virtual Townhall with Chief Justice Hinkson on Virtual Court

Date: Friday, May 14, 2021 Time: 9:30 a.m. - 3:30 p.m. PT CPD: 6 Hours uuu Register

Date: Thursday, April 15, 2021 Time: 4:30 p.m. - 5:30 p.m. PT CPD: 1 Hours uuu Register

Fraser Valley Regional Virtual Conference 2021

Date: Friday, April 16, 2021 Time: 10:00 a.m. - 3:00 p.m. PT CPD: 4 Hours uuu Register

BC Northern Law Talks 2021 The Law Talks return to Prince George — a yearly law conference that provides the northern Bar with access to required substantive legal education.

Annual Administrative Law Case Law Update The CBABC Administrative Law Section’s popular annual Admin Law Case Law Update is back for 2021. Meera Bennett and Katie Webber from the Ministry of Attorney General lead this session that examines key decisions of the past year, including the post-Vavilov landscape and how the revised standard of review framework has been applied so far in BC.

Moderated by CBABC President Jennifer Brun, Chief Justice Hinkson joins us for an open discussion about developments on Virtual Courts in Civil & Family Matters in the Supreme Court.

For practitioners in the BC Fraser Valley and surrounding areas, we bring you a half-day conference dealing with substantive areas that matter in the Valley.

Section Meetings

Date: Thursday, April 22, 2021 Time: 12:30 p.m. - 2:00 p.m. PT CPD: 1.5 Hours uuu Register

Ethical Considerations for Everything Practitioner Aleem S. Bharmal, QC and Michael F. Welsh, QC involve audience members in virtual breakouts to discuss practical ethics scenarios in a relatable way, using real-life ethical dilemmas, case studies and the Code of Conduct.

Date: Thursday, May 20, 2021 Time: 12:00 p.m. - 2:00 p.m. PT CPD: 2 Hours uuu Register

Tips and Traps for Drafting Trust Deeds and Wills Trusts The CBABC Wills & Trusts — Vancouver Section hosts Andrea Frisby and Laura Peach of Legacy Tax & Trust Lawyers for a discussion about trips, traps, and considerations for drafting trust deeds and wills trusts.

Date: Tuesday, April 13, 2021 Time: 4:15 p.m. - 5:45 p.m. PT CPD: 1 Hours uuu Register

DID YOU KNOW? Almost all of CBABC`s webinars are recorded for on-demand viewing — you can access them anytime from anywhere! Visit our On-Demand Catalogue uuu Access here!

If you have a suggestion about a Professional Development program that you would like us to pursue, contact pd@cbabc.org with your idea.

APRIL 2021 / BARTALK 27

nothingofficial TONY WILSON, QC

I Am Not a Cat

Misadventures in Zoomland

B

y the time you read this, every lawyer in the world, (plus a few billion others), will have heard about poor old Ron Ponton, a lawyer in Texas, who was appearing at a hearing on Zoom in front of Judge Roy Ferguson.

However, Mr. Ponton wasn’t quite himself that day. On the split screen, there was Judge Ferguson, opposing counsel, and a cat. The unfortunate Mr. Ponton was using his assistant’s computer, but her computer’s video settings were somehow set to “Cat Mode” and Mr. Ponton was forced to do his Zoom hearing… as a cat.

He couldn’t remove the “cat filter” from the computer. Seeing his feline doppelgänger on the screen, miraculously moving its mouth and eyes in total sync with Mr. Ponton’s mouth and eyes, he stated the obvious: “I am not a cat.” He told the judge he didn’t know how to remove the cat filter but that he was prepared to go forward with the application. Mr. Ponton has become an Internet celebrity, particularly among cat ladies.

I can only assume the notoriety has been good for his business and that he will be doing commercials for Purina in the coming months.

Given the pandemic, and the prevalence of meeting clients, friends, family, and students on Zoom, FaceTime, or Teams, it appears that some people are not quite ready for prime time. In fact, because everyone seems to do everything on Zoom these days (apparently, even sex), I’m waiting for the next conspiracy theory to circulate that blames Zoom, Amazon, Peloton, Skip the Dishes, and Bill Gates for the pandemic.

28 BARTALK / APRIL 2021

Mr. Ponton and his cat filter might be the best example, but there are others. The Internet is filled with examples of Zoom attendees swearing, accidentally catching fire, dealing with their pimples, and even going to the toilet.

BBC Wales interviewed Yvette Amos in January about the pandemic.

However, anyone watching the interview couldn’t help but notice between the books and board games on her bookshelf stood a conspicuously large, erect pink plastic penis.

One journalist tweeted “perhaps the greatest guest background on BBC Wales News Tonight. Always check your shelves before going on the air.” Another tweeted “Everyone has a dildo on their bookshelf, don’t they?”

In February, Dr. Scott Greene, a California surgeon, appeared in a virtual court hearing wearing a surgical mask and scrubs because, of course, he was in the middle of performing surgery. Despite assuring the court that he was ready for trial, the judge rescheduled it, saying it wasn’t appropriate for the welfare of the patient for Dr. Greene to be operating during a trial. Surprisingly, the California Medical Board is investigating Dr. Greene’s conduct (and his ego). Now why would they do that? Can’t everyone perform surgery during a trial?

Cat filters, dildos and surgery may be the extreme end of the Zoom fauxpas spectrum, but it’s easy to make

other goofs. You might think that your video is off, but it is on (embarrassing when one has to go to the loo). You forget to activate your mute button (also embarrassing when you have to go to the loo). Or you send private messages via Zoom chat and discover to your horror that they are not so private. Or you’re sharing your screen, but everyone can see what’s on your desktop.

I have become more adept at Zoom over the past year (by necessity), although, I’m not competent to perform surgery quite yet.

I’ve been teaching legal ethics to about 110 students every year at TRU Law School since 2015. Now, because everything is virtual, I prerecord asynchronous lectures. I then do two “live” Zoom classes on Tuesdays and Thursdays with students who are all over Canada. The students have reluctantly accepted this “new reality” and have seemed to have adapted well enough.

Needless to say, I do not have a cat filter. I am not conducting surgery while on Zoom. And there is nothing remotely sexual in my bookcase, although if there were, maybe I would get on the BBC News and become an Internet sensation.

Tony Wilson, QC is a Life Bencher of the Law Society, a Vancouver Franchise Lawyer, humourist, self-professed thought leader and all-around raconteur. Consequently, the views expressed herein are his alone and do not reflect the opinions of the Law Society, the CBABC, or their respective members.

communitynews

By Cherise Seucharan

“There has to be better way.”

— How one lawyer hopes to address trauma in the legal profession with a new toolkit In her almost fifteen years as a lawyer working with clients from all walks of life, Myrna McCallum has come to realize that there was an important piece missing from her legal education. One of those key experiences came early in her days as a Crown Prosecutor, when she had to prepare a child for the trial process in a case involving sexual assault. “I had to think, how am I going to do this in a way that does no further harm to this little person who’s already been seriously harmed. And I really had nowhere to look for that information,” she said.

McCallum, a Métis-Cree mother and grandmother from Treaty Six territory (Green Lake & Waterhen Lake First Nation), found that using her great grandmother’s traditional teachings, and her own intuition, helped her understand that she had to first build a relationship of trust with the young victim and his parents, before she could guide them through the trial process in an open and transparent way.

“I didn’t learn about trauma in law school,” she said, an issue considered in the first episode of her podcast, The Trauma-Informed Lawyer. “I was not prepared for having to deal with the human suffering that I was confronted with every day in the courtroom. And I really wish somebody had given me a heads up on that piece.”

Her own experiences taught McCallum the importance of teaching others about trauma-informed lawyering, for the mental health of both clients and lawyers. “Learning about how trauma presents in clients and witnesses and even in ourselves, is a critical competency that we have all missed in our legal education.”

McCallum also saw a strong connection between trauma-informed lawyering practices and avoiding causing further harm to Indigenous communities, which had experienced significant and ongoing trauma from the colonial legal system.

At Golden Eagle Rising Society, an organization with a mission to protect Indigenous lives — and where McCallum serves as in-house counsel — she helped to create the Trauma-Informed Legal Practice toolkit. The 35-page resource has contributions from a diverse list of legal professionals, and includes chapters on the impact of trauma on the brain, building trauma-informed lawyer-client relationships, and trauma informed practices in the courtroom. It also contains an extensive list of mental health resources to help lawyers manage vicarious trauma.

With the launch of the toolkit, as well as the growing popularity of her podcast, McCallum has begun to attract interest from law schools seeking to educate their students on trauma-informed lawyering.

McCallum said, “I really think that becoming trauma informed is going to transform, not just the way we practice but the way we treat ourselves and the way we treat each other. I’m so passionate about it and I honestly feel like this is going to change the profession.”

APRIL 2021 / BARTALK 29

barmoves Who’s Moving Where and When

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/BARMOVES.

Timothy D. Goepel

Janessa Mason

joined Watson Goepel LLP’s Litigation & Dispute Resolution group as a partner.

Timothy conducts a broad civil litigation practice.

joined Ascendion Law as an associate lawyer with a focus on commercial litigation. She enjoys representing her clients as they restructure, operate, and dissolve their businesses.

Ibrahim Halawi

Ruby Egit

joined Clark Wilson LLP’s Capital Markets, Securities, Mergers & Acquisitions group.

returns to Branch MacMaster LLP practising primarily in the areas of class actions and insurance litigation.

Nadia Rowe

Siobhan McConnell

joined Clark Wilson LLP’s Higher Learning group.

joined Branch MacMaster LLP, practising primarily in the areas of class action and insurance litigation.

Jeanne Posey

Mark Braeder

joined Harper Grey LLP’s Wills & Estates team of their Business Law group. Jeanne assists individuals and businesses with their succession planning and estate planning.

joined Webster Hudson & Coombe LLP as an associate. Mark focuses primarily on wills and estates, real estate, business, and corporate commercial law.

Jeff Sheremeta

Almira Esmail

joined Harper Grey LLP’s Securities and M&A team of their Business Law group. Jeff was previously senior in-house counsel at Vision Critical.

joined Eyford Partners LLP as an associate. Almira practises in the area of insurance, bodily injury, property and casualty claims, and general civil litigation.

30 BARTALK / APRIL 2021

Take advantage of CBA's complimentary on-demand programs to complete your annual CPD requirements.

Keep up with technology trends in the practice of law.

Explore ethical issues and professionalism.

Stay on top with practice management modules to find clients and get paid.

Be well with programs dedicated to lawyer well-being.

INVALUABLE PROFESSIONAL DEVELOPMENT. ALL IN WITH YOUR MEMBERSHIP. cba.org/FreePD

BRITISH COLUMBIA

Defined Benefit Pension Plan for Law Firms Most law firms have no pension arrangements at all. But that’s about to change. Lawyers Financial is partnering with CAAT, an $11-billion, not-for-profit trust, to launch DBplus, a defined benefit pension plan for law firms of any size. DBplus eliminates the funding risk for employers and creates a guaranteed retirement pension income for lawyers and staff. Everyone benefits.

For employers

For employees

• Attract and retain top talent.

• Earnings are predictable.

• Reduced costs, risks and administration.

• Reduced stress – no complex investment decisions.

• Eliminates compliance and fiduciary risks of administering a pension.

• Consolidate existing registered funds into DBplus.

The Bottom Line DBplus will provide a guaranteed retirement income that is paid monthly for life. On average, a member who participates over their entire career in DBplus is expected to receive approximately $8 in pension benefits for each $1 they contribute. DBplus is expected to launch for the legal community in mid 2020.

Sign up to receive updates at lawyersfinancial.ca/pension

Lawyers Financial products and plans are sponsored by The Canadian Bar Insurance Association (CBIA). Lawyers Financial is a trademark of CBIA. CAAT Pension Plan is a trademark of Colleges of Applied Arts and Technology Pension Plan.

04/2020