BarTalk Feb 2024 | Transportation & the Law

FEBRUARY 2024 | bartalkonline.org

Transportation & the Law

RAILWAY | SPACE | AUTOMATED VEHICLES | TRUCKING | DRONES

BRITISH COLUMBIA

LEGAL CONFERENCE Advance your career and stay current in your practice area.

BC Legal Conference shares the latest updates in substantive areas of law.

March 15

Immigration Law April 25–26

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Wills & Estates Law cbabc.org/conferences

2 BARTALK / FEBRUARY 2024

Transportation & the Law Features 6

FEBRUARY 2024 Volume 36 | Number 1

Columns

Risky Business — Container Trucking Compliance Monique Evans

From the President

4

Making the Case, One Email at a Time

Scott Morishita 7

Effective Arbitration Keeps Trains on Track Fazal Bhimji

9

Chief Executive Officer

5

Automated Vehicles and Insurance Companies Hessam Mehrabi

10

The Road Less Travelled

Through the Looking Glass

Kerry L. Simmons, KC Guest Column

12

A Small Reflection Randolph W. Robinson

Connor Bildfell

Guest Column

13

Navigating the Skies

18

16

Gold Rush in the Final Frontier Les Honywill

21

22

Federal Government Enacts Wave of New Shipping Industry AMPs and Increased Fines

Embrace AI David J. Bilinsky Guest Column

28

You Are Not Alone David Hay, KC and Roger E. Holland

The Turbulent World of Canada’s Air Passenger Rights Michael Dery

23

PracticeTalk

24

Canadian Maritime Law Shelley Chapelski

Courthouse Libraries BC Caroline Nevin

Shaun Foster

Nothing Official

31

“Any Book Worth Banning is a Book Worth Reading.”

Tony Wilson, KC

Dionysios Rossi and Emily Pitre 27

Transporting Quantum Data Brandon Hastings

From the Branch 14

Advocacy in Action SectionTalk

30

Professional Development

8

From the Community CLEBC

17

New book updates from the Continuing Legal Education Society of BC The Law Foundation of BC

19

Access to Justice by Land and Sea Courthouse Libraries BC

19

Navigate Transportation Law — Or Any Other Subject — with CLBC BCLI

20

Have Your Say: Consultation on Parentage Law Reform

Isabel Jackson, Committee Chair Editorial Committee Emma Abdjalieva John Caldwell Demola Okeowo Miranda Wardman Lily Zhang Tonie Beharrell Dan Melnick Salim Visram Özge Yazar Deborah Carfrae, BarTalk Editor BarTalk is produced on the traditional and unceded territories of the Coast Salish peoples, including the Musqueam, Squamish and Tsleil-Waututh Nations.

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FROM THE PRESIDENT SCOTT MORISHITA

Making the Case, One Email at a Time

“

Shame on you for criticizing [a] government official...”

“Maybe you are too detached from everyday life to see it...”

I recently received an email from a member of the public. The individual expressed frustration about statements from CBABC responding to deeply concerning comments made by a government official on a criminal case.

There has been an uptick of government officials commenting on justice system matters in a troubling manner.

Recent examples include: Politicizing the issue of bail.

Inferring that a sentence imposed

in a criminal case was not appropriate and that judges lack sufficient training and education.

Commenting

on criminal cases in a manner that could lead to a perception that the prosecution service is not at arms-length from government.

Indirectly criticizing defence counsel

on a specific criminal matter and implying that the government will push for justice system changes in response.

appropriately to the problematic comments. In recent months, CBABC, the Law Society of BC, the Trial Lawyers Association of BC and others issued statements that were timely, forceful and articulate. Individual lawyers also provided informative quotes to the media and published educative and thoughtful opinion editorials.

The feedback CBABC received from members of the profession was supportive and appreciative. The feedback from members of the public, albeit small in number, not so much.

Comments by elected officials are generally intended to appeal to a broad spectrum of people and often politicize an issue. More specifically, their comments on justice system matters are often rooted in a false narrative that the system is broken. Or that the actors are selfinterested or out of touch. Or that we should be angry or afraid.

Unsurprisingly, our task in responding to such comments is an uphill battle.

These comments show a misunderstanding of, or worse, a disregard for principles of judicial independence, independence of the Bar, and prosecutorial independence and discretion.

They also risk undermining public confidence in the justice system.

As lawyers, we are used to discussing complicated legal concepts and facts with judges, other lawyers and clients.

Thus, we are typically dealing with people who have a similar or greater level of legal knowledge (in the case of judges or colleagues) or subject matter expertise (in the case of clients).

Lawyers have an obligation to contribute to greater public understanding of and respect for the legal system.

This obligation includes defending the judiciary when it is the object of unjust criticism. As expected, the profession responded swiftly and

It’s a completely different circumstance when dealing with members of the public. Explaining concepts like prosecutorial discretion to someone with limited legal knowledge is a difficult task. Explaining these concepts in the context of an unpopular position is even

4 BARTALK / FEBRUARY 2024

more challenging. Nevertheless, to meet our obligation to educate members of the public, we must work on our ability to communicate with them in ways that they can relate to and understand. As President, it’s a skill I’ve been working on, with varying degrees of success.

Fortunately for most of us, our interactions with the public are not through statements or media interviews, but rather in conversations with family and friends. As lawyers, we can view these as opportunities to educate others on concepts like judicial independence — although perhaps not using that exact term!

Equally important, we’ll learn about the concerns and fears that nonlawyers may have, so we can hopefully work to address them.

Not all of these interactions will be productive. For example, I never responded to the email that contained the quotes above. I did, however, receive another where the member of the public expressed forceful, but respectful, disagreement with CBABC. She concluded by saying she really needed to voice her concerns and thanked me for my time. I responded, and then she replied: “After reading your email, I have a better understanding of why it would have been inappropriate for the AG to make such comments.”

One at a time.

Scott Morishita

president@cbabc.org

CHIEF EXECUTIVE OFFICER KERRY L. SIMMONS, KC

Through the Looking Glass

Reflecting on independence and the state of society

A

s we start 2024, I’m worried about our democratic landscape here in British Columbia. Every week, if not every other day, there is another incident where I’m surprised at the comments of politicians, some lawyers, or media reports and editorials that don’t tell the full story, and are, cut by cut, challenging the rule of law.

At CBABC, we take to heart and action the duties of lawyers in the Code of Professional Conduct that include, “Judges, not being free to defend themselves, are entitled to receive the support of the legal profession against unjust criticism and complaint. Whenever there is proper ground for serious complaint against a judicial officer, it is proper for a lawyer to submit the grievance to the appropriate authorities.” We also note the duty to the state “to maintain its integrity and its law.” Here is another one: “A lawyer has a duty to uphold the standards and reputation of the legal profession and to assist in the advancement of its goals, organizations and institutions.”

When we introduce these ethics to law students, or explain them to family and friends, we must share examples of what these principles mean and look like in real life. It means getting the facts straight. It means learning about the administration of justice, the institutions, and the roles and responsibilities of the big players like the Attorney General, the legislature and the judiciary. Speaking up when unjust attacks are made. And it means not escalating or perpetuating public misconceptions.

The rule of law, that balancing of power among the executive, legislative and judicial branches, exists for the benefit of every member of our society. It isn’t for the benefit of lawyers or judges. It is there for the public. We lawyers need to stand up more frequently to educate and to explain what the law says and how judges go about making decisions. It’s hard given members of the public don’t always want to learn, but it is import­ant to calmly take the time to explain why these concepts matter.

Our Provincial Court has a great resource (bit.ly/bt0224ks1) you can use. The Canadian Judicial Council offers a straightforward guide (bit.ly/ bt0224ks2) as well. And we can’t forget the comparison of hockey and judicial independence in this CBA YouTube (bit.ly/bt0224ks3).

With thanks to Alison Latimer, KC and Greg DelBigio, KC, CBABC is presenting a half-day conference to assist lawyers to engage with these complex topics on April 12.

Featuring leading speakers from the Bar and Bench, we’ll examine judicial independence and a judge’s role in managing courtroom conduct, balancing lawyer independence and modern ethical responsibilities, and the latest in the regulation of lawyers.

This is a don’t miss opportunity.

There is too much at stake.

Standing up for judges doesn’t mean that we ignore or neglect ideas to

improve administration of justice.

Reforms and improvements are necessary to keep up with an everchanging society. Funding and other resources (like appointments to the Bench) must flow to the courts so they can meet public expectations and maintain public confidence.

Change leaders need to be encouraged, supported and protected.

CBA’s mission includes offering improvements to the administration of justice. CBABC continues to call for the return of virtual proceedings for simple and short matters. We encourage all actors in the courts to properly pronounce the names of parties, counsel and the judges, and receive their pronouns. Education to enable trauma-informed interaction with vulnerable litigants, including those asserting intimate partner violence or sexual assault, is critical to maintaining balance and confidence. And we need government funding to our courts and to our legal aid system to make it all work.

The landscape of our province and indeed the world is changing, providing opportunity for ideas to be accelerated into action. Respect for the rule of law and the actors who uphold it is essential.

Kerry L. Simmons, KC

ksimmons@cbabc.org FEBRUARY 2024 / BARTALK 5

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MONIQUE EVANS

Risky Business

Container Trucking Compliance

T

he regulatory landscape for container trucking in British Columbia and particularly the Lower Mainland is a direct response to the industry labour unrest of 2014. The current regulatory and licensing scheme aimed at those labour issues, however, creates logistical challenges for trucking companies and leaves them with compliance risk.

“Prescribed” container trucking services (movement of marine containers through the Port of Vancouver and within the Lower Mainland) must be carried out by companies licensed by the BC Container Trucking Commissioner, using “tagged” trucks. With broadly cast powers in the Container Trucking Act and Regulation, the Commissioner dictates the total number of container trucks permitted to operate in the Lower Mainland, which companies may operate those trucks, and how many tagged trucks each licensed company may operate. The Commissioner is also the sole individual dictating the terms of the container trucking services license (CTS Licence) and adjudicating compliance.

CTS Licences tend to expire every two years and whether or not a company is licensed again is at the Commissioner’s discretion. Although the Commissioner purports to consult industry on the CTS Licence terms, the Commissioner did not alter his proposed terms after the most recent consultation. As drafted, the CTS Licence terms can leave 6 BARTALK / FEBRUARY 2024

companies unsure about what they can and cannot do in order to serve their customers.1 See, for example, the CTS Licence prohibition on subcontracting to unlicensed companies. The prohibition is intended to prevent subcontracting to unlicensed companies in the Lower Mainland that do not pay regulated rates and in that context, the prohibition seems reasonable. However, when it comes to subcontracting for long-haul container trucking services (to and from locations outside of the Lower Mainland), the prohibition is unclear.

Despite the Commissioner stating in 2022 that the CTS Licence does not prohibit subcontracting to unlicensed companies performing long-haul container trucking services (which do not require a CTS Licence), the CTS Licence terms suggest otherwise, prohibiting “any Subcontract for Container Trucking Services with any party who is not a Licensee.” The CTS Licence does not clearly limit the prohibition on subcontracting to prescribed container trucking services — the services which actually require a CTS Licence.

If a licensee is unsure about subcontracting under the circumstances, it might think to perform long-haul container trucking services itself in addition to local drayage, but logistically speaking, that is not so simple.

As transportation to and from the Port of Vancouver requires the use of tagged trucks, a licensee must either use one of its few tagged trucks to perform a long-haul move instead of using it for multiple local moves — an approach which could put its tag at risk for under use — or use a tagged truck at the Port and an untagged truck beyond. This is where overbroad CTS Licence language strikes again, as the Licence requires licensees to use tagged trucks for all “container trucking services,” not just prescribed services. This is the same over-inclusive language that creates compliance concerns with subcontracting. Can a licensee use an untagged truck for non-prescribed container trucking services?

The legislation suggests yes, but the CTS Licence terms suggest no.

Compliance risk is not merely a financial concern for container trucking companies.

Non-compliance can put a company’s operations at risk.

A company’s ability to grow its businesses is limited by the size of its tagged fleet, which is determined by the Commissioner — the same individual that dictates and determines compliance with the overbroad, and in some cases unclear, CTS Licence terms. With all power vested in one individual, container trucking companies must proceed with caution, or risk their businesses.

The current CTS Licence and the Commissioner’s 2022 CTS Licence Amendments Consultation Report are viewable on the Office of the BC Container Trucking Commissioner’s website: obcctc.ca.

1

Monique Evans is Counsel at Hunter Litigation Chambers practising transportation law with a focus on rail, road and regulatory matters. linkedin.com/in/moniqueeevans

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FAZAL BHIMJI

Effective Arbitration Keeps Trains on Track

T

he first regularly scheduled railway service in Canada commenced in 1836 on a piece of track 16 miles long to facilitate commerce between Montreal and New York. The rail sector has a 75% union density and from its early days required a form of dispute resolution for labour matters.

In 1918, the Canadian government created the Canadian Railway Board of Adjustment to minimize the risk of labour interruptions during the war effort. Wages and hours of work were incorporated into existing agreements for rail workers and disagreements were decided by the Railway Board.

This bipartite Board remained in operation until 1964. Their decisions were provided without reasons and formed precedents. An increasing number of railway disputes were becoming intractable within the twoparty Board of Adjustment system.

Difficult cases were left unresolved and merely “referred back to the parties” for handling.

In 1965, CN, CP and four major unions representing railway workers signed a memorandum of agreement (MOA) establishing the Canadian Railway Office of Arbitration (CROA). The MOA established an office in Montreal, named a permanent arbitrator and a general secretary to manage the affairs of the office.

The CROA was guided by the parties’ mutual concern for: 1. Industry expertise and consistency of arbitration awards (primary concern).

2. Minimizing cost.

3. Efficient and expeditious processing of grievances.

CROA has issued about 3,700 awards of which only five or six have been judicially reviewed.

The CROA approach has been described by some as a more consensual and less adversarial approach to arbitration.

One of the keys to CROA’s success seems to be the obligation in the collective agreement and MOA for the parties to negotiate a joint statement of issues, which compels the parties to identify issues to be presented to the Arbitrator, thereby avoiding allegations of surprise and the related risk of adjournments and delay. Thus, less time is spent determining facts and more focus is placed on arguments.

The parties have developed a culture focused on the issues during pre-arbitration meetings to narrow issues and attempt to resolve matters.

Unlike ad hoc arbitration, having an arbitrator familiar with the parties and the unique issues that are present in railroad disputes provides for greater predictability and more consistent decisions.

The arbitrator schedule is set well in advance. Hearings are scheduled for three days every month except August; the second Tuesday; Wednesday and Thursday are reserved as regular

hearing days, essentially on a firstcome first-served basis and dismissal cases will take priority on request.

Minimal use of witnesses makes it possible for the arbitrator to hear 5-7 cases a day. Hearings generally take 1-2 hours and range from minor discipline to terminations, collective agreement interpretation cases from wage disputes to work jurisdictions and contracting out, which can have significant financial implications for the parties. A party can ask the arbitrator to allow a separate statement of issues. Witnesses are seldom called, and cases are pleaded without lawyers 90% of the time.

CROA provides written decisions, which are normally 2-4 pages in length but sometimes longer. Decisions are required within 30 days but are typically issued the following week.

This expedited and consensual approach offers dramatic cost savings and much shorter timelines for arbitration decisions that do form precedents with the same quality as ad hoc arbitrations. The set schedule means there is no delay agreeing on an arbitrator or finding someone who has availability within a reasonable time.

CROA’s office maintains a permanent secretary that deals with 12 employers and seven trade unions representing some 45,000 employees, typically hearing 150 grievances a year.

While not perfect, true to the original intention of arbitration, CROA continues to offer a fast, responsive, effective and affordable way to resolve disputes.

Fazal Bhimji has a mediation and arbitration practice where he deals with workplace and civil matters.

FEBRUARY 2024 / BARTALK 7

advocacyinaction With Access to Justice Week BC fast approaching, we are pleased to highlight recent accomplishments that reflect members’ commitment to providing a more equitable justice system.

\ EMAIL: ADVOCACY@CBABC.ORG

MODERNIZING THE FAMILY LAW ACT

is expected to be tabled in the spring. In our engagement with government, including meetings with the Attorney General, we have asked for greater transparency and disclosure as the legislation is developed. We also continue to push to preserve lawyers’ independence and self-regulation.

CBABC is actively contributing to a consultation that reviews the Family Law Act.

JUDICIAL APPOINTMENTS AND INDEPENDENCE

In a recent submission to the Ministry of Attorney General, we offered recommendations to improve the section 211 reporting process, including:

While the Judicial Advisory Committee for BC was reconstituted last summer, we remain at a crisis point with judicial vacancies. Twelve positions are vacant on the BC Supreme Court, with more anticipated in the coming months. Over 16% of trials in B.C. were bumped in 2022 with lack of judges being the main cause. CBABC hosted a meeting with the Minister of Justice in January to discuss timely appointments and the recruitment of applicants to ensure British Columbians can access timely and effective justice.

Allowing reports to be

ordered earlier as part of a triage process to allocate resources.

Establishing

standardized guidelines for ordering, preparing and receiving reports.

Mandating family

violence screening and assessment training for lawyers and report writers.

In late November, the Attorney General and Minister of Children and Family Development responded to a CBABC submission urging integration of the United Nations Convention on the Rights of the Child into law in B.C. Appreciation was expressed for our recommendations to amend section 203 of the Family Law Act. REGULATION OF THE PROFESSION The proposed legislation to introduce a single regulator for lawyers, notaries and paralegals

8 BARTALK / FEBRUARY 2024

We were also pleased to see the Legislature has not disputed the Judicial Compensation Commission’s 2022 Final Report.

This means the commission’s recommendations that the government increase the salaries of BC Provincial Court judges and judicial justices over the next four years will be adopted.

This aligns with our recommendations to the Judicial Compensation Commission in January 2023. We expect to hear that with the compensation rebalanced and no need to litigate the government’s actions, applications to the Provincial Court have increased.

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HESSAM MEHRABI

Automated Vehicles and Insurance Companies B.C. law perspective

T

he rapid advancement of artificial intelligence has paved the way for the imminent dominance of automated vehicles (AVs) on our roads. While this technological evolution promises to make life easier, it also raises critical considerations for the insurance industry, prompting a re-evaluation of current vehicle insurance and liability frameworks.

AVs are generally safer than the conventional vehicles because of their advanced precautionary systems against any crashes or accidents.

Given the fact that the risk associated with insurable interest plays a key role in determining premium rates, the insurance companies’ income from the premiums would significantly decline by the increase in the number of AVs. Additionally, the emergence of AVs renders traditional driver-based premium calculations obsolete, further complicating the determination of insurance rates.

Despite their enhanced safety measures, AVs introduce a new set of risks. Malfunctions in their highly complex performance could turn AVs into potential hazards on the roads.

AVs are a type of product produced by manufacturers and distributed into market for consumers. Should any damages occur due to the defects of product, the manufacturer might be liable under product liability doctrine. That would expose the manufacturers to more claims because they, in fact, diminish the driver’s

role in AVs and take charge of all activities related to driving. A shift in attributing car accidents to product defects instead of drivers would redirect the demand for vehicle insurance from owners and drivers to car manufacturers.

Beyond the financial implications, legal challenges emerge in the event of accidents involving AVs. Current liability and insurance regime is generally founded on the presumption that there is always someone who drives the car. AVs, however, eliminate this presumption as they are basically driverless. In the event of an accident, it would be very difficult to attribute any fault to the person in the driver’s seat when automated driving functions are active.

The current no-fault auto insurance scheme in B.C. has done away with the fault analysis for paying compensation in many instances of car collisions — where ICBC provides Enhanced Care Benefits notwithstanding the parties’ degree of fault in the accident. However, there are certain instances of car crashes ineligible for Enhanced Care Benefits in which the driver’s fault is determinative for providing insurance coverage.

Given the elimination of the role of drivers in AVs, it is unclear under the current liability and vehicle insurance

regime how the insurer can determine if a specific accident involving AVs is ineligible for Enhanced Care Benefits.

More importantly, the vehicle insurance coverage in B.C. only applies to the accidents arising out of the “use” or “operation” of a vehicle.

The courts have interpreted the terms “use” and “operation” in a way that they require minimum human involvement in driving. The mere manipulation of some parts of the vehicle or simply being a front seat passenger would not amount to “use” or “operation” of the vehicle.

It follows that the extent to which the current vehicle insurance coverage extends to car accidents involving a vehicle in autonomous mode is uncertain.

The inherent challenges of AVs for the vehicle insurance and liability regime led the Insurance Bureau of Canada (IBC) to recommend a legislative overhaul. In its 2018 position paper, Auto Insurance for Automated Vehicle Prepared for the Future of Mobility, IBC essentially recommends a single insurance policy approach, which requires insurers to compensate victims of AV-related accidents regardless of the responsibility of the person in the AV or the automated technology. IBC further proposes that insurers should have the ability to recover liability payments from vehicle manufacturers or technology providers. Those recommendations are yet to become law in B.C., leaving the deployment of AVs on the streets associated with the risk of inadequate insurance coverage in the event of an accident.

Hessam Mehrabi is an associate in the Disputes Group at Borden Ladner Gervais LLP, Vancouver office. He maintains a broad disputes practice. linkedin.com/in/hessam-mehrabi FEBRUARY 2024 / BARTALK 9

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CONNOR BILDFELL

The Road Less Travelled

Transportation barriers to accessing justice

E

Virtual

hearings: Minimizing the need for in-person appearances, saving time and money.

Digital

resources and support: Supplying more digital equipment, expanding hi-speed internet access and providing additional training and support can help bridge the digital divide.

veryone in Canada should have timely and affordable access to justice. But for many people living in rural or remote communities, transportation barriers inhibit access to justice. While urban communities generally have more transportation infrastructure in place to help people access legal services, rural or remote communities often grapple with transportation challenges that can inhibit access to justice. Addressing these challenges would go a long way to helping improve access to justice.

This travel can also be a time-consuming process, which can pose a further barrier. People may need to take time off work or away from their family responsibilities. These time constraints can deter people from pursuing their legal rights or accessing necessary legal advice, especially when they have to make multiple trips due to court dates or other legal requirements.

THE TRANSPORTATION CHALLENGE

Videoconferencing, teleconferencing and other digital tools can — and do — improve access to justice for many people living in rural or remote communities, including by potentially removing the need for physical travel altogether. But not everyone in these communities benefits equally from these tools. In today’s digital age, where many legal services and court proceedings are now online, accessing justice can be especially challenging for people in rural or remote communities who lack the technological tools or practical skills to participate effectively. So, while online resources can potentially mitigate the need for physical travel, they can also create new disparities for people on the wrong side of the digital divide.

Justice should be accessible to all, regardless of geographic location.

However, transportation barriers in rural and remote communities continue to impede access to justice.

Addressing these challenges requires a combination of policy changes, technological innovations, and community supports to ensure that justice is truly accessible to everyone, regardless of where they call home.

Addressing transportation barriers to accessing justice in rural or remote communities requires a multi-pronged approach, including:

Connor Bildfell is chair of the CBABC’s Access to Justice Committee, who assisted with this article. The views expressed in this article, and any errors, are his own.

British Columbia covers nearly one million square kilometres. Although much of its population is concentrated in urban areas in the south, hundreds of thousands of British Columbians live in rural or remote communities. But many of these communities lack the transportation networks and infrastructure that urban centres enjoy, and the distances between these communities and legal service providers can be vast, making it difficult for residents to physically access legal aid, courts and other essential legal services.

Transportation costs can also be a significant obstacle. Especially for people with limited means, long travel to reach courts or legal service providers can be financially burdensome.

The expenses associated with travel, such as fuel, vehicle maintenance and accommodation if overnight stays are required, can even deter people from pursuing their legal rights or accessing necessary legal advice.

10 BARTALK / FEBRUARY 2024

POTENTIAL STEPS FORWARD

Transportation

infrastructure: Investing in better transportation infrastructure in rural and remote communities can help make accessing legal services more feasible.

Mobile legal clinic services: Legal

aid organizations can deliver mobile legal clinic services that visit remote areas periodically, offering legal advice and assistance to residents.

Encouraging

lawyers to join rural communities: Encouraging lawyers to establish practices in rural and remote communities, such as by forgiving student loans for those who move to these communities, can help increase the number of lawyers who live and work in these communities.

sidebar B.C. Adopts Novel Whistleblower Program to Root Out Investment Fraud

Monetary awards for tipsters range from $1,000 to $500,000

At its core, a whistleblower is anyone who exposes wrongdoing. Headline grabbing cases like Watergate and Enron are famous examples of whistleblowing. When it comes to rooting out illegal activity in the investment markets, the BCSC depends on the public and company insiders providing tips to reveal wrongdoing that would otherwise be difficult to detect.

At the BCSC, we’ve taken a specialized approach in developing our whistleblower program, one that is tailored to the structure and diversity of our province’s investment marketplace. B.C. is home to a vibrant venture market with thousands of small public and private companies, many of which are in the early stages of capital raising. Identifying misconduct in this market requires a whistleblower program that encourages a variety of tips from a variety of people — from poker buddies to disenchanted significant others to bookkeepers to CFOs — that may help us break open a case.

On November 7, 2023 — we launched a novel whistleblower program that

provides monetary awards ranging from $1,000 to $500,000 for helpful tips which lead to a successful enforcement outcome in serious matters, like illegal insider trading, market misconduct, and investment fraud.

BCSC is required to do so, such as to respondents in a hearing, in response to a legal demand, and if ordered by the Privacy Commissioner. The BCSC does not provide a guarantee of confidential informer privilege.

Whistleblowers must provide information about someone else’s wrongdoing to qualify for a whistleblower award. If they provide information about themselves only, they may qualify for credit for cooperation under a different BCSC policy.

Whistleblowers are protected from reprisal by B.C.’s Securities Act, which prohibits retaliation that is solely the result of a person providing information to the BCSC.

The BCSC’s Office of the Whistleblower accepts tips through an online reporting tool, by phone and through the mail.

HOW WE PAY WHISTLEBLOWERS

Our program is unique because we pay for a variety of different types of enforcement outcomes like temporary orders, preservation orders, halt trade orders, information that leads to issuing allegations, or even information that helps us collect on outstanding fines. While the awards may be lower than those provided by other market regulators, the BCSC will pay for more enforcement outcomes and will pay more quickly.

ANONYMITY AND PROTECTION FOR WHISTLEBLOWERS

Individuals can submit information anonymously, but they must reveal their identity before receiving an award. Information about a whistleblower will not be shared outside the BCSC without a whistleblower’s consent unless the

HOW CAN THE LEGAL COMMUNITY HELP?

The legal profession is in a unique position to help combat investment fraud and other market misconduct.

Individuals looking to report misconduct may seek counsel to help them make this difficult decision.

The BCSC encourages you, as a legal professional, to take some time to learn more about our whistleblower program to assist you in counselling individuals considering reporting illegal activity.

To learn more in-depth information about the BCSC’s program, or to file a tip, visit: bcsc.bc.ca/report-to-us. If you are legal counsel, or you are from another securities jurisdiction, and you have a question, please contact the Office of the Whistleblower at 604-899-6729.

FEBRUARY 2024 / BARTALK 11

SPONSORED CONTENT

SPONSORED CONTENT

A

s the guardian of the province’s investment markets, the role of the BC Securities Commission (BCSC) is to create and enforce rules that keep the investment marketplace fair, honest and resilient. To do this effectively, we look for innovative ways to uncover investment fraud and serious market misconduct. The launch of our new whistleblower program is an example of how we tailor our enforcement work to B.C.’s unique investment market.

guest

RANDOLPH W. ROBINSON

A Small Reflection

The Inequity of Language Acquisition: Niwî gikendân.

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t a recent gathering with my family, we reflected on how our Algonquin teachings are a part of how we conduct ourselves in our personal and professional lives. Although my grandparents spoke Algonquin, they passed before I was born, and I would not have the opportunity to learn the language through their presence and worldview. Our language is our identity and reflects how we structure our world along the continuum of life. By participating in the Algonquin language, we gain an understanding of our values and our governing structures in education, health and justice.

More importantly, our language holds the development of our knowledge systems since time immemorial.

Everyone at our gathering is in different stages of language acquisition.

Algonquin is not the spoken language between us. Why is that?

Racist policies under the Indian Act, aimed at dismantling entire identities, did just that by prohibiting the use of Indigenous languages in schools. This resulted in language loss in many families. The Act has been in effect since 1867, it governs where a reserve geographically starts and ends. Despite remaining a key governing document for many First Nations, it has never been translated into the 70 different Indigenous languages of the people it impacts most.

Why are there inequities in language acquisition opportunities today? The colonial system was created to foster inequity by banning the use of our 12 BARTALK / FEBRUARY 2024

languages and promoting division between services on and off reserves.

We must advocate to be able to develop and have access to our languages and traditional ceremonies whether we are on reserve or not. Our languages should not be limited by the confines of colonial systems.

Modern communication has shaped how fast we can collect and disseminate information. Online language courses and language apps continue to be developed and made accessible. I question why many Indigenous languages are not accessible in a way that works to promote language speakers no matter where one lives? The Algonquin language apps that do exist are helpful with vocabulary and short phrases, however, the apps cannot capture the complex structure of oral conversations or the root of the word and the cultural significance. Language classes are at times only provided in person, and the same is true for ceremonies.

Ceremonies require a land base and access to language speakers.

The question remains: How can First Nation communities accommodate in-person and virtual language courses as well as ceremony for off reserve band members who wish to learn their language and acquire the meaningful ceremonies throughout a lifespan? For those living off reserve, like myself, and living on the other side of the country from my traditional territory, this means travelling

across the country to have access to an in-person language course and to participate in ceremony.

The traditional custom of Indigenous naming in the context of language retention can be seen in my niece and nephew who have been given their Algonquin names and who have also acquired parts of the language through ceremony. The resilience and memory of our remaining language speakers have made this possible.

The Royal Commission on Aboriginal Peoples and the United Nations Declaration on the Rights of Indigenous Peoples as well as the TRC Calls to Action have all highlighted the right of Indigenous peoples to their language and culture. In 2022, the United Nations launched the International Decade of Indigenous Languages to protect languages. I believe in order to be successful we must acknowledge that there exists an inequity in access to documentary linguistics and language programming particularly between on and off reserve First Nations People. We must be mindful that equitable access to language acquisition will occur when everyone has access despite where they live.

My mother relayed that as long as Indigenous families find themselves together at the dinner table unable to speak to each other in their own language, the measure of successful language acquisition will remain a large “why question!” A question, Niwî gikendân (I want to know) how to help find the answer to.

This article is part of a 4-part series on issues CBABC members face as BIPOC lawyers.

Randolph W. Robinson is an Anishinaabe lawyer in public service and past chair of the CBABC Aboriginal Lawyers Forum.

feature

SHAUN FOSTER

Navigating the Skies Can municipalities regulate drone use in public spaces?

A

s drones soar in popularity, the imperative to balance innovation and recreation with safety and privacy concerns becomes more pressing. In Canada, the regulation of aeronautics is exclusively within the jurisdiction of the federal government. The Canadian Aviation Regulations (the “CARs,” which are federal regulations) set out a comprehensive framework governing the licencing and operation requirements for drones. Meanwhile, the provinces (and by delegation, municipalities) have the authority to regulate matters related to property and civil rights or matters of a purely local nature (including issues such as nuisance, noise and privacy).

This prompts a critical query: Can municipalities regulate drone use in public spaces (such as parks) without infringing on federal oversight?

Whether municipalities have the legal authority to enact bylaws impacting drone use will ultimately depend on the wording of the bylaw and the level to which it encroaches on “core” or “integral” aeronautics activities. There have been no reported Court decisions in which a person challenged a municipal bylaw on these grounds. The legal landscape is unsettled to a certain degree. In fact, Transport Canada even includes a statement on its website to caution drone operators to “respect all other laws when flying your drone.”

Some municipalities have enacted bylaws that include a complete

prohibition on flying drones over municipal lands. Others have prohibited take offs and landings in public parks. Some bylaws include a general prohibition, while allowing drone operators to apply for a municipal permit to allow operations.

In 1951, the Supreme Court of Canada struck down a municipal bylaw because it encroached upon the federal undertaking of aeronautics (Johannesson v.

West St. Paul (Rural Municipality), [1951] 4 D.L.R. 609). The impugned bylaw prohibited aerodromes in certain defined areas and permitted them elsewhere, but only upon the granting of a municipal licence.

The Court noted that while the use of property is normally within the legislative purview of the provinces, the use of that property as an aerodrome could not be divorced from the subject matter of aeronautics. The Court further commented that it is “impossible to separate the flying in the air from the taking off and landing on the ground.” On this basis, the municipality could not prohibit aerodromes.

Several Courts since that decision have applied a nuanced approach and only struck down municipal bylaws where they overtly regulate an activity that is “vital” or “integral” to aeronautics.

The Court has not considered these principles in relation to the various types of municipal bylaws that purport to regulate drone operations.

A Court may find that a bylaw prohibiting the launching of a drone from a public park improperly regulates activities which are “vital” to aeronautics because the launching of the drone is impossible to separate from the “flying in the air.” However, municipalities may draft bylaws in such a way that they prohibit activities that are clearly within their jurisdiction, such as preventing nuisances or privacy infringements. While permit-based regulations may appear to represent a reasonable balance (enabling municipalities to address concerns within their constitutional powers without unduly encroaching on the federal regulation of aeronautics), it remains arguable that even these types of regulations are beyond the authority of municipalities (as in Johannesson) because they create additional requirements for drone operations which are more onerous than the licencing requirements set out in the CARs. The enforcement of drone operations under the CARs falls under the jurisdiction of Transport Canada. The Minister of Transport may authorize other persons (such as the RCMP) to issue fines for designated offences related to drone operations. However, until such time that a drone operator challenges a municipal bylaw related to drone use, the enforceability of these municipal bylaws will remain unclear. In this regard, individuals operating drones throughout Canada are encouraged to follow the advice of Transport Canada and respect all laws (including municipal bylaws) when flying their drones.

Shaun Foster is an associate at Alexander Holburn Beaudin + Lang in the Aviation Practice Group.

FEBRUARY 2024 / BARTALK 13

sectiontalk Link-Up with Like-Minded Lawyers Take the opportunity to connect with members in your practice area. Whether you’re an early career lawyer or experienced counsel, CBABC has a Section for every interest area. Here are the highlights from recent Section meetings and networking events.

DRAFTING AFFIDAVITS AND APPLICATIONS FOR CHAMBERS The Young Lawyers Sections joined together to uncover the secrets, strategies and tactics of drafting persuasive chambers materials.

Two hundred attendees heard from The Honourable Justice Neena Sharma of the BC Supreme Court, along with legal experts Scott Dawson from Farris and Chris Moore from McLean Armstrong.

They shared tips and tricks on language and formatting to achieve top-tier affidavits and applications.

TECH CONTRACTS BROKEN DOWN FOR THE NON-TECH LAWYER The Business Law Section brought together over 100 online and in-person attendees for a discussion on how to navigate technology contracts. Savvy technology lawyers, Kelsey Franks from McCarthy Tetrault and Kate Goddard of Osler Hoskin and Harcourt LLP,

14 BARTALK / FEBRUARY 2024

led a discussion applicable to any lawyer working with word processing systems, supply chain management solutions, communications platforms and more.

MARITIME LAWYERS BUILD CONNECTIONS OVER DINNER The Maritime Law Section hosted their annual dinner with good food and an opportunity to catch up with colleagues. Adam Taylor, Executive Director of the Marine Life Sanctuaries Society, gave the keynote presentation on Sponge Reefs in Howe Sound: Recent Discoveries, Research, and Protection Efforts.

Attendees asked questions and made new connections.

REAL PROPERTY AND FAMILY LAW INTERSECT One hundred and fifty lawyers joined an online discussion on how family law can overlap with real property issues in British Columbia. The experienced panel included Anna Silver and Meghan Selinger from Silver Selinger LLP and Johanna Stein of Coal Harbour Law. They provided an excellent overview of the Family Law Act, highlighting the pitfalls arising on property acquisition and transfer, and discussed the role of cohabitation agreements and real property solicitor’s files when addressing family law disputes.

Missed a useful meeting? Visit cbabc.org/ sections to update your Sections and review recent meeting minutes.

\ EMAIL: SECTIONS@CBABC.ORG

LAWYERS CONNECT TO SHARE THE LATEST IN IMMIGRATION

by Immigration Law Section Vice Chair Adrienne Denham

The Immigration Law Section hosts regular meetings and events to advance members’ legal expertise and forge connections. In November, almost 50 lawyers and government employees got together for the annual Fall Launch at Haraheri Eat Bar & Patio. Both new and familiar faces attended.

In December, the Section hosted their annual BC Provincial Nominee Program update. Attendees learned about program changes and best practices for advising clients on the program, which allows the B.C. government to select economic migrants to fill job vacancies and operate businesses.

Alongside the regular Section activities, the Overseas Lawyers Group meets monthly for an informal, virtual roundtable on developments in immigration and citizenship law and policy.

MORE TO COME!

The Section Executive is looking ahead to exciting events, including the highly anticipated BC Legal Conference Immigration Law 2024 on March 15. The conference promises a full day of learning, from essential insights and strategies on pathways to residency to judicial reviews in Federal Court and more.

AVIATION INDUSTRY OVERCOMES OBSTACLES

by Air Law Section Chairs Darryl Pankratz & Mike Wagner

The aviation industry faced a challenging period with the pandemic, pilot shortages and more.

Despite these obstacles, the industry persevered and remains optimistic for the future.

Last May, the Air Law Section hosted an informative meeting with Michael Dery of Alexander Holburn LLP on the increasing number of regulatory and consumer protection class actions against air carriers. Kent Wickens of the Transportation Safety Board shared an update on the TSB’s noteworthy investigations and its work to promote aviation safety. In November, Mark Tweedy, an experienced mediator, shared insights and helpful information on how to best serve clients in mediations involving aviation claims.

Later this year, the Section will welcome industry experts Kate Klassen and Shaun Foster of Alexander Holburn LLP to discuss the emerging drone industry and the challenges that growth brings to oversight and regulation. The Section is also planning for Alan Burnside of the Canadian Transportation Agency to discuss the Air Passenger Protection Regulations, including recent changes which are expected to come in to force early in 2024.

FEBRUARY 2024 / BARTALK 15

feature

LES HONYWILL

Gold Rush in the Final Frontier

Emirates, Japan and Luxembourg, recognizes private ownership rights to resources extracted from outer space.

THE NEED FOR A NEW LEGAL FRAMEWORK

PROPERTY RIGHTS TO CELESTIAL RESOURCES

of sovereignty, by means of use or occupation, or by any other means.

10,000 quadrillion USD. That is the unfathomable estimated value of the resources within Psyche, a 280-kilometre-wide asteroid flush with valuable metals such as iron, nickel and gold.

The “non-appropriation principle” unambiguously prohibits states from claiming sovereignty over celestial bodies. However, whether this principle extends to outer space resources after they have been extracted has been a source of great debate.

On October 13, 2023, NASA launched a spacecraft that will begin mapping Psyche in 2029. NASA’s stated purpose for visiting the asteroid is to gain a better understanding of planetary cores, but the mission is surely of great interest to those who dream of mining Psyche’s resources.

THE COMPETING INTERPRETATIONS OF ARTICLE II

$

As the spaceflight industry addresses questions of how to get to resourcerich celestial bodies like Psyche, and return to Earth with extracted spoils, a longstanding legal question has come to the forefront: can one own resources extracted from outer space?

THE CONSTITUTION OF OUTER SPACE LAW

The 1967 Outer Space Treaty is commonly referred to as the constitution of international outer space law and provides the most widely accepted regime for governing activities in outer space. Formed at the height of the Cold War with the purpose of averting the weaponization of space, the Outer Space Treaty has since been ratified by 114 nations, including all of the major spacefaring nations.

Article II incorporates the “non-appropriation principle” into the Outer Space Treaty and reads as follows: Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim 16 BARTALK / FEBRUARY 2024

Those concerned about a free-for-all over outer space resources generally prefer a broad reading of Article II that would prohibit both public and private ownership of celestial bodies and any resources extracted therefrom. They argue that the unimaginability of outer space commercial resource extraction in 1967 justifies the drafters’ failure to address such issues. Further, travaux préparatoires from the negotiation of the Outer Space Treaty also suggest that the drafters had intended Article II to prohibit claims to private property rights in space.

Proponents of a liberal approach to outer space resource extraction often prefer a narrower reading of Article II and note that state practice has been to recognize property rights over extracted outer space resources. For instance, the United States government claims ownership over the 842lbs of lunar materials brought back to Earth by the Apollo missions.

Domestic legislation, such as the United States’ Commercial Space Launch Competitiveness Act in 2015, and similar legislation in the United Arab

In recent years, the legal scholar community has preferred the narrower reading of Article II. Specifically, while most scholars and states recognize that Article II prohibits ownership of in situ property rights in celestial bodies, there is growing acceptance of private property rights in extracted resources.

The practicalities of commercial mining in outer space may push for an even narrower interpretation. Once outer space resource extraction becomes a viable enterprise, commercial entities will likely want their government to provide security over their claim to their celestial rock. Recognition of in situ property rights in celestial bodies may become necessary as a result, despite the “nonappropriation principle.”

Given technological advancements and the ever-increasing demand for valuable minerals, the “non-appropriation principle” may quickly become incompatible with the needs of outer space commerce and industry.

Commercial entities are unlikely to wait long before putting their stakes in the terrain of Psyche once technology makes it possible. Spacefaring states have an impetus to revisit the Outer Space Treaty to create a modern legal framework for celestial property rights before outer space becomes the site of the next lawless gold rush.

Les Honywill is an associate with Borden Ladner Gervais LLP’s Vancouver office. He practises mainly in commercial arbitration and trusts and estates litigation. linkedin.com/in/leshonywill

communitynews

Partner with purpose Empower others to help future generations through their Will.

With your expertise, your clients can make a profound impact on children’s health.

Join our network at bcchf.ca/legacy

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NOTES

Essential for lawyers handling society incorporation, NEW BOOK UPDATES FROM THE PP 05 / DEC / 2023 MY ” governance and dispute resolution, this guide offers CONTINUING LEGAL EDUCATION Macintosh HD:Users:pperumal:Dropbox:Legacy:2023:Ads –expert Print:Bar Talk:2024:Feb:01-Design:24_Legacy_Ads_Print_BarTalkMag_FEB_6.875x4.325_OUTPUT_V2.indd insights, new forms and precedents for SOCIETY OF BC

streamlined society management and legal compliance.

CLEBC is proud to announce updates to three of its publications: British Columbia Company Law Practice Manual (available in print or online) Dive into the essentials of B.C. corporate law, covering critical updates from director removal processes to transparency registers under the BC Business Corporations Act and Societies Act. This update includes new forms, precedents and expert commentary on the latest case law and statutory amendments.

British Columbia Societies Guide (online only)

Canadian Criminal Jury Instructions (available in print or online) Enhance your criminal jury trial preparations with this update. This essential resource for judges and lawyers now includes current case law and legislation, over 30 revised offence instructions and gender-neutral language throughout. It simplifies drafting jury instructions and clarifies complex legal concepts for effective communication with juries.

For more details, visit cle.bc.ca/publications.

Stay ahead with the latest on B.C.’s Societies Act, including recent amendments, new Civil Resolution Tribunal decisions and practical tools.

FEBRUARY 2024 / BARTALK 17

guest

CAROLINE NEVIN

Courthouse Libraries BC

Your ally, treasure trove and oasis

W

hen I joined Courthouse Libraries BC (CLBC) five years ago as CEO, our libraries were well known by practising lawyers and there was significant foot traffic because we were located in busy courthouses.

Post-pandemic, we’ve noticed that experienced lawyers are still using our online legal databases for research, visiting us if they’re in a courthouse or remotely accessing our librarians for support, and using our Book-in-a-Box mail delivery service to their offices. What concerns us, however, is that there are many lawyers (recently-called in particular) who haven’t stepped foot in a courthouse library, accessed a legal research database online or requested a legal publication from us. Perhaps you don’t know that our free legal databases resources are available, or that there’s an entire CLBC institution and staff here to help you do great legal research and be a better lawyer? Whatever the reason, let this article be a prompt for you to check us out soon!

The importance of access to up-todate legal resources was brought home to me when I was first introduced to the concept of a lawyer’s responsibility to be competent in legal research, as noted by the Supreme Court of Canada in Central Trust Co. v. Rafuse, 1986 Can LII 29 (SCC), [1986] 2 SCR 147: 18 BARTALK / FEBRUARY 2024

“A solicitor is not required to know all the law applicable to the performance of a particular legal service in the sense that he must carry it around with him as part of his “working knowledge”, without the need of further research, but he must have a sufficient knowledge of the fundamental issues or principles of law applicable to the particular work he has undertaken to enable him to perceive the need to ascertain the law on relevant points... “and to discover those additional rules of law which, although not commonly known, may readily be found by standard research techniques.”

There’s an entire CLBC institution and staff here to help you do great legal research and be a better lawyer... check us out soon!

Sophisticated legal research tools are great if you or your employer can afford them and you know how to use them (note: if you have an in-house law librarian, trust me — they want to teach you!). However, many lawyers can’t afford highend research databases, which is why CLBC collectively buys digital licenses and makes them available

through our 100 accessible computers in 30 courthouse libraries. We also purchase print and digital legal publications that are prohibitively expensive for individuals to buy, and make them freely available to all lawyers for borrowing or delivery.

And we hire exceptionally talented library staff to guide and teach legal research to anyone who needs help.

We do all this thanks to 50% funding from the Law Society of BC (about $205 per lawyer) and 50% from the Law Foundation of BC (interest earned on lawyers’ pooled trust accounts).

We are tasked with using those funds to ensure that everyone can access the legal information they need to resolve their or their client’s legal issues.

Lawyers in locations outside of Vancouver and Victoria don’t always have the same access to up-to-date legal resources, so the Law Foundation has provided us with a special $2M grant to help improve that situation in 2024/25.

We have already purchased some great new titles related to Indigenous Law, AI and the Law, Regulatory Law and other current topics.

Later this year, we will be consulting with the profession and asking you to share your views on legal resource and accessibility priorities for your practice and community. We will report back on what we hear and what new resources become available as a result. If you have suggestions in the meantime, please do come in or email us at librarian@courthouselibrary.ca.

Caroline Nevin, Chief Executive Officer of Courthouse Libraries BC.

communitynews Access to Justice by Land and Sea In communities across the central coast, the Bella Coola Legal Advocacy Program (BCLAP) has always worked to maintain an in-person presence through regular roving clinics to reach clients who need legal advocacy services.

Expensive plane charters and infrequent ferry services had historically made this a very costly and uncertain endeavour. That’s why the BCLAP created a madefor-the-coast solution to reach communities spread out over a large area with challenging geography.

BCLAP decided that having its own boat would enable them to serve Central Coast communities more effectively and flexibly. Named the Galene, the 40-foot diesel-powered repurposed boat had a built-in office to meet clients privately, wi-fi and living quarters, so it even helped the team save on accommodation costs.

The Law Foundation of BC helped make this a reality with a $75,000 grant, solving a major logistical headache for BCLAP. It is one example

TIPS FROM

of the Foundation’s commitment to supporting access to justice for the majority-Indigenous residents of the Central and Outer Coast in Nuxalk, Heiltsuk, Wuikinuxv and Kitasoo/Xais-xais communities. In remote communities, Zoom isn’t always a workable solution as internet connections can be unreliable. And when it comes to meeting the often complex legal needs of clients who may be marginalized in the justice system, meeting face-to-face goes a long way in building trust.

After a two-year pilot, the restoration of more convenient ferry services have allowed the BCLAP to retire the vessel and focus inland on visiting communities lacking hotel accommodation with a legal services RV. The BCLAP is one of 100 legal advocacy and clinic programs, supported by the Law Foundation, providing legal services to low-income people in over 50 communities across B.C.

Navigate Transportation Law — Or Any Other Subject — With CLBC

Transportation law is a vast and varied landscape, encompassing regulatory, administrative and commercial law, among others.

It may span centuries of admiralty law and maritime history, or transport you to the regulatory frontiers of public policy and the digital age (e.g., drones and self-driving cars). This field serves as an excellent example to demonstrate the breadth and flexibility of Courthouse Libraries BC’s (CLBC’s) offerings. We possess volumes of historical print legislation and are your gateway to current commentary from legal publishers. All Law Society of BC members have special access to powerful research databases through CLBC’s website, and anyone can use the 100 computers across our 30 library branches to access even more premium legal resources. These resources include the LexisNexis and Westlaw databases, and many more, covering an endless array of topics—from railway traffic interswitching to urban ride-sharing, from dangerous goods trucking to luggage liability. Better still, our librarians are skilled in navigating legislation and regulation (including pre-Confederation laws) and are just a phone call or email away. Plus, you can have most titles in our catalogue sent to your law office and returned free of charge. Visit courthouselibrary.ca to discover ways to reach us, get more information about our Book-in-aBox mail service, or to explore our collections.

FEBRUARY 2024 / BARTALK 19

communitynews Have Your Say: Consultation on Parentage Law Reform Spring 2024 marks the publication of BCLI’s Consultation Paper on Parentage: A Review of Part 3 of the Family Law Act. This consultation paper is a milestone in the project, funded by the Justice Services Branch, Ministry of Attorney General for British Columbia.

BCLI’s Parentage Law Reform Project Committee has been examining part 3 of the Family Law Act, which determines who can become a parent in B.C. The committee’s tentative recommendations address topics such as: Modernizing the act’s terms and definitions. For example, replacing gendered terms like “birth mother”

with role specific terms like “the person who gave birth to the child.”

Capturing diverse family models. For example, by increasing the number of individuals who can be named

parents, regardless of method of conception.

Increasing fairness to children and families. For example, by removing spousal and genetic requirements

for posthumously conceived children.

Decreasing barriers and costs associated with family building. For example, by allowing sperm donation

by sexual intercourse with a pre-conception agreement.

Everyone can access the consultation paper and make their views known on the committee’s tentative recommendations. Please check bcli.org, where copies of the consultation paper will be available for download.

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feature

SHELLEY CHAPELSKI

Canadian Maritime Law

Statutory changes increase liability exposures

O

n June 22, 2023, Canada increased the statutory limits of liability of vessel owners and operators of vessels under 300 gross tonnage (GT) by 50% with respect to incidents in Canadian waters. Canada also broadened the responsibilities and liabilities for anyone who acts as the Authorized Representative (AR) of a Canadian flagged ship, especially with respect to safety on board and pollution.

Importantly, claims for wreck removal of a vessel are not subject to limitation and that exposure should be taken into account when a vessel owner is deciding on how much liability insurance to buy. The MLA incorporates a separate set of liability limits and liability insurance requirements for commercial vessels carrying passengers, provided that the Athens Convention applies.

These amendments were buried in Canada’s 2023 Budget Bill C-47.

In addition to amendments to the MLA, Bill C-47 also include significant amendments to the Canada Shipping Act 2001 (CSA), and the Wrecked, Abandoned or Hazardous Vessels Act (WAHVA).

Canada’s Marine Liability Act (MLA) governs the civil liability of vessel owners and operators for loss of life, personal injury, damage to property (including loss or damage to cargo) and damage to the environment.

Canada applies the limits of liability contained in numerous international conventions to all vessels in Canadian waters. The MLA also contains a separate statutory limit for personal injury, death or property damage that is applied to vessels under 300 GT. It applies such limits to all vessels (including pleasure craft), operating in Canadian waters, which includes Canada’s many navigable lakes and rivers.

Claims for property damage are now limited to $750,000 and claims for personal injury or death are now limited to $1.5 million (plus interest from the date of the accident) if caused by a vessel under 300 GT. These increases are intended to reflect the inflation that has occurred since the original limits were set more than 20 years ago. The limits are considered virtually unbreakable.

The changes are stated to reflect the federal government’s ongoing investment in its Oceans Protection Plan, which attempts to address issues of safety and environmental protection in Canada’s waters. Most notably, Bill C-47 significantly increases fines for regulatory offences under the CSA and the persons who may be liable to pay the fines, and creates the Vessel Remediation Fund under WAHVA, creating a fund to manage end-of-life and hazardous vessels.

Many of the CSA’s and WAHVA’s obligations are directed to the AR of a vessel, as defined by the CSA. The AR is a very burdensome role with significant liability exposure.

Every Canadian vessel in waters must have an AR who is responsible under the CSA for acting with respect to all matters relating to the vessel that are

not otherwise assigned by the legislation to any other person. The WAHVA also focuses on the role of the AR. For Canadian vessels, the AR is its owner or bareboat charterer unless the owner has entered into an arrangement with a “qualified person,” under which they are responsible to carry out the role of AR. A “qualified person” is a Canadian citizen or permanent resident or a corporation incorporated under the laws of Canada or a province.

The responsibilities of an AR are extremely broad and focused on safety and compliance. The AR must ensure that the vessel and its crew are compliant with the CSA, including the development of safety programs and training and that they meet the obligations of WAHVA. The owner of a vessel is bound by the acts or omissions of its AR in relation to compliance under the CSA and WAHVA. If any sort of casualty occurs, the AR will likely be called upon by the regulators to explain how they discharged their obligations under the legislation. If the owner of the vessel is not also its AR and charges are laid under the CSA or WAHVA, they are likely to be filed against the AR as well as its owner, even on a personal basis.

Bill C-47 increases the maximum monetary fine for certain offences under the CSA, which would also apply to the AR, from $10,000 to $25,000. As well, Bill C-47 makes the AR jointly and severally liable for these penalties alongside the owner of the vessel. So if a vessel has sunk and the owner is bankrupt, the AR may be the person left holding the bag.

Shelley Chapelski, partner at Norton Rose Fulbright Canada LLP, with special thanks to Kris Jun, articled student.

FEBRUARY 2024 / BARTALK 21

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MICHAEL DERY

The Turbulent World of Canada’s Air Passenger Rights

C

anada’s first air passenger rights legislation (the Air Passenger Protection Regulations or “APPRs”) came into effect in two phases on July 15, 2019, and December 15, 2019. According to the Canadian Transportation Agency (the regulator responsible for drafting and enforcing the APPRs), the APPRs were meant to “provide for clearer and more consistent air passenger rights.”

Unfortunately, the APPRs have caused much controversy, resulting in a rapid and head spinning series of exemptions and amendments made very shortly after their inception.

The APPRs require that airlines provide certain services and set amounts of compensation to passengers in three categories of situations that are determined by whether a flight is delayed or cancelled for reasons that are: (a) outside the airline’s control; (b) within the airline’s control; or (c) within the airline’s control but required for safety purposes.

Aviation industry stakeholders initially raised concerns that the implementation timeline for compliance was unreasonably short and impossible to meet. Another major concern was that the APPRs hold only the airlines responsible for delays and cancellations, which can also be caused by the fault of multiple other parties (such as airport authorities, air navigation service providers and governmental agencies). Very shortly after the APPRs came into effect, the airlines faced a multitude of challenges that have been writ 22 BARTALK / FEBRUARY 2024

large across the pages of news outlets and have caused much passenger frustration, primarily because of the effects of COVID-19. The Canadian Transportation Agency (the “CTA”) launched an inquiry a mere two months after the APPRs were in effect, because it had received 3,037 complaints alleging that airlines failed to accurately communicate the reasons for delays and cancellations. The CTA also issued several fines against airlines for failure to comply. The difficulties did not abate with time and the CTA was inundated by passenger complaints.

On September 8, 2022, the APPRs were amended to include new requirements requiring refunds or rebooking services regardless of whether the disruption was within

The airlines faced a multitude of challenges that have been writ large across the pages of news outlets. the airline’s control. This was reportedly done to close a “gap” revealed by the COVID-19 pandemic.

The APPRs have been subject to legal challenges. On June 28, 2019, several airlines and airline trade associations commenced an appeal contesting the validity of the APPRs. The appellants alleged that certain provisions of the APPRs exceed the

authority of the CTA, contravene Canada’s international obligations and violate international law. The appeal was largely unsuccessful, but the Supreme Court of Canada has granted leave and a hearing has been scheduled for March 25, 2024.

On March 14, 2023, the CTA was granted $75.9 million CAD in additional funding (over three years) to ensure that it has the resources to address passenger rights complaints.

By September 2023, it was reported that the CTA had a record backlog of 57,000 complaints.

In June 2023, the CTA proposed further amendments to the APPRs. The main amendments remove the three categories of flight disruptions, resulting in a requirement that airlines provide compensation to passengers unless there are “exceptional circumstances” (to be defined by regulation).

The burden will now be on the airline to prove that a particular situation constitutes an “exceptional circumstance.” The new regulations will only apply to flights departing after the amendments come into force.

In its “Backgrounder” for the proposed amendments, the CTA admits that “it has become increasingly apparent that some areas of the legislation have proven to be unclear….”

Again, the CTA has promised that the proposed changes are to “clarify, simplify and strengthen consumer protection for air passengers.” Given the tortured brief history of the APPRs, it is hoped that this continued intention does not again cause controversy in the aviation legal landscape.

Michael Dery is a partner and the Aviation Practice Group leader at Alexander Holburn Beaudin + Lang.

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DIONYSIOS ROSSI AND EMILY PITRE

Federal Government Enacts Wave of New Shipping Industry AMPs and Increased Fines

N

ew federal legislation may result in Transport Canada increasing its use of Administrative Monetary Penalties (AMP) as a means of enforcement.

AMPs have commonly been used across numerous industries to respond to various regulatory offences. They are often seen as an effective enforcement tool as they are typically more administratively expedient than criminal sanctions. Recent trends suggest that AMPs are now being used in respect of a broader range of regulatory offences than ever before, and the shipping industry is no exception.

The recently enacted Administrative Monetary Penalties (Canada Marine Act) Regulations introduces new AMPs for violating various provisions of the Canada Marine Act, Port Authorities Operations Regulations, Public Port and Public Port Facilities Regulations, Seaway Property Regulations, and the Natural and Man-made Harbour Navigation and Use Regulations. These penalties range up to $5,000 for individuals, and $25,000 for corporations or ships. Violations include failing to maintain direct communication with the harbour master, blocking or interfering with an enforcement officer, jeopardizing the safety or health of persons in a port, and adversely affecting soil, air or water quality.

In addition to becoming more common, the maximum fines for certain AMPs are also significantly increasing. In 2018, the Canada Shipping Act (CSA) was amended

to increase the maximum amount of an AMP for certain violations from $25,000 to $250,000. The recently proposed Regulations Amending the Administrative Monetary Penalties and Notices (CSA 2001) Regulations (CSAR) would make corresponding amendments to adjust penalty ranges for prescribed sections of the CSA up to the revised maximum of $250,000 per violation.

If the CSAR are brought into force, they will also increase maximum penalties for prescribed provisions under the Ballast Water Control and Management Regulations, Environmental Response Regulations, Load Line Regulations, Special-purpose Vessels Regulations, Vessel Safety

Administrative monetary penalties are now being used in respect of a broader range of regulatory offences than ever before, and the shipping industry is no exception.

Certificates Regulations, and the Vessel Registration and Tonnage Regulations, and would designate certain provisions of the Arctic Shipping Safety and Pollution Prevention Regulations and Vessel Fire Safety Regulations as violations. Several of these violations will also

be subject to daily penalties for as long as the violator remains non-compliant.

An AMP can have serious consequences for a recipient, regardless of the quantum of the fine sought.

Corporate offenders can face reputational risks associated with the publication of AMP recipients on a federal registry. A history of noncompliance is also considered an aggravating factor and can be taken into consideration in the assessment of future penalties. For these reasons, recipients should carefully consider the legal risks and future

consequences of failing to contest an AMP where there may be a legal basis to do so. Contesting can often be challenging, as these violations are typically prosecuted as strict liability offences, so available defences are decidedly limited despite maximum penalties of up to $250,000.

While AMPs are intended to motivate compliance rather than being solely punitive in nature, stakeholders are concerned that AMPs will replace the graduated enforcement approach that Transport Canada had been using, resulting in more fines, fewer warnings and/or notices, and greater regulatory uncertainty overall. It remains to be seen if these concerns will be borne out by future enforcement trends.

Dionysios (Dino) Rossi and Emily Pitre practise shipping and maritime law at Borden Ladner Gervais LLP. FEBRUARY 2024 / BARTALK 23

practicetalk DAVID J. BILINSKY

Embrace AI

Don’t embrace the bogeyman! r Just pretend he isn’t really there. You will find that Bogeyman will vanish in thin air... r — Music and Lyrics by A. Lowry / R. D. Brownsmith, performed by Henry Hall & His Orchestra.

W

e are entering the “Hype Cycle” of artificial intelligence (AI).

ChatGPT — Open AI’s natural language AI platform (bit.ly/bt0224pt1) is the fastest growing app — ever. It achieved 100 million users within two months. Facebook took 4.5 years and Twitter five to reach that point.

How powerful is AI? Gartner (bit.ly/ bt0224pt2) sees generative AI becoming a general-purpose technology with an impact “similar to that of the steam engine, electricity and the internet.” The hype will subside, but the impact of AI will only grow as more innovative applications are found.

AI’s reach includes lawyers — AI Tools for Lawyers: A Practical Guide

by Daniel Schwarcz & Jonathan H. Choi (bit.ly/bt0224pt3) provides practical and specific guidance on how to effectively use AI systems in legal research and writing.

No question that the AI juggernaut is coming at lawyers, full force.

Unite.ai lists the “Eight ‘Best’ AI Legal Assistants” as of January 2024. Here, AI helps you draft legal documents, assists with practice management, document automation, time tracking, billing, client contact, legal research, legal document analysis, patent and search analysis, contract review and more.

You are in fact most likely already using AI. If AI is working properly, you are not even aware it is working 24 BARTALK / FEBRUARY 2024

in the background of common applications. In 2023, Microsoft announced 365 Copilot, powered

by GPT-4, which will generate documents, emails, presentations and more in Office 365. Others are working on similar integrations.

AI has been used extensively by lawyers for some time now. Relativity (bit.ly/bt0224pt4), the e-discovery software, states: “From technology-assisted review to powerful analytics and visualizations, Relativity has been a leader in artificial intelligence for over a decade.”

submissions (bit.ly/bt0224pt7). These publications are welcome but I urge regulators and courts to not introduce their own “chill factor” by overdoing the risks on the reasonable and professional use of AI in practice. We don’t need lawyers being afraid to try this important and ground-breaking technology. Moreover, if AI is as important to the future of practice as I believe it will be, it may be malpractice if a lawyer fails to use AI when appropriate.

I would urge lawyers, regulators and courts to participate in forums such as the Task Force on Responsible Use of Generative AI for Law (bit.ly/bt0224pt8) at MIT. They are formulating and developing principles and guidelines on ensuring factual accuracy, accurate sources, valid legal reasoning, alignment with professional ethics, due diligence, and responsible use of Generative AI for law and legal processes.

When cloud computing and social media were introduced, there was a “chill reflex” that had led to many legal regulators and others warning lawyers of the potential ethical minefields and professional discipline awaiting those who would venture to use these in their firms.

Of course, today we now realize that both technologies can be comfortably incorporated into practice with the reasonable observance of professional obligations (see the LSBC’s Cloud Computing Checklist [bit.ly/ bt0224pt5], for example, of which the writer was an author). This “chill reflex” unnecessarily slowed down the implementation of these and other technologies in law firms.

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.

The Law Society of BC has issued “Guidance on Professional Responsibility and Generative AI (bit.ly/ bt0224pt6).” Similarly, the Courts in Canada have issued practice directions on the use of AI in court

David J. Bilinsky is the principal of Thoughtful Legal Management, a technology and practice management consultancy and is the former Practice Management Advisor, Law Society of British Columbia.

Email: daveb@thoughtfullaw.com Blog: thoughtfullaw.com

Certainly, ethics and professional responsibility must always be observed. But thoughtful implementation will make the bogeyman vanish into thin air.

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FEBRUARY 2024 / BARTALK 25

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feature

BRANDON HASTINGS

Transporting Quantum Data

Is teleportation the future of transportation?

T

he idea of teleportation is so connected with Star Trek in the zeitgeist, that the phrase “beam me up, Scotty” isn’t usually far behind. Though we might be far away from beaming anyone anywhere, teleportation is a new form of transportation that is rapidly coming into view, challenging existing legal (and other) paradigms.

Primary considerations in data transfer include speed, reliability and security. We usually think of data being transferred through the internet, but your computer regularly transfers large amounts of data internally (e.g., between your hard drive, RAM and processor). For transferring data between computers, most of us prefer internet-based (cloud) solutions. But online data transfer isn’t the best option for every situation.

Amazon Web Services (for example) offers Snowmobile, which transports traditional (non-quantum) data up to 100 petabytes (100,000 terabytes) by truck-pulled shipping containers.

The process takes a few weeks, but transferring this same amount of data at the US average download speed of 207 megabits per second would take over 122 years (or about 2.5 years at 10 gigabits per second).

I’m now going to describe some quantum computing concepts at a high-level, but in sufficient detail to give you a sense of “wow, that’s cool [and/or weird].” Hopefully, it will be sufficiently accurate as well.

Quantum data is stored in quantum bits (qubits), and the data is encoded in a particle’s state (e.g., electrons spinning up or down). What’s especially arcane about quantum computing,

also gives it power for certain computations: it can utilize the qubit without direct measurement of its state — like Schrodinger’s cat, the qubit is in both states, enabling multiple computations at once.

But what of teleportation?

Qubits were first teleported in 1997.

Well, not teleported exactly, or at least not in the way most people think of it. Rather than teleporting matter, qubits are entangled, and then quantum information is transposed from one qubit to another — properties of the second qubit can be deduced from the original, but this process destroys the original qubit. What’s unintuitive about this, is that “a measurement [of the original qubit]… instantaneously affect outcomes in another region [the receiving qubit], even though light hasn’t yet had time to travel the distance.” Also interesting is that successfully teleported qubits depend on indirect measurements: a direct measurement causes a failed teleportation.

Successful teleportations have included not only photons and electrons, but calcium atoms as well. So while the field is still nascent, we can imagine a future where teleportation of more and more particles occur this way.

Benefits of this approach include security (difficulty of information intercept, particularly without being noticed), fidelity, and the possibility of transporting quantum data without decoherence (losing the fragile quantum data). So while there is no viable way to teleport an object

in the “move object from A to B” sense, we are moving quickly toward the sort of “disassemble and reassemble” teleportation belied by many of Star Trek’s transporter accidents (in particular, accidental duplication).

Though in November 2022, Google and CalTech published papers revealing their success in simulating, generating, and then sending a qubit through a wormhole. So maybe moving objects through holes in spacetime is closer than it seems.

Quantum teleportation requires a paradigm shift in our thinking about the way the world works, and law is going to have to keep up. Like artificial intelligence, quantum transportation technology is poised to advance at increasing rates, and it’s not clear teleportation easily maps onto existing legal frameworks.

As technology continues to advance, the law will require increasing agility to effectively safeguard against risks while enabling us to enjoy the benefits, so that we may all live long and prosper.

Recommended resources for learning more about quantum computing and teleportation: “How to Teleport Schrödinger’s Cat”

by minutephysics (bit.ly/bt0224bh1) “Quantum Computers Explained...”

by Kurzgesast — In a Nutshell (bit.ly/bt0224bh2) “How Google Physicists Created a

Quantum Wormhole...” by Dr. Ben Miles (bit.ly/bt0224bh3) Brandon Hastings (he/him) (bhastings. com) wrote this article from New York City, where he is studying at Cornell Law School for an LLM in Law, Technology and Entrepreneurship, while on sabbatical from Cassady & Company in New Westminster.

FEBRUARY 2024 / BARTALK 27

guests

DAVID HAY, KC AND ROGER E. HOLLAND

generally achieve common ground very quickly. Decisions are made within one week. The funds are provided by way of a grant, not a loan.

You Are Not Alone

T

he demands of the practice of law can at times seem overwhelming. Client expectations, deadlines, gruelling hours, overhead and the need to stay on top of a tsunami of new information can downgrade our ability to cope. And yet there is a cruel optimism that every crisis we face can be overcome by making individual changes in how we deal with our problems.

Yes, there is always a place for personal development, meditation and individual work toward mental well-being, but in the face of a personal emergency, we often need help outside of ourselves to deal with the underlying cause of the problem.

At the CBA (BC) Benevolent Society we recognize that lawyers, articled students and their families sometimes need help to get out of such emergencies. We also recognize that lawyers, trained to assist other people with their problems, are uniquely stigmatized when they need help with their own problems.

Our Society was formed in 1997 to provide assistance to lawyers or articled students who have suffered an illness or injury arising from any cause whatsoever — including, but not limited to, alcohol, drugs, stress, physical or mental injury — and to provide assistance to the families of those so affected. The Society was born out of concern for distressed members whose difficulties arose in a variety of circumstances. Inspired by various tales about fallen lawyers, 28 BARTALK / FEBRUARY 2024

Terry Laliberté, KC; Judge Gary Cohen; Bert Oliver, KC and Al Bate, KC and others worked together to do something for their comrades, rejecting a cold dissenting sentiment that lawyers should simply be able to take care of themselves.

We respond quickly and discreetly with financial aid necessary to reduce problems faced by members who have nowhere else to turn.

We pass no judgment.

There is no bureaucratic barrier to assistance. Our society is premised on respect for our troubled colleagues, and an understanding that there is a natural reluctance to seek our help. As long as our criteria for benevolence are met, we are not in the business of scrutinizing or monitoring how the funds are used, nor do we contact third parties to verify information about a member or play any investigative role. In short, we trust if you have come to us, your need is legitimate.

There is no bureaucratic barrier to assistance.

We deliberately avoid the use of application forms or other formal processes. We assess your situation through a lens of kindness and empathy, not scrutiny. The Society’s directors operate on the basis of consensus decision making and

The Society has 12 directors, no paid staff and our resources come from the annual Vancouver and Victoria Battle of the Bar Bands (which together raised over $160,000 in 2023) and ad hoc donations. We are bullet proof confidential, discreet and ultimately benevolent, respecting those who come to us feeling broken or damaged.

If that is you, please reach out to us.

You can start by confidentially contacting the Society’s President, David Hay, KC at BenevolentSociety@ cbabc.org. We also work closely with Lawyers Assistance Program of BC in cases involving addiction and you can contact Derek LaCroix, KC at 604-685-2171 or derek@lapbc.com.

The Victoria Battle of the Bar Bands is happening Friday, April 5, 2024 at the Di Vinci Centre for the Performing Arts, and the Vancouver Battle of the Bar Bands is on Friday, June 7, 2024 at the Commodore Ballroom. Tickets for both sellout events can be purchased at cbabc.org/Battle. Can’t attend? We welcome your donations.

David Hay, KC, President and Roger Holland, Treasurer of the CBA (BC) Benevolent Society.

Out on the Town

with BC’s Legal Community Family Law Dinner March 7 | cbabc.org/FamilyLawDinner

Enjoy dinner, networking and an inspiring keynote speech by The Honourable Justice Sheila Tucker of the Supreme Court of British Columbia.

Battle of the Bar Bands Lawyers take the stage and show-off their musical talents, all to raise funds for the CBA(BC) Benevolent Society. Tickets on sale soon at cbabc.org/battle.

Victoria

Vancouver

April 5 | Save the Date

June 7 | Save the Date

Music-loving lawyers descend on the Da Vinci Centre to decide who will take this years’ trophy.

Presented by CBABC and Hunter West, this popular night returns to the Commodore Ballroom for a night of bopping to the beat!

Retirement Celebration for Chief Justice Hinkson April 26 | cbabc.org/CJHinkson

Lawyers and judges get together at the Fairmont Hotel Vancouver for the Retirement Celebration for Chief Justice Christoper Hinkson. Tickets go on sale February 1.

Vancouver Bench & Bar Dinner June 20 | Save the Date

CBABC and the Vancouver Bar Association warmly invite lawyers and judges to attend the 38th Annual Bench and Bar Dinner. Pay homage to those who have made outstanding contributions to justice in British Columbia.

The Lawyer Show – Into the Woods June 19 – 22 | Save the Date

One of Vancouver’s most entertaining legal events and a valued tradition, this years’ musical intertwines the plots of popular fairytales with all parts played by lawyers!

FEBRUARY 2024 / BARTALK 29

professionaldevelopment

\ CBABC.ORG/EVENTS

Stay ahead with BC Legal Conference Immigration Law 2024 March 15

Get the latest updates on permanent and temporary residency, practice tips for handling Federal judicial reviews, and strategies for managing work permit applications.

“Very well done. Enjoyed the topics and presentation styles. Lots of practical information.”

Register by February 12 for early-bird rates > cbabc.org/immigration

Family Law 2024 April 25-26

Experienced speakers share practice insights on the latest issues in family law. From amendments to the BC Family Law Act, the advent of AI, to the annual ‘Year in Review,’’ this conference gives you the tools you need to succeed.

“I liked the analysis of recent cases and trends. I liked that it covered a wide area of family law and wasn’t overly technical. Overall, the best course for me.”

Register by March 13 for early-bird rates > cbabc.org/family

Wills & Estates Law 2024 May 3-5

Engage in thought-provoking conversations on issues at the forefront of your wills and estates practice. Learn to navigate the intricacies of inter vivos trusts, tax issues, medical incapacity and more.

“I always come away with good info from this conference and I have found it well worth the investment of time and money.”

Register by March 14 for early-bird rates > cbabc.org/wills

Boost your practice management skills Effective practice management depends on being prepared for unexpected challenges and opportunities that arise. These sessions can help you do just that.

February 14:

Practice Strategies for Powerful Writing

March 6:

Technology & Practice Innovation

On-demand:

Lawyers as Employers: Lessons Learned and Best Practices

Register > cbabc.org/practice

30 BARTALK / FEBRUARY 2024

nothingofficial TONY WILSON, KC

“Any Book Worth Banning is a Book Worth Reading.” — Isaac Asimov “Those who seek to ban books are never on the right side of history.

Never.” — Jon Rosenthal

R

ecently, Steve Martin discovered that his 20-yearold novel Shopgirl was banned from school libraries in Collier County Florida as a result of a new State law that’s part of Gov. Ron DeSantis’s “Don’t Say Gay” agenda.

Under the new law, it takes only one complaint to restrict or otherwise ban a book from being available in a public school in Florida. But in an example of the Law of Unintended Consequence, sales of Shopgirl increased after the ban, giving me some hope that a Florida parent may one day object to my two books.

Steve Martin isn’t alone. Because teachers and school librarians can be fired for failure to comply with the law, almost 300 books were pulled from school libraries as soon as the law came into force. Other books were restricted to certain grade levels or required parental permission to read, notwithstanding the ease by which children can access sexualized content simply by looking at Instagram videos on their parent’s iPhones. Other banned books include The Handmaid’s Tale, Brave New World, The Colour Purple, and To Kill a Mockingbird. Despite all the murder, incest, violence and sexuality in the Bible, I do not see it on the banned or restricted list.

To illustrate how malicious this law is, a book by American youth poet laureate Amanda Gorman containing her spellbinding poem “The Hill We Climb” was a victim. Delivered at

President Joe Biden’s inauguration in 2021, Gorman’s book was restricted to middle and high school students after one parent complained that her poems “indoctrinated children” and contained “indirect hate messages.”

Not only had this parent not read the book, but she had also posted antiSemitic content online, attended a white supremacist event, as well as a rally attended by the farright advocacy group “Moms for Liberty,” (sometimes called “Klanned Karenhood”), which group had strongly advocated for the “Don’t Say Gay” and “Book Banning” laws. Proving that karma loves hypocrites the most, the group’s founder is currently embroiled in a sex scandal after admitting to a three-way sexual tryst that included another woman.

But I digress.

What makes this law so devious is that it counts on hyper-politicized and ideologically motivated parents and other frenzied foot soldiers in the culture wars to demand that certain books be banned in schools, rather than have the State do the banning.

It’s analogous to the East German government counting on its citizens to turn their fellow citizens in to the Stasi. It only takes one parent to demand the removal of a book, and the school must remove it within five days unless the objection is overcome. But the schools often give in to the extremists because they lack the resources to fight a myriad of objections. This way, Florida legislators can

say “it’s not the State that’s banning these books. It’s the parents.”

Since the enactment of this law, 600 of the 700 requests to ban books came from just two people. The grounds for banning were sexual content and LGBTQ content or the books dealt with slavery, racial discrimination, critical race theory, science or that dastardly of all sins: the dreaded woke agenda! But Florida isn’t alone. An investigation by the Washington Post revealed that only 11 people comprised 60% of all book-banning requests in the US in 2022.

Golden Compass author Philip Pullman alluded to the fact that once you ban a book, everyone wants to read it: “The best way to get kids to read a book is to say, ‘this book is not appropriate for your age, and it has all sorts of horrible things in it like sex and death and some big and complicated ideas and you’re better off not touching it until you’re all grown up.’”

I look at this far more cynically.

History has shown us that a society that bans books today will burn them tomorrow. And we all know what happens after that.

Tony Wilson, KC is a Vancouver Franchise Lawyer, a Life Bencher of the Law Society, and an Adjunct Professor at TRU Law School. Over the past two decades, he has been a regular columnist for The Globe and Mail, Canadian Lawyer, and other publications. This is his 21st year writing “Nothing Official” for BarTalk, and as everyone should know by now, the opinions expressed in “Nothing Official” are his alone and do not reflect the views of the Law Society, the CBABC, or their respective members.

FEBRUARY 2024 / BARTALK 31

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