BarTalk April 2024 | Controlling Substances

LE GAL CONFERENCE

Family Law 2024

This conference distills the best practices, latest breakthroughs and critical topics to help family law lawyers stay prepared.

Apr 25 - 26 | Sparkling Hill Resort & Spa, Vernon

cbabc.org/family

Wills, Estates & Trusts 2024

Seasoned experts and innovative thinkers gather to explore critical topics that shape your wills and estates practice.

May 3 - 5 | Manteo at Eldorado Resort, Kelowna

cbabc.org/wills

BRITISH COL UMBIA

FROM THE PRESIDENT

SCOTT MORISHITA

Breaking the Mold

How a medical leave changed my life

According to the National Study on Wellness in the Legal Profession, 9.5% of legal professionals surveyed had taken a medical leave of three months or longer in the previous five years. For 66.7% of these professionals, the diagnosis that led to the leave was a mental health issue.

In a previous column I wrote about taking a leave very early in my career due to mental illness. I discussed how I was reluctant to take a medical leave, despite being advised to do so by professionals. I worried that by taking a leave I would be stigmatized — that other lawyers would view me as damaged. In short, I thought taking a leave would be the end of my career.

Despite my considerable fear, I ultimately did make the difficult decision to take a leave. What was the catalyst? Over time I developed trust and faith in the treating professionals who were recommending the leave. In addition, the Lawyers Assistance Program of BC put me in touch with two peer support lawyers, who each shared with me their experience taking a leave and returning to work successfully. With the help of these professionals and peer support lawyers, I came to the realization that things were unlikely to improve unless I took time away from work.

While the decision to take a leave was extremely difficult for me, telling the firm I needed to take a medical leave was almost as hard. Fortunately, the firm was very supportive. My leave started about two weeks later and

was scheduled to last three months. I left for my leave uncertain if it was the beginning of the end of my time at the firm and in the profession.

What did I do during the leave? My counsellor and I created a wellness program. We developed a plan that included exercise, eating healthier, and getting more sleep. I started journaling and reading about spirituality. I learned about workaholism. I attended a lawyer support group and had regular meetups with one of my peer support lawyers. I committed to spending more time with family and friends. I learned about boundaries and worked on my communication skills. I had weekly counselling sessions, which also served as gentle accountability check-ins, to help keep me on track with the program. Being on leave was not a “break.” Working the wellness program was essentially a full-time job.

executing the skills and strategies I learned, and that my wellbeing would deteriorate upon my return to work.

Fortunately, the firm was supportive of a gradual return to work, which the professionals had recommended. The gradual return lasted about three months. During that time, I continued to see my counsellor regularly, follow the program we developed, and use the skills I learned. By the end of the gradual return to work period, I was working full-time hours and billing over seven hours a day. It wasn’t always easy, but I had in place a solid foundation, which included a very strong support network.

I returned to work 3.5 months later. The leave was immensely helpful for my mental and overall wellbeing. My mood was significantly improved. I was exercising regularly and in good physical shape. I was more comfortable setting boundaries and communicating my feelings. I was excited to get back to work. That said, I also had some fears. Although I was looking forward to seeing my friends and colleagues again, I worried that I would be perceived differently or treated differently. I was also concerned that I would have difficulty

The end of the leave wasn’t the end of my path to wellness, it was more of the halfway point. But it was the most critical component of the journey. I’ll write more about the rest of the journey in a future column, and more specifically, what keeps me mentally well. I’ll also write about what I think the profession needs to do to address our mental illness pandemic.

If you are experiencing a mental health concern, please consider contacting the Lawyers Assistance Program of BC.

CHIEF EXECUTIVE OFFICER

KERRY L. SIMMONS, KC

On Your Mind — There’s a LOT Going On

“What is top of mind for you in your work these days?” Throughout the year, CBABC meets with lawyers in all kinds of practice settings in every part of the province and asks this question. It is important for your association to know what’s keeping you up at night, what challenges you are meeting and the successes you enjoy. We meet with managing partners, associates and articling students. We might also see you at your firm or a local bar association event.

Listening to your answers helps CBABC provide important context when we represent you in our advocacy submissions and meetings or enhance programs. The reality of day-to-day practice, business development and operations help us tell the story of why reforms are needed or new programs make sense.

Some of the things you tell us are about business, namely the shortage of trained legal assistants, the prohibitive cost of technology and information management systems you want to incorporate to develop efficiencies, and your desire for the Law Society to confirm which programs comply with the Rules and Code. You tell us you are short on time for business operations because client demand for services is high. Some workplaces have people tasked with solving these problems. Other set-ups require lawyers to not only provide legal services but also tackle the business side of things. A big gap in preparing lawyers to practice is teaching the basics of the business

of legal services. Even if you are going to hire other professionals to assist you, you still need to have a basic understanding in order to be successful. And associates would benefit from greater transparency from employers so that they learn and contribute solutions given their generations’ affinity for technology. Your observations help us advocate for change in law schools and at the Law Society.

You also tell us about the profession. For example, the introduction of No Fault means some personal injury lawyers have retired, but many more are entering the fields of family law and estate litigation. Those lawyers must rapidly learn the law and develop new skills. This change also requires experienced and new members to those bars to make new relationships with each other. Maintaining connections and civility is key to our profession, something that CBABC helps with through Sections.

the conversation to develop systemic solutions to this problem.

Professional concerns also include what will happen when we have a single regulator of lawyers, notaries and paralegals and how lawyers will maintain self-regulation. Mental health of lawyers is still top of mind with examples of anxiety, overwork and burnout shared frequently. And helping the COVID cohort of new lawyers learn to engage in person whether with clients, supervisors, partners or judges requires dedicated attention.

In March, CBA and Thomson Reuters released two reports, The State of the Canadian Law Firm Market and Canadian Government Lawyers Benchmark Report. Over 300 lawyers from a range of private practice settings and 70 government lawyers participated. In brief, lawyers are optimistic but see many challenges ahead. Lawyers and their workplaces need to focus on meeting those challenges with purpose.

You highlight the need for more criminal defense and family law lawyers in every corner of the province. Programs like REAL have modestly assisted in maintaining legal services in smaller communities, but more needs to be done to encourage law students to pursue this field, and critically, to support the small firms who can hire and build criminal defense lawyers. Without the balance of the criminal defense bar, the rest of our criminal justice system would be compromised. CBABC is part of

CBABC is building our next Strategic Plan and your honest, frank answers to our question will help us continue to support you successfully practice law in this ever-changing, always demanding time.

Kerry L. Simmons, KC ksimmons@cbabc.org

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JACK LLOYD

Psilocybin Regulation, Litigation and Fascination in the Law

Psychedelics were formally “discovered” in 1897 when Arthur Heffter isolated mescaline from the peyote cactus for the first time. Psychedelics have been used for centuries, however, by various cultures in ritual and medical contexts, and these uses have most recently piqued the interest of science and industry for their promising antidepressant, anxiolytic and anti-addictive effects.1 The consensus appears to be that psychedelic therapies offer a very real alternative approach to conventional medical concerns by expanding consciousness and appear to have real physiological benefits for patients.

Public opinion on psychedelics took a relatively negative stance in the 1960s2 and in the 1970s most psychedelics, psilocybin (magic mushrooms) included, became illegal in Canada. An underground culture of psychiatric and therapeutic professionals began and continued to use psychedelics to facilitate talk therapy for many patients. This practice continues today, although in Canada recent legislative amendments have made it possible for this therapy to occur in a legal setting.

Health Canada, the federal regulatory agency in charge of regulating substances such as psychedelics, has indicated repeatedly that clinical trials are the most appropriate method for studying and treating individuals using psilocybin.

Health Canada recognizes that access to psilocybin may be appropriate in some circumstances and as such has offered three pathways for patients to access the substance:

behalf of a patient participant in the SAP. Thus far, physicians have been resistant to this responsibility and access issues exist for many patients seeking relief from treatment-resistant depression, end of life anxiety, substance use disorders, and certain forms of chronic cluster headaches and migraines. Significant numbers of large pharmaceutical companies as well as local coalitions of like-minded researchers, doctors and patients, have been working

1. Clinical trials;

2. The Special Access Program (SAP); and

3. An individual s.56(1) exemption under the Controlled Drugs and Substances Act (CDSA).

There are currently a number of clinical trials underway, some of which have produced positive results thus far. The Special Access Program was introduced for psilocybin in January 2022 when the Food and Drug Regulations were amended. The law now allows for a Licensed Dealer, which holds lawful authority, to possess, purchase, and/or produce psilocybin to ship a quantity of psilocybin to a physician who agrees to receive it on

to study and spread information regarding psilocybin and its effects on patients who may not be able to find relief using any other medicine that is currently available.

In 2020, a number of patients and medical professionals sought and were granted section 56 exemptions under the CDSA to possess psilocybin to use as a treatment for a variety of medical issues, including treatment-resistant depression. Oddly, a significant number of healthcare professionals were also granted these exemptions for the purposes of training — the idea being that they needed to experience the substance if they were to provide psilocybin-assisted psychotherapy to patients. These exemptions have

slowed down significantly since then as the government directs more and more individuals and groups to the SAP and clinical trial model, rather than the s.56 exemption route. This has again resulted in significant frustration for patients and caregivers as well as significant gaps in access and delays in access to lifesaving healthcare.

In response to these delays, in July 2022 litigation began in the Federal Courts in a case called Thomas Hartle et al v Canada3 challenging the delays as well as the availability of natural versus synthetic psilocybin for participants in the SAP and clinical trial access routes. That litigation is ongoing. Meanwhile, similar to the “Compassion Club” model for medical cannabis, particularly in British Columbia, small psilocybin storefronts began to open in Vancouver, B.C., as well as various locations across the country, offering to provide access to psilocybin for medical patients who are unable to access psilocybin using the federal government’s three proposed routes. Often, these shops will require patients to provide proof of an ailment requiring the substance, and even proof that they hold an authorization or exemption allowing them to possess the substance. The legal issue is relatively clear: by providing lawful authority to possess (and subsequently consume) the substance, but no legal way to purchase or access it, the federal government effectively created a situation in which patients had to break the law in order to access their medicine.

The City of Vancouver, thus far, has elected to manage the issue through their business license bylaw and zoning bylaw, although many shops have sought and received licenses for Limited Service Food Establishment.

It remains to be seen whether these licenses will satisfy the City of Vancouver’s licensing and zoning requirements, or if legislative amendments need to occur for the City to introduce a licensing scheme similar to its Medical Marihuana Related Use bylaw, which was used to manage compassion clubs in the city prior to the federal legalization of cannabis.4 On March 5, 2024, I appeared before a special appeal panel appointed by the City of Vancouver’s mayor to decide whether or not a City of Vancouver business licence can be amended or have conditions attached to it, which would allow for medical patients to access their psilocybin and other entheogens from storefronts holding licences within the City of Vancouver. That appeal was successful, and my client now holds a licence authorizing activities involving entheogens. Similar to cannabis, these large constitutional issues appear to ground themselves in the global issue of broad mental health issues across the world brought on in part by the stressors of the COVID-19 pandemic, but curiously in British Columbia are litigated mostly in the “local” space, i.e., the highly regional forum of municipal law, rather than federal criminal law.

Columbia, thus far, the focus has been on compliance with municipal business licensing. Meanwhile, the SAP, at last count, had provided for legal access to psilocybin for less than 10 patients since its introduction in 2022. This is clearly not enough given the sheer numbers of patients reporting treatment-resistant depression in Canada, and the consequence has been the rise of unsanctioned compassion clubs across the country.

At present, there are approximately 20 psilocybin compassion clubs operating in Ontario and at least as many operating throughout British Columbia, with the bulk existing in Vancouver. In Ontario, Quebec and Manitoba, those working at or operating these compassion clubs are subject to raids by police and face criminal charges. In British

There is a legal principle known as “subsidiarity” in which it is suggested that the decision maker most closely affected or linked to a legal issue should decide it. It appears, at least to me, that within the City of Vancouver this issue is, according to subsidiarity principles, best decided by City Council who is elected to represent the interests of those residing within the City of Vancouver and who are often affected not only by these shops offering compassionate access to psilocybin as medicine, but also those residing near these shops who may wish for the City to impose a set of rules for their safe and sensible operation. It goes without saying that these decisions will provide a road map potentially for other municipalities, provinces, and, indeed, Canada as a whole.

1 See for example, online

2 See online

3 Federal Court File Number: T-1560-22.

4 Vancouver (City) v Weeds Glass and Gifts Ltd., 2020 BCCA 46 and related litigation.

Jack Lloyd is a lawyer practising in Ontario and British Columbia whose practice is focused exclusively on cannabis and psychedelics and their regulation. @JackLloydLawyer

advocacy inaction

Access to justice and maintaining the independence of lawyers continue to be top advocacy priorities. Here are a few highlights:

AN IMPORTANT WIN FOR FAMILY LAW LEGAL AID

The B.C. government recently announced a $29.1 million investment to improve legal aid services for survivors of family violence. CBABC has pushed the provincial government for more investment in family law legal aid for decades, and the CBA intervened in the case arguing that the Centre for Family Equity (formerly Single Mothers’ Alliance) met the test for public interest standing in 2022.

BC BUDGET FAILS TO ADDRESS UNDERFUNDING IN LEGAL AID

BC Budget 2024 did not include any legal aid investment for routine family law matters and government failed to heed CBABC’s call to remedy the underfunding of legal aid B.C. remains the only province in Canada without legal aid for routine family law matters like spousal and child support, parenting arrangements or dividing debts and property fairly.

to improve the availability and efficiency of Judicial Case Conferences. In December, our Family Law Committee delivered a submission to the Attorney General to improve the section 211 reporting process

ACCESS TO JUSTICE

To celebrate Access to Justice Week BC, CBABC supported a webinar series on how to improve the justice system through participant-centred decision-making. In the flagship event, Finding Justice: Challenges and Opportunities in B.C.’s Legal Aid Landscape,” panelists discussed the state of family and civil legal aid.

The announcement from the Supreme Court of BC to move to online scheduling for civil and family matters is excellent news too. By fall 2024, trials and lengthy chambers hearings in civil and family matters will be booked online, along with all conferences. CBABC has long advocated for modernized court scheduling to improve access to justice and is preparing another related submission to encourage continued action.

INCLUSIVITY IN OUR JUSTICE SYSTEM

MODERNIZING FAMILY LAW

CBABC continues to contribute in consultations to modernize the Family Law Act. This includes a submission on provisions related to parenting arrangements, child-centered decision making and family violence. We are also responding to the BC Law Institute’s review of parentage under Part 3 of the FLA, as well as sending a letter to the Supreme Court of BC with recommendations

In early February, CBABC, the South Asian Bar Association of BC and the Federation of Asian Canadian Lawyers (BC) Society delivered a letter to B.C. courts and tribunals with best practices to ensure all people who appear before courts and tribunals have their names pronounced correctly. Implementing these practices will improve the experience of Indigenous and racialized people and send a message that everyone should be treated with respect and dignity. The BC Supreme Court was the first to respond.

KIRK TOUSAW

Is that “Government Weed?”

Cannabis retail in B.C.

Cannabis retail stores in British Columbia come in all flavours, from standard-issue government stores to small, rural, independent mom-and-pop shops. This article highlights key differences between government stores and private retailers and comments on challenges faced by rural stores.

Ten years ago, who would have predicted that the B.C. government would own and operate weed stores? And, yet, with B.C.’s fairly unique retail regulatory model, that’s exactly what has happened. The provincial government is both the exclusive wholesaler of cannabis products in B.C. and a retailer, operating a mail order platform and 39 bricks-and-mortar stores.

The government stores look much like B.C. Liquor Stores: they carry a wide variety of products from growers/processors located inside and outside of B.C. and can charge prices that are sometimes lower than private retailers. But the selection of products can vary dramatically from store to store and can pale in comparison to some private retailers. This is a feature (or perhaps a bug) of the regulatory model.

The 487 private retailer stores must purchase all cannabis products from the wholesaler. This occurs in two ways. First, they can order directly from the government; known as purchasing from “Central Delivery” the products are shipped from the province’s Richmond warehouse.

Second, they can purchase and take delivery directly from a limited class of

small B.C.-based sellers. The provincial government still takes its 15% cut of sales but the products are shipped directly from the processor to the retail store. This “Direct Delivery” model is not available to government stores, limiting the selection available to those products selected by the BC Liquor Distribution Branch for purchase into Central Delivery.

Direct Delivery, introduced in 2022, was intended to support small B.C. growers, but has failed to capture a significant part of the market. Shipping costs and convenience are key issues. Central Delivery shipments all come at one time and shipping charges are spread out among many items. With Direct Delivery, shipping fees are paid (by the store grower) for each shipment. This eats away at margins. Direct Delivery orders are still subject to the 15% fee charged by the province even though its warehouse isn’t involved. Uptake has lagged as a result.

one company to eight. This is in sharp contrast to Ontario, where the cap was recently expanded from 75 to 150. It is also in contrast to Quebec, which has no private retail and maintains a total provincial monopoly on sales.

In addition to the differences between private and governmentrun retail stores, B.C.’s size creates significant challenges for stores operating in geographically remote or lower population areas.

A key component is shipping cost — the same item at a retail store in Langley may cost more in Fort Nelson because it costs more to ship there. This is particularly true for items ordered via Direct Delivery.

Another challenge is customer base. While cannabis products are becoming increasingly popular, the continued stigma from almost 100 years of prohibition means that many British Columbians remain cautious about trying it. Less customers means less cash flow, which produces a ripple effect on ability to have a diverse inventory... which leads to less customers.

One other retail store type exists. That is the Producer Retail Store, colloquially known as “farm-gate” and intended to allow B.C. growers to directly make retail sales much like a vineyard or craft brewery. There is only one such store in B.C. The reasons for the minimal uptake are unclear but may be that these licenses attract the same $15,000 application fee as a standard retail store license.

B.C. also limits the number of private retail stores that can be owned by

Cannabis retail in British Columbia is a changing regulatory space. The provincial government has shown willingness to change its model in response to industry feedback and market conditions. As more experience is gained, and lessons are learned from other provinces, this area of regulatory law is certain to continue evolving.

Kirk Tousaw is a B.C. lawyer, and cannabis company owner, that helped legalize cannabis and now advises the industry. (Twitter/IG: @kirktousaw)

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Marijuana and Other Substances in Family Law

Just blowing smoke?

If nondisclosure is the cancer of family law, its chronic illness may be mudslinging. Despite the legalization of marijuana and recent decriminalization of other substances, there remains a common misconception that raising drug use will give clients an advantage in family court.

Decades ago, courts certainly took a much sterner view. Consider the “stubborn, misdirected, trapped, unreliable drug takers” of Robson v Robson, 1969 CanLII 242 (ONSC). “I am moved to ask: What kind of a society do these parents think they live in? Their past conduct makes it plain and I find as facts that they have had no respect for its laws, its morals, its religious beliefs, its family system, or the protection of its frail or young members from the exploitation of narcotics for profit.”

Similarly, the “well-bred, gentle and sensitive” wife in F. v. F., 1970 CanLII 828 (BCSC) was able to obtain a divorce for mental cruelty when her husband refused to stop smoking and selling marijuana, then announced his plans to backpack through South America. “In my view,” the court writes, “taking and selling drugs is in an entirely different category than drinking or even bootlegging alcohol. Drink has both social and legal acceptance. … In this case, I am prepared to believe that his treatment of her was worse than physical cruelty would ever be to this petitioner.”

The modern view, in contrast, is to treat alcohol, marijuana, and other substances as more or less equivalent: problematic only when abused, and even then, of limited relevance. In K.J.P. v B.S.J.G., 2024 BCSC 167, Justice Schultes put it this way: “In itself [substance abuse] is a neutral factor — family law does not treat it as a moral failing that disentitles a party from accessing the full range of rights that would otherwise be available to them. The question is whether the specific behaviour that a party has engaged in while abusing substances relates to a matter in issue.”

prepared to forego a glass of wine after the kids are in bed.

Even without substance use orders, the Family Law Act allows one party to deny parenting time where they reasonably believe the other is impaired by drugs or alcohol. But note that denial without that reasonable belief can attract fines of up to $5,000 under the Act.

Anecdotally, the most common response to complaints that one parent or another is using drugs is an order restricting substances during parenting time. Proving a

The Family Law Act allows one party to deny parenting time where they reasonably believe the other is impaired by drugs or alcohol.

breach of such an order, however, may require additional and expensive drug testing. And orders will often be mutual — so applicants should consider if they are also

More rarely, drug use issues can arise in support proceedings. In Arcand v Arcand, 2023 BCSC 747 (CanLII), Mr. Arcand illegally grew marijuana in the family home. When they divorced, Ms. Arcand was denied spousal support. She claimed ignorance of the extent of Mr. Arcand’s activities, but the court found that she had been aware of and benefited from the drug businesses. After the birth of their children, she returned to work and Mr. Arcand remained at home to grow marijuana and care for the children. Grow-op profits bought the first vehicle for her limousine business and paid for the house where she generated Airbnb income. Compared to Mr. Arcand, who was then 62 and had been incarcerated for smuggling, she had much greater income-earning potential.

While raising drug use as its own issue might have moved the needle in the past, today it is often smoke without fire. Rather than making hazy allegations, counsel should be prepared with specific, well-documented evidence of how drug use affects the issues in a given case.

KAITLIN GREEN

Kaitlin Green is a litigator at Pettit & Company in North Vancouver.

Do (Slightly) Sweat the Small Stuff sidebar

Pop quiz: what’s your biggest investment? You may say your home, health, family. All excellent answers. But all wrong. So long as you’ve got plenty of working days ahead of you, then — financially speaking, at least — your biggest investment is your career.

The average Canadian lawyer invests seven years and more than $86,000 dollars in their post-secondary education1, another nine months articling2, and untold hours engaged in all the heads-down, late-night, early-morning work that goes into building a career. It follows that you should protect that investment with insurance that will work for you when you can’t.

We talked to BC-based Lawyers Financial advisor, Ryan Graham, about the importance of protecting your income, and why it’s often the little things that catch us unprepared.

Q. What’s your background selling insurance and how did you get into the industry?

A. I’ve been in the industry for 20 years and have been working with Lawyers Financial for the past six. For me, the work is meaningful because I want to make sure that families are taken care of if something goes wrong. My father passed away from cancer when he was 59. He had disability coverage and a small amount of life insurance through

his employer, and no critical illness insurance. A better insurance plan wouldn’t have helped him live any longer, but it certainly would have helped my stepmother afterwards.

Q. Most people are more familiar with life insurance than disability insurance. Can you explain why disability coverage is so important?

A. I think protecting your income is the most important thing you can do as a working professional. Of course, life insurance is important too, but there are solid advantages to getting disability coverage.

Most people are worried about catastrophic things happening, but, realistically, it’s the less dramatic stuff that’s a lot more common.

For example, there’s a much greater likelihood that you’ll become disabled during your working years than that you’ll pass away.

There is also a vast difference between group and individual disability coverages. You might have some coverage under a group policy and not realize that individual plans offer a lot more protection.

Q. What are the most common disability claims for the lawyers you work with?

A. I’ve helped my clients through the claims process for all kinds of things. It’s often relatively short-term situations, which can be another surprise for people. Most people are worried about catastrophic things happening, but, realistically, it’s the less dramatic stuff that’s a lot more common.

Q. When it comes to protecting income, are there other nuances that are specific to the legal community?

A. Lawyers, particularly partners, often have several layers of income (partnership income, personal law corp. income, personal income that they pay themselves and they may have investments owned personally or through their law corporations).

The maximum disability insurance that a lawyer can qualify for is based on their income, so understanding how lawyers generally structure their business allows us to help them determine what types of income are eligible for disability insurance coverage.

We can help. Protect your paycheque with a plan that reflects your needs and respects your budget. Ask a Lawyers Financial advisor about disability insurance that will work for you when you can’t.

Get started.

1 Canadian Lawyer Magazine, “Canada’s legal tuition fees are among highest in the world.” This estimate — $86,000 — comprises law school tuition, but doesn’t include the cost of an undergraduate degree, bar exams, licensing, or living expenses.

2 Canadian Lawyer Magazine, “A roadmap to studying law in Canada,” November 2023.

CHIEF DEL RILEY

The Traditional System of Cannabis Regulation Indigenousmatters

Cannabis regulation raises a big issue, and that’s who really has the authority in our nations. From my research and opinion, it’s the traditional people, the ones that originally made the agreements. In the future we have to work something out as a people and a nation that we can all agree with. If Band Council upholds or promotes that decision — made outside of Indian Act systems — then their voice finally has some weight. Not because they are elected under the Indian Act, but because they are expressing the consensus of the people — decided in accordance with traditional norms.

Even in cases where the traditional system has been effectively destroyed by colonization, it can be rebuilt and utilized. We still have and understand the principles of this system. The traditional system worked by having all the families involved, and the senior elders of each family would appoint their Chiefs and then they all worked together for the common good.

When we as Indigenous nations began making treaties with the British Crown, we did so as independent nations with full and inherent rights. Indigenous military support for the Crown during the American Revolution and the War of 1812 was the decisive factor in the Crown remaining in what is today Canada, and in order to gain this military support, the Crown made peace and friendship treaties

with Indigenous nations that remain in effect today.

Indigenous people never gave up our inherent rights to make medicine from or otherwise benefit from the cannabis plant on their own lands, and the nation-to-nation treaties made with the Crown — long before the existence of Canada — reflect this. The Constitution is the highest law of Canada, and it legally protects our rights. These rights include the right to consume and distribute cannabis. These are rights of our nations, from time immemorial.

Our economies and standards of living on reserve are equivalent to some of the worst in the world. Cannabis is an opportunity much

economy for ourselves. The Royal Proclamation of 1763 recognized our rights, it didn’t create them. These rights are further entrenched by Sections 25 and 35. Our rights come from being a nation, and nations have the right to make laws and govern their societies. The right for our people to do what they did with medicines was the right of that nation. We don’t have to prove anything to anyone. On the other hand, Canada has to prove to us how they acquired any rights here without discussing it with us first.

Indigenous people never gave up our inherent rights to make medicine from or otherwise benefit from the cannabis plant on their own lands.

like cigarettes. We need to do it ourselves. We need our own economy in our communities, and we need to run it ourselves. This is pretty much denied by the Indian Act, and we have to overcome it. We have to use the rights of our nations recognized by Section 35 and develop our local

We are the only ones that can truly define what Aboriginal Rights are. It is our job to define what Section 35 means. Not a judge or lawyer whose whole life is having an opinion on this that or the other. Rights are not subject to the opinions of colonizers, because the opinions of colonizers tend to be self-serving. If we were to get opinions from the brown skinned people around the world, I bet they’d agree with us. It’s time to get rid of that “empty box” of Section 35 opinions. We’ll define our own rights and fight for them ourselves.

Our people have to figure this out themselves. We don’t need to include the government or Band Council in this. We have to work together and make it work for all of our people.

Excerpt from chapter 4 of Chief Del Riley’s book entitled, The Last President — How Aboriginal and Treaty Rights Were Entrenched in the Canadian Consitution

Indigenousmatters

ROBIN PHILLIPS

Respecting Indigenous Regulation of Cannabis

Time to turn over a new leaf

Indigenous Nations possess extensive governance rights that have never been ceded or surrendered. These rights reasonably extend to the regulation of plants and medicines on their lands. Nonetheless, current cannabis legislation fails to include provisions for Indigenous Nations to regulate the cannabis industry within their territories.

Lack of jurisdictional recognition has been viewed as ongoing economic exclusion. An inclusive approach might have enabled Indigenous communities to manage cannabis possession, sale and distribution, providing potential economic and regulatory benefits. The situation highlights the need for future legislation to better respect Indigenous Nations’ governance rights.

Indigenous Nations have authority both under their inherent jurisdiction and enabling legislation that may be used to regulate cannabis on their lands. First Nations are using their governance authority in a variety of ways to regulate cannabis possession, sale and distribution. Some Nations have exclusively invoked the inherent authority they hold over their lands and people. Others use the power to regulate land uses under Land Code to regulate cannabis. There are also Indian Act authorities for this authority, including the power to regulate nuisance, to enact bylaws in relation to health, and business licensing powers.

One approach for First Nations is a “hybrid” approach that combines

development of laws based on inherent jurisdiction with reference to other authorities, such as Land Code. This approach establishes that Indigenous Nations have their own jurisdiction over cannabis, while also creating a regulatory scheme around, say, licensing that may have benefits when it comes to enforcement. In the recent decision, George v Heiltsuk, the Federal Court held that it has no jurisdiction to review a power not granted or recognized by Federal legislation1 This suggests that if a court has no jurisdiction to review a bylaw or law, it might also say it cannot enforce that law. And, even with laws or bylaws that may be recognized by the court, enforcement may still prove challenging.

on their lands, in accordance with their own legal regimes. An associated step would be to increase federal funding to support Nationmade cannabis laws and bylaws, including enforcement of these laws. This would bolster effective regulation and control of cannabis within First Nation jurisdictions, reaffirming their inherent rights to self-governance.

A difficult issue stemming from the failure to recognize Indigenous jurisdiction is lack of access to the legal cannabis market where a business is operating under First Nation laws. This may give rise to a cannabis grey market. It is important to note that the grey market may still be subject to testing and standards. However, the fact that First Nations must choose between their sovereignty and the legal market is problematic.

Addressing the challenges faced by First Nations in the cannabis market requires strategic interventions. A good step forward would be to work with Indigenous Nations to support them to manage cannabis

Within the context of British Columbia, agreements under section 119 of the Cannabis Control and Licensing Act may be useful. Although these are agreements based on provincial law, they could support First Nations to have access to the legal market while still respecting Indigenous sovereignty. If British Columbia intends to foster a cooperative relationship with Indigenous Nations, it is imperative that the province interprets section 119 in a broad, rights-based manner.

Working cooperatively with Indigenous Nations ensures that their governance rights are recognized and upheld. This not only respects Indigenous jurisdiction but also allows for potential economic growth and development of their communities. It is essential to make this a standard practice to avoid future missed opportunities.

More Engagement with More Lawyers

Sections are hard at work to connect members with top-level speakers on current issues. Section meetings remain free for members and provide an invaluable opportunity to make new connections and stay ahead of the latest trends. Be the first to know about your next meeting by enrolling in Sections for your practice and interest area.

Since January, nonmembers have enjoyed unlimited access to Section meetings for a fee. It’s great to see more B.C. lawyers experience our services before they become a member.

MIND THE GAP

To kick off 2024, over 100 attendees were welcomed to a substantive and timely meeting about the Pay Transparency Act Speakers from Harris & Company and West Coast Leaf provided background for the legislation and the updates implemented on November 1, 2023. Attendees got an overview of the road ahead, explored the intersection of the new updates with the Human Rights Code and learned about the impacts to marginalized groups in Canada.

EARLY CAREER LAWYERS MASTER TEAMWORK

Regardless of your law firm size, collaboration is key to get your clients what they need and to push files across

the finish line. The Young Lawyers Sections jointly hosted “Working with your Legal Team” to share best practice for pulling together with your colleagues. Speakers from McLean & Armstrong LLP highlighted the art of delegating, being transparent and setting foundational values for a great team.

WOMEN LAWYERS FORUM MAKE CONNECTIONS ACROSS B.C.

The WLF hosted two networking events for early career lawyers and senior counsel: the Junior Women Lawyers Networking Event and the Senior Women Lawyers Dinner. WLF Vancouver Island also saw the highest turnout ever at their annual Judges dinner.

LAW WITHOUT BORDERS, AND LAWYERS AT THE BORDER!

The new Internationally Trained Lawyers Section Executive spared no time to invite their members to a new bi-monthly virtual roundtable. The Law Without Borders Discussion Group is an opportunity to connect with peers, share personal stories and support each other before, during and after the NCA process.

In tandem, the Immigration Law Section is working with the Canadian Border Services Agency to host in-person tours of nearby Ports of Entry. The March 5 tour sold out within 30 minutes of registration opening! Look out for news about future opportunities to attend this popular activity.

CRIMINAL JUSTICE SECTION MAINTAINS IN-PERSON CONNECTION

Much of our work depends on building solid relationships — with our clients, opposing counsel and with our colleagues. While the transition to online court appearances, meetings and conferences has increased access to justice and educational opportunities, it has also reduced the time we spend learning with one another in dynamic settings that are hard to replicate online.

We prioritize reconnecting in-person at meetings, while still offering the remote option for all our members. We held three well-attended hybrid meetings this term: two discussed civility and professionalism, followed by a third on ineffective assistance of counsel claims. Each meeting included esteemed panelists with invaluable insights, including Supreme Court of BC and Court of Appeal Justices, Provincial Court Judges and skilled counsel.

Come say hello at our next meeting, in-person or through the chat!

LAWYERS NOTE NEW REGULATION FOR HEALTH PROFESSIONALS

The Health Law Section hosted an informative and well-attended session on Patient Safety: Lessons Learned and the Path Forward. Dr. Cornelia Wieman and Janene Erickson, First Nations Health Authority, and Ronald Guse, founding co-chair of Healthcare Excellence, shared valuable insights for lawyers who advise and advocate for health professionals on patient safety and improvements in healthcare. The session covered the many causes of adverse events in healthcare, including systemic bias and discrimination toward First Nations patients, and thoughts on how to improve patient safety in healthcare.

The regulation of health professionals is changing. Stay tuned for our review of the Health Professions and Occupations Act which will be coming into force soon — affecting all healthcare professionals and their regulatory bodies.

Donate an auction item to support legal warriors!

The ever-popular Aboriginal Lawyers Forum auction recognizes National Indigenous Peoples Day and raises funds to support Indigenous law and articling students. ALF are collecting donations for the auction in June. Find out more and donate >

Indigenousmatters

Cannabis Legal Reform

Is UNDRIP compliance mere puffery?

In 2019, British Columbia took a commendable step by passing the Declaration on the Rights of Indigenous Peoples Act (DRIPA), affirming the application of the United Nations Declaration on the Rights of Indigenous Peoples ( UNDRIP ) to the laws of B.C. However, despite this promising move, B.C.’s legal and regulatory framework for cannabis continues to fall short of aligning with UNDRIP and DRIPA. This article explores B.C.’s shortcomings in delivering long-promised cannabis reform.

DRIPA signifies B.C.’s commitment to upholding the principles outlined in UNDRIP, an international declaration that establishes crucial standards for safeguarding the rights, dignity and wellbeing of Indigenous peoples worldwide. Further, DRIPA mandates the provincial government to develop an “Action Plan.” The Action Plan, released in March 2022, outlines steps the province will take to fulfil the objectives of UNDRIP. With 89 “action items” slated for completion by 2027, the plan targets several issues, including cannabisrelated governance and jurisdiction.

Of note, action item 4.47 provides that the province must, in consultation and cooperation with Indigenous peoples:

“Advance a collaborative approach to cannabis-related governance and jurisdiction between First Nations and the Province that reflects common objectives to protect youth, prioritize public health and safety, strengthen First Nations governance capacity and secure economic benefits for First Nations.”

B.C.’s commitment to advancing a collaborative approach in the cannabis industry represents a crucial step toward incorporating Indigenous perspectives. However, the progress on the ground paints a different picture. Despite the promising commitment, B.C. has made little headway in amending its cannabis legislative and regulatory regime to align with UNDRIP. The province’s failure to meet the expectations outlined in DRIPA are particularly glaring considering DRIPA was enacted over four years ago.

The sluggish pace of change raises concerns about the sincerity of the province’s commitment to meaningful cannabis reform. While action item 4.47 envisions collaborative governance, the lack of tangible progress leaves a gap between aspirations and reality. Indigenous communities still encounter obstacles that hinder their involvement in the cannabis sector, undermining the principles of UNDRIP and the economic and selfgovernment rights articulated therein.

regulation, from licensing and retail sale to taxation and revenue sharing.

The foundation of this reform must stem from the laws and legal orders of First Nations. It is imperative for cannabis legislation to create the jurisdictional space necessary for First Nations governments to engage in and reap benefits from the cannabis industry on equal footing with their provincial and federal counterparts.

Specifically, the current regulatory framework fails to recognize the inherent rights and jurisdiction of First Nations over their traditional territories, rights that extend to selfdetermination concerning cannabis regulation within these territories. To fulfil its obligations under DRIPA and UNDRIP, B.C. must amend cannabis laws to uphold First Nation jurisdiction across all facets of cannabis

B.C.’s journey toward aligning its cannabis regulations with UNDRIP and DRIPA is fraught with challenges and disappointments. While the province has demonstrated a commitment on paper, the lack of substantial progress is alarming. B.C. must accelerate its pace of reform, actively involve Indigenous communities in decision-making processes, and uphold Indigenous legal orders. Only through genuine collaboration and commitment can B.C. create a cannabis industry that truly reflects the principles of UNDRIP and the spirit of reconciliation.

Merle Alexander, KC and Iain Thomas practise Indigenous Law at Miller Titerle + Company in Vancouver.

MERLE ALEXANDER, KC AND IAIN THOMAS

communitynews

INTRODUCING FINANCIAL ISSUES IN FAMILY LAW — 3RD EDITION

The third edition of Financial Issues in Family Law is an indispensable resource for lawyers navigating complex financial issues in family law cases. This guide thoroughly addresses the financial challenges arising from relationship breakdowns, especially when business interests and trusts are involved. It offers in-depth coverage of property characterization, financial disclosure, valuation principles, division methods, tax implications and child support income calculation.

Featuring annotated sample documents, including financial statements and business valuations, this edition empowers lawyers to understand business ownership, effectively collaborate with valuation experts and confidently manage

tax and support considerations. Key updates include discussions on the Family Law Act’s property division regime, comprehensive analysis of financial statements and business valuation and the incorporation of the joint expert requirement.

Edited by leading experts in the field, this publication (available now in print or as an online subscription) is a must-have for legal professionals seeking to confidently handle financially complex cases.

Secure your copy today and stay ahead in family law practice. Visit cle.bc.ca/804 to find out more.

RUPINDER GOSAL AND SCOTT MORISHITA

What’s in a Hyphen? guests

RUPI’S PERSPECTIVE

“What’s your nationality?”, “Where are you from” or “Where is your family from?”

These are questions that people of colour commonly receive. Such questions can be welcome, if the intent behind the question is a genuine curiosity or desire to get to know one better, or unwelcome, if the intent is not clear or to “other.” And then there is the unintended consequence of even genuine curiosity: unintentional “othering.”

“Othering” can be defined as a phenomenon in which some individuals or groups are defined and labeled as not fitting in within the norms of a social group. This definition sheds light on how questions regarding the background of a typically person of colour can have the consequence of “othering”.

This definition also contextualizes the fact that the answer to these types of questions, from the perspective of a person of colour, can be complicated. In the past, we would often respond with stating the name of the country where we were born or where our ancestors were born, followed by a hyphen and the “Canadian.” Examples include Chinese-Canadian or JapaneseCanadian or Indo-Canadian.

However, for many people of colour, the hyphenation of their Canadian identity feels like a mechanism to other them. It serves as a reminder that, although we immigrated to Canada or may have been born in Canada, our Canadian

identity still needs explanation. It is also not something that is regularly used to describe the ethnocultural heritage of a Caucasian person. It’s very common to hear an Asian person in Canada referred to as Indo-Canadian or ChineseCanadian. However, it’s not as common to her a Caucasian person referred to as Scottish-Canadian or German-Canadian.

How do people of colour prefer to describe their ancestry or ethnicity?

The short answer is that it depends on the person and can bring forward a range of answers as unique as the people that are answering such questions.

With respect to how I prefer to describe myself, a little hyphen may not seem like a big deal, and yet it carries with it so much unsaid context that I would much rather explain my background in what seems like an overly long rambling sentence (or paragraph!) than use the words “Indo-Canadian.”

experiences that people of colour often face and try to describe in just one word when referring to their background, origin or identity.

I don’t use the term Indo-Canadian. To explain why would require me doing a deep dive into the history of the Indian, predominantly Punjabi diaspora in Canada, which would require an article of its own to do proper justice to the issue.

Focusing on my personal reasons, I can boil my refusal to use the term Indo-Canadian to two: first, the hyphenation of my Canadian identity still feels as a mechan-

I prefer to use the word “Brown” when describing myself. Where nationality is involved, however, I am firm in describing myself as Canadian. When someone wishes to know my ancestry, I often describe myself as South Asian, with a further explanation, specifying Punjab, India as the origin of my parents. This multi-option description is reflective of the many lived

ism by which to “other” me. To me, it serves as a reminder that although I was born in this country, my parents weren’t, and for that reason my Canadian identity is one which needs an explanation. Being “Brown” or visibly not white, I find also automatically adds a little asterisk to my identity that often requires further explanation.

The second, is that I find it difficult to be associated automatically to a country, which, although was the homeland for my parents, was never, and will never be, mine. Persecution of my people by the Indian government is one complex reason why this is the case. Current events in India surrounding the

blocking of internet services by the Indian government in Punjab, among other human rights abuses, is a chilling echo of the historical persecution of minorities in India and further solidifies my refusal to adopt the “Indo” moniker when describing myself. Indo-Canadian is simply not a description that is accurate or meaningful for me.

How do I describe myself then: I am a Canadian, Sikh, Punjabi woman, happy being described as “brown” or with any of the other descriptors: just don’t add any hyphens.

SCOTT’S PERSPECTIVE

I have a mixed view on the use of the hyphen for myself.

My ethnic background is Japanese. My paternal grandparents were born in Steveston, B.C. Their families were originally from the Wakayama prefecture in Japan and part of the diaspora that settled in coastal B.C. to work in the fishing industry.

In 1942, my paternal grandparents were dispossessed of their property and forcibly relocated as part of the Japanese Canadian Internment. They were interned in southern Manitoba and forced to work on a sugar beet farm.

After the war, due to systemic racism, interned Japanese were prohibited from returning to the coast. Many were forcibly deported to Japan. The Canadian government also encouraged voluntary repatriation. Given they could not return home to the coast, many felt they had no alternative and moved to Japan, despite being born in Canada. Some of my father’s uncles chose this option. Unfortunately, they experienced considerable

hardships in Japan and were treated very poorly. They were unwelcome in Canada and unwelcome in Japan.

Eventually, the prohibition on returning to coastal B.C. was lifted, but the damage had been done. The Japanese community in Canada was permanently uprooted and dispersed. One of the most devastating consequences of the Internment was the rapid assimilation of Japanese Canadians into the dominant Canadian culture, with the associated loss of language and cultural traditions. This was certainly the experience of my family.

I grew up in the Lower Mainland of B.C. I’m of the age, where in the

... a little hyphen may not seem like a big deal, and yet it carries with it so much unsaid context...

early part of my life, the region was not nearly as diverse as it is now. I grew up having very little curiosity and interest in my Japanese background or culture, and in some ways, I felt discomfort or even some shame about it.

Growing up I was often asked where I’m from or what nationality I was. My response would always be: “I’m Japanese-Canadian,” with the hyphen. In writing this article, I’ve reflected considerably on why I did that. The simple answer is that it’s what my parents and relatives all did. I suspect that the Internment has played a considerable role in why all the Canadians of Japanese ancestry I know use the hyphen. More specifically, I think it’s deeply rooted in all Japanese who were

impacted by the Internment to prove our Canadianness — that we are not “enemy aliens.” And saying we are “Canadian” results in the follow-up question of “no really, where are you from,” while saying we are “Japanese” results in us being othered.

My indifference toward my Japanese culture has changed significantly in the past 10-15 years. I can’t identify the precise catalyst, but I think a significant factor is that as grandparents and older relatives have passed on, I’ve become more mindful of the corresponding loss of cultural history and traditions. I also traveled to Japan for the first time in 2017. Although I cannot read, speak or write Japanese, Japan feels very comfortable and familiar to me. But, as my own Japanese relative reminded me on my last trip there, I am still a “gaikokujin” (i.e. a foreigner).

I have a complicated relationship with the hyphen. I have very little in common with Japanese people in Japan. Culturally, I have much more in common with other Asians here in Canada. But despite the problematic nature of the hyphen, I have difficulty letting go of it. And the reason I do is because the term Japanese-Canadian is inextricably tied to my family’s history and experience here in Canada — both good and bad.

How do I describe myself then: I am Canadian, Japanese, Asian and, somewhat reluctantly, Japanese-Canadian.

Rupinder Gosal is a litigator for the Department of Justice Canada in Vancouver. She’s previously practised in Child Protection and Personal Injury Law. Scott Morishita has been a trial lawyer for over fifteen years. He is the current CBABC President and associate counsel at Rice Harbut Elliott LLP.

The Canadian Centre for Elder Law (CCEL), a division of the BC Law Institute, launched the Dementia + Decision-Making Project at the end of January to commemorate Alzheimer’s Awareness Month. We want to keep the conversation going and share with you these resources to empower people living with dementia to participate in decision-making about their care. This suite of resources that includes videos, brochures, guides and decision-pathways is accessible at the CCEL Dementia + Decision-Making Project website at bcli.org/ccel-projects/dementia-decision-making-project

The project was the culmination of three years of research and extensive consultations with people living with dementia, family or friend caregivers and care partners, and health care professionals. It examines the law that governs health and personal care decision-making, how capacity and consent are understood, barriers to engaging in decision-making, and strategies to overcome these barriers. With lack of time being a common barrier, we developed the resources to offer both detailed information and quick reference points. This allows readers to engage in specific topics as needed, learn about the law of consent in the health care setting and navigate the law that fosters the independence of people living with dementia.

This project was made possible with financial support of the Vancouver Foundation.

4.20 at Work?

It’s still hazy

While the legalization of cannabis in 2018 may have sparked significant concerns about workplace impairment, health and safety laws have long provided that not all impairments, in all workplaces, warrant the same response.

For close to 80 years, B.C. health and safety laws have held the view that not all impairments at work are prohibited. Back to the first restriction on workplace impairment, found in the 1945 Accident Prevention Regulations, the prohibition on “intoxicating liquor” and other “ailments” only applied where the impairment was such that it might endanger the worker or other workers. In 1966, that restriction was clarified to apply to “drugs” as opposed to just “ailments,” and in 1972 it was further revised to emphasize that the prohibition applied to impairments that affected health and safety.

Fifty-two years later, the law remains largely the same. Today, under the aptly numbered section 4.20 of the Occupational Health and Safety Regulation , both workers and employers face restrictions for allowing workers to be at work where their “ability to work is affected by alcohol, a drug or other substance.” However, as can be traced back to 1945, it is only impairments that “endanger the person or anyone else” that are restricted. Being high at work is not, alone, a violation.

This places employers, and WorkSafeBC, in the position of having to assess whether an impairment poses a safety risk before determining if section 4.20 is engaged. Perhaps because of this limitation, section 4.20 is rarely used, even post-legalization. Since 2018, WorkSafeBC has only identified 12 violations under section 4.20. To put that in context, WorkSafeBC found 4,400 violations of fall protection requirements in that same period.

This limited use of section 4.20 does not mean that employers must assess every impairment and its effects before removing a worker. Cases applying section 4.20 support that the safety sensitive nature of certain workplaces mean a stricter view may be reasonable. As noted by WorkSafeBC’s review division in Decision #R0053246, in upholding an order under section 4.20 for a worker who smoked marijuana while operating heavy equipment:

views, including by adopting zero tolerance policies. This point was made in French v. Selkin Logging, 2015 BCHRT 101, where the Tribunal accepted the reasonableness of an employer’s zero tolerance policy to workplace impairment. In dismissing a complaint of discrimination from a worker who was terminated for smoking marijuana while operating heavy equipment, the Tribunal explained:

“Regulation 4.20... is effectively a minimum standard. Clearly, zero tolerance is intended to create a margin of safety so that the minimum standard is not crossed. Bearing in mind the present industrial context, I find no wrong in setting a higher safety standard...”

However, employers in enforcing such policies must be mindful of the need to accommodate workers on the basis of disability. This could include substance dependencies or the use of marijuana to treat a physical disability. This was the case both before and after legalization.

“Some workplaces have few hazards that could endanger a person affected by drugs or alcohol. Others... have inherently dangerous features which require extremely clear cognitive and reasoning skills to remain safe. In the latter cases, any impairment... could lead to an unacceptable increase in the risk of injury or death.”

Further, section 4.20 is a minimum standard. Employers can take stricter

So, while 2018 may have marked a significant change in the legal status of marijuana, it did not drastically change the balancing act for employers. Employers wishing to rely on section 4.20 alone to remove a worker must show that the nature of the impairment poses a safety risk. Employers wishing to take a stricter view would be wise to adopt policies on workplace impairment. Without such policies, whether section 4.20 is enough will often be hazy.

GRAEME HOOPER

Graeme Hooper is a litigator with Mitha Law Group. He acts for employers in all matters involving WorkSafeBC.

CONNOR BILDFELL

Bumped: How Judicial Vacancies Impact Access to Justice

Imagine making an appointment for surgery, spending time and resources preparing, and showing up only to find that your appointment has been postponed weeks or even months due to a lack of surgeons. Most would consider the situation intolerable.

Yet, something similar happens in our courts every day. BC Supreme Court hearings are routinely bumped because there aren’t enough judges. From an access to justice perspective, the situation is intolerable. As part of the solution, the government should fill the existing judicial vacancies urgently.

BUMPED HEARINGS

According to the BC Supreme Court’s 2022 Annual Report, in 2022, more than 13% of booked trials in British Columbia were bumped (i.e., not heard on the appointed date due to lack of capacity). The situation was especially bleak in Vancouver, where more than 25% of booked trials were bumped. The problem is not limited to trials: more than 10% of long chambers applications in the province were bumped. And 2022 was no outlier: in 2021, more than 18% of trials were bumped across the province.

These statistics are harrowing.

EMPTY BENCHES

At least part of the cause, and perhaps even the main factor, is the federal government’s ongoing failure to fill judicial vacancies. In recent years, the BC Supreme Court has often been down more than 10% of its full judicial complement — loosely

approximating the percentage of long chambers applications bumped in 2022. The situation in Canada has become so severe that the Federal Court recently found in Hameed v. Canada (Prime Minister), 2024 FC 242 that there is a “vacancy crisis” in Canada’s judiciary and issued a declaration that appointments should be made within a “reasonable time.”

The lack of appointments cannot be explained by a lack of qualified candidates. According to the Office of the Commissioner for Federal Judicial Affairs Canada, between October 2021 and October 2022, the federal government received 318 applications for appointment to superior courts. Judicial Advisory Committees in Canada “highly recommended” 45 of these candidates, and “recommended” an additional 53. Of course, these figures exclude outstanding applications from prior years. Yet, the federal government made only 58 appointments.

THE IMPACT ON ACCESS TO JUSTICE

These judicial vacancies are hindering access to justice. Simply put, if the BC Supreme Court had more judges, it could hear more cases. But because the court remains well below its full complement, cases are falling through the cracks. And although the court takes steps to prioritize urgent and important cases such as child protection matters, cases of all kinds are affected.

This impacts public confidence in the justice system. People affected by bumping may reasonably perceive the justice system as dysfunctional — unable to deal effectively with the caseload in the system. Some may even avoid court altogether as a result.

To be sure, judicial vacancies are not the sole cause of bumped hearings. Even if the courts had a full judicial complement, some hearings would be bumped nonetheless due to scheduling issues and other resource limitations. But judicial vacancies remain a substantial part of the problem.

CALL FOR ACTION

If left unaddressed, the problem may even worsen in our province. A number of BC Court of Appeal judges are expected to retire over the coming year. Since BC Court of Appeal vacancies are often filled by elevating BC Supreme Court judges, the gap on the trial court may grow even wider. This would only increase the strain on trial judges who are already carrying a heavy caseload.

As CBABC recommended in its August 3, 2023 letter to the Minister of Justice and Attorney General of Canada, the federal government should fill the existing judicial vacancies urgently. As members of the profession, we should speak out and urge action. We cannot stand by as cases are bumped and our clients suffer the consequences.

Connor

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

The Legalities of Drug Testing at the Workplace

Drug testing is being implemented more and more in workplaces. The subject is naturally controversial given the need to balance the employer’s obligation to maintain a safe workplace with the employee’s right to privacy and other human rights.

In Canada, mandatory drug testing is a grey area. Currently, there is no law requiring or prohibiting drug testing in workplaces. Contrast this with the trucking industry in the US where regulations require motor-carriers to have extensive mandatory drug testing policies.

Canadian employers can legally implement limited policies under their duty to ensure a safe work environment so long as they are reasonable and non-discriminatory. Testing for “safety-sensitive” positions that occurs based on objective signs of impairment or after a safety incident is more likely to be allowed.

Two of the more controversial areas are pre-employment testing and random testing.

Pre-employment testing engages human rights principles, as an employer cannot discriminate against an employee (or potential employee) based on an actual or perceived medical disability, including substance use disorder. In Milazzo v. Autocar Inc., 2003 CHRT 37, a bus driver filed a human rights complaint when his application was automatically rejected after he failed a preemployment drug test. The Tribunal ruled the policy discriminated against

candidates who were drug-dependent since anyone who tested positive wasn’t hired. The employer had a duty to refer positive testers for assessment and accommodate any substance use issues to the point of undue hardship. A similar screening policy was found discriminatory in Alberta v. Kellogg, 2007 ABCA 426 where an applicant tested positive for marijuana and was not hired. The Court said the employer could have accommodated positive-testing employees without undue hardship by implementing grace periods, re-takes, and offering drug counselling.

Carefully tailored preemployment drug testing was approved in a 2018 arbitration decision involving BC Hydro and the International Brotherhood of Electrical Workers union. The arbitrator held that pre-employment testing for safety-sensitive positions was allowed because it balanced the rights of potential employees — applicants had up to five days to be tested and if they failed, they could withdraw from the posting but reapply in the future or be assessed by a professional at their own cost.

reasonable grounds to believe an employee is impaired by drugs; ii) after an accident or other safety incident; or iii) as part of a return-to-work agreement. Second, random drug testing is allowed only if the employer demonstrates a generalized problem of drug abuse at the workplace.

The Court in Irving was clear that even in safety-sensitive workplaces, random drug testing of the entire workforce is not permissible. In that case, eight alcohol-related incidents over 10 years was not sufficient to justify it. More recently in Alberta, Suncor (a large oil and gas employer) implemented random testing in response to a rampant drug problem at its Fort McMurray facility. The union fought the policy and after several years of litigation, the parties ultimately agreed on a program, which included random testing at that facility only.

There is recent trend toward negotiated drug testing policies. For example, the Construction Labour Relations Association and BC Building Trades negotiated an industry-wide policy that applies to all unionized construction workers in B.C. and is used as an example for private and public sector workplaces.

The authority on random drug testing is CEPU, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 (“Irving”). Here, the Supreme Court of Canada held that testing is permitted in dangerous work environments in only two scenarios. First, “for cause” testing may occur where i) there are

The topic of drug testing remains controversial as parties continue to struggle with balancing competing obligations. In the absence of definitive legislation, we are likely to see a continuing trend toward sectorial policies to give certainty to employers and employees.

Chris Drinovz is the founder of the Employment & Labour group at KSW Lawyers and is a proud new father.

Instagram: @kswlawyers

Twitter: @kswlawyers

LinkedIn: Chris D. Drinovz, KSW Lawyers.

CHRIS D. DRINOVZ

DAVID J. BILINSKY

Substance Use in the Legal Profession

Helping a lawyer in trouble

r I was dancing with the devil, out of control Almost made it to Heaven

It was closer than you know Playing with the enemy, gambling with my soul

It’s so hard to say no When you’re dancing with the devil... r

— Music and Lyrics by D. Lovato, J.Q. Ho, M. Allan, B. D. Atterberry, recorded by Demi Lovato

How entrenched is alcohol in the Canadian legal profession? This is hard to answer as we don’t have a lot of data. In the USA, the ABA Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation showed that nearly 21% of lawyers and others in the legal profession were considered problem drinkers and 36% struggled with alcohol use (bit.ly/ bt0424pt1). Data for prescription and illegal drug use are even harder to find.

What we do know is that firms everywhere are grappling with these problems. How does a firm compassionately deal with someone struggling here? What are the legal, ethical and moral issues raised in this situation? What are the duties and responsibilities of a firm? Should a firm reassign files from the affected lawyer?

The Canadian Lawyer magazine stated:

“LPAC also notes that studies in Canada and the United States have shown that approximately 60% of disciplinary prosecutions and malpractice claims involve alcoholism and 90% of serious disciplinary prosecutions involve alcohol abuse.”

When a law firm becomes aware that a lawyer is struggling with alcoholism or drug addiction, they should approach the situation with sensitivity, compassion and professionalism. Here are some considerations:

ETHICAL CONSIDERATIONS:

Respect the privacy and confidentiality of the lawyer while also balancing the need to address the issue within the firm.

Recognize the duty of care and accommodation the firm has toward the lawyer, including providing support and assistance in accessing appropriate resources for treatment.

Uphold the integrity and reputation of the firm by addressing the issue transparently and responsibly.

Ensure fair treatment of all lawyers and employees, including providing support for recovery without discrimination.

MORAL CONSIDERATIONS:

Approach with compassion and empathy, recognizing that addiction is a medical condition that requires support and treatment.

Acknowledge the firm’s responsibility to help support the lawyer in seeking help for their addiction and promote their well-being.

Prioritize client interests by taking appropriate measures to ensure continued service and representation.

LEGAL CONSIDERATIONS:

Ensure compliance with employment laws, including laws related to disability, discrimination and confidentiality.

Review contractual obligations, such as partnership agreements or employment contracts to understand the legal rights and obligations of both the firm and the lawyer.

Consider the legal obligations to report, such as mandatory reporting requirements in cases of impairment that may affect client representation or professional conduct. See the Duty to report, s. 7.1-3 Code of Professional Responsibility

Hold the lawyer accountable while recognizing the importance of providing opportunities for rehabilitation and recovery.

Demonstrate the firm’s ethical leadership by addressing the issue openly, honestly and with integrity.

Consider the consequences of the lawyer’s addiction on their own wellbeing, the well-being of their colleagues and the reputation of the firm.

Ultimately, strive to balance these considerations in supporting a lawyer with addiction while also protecting the interests of clients and the firm as a whole. This may involve providing support and resources for treatment, implementing appropriate workplace policies, and addressing any legal obligations or consequences in a fair and compassionate manner, when you find a lawyer is dancing with the devil.

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

Koffman Kalef LLP is pleased to welcome Sunjeet Grewal into the firm’s partnership, and to announce Rhea Shelton has been promoted to Counsel. These significant professional achievements recognize their dedication to the firm, unwavering commitment to client success, and exemplary leadership qualities.

Here to Help in Pith and Substance

Substance control laws may not predate laws against murder, theft or treason, but their antiquity is hard to question. The Code of Hammurabi regulated alcohol sales. The Corpus Juris Civilis imposed deadly sanctions for misuse of purple dye in garments. While you can peer into any historical laws and learn about the challenges, fears, and prejudices that gripped lawmakers from an era, contraband laws are particularly revealing. While organically criminal laws (murder, rape, theft) show some stability over the millennia, laws controlling substances are famously synthetic and flexible. When crafted well, laws controlling substances can save ecosystems from toxic exposure, respond to empirically proven public health and safety threats, and protect economic integrity. When done poorly they can fill prisons with sick people.

Whether you’re researching food and drug legislation, sentencing ranges for drug offences, or hazardous waste regulations, always feel free to reach out to Courthouse Libraries BC’s librarians to ask for help. We answer via email (librarian@courthouselibrary.ca), toll-free (1-800-665-2570), or inperson at of our 30 branches. We are particularly helpful with historical legislation research, and we now host free access to CSO E-search on our branch computers!

Counsel Rhea Shelton Partner

Sunjeet Grewal

DEAN DAVISON

When is a Puff of Smoke a Nuisance?

What is the overlap between smoking bylaws and nuisance bylaws as they relate to smoking in B.C.? Smoking bylaws are supposed to protect the people’s health and nuisance laws are designed to ensure someone can reasonably enjoy their property. What has happened in B.C. is that the distaste for smoking has risen to a level that practically bans smoking, even if done in one’s apartment.

SMOKING BYLAWS

In the Vancouver’s Health By-law No. 9535, smoking is defined as including “burning a cigarette or cigar, or burning any substance using a pipe, hookah pipe, lighted smoking device or electronic smoking device.” The Bylaw attempts to regulate adult behaviour and eliminate smoking in public spaces. Many cities in B.C. have similar bylaws but some have grandfathered in businesses.

B.C.’s Tobacco and Vapour Products Control Act, RSBC 1996, ch. 451 regulates the sale and promotion of tobacco and vape products. It does not appear to regulate controlled substances or non-tobacco hookah use. It does not stop adults from using tobacco and vape products but does regulate the sale and promotion of them.

Smoking cannabis is regulated by the B.C. Cannabis Control and Licensing Act SBC 2018, Ch. 29, which bans smoking in common areas of apartments, condominiums, and dormitories, meaning a person cannot smoke cannabis in many places outside their home.

There are also strata bylaws that ban smoking in common areas of condominiums.

The only thing these various laws have not been able to do is stop someone from smoking at home. The B.C. government webpage titled “Strata non-smoking bylaws” states: “Strata corporations (or sections) can create a bylaw, by a 3/4 vote of owners, or create a rule to limit or ban smoking.

„ A non-smoking bylaw can ban smoking in the strata lot as well as on common property and limited common property.

„ However, a rule can only limit or prohibit smoking on common property.

Supreme Court of Canada identified a “two-part test” to establish private nuisance: “to support a claim in private nuisance the interference with the owner’s use or enjoyment of land must be both substantial and unreasonable. ” Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13 [Antrim] at para. 19.

Therefore, to be a nuisance at law, the interference must rise to a level of substantial and unreasonable. The interference is not a nuisance at law simply because it annoys you.

Second-hand smoke cannot rise to a nuisance at law unless one is able to prove that it significantly interferes with a person’s use or enjoyment of their property. The mere act of smoking in one’s home cannot constitute a nuisance at law.

Even if a strata doesn’t have a bylaw that specifically addresses smoking, almost all stratas have bylaws ensuring owners, strata residents and visitors cannot cause a nuisance or hazard to another person or unreasonably interfere with the rights of other persons to use and enjoy the common property, common assets or another strata lot. These bylaws can be used to address second-hand smoke issues.”

NUISANCE BYLAWS

This is where nuisance strata bylaws come in. The Supreme Court of Canada’s definition of nuisance has been recently reaffirmed in British Columbia (Minister of Public Safety) v. Latham 2023 BCCA 104:

(38) From these principles, the

Currently, non-smoking strata bylaws eliminate the key requirement for a party to prove that smoking interferes with the use and enjoyment of their property.

Arguably, the BC Civil Resolution Tribunal should not be enforcing these strata smoking bylaws without doing the nuisance test.

CONCLUSION

Smoking anything, like drinking any type of alcohol, is not good for you. There are different levels and quantities of unhealthy behaviours in society. The legal issue is: have antismoking laws gone too far in attempting to take away adults’ freedom to make informed decisions as to their vices? Some would say yes, but they should say it quietly in their own homes.

Dean Davison is a shareholder at Davison North Law in Vancouver. He has represented hookah cafés in Vancouver and Burnaby as well as cannabis businesses throughout the province.

communitynews

Ending the Drug Poisoning Crisis — a Law Reform Challenge

The toxic drug crisis has claimed more than 40,000 lives since 2016. The Canadian Drug Policy Coalition (CDPC) points out that from January to June 2023, 80% of opioid toxicity deaths involved fentanyl in the unregulated drug supply.

Based at Simon Fraser University, the CDPC has been working to promote approaches to Canadian drug policy and law that it hopes can help end that crisis, through research, advocacy, and community engagement. Their work is rooted in science, public health, and human rights, and builds on the foundation of evidence gathered over years that criminalizing people who use drugs is ineffective and harmful.

The CDPC has been a consistent voice for change

at provincial and federal legislatures, and in the courts.

In recent years, CDPC has engaged in legal advocacy to Parliament on a human rightsbased approach to changes to the Criminal Code and Controlled Drugs and Substances Act, the regulation of currently illicit drugs, the disproportionate impacts of the current laws on Indigenous, Black and racialized people, and the difficulties inherent in involuntary treatment.

The Law Foundation of BC has contributed a $245,000 grant to SFU to support the CDPC’s continued law reform work in 2024.

PD That Keeps You Informed

Through the Looking Glass: Independence & Regulation in BC Today

April 12 | Virtual | 3 CPD

Voices from the Bench, Bar and the B.C. government, including Attorney General Niki Sharma, KC, Chief Justice Christopher Hinkson, Beverly McLachlin, Provincial Court Judge David St. Pierre speak on important issues directly affecting lawyers.

Register by April 11 > cbabc.org/independence

Family Law 2024

April 25-26 | Vernon | 10 CPD

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.

“Every session had good take aways for both junior and senior counsel. An interesting and varied group of presenters with content suitable for most levels of experience.”

Register by April 10 > cbabc.org/family

Wills, Estates & Trusts 2024

May 3-5 | Kelowna | 8 CPD

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 really enjoyed the conference and was really impressed with the quality of the presentations and the strong show of collegiality and intelligence and knowledge in this bar.”

Register by April 24 > cbabc.org/wills

Equity, Diversity & Inclusion in your practice

To my Daughter: Resilience in the Face of Injustice

May 9 | Vancouver & Virtual | 1.5 CPD

Our presenters take a close look into the global issue of intimate partner violence. They bring a meaningful dialogue about the systems, values and institutions that enable and perpetuate violence and how to address the problem.

Register >

nothingofficial

TONY WILSON, KC

Power Corrupts and Absolute Power Corrupts Absolutely

We learn from history that we do not learn from history

Russians who oppose the regime of Vladimir Putin seem to be falling out of windows, tumbling down stairs or dying for no discernable reason these days. For example, in 2022, defense official Marina Yankina was found dead after falling out of a window in St. Petersburg. The former head of the Moscow Aviation Institute, Anatoly Gerashchenko, died after falling down a flight of stairs. Ravil Maganov, who had chaired Russia’s national oil company, fell from his hospital window, coincidently on the very day CCTV cameras were turned off for repair. And in February, Mr. Putin’s long-time adversary, Alexei Navalny, died while taking a leisurely stroll on the grounds of the Gulag where he’d been imprisoned on trumped up charges. Navalny had survived a botched poisoning, where someone had smeared the Soviet-era nerve agent Novichok into his underwear. Perhaps he fell out of a window during his stroll.

Since 2014, dozens of Russian journalists, oligarchs and opposition figures have died from a mysterious illness called “Sudden Russian Death Syndrome.” Others have died under far less mysterious circumstances. Pavel Prigozhin, the leader of the Wagner group of mercenaries, who marched on Moscow last year only to change his mind, died when his aircraft crashed. In February 2024, Maksim Kuzminov, who defected from Russia to Ukraine (along with the Mi-8 helicopter he was flying) died in a hail of bullets in Spain. And we can’t forget former KGB agent Alexander Litvinenko, who was poisoned in London in 2006 as a result of Polonium-210 being added to his tea.

It’s obvious that these and other Russians were murdered on orders from Vladamir Putin. But isn’t that the very idea in a “mafia state” where there is no rule of law and no legal consequences for criminal acts committed by political leaders? A despotic leader with absolute power can use that power to imprison dissenters and rivals, throw them out of windows or poison them in order to intimidate citizens from opposing the regime.

In April, the US Supreme Court will hear arguments as to whether former US President Donald Trump is immune from criminal prosecution on charges that he plotted to overturn the 2020 US election and stage a coup.

The DC Circuit Court of Appeals ruled that Mr. Trump was not a King and could be held liable for criminal acts committed while he was President.

Although the Court’s ruling wasn’t surprising, one line of questioning by Judge Florence Pan was as prescient as it was terrifying. She asked Trump’s lawyers if a sitting President could order SEAL Team Six to assassinate a political rival and not be subject to criminal prosecution. They bobbed, weaved, hedged and waffled, but eventually answered that a President is immune from prosecution for all criminal acts committed while President, but could only face criminal prosecution if he (or she) was impeached and convicted in the House and Senate first.

So, to take Judge Pan’s questions (and Trump’s lawyer’s answers) to their

logical conclusion, if he regains power, an emboldened and unrestrained President Trump could theoretically use all the levers of state power to extract revenge on his political enemies. At most, he could even order Seal Team Six to assassinate Hillary Clinton, Joe Biden, and anyone else he didn’t like, and, using his own lawyer’s twisted logic, not face criminal prosecution unless Congress convicted him. And how likely is that if Trump’s MAGA Machine controls Congress after the next US election?

I know it’s a stretch, and this is a bit of a reductio ad absurdum thought experiment, but knowing something about Mr. Trump’s character, his moral compass and his propensity for risk taking, if he were immune from criminal prosecution, and could get away with murder (metaphorically speaking), what are the chances that he would try? Zero or more than zero? Take all the time you want.

History has taught us time and time again that power corrupts, and absolute power corrupts absolutely. But history has also taught us that we do not learn from history.

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.

barmoves

Who’s Moving Where and When

Anthony Eden joined Nixon Wenger LLP in Vernon, B.C. to specialize his area of practice to estate litigation and civil litigation.

Brent Meckling joined Nixon Wenger LLP in Vernon, B.C. as associate counsel. He is a senior litigator with over 30 years of experience.

Emily Clough joined Clark Wilson as managing partner. Emily is a nationally-renowned Estates and Trusts lawyer consistently recognized as a Best Lawyer® Canada and Lexpert® repeatedly recommended lawyer.

Bo Carter has been promoted to partner in Clark Wilson’s Insurance and Insurance Coverage groups.

Catherine Repel has been promoted to partner in Clark Wilson’s Employment & Labour group.

Dani Marshall

has been promoted to partner in Clark Wilson’s Commercial Real Estate group.

Jeannette Aucoin has been promoted to partner in Clark Wilson’s Family Law group.

Polly Storey has been promoted to partner in Clark Wilson’s Estates & Trusts, Elder Law, and Estates & Trusts Opinions and Appeals groups.

Christopher R. Anninos joined Wilson Rasmussen LLP as counsel in the Family Law and Litigation group. He practises in all areas of Civil Litigation with a particular focus on Family Law matters.

Catherine Chow

After 17 years at The Keg, Catherine Chow takes up the role of Chief Legal Officer for the Vancouver Canucks.

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

Kristina Davies joined Harper Grey as associate counsel with their Commercial Litigation group. She received her J.D. from Queen’s University. Kristina was called to the B.C. Bar in 2014 and was previously with Koffman Kalef in Vancouver.

Scott Ashborne

joined Klein Lawyers as an associate in the Class Action Department. Scott was called to the B.C. Bar in 2019.

Georgia Barnard

joined Legacy Tax + Trust Lawyers where she will assist clients with personalised estate and incapacity planning and the administration of estates and trusts.

James Zaitsoff

joined Legacy Tax + Trust Lawyers principalship effective January 1. James is the head of their Estate and Trust Litigation group.

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With at rate, predictable pricing, CBABC Job Board is the e cient choice to nd your next superstar.

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CBA(BC) Ben evolent Society’ s 19th Annual

Bands bar of the battle

June 7, 2024

Commodore Ballroom

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Presented by:

BRITISH COLUMBIA