BarTalk | February 2019 Criminal Law

February 2019 | bartalkonline.org

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Criminal Law BUILDING TOOLS FOR JUSTICE | FUTURE OF SENTENCING

FROM THE PRESIDENT MARGARET A. MEREIGH

The Failed Social Contract

The implications for democracy and government legitimacy

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s lawyers, we often speak of the rule of law. However, in our modern twenty-first century, we rarely discuss seventeenth- and eighteenth-century political theory and specifically, the social contract and its relevance to democracy in Canada today.

In this article, I explore whether the social contract requires the state to provide an independent, accessible, effective, sustainable and credible legal aid system.1 And if so, what is the consequence to government, both provincial and federal, if this state duty is not met.

For those of us who enjoy political theory, the social contract is the basis upon which a democracy finds its legitimacy. John Locke’s Second Treatise of Government suggests that civil government is based upon the bond of trust between the people and their authority. The people give up their freedom, and in turn, they expect the authority to act with the public good always in mind. Any breach of this bond of trust can legitimize the people’s dissolution of the government.

The Supreme Court has agreed that access to legal services is fundamentally important in any free and democratic society but has not agreed that there is a broad general right to legal counsel as an aspect of, or precondition to, the rule of law under the Charter.2 Despite this ruling, the view espoused in the Doust Report3 and supported by many is that in a just society, legal aid is an essential service along with education, health care and social assistance.4 Recently, Lawyers’ Right Watch Canada’s, “The Right to Legal Aid: How British Columbia’s Legal Aid System Fails to Meet International 2

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Human Rights Obligations” (bit.ly/ bt0219p2-1) criticizes our government’s failure to recognize its international obligations to provide an accessible, effective, sustainable and credible legal aid system.

Over the past decades, we have seen BC’s government incrementally dismantle and starve the legal aid system through statutory and funding changes.

From 1979 to 2002, in BC, the Legal Service Society Act, RSBC 1979, c 227 (“Act”) required that legal services be available in specific circumstances: (i) criminal proceedings that could lead to imprisonment; (ii) civil proceedings that could lead to confinement or imprisonment; (iii) domestic disputes that affected the individual’s physical or mental safety or health, or that of the individual’s children; (iv) legal problems that threatened (1) the individual’s family’s physical or mental health or safety; (2) the individual’s ability to feed, clothe, or provide shelter for himself or herself and the individual’s dependents; or (3) the individual’s livelihood.

Neither the eligibility rules nor an appeal process from decisions on legal aid applications are set out in the current Act.5 Today, coverage is determined by a memorandum of agreement between the government and Legal Services Society (“LSS”).6 Moreover, the Law Foundation of BC, which operates from the interest earned on lawyers’ trust accounts, began funding poverty law because LSS ceased to do so. In addition, LSS must obtain government approval of its budget and may not run a deficit.

There is not an arm’s-length relationship between government and LSS. There is no independent body supervising LSS and reviewing decisions on legal aid.

I observe that the government’s tax on legal services surpassed its expenditures (both federal and provincial) on legal aid in 2017.

This begs the question – at what point is the social contract breached and state legitimacy called into question?

The BC government’s failure to uphold its part of the social contract has significant implications that, understandably, we are hesitant to name – the loss of democracy. We have seen the erosion of democratic institutions south of our border. We should not assume that our own democratic state and institutions are immune from erosion and decay.

Lawyers’ Right Watch Canada, “The Right to Legal Aid: How British Columbia’s Legal Aid System Fails to Meet International Human Rights Obligations” (bit.ly/bt0219p2-1).

2 British Columbia (Attorney General) v Christie, [2007] 1 SCR 873, 2007 SCC 21.

3 Commissioner Leonard T. Doust, “Foundation for Change: Report of the Public Commission on Legal Aid in British Columbia” (“Doust Report”) (March 2011).

4 Ibid; CBABC, “Shaping the Future of Legal Aid and the Justice System in BC” (March 2012).

6 CBA, “Toward National Standards for Publicly-Funded Legal Services: Envisioning Equal Justice” (April 2013).

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Margaret A. Mereigh

president@cbabc.org

FEBRUARY 2019

VOLUME 31 / NUMBER 1

Contents

2

Departments

FROM THE PRESIDENT The Failed Social Contract

by Margaret A. Mereigh

5 ACTING EXECUTIVE DIRECTOR

Solving Problems, It’s What We Do

by Kerry Simmons, QC 8 INDIGENOUS MATTERS

Time for Action

by Randy Robinson 9

Gladue Reports — An Indispensable Tool

by Frances Rosner

12 PRACTICE TALK

New Year, New Vistas

by David J. Bilinsky 13 DAVE’S TECH TIPS 18 NOTHING OFFICIAL

Fake News!!!

by Tony Wilson, QC

Sections

14 SECTION UPDATE

Criminal Justice – 2018/2019 Term in Review

Kamloops, Nanaimo, Vancouver and Victoria

Features 6

WHAT HAPPENS TO CONVICTS WHEN THEY ARE SENT TO PRISON?

by Edison L. Heba

7

INDIVIDUALIZATION AND THE FUTURE OF SENTENCING

by Benjamin L. Berger

10 BILL C-75 AND THE EROSION OF THE

PRELIMINARY INQUIRY

by Mila Shah 11

GROIA V. LAW SOCIETY OF UPPER CANADA

by Crystal Tomusiak

16 THE PRACTICE OF CRIMINAL LAW

by Lisa Jean Helps 17 COLLATERAL IMMIGRATION CONSEQUENCES

by Megan Street

Guest 20 CAN SUBURBAN PRACTICE PLUG

THE BRAIN DRAIN?

by Sara Forte

Inside This Issue Fairness, lack of delay, and access to legal services are recognized as fundamental to free and democratic society; criminal sentencing is meant to “protect [that] society and to contribute ... to respect for the law and the maintenance of a just, peaceful and safe society.”

Articles in this issue of BarTalk cover the disparity between government revenues and expenditures on legal aid and LSS’s budgetary issues in producing Gladue reports for its clients. Authors question the assumption that the Correctional Service Canada provides the “correction” apparently assumed by the Criminal Code, and note that substance abuse and mental health issues, in particular, create result in high rates of recidivism. Authors note the importance of considering collateral consequences of sentencing (including immigration consequences) and using preliminary inquiries to reduce delay; and calls are made for a systematic, data-driven approach to rehabilitation of Indigenous offenders.

News and Events

4 BarTalk Goes Back in Time – 30th Anniversary Issue by James Vilvang, QC 21 CBA West 2019

Expert Evidence: What is Reliable Specialized Knowledge?

22 BC WLF News

Call for Nominations

Back in 1989...

23 BC Legislative Update

Branch & Bar Calendar

Law Day is April 17, 2019 24 CLEBC Update

Tips from Courthouse Libraries BC

Also in This Issue

26 DISPLAY ADS 27 LAW FOUNDATION OF BRITISH COLUMBIA 28 PROFESSIONAL DEVELOPMENT 30 BAR MOVES 31 NEW MEMBERS FEBRUARY 2019 / BARTALK

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news BARTALK EDITOR

Deborah Carfrae EDITORIAL BOARD CHAIR

BARTALK SENIOR EDITOR

Carolyn Lefebvre

STAFF CONTRIBUTORS

Travis Dudfield Kent Hurl Christopher LaPrairie Michelle May Sanjit Purewal Stuart Rennie Kerry Simmons, QC Judy Yen The BC Branch of the Canadian Bar Association, 10th Floor, 845 Cambie St. Vancouver, BC V6B 5T3 Tel: 604-687-3404 Toll-free (in BC): 1-888-687-3404 bartalk@cbabc.org

BarTalk is published six times per year by the British Columbia Branch of the Canadian Bar Association and is available online at bartalkonline.org. © Copyright the British Columbia Branch of the Canadian Bar Association 2019.

This publication is intended for information purposes only and the information herein should not be applied to specific fact circumstances without the advice of counsel.

The British Columbia Branch of the Canadian Bar Association represents nearly 7,000 BC members and is dedicated to improving and promoting access to justice, reviewing legislation, initiating law reform measures and advancing and improving the administration of justice.

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BARTALK / FEBRUARY 2019

19

George Hungerford Eryn Jackson Kevin Kitson Kirsten McGhee Lisa Picotte-Li Craig Stewart Crystal Tomusiak Donna Turko, QC Sean Vanderfluit

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Brandon Hastings

EDITORIAL BOARD MEMBERS

Goes Back In Time 30th Anniversary Issue

In 1989, membership in the CBA was mandatory for all lawyers in BC. That gave the BC Branch a solid financial base, which enabled us to provide excellent programs and services for our members. However, it also probably lulled us into a false sense of security when it came to communicating with our members to let them know about the benefits they were receiving from their CBA membership.

In the pre-email days, communication with the membership was expensive.

We needed to pay printing and mailing costs. The idea of a Branch newsletter was not new, but we needed to make it a priority to fund it.

The first edition was six pages.

Today’s version is about thirty six pages. I am certainly happy to see that BarTalk has continued to be an effective means of keeping the members informed,

Write Us Send your Letter to the Editor to: Deborah Carfrae – BarTalk Editor bartalk@cbabc.org

especially now that membership is no longer mandatory. Lawyers need to know what they are getting in exchange for their membership fees.

It is interesting to note that some of the topics addressed in that February 1989 first

edition of BarTalk (view here uuu bit.ly/bt0219p4-1) are

the same issues the CBA deals with today: access to justice, the role of paralegals, use of technology, and lawyer and staff compensation.

I am proud of that first edition of BarTalk, and I am just as proud of the current version.

Not only does BarTalk help me appreciate the benefits of CBA membership, to me personally, it also reminds me of the value of a strong independent legal profession to society as a whole.

— James Vilvang, QC 1989 CBABC President

Membership Enquiries members@cbabc.org

Advertising Opportunities

Info Changes

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ACTING EXECUTIVE DIRECTOR KERRY L. SIMMONS, QC

Solving Problems, It’s What We Do

We have the skills, so let’s use them together

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s lawyers, we are in the business of preventing and solving problems for our clients. Those clients may be private citizens or businesses, government ministries or agents, or the public. In every facet of law, preventing and solving problems is the core service. It’s what we do.

Our educational path gives us the tools to develop and improve our problem-preventing and problemsolving knowledge, skills and philosophical approaches. Increasingly, lawyers are also encouraged to consider their own personal make-up.

What unconscious biases do you have? How is your mental and physical health affecting your work?

What can you change in your practice to feel good about what you do?

Problem-solving in operation again.

With all this problem-preventing and problem-solving ability, lawyers are well positioned to collaborate to change laws, policies, and justice delivery models. That is what we do through the CBABC Sections, working groups, committees and Provincial Council. Coming together to propose solutions and initiatives allows us to apply those problem-solving skills to bigger issues for the greater good. The fall term was exceptionally busy as CBABC groups made submissions to the BC Law Institute, the Law Society, the Legal Aid Review and the Provincial Government (cbabc.org/Our-Work/Submissions).

Individual lawyers like you contribute thoughtful, creative, purposeful solutions because they know that there is strength in numbers to

develop strong ideas and to represent a collective view.

One of the biggest challenges that lawyers are working with others to solve is access to justice. Defined as “enabling people to avoid, manage and resolve civil and family legal problems and disputes,”1 the ultimate goal of accessible justice is to meet the significant unmet demand for assistance to solve legal problems. CBABC has been and continues to be an initiator of ideas and programs.

If you are wondering if anything is changing in the access to justice conversation and if it is moving forward at all, I assure you it is. Lawyers throughout the province are evolving their individual approach to incorporate usercentered, collaborative and evidencebased principles. For example, the family law bar in Victoria collectively has changed its culture from “file the claim first” to one where collaborative law practices (informally or formally) are pursued from the start for a better experience for the clients. Another example is Tom Spraggs in Coquitlam who empowers clients while improving his personal satisfaction with his work. Clients use a secure, online communication platform to document, organize and store their injury and recovery information collaboratively and efficiently. His clients find their voice and prepare to tell the story in court through video and review sessions in a green-screen studio. Other lawyers have developed data-driven predictive technology to provide clients with evidence-based

information on which to make their decisions. Every lawyer who adapts his or her practice to improve a client’s experience and help more clients is doing their part to solve the problem of access to justice.

And then there is the challenge of collectively making change in our systems and institutions.

Access to Justice BC recently developed the Access to Justice Triple Aim and Measurement Framework (accesstojusticebc.ca/approach/ the-access-to-justice-triple-aim). This refers to a way for justice system partners to measure specific elements, which will indicate whether or not we are improving population access, improving user experience, and ensuring the costs of access are sustainable. Why does it matter? Because having a shared framework for us to present and evaluate initiatives will show how the many initiatives fit together and what progress we make.

Our society is at a stage where many need help to solve typical life problems. We lawyers can develop and embrace new ways of problem-solving that the public can access, use to solve problems and prevent future ones. It’s what we do. accesstojusticebc.ca/about/what-is-accessto-justice 1

Kerry L. Simmons, QC

ksimmons@cbabc.org FEBRUARY 2019 / BARTALK

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feature EDISON L. HEBA

What Happens to Convicts When They are Sent to Prison?

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ore criminal lawyers have increasingly taken the view that traditional sentencing is not necessarily the most effective way of administering justice. While it’s important to have a process in place through which offenders are convicted and sentenced for their crimes, there are still many questions regarding what happens to convicts when they are sent to jail or a penitentiary. There are no easy answers as to what represents a better prison model, though there seems to be general consensus that simply warehousing people in jail does not provide an effective response in combatting crime. In a modern correctional system “the first principle is to keep as many offenders as possible out of prison� (Herbert Morrison Home Secretary United Kingdom 1944).

Section 718 of the Criminal Code of Canada recognizes that along with crime prevention initiatives, the fundamental purpose of sentencing is to contribute to respect for the law and to maintain a just, safe and peaceful society by imposing fit sanctions that have a number of goals, including rehabilitation and deterrence. However, many offenders end up coming back into the system for similar offences after serving their prison terms. So did the incarceration system fail in deterring those offenders? Did those offenders in jail receive any meaningful help to rehabilitate or reintegrate into society? Reports from the Law Reform Commission of Canada have time and again recognized the need for prison reforms with a focus 6

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on the treatment and rehabilitation of certain categories of prisoners.

From the opening of the first penitentiary in 1835 in Kingston, Ontario, the Canadian prison system has undergone a number of reforms intended to emphasize rehabilitation and treatment of offenders. The question is whether those changes are good enough to address the realities of the contemporaneous criminal justice system.

In practice, criminal defence counsel find themselves dealing with different types of offenders. Recidivism levels are much higher amongst offenders who are dealing with alcohol or drug addiction and/or mental illness. As a matter of fact, the most challenging situations are those involving offenders who suffer from a combination of both heavy substance abuse and significant mental illness. A growing number of cases indicate that imprisonment, including lengthy jail sentences, is incapable of successfully rehabilitating offenders with significant addiction or mental health issues. It is in these kinds of situations that the need for alternative solutions to imprisonment is more evident than others. Many provinces are already looking into expanding prison reform, or creating mechanisms outside the court and corrections systems to better address issues regarding offender rehabilitation. The inadequacy of resources designed to help offenders to

make the transition from imprisonment into the community sometimes leads to a bizarre situation in which the accused asks for a much longer jail sentence than what the prosecutor is seeking. This should be cause for concern. Perhaps the traditional classification of offenders into accidental (occasional), reformable and habitual is not adequate considering the sophisticated nature of problems that result from mental illnesses and drug addictions, and considering that each offender is different.

Some provinces have already taken steps to incorporate restorative justice models into their systems, including Nova Scotia and Manitoba. The restorative justice programs focus more on bringing the offender, the victim and sometimes members of the community together outside the courtroom setting to discuss the roots of the offending behaviour, victim impact issues, and the remedies available to assist the offender. The restorative justice system focuses on the underlying causes of offending behaviour and programs in the community that would better address offender rehabilitation. However, the offender has to consent to participate.

More programs should be made available to offenders, both in prison and outside in the community, to facilitate their transition from institutional isolation into the community. With increased focus on ways to rehabilitate those who behave criminally, we could reduce rates of recidivism significantly.

Edison L. Heba has more than 15 years of experience in criminal law, including years of work as Defence Counsel in British Columbia.

feature

BENJAMIN L. BERGER

Individualization and the Future of Sentencing The collateral consequences of R. v. Suter

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espite what it says in the Criminal Code, proportionality is not the fundamental principle of sentencing in Canada. Or, to be more precise, proportionality as it is described in the Criminal Code is not what anchors sentencing. Section 718.1 neatly describes the fundamental principle of sentencing as requiring that a sentence be proportionate in relation to two factors: “the gravity of the offence and the degree of responsibility of the offender.” Yet, as I have noted elsewhere (bit.ly/bt0219f1-1), the past 15 years have seen a substantial expansion of regard for what is salient to crafting a fit sentence.

From police brutality during arrest (R. v. Nasogaluak), Indigeneity and colonialism (R. v. Ipeelee), to the offender’s subjective experience of hope (R. v. Zinck), the Supreme Court of Canada (“SCC”) has insisted that considerations not readily digestible in terms of responsibility or gravity are nevertheless important factors in sentencing because they calibrate the sanction to the circumstances and experiences of the person being punished.

So, too, should a judge consider the “collateral consequences of a sentence.” In R. v Pham the SCC held that an otherwise fit sentence could be reduced to avoid immigration consequences that would flow from a carceral sentence of two years or more. R v Suter, 2018 SCC 34, again treated this issue of collateral consequences, but with more far-reaching implications.

The facts of Suter are bizzare. During a dispute with his wife, Suter accidentally drove his vehicle through a restaurant patio, killing a twoyear-old boy. Although he was not impaired, on the advice of Brydges counsel, he refused to provide a breath sample and was charged with, and subsequently pled guilty to, refusing to provide a sample knowing a death was caused. But the macabre twist was this: after being charged, Suter was abducted by three hooded men who drove him to a secluded area, beat him, and cut off his thumb with pruning shears.

The poor legal advice he received was clearly relevant to sentencing, but what about the vigilante action? The sentencing judge took it into account in setting the sentence

It cannot be that the loss of a high paying job or a fall from public grace as a consequence of crime means a lighter sentence. below the normal range and Moldaver J., for a majority of the SCC, held that he was entitled to do so.

Justice Moldaver expansively defines collateral consequences as including “any consequences arising from the commission of an offence, the conviction for an offence, or the

sentence imposed for an offence that impacts an offender.” (para. 47) He expressly notes that the relevance of these consequences does not come from their impact on responsibility or the gravity of the offence. Rather, they matter because they may mean “that a particular sentence would have a more significant impact on the offender because of his or her circumstances.” (para. 48) Justice Moldaver describes Suter as an “incremental extension” of Pham.

But it’s much more than that. The collateral consequences in Pham involved state action that followed sentencing. Suter decouples “collateral consequences” and state action, and includes consequences of offending, not just of a sentence.

This move is appealing: it continues the turn toward a view of punishment as the offender’s overall and actual experience of the consequences of crime, rather than simply years of imprisonment. It thus points to the importance to sentencing of considerations like mental health impacts, community and family estrangement, and prior societal mistreatment.

But it also creates a need to distinguish the kinds of collateral consequences we care about. It cannot be, for example, that the loss of a high paying job or a fall from public grace as a consequence of crime means a lighter sentence. Were it so, those with the most pre-existing advantage would be less harshly treated and those with little to lose would be punished more. Suter opened up an important path. Where it should take us is not yet clear.

Benjamin L. Berger (bit.ly/bt0219f1-2) is a Professor at Osgoode Hall Law School, York University.

FEBRUARY 2019 / BARTALK

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Indigenousmatters RANDY ROBINSON

Time for Action

Building tools for justice

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he Canadian justice system is responding to a growing need to overcome systemic barriers in accessing justice for Indigenous peoples. Public commissions and reports have indicated there is much room to expand in the area of Indigenous justice. A particular concern is how these commissions and reports on Indigenous justice influence outcomes for Indigenous peoples encountering the justice system. Looking back, the 1996 Royal Commission on Aboriginal peoples (“RCAP”) was a positive advancement for understanding the impact of colonialism on Indigenous peoples and the need for change.

Moving forward, current inequities in Indigenous justice reveal the limitations of implementing and measuring change in the justice system as noted in reports such as RCAP and the Truth and Reconciliation Commission’s Calls to Action (“CTA”).

Although the current movement toward reconciliation and transformation of legal and governance systems impacts Indigenous Canadians, systemic barriers in accessing justice for Indigenous peoples persist today.

A significant challenge to implementing solutions for overcoming systemic discrimination within the justice system is measurement and reporting. Few resources exist that specifically address what changes have occurred as a result of past commissions and reports. More importantly, information regarding Indigenous peoples within the justice system is often not measured in a meaningful way to support positive outcomes. Positive outcomes for Indigenous peoples in the justice system 8

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must include substantive results that comprise strength-based indicators as cited in the First Nations Mental Wellness Continuum (2015). These indicators promote a balanced perspective of wellness that includes purpose, hope, belonging and meaning.

The CTA recommendations included the need to implement measurable outcomes and meaningful reporting to overcome complex systemic barriers created by colonialism. Perhaps this is a period when we may explore the need for resources that guide measurement of indicators in the justice system that reflect the impact of future reports similar to the RCAP and CTA. One may ask how are justice actors such as judges and lawyers able to affect positive change without ongoing information pertaining to the impact of the reports on the justice system?

One way to look at this question is to imagine the issue twofold. The first is to think of RCAP and CTA for their comprehensive informational component but also for persuasive value in guiding justice actors in their work with Indigenous peoples. Judges and lawyers are left to interpret these reports based on institutional policy. This creates a risk that the recommendations may be applied unevenly because institutional policies vary. Not measuring the implementation of the recommendations leaves gaps in the perceptions necessary for equitable justice for Indigenous peoples.

The Office of the Auditor General (“AGO”), has reported that Canada, in response to the CTA, committed to implementing institutional policy changes that will impact Indigenous peoples positively. However, recent AGO reports cite inadequate data measuring and reporting leading to significant gaps in implementing positive outcomes. Because the outcomes are not being met, it appears the implementation of the CTA in various institutions has fallen short.

Systemic discrimination still vaguely remains embedded in our justice system. This is problematic because the equitable delivery of Indigenous justice requires clear directions for eliminating systemic barriers that exist in our justice system.

If there are to be any positive systemic changes in the justice system, one must consider extending public commissions to encompass a more customized body of guidelines. Thus, it is important to build an application that can be shared and applied in a comprehensive way to the important justice initiatives that are underway. If beneficial information and recommendations from the RCAP and TRC were followed by comprehensive follow-up mandates, muchneeded guidance could be applied to the work of justice actors in the vital work with Indigenous peoples.

Randy Robinson is an Algonquin lawyer from the Timiskaming First Nation. He is currently appointed the Northern Representative of the Canadian Bar Association’s Aboriginal Lawyer’s Forum.

FRANCES ROSNER

Gladue Reports — An Indispensable Tool for Defence Counsel Acting for Indigenous Clients

The court further reiterated that counsel has a duty to bring individualized information before the judge and referred to Gladue reports as an “indispensable tool” with respect to how that information could be brought before the court.

There have been several barriers to the implementation of Gladue since the Supreme Court of Canada interpreted section 718.2(e) of the Criminal Code in 1999 and crafted an ameliorative decision intended to counter the overrepresentation of Indigenous peoples in the criminal justice system. R v. Gladue1 directs all judges to consider the unique background factors that may have played a part in bringing a particular Indigenous offender before the court and to consider restorative justice approaches to sentencing as an alternative to incarceration.

The decision acknowledged that higher rates of Indigenous criminality stem from intergenerational impacts of colonization, ongoing systemic discrimination, and a fundamentally different world view of redressing harms held by Indigenous peoples.

The Legal Services Society (“LSS”) Indigenous Services Manager, Rhaea Bailey, describes Gladue reports as comprehensive reports that “tell someone’s sacred story, which for some people uncovers their cultural identity and family connections that may have been previously unknown; allows a person to reclaim their history by providing an opportunity for understanding and awareness of the intergenerational impacts of colonialism; and provides a way forward by setting out a healing plan, which includes restorative justice options intended to restore the balance in that person’s life.”

In R v. Ipeelee2, decided in 2012, the court attempted to address the resistance and misapplication of Gladue that became apparent in the jurisprudence over the previous decade and that was contributing to a checkerboard application of the principles.

Ipeelee restated in stronger terms that Gladue applies in every circumstance where a person self-identifies as Indigenous, including for violent offences.

Ms. Bailey said that funding for Gladue reports in BC was generously provided by the Law Foundation of British Columbia from 2011 to early 2017. However, as a result of an increase in federal and provincial government funding, LSS was able to increase the number of reports they could fund for legal aid clients, and reallocate Law Foundation monies to other Indigenous legal aid services. With this new funding, 131 reports were prepared in 2017

and LSS hopes to fund 300 Gladue reports for this fiscal year. Ms. Bailey indicated that 213 reports have been authorized to date and she remains optimistic about reaching the target of 300.

To assist legal aid defense counsel in making Gladue submissions, LSS introduced a new tariff item3 in May 2018 and is now compensating lawyers to prepare and make Gladue submissions for bail or sentencing hearings with or without a Gladue report.

The process for obtaining a Gladue report is streamlined4 and several publications5 have been prepared by the LSS to assist counsel in fulfilling their duty to their client and the court in making Gladue submissions. Senior defence counsel, Rob Dhanu from the Fraser Valley said that Gladue reports are the “single most valuable tool” to counsel acting for Indigenous clients in sentencing and bail hearings.

That said, among the barriers to the implementation of Gladue, the one within defence counsel’s control, is requesting a Gladue report and assisting the court in arriving at a more just outcome for their Indigenous clients.

1 2 3 4 5

[1999] 1 SCR 688 2012 SCC 13 bit.ly/bt0219p9-1 bit.ly/bt0219p9-2 bit.ly/bt0219p9-3

Frances Rosner is a Métis lawyer working as a sole practitioner in Vancouver.

FEBRUARY 2019 / BARTALK

9

feature MILA SHAH

Bill C-75 and the Erosion of the Preliminary Inquiry A case for retaining the preliminary inquiry

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ith the advent of the Charter, robust disclosure obligations under Stinchcombe, and more effective Crown screening, a debate about the continuing value of the preliminary inquiry has raged over the last few decades. Most recently, in R. v. Jordan, 2016 SCC 27, the court criticized the culture of delay in our justice system and called on all participants to make meaningful changes to reduce delay. In particular, Justice Moldaver suggested that “Parliament may wish to consider the value of preliminary inquiries in light of expanded disclosure obligations” (para. 140).

In response, Bill C-75 proposes a number of changes to streamline the justice system. Not surprisingly, one of the proposed changes is to restrict preliminary inquiries to offences with a maximum sentence of life imprisonment.

But is this a step in the right direction?

There is, in fact, a very strong case for retaining the preliminary inquiry.

First, the evidence shows that preliminary inquiries are not the problem when it comes to delay. Most cases are not even eligible for a preliminary inquiry. And even where it is available, most accused do not opt for a preliminary inquiry. In 2015-2016, only 2% of cases heard in provincial court had a preliminary inquiry.1 In other words, preliminary inquiries are a rare occurrence. And while there is no question that cases with a preliminary 10

BARTALK / FEBRUARY 2019

inquiry take longer, that does not mean that there is a higher risk of a stay of proceedings under s. 11(b) of the Charter. The existing Jordan ceilings include the time needed to conduct a preliminary inquiry.

Second, there are existing mechanisms for dealing with delay arising from preliminary inquiries. The Crown can elect direct indictment and avoid a preliminary inquiry altogether. Under the Criminal Code, the Crown can proceed on the basis of witness statements or documents (s. 540), the parties can be required to identify and focus the issues (ss. 536.3536.5), and the justice is empowered to curtail cross-examination that is abusive, repetitive, or inappropriate (s. 537(1.1)).

Third, preliminary inquiries can be a valuable tool in mitigating delay.

They allow both the Crown and the defence to preview and assess the strength of the case, promoting timely resolutions and efficiencies down the line. The Crown can stay cases with no reasonable prospect of success, defence counsel can encourage timely guilty pleas where warranted, the parties can determine which witnesses will be required at trial, and both Crown and defence can assess whether particular issues or applications should be pursued. Where Charter issues are explored at the preliminary inquiry, the preliminary inquiry may create a sufficient

record, obviating the need to call those witnesses in a later voir dire.

Fourth, the discovery function of the preliminary inquiry remains important for the accused, despite the Crown’s robust disclosure obligations. The broad right of crossexamination at the preliminary inquiry provides discovery that goes far beyond that required by Stinchcombe. The preliminary inquiry also permits the defence to assess the credibility and reliability of key witnesses, discover inadvertent nondisclosure, and identify the existence of relevant third-party records.

Finally, the screening function of the preliminary inquiry should not be discounted. While the standard for committal is low, the preliminary inquiry still serves to ensure that extremely weak cases do not proceed to trial.

In at least a small percentage of cases, the accused is spared the pain of a trial and a significant amount of resources are saved. It is true that Crown screening will ensure that most hopeless prosecutions are not pursued, but as we were reminded in R. v. Nur, 2015 SCC 15, prosecutorial discretion is no substitute for fair and impartial judicial oversight.

There is no question that changes need to be made to reduce delay. But restricting the preliminary inquiry in the way proposed under Bill C-75 will not reduce delay. It may do the opposite, while eroding the accused’s substantive and procedural rights.

Legislative Summary of Bill C-75, online: bit.ly/bt0219f2-1.

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Mila Shah is a criminal defence lawyer at Peck and Company Barristers.

feature CRYSTAL TOMUSIAK

Guidance for criminal defence lawyers raising allegations of prosecutorial misconduct

In fact, good faith legal errors may lend support to a “reasonable basis” finding if there was a reasonable factual basis for the allegation, viewed in the context of the lawyer’s sincerely held but mistaken understanding of the law.

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This does not mean that legal error cannot support a professional misconduct finding. Depending on how egregious the apparent error was, it may provide evidence of an absence of good faith, or it may suggest a lack of competence, which could warrant disciplinary action on that basis.

Groia v. Law Society of Upper Canada

ike all counsel, criminal defence lawyers are bound by the duty of civility, and may be disciplined if their uncivil behaviour crosses the line into professional misconduct. Yet lawyers are also required to fearlessly advocate on behalf of clients, even when this involves making unpopular and distasteful, but reasonably available submissions. In the criminal defence context, the duty of resolute advocacy is especially important given the Charter-protected right of accused persons to make full answer and defence.

The defence lawyer is therefore in the difficult position of being required to make every reasonably available argument, including allegations of prosecutorial misconduct, yet of facing potential disciplinary action if those submissions are subsequently determined to have been unwarranted.

In Groia v. Law Society of Upper Canada, 2018 SCC 27, the Supreme Court of Canada (“Court”) addressed the circumstances in which unfounded allegations of prosecutorial misconduct made during a criminal proceeding will cross the line into professional misconduct on the basis of incivility.

In the majority decision, Justice Moldaver emphasized the importance of civility to the justice system. Incivility undermines trial fairness and the administration of justice, and can damage the client’s interests. At the same time, the lawyer’s duty of resolute advocacy must not be sacrificed. In addition to the value of giving effect

to accused persons’ rights, defence lawyers provide a valuable service to the administration of justice when they expose state misconduct. They should be free to seek to do so without undue fear of reprisals if they turn out to have been mistaken.

Rather than formulate a rigid test, the Court approved of the flexible context-specific approach developed by the Law Society Appeal Panel, along with its description of relevant factors, including: what the lawyer said in raising the issue, the frequency, manner, and tone of the comments, the trial judge’s reaction when the issue was raised, and the extent to which the lawyer modified the behaviour if the trial judge intervened.

Regarding what the lawyer said, the Court held that it was reasonable for the Appeal Panel to have required that allegations of prosecutorial misconduct be made in good faith and have a reasonable basis. The Court rejected the argument that good faith alone should be sufficient. Given the damage that unfounded allegations can have on opposing counsel, they should not be made lightly.

Justice Moldaver clarified, however, that erroneous allegations will not be deemed to have lacked a reasonable basis if they resulted from legal error.

With respect to the other factors, the majority noted that a single outburst (as opposed to repeated attacks) will not usually amount to professional misconduct. The manner and tone of the attacks, as well as any provocation are also relevant. The realities of a hard-fought high-stakes trial must be borne in mind: emotions can sometimes overcome advocates who are usually even-tempered. Strong language necessary to legitimately raise the issue of prosecutorial misconduct should not be conflated with incivility.

Finally, the trial judge’s reaction should be considered (with caution since a trial has a different purpose than a disciplinary proceeding and conduct found to be improper by a trial judge will not necessarily amount to professional misconduct) as well as the lawyer’s response to any corrective directions.

Crystal Tomusiak practised in Ontario before moving to BC in 2018. She now works as Crown Counsel with Criminal Appeals, BC Prosecution Service.

FEBRUARY 2019 / BARTALK

11

practicetalk DAVID J. BILINSKY

New Year, New Vistas

Time to do a bit of spring cleaning r

Won’t you open a window sometime?

What’s so wrong with the light?... r – Music, Lyrics and recorded by Angel Olsen (bit.ly/bt0219pt-6).

A

t the time of writing this, people are drawing New Year’s resolutions for 2019.

For 35.55% of you running Windows (according to Wikipedia)(bit.ly/bt0219pt-1), I have a resolution for you: to upgrade from Windows 7 to Windows 10 in 2019. Time (and Microsoft) waits for no one – Microsoft ended mainstream support for Windows 7 on January 13, 2015, and extended support will end on January 14, 2020 (users of Professional and Enterprise editions of Windows 7 can pay for the Extended Security Updates service extending Windows 7 to January 14, 2023). Otherwise, users must upgrade to Windows 10 to be covered by Microsoft’s updates and patches.

Why should you care? After all, your computers are still running.

Here’s why: loss of mainstream support means no longer receiving security updates for bugs that emerge, or receiving updates and design changes. Once extended support expires, new features are not added, and the operating system does not receive security updates. That means your Windows 7 systems will become more and more vulnerable to cyberthreats as new threats emerge but are not patched.

Microsoft Germany states (translated from the German)(bit.ly/ bt0219pt-2): “Windows 7 is based 12

BARTALK / FEBRUARY 2019

on outdated security architectures.

Three years before the end of the support, in particular, corporate customers should be able to deal with the change to a modern operating system in good time. Companies and users who are still on Windows 7 in three years with their sensitive data are facing enormous dangers. Already today, virtually every company has to expect cyber attacks, 51% of all German companies were already victims of such attacks.”

Windows 10 comes with a number of integrated security features that are not in earlier versions of Windows.

Furthermore, Windows 7 machines may not be able to run the latest software or legacy software upgrades. Peripheral device manufacturers (such as printer manufacturers) may not be issuing drivers for Windows 7 – rendering such peripherals useless.

Another consideration: your existing computers may not be able to be upgraded to Windows 10. System requirements are set out at bit. ly/bt0219pt-3, but in a nutshell you need at least a 1 gigahertz (“GHz”) or faster processor or System on a Chip (“SoC”); 1 gigabyte (“GB”) for 32-bit or 2 GB for 64-bit RAM and a DirectX 9 or later with WDDM 1.0 driver graphics card. If not, the easiest option is then to purchase a new computer with Windows 10 pre-installed and transfer over your data and software. Of course, your existing software may also need to

be upgraded to Windows 10 versions (legacy software may create a problem here).

One bit of good news: Microsoft offered a free upgrade to Windows 10 from Windows 7 or 8.1 that supposedly ended in July 2016.

However, ZDNet reports (bit.ly/ bt0219pt-4) that the upgrade process offered by Microsoft is indeed still accessible as the Microsoft page (Download Windows 10 at bit.ly/ bt0219pt-5) is still live. It is a good legal question as to whether installing Windows 10 using this page results in a valid digital licence to Windows 10 since the offer has clearly expired, notwithstanding that the download page still exists. To remain legally on-side, you may be required to purchase a new licence for Windows 10.

All this implies that this New Year’s resolution is one that should be tackled early, as you may be facing hardware, software and expense issues. Perhaps it is time to open a new window – after all, what’s so wrong with the light.

The views expressed herein are strictly those of David Bilinsky and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members.

David J. Bilinsky is the Practice Management Advisor for the Law Society of British Columbia (presently on leave).

Email: daveb@thoughtfullaw.com Blog: thoughtfullaw.com GO ONLINE FOR MORE INFORMATION

dave’s techtips Upgrading Your Computer to Windows 10

whether they are compatible with Windows 10:

upgrade to the free version of Adobe Reader DC.

uuu PCLAW

uuu MICROSOFT WORD,

Versions 16 and 15.5 are supported under Windows 10, provided that you download and install .NET Framework 3.5 before proceeding with the installation of these versions.

There is limited support for version 13. Version 12 is not supported at all.

OUTLOOK, EXCEL, ONENOTE Office 365 (Version 16), Office 2019 (Version 16), Office 2016 (Version 16), Office 2013 (Version 15) and Office 2010 (Version 14) are compatible with Windows 10. Office 2007 (Version 12) is no longer part of mainstream support but Microsoft says it will continue to run. Versions older than Office 2007 may not work.

uuu ESILAW Of course, moving to Windows 10 as an operating system on an existing computer is only part of the puzzle. Even if you upgrade the operating system to Windows 10, the legacy software that you wish to run may not be able to be run under Windows 10 on your existing hardware, otherwise known as “being compatible.”

If your legacy software is not compatible, you will be required to upgrade to a more recent version of your legacy software that will run with Windows 10.

There may also be a cascading effect here as newer software versions of legacy applications may not run with older computers, as their hardware requirements have grown.

This necessitates a hardware upgrade as well. In some cases, there may not be upgrades even available. Here is a quick run through of some of the more common applications found on lawyers’ computers and

Esilaw 360 is fully compatible with Windows 10. If you have ESILAW and wish to move to ESILAW 360, you must first upgrade to version 2015.1.2, provided you are upgrading from version 2007.1 or higher.

If you are using an earlier version, you will need to contact ESILAW support.

uuu PRIMAFACT Primafact 5 will run under Windows 10, 8.1, 8 and 7 operating systems, but it is not optimized for “touch-screen” gestures in Windows 8.1 and 8.

Existing users using versions prior to 4.5 must upgrade to version 4.5 before upgrading to version 5.

uuu ADOBE ACROBAT AND ADOBE READER Adobe Acrobat XI and DC are the only two versions that are compatible with Windows 10.

Adobe recommends that if you are using the Adobe Reader, you

uuu WORDPERFECT Corel WordPerfect X9 is compatible with Windows 10.

There are reported difficulties with earlier versions under Windows 10. I would look at upgrading to WP X9 if you are moving to Windows 10. A big issue with WordPerfect users is maintaining all the customization you may have made to WordPerfect when moving to X9. To help make the transition, Corel developed the Corel® Migration Manager, which can be used to transfer customization from WordPerfect 6.1, 7, 8, 9 or WordPerfect Office 2002 to WordPerfect 10.

This is just a start. All of your existing software and hardware will have to be examined for compatibility under Windows 10.

Happy upgrading!

© 2019 David J. Bilinsky

FEBRUARY 2019 / BARTALK

13

sections SECTION UPDATE

Keep Current A review of provincial Section meetings Criminal Justice – Term in Review

Criminal Justice Kamloops On September 27, the Crim-

uinal Justice – Kamloops Section welcomed Tracy Kovacs to discuss restorative justice program in Kamloops and the Youth Criminal Justice Act.

Criminal Justice Nanaimo Criminal Justice Kamloops Term in Review 2018/2019

Criminal Justice Nanaimo Term in Review 2018/2019

Criminal Justice Vancouver Term in Review 2018/2019

Criminal Justice Victoria Term in Review 2018/2019

14

BARTALK / FEBRUARY 2019

On October 24, the Crim-

uinal Justice – Nanaimo Section

welcomed Christine Bootsma, Assistant Deputy Warden for Programs at Nanaimo Correctional Centre, to discuss a new program to create a Right Living Community (“RLC”) unit at each of the correctional centres in BC. The RLC is modeled after the Guthrie Therapeutic Community at Nanaimo Correctional Centre, providing inmates (residents) selected for the program with “a positive peer culture environment, which encourages appropriate behaviour through reinforcement and accountability.” The goal of the RLC is to move away from the “jailhouse mentality” toward a community-based behaviour shaping model. Acting Deputy Warden Bootsma highlighted the primary values of the RLC and explained how this new model is providing residents with the tools to live prosocial lives upon re-entering the community. On November 28, the Section welcomed Randi Manz and Kirsten Bjermeland of the John Howard Society Restorative Justice Program. They outlined the programming options available for Restorative Justice in Nanaimo, in which accused persons must meet certain criteria before being admitted to the program: admit guilt, demonstrate remorse, consent to voluntary participation. Kirsten and Randi discussed in depth the intake interview that a client would go through if they were accepted

to the Restorative Justice Program, and how restorative justice staff will carry out one of two processes in the program. Derek W. Jackson, Legal Research Counsel, presented on Ethics and Civility in the courtroom on December 11. He reviewed the Code of Professional Conduct for British Columbia provisions dealing with the responsibility of lawyers to their clients, other lawyers and the courts, as well as the distinction between conduct unbecoming a lawyer and professional misconduct. Derek also discussed the onus and standard of proof in Law Society hearings, and reviewed some key decisions, including the Supreme Court of Canada decision in Groia, where the respondent was successful in his appeal relating to allegations of professional misconduct. uuu Further minutes of meetings can be found here: bit.ly/ bt0219p15-1

Criminal Justice Vancouver On September 26, the Crimu inal Justice – Vancouver Section welcomed The Honourable Judge Ellen Gordon, Provincial Court of British Columbia, Kaityln Chewka, Legal Counsel for the Constitutional & Administrative Law group of the Ministry of Attorney General, and Meghan Forhan, Defence Counsel with Mickelson & Whysall. The meeting included a summary and analysis of changes to the Criminal Code and Motor Vehicle Act, as well as the new regime included in the Cannabis Act. Both criminal law and administrative law topics were covered, including judicial reviews of Authority Determination Process decisions, implications for sentencing of marijuana-related offences, as well as anticipated changes to search and seizure law.

On October 24 Peter Edelmann, Defence Counsel with Edelmann

& Co. Law Offices, Joven Narwal, Defence Counsel with Narwal Litigation LLP, and Tony Paisana, Defence Counsel with Peck and Company Barristers, formed a panel to discuss criminal charges, discharges and convictions, and their respective consequences. The panel discussed, among other pivotal points, how a criminal charge or conviction can impact an accused’s immigration status; his or her ability to travel; and his or her ability to work in a professional setting.

The panel also addressed emerging issues with British Columbia’s civil forfeiture regime. On November 21, Section members welcomed The Honourable Chief Judge Melissa Gillespie, Provincial Court of British Columbia, Ian Donaldson, QC, Donaldson’s, and Todd Gerhart, Public Prosecution Service of Canada, for a lengthy discussion with respect to emerging ethical issues, including the new legal framework following the Supreme Court of Canada’s decision in Groia on civility in the courtroom. uuu Further minutes and webinar recordings for meetings can be found here: bit.ly/bt0219p15-2

Criminal Justice Victoria Kicking off this term on

u September 26, the Criminal

Justice – Victoria Section welcomed The Honourable David Eby, Attorney General of British Columbia, to speak on a variety of leading issues. He discussed legal aid funding, additional funding for Gladue reports, the review of legal aid provision in BC, tabling legislation to re-instate a Human Rights Commission, actualizing the challenges raised in the last Justice Summit regarding Indigenous justice, caps on personal injury damages, and the significance of money laundering in light Peter German’s report of

money laundering in BC casinos.

On October 24, Rod Garson, Deputy Director, Prosecution Support Unit joined Section members to discuss Bill C-46: Cannabis/ Drug Impaired Driving. Rod gave a thorough background on the development of the legislation and summarized the main changes that will be implemented in the law. Following this substantive law presentation, the Section was pleased to have Peter Leask, QC and Chris Johnson, QC speak to us about the establishment of the Association of Legal Aid Lawyers (A.L.L.).

Kimberly Henders Miller, Crown Counsel, BC Prosecution Service, and Dale Marshall, Defence Counsel, Marshall and Massey, presented on November 21 on matters of criminal law, and answered questions relating to ethical obligations of both Crown and Defence. uuu Further minutes of meetings can be found here: bit.ly/ bt0219p15-3 ARE YOU READY FOR THE 2019 CPD REPORTING YEAR? In order to report the

accredited CPD for your Section meeting, the LSBC Course Codes for your past and future attendance are listed here: bit.ly/bt0219p15-4

Your attendance at a Section

meeting is accredited under a common code based on the host Section of the meeting – i.e. “CJVA2019” for Criminal Justice Vancouver 2019 – List can be found here: bit.ly/ bt0219p15-5

CBABC members receive

unlimited access to all BC and National Sections and Forums. You can add and drop Sections.

Enroll in Sections here: bit.ly/bt0219p15-6

FEBRUARY 2019 / BARTALK

15

feature

LISA JEAN HELPS

The Practice of Criminal Law A glimpse into daily life in and out of court

T

he phone rings. A police officer puts you through to your client in jail, who has been arrested for a criminal offence. Whether it’s your first call or your thousandth, 1:00 a.m. or 1:00 p.m., it’s still exciting for a criminal lawyer.

Criminal practice is a fast-moving river. In that initial telephone call, we advise the client of their rights under s. 10(b), find out the offence they’re being charged with, and arrange to meet them at the courthouse where they will be held until they have a bail hearing. At the provincial court hearing, we advocate for our client’s release, citing the primary (will the client attend court?), secondary (will the client commit other offences while on bail?) and tertiary (is the client’s detention necessary to maintain confidence in the administration of justice?) grounds for bail.

After the bail hearing, a decision is made whether to plead guilty or not guilty. That decision is made in consultation with the client, and in light of facts contained in the disclosure from Crown Counsel.

If the client pleads guilty, there is a sentencing hearing, where the court crafts an individualized sentence based on the submissions of both Crown and Defence counsel, and any victim impact statements, keeping in mind the principles of sentencing: 16

BARTALK / FEBRUARY 2019

denunciation, deterrence and rehabilitation. Depending on the seriousness of the offence, these principles carry greater or lesser weight in relation to each other. There are lots of other considerations that go into the ultimate sentence as well: aggravating and mitigating factors of the offence, Gladue considerations for those with Indigenous or Aboriginal heritage, level of intent, drug and alcohol addictions, mental health concerns. All of these factors play a role in the ultimate sentence.

If the client pleads not guilty, the matter is referred to the trial coordinators to set a date. The date estimate is based on pretrial applications, voir dires to determine the admissibility of evidence,

A criminal lawyer’s primary duty is always as an officer of the court.

We do not, and cannot, submit anything we know not to be true or to allow an accused to take the stand and testify to a fact or piece of evidence we know to be a lie. number of Crown and Defence witnesses, and how complex the case is. In some cases, we set a preliminary hearing, with the trial later in

Supreme Court, depending the seriousness of the matter whether the defence wants to the Crown witness’ reliability credibility under oath.

on and test and

At trial, the Crown opens with an Opening Statement and then proceeds to call their witnesses. Defence has the opportunity to cross examine each witness, to try and get the witness to give evidence that supports their theory of the case, or to discredit some aspect of the Crown case. After the Crown closes their case, Defence has the opportunity to call their witnesses, including the accused, or they can decide to not call any witnesses if, in their view, the Crown has not met the burden of proving beyond a reasonable doubt that the accused is guilty.

If the Defence doesn’t call any evidence, they submit to the judge last. If the Defence does call evidence, the Crown has the opportunity to submit last.

A criminal lawyer’s primary duty is always as an officer of the court. We do not, and cannot, submit anything we know not to be true or to allow an accused to take the stand and testify to a fact or piece of evidence we know to be a lie. Crown is an administrator of justice and should not zealously advocate; the Defence is an advocate for our client and pursues every proper avenue for the accused.

Lisa Jean Helps is a senior criminal trial and appellate lawyer practising since 2004 at Helps Law Corporation in Vancouver.

feature MEGAN STREET

Collateral Immigration Consequences What criminal lawyers should know and do

I

n the criminal law context, the phrase “collateral immigration consequences” refers to ramifications under the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (“IRPA”), which relate to an accused’s immigration status and arise from conviction and sentence. These include: (i) a potential declaration of inadmissibility; (ii) the issuance of a removal order; and, (iii) a ban on the right to appeal a removal order. The criminal justice system recognizes the seriousness of these consequences by requiring an accused to have an understanding of the immigration consequences associated with a guilty plea before entering such a plea, and requiring a sentencing judge to consider these consequences when imposing sentence. This article provides a brief overview of these consequences and identifies a few best practices for criminal lawyers.

THE CONSEQUENCES The IRPA declares permanent residents and foreign nationals inadmissible to Canada on grounds of serious criminality. The definition of serious criminality is threefold, but the first (s. 36(1)(a)) is the most relevant to the criminal bar. It defines serious criminality as a conviction in Canada of: (i) an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or (ii) an offence under an Act of Parliament for which a term of imprisonment of

more than six months has been imposed. A conditional sentence order is not a “term of imprisonment”: Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50. In addition, foreign nationals are inadmissible on “grounds of criminality” (s. 36(2)(a)-(d)), which include a conviction in Canada for an offence under an Act of Parliament (excluding youth offences) punishable by way of indictment or any two offences not arising from a single transaction.

Permanent residents and foreign nationals are also inadmissible on “grounds of organized criminality”: s. 37(1)(a) and (b).

An immigration officer who opines that a permanent resident or foreign national is inadmissible may send

Counsel need to inquire into their clients’ immigration status as early as possible and investigate further where necessary. a report to the Minister of Public Safety and Emergency Preparedness, who, in turn, may refer the report to the Immigration Division (“Division”) for an admissibility hearing. If the Division is satisfied the person is inadmissible, the Division must issue a removal order.

Inadmissibility findings on grounds

of serious or organized criminality cannot be appealed to the Immigration Appeal Division (s. 64(1)). The definition of serious criminality in this context is also threefold, but again, the first definition is the most relevant. It defines serious criminality as a crime that was punished in Canada by a term of imprisonment of at least six months (s. 64(2)).

BEST PRACTICES Counsel need to inquire into their clients’ immigration status as early as possible and investigate further where necessary.

Counsel should also consider consulting an immigration lawyer to ensure they appropriately advise their clients as to the effect of a guilty plea or sentence on their immigration status. With the correct information, counsel may be able to negotiate a resolution that will mitigate the immigration consequences, or sidestep them altogether.

On sentencing, counsel should consider obtaining an opinion letter from an immigration lawyer that sets out how sentencing could impact the accused to put before the court.

Post-conviction relief may be pursued in appellate courts where an accused was not aware of the immigration consequences when he or she pleaded guilty or the sentencing judge was unaware of the consequences on sentencing.

Megan Street is Crown Counsel for BC Prosecution Service, Ministry of the Attorney General, Criminal Appeals, in Vancouver, BC. Any opinions expressed within this article are solely those of the author.

FEBRUARY 2019 / BARTALK

17

nothingofficial TONY WILSON, QC

Fake News!!!

A (social) science experiment

I

’m not a fan of that bankrupt real estate promoter, game show host, serial liar, and useful idiot to the Russians who is President of the United States. But his shambolic presidency does serve an important purpose. It reminds us of the significance of the rule of law, the dangers of demagoguery, the perils of populism, the importance of journalism, the need for lawyers and the hazards of Twitter.

Naturally, I have written about Trump in BarTalk, Canadian Lawyer and even the Globe and Mail over the past few years. My views are well known and well published.

Some months ago, I stumbled upon an amusing app called “Trump Tweet Generator.” The app allowed me to generate a mock tweet from Donald J. Trump with his photograph in the corner, the number of likes and shares, and reference to the twitter handle @ realDonaldTrump, which of course wasn’t real at all and wasn’t linked to Twitter. It was really a meme generator with a twist. I could say whatever I wanted in 240 characters and it looked like it was a tweet from Trump.

My tweet said, “Loser TONY WILSON is an OVERRATED WRITER and part of the FAKE NEWS along with the failing New York Times and treasonous Washington Post.” But rather than posting it with the link to the “Trump Tweet Generator” (which would have given the gag away), I deleted the link and watched what unfolded, which became an interesting social science experiment in the age of Facebook, Twitter and fake news.

My friends who saw the post and commented were impressed that I had been publicly trashed by Trump, and I didn’t correct them. I recall saying: “I guess he didn’t like something 18

BARTALK / FEBRUARY 2019

I wrote,” which would have been true if he’d ever read anything I had written. In any event, I was congratulated by virtually everyone who commented, and became a minor celebrity for about 12 hours.

When I came home for dinner the day my mock Trump tweet went live, my two adult children knew it was all a sham. “Nice try,” said my son. My daughter at least checked Twitter to see if Trump’s tweet about me might have been real. She said over dinner “Fake news Dad... I checked Twitter.”

So what did I learn from this social science experiment? Well, first off, maybe millennials like my two adult children, are more astute than we boomers give them credit for. Maybe they know that anything posted to Facebook (particularly by their boomer parents) is either humblebragging, a sales pitch, or fake news.

Maybe millennials are like citizens of the old Soviet Union, who knew that everything in Pravda was a lie because it was in Pravda.

Secondly, despite the fact that everyone in my friend group is astute, intelligent and successful, most are boomers. The remote possibility of something being true (my Trump tweet), made it probably true. Wilson writes for the Globe, Canadian Lawyer and BarTalk. He has written about Trump. Trump must have read something Wilson wrote and lashed out at him. Seems plausible. Could be true. Must be true. Well done Tony!

With apologies to friends who believed the tweet was real, the big lesson

here is this: the possibility that something might be true because it’s on social media doesn’t make it true.

Perhaps this explains how the lunatic fringe (including Fox news) has hijacked the American political system with manufactured untruths that are targeted to a particular audience, and that this “fake news” is taken as gospel by those who don’t challenge the source of the story, because it matches their own belief systems.

The closest thing we have to institutionalized fake news in Canada are sites like BC Proud, Alberta Proud, Ontario Proud, Old Stock Canadian and other sites which all too often inflame debate with misrepresented facts and halftruths (including those about the justice system) to stir up their base of rabid Trudeau-haters. When I see their posts, I often see references to “Turdeau” and “Libtard” by their followers; I have to wonder if those who provide comments to these posts are really Russian trolls throwing metaphorical grenades into what should be rational and thoughtful dialogue.

I have since deleted my Trump tweet from Facebook and all the congratulatory comments from my friends, who became part of this social science experiment. I would only hope that the moral of this story is to question everything you read on social media – even from me.

Tony Wilson, QC is a franchise lawyer at Boughton in Vancouver and a Bencher of the Law Society.

The views expressed herein are strictly those of Tony and do not reflect the opinions of the Law Society, CBABC, or their respective members.

I give to my community and with Vancouver Foundation, my giving lasts forever.

75 years ago, a single gift started Vancouver Foundation and that gift is still making a difference in the community today.

We can help you create a fund that gives forever.

Get started at vancouverfoundation.ca/create or call Kristin at 604.629.5186

To find your local community foundation visit communityfoundations.ca

FEBRUARY 2019 / BARTALK

19

guest SARA FORTE

Can Suburban Practice Plug the Brain Drain?

Millennials, look here before you leave

S

uburban law practice can be innovative, meaningful and lucrative. Sound unlikely?

I certainly thought so when I was practising in downtown Vancouver. Downtown practice was the centre of the legal universe – evidenced by the lavish lobbies and high-rise views. Unfortunately, the downtown-centred legal practice has long been hemorrhaging women lawyers and now, it appears, millennials – an entire generation of lawyers, may suffer the same fate. In a recent study conducted by Ali Haji as part of his Law/MBA thesis at McGill University (bit.ly/bt0219p20-1), he predicts a mass exodus of millennials from traditional law firms.

Could the suburbs be the answer?

Having spent the last two years setting up a suburban law practice, and meeting many new suburban colleagues, I suggest millennials consider the suburbs before leaving law.

INNOVATION

One of the criticisms levelled by millennials, in Mr. Haji’s study, was a lack of innovation in law firms.

My observations of suburban law practice suggest the suburbs are an engine of creativity. Alternative fee structures are one example. While the outdatedness of hourly rates has been acknowledged for many years, in my experience practising downtown, they remained the norm. In the suburbs, there are an array of fee structures being used, including 20

BARTALK / FEBRUARY 2019

some lawyers who exclusively work on flat rates.

Innovation in the suburbs is facilitated by lower overhead and smaller, more agile, firms. It is easier to take risks and experiment when you are not working against established systems.

MEANINGFUL WORK

Based on Mr. Haji’s research, he reports that all millennial respondents agreed (not some, all) that millennials are not able to find meaning, and remain happy, throughout a career at a large law firm. The study’s respondents reported feeling like a cog in the wheel of some larger effort that they did not understand.

Downtown-centred legal practice has long been hemorrhaging women lawyers and now, it appears, millennials.

This is where the greatest contrast can be found between a traditional, downtown firm and a suburban, community-based practice.

Facetime with clients in a suburban centre is the norm, not the exception. Lawyers often meet in person with their clients to work through

legal problems and solutions. The impact on our clients is the meaning in our work and, when you sit with the clients, you see it. In a suburban practice, not only do you see your clients in your office (or theirs), but you also run into them at the local baseball field, the grocery store and the library. This level of accountability can be scary, but if you are doing good work, it can be incredibly rewarding.

LUCRATIVE

Of course, the elephant in the room is money. Fear of reduced compensation is a barrier to young lawyers considering a move out of downtown. For a true compensation comparison, a number of factors must be considered. The cost of living, including rent or property prices to live downtown as compared to the suburbs, is dramatically different.

Alternatively, if you are commuting from a suburban home, time lost and cost of commuting accumulates quickly.

Suburban law practice is lucrative. Fees charged to clients may be lower, but overhead costs are also lower. The suburbs are growing, in population and businesses. Many suburban firms are over capacity with work and looking to hire. You may even earn more than a downtown salary if you negotiate a bonus structure or fee split, and continue to work downtown hours.

Millennial lawyers, the suburbs are waiting – stop here before you hit the highway out of law.

Sara Forte is the founder of Forte Law (fortelaw.ca), an employment law boutique with offices in Langley, Surrey and North Vancouver.

news&events CBA WEST

2019

RESPECT FOR JUSTICE OUR PROFESSION THE PEOPLE WE SERVE

Join us in Penticton April 26-28 for the premier legal conference presented by CBABC & CBA Alberta.

Save up to 20% with Advanced Registration until Thursday, Feb. 28.

Register today at cba-west.org.

NATIONAL MAGAZINE

Expert Evidence: What is Reliable Specialized Knowledge?

There is always a risk that experts will unduly influence the outcome of a trial. Because of this, Jason M. Chin notes in a recent Canadian Bar Review article, courts will scrutinize the reliability of their evidence by branding the expertise as either science or “specialized knowledge” – all depending on “the witness’ training, experience and research.”

Chin takes a careful look at Ontario’s leading opinion on the issue, a 2009 Court of Appeal ruling in R v Abbey, which distinguished between the “product of scientific inquiry” and “specialized knowledge gained through experience and specialized training in the relevant field.” The author is critical of this categorization and it’s worth noting that the Abbey ruling involved evidence that was admitted, but later discovered to be unreliable. Still, according to Chin, courts have often relied on the Abbey ruling to justify giving almost no scrutiny to specialized knowledge.

He calls for more transparency and scrutiny over the manner of demonstrating proficiency of the expert, given the task at hand.

Read the full article

bit.ly/bt0219p21-1

FEBRUARY 2019 / BARTALK

21

news&events NEWS

AWARDS

BC WLF Update

Call for Nominations

SAVE THE DATE! The CBABC Women Lawyers Forum Awards Dinner Gala 2019 will be held on April 11, 2019 at the Terminal City Club. Please join the BC WLF in celebrating outstanding women leaders as they honour the recipients of the BC WLF Award of Excellence and the Debra Van Ginkel, QC Mentoring Award.

The

22

BARTALK / FEBRUARY 2019

Equality and Diversity Award Celebration of a CBABC member who advances equality in BC – in general or within the legal profession.

Nomination deadline is Friday, April 12, 2019. CBABC Awards presentation is in June 2019.

Harry Rankin, QC Pro Bono Award For outstanding pro bono work, this award honours the immense contribution of Harry Rankin, QC in

Nomination forms and more details at cbabc.org/Awards.

Goes Back in Time 30 years ago...

Reform Party Member of Parliament The Canadian public protested strongly when the federal government announced cuts in funding to VIA Rail Audrey McLaughlin replaced NDP (New Democratic Party) Party Leader Ed Broadbent to become the first female to lead a federal political party The World Wide Web was invented

The

first Global Positioning System satellite went into orbit The Berlin Wall came down

IVERSARY N I N

UE SS

Canadian-American Free Trade Agreement came into effect Prime Minister Brian Mulroney and President George H.W. Bush met in Ottawa to lay the groundwork for the Acid Rain Treaty The Canadian Space Agency was created The SkyDome opened in Toronto Deborah Grey won a byelection to become the first

Innovative Workplace Award Given to a law firm or legal organization showing leadership and promoting innovation at work, within the practice of law.

A

In 1989...

supporting access to justice for the poor.

Community Service Award Recognition of valuable contributions made by a CBABC member to BC communities.

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This year, the BC WLF are thrilled to announce that their special guest speaker is The Honourable Catherine Anne Fraser, Chief Justice of Alberta, Northwest Territories, and Nunavut.

Chief Justice Fraser is regarded as a trailblazer in the legal profession and became the first female chief justice in Canada. Her strong belief in justice for all makes her an exemplary speaker for the gala.

You’re invited to honour a fellow CBABC member with a nomination for the upcoming CBABC Awards.

BC LEGISLATIVE UPDATE

ACTS IN FORCE Current from October 24, 2018 up to and including December 25, 2018 The full version of Legislative Update is now only published online and is available exclusively to CBA members at cbabc.org.

ADMINISTRATIVE TRIBUNALS ACT,

S.B.C. 2004, C. 45 (BILL 56) Section 190 is in force December 3, 2018

CIVIL RESOLUTION TRIBUNAL ACT, S.B.C. 2012, C. 25 (BILL 44) Section 86(2) is in force January 1, 2019

CIVIL RESOLUTION TRIBUNAL AMENDMENT ACT, 2018, S.B.C. 2018, C. 17 (BILL 22) Sections 1, 3, 5 to 8, 10 to 14, 17 to 24, 26 to 29, 31, 33, 46 and 47, section 2 except as it enacts the definitions of “accident claim”, “cooperative association claim” and “society claim”, section 4 except as it enacts section 2.1(d) to (f) of the Civil Resolution Tribunal Act, section 9 as it repeals section 9 and enacts section 9, except as it enacts the words “an accident claim” in section 9(1)(b), of the Civil Resolution Tribunal Act, section 15 except as it enacts sections 16.1(2) and (3) and 16.4(2)(b) of the Civil Resolution Tribunal Act, section 25 except as it enacts section 56.7(2) of the Civil Resolution Tribunal Act, section 30 except as

Law Day is April 17, 2019 Events will be held in various BC communities throughout the months of March, April and May, including open houses, public law classes, an interactive forum with the three Judicial Chiefs and high school students, and the Barry Sullivan Law Cup public speaking competition. Dial-a-Lawyer Day will be held on April 13, 2019. uuu For more info on 2019 Law Week activities and ways to get involved, visit bclawweek.org.

it repeals and replaces section 93(2)(e) and (4)(b) and (c) of the Civil Resolution Tribunal Act, section 32 except as it enacts Divisions 5, 6 and 7 of Part 10 of the Civil Resolution Tribunal Act are in force January 1, 2019. Sections 16 and 38 to 42, section 2 as it enacts the definition of “accident claim”, section 4 as it enacts section 2.1(f) of the Civil Resolution Tribunal Act, S.B.C. 2012, c. 25, section 9 as it enacts the words “an accident claim” in section 9(1)(b) of the Civil Resolution Tribunal Act, section 15 as it enacts sections 16.1(2) and (3) and 16.4(2)(b) of the Civil Resolution Tribunal Act, section 25 as it enacts section 56.7(2) of the Civil Resolution Tribunal Act, section 30 as it enacts section 93(2)(e) of the Civil Resolution Tribunal Act and section 32 as it enacts Division 7 of Part 10 of the Civil Resolution Tribunal Act are in force April 1, 2019

FAMILY MAINTENANCE ENFORCEMENT AMENDMENT ACT, 2018, S.B.C. 2018, C. 14 (BILL 10) Section 1 is in force January 1, 2019

GREENHOUSE GAS REDUCTION TARGETS AMENDMENT ACT, 2018, S.B.C. 2018, C. 32 (BILL 34) Sections 1, 3, 4 and 5 are in force November 9, 2018

MISCELLANEOUS STATUTES AMENDMENT ACT, 2018, S.B.C. 2018, C. 5 (BILL 7) Sections 2 to 6, 8 to 13, 15 and 16 are in force January 1, 2019

MOTOR VEHICLE AMENDMENT ACT, 2018, S.B.C. 2018, C. 18 (BILL 17)

Section 5(a), except as it enacts the definition of “evaluating officer’’, sections 5(b), (c) and (e), 6(b) and (d) and 8 to 12, section 13(a), except as it enacts section 94.6(1)(a.1), (a.2) and (a.3) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, s. 210, sections 13(b), (c) and (d) and 14 (a), (b) and (c), section 16(b), as it enacts section 210(3.1)(t) of the Motor Vehicle Act and sections 21 to 23 are in force January 7, 2019

PILL PRESS AND RELATED EQUIPMENT CONTROL ACT, S.B.C. 2018, C. 24 (BILL 27) Act except section 1 as it enacts the definition of “authorized health professional” and sections 2(1)(a) and (b) and (2), 5(2)(d) and (e), 17(1)(a) and (b), 20(2)(c)(ii) and (3)(b) and (c) and 27(2)(a) and (c) are in force January 15, 2019

REAL ESTATE DEVELOPMENT MARKETING AMENDMENT ACT, 2018, S.B.C. 2018, C. 25 (BILL 25) Sections 4, 5, 7, 10 and 12 to 15 are in force effective January 1, 2019

STATUTE REVISION ACT, R.S.B.C. 1996, C. 440 The revised Veterinary Drugs Act, R.S.B.C. 2018, c. 2, is brought into force, effective October 26, 2018. The Medical Research (BC Cancer Agency) and Health Status Registry Act, R.S.B.C. 2018, c. 1, is brought into force and replaces the Health Act, R.S.B.C. 1996, c. 179, effective November 15, 2018

BRANCH & BAR

Calendar

FEBRUARY

2 CBABC Provincial Council Meeting — Richmond 2 CBABC Annual General Meeting — Richmond 11 CBA National Annual Meeting — National Arts Centre in Ottawa

MARCH

13 Welcome Ceremony for The Honourable

Mr. Justice Bruce Butler — Vancouver FEBRUARY 2019 / BARTALK

23

news&events NEWS

CLEBC offers two publications to help criminal lawyers prepare for success at trial.

your ability in introducing and controlling evidence at trial; spot problems with evidentiary proof you might otherwise overlook; and quickly access evidentiary rules during trial to manage unexpected evidence or witness behaviour.

Introducing Evidence at Trial is your resource on evidentiary procedure in criminal or civil trials in BC. This portable handbook discusses in detail each type of evidence or procedure accompanied by practice pointers, checklists, and model scripts. With this resource, you will be able to:

Canadian Criminal Jury Instructions (“CRIMJI”) provides you with more than 150 model criminal jury instructions on trial procedure, evidence, and major offences and defences. Each model instruction includes an outline of key components, as well as annotations with case

CLEBC Update CRIMINAL LAW RESOURCES FROM CLEBC

TIPS FROM

improve

law, user notes of caution, and alternatives. With CRIMJI, you will be able to: save time drafting criminal jury instructions; clearly understand the evidence required to prove a particular crime or defence; and explain evidence and law relevant to your case in plain language.

For more information, please call CLEBC customer service at 604-893-2121 or visit cle.bc.ca.

SENTENCING TOOLS

Courthouse Libraries BC curates not only legal texts and databases, but dynamic research tools that can save you time. Take Rangefindr for instance. This unique tool can help you find criminal sentencing ranges in seconds instead of hours — and it’s available free of charge to all members of the Law Society of BC. Simply head to courthouselibrary.ca, and select Remote Access to Subscription Databases (under the “How We Can Help” tab) to activate your free Courthouse Libraries BC account. You don’t have to be in one of our branches to access it either. Our license allows lawyers to use Rangefindr on their own devices, at the office, in court or anywhere there’s Internet. Rangefindr is not simply a digest of sentencing ranges for offences, but a finely calibrated tool that lets you narrow the case results based on a wide range of variables that you can select (e.g. accused’s pre-sentence behaviour, credit for restrictive bail conditions, risk of re-offence, and many, many more).

Once you’ve explored Rangefindr, be sure to check out mms.watch. MMS Watch is an ongoing project by the creators of Rangefindr to monitor the constitutionality of each mandatory minimum sentence in the Criminal Code and Controlled Drugs and Substances Act. MMS Watch is free.

24

BARTALK / FEBRUARY 2019

FEBRUARY 2019 / BARTALK

25

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BARTALK / FEBRUARY 2019

Gosal & Company · Barristers & Solicitors ·

Sarj Gosal B.A., LL.B.

254 - 12899 76th Avenue, Surrey, BC V3W 1E6 W W W . G O S A L A N D C OM P A N Y . C O M

grantsapproved LAW LAWFOUNDATION FOUNDATIONOF OFBRITISH BRITISH COLUMBIA COLUMBIA

$70,000 MULTIPLE SCLEROSIS SOCIETY, BC and YUKON DIVISION Volunteer Legal Advocacy Program $65,000 PRINCE RUPERT UNEMPLOYED CENTRE SOCIETY Advocacy Program

Outlined below is a list of grants adjudicated at the November 24, 2018 Board of Governors meeting.

Funding totalling $6,235,000 was approved for the following 29 continuing programs: $3,250,000 LEGAL SERVICES SOCIETY Legal Information and Legal Assistance Programs $380,000 BC CIVIL LIBERTIES ASSOCIATION Major Programs $375,000 UNIVERSITY OF VICTORIA Law Centre Clinical Program $250,000 THOMPSON RIVERS UNIVERSITY Community Legal Clinic Program $240,000 LAW SOCIETY OF BC Professional Legal Training Course – Kamloops $225,000 FIRST UNITED CHURCH COMMUNITY MINISTRY SOCIETY Poverty Law Advocacy Program $210,000 UNIVERSITY OF BRITISH COLUMBIA Indigenous Community Legal Clinic $150,000 BC FREEDOM OF INFORMATION AND PRIVACY ASSOCIATION Law Reform and Public Legal Education Program $100,000 HAIDA GWAII LEGAL PROJECT SOCIETY Legal Education/Advocacy Program $95,000 NANAIMO CITIZEN ADVOCACY ASSOCIATION Legal Advocacy Program $95,000 POWELL RIVER COMMUNITY SERVICES ASSOCIATION Poverty Law Advocacy

$65,000 UNIVERSITY OF BRITISH COLUMBIA Public Interest Awards $55,000 UNIVERSITY OF BRITISH COLUMBIA UBC Innocence Project at the Allard School of Law 50,000 THOMPSON RIVERS UNIVERSITY Public Interest Work Placement Program $45,000 UNIVERSITY OF VICTORIA Law Foundation Public Interest Awards $40,000 THOMPSON RIVERS UNIVERSITY Law Foundation Public Interest Awards $35,000 PRO BONO STUDENTS CANADA – UBC Community Placement Program $30,000 PRO BONO STUDENTS CANADA – TRU Student Placement Program – Thompson Rivers University $30,000 PRO BONO STUDENTS CANADA – UVIC Student Placement Program $25,000 DEBATE AND SPEECH ASSOCIATION OF BC Law Foundation Cup $25,000 NICOLA VALLEY COMMUNITY JUSTICE SERVICES SOCIETY Indigenous Court Coordinator Project $25,000 PRINCE GEORGE URBAN ABORIGINAL JUSTICE SOCIETY Indigenous Court Coordinator Project $25,000 TK’EMLUPS TE SECWEPEMC Indigenous Court Coordinator Project $20,000 CANADIAN FOUNDATION FOR LEGAL RESEARCH Legal Research Program

$309,000 ABBOTSFORD COMMUNITY SERVICES SOCIETY $301,000 NORTH SHORE COMMUNITY RESOURCES SOCIETY $299,000 PRINCE GEORGE NATIVE FRIENDSHIP CENTRE $294,000 TERRACE AND DISTRICT COMMUNITY SERVICES SOCIETY $288,000 MOSAIC $285,000 NELSON CARES SOCIETY $243,750 KAMLOOPS AND DISTRICT ELIZABETH FRY SOCIETY $221,750 FAMILY SERVICES OF GREATER VANCOUVER Funding totalling $ 1,730,050 (includes start-up costs) was approved for the following six multi-year poverty law advocacy programs: $315,000 SACRED WOLF FRIENDSHIP CENTRE SOCIETY $315,000 SUNSHINE COAST RESOURCE CENTRE SOCIETY $311,000 LANGLEY COMMUNITY SERVICES SOCIETY $299,000 COWICHAN WOMEN AGAINST VIOLENCE SOCIETY $267,250 BURNABY COMMUNITY SERVICES SOCIETY $222,800 SHUSWAP FAMILY RESOURCE & REFERRAL SOCIETY Funding totalling $5,100,000 was approved for the following five grants: $5,000,000 UNIVERSITY OF VICTORIA Indigenous Legal Lodge Building Fund $60,000 RISE WOMEN’S LEGAL CENTRE Virtual Legal Clinic

$90,000 UNIVERSITY OF BRITISH COLUMBIA Public Interest Work Placements

Funding totalling $2,926,500 (includes start-up costs) was approved for nine multi-year family law advocacy programs and a Family Advocate Support Line:

$90,000 UNIVERSITY OF VICTORIA Public Interest Work Placement

$370,000 RISE WOMEN’S LEGAL CENTRE Family Advocate Support Line

$5,000 JUSTICE EDUCATION SOCIETY OF BC Collaboration Funding

$80,000 LAW SOCIETY OF BC CanLII Virtual Law Library

$315,000 SOURCES COMMUNITY RESOURCES SOCIETY

$5,000 PEOPLE’S LAW SCHOOL SOCIETY Collaboration Funding

$30,000 SOCIETY FOR CHILDREN & YOUTH OF BC Children’s Lawyer Initiative

FEBRUARY 2019 / BARTALK

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professionaldevelopment

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

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

Upcoming In-Person Seminars and Webinars Annual Criminal Justice Dinner From Marie Henein to Dennis Edney, QC, this Annual Criminal Justice Dinner brings you a high calibre of speakers year after year. This year, hear from David Rudolf, an American criminal defence attorney passionate about fighting for the individual against the power of the government. Rudolf came to national prominence for defending Michael Peterson in his initial murder trial, which was chronicled in the 2004 miniseries The Staircase. Save-the-Date for June 12, 2019 to join us at the Fairmont Pacific Rim for a collegial evening to socialize with Crown, defence and judges alike.

Save-the-Date: June 12, 2019 Location: Fairmont Pacific Rim

X-FIT: Cross-Examination Fitness Training Amy Mortimore, Partner, Estates & Trusts Co-Chair, Clark Wilson LLP and Todd R. Bell, Partner, Schuman Daltrop Basran & Robin LLP will be presenting this unique skills webinar. You’ll get an overview of cross-examination fundamentals in the civil and family law context, and dissect prerecorded sample vignettes of cross-exam.

Date: February 7, 2019 Time: 11:30 a.m. – 1:30 p.m.

CPD: 2 Hours Webinar: bit.ly/bt0219p28-1

The Annual Okanagan Regional Family Law Conference 2019

The CBABC Annual Family Law Conference in the Okanagan will be held at the beautiful Predator Ridge Resort outside Vernon. This is a unique opportunity to satisfy the bulk of your CPD credits early in the year, in a memorable location that also affords easy access to the Okanagan’s renowned winter outdoor activities. This may be your last chance to register!

Date: February 21-22, 2019 CPD: 11 Hours Conference: bit.ly/bt0219p28-3

Ethics in Practice & Community – Surrey Solicitors’ General Practice Annual Conference The CBABC Solicitors’ General Practice Section will be hosting its 6th Annual Conference, which takes place on February 14 at the Sunrise Ridge Waterfront Resort in Parksville, BC. Join us for a day of networking and learning, hearing from speakers on many interesting topics. Register now.

Date: February 14, 2019 Time: 1:00 p.m. – 4:45 p.m.

CPD: 3.5 Hours Conference: bit.ly/bt0219p28-2

Join the CBABC and the Surrey Bar Association at the Eaglequest Coyote Creek Golf Course in Surrey. You will hear from Philip Riddell, LSBC Westminster County Bencher, and Bill Veenstra, QC, 20172018 CBABC President, who will discuss the important subject of ethics in an engaging way discussing “gray areas” in your practice. Join us as we dive into ethical dilemmas that challenge your professional responsibility.

Date: March 12, 2019 Time: 12:00 p.m. – 2:30 p.m.

CPD: 2 Hours Conference: bit.ly/bt0219p28-4

Mark your Calendars for 2019!

Contact us at pd@cbabc.org for details on these events and more upcoming CPD programming.

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BARTALK / FEBRUARY 2019

A unique wine tasting and auction to raise funds for Access Pro Bono

TO BE HELD MID-MAY 2019 D E TA I L S TO F O L L O W wineprobonobc.com wineprobonobc.com

IN SUPPORT OF

FOUNDING SPONSOR

For more information or to learn about partnership opportunities, visit wineprobonobc.com

B R I T ISH

COLU MB I A

career opportunities In-House Legal Counsel | 4-6 years | Vancouver

We are working with an entrepreneurial and progressive Vancouver-based Investment Firm with a portfolio of both listed and unlisted companies across a range of sectors including technology, resources, entertainment and life sciences. The company has been very successful and is now at the stage in their growth where they need to take on their first in-house lawyer. The ideal candidate would be a lawyer with some expertise across general corporate, securities and dealer registration work, ideally around 4 to 6 years of call. You will be working closely with the leadership team, and managing external legal counsel. For more information or to apply in confidence, please contact Mike Race at mrace@zsa.ca referencing #BT28673.

Personal Injury Litigation Lawyer | 4 – 15 years | Vancouver

One of the premier plaintiff personal injury law firms in Vancouver is now hiring. They have outstanding brand awareness, a strong reputation as effective trial lawyers, and a significant influx of new clients. Due to pure growth, the firm is seeking an experienced litigator with 4-15 years’ experience. This is an opportunity to get involved with a wide-range of interesting and complex personal injury litigation matters, within a collaborative, friendly and high-performing group of legal professionals. Strong defence-side personal injury litigators looking for a change are also encouraged to apply. For more information or to apply in confidence, please contact Mike Race at mrace@zsa.ca referencing #BT28621.

In-House Legal Counsel | 4-6 years | Vancouver

Our client, a diversified financial services company, is looking to hire legal counsel to work in their Vancouver office. This individual will provide legal support in the areas of general corporate and commercial law; their practice will also touch on employment law, insurance and document and process management. Experience with securities industry compliance policies and procedures are a must. You will have 4-6 years’ experience gained at a leading firm, and have strong interpersonal skills. This is a rare opportunity for a dynamic lawyer to join a professional and progressive company. To apply, please contact Amrit Rai at arai@zsa.ca. Ref. #BT28521.

Family Lawyer | 3-10 years | Tri-Cities

Tired of the commute downtown? Our client, one of the largest firms situated in the Tri-Cities, is looking to hire a family lawyer to join their rapidly growing team. The ideal candidate will have between 3-10 years’ experience in family law, and will have excellent communication and organizational skills. Our client offers an inclusive, team-oriented working environment with an emphasis on work-life balance. For more information or to apply, please contact Amrit Rai at arai@zsa.ca quoting reference #BT28580.

Legal Administrative Assistant – Personal Injury | 3+ years | Vancouver

Our client is a premier plaintiff personal injury law firm located in Downtown Vancouver. They currently have an urgent need for an experienced Legal Administrative Assistant to join their team. This firm has outstanding brand awareness, a strong reputation, and is growing rapidly with a constant and significant influx of new clients. If you are an organized, hardworking, and driven individual with significant experience in this field, please contact Laura Stanley at lstanley@zsa.ca or 604-681-0706 referencing #BT28630.

zsa.ca

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© 2007-2019 ZSA Legal Recruitment Limited. ZSA, the ZSA logo, and CANADA’S LEGAL RECRUITMENT FIRM are trade-marks of ZSA Legal Recruitment Limited.

FEBRUARY 2019 / BARTALK

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barmoves Who’s Moving Where and When

30

Esther E.J. Sohn

Tony Kuo

joined Miller Thomson’s Vancouver office as an associate in the Business Law group. Esther’s practice focuses on a broad range of finance and corporate transactions.

joined Sedai Law Office, practising in the areas of immigration and citizenship law.

Gib van Ert

Ryan Morasiewicz

joined Miller Thomson’s Vancouver office as a partner practising civil and public law litigation out of the firm’s BC and Ontario offices.

joined MLT Aikins LLP as senior counsel in Vancouver. Ryan practises in general commercial litigation, with experience in health law, contractual disputes, environmental law, administrative law and complex commercial disputes.

Paula Bosenberg

Amelia Boultbee

is now a partner of Horne Coupar LLP. Paula’s legal practice focusses on corporate law, trusts, and real estate, including business and personal succession planning.

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

Dustin Marnell

Roseanna Gentry

is now a partner of Horne Coupar LLP. Dustin practices in the areas of real estate, corporate law, estate planning and estate administration.

joined the General Litigation group as an associate in the Langley office of Lindsay Kenney LLP. Roseanna’s practice will focus on personal injury law.

Sean Jones

Maya Stano

joined MLT Aikins as an associate in their Vancouver office. Sean practises in Indigenous, environmental and regulatory law, with a focus on natural resource law.

joined Gowling WLG’s Vancouver office as an associate in their Environmental and Indigenous groups. Her practice is focused on natural resource, environmental and Indigenous law.

BARTALK / FEBRUARY 2019

Bar Moves is free for CBABC members, but space is limited and offered on a first-come, first-served basis. Send your 30-word Bar Move and high-res headshot to: bartalk@cbabc.org.

TO VIEW ALL BAR MOVES GO TO CBABC.ORG/BT/BM_1902.

Jessica Ma joined Gowling WLG’s Vancouver office as an associate in their Real Estate group. Her practice is focused on corporate, commercial real estate, commercial lending and commercial leasing.

newmembers November & December 2018 Lawyers

Hannah Bristow

Richard Anthony

Porrelli Law Westbank

Sarah Chaster

McCarthy Tétrault LLP Vancouver

Greg Christofferson

McCarthy Tétrault LLP Vancouver

CA Technologies Vancouver

Shawn Burns

Hunter Litigation Chambers Vancouver Hartshorne & Mehl Vancouver

Jesse Emmond

Pushor Mitchell LLP Kelowna

Anupum Gill

Jill Dunn

Gill & Gill Law Surrey

joined Gowling WLG’s Vancouver office as an associate in their Securities group. Her practice is focused on corporate finance for public and private companies.

Erin Halma

Kelsey Franks

Ministry of Attorney General Victoria

Komal Jatoi

Dentons Canada LLP Vancouver

joined Forte Law, where she continues her labour & employment law practice. Andrea has opened a new office for Forte Law, on the North Shore.

joined Edwards Kenny & Bray LLP as associate counsel. Harry is an experienced business lawyer with a diverse commercial and real estate practice.

joined Edwards Kenny & Bray LLP as associate counsel. As an experienced business lawyer, Tim conducts a diverse, active corporate and commercial practice.

BC Prosecution Service Victoria Singleton Urquhart Reynolds Vogel LLP Vancouver

Kristina Nonis

Bridget Petherbridge

Gall Legge Grant Zwack LLP Vancouver

North Vancouver

Matthew Palmer

Hunter Litigation Chambers Vancouver

Singleton Urquhart Reynolds Vogel LLP Vancouver

Sarah Phillips

Russell Tse

Rachel Smith

Barbara Wang

Blackett Law Canmore

Glen Stratton

Thomas Butler LLP Kelowna McCarthy Tétrault LLP Vancouver

Ernest Soares Singleton Urquhart

Law Students

Reynolds Vogel LLP Vancouver

Landon Teague Teague Law Kelowna

Tiago D’avila Rodrigues

Nicholas Valsamis

Ellen Ferguson

North Vancouver

Pulver Crawford Munroe LLP Vancouver

Angela Wong

Tim Nichols

Nicholas Grabe

Pedro Pablo Morales

Kelowna

Harry Tomyn

McCarthy Tétrault LLP Vancouver

Adam Lewis

Gertsoyg & Company Vancouver

Andrea Zappavigna

Morris Choy

Turnpenney Milne LLP Vancouver

Articling Students Christina Badgley

DLA Piper (Canada) LLP Vancouver

Naeem Bardai

McCarthy Tétrault LLP Vancouver

Vancouver

Ish Gill Surrey

Navin Krishna Giri Surrey

William Matthews Vancouver

Khoa Nguyen

New Westminster

Vanessa J. Singleton Kamloops

Andrew Walter Vancouver

FEBRUARY 2019 / BARTALK

31

Financial Security

The Lawyers Financial Investment Program was designed specifically (and exclusively) for the legal community (lawyers, staff and their families) to help you earn more for retirement faster, and provide a reliable stream of income in retirement.

Low IMFs (Investment Management Fees) Plans for individuals and law firms Multiple investment options and fund categories Additional discounts* saving you 10, 20, 40 bps or more

To help you sleep at night, connect with your local Lawyers Financial advisor David Hodgson 604.247.8007 or Toll Free: 1.888.477.5630 lawyersfinancial.ca * available for individual investor plans The Lawyers Financial Investment Program is issued by The Great-West Life Assurance Company or its subsidiaries and administered by Morneau Shepell Ltd. Lawyers Financial products and plans are sponsored by The Canadian Bar Insurance Association (CBIA).

Lawyers Financial is a trademark of CBIA and is used under license by Morneau Shepell Ltd. and The Great-West Life Assurance Company.

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