BarNotes Winter 2021 by CBA Saskatchewan

THE CANADIAN BAR ASSOCIATION • SASKATCHEWAN BRANCH

WINTER 2021

VOL. 35.2

9 | APPLICATION OF UNDRIP ON THE RIGHTS OF INDIGENOUS PEOPLES

11 | CHASING CONSENT: FORCED STERILIZATION OF INDIGENOUS WOMEN

17 | INDIGENOUS & ABORIGINAL LAW: WE MUST ALL UNDERSTAND THE DIFFERENCE

18 | IMPLEMENTING COMMUNITIES OF CARE IN TRAUMA-INFORMED LEGAL PRACTICE

2022 VIRTUAL MID-WINTER MEETING "Learning Together – Leading Progress" January 25 - 27, 2022 – Program Enclosed

IN THIS ISSUE

The Canadian Bar Association Saskatchewan Branch 305, 135-21st Street East Saskatoon SK S7K 0B4 www.cbasask.org

BARNOTES Editorial Board

FEATURE COMMENTARY

HANNAH ZIP Editor Scotiatrust

Chasing Consent: The Forced Steralization of Indigenous Women

Indigenous Law and Aboriginal Law: We Must All Understand the Difference

SHANE BUCHANAN MLT Aikins LLP

The Application of the United Nations Declaration on the Rights of Indigenous Peoples to Increase Access to Justice

NICOLE HAMM ISC – Information Services Corp TONYA LAMBERT Koskie Law FOLUKE LAOSEBIKAN, Q.C, PH.D F L K Law Firm CHRISTINE LIBNER Scharfstein Gibbings Walen Fisher LLP STEPHEN MUSSEL Howe Legal

Implementing Communities of Care in TraumaInformed Legal Practice

BRANCH NEWS 3

Editor's Notes

President's Message

HEATHER SHERDAHL Parchomchuk Sherdahl Hunter

FROM THE BENCH 21

The Provincial Court of Saskatchewan: Reflections from a Pandemic Year

COMMENTARY 6

Trying to be Good Allies

Professional Regulation: The Duty of Fairness in Investigations

CLASSIC 15

Reconciliation in Canadian Law: One Settler Lawyer's Attempts to Situate Reconciliation in the Move Towards a Post-Colonial Reality

ITEMS OF INTEREST

2 BARNOTES

Advertiser Index

Calendar of Events

MONTEEN DENT Executive Director CBA Saskatchewan LAYOUT & DESIGN Katrina Forgrave Graphic Designer

BarNotes is a publication of CBA Saskatchewan which is published 2 times a year. This publication is intended for information purposes only and should not be applied to specific fact circumstances without the advice of counsel. CBA Saskatchewan represents more than 1,200 members and is dedicated to improving access to justice, reviewing legislation and advancing the administration of justice. Contact Monteen Dent, monteen@ cbasask.org for information on advertising. © CBA Saskatchewan 305,135 – 21st Street East Saskatoon, SK S7K 0B4 www.cbasask.org

EDITOR’S NOTES

SEARCH FOR TRUTH HANNAH ZIP LETTERS TO THE EDITOR hannahzip@gmail.com

Happy Winter, readers! In this Winter issue of BarNotes we have chosen to focus on Indigenous Peoples and Access to Justice. This BarNotes is full of quality articles, many of them written by Indigenous authors, outlining issues to be addressed and changes that need to occur.

Resources for Taking Action

• CBA https://www.cba.org/Truthand-Reconciliation/Home which links to a resource section full of wonderful resources on Truth and Reconciliation • Beyond 94: Truth and Reconciliation in Canada https://newsinteractives. cbc.ca/longform-single/beyond94?&cta=1 • Indigenous resources, newsletter and training guides: https://www. ictinc.ca/blog/7-tips-on-buildingrelationships-with-indigenouspeoples

with Indigenous Peoples a Reality, by Bob Joseph • Unsettling the Settler Within: Indian Residential Schools, Truth Telling, and Reconciliation in Canada, by Paulette Regan • CBC’s 35 books to read for National Indigenous Month https://www. cbc.ca/books/35-books-to-readfor-national-indigenous-historymonth-1.5585489 Movies to Watch

• Muffins for Granny • We Were Children • For more films, the National Film Books to Read During the 2021 federal election, I • 21 Things You May Not Know Board has an Indigenous Cinema was struck by the lack of attention section at the link: https://www. About The Indian Act: Helping given to issues impacting Indigenous nfb.ca/ Canadians Make Reconciliation peoples. Contaminated, unsafe drinking water continues to be a national embarrassment. The remains of over 1,000 children found at former residential school sites throughout Canada horrified, shamed, shocked, and dismayed us. While this discovery may have been new to some, it was well known to Indigenous peoples and residential school survivors, hence its inclusion in the Truth and Reconciliation Calls to Action 71-76. Despite all of this, very little meaningful change is happening at the national, provincial, Gain 4 CPD hours with 5 online modules on cultural awareness. Gain 4 CPD hours with 5 online modules on cultural or local level. In response to the Truth and Reconciliation Commission's Calls to Action, the SaskPathTabAd.pdf 1 2020-09-03 2:35:17 PM

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4 BARNOTES

BRANCH NEWS

PRESIDENT'S MESSAGE RECHÉ MCKEAGUE

CITY OF SASKATOON reche.mckeague @saskatoon.ca 306-975-3270

ensure that all members’ voices are recognized and heard. As part of this work and commitment, we adopted Guiding Principles at our September 2021 meeting: GUIDING PRINCIPLES

I am honoured and so pleased to be writing my first President’s Message to share with you, the members of the CBA Saskatchewan Branch. I have been looking forward to serving my colleagues in this role for almost 20 years, since I first joined the CBA in law school. You can be confident that I and my colleagues on the Board of Directors will be working hard this year (as every year) to represent the interests of our membership and provide the services that you expect from our Branch.

(September 2021)

The CBA was formed in 1896 to serve as the voice for all members of the Canadian legal profession and was incorporated by a Special Act of Parliament in 1921. As a result, 2021 marked the 125th anniversary of the CBA and the 100th anniversary of its incorporation. These are dates to celebrate. However, we also recognize that at the time of the CBA’s creation and incorporation, many of its current members were not considered people and did not have the same rights as the members of yesteryear. Many of our current members continue to struggle to ensure that they are recognized and treated with dignity and respect by the judicial system and society at large. The CBA has adapted and evolved to be more inclusive and continues to do so.

We value access to justice, therefore we will identify where there are gaps and barriers and will advocate for and influence change.

Your CBASK Board of Directors wants to work with our members to

We value the rule of law as essential to the healthy functioning of our society and economy, therefore we will protect and promote it. We value reconciliation between Indigenous and non-Indigenous peoples, therefore we will work to understand and acknowledge the Truth and engage in Reconciliation, allowing evolution in our approach as our understanding expands.

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The CBASK Board of Directors will rely on the Guiding Principles to guide our discussions and decisions for the next year and into the future. We ask you, as our members, to hold us accountable to these Principles. If you identify a decision or direction that we have made that does not align with our Guiding Principles, I ask you to contact me so that we can consider and correct our position. We want to represent the interests of all our members; we may need your help to do so. Thank you for being a member of the CBASK. We value your membership and will do our best to serve as the voice for all our members.

We value equality, diversity, and inclusiveness, therefore we will lead by example, educate, and provide opportunities for interactions that bring together diverse groups of members. We value professional excellence, therefore we will provide high quality professional development, services and resources that support lawyers in meeting the highest professional standards. We value collegiality and engagement in the legal profession, therefore we will provide opportunities and

WINTER 2021 5

COMMENTARY

TRYING TO BE GOOD ALLIES BETH BILSON, Q.C. UNIVERSITY OF SASKATCHEWAN

The summer of 2021 brought with it new revelations of unmarked graves at the sites of former residential schools, and these revelations remind us of the tragic legacy of those schools, and of the many ways in which Canadian society has failed Indigenous peoples. Though I know “privilege” is a controversial word, I accept that I have enjoyed a privileged life, usually without being aware of it. I have not been stopped by the police because of the way I look, or been followed around a department store by a security guard, or had to think about whether I will be taken seriously when I seek to open a bank account, or worried whether my drinking water will be safe or I will have timely access to health care. All of these things are regular facts of life for many Indigenous peoples. In western Canada, we have all been the beneficiaries of agricultural activity, and more recently mineral extraction that has taken place on land used by Indigenous peoples for thousands of years for entirely different purposes. We took that land under circumstances that are now acknowledged as being unfair and imposed treaties in the absence of any knowledge of Indigenous cultures or aspirations, and – apparently – without any serious intention of abiding by the minimal obligations we undertook. This has put us in a position of relative advantage that we long ago stopped noticing.

6 BARNOTES

Governments and other public authorities have an important role in addressing the challenges faced by Indigenous peoples, but I would argue that individual Canadians who are part of the dominant and privileged sector of our society have an obligation to act as allies – to try to influence legislation that is passed, or policies that are developed, or rules that are adopted in our own organizations; to call out instances of discrimination we observe in our own environment; to think how we might lend concrete support to initiatives being taken on behalf of Indigenous peoples. So, what can we do to prepare ourselves to be good allies? First, I would say that like any other worthwhile role, we have to be ready to learn something. We have to be humble about our own culture, and be ready to make an effort to understand something of the richness and depth of Indigenous cultural traditions, through reading about the treaties, residential schools and Indigenous rights; through experiencing the work of Indigenous writers, artists and musicians; through hearing from Indigenous Elders and Knowledge Keepers. One caveat needs to be made about this educational process. We need to initiate this regime of learning for ourselves. Instead of placing the burden on Indigenous peoples to explain their culture or their goals to us, or expecting them to act as our personal Wikipedia system, we need to start by building our own knowledge base. We need to do what we can to fill in our own well of ignorance before moving to

those conversations with Indigenous peoples that will build on and enhance our understanding. A related point is that we need to be prepared to do more listening than talking. We need to hear the voices of Indigenous peoples identifying what they view as barriers for them, and their ideas about what steps might be taken to remove those barriers. We need to be vigilant about providing platforms for those voices, and ensuring that Indigenous perspectives are a factor when decisions are being made – in our universities, in our neighbourhoods, in our places of employment, in our voluntary organizations. Many Indigenous organizations use the expression “nothing about us without us” to signify their frustration about decisions being made that have an impact on them without making sure that someone has listened intently to their views on the subject, or created a space for them to co-create solutions. Every organization has its own ways of making decisions, and it is important to include Indigenous perspectives at those decisionmaking tables. We need to be sure the actions we take and statements we make are directed to some clear outcome, and they are not merely performative, more designed to reflect credit on ourselves than to effect actual change. There is nothing wrong with buying an orange T-shirt, or tweeting a reminder that it is the National Day of Truth and Reconciliation, or leaving a pair of children’s shoes on the steps of the legislature. These symbols of solidarity are important, but for allies, there has to be more to

COMMENTARY

it than that. We cannot suppose that wearing an orange T-shirt is going to bring about the sweeping changes that are needed to bring about real equality. We have to recognize that we may have to play a role in dismantling structures and practices that are very comfortable for us, and that – if our allyship has an effect – we may face a future that is very different than what we are used to. The English author Emma Dabiri, in her book ‘What White People Can Do Next’, argues that allies are not useful unless they are ready to bring down existing structures and contribute to radical transformation; trying to influence people who are on the losing side of the equity balance to be resigned to the current social structures, or – even worse – trying to assimilate them into those structures, does not constitute a positive contribution as an ally from her point of view. This theme is a common one among critics of what they see as the empty pretensions of those claiming to be allies – if they cannot contemplate dramatic change, then they should stay out of it. It must also be remembered that being an ally is not an exercise in personal self-gratification. If you are able to collaborate with Indigenous colleagues or develop partnerships with Indigenous organizations, that is a true gift and something to be treasured. You must expect, however, that there will be suspicion of your motives and an unwillingness to trust you simply because you claim to be well-intentioned. Given the number of ways in which Indigenous peoples have been betrayed, and the length of the list of broken promises they can recite, it is not surprising that they do not have much faith in the overtures of a new group of do-gooders. It is, of course, hurtful to have your motives questioned and your attentions rebuffed, but we have to recognize

that we are part of a group that is seen as having failed Indigenous peoples at every turn. We should not expect our path as allies to be an easy one. We have to be prepared to make mistakes and to accept responsibility for those mistakes. We will still not understand all the things we should understand or know all the things we should know. We will still fall into old bad habits. We will still talk when we should be listening, tell people the right solution when their own ideas are more appropriate than ours, show cowardice about standing up when we should, fall into the trap

of thinking we – unlike everyone else – treat everyone fairly and have no share in discriminatory practices. We will still find ourselves thinking that there is something inferior or outdated about Indigenous cultures, or that they should take more responsibility for their own situations when we have done so much to create them. It is worth persisting, though, because reconciliation cannot be accomplished until those of us who are privileged in Canadian society shoulder our share of the load.

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FEATURE COMMENTARY

THE APPLICATION OF THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES TO INCREASE ACCESS TO JUSTICE DREW The Bill itself is a relatively short LAFOND piece of legislation, comprised

MLT AIKINS LLP of a 23-paragraph preamble and

On June 21, 2021, the (“Bill C-15) received Royal Assent and immediately came into force, bringing Canada one step closer to implementing the “Declaration”).

(“UNDRIP” or the

Canada’s history with UNDRIP has been filled with hesitation and trepidation. In 2007, Canada was one of only four countries in the United Nations General Assembly that opposed the adoption of the Declaration. In 2010, Canada announced some qualified support for the Declaration, describing it as a “non-legally binding document” and “aspirational”.1 Over the next decade, several private members’ bills would be introduced into Parliament seeking to implement UNDRIP into Canadian law. In 2016, the Honourable Carolyn Bennet, the then-Minister of Indigenous and Northern Affairs, announced that Canada fully endorsed the adoption of UNDRIP.2 However, it was not until Bill C-15 that any legislation was passed to fully affirm the application of UNDRIP in Canada.

seven clauses. The purpose of Bill C-15 is two-fold: first, it affirms that the Declaration is a universal international human rights instrument with application in Canadian law; and second, it provides a framework for the federal government to implement the Declaration. Bill C-15 aims to achieve the latter by creating a requirement that the federal government, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with UNDRIP. It requires the preparation and implementation of an action plan to achieve the objectives of UNDRIP and includes reporting requirements for accountability purposes. UNDRIP is a broad document, as the Declaration sets forth both the rights that Indigenous peoples are guaranteed under international law and sets out the minimum standards for guaranteeing the individual and collective rights of Indigenous peoples. An important objective that runs throughout the Declaration is the recognition of Indigenous peoples’ rights to self-determination, autonomy, and self-government. These rights are expressed throughout the Declaration, and are interspersed among the recognition of other cultural, traditional, economic and land rights. UNDRIP highlights the right of Indigenous

peoples to maintain and strengthen their own institutions, cultures and traditions, and to pursue their development in keeping with their own needs and aspirations. The Declaration also makes specific mention of the right of Indigenous peoples to access justice. This is set out in Article 40 of the Declaration, which provides as follows:

This Article acknowledges that the recognition of Indigenous customs, traditions, rules and legal systems are an essential part of making the justice system accessible. As was stated by the Truth and Reconciliation Commission (“TRC”) in 2015, it is necessary for reconciliation that Indigenous customs, traditions, and laws are recognized and applied in Canada’s justice system.3 This was the foundation of the TRC’s Call to Action number 50:

WINTER 2021 9

FEATURE COMMENTARY

Indigenous and Northern Affairs Canada, Canada’s Statement of Support on the United Nations Declaration on the Rights of Indigenous Peoples (12 November 2010), News Release, online: <https://www.aadncaandc.gc.ca/eng/1309374239861/13093745 46142>. 1

Bill C-15 is, at least in part, the federal government’s response to this Call to Action. As an international declaration, UNDRIP is commonly known in international law as a “soft law” instrument, meaning that – unlike a treaty – it is non-binding and cannot be directly enforced against states who do not comply with its terms.4 However, with Bill C-15’s affirmation that UNDRIP is a universal international human rights instrument with application in Canadian law, UNDRIP has become another tool that can be relied upon to protect Indigenous peoples’ rights to self-determination, autonomy and self-government. The protection and strengthening of these rights is crucial to increasing Indigenous peoples’ access to justice. The immediate effects of Bill C-15 on pre-existing legislation have yet to be determined, and we will have to wait and see what comes of the federal government’s action plan to achieve the objectives of UNDRIP. However, in the meantime, Bill C-15 is an acknowledgment that Canadian legislation should be read and interpreted in accordance with the principles and objectives of UNDRIP, and that any new legislation should comply with the principles and objectives of the Declaration. For lawyers, there is a responsibility to review the Articles of UNDRIP and remind decision-makers that UNDRIP is a part of Canada’s international rights obligations and it applies to Canadian laws.

10 BARNOTES

Indigenous and Northern Affairs Canada, Canada Becomes a Full Supporter of the United Nations Declaration on the Rights of Indigenous Peoples (10 May 2016), News Release, online: <https://www. canada.ca/en/indigenous-northern-affairs/ news/2016/05/canada-becomes-a-fullsupporter-of-the-united-nations-declarationon-the-rights-of-indigenous-peoples.html>. 2

Truth and Reconciliation Commission of Canada, “Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada” (Ottawa: TRC, 2015) at 202 – 207. 3

Mauro Barelli, Seeking Justice in International Law: The significance and implications of the UN Declaration on the Rights of Indigenous Peoples, (Oxfordshire: Routledge, 2016) at 42; Indigenous Bar Association, Understanding and Implementing the UN Declaration on the Rights of Indigenous Peoples: An Introductory Handbook (Winnipeg, 2011) at 7 4

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FEATURE COMMENTARY

CHASING CONSENT: THE FORCED STERILIZATION OF INDIGENOUS WOMEN ALISA LOMBARD SEMAGANIS WORME LOMBARD

Thusly, a physician may only perform a sterilization procedure where they have procured consent and satisfied section 7 of the Charter and its strict requirements with respect to consent. The onus is on the doctor to prove that all the elements of consent have been met ( (1980), 114 DLR (4th) 1 at 9 (SCC)). Strict adherence to the legal elements of consent augments in prominence in the current circumstances. Those circumstances include stubborn and pervasive systemic racism in the delivery of health care services to Indigenous women. Consent must be voluntary

Content warning: The contents of this article may be triggering to survivors of reproductive, obstetric and sexual violence and survivors of racism in the receipt of health care. The doctrines of consent, bodily autonomy and medical selfdetermination under section 7 of the (“Charter”) manoeuvres within the margins of fiduciary law. A physician owes a patient a fiduciary duty with respect to medical treatment, and more generally, a physician and other health professionals are in a fiduciary relationship marked by trust with their patients. As such, they must act in peak good faith and in the patient’s best interest. Sterilization is considered a nontherapeutic, non-essential and nonemergent surgical procedure with permanent repercussions on fertility.

“Voluntary consent” means that it must be free from coercion, undue influence and misrepresentations ( (1992), 92 DLR (4th) 449 (SCC), at 457). If consent is provided in the presence of the aforementioned markers, it is vitiated. Just as a refusal to provide consent can be vitiated by undue influence, so too can consent provided in the presence of undue influence ( (1992) 4 All ER 649 (CA)). If a third party is engaged in a power imbalance such that their persuasion and influence on the patient is so broad that genuine consent and free will cannot be deemed to be governing the patient’s decision, the physician must discuss the matter with the patient in the absence of the third party ( (1881), 50 LJQB 448 (CA), cited in Gerald B. Robertson & Ellen J. Picard, Thomson Reuters, Toronto, 2017, at page 75). Every effort must be made by the physician to obtain consent from their patient who is not impaired by medication in an environment

free from coercion (Stokes, , (1981), 2 Health Law in Canada 83, referenced , supra note 27, at p 77.). Fraudulent misrepresentation by the doctor with respect to the nature of the procedure vitiates consent ( , supra note 32), but only where the doctor has intentionally misled the patient ( (1992) 71 BCLR (2nd) 135 (CA), leave to the SCC refused (1993)). There should be a presumption, subject to rebuttal, that consent is not voluntarily provided to counter the persistent coercion, undue influence and misrepresentations directed at Indigenous women receiving reproductive health care. Consent must be obtained from a patient with capacity

There is a rebuttable presumption of capacity. Despite the existence of a spouse, the patient has the right to make decision for themselves as a function of bodily autonomy. Therefore, the consent of a spouse to a sterilization procedure is neither needed nor appropriately sought. To determine whether a patient has capacity, a physician must first assess whether the patient is capable of understanding the nature of the procedure, and second, whether the patient truly understands the nature of the procedure. The former assessment is dominant in the analysis ( , 2003 SCC 32), while the second criterion assists in a determination of the first element. Importantly, a patient who refuses consent to a procedure that others may view as beneficial or needed

WINTER 2021 11

FEATURE COMMENTARY

is not an indicator of incapacity as “patients have the right to make their own treatment decisions” ( ). For a patient’s freedom to be meaningful, “people must have the right to make choices that accord with their own values regardless of how unwise or foolish those choices may appear to others” ( ). The Court in emphasized a variation of the standard of care in the circumstances of child birth and recognized that the state of labour and delivery required more than a routine explanation of the sterilization procedure. Though typically harrowing, labour and delivery are not matters of incapacity in the classic sense. Labour and delivery proliferate trauma to the mother. That trauma may be ephemeral, or it may last a lifetime, and any impact in between. Consent must be specific to the operating physician and the specific procedure

Consent to a medical treatment must be specific to the treating physician and to the particular procedure. The Supreme Court of Canada was clear in that a doctor’s liability for battery arises if “emergency situations aside, surgery or treatment has been performed or given beyond that to which there was consent”. In (1989) BCJ No. 588 (SC), the Court determined that the patient’s decision to have clips inserted on her fallopian tubes, due to her belief that the procedure would be more easily reversible if she decided that she wanted more children, required strict respect. The doctor, who cauterized the patient’s tubes because he was challenged in the insertion of the clips, was found liable for battery due to his deviation from the patient’s explicit request without

12 BARNOTES

the incidence of an emergency to justify his departure. Consent must be informed

Prior to obtaining consent, physicians have an obligation to meaningfully inform their patient of materials risks, benefits, alternative options, and other information, pertaining to a procedure under consideration. In [1995] BCJ No. 229, the Court found that the doctor breached the applicable standard of care when he failed to explain the procedure he was undertaking, alternative methods of ‘tubal ligations’, and because he failed to make sure the patient understood the information disclosed during the difficult circumstances of thirteen hours of active labour. In 1949 2 DLR 442, the Court found that convenience to the physician and his decision to ligate the tubes of a patient when he had obtained consent to remove a cyst only amounted to battery. Further, to the general principles enunciated in (Ont. C.A.), 1990 Can LII 6868 (ON CA), a physician is powerless to overlook the wishes of a patient, even where such wishes may result in fatality. Constitutional and Legal Cautions

It is cruel and unusual treatment, at least, to sterilize a woman without her consent. Forced sterilization is considered torture by the United Nations Committee Against Torture and other Forms of Cruel and Unusual Treatment where forcibly imposed. Force does not exclude manipulations outside the realm of physical imposition. The Supreme Court of Canada in (Attorney General), 2015 SCC 5 (CanLII), at para. 2 has addressed the overriding right of

bodily autonomy in the contrast of the sanctity of values and the rights at stake in medically assisted suicide, “On the one hand stands the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition. On the other stands the sanctity of life and the need to protect the vulnerable.” Systemic racism in health care, manifesting in the forced sterilization of Indigenous women, requires the immediate calking of ‘intersectionality’. Professor Kimberly Crenshaw coined the term decades ago in her pivotal work “to describe the double bind of simultaneous racial and gender prejudice” - intersectionality is “a lens through which you can see where power comes and collides, where it interlocks and intersects” (https:// www.law.columbia.edu/faculty/ kimberle-w-crenshaw). In birthing wards, the power differential between a birthing Indigenous woman and a physician, in systemically racist environment, cannot be overstated. Dignity is viscerally owed to birthing women, and unwanted seizure of Indigenous women’s fertility in Saskatchewan and elsewhere must be met with counterbalancing awareness, rights education among patients and in medical schools, accountability, prevention and reparations. A woman considering sterilization, or bidding an avoidance of its imposition upon her, her family, and her nation should obligatorily be informed of her rights under section 7 of the to make clear that choices, with respect to her body, predominate.

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CONCURRENT SESSIONS – CHOOSE ONLY ONE 9:50 am

5A: BEST INTERESTS OF THE CHILDREN** The impact of a family’s culture, religion and/or family structures on the assessment of the best interests of the children will be explored.

The Honourable Justice M.T. Megaw // COURT OF QUEEN’S BENCH Sherry Fitzsimmons, Q.C. // MCDOUGALL GAULEY LLP Charmaine Panko, Q.C. // PANKO COLLABORATIVE LAW AND MEDIATION Sheri Woods // MOKURUK & WOODS LAW OFFICE Moderator: Jenna Sambrook // MCDOUGALL GAULEY LLP Sponsored by McDougall Gauley LLP

9:50 am

5B: PERSONS OF COLOUR - INTERACTIONS WITH AND IN THE LEGAL SYSTEM** A panel discussion regarding the experiences that people of colour have with the legal system both as the subject of the legal system and as a part of the legal system.

Wura Dasylva // MILLER THOMSON LLP Titli Datta // MILLER THOMSON LLP Moderator: E. Daniel Sikakane // KANUKA THURINGER LLP Sponsored by Miller Thomson LLP

11:20 AM -11:40 AM

HEALTH BREAK

11:40 am

6P: PLENARY - LAWYERS AS LEADERS WITH RESPECT TO DIVERSITY, EQUITY AND INCLUSION** The growing demand by clients to have diversity and representation in their legal teams will be discussed, and panelists will speak about what law firms in SK are doing to meet those demands.

Braden Marianchuk // THE MOSAIC COMPANY Leah Sharpe // FARM CREDIT CANADA Jodi Wildeman, Q.C. // MLT AIKINS LLP Moderator: Milad Alishahi // MLT AIKINS LLP

THURSDAY, JANUARY 27TH CONCURRENT SESSIONS – CHOOSE ONLY ONE

8:00 am

7A: FORCE MAJEURE CLAUSES IN A COVID-19 WORLD This is an opportunity to learn practical tips about drafting force majeure clauses and how such clauses are being relied on and interpreted in the context of the COVID-19 pandemic.

Alan Fern // CROWN INVESTMENT CORPORATION OF SASKATCHEWAN Marinko Jelovic // ROBERTSON STROMBERG LLP Ryan Nagel // KANUKA THURINGER LLP

8:00 am 7B: DIVERSITY INITIATIVES OF THE LAW SOCIETY OF SASKATCHEWAN AND THE CANADIAN BAR ASSOCIATION** A panel discussion about current and upcoming initiatives relating to equity, diversity, and inclusion, the resulting regulatory changes and establishment of priority actions that impact lawyers and law firms. Indigenous legal traditions and the importance of lawyers developing competence with such traditions will be explored.

Eden Alexander // DEPARTMENT OF JUSTICE CANADA Foluke Laosebikan, Q.C. // F L K LAW FIRM Pam Kovacs // LAW SOCIETY OF SASKATCHEWAN Moderator: Nicholas Cann, Q.C. // MCKERCHER LLP Sponsored by Nutrien Ltd.

9:30 AM - 9:50 AM

HEALTH BREAK

9:50 am

8P: CLOSING PLENARY - INDIGENOUS LAW IN CANADA’S LEGAL LANDSCAPE** The recognition of Indigenous law in Canada is rapidly evolving. Learn about the sources of Indigenous law, Court recognition of Indigenous law, and what you need to know about the impact of Indigenous law on your area of practice.

Brooks Arcand-Paul // ALEXANDER FIRST NATION Sonia Eggerman // MLT AIKINS LLP Darcy Lindberg // UNIVERSITY OF VICTORIA Moderator: Shoshanna Paul // THOMPSON DORFMAN SWEATMAN LLP Sponsored by MLT Aikins LLP

8 sessions x1.5hrs=12 hrs CPD ** Indicates Ethics

www.cbasask.org

2022 VIRTUAL MID-WINTER MEETING EVENT INFORMATION

TITLE & PARTNER SPONSORS

REGISTRATION

Register Online at www.cbasask.org For login assistance call the Branch 306-244-3898 (Saskatoon) or 1-800-424-8288 (SK only) Registration provides a personalized login, access to all 3 days of sessions, the Exhibit Hall, recordings of the sessions and any materials provided by the Speakers. Please indicate your choice for concurrent sessions during registration. There is no option to register for one or multiple days. It is an “all or nothing” registration.

COST

Access to all 3 days, all session recordings and speaker materials. CBA Member: $249 Non-Member: $500 CBA Articling Student: $60 CBA Law Student: $30

DEADLINE FOR REGISTRATION

January 20, 2022 To receive your personalized login to access the platform please register by January 20. This will also ensure you can access the platform on January 24 and test your login credentials and receive any necessary tech assistance before the first session on January 25. Late registration may cause a delay in your accessing the first day of sessions.

REFUND POLICY

Cancellation must be received by January 18, 2022 for a full refund. After January 18, refunds will be considered individually and a minimum holdback of 30% applied. Program is subject to change. 12.0 hours of CPD **Indicates session includes Ethics Hours

LEARNING TOGETHER LEADING PROGRESS 16 BARNOTES

ASSOCIATE SPONSORS AND EXHIBITORS Brunsdon Lawrek & Associates Childview CLASSIC Law Reform Commission of Saskatchewan Law Society of Saskatchewan Legal Resources LawyerDoneDeal McDougall Gauley LLP

Miller Thomson LLP MLT Aikins LLP Nutrien Ltd. Prairie Process Serving Pro Bono Law Saskatchewan SaskTel TitlePLUS Virtus Group LLP

2022 MID-WINTER PLANNING COMMITTEE Holli Kuski Bassett (Chair) // MCDOUGALL GAULEY LLP Milad Alishahi // MLT AIKINS LLP Andrea Argue // KANUKA THURINGER LLP Anna Beatch // MLT AIKINS LLP Mobolanle Depo-Fajumo // MINISTRY OF SOCIAL SERVICES Josh MacFadden // FARM CREDIT CANADA Fashia Richards // MCDOUGALL GAULEY LLP Monteen Dent // CBA SASKATCHEWAN CBA Saskatchewan Branch Staff: Sharon Hiebert Jodi Snow

FEATURE COMMENTARY

INDIGENOUS LAW AND ABORIGINAL LAW: WE MUST ALL UNDERSTAND THE DIFFERENCE STEPHEN MUSSELL HOWE LEGAL

“All Canadians need to understand the difference between Indigenous law and Aboriginal law." Prior to reading the quote above, few of you knew there was a difference between Indigenous law and Aboriginal law. Far fewer will know where this quote is sourced from: line one of Chapter 2, Volume 6 of the Final Report of the Truth and Reconciliation Commission of Canada, released in December 2015. As lawyers practicing law in what’s now known as Canada this is evidence that, as a profession, reconciliation is not now, and never has been, a priority. Despite the key historic and continuing role the colonial common law has played in justifying and furthering colonization and the genocide of Indigenous peoples in this place, the vast majority of our profession chooses to engage with reconciliation in a rhetorical or superficial manner, if at all. The recent trend of law firms changing the name of their Aboriginal law practices to Indigenous law practices, ostensibly in the name of political correctness, is one small but glaring example. As lawyers trained in the colonial common law, we practice Aboriginal law. Aboriginal law is the body of law that exists within the colonial legal system – the body of law that necessarily developed as the colonial legal system sought to deal with the presence of Indigenous peoples when settlers first arrived. This includes case

law such as the well-known Sparrow , Tsilhqot’in Nation , and Delgamuukw decisions, and legislation such as the Indian Act. Indigenous law is an umbrella term used to refer to the many varied and complex laws, legal orders, legal systems, and systems of governance that Indigenous people have governed ourselves, our lands, our waters, and our relationships since time out of mind. These laws, legal orders, legal systems, and systems of governance continue to carry their own weight and authority and, in my humble opinion, deserve to be treated with the same respect that lawyers treat colonial law: as something that has its own inherent power, its own legitimacy, is diverse and dynamic, and comes from multiple valid sources. When we fail to differentiate between the two, particularly as lawyers and legal experts, we cause confusion. Worse, when we fold Indigenous law into Aboriginal law and conflate the two, we treat Indigenous law as something less. Indigenous laws stand on their own. Their utility is not limited to an interpretive aid, nor is their existence dependent on the Canadian state. If anything, they continue to exist in spite of the Canadian state. To be an expert in Indigenous law is to engage in years of study, ceremony, and education on the lands and waters from which those laws derive their authority. Absent those teachings, the most we do as lawyers trained in Aboriginal law is assist our clients in implementing their Indigenous laws and facilitating their exercise in the colonial legal context. To unilaterally assert expertise in Indigenous law absent relevant teachings or qualification is akin to someone

who has never attended law school unilaterally asserting that they’re a lawyer. If you are part of a law firm, wellmeaning or not, that has rebranded its Aboriginal law practice as an Indigenous law practice, consider the impact of that decision. Also consider making a small but tangible foray into meaningful reconciliation – change the name of your practice area back to Aboriginal law and engage an expert in Indigenous law to explain to your lawyers why the change was a mistake. Of course, be sure to offer appropriate compensation. By no means will this small action advance reconciliation in a significant way, but it’s a start, and our profession has a lot to atone for. Stephen Mussell is an Indigenous rights lawyer and citizen of the Manitoba Métis Federation. Among others, his mother Constance Mussell’s (née Waldo) family is descended from the Fidler, Whitford, Spence, Cook, and Taylor families and his father Michael Mussell’s family is descended from the Klyne, LaFrance, Grouette, Cyr, and Nolin families. In the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, and as further detailed in its Supplementary Report – Genocide, the Inquiry concluded that Canada’s ongoing history of colonization (particularly its disproportionate impacts on women, girls, and 2SLGBTQQIA peoples) amounts to genocide. 1

R v Sparrow, [1990] 1 SCR 1075.

Tsilhqot’in Nation v British Columbia, 2014 SCC 44.

Delgamuukw v British Columbia, [1997] 3 SCR 1010. 4

Indian Act, RSC 1985, c I-5.

WINTER 2021 17

FEATURE COMMENTARY

IMPLEMENTING COMMUNITIES OF CARE IN TRAUMA-INFORMED LEGAL PRACTICE RORY ERICKSON

CLASSIC LAW AND U OF S, COLLEGE OF LAW

Supporting trauma-informed legal practice requires the recalibration of trauma theory for the effective practice of law. The language of trauma in legal discourse has become rooted in European hegemony1, functioning to reproduce the very interests and systems that have enforced trauma by justifying ongoing colonial interventions and the structuring of knowledge involving trauma experiences.2 Dominancebased interactions are framed as ‘wellintended,’ furthering pathologized and deficiency-centered assumptions about trauma. This process contributes to the undermining of community and resilience – a perfect storm that undercuts the advancement of communities and individuals by enacting harm under the guise of care and client advocacy. For trauma-informed practice to happen effectively, healing and selfawareness must occur for those involved in the provision of supports. Interpersonal interactions are impacted by beliefs and biases that become amplified by assumptionsbased interactions involving monoepistemic ways of knowing. A multi-epistemic approach to traumainformed practice “supports the awareness that there are multiple ways of knowing, understanding and assigning meaning”3 to trauma and its healing. Recognizing and supporting anti-colonial and

18 BARNOTES

Indigenous intersectional perspectives of trauma creates opportunities for the upholding of Indigenous sovereignty and the further reconfiguration of legal practice.4

As a community organization, CLASSIC Law is grounded within client-centered practice, which requires an awareness of the unique and dynamic needs of each individual client. Understanding an approach to interdisciplinary supports requires the emphasis of a client’s priorities by identifying their role within a Adrienne

Huard emphasizes the as one that actively disrupts damage and deficiencycentered narratives because it “encourage[s] a trauma-informed responsibility…that celebrates our kinship, successes, sovereignty, and resistance.”5 Developing this in legal practice provides a potential solution to the dominant discourse of trauma by enabling healing and care to be structured around the client’s self-determination.6 Against colonial subjugation enforced by practitioner-client power dynamics, self-determination presents the client as an expert in their own right - as resilient, celebrated, and determining of their own future through the ongoing support of their communities. Of importance to this notion of self-determination is the inherent limitation of a colonial justice system that attempts to deny Indigenous legal traditions and restorative justice practices, requiring the navigation of limited options through acts of resistance and community connection. In all manners of expertise, including

social work, education, law, healthcare, or governmental decisionmaking, humans remain at the core of decisions made and acted upon. And yet, a demarcation becomes apparent between those who receive care and those who provide it. What emerges from that space in between is the belief that care providers and practitioners, as experts in their field, need not seek out the very care that they intend to provide. Therein lies ‘the arrival’ – for techniques, devices, and an awareness for other people without self-reference. A scope of care that includes ‘the self’ will never allow for an arrival when the practice of care necessarily requires an ‘ever-approaching horizon.’ 7 Trauma is a mark of humanity shared, boundaryless and iterative, however, its existence remains unacknowledged in many of the institutions responsible for both maintaining and preventing its occurrence. As one such domain, the government has articulated the enforcement of trauma through explicit policies and practices witnessed in immigration trauma,8 evictions,9 and programs such as the Saskatchewan Income Support (SIS) program, which inadequately supports participants by significantly reducing income supports. The legal institution has itself prescribed the limits of the necessary qualifications for its practice, resulting in the implicit enforcement of trauma through client-blaming behaviours10 and a lack of awareness about trauma’s presence within the criminal justice system.11 Presently, trauma-informed practice is not a required component of any level of legal education or training.

FEATURE COMMENTARY

When an awareness of trauma is absent, the practitioner is incapable of recognizing the occurrence of trauma, leaving them inadequately prepared to respond and support their client’s needs. When abuse or neglect is suspected by a healthcare professional, for example, the legal 'duty to report' does not function on the basis that the suspicion must be proven to be correct, but rather that an awareness and responsibility exists to trigger that duty. Without the understanding of symptoms of abuse or neglect, together with a duty to report when those symptoms exist, protection is neither provided nor valued. Conversely, when legal services are provided, the practitioner must be able to identify the likelihood of trauma to ensure that individuals are advocated for and that no further harm is caused by future interactions. Expanding lawyer competencies to include trauma-informed legal practice would

promote the well-being of clients and the fostering of successful clientcentered relationships.

José Esteban Muñoz, Cruising Utopia: The Then and There of Queer Futurity , 10th ed (New York, NY: NYU Press, 2019). 7

RoseMarie Perez Foster, “When Immigration Is Trauma: Guidelines for the Individual and Family Clinician” (2001) 71:2 American Journal of Orthopsychiatry 153. 8

Stef Craps, Postcolonial Witnessing: Trauma Out Of Bounds, vol 1 (New York, NY: Palgrave MacMillan, 2013). 1

Natalie Clark, “Shock and Awe: Trauma as the New Colonial Frontier” (2016) 5:14 Humanities at 4. 2

Zelaika S. Hepworth Clarke, Coming to My Senses: A Decolonizing Autoethnographic Exploration of Osunality (PhD Dissertation, Widener University, 2015) [unpublished]. 3

Clark, supra note 2 at 7.

Adrienne Huard, “CoC Methodology: Generating Communities of Care Within Indigenous Spaces Through Trauma-Informed Visual Culture” (2020) 31:62 Public 60. 5

Clark, supra note 2 at 5, citing Jill Hill et al, “Integrating Trauma Psychology and Cultural Psychology: Indigenous Perspectives on Theory, Research, and Practice” (2010) 16 Traumatology 39. 6

Sarah Buhler, “Pandemic Evictions: An Analysis of the 2020 Eviction Decisions of Saskatchewan’s Office of Residential Tenancies” (2021) 35:4 Journal of Law and Social Policy 68. 9

Gemma Smyth et al, “Trauma-Informed Lawyering In The Student Legal Clinic Setting: Increasing Competence In Trauma Informed Practice” (2021) 28:1 International Journal of Clinical Legal Education 149. 10

“Trauma & Compassion: My Interview with Gabor Maté” (1 June 2020), online (podcast): The Trauma-Informed Lawyer hosted by Myrna McCallum. 11

Your workplace is any place with DM Cloud A seamless and secure suite of family law tools divorcemate.com 1.800.653.0925 (x407)

WINTER 2021 19

20 BARNOTES

FROM THE BENCH

THE PROVINCIAL COURT OF SASKATCHEWAN; REFLECTIONS FROM A PANDEMIC YEAR JUDGE L.E. GIBB PROVINCIAL COURT OF SASKATCHEWAN

I am pleased to provide a contribution to this edition of the CBA’s BarNotes on behalf of the Provincial Court of Saskatchewan. As a province, we are in a time of change and adaptation in light of the pandemic and its impact in our communities. We have responded in times of uncertainty quickly while learning new ways of communicating and ensuring access to justice. As a court, we have learned that in the face of crisis that lightning speed adaptation was possible with the use of creativity and the aid of technology. In the last year, our court welcomed the appointment of Chief Judge S. Metivier to take the helm from former Chief Judge J.A. Plemel who both guided us through uncharted territories and demonstrated incredible leadership throughout. Additionally, there were several new court appointments including Judge J. Lubyk in Prince Albert, Judge M. Tomka in Meadow Lake and Judge L. Hintz in Yorkton. For more recent appointments, myself included, we have the benefit of this being the only normal that we know as new judges. The pandemic highlights the importance of the court to be flexible, which includes responsivity to travel restrictions, physical distancing and managing the pandemic a day at a time. The 12 permanent court locations remained open and many

considerations weighed before travelling to the 62 circuit points province-wide. Our court remains alert to the concerns of time to trial. We aim to ensure post-pandemic there is not a backlog of cases and addressing any potential trial delays with efficiency. The courts have also ushered in the advancement of technologies for court appearances including the expansion of video technology across the province. If there was a tag line for the pandemic, I am sure a frontrunner would be, “Can you hear me now?” The court has been mindful of the communities who also experience greater impacts due to remoteness. In the advent of technology, we were reminded of the significance of access to justice for those individuals who could not easily appear by telephone or travel the distance to the permanent locations if the circuit point was closed. On many occasions, it took a willingness to try different approaches to getting people to court, including calling someone’s cousin’s brother’s aunt’s phone to reach the person we were looking for. We are also reminded daily of the lengths that people will go to make it to their court appearance and the corresponding willingness of the courts to accommodate during times of uncertainty. One of the highlights of the past year was the creation of the first National Day for Truth and Reconciliation on September 30th. A day to commemorate the survivors of Canada’s Residential Schools and their families and communities in the spirit

of reconciliation. The permanent judges of our court spent part of the inaugural day with a residential school survivor who presented to our court and deepened our understanding of the importance of truth and reconciliation as members of the judiciary. Another concrete action that our court has taken in demonstrating our commitment to relationshipbuilding in Indigenous communities is to close court in honour of National Indigenous Peoples Day on June 21st in the circuit points held in First Nations communities. In reflecting on our courts efforts towards reconciliation as it impacts justice participants, I am reminded of the words of the Chief Justice of the Supreme Court, the Right Honourable Mr. R. Wagner, P.C. in his speech titled delivered on May 6, 2021 where he poignantly stated, “We must redouble our efforts of Reconciliation with the First Peoples of Canada. Judges are expected to be alert to the history, experience and circumstances of Indigenous peoples. We must make the same commitment to those who make up the many other diverse cultures and communities in the areas we serve.” The pandemic has shown us new ways to engage with justice participants and in the courts, reminding us of the fundamental principle of access to justice every day and served as a daily reminder that we are all in this together. Photo of Judge Gibb, Sweet Moon Photograph www.sweetmoonphotography.ca/

WINTER 2021 21

CLASSIC

RECONCILIATION IN CANADIAN LAW: ONE SETTLER LAWYER’S ATTEMPTS TO SITUATE RECONCILIATION IN THE MOVE TOWARDS A POST-COLONIAL REALITY NICHOLAS BLENKINSOP CLASSIC LAW

I am a privileged white male. I work as a lawyer. If there are boxes of privilege, I can tick them all. I work at Community Legal Assistance Services for Saskatoon Inner City Inc. (“CLASSIC”), a non-profit charitable legal clinic in Saskatoon. CLASSIC offers free legal services and programs to people who are otherwise on their own with their legal matter. CLASSIC’s Mission Statement reads as follows: With a commitment to social justice, decolonization, and the dignity of all people, CLASSIC provides: • free legal services, programming and supports for people who experience poverty and injustice, and • internationally-recognized clinical legal education to law and interdisciplinary students. I work in CLASSIC’s Walk-in Advocacy Clinic, which is a program that provides full legal representation for folks who would not otherwise have a lawyer. I also act as a Supervising Lawyer overseeing clinical law students, from the College of Law. Given CLASSIC’s Mission Statement above, and the reality of offering legal services to people who experience poverty within an organization that

22 BARNOTES

has social justice and decolonization at its core, Reconciliation must guide the work that I do. Reconciliation is more than simply an issue in Canada’s zeitgeist, it is something that informs how I practice law. Through my work, I have come to notice that Reconciliation, or the ideas that it evokes, are woven into the legal fabric of this country. In this article, I will work to offer some thoughts around my understanding of Reconciliation and colonialism and then offer some thoughts as to how these ideas are relevant to legal practice today. CLASSIC’s hope is that this article will demonstrate the teaching we provide students, and the intentional thought around colonialism, Reconciliation, and hopefully decolonization, that informs our clinic. Reconciliation is borne out of settler Canada trying to come to terms with the problems associated with colonialism. It could be seen as a manifestation of an interest in moving towards a postcolonial reality. The consequences of colonialism are, and have been, dire. For me, in seeking a way forward, a way to personalize Reconciliation, it is important to understand how colonialism worked and continues to work – to have a theoretical framework for it. My inquiries brought me to Albert Memmi. A Jewish Tunisian by birth, Memmi could be seen as the consummate outsider. Non-Muslim and French speaking during his early life in Tunisia and then, after a time in a

concentration camp, a colonial emigre in France. A sociologist by training, he wrote several books including his seminal work, “The Colonizer and the Colonized.” In it, Memmi explores the colonial relationship and the power relations between colonizers and the colonized. For Memmi, the colonial relationship is one of power and usurpation. The colonizer comes into a place that has been lived in for a time but that is new for the colonizer and then not only starts living in the place, but takes over. The process of taking over is one of denigration or denial of that which existed before the colonizers’ arrival. A denigration of the people, the language, the culture, the society, the laws, everything. It is created, according to Memmi, in a selfjustificatory way: Everything coming from the power group, the colonizers, is right and good; and everything about the colonized is wrong and bad. Systems are created which protect the pattern of colonial privilege and tautologically justify the actions of the colonizer. This applies equally to the legal system that is imposed. As the colonial system is imposed, the colonizer, their language, their culture, their laws, and ways are privileged, and those things associated with the colonized are rejected. Part of the rejection of that which is associated with the colonized is silencing. Their knowledge, language, culture, having been denigrated, is silenced. Space is not created for hearing from the colonized.

CLASSIC

According to Memmi, however, the reality of this relationship is an uncomfortable one for some colonizers. They see the patterns of disadvantage and are revolted. They wish to do something to change that which causes them concern. The difficulty, however, as observed by Memmi is that the change that would be needed would involve altering the colonial relationship. This change would bring about risk. In that all colonizers are privileged by the colonial system, changing the system could displace that privileged position. More bluntly, Memmi states that what is difficult for the colonizer who talks of rejecting the colonial ways is that “[w]hat he is actually renouncing is part of himself, and what he slowly becomes as soon as he accepts a life in a colony” [p. 64]. In other words, to be a colonizer who rejects means to situate oneself as part of a movement that, if it is successful, may create something new. This “something new” mentioned by Memmi is reflective of the concept of Reconciliation. This change to the colonial relationship, to the patterns of privilege and denigration, is the vision that Canada is to undertake through Reconciliation. This vision is pointed to in jurisprudence from Canadian Courts. In , 1996 CanLII 216 (SCC), [1996] 2 SCR 507, <https:// canlii.ca/t/1fr8r>, retrieved on 202106-01. At paragraph 37, the Supreme Court of Canada uses language that is evocative of Memmi to do with the process of colonialism: Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by

the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs. The ascertainment may present a problem of considerable difficulty, as Moynihan J. perceived in the present case. It is a problem that did not arise in the case of a settled colony so long as the fictions were maintained that customary rights could not be reconciled "with the institutions or the legal ideas of civilized society", In [1919] A.C., at p. 233, that there was no law before the arrival of the British colonists in a settled colony and that there was no sovereign law-maker in the territory of a settled colony before sovereignty was acquired by the Crown. These fictions denied the possibility of a native title recognized by our laws. But once it is acknowledged that an inhabited territory which became a settled colony was no more a legal desert than it was "desert uninhabited" in fact, it is necessary to ascertain by evidence the nature and incidents of native title. [Emphasis added.] Then at para. 42, the Court goes on: The challenge of defining aboriginal rights stems from the fact that they are rights peculiar to the meeting of two vastly dissimilar legal cultures; consequently there will always be a question about which legal culture is to provide the vantage point from which rights are to be defined... a morally and politically defensible conception of aboriginal rights will incorporate both legal perspectives. [Emphasis added.]

In a more nuanced way, both 1999 CanLII 679 (SCC), [1999] 1 SCR 688 and 2012 SCC 13 (CanLII), [2012] 1 SCR 433 point towards the something new. In those decisions the Supreme Court of Canada requires that, considering the damaging effects of colonialism which can be seen in the dramatic overrepresentation of Indigenous peoples in prison, Judges hear the story of the Indigenous person coming before the Court – underlining the significance in the process of Reconciliation for colonizers to shut-up and listen. There are also the Indian Residential School adjudication processes. Structured differently, they permitted different ways of truth seeking. These legal trends are significant. There are others. They point to the possibility of new ways of approaching law which change the colonial relationship and moves away from the denigration of the colonized voice, their systems, their culture. It is these trends that evoke what Reconciliation is calling on us to become. The process, however, must be done in a way which ensures that the means used also deconstruct the hierarchy imposed by colonizers. This is a journey. At CLASSIC, we hope that one day this journey leads to the decolonization of our legal (and other) systems. But that is another article for another day

WINTER 2021 23

COMMENTARY

PROFESSIONAL REGULATION: THE DUTY OF FAIRNESS IN INVESTIGATIONS JAMES STEELE

ROBERTSON STROMBERG LLP

Introduction:

When a professional college investigates an initial complaint against its member, does it owe the member a duty of fairness? Does it have to inform them of the substance of the allegations against them, and give them a chance to reply, as part of the investigation?

As a starting premise, a College should of course follow their governing statute or bylaws. If the governing bylaws direct what notice must be given to the member, those directions must be followed. If the bylaws impose a requirement to hear from the member as part of the investigation, that must be adhered to. But absent any such direction, this matter is governed by common law. The inconsistencies in Canadian case law were well summarized by Bryan Salte Q.C. in

The Court held that the duty of fairness at the investigation stage was low: 113 The appellants' fifth claim is that Staff conducted the investigation in an unbalanced and improper manner and that Ironside did not get told of the allegations against him nor was he given a chance to respond before the notice of hearing: factum, paras. 306 to 310. Even in the criminal law and Charter context, there is no clear duty to inform an investigation target of the case against him or provide him the chance to debate the potential charges beforehand [citations omitted] at para. 76:

This article explains that, under current Canadian case law, there is no such bright line duty. Rather, there are two divergent case law trends in Canada. The first line of cases suggests that any duty of fairness is very limited at the investigation stage. However, the second line of cases suggests that a more robust duty is in fact owed. In response to this judicial inconsistency, this article suggests a practical approach for professional regulators. Namely, even during the investigation stage, professional bodies should inform members of the case against them and afford a fair opportunity of reply. This approach will reduce the chance of later discovering relevant evidence, which could have avoided a hearing. It will also reduce the likelihood that the member feels the process has been unfair, and potentially launches a procedural objection. What duty of fairness exists at the investigation stage?

The extent to which a duty to act fairly exists in the investigation stage, is not well defined by judicial authority.

24 BARNOTES

Each of these two distinct case law approaches are now examined. Decisions suggesting a low duty of fairness

We therefore begin by first summarizing the first line of Canadian decisions, that positing a low duty of fairness in an investigation. In , 2009 CarswellAlta 499, 2009 ABCA 134, a natural gas company was taken over by another company. The natural gas company allegedly made financial misrepresentations and was investigated.

76 First, the argument that fundamental fairness may require different standards in different contexts is evidenced by the different procedural protections that we generally accord to witnesses called to appear at hearings similar to that challenged in the present case. Although those conducting an investigation are always under a duty to act fairly, this Court has held that fairness in the context of such hearings does not require that the persons who are the "subjects" of the investigation participate in the examination of other witnesses, or that they be provided with an opportunity to adduce evidence or make submissions to the investigator: Roper v. Royal Victoria Hospital, [1975] 2 S.C.R. 62, and Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181. See also Ontario Securities Commission v. Biscotti (1988), 40 B.L.R. 160 (Ont. H.C.). [emphasis added]

, 2009 CarswellBC 2953, 2009 BCCA

COMMENTARY 487, the Court held that the engineer under investigation was not entitled to insist on details of the nature of the investigation, prior to any issuance of the Notice of Inquiry

final determination nor anything that by procedure or substantive law authorized or called into play the possibility of finality in any sense for the Plaintiff.

The Court held:

22 What was said there, however, applies to the Association as an investigating body with authority to investigate and discipline its members. What the Association conceded in goes only as far as establishing that before a decision is ultimately taken to discipline a member of the Association, the member is entitled to know the allegations against him and be given the opportunity to respond. does not assist Mr. Puar. It does not establish that, where the investigative function in a disciplinary process is distinct from the adjudicative function, as is the case here, procedural fairness requires the duty to disclose an allegation and afford the opportunity to be heard to be discharged at the investigative stage. While early disclosure may be useful, it is not normally required until the adjudicative stage where the member can expect to be afforded a hearing. [emphasis added] In 2005 CarswellNfld 182, 2005 NLTD 112, the Court held that the investigation stage posed minimal prejudice to a member. The Court held: 33 The alleged failure on the part of the Law Society had to have occurred in the investigative process. It was purely an investigative process at that stage. … 35 At this investigative stage the Applicant's rights were not subject of public scrutiny. His rights were not subjected to a process that could have affected their limitation or disposition. ... 38 The investigation carried with it no power or authority to make a

2007 CarswellOnt 5110, [2007] O.J. No. 3156, the Court emphasized that an investigation is a mere screening process. As such, the professional college was not yet under a duty of full disclosure. The Court held: 30 illustrates the approach to be taken in reviewing the decisions of the Complaints Committee and of the Board. The central feature of the procedure against Dr. Botros is that the Committee was exercising a screening function: it was an investigation and a decision as to the existence of sufficient evidence to warrant referral. It was not a hearing to determine with finality what the facts were and whether punishment should be imposed. Accordingly, following the analytical approach of and of the scope of disclosure may be limited for the reasons permitted by the statute and relied on by the Board, including the protection of the interests of persons not parties. [emphasis added] Decisions suggesting a more robust duty of fairness

The above decision appears clear and consistent. And yet, as sometimes occurs in a system of multiple provincial courts, other Canadian courts have strayed from the above reasoning, without providing a reasoned basis for such departure (or even explicitly acknowledging the above decisions). In Swanson v. Institute of Chartered Accountants (Saskatchewan), 2007 CarswellSask 820, 2007 SKQB 480, the Court considered whether an accountant had been given enough particulars of the matters for which he was investigated (before a discipline hearing).

The Court ultimately held that he had been given sufficient information, in his particular case. However, in so holding, the Court offered guidance on the duty of fairness at the investigation stage. The Court recognized that there was indeed potential prejudice posed to a member at the investigation stage (something which the above decisions had declined to acknowledge): 74 Behind the relevance of the member having the opportunity to provide a response is the recognition of the adverse effect on the member of a decision to proceed to a hearing. The member's response to the allegation might lead to a decision not to proceed to a hearing, and so the member may avoid being exposed unnecessarily to the adverse effect of a charge and a hearing. 75 I conclude that, as a matter of its limited duty of fairness, the professional conduct committee owed a duty to Mr. to advise him of the matters being investigated As such, the Court suggested that a member had to be given a “meaningful” opportunity to respond at the investigation stage: 80 The committee would not have fulfilled its duty if it had told Mr. only that it was investigating his audit in its entirety. To such an indication, Mr. Swanson could only respond that he did it all properly - an answer too general to have any effect. For Mr. Swanson to have a meaningful opportunity to respond, to have the opportunity to respond in a way that might prevent an unnecessary hearing being held, he must be given some particulars of an allegation to which he can provide a meaningful answer. Similarly, in 2011 CarswellOnt 13247,

WINTER 2021 25

COMMENTARY

2011 ONSC 606, the Court held that the College was required, at the investigative stage, to provide the member with the substance of the allegations against her and receive an opportunity to make submissions in respect of the allegations (para 8). The Court held that had not been done. As a result, the matter was remitted to a differently constituted panel for fresh determination, with directions that the applicant be allowed to make submissions in respect of seven witness statements. Practical suggestions:

What then should Colleges do in light of the above inconsistency? On the whole, the trend of Canadian caselaw suggests a limited duty of fairness, with no obligation to provide allegations to a member, and allow them to respond, during investigation. However, there is enough divergence to render the matter unsettled.

26 BARNOTES

Moreover, there are practical reasons to suggest that a member should in fact receive notice of the allegations against them. As such, this paper suggests the below framework: 1. Give the member the substance of all allegations against him, while under investigation; 2. In the event that the investigation discloses new allegations during its course, disclose those new allegations to the member forthwith; 3. Give the member an opportunity to respond to the ultimate “case” against them, before the investigation finally decides whether to proceed to a hearing. The benefit of the above approach is increased practical saving of effort, and increased fairness.

First, it reduces the likelihood that an expensive hearing is held unnecessarily. It benefits no one to charge a member, only to discover later there was determinative evidence all the while, which could have influenced the decision to hold a hearing. Second, the legal benefit of the above approach is increased finality. If the member is given a chance to be heard during the investigation stage, that reduces the chance of procedural skirmishes later in the hearing, or later complaints about the entire process. The above said, an investigation should not become a mini-trial. The member will not be entitled to cross-examine witnesses during the investigation, etc. But the mere fact of giving them the chance to make a written reply to the allegations, will benefit the entire process.

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BarNotes Winter 2021

Articles inside

IMPLEMENTING COMMUNITIES OF CARE IN TRAUMA-INFORMED LEGAL PRACTICE

INDIGENOUS & ABORIGINAL LAW: WE MUST ALL UNDERSTAND THE DIFFERENCE

APPLICATION OF UNDRIP ON THE RIGHTS OF INDIGENOUS PEOPLES