BarNotes Spring 2022 by CBA Saskatchewan

THE CANADIAN BAR ASSOCIATION • SASKATCHEWAN BRANCH

SPRING 2022

VOL. 36.1

IN THIS ISSUE

The Canadian Bar Association Saskatchewan Branch PO Box 31052 Broadway Saskatoon SK S7H 5S8 www.cbasask.org

BARNOTES Editorial Board

FEATURE COMMENTARY

HANNAH ZIP Editor Scotiatrust SHANE BUCHANAN MLT Aikins LLP

Covid-19 From a Union-side Lawyer's Perspective

Covid-19 Vaccinations, Parent Preference, and the Best Interests of the Child

NICOLE HAMM ISC – Information Services Corp

Challenging Times For Family Lawyers

Indigenous Self-determination in the Era of Covid-19

BRANCH NEWS 3

Editor's Notes

President's Message

COMMENTARY 7

Gen X Law in a Gen Z World: A Social Commentary on the Gap Between the Practice of Law and the Current Generation

LEAH HOWIE Law Reform Commission of Saskatchewan TONYA LAMBERT Koskie Law FOLUKE LAOSEBIKAN, Q.C, PH.D F L K Law Firm CHRISTINE LIBNER Scharfstein Gibbings Walen Fisher LLP STEPHEN MUSSELL Howe Legal

FROM THE BENCH 18

Court Etiquette

MONTEEN DENT Executive Director CBA Saskatchewan

PRO BONO 25

LAYOUT & DESIGN Katrina Forgrave Graphic Designer

Witness to Housing, Evictions and Homelessness

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.

Proposed Bill to Repeal Mandatory Minimum Sentences for Drug Offences in Canada Do We Need Wellbeing & Authenticity to be Inclusive & Diverse? Lessons from Kwayeskastasowin No Reason to be Smug 2 BARNOTES

HEATHER SHERDAHL Parchomchuk Sherdahl Hunter

CBA Saskatchewan represents more than 1,200 members and is dedicated to improving access to justice, reviewing legislation and advancing the administration of justice.

ITEMS OF INTEREST Advertiser Index

Calendar of Events

Contact Monteen Dent, monteen@ cbasask.org for information on advertising. © CBA Saskatchewan www.cbasask.org

EDITOR’S NOTES

IT TOOK A GLOBAL PANDEMIC FOR ME TO ACHIEVE WORK-LIFE BALANCE HANNAH ZIP LETTERS TO THE EDITOR hannahzip@gmail.com

I made myself a promise when I was writing my Editor’s Notes for that I the Winter issue of was not going to talk or write about the pandemic anymore. Like many people, I am sick of hearing about it. Yet, here we are, still adapting to the changing world around us as a result of the pandemic. One of the side effects of the pandemic on my life is the opportunity to work from home. Despite the initial adjustment period of figuring out how to use the ultra-secured network and shared drives, my home office is now my ideal work environment. I work in-house for a national trust company and 3-4 days of my week are spent working from home. If this sounds lonely, it is not. I regularly communicate with my colleagues and clients across Canada on a daily basis, and I have found my professional expertise has grown as a result of the willingness of everyone in my organization to collaborate and work towards a common goal for our clients. Just as importantly, clients have provided consistent positive feedback about the option to meet virtually from the comfort of their own home.

hours”, with avid curiosity and disbelief. These studies consistently show that employees are just as productive working from home as they are working in an office, and this has been my experience. With uninterrupted blocks of time, I am able to focus in a way that was, frankly, impossible for me with all of the distractions in an office. Not only has my productivity increased but, just importantly, I have finally struck the “work-life balance.” I am able to use the time that I would have spent commuting and packing my lunch on more productive tasks, errands and appointments. I have more control over my day and feel less stress as a

result. (I should probably mention that I do not have any children unless you count pets.) This issue of BarNotes explores many of the different areas of the legal profession that have been impacted due to Covid, including how we practice law going forward. From labour law to the best interests of children in family law proceedings, the exercising of Indigenous self-determination, and a timely refresher on the basics of appearing in court in person, there is something in this issue for every legal practitioner.

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Throughout my legal career I have read articles and studies about alternate working arrangements that used foreign concepts, such as “hybrid work model” and “flexible

SPRING 2022 3

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4 BARNOTES

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Cyber Triage Incident Response

BRANCH NEWS

PRESIDENT'S MESSAGE RECHÉ MCKEAGUE CITY OF SASKATOON reche.mckeague @saskatoon.ca 306-975-3270

In the Winter 2021 issue of BarNotes, I shared with you the Guiding Principles adopted by the CBASK Board of Directors in September 2021. In this issue, I would like to share one of the ways two of these Guiding Principles are being put into action.

This February, we solicited feedback from the membership and from Council on the use of gender-inclusive pronouns and forms of address in court. We also advised the three Courts of our interest in this topic and, in response to our correspondence, we were advised of recent protocols that had just been published or were about to be published by the Court of Queen’s Bench and the Court of Appeal. The Provincial Court indicated that it was interested in receiving information and feedback from CBASK to consider . at its May The membership was strongly in support of CBASK advocating for the use of gender-inclusive pronouns and forms of address in court. Some of the thoughts in the ThoughtExchange with the most positive votes included “I am happy to see the CBA advocating

for changes that make the justice system more welcoming. Going to court is stressful enough without having to worry about being misgendered during your proceeding. This is an easy solution to reduce stress,” and “Inclusive pronouns are an important step in access to justice. Asking people how they wish to be referred to at the beginning of a court proceeding is a short and easy way to make people feel more welcome in court.” Following the feedback received, research undertaken, and discussion with the CBASK SOGIC section executive, the Board is presently drafting a letter encouraging the Courts to implement protocols that would make it mandatory for all court participants to share the pronouns and forms of address to be used in reference to them during a court proceeding. The existing protocols of the Court of Queen’s Bench and the Court of Appeal are voluntary, so CBASK will be advocating for a change to the existing protocols. If you are interested in more information on why this is the advocacy position being advanced by CBASK, please feel free to get in touch with me; I will be happy to discuss with you. The Board also passed five Strategic Goals at its September 2021 meeting, which are available at cbasask. org under Who We Are>About Us>Mission & Vision. One of the Strategic Goals is:

Advocacy on behalf of the CBASK membership happens year-round. The President and Vice-President meet annually with the Minister and Deputy Minister of Justice to discuss matters of importance to the membership. At the 2021 meeting, we raised the issues of more funding for court technology and possible amendments to The Enforcement of to make it more efficient and more accessible to self-represented people. The next meeting is scheduled for early May 2022. That said, don’t hesitate to bring your concerns or suggestions for the Minister to the attention of CBASK at any time of the year. The Minister has indicated that he will make time for CBASK if it is needed throughout the year. CBASK regularly advocates to the Courts through two representatives on each of the Bar Judicial Councils. While not all of the Councils meet regularly, the Courts have indicated that they are interested in meeting when there are issues to discuss. The Court of Queen’s Bench Bar Judicial Council meets annually in June. Further, CBASK is represented on a recently formed Court of Queen’s Bench Committee “Reimagining Chambers in a Post Pandemic Era” tasked with reviewing the Queen’s Bench Chambers process in Saskatchewan and recommending improvements to the Court. Again, if you have concerns or suggestions for any of the Courts, please bring them to the attention of CBASK at any time of year. CBASK strives to be the “voice of the profession” in Saskatchewan. We can only do this if you tell us what you think and what you need. So, please, if you have an idea or concern that you would like to share, reach out to the Branch staff or a Board member and let us know what you think. .

SPRING 2022 5

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COMMENTARY

GEN X LAW IN A GEN Z WORLD: A SOCIAL COMMENTARY ON THE GAP BETWEEN THE PRACTICE OF LAW AND THE CURRENT GENERATION FOLA ADELUGBA, LLB FLK LAW

It is commonly known that Gen X, and the generations above them, have stark opinions about the Millennial Generation, which has been the subject of copious amounts of research and comedy skits. Millennials as a whole seem to have gotten the short end of the proverbial stick, being frequently referred to as fragile or lazy, and the following generation (Gen Z) has not received a better reputation. Gen Z’s unfortunate reputation may stem from the fact that colloquially it is known as the generation that has the shortest attention span to date, with most researchers stating that it averages about 8 seconds.1 Despite this, Gen Z is also considered the most educated and racially diverse generation to date.2 The Gen Z generation has managed to create innovative tools to connect while in the age of social distancing, dominating with the use of TikTok and the further creation and acceptance of new professional categories, such as socialpreneurs, influencers and the like. As Gen Z lawyers enter the workforce, how they can be of use to further the accessibility of legal services and channel their creativity and innovation, while respecting the wisdom gathered from previous generations of legal professionals, is still to be determined. One of the greatest complaints Gen

Z lawyers have as they join the legal workforce is that the practice of law is stuck in the ‘millennial age,’ a generous interpretation of the current state of the accepted use of technology in law within a legal system geared towards Gen X. Covid has been an unfortunate further revelation of the gap between generations, especially in the area of technology, and furthermore the gap between law practice and current society. Every legal jurisdiction in Canada has their own relationship with technology for reasons such as geographical area, access to technology and internet availability. Through Covid there has been an element of forced technological advancement, from the digitization of Court records and forms to the use of Webex for client meetings and court appearances. This change has been necessary for social distancing but for many older law professionals there is an element of wanting to go back to the way things were before the tragedy of a pandemic. This post-pandemic season is the time for all law jurisdictions of Canada to take a look at their practices and weaponize their newest and youngest resources, Gen Z lawyers, to create law practices that are both more practical and applicable to the people they serve. Considering what many legal professionals have experienced during this pandemic, why should a single dad of 3 drive across town to sit in a law office for an explanation when a Zoom call could be just as informative and easily done? Is there truly a need beyond convention to print out every draft, letter, and communication when digital and secure cloud systems can easily store these documents

indefinite periods of time without the negative environmental impacts or taking up physical space? Do law offices need to be places where every lawyer must attend from 8:00 a.m.- 5:00 p.m. without fail, or could both lawyers and the public benefit from the flexible hours a work from home practice provides? And, finally, for consideration, is the Gen X’s rigid practice of law excluding the comfort benefit and inclusiveness that advancing technology can offer? With the answers to these questions in mind, there is a need for practical solutions to be offered that are available for all jurisdictions as we enter the new era of a post-pandemic world. The best and most practical way to ensure the future of law as an invaluable profession that provides a great service to the public, often to those most vulnerable in society, is to ensure that decisions are made by diverse groups of people. Decisions about the technological practice of law, particularly at the highest level, should be made by legal professionals and lawyers that are diverse ethically, by sexual orientation, geographically and generationally. Active work to remove the barriers that often exclude younger lawyers, either by intention or implicitly, is for the benefit of all who practice law. The future of law is more efficient, creative, and accessible as we embrace the innovation of the younger generation combined with the wisdom of the older.

Continued on page 24

SPRING 2022 7

COMMENTARY

PROPOSED BILL TO REPEAL MANDATORY MINIMUM SENTENCES FOR DRUG OFFENCES IN CANADA HEATHER KELLY

STUDENT AT LAW MCDOUGALL GAULEY LLP

The ongoing public health crisis of opioid overdoses and deaths in Canada has dramatically increased in recent years.1 Factors contributing to the crisis include: a high rate of opioid prescribing; emerging dangerously potent synthetic opioids like fentanyl in illegal supplies; and, the impossibility for those without professional equipment to determine the quantity of those opioids mixed into illegal drugs.2 This paired with the “tough on crime” ideology requiring mandatory minimum sentences for drug offences and restrictions to the availability of non-custodial sentences results in custodial sentences where other more restorative sentences may be appropriate. Some argue this approach has done little with respect to limiting illegal drugs, instead contributing to an overrepresentation of minorities and other marginalized groups, including those suffering from substance abuse and mental health challenges, within the criminal justice system. With the stated purpose of addressing the opioid crisis and overrepresentation of minorities and other marginalized groups in Canada, the Honourable David Lametti, Minister of Justice and Attorney General of Canada, introduced Bill C-22, , on February 18, 2021. Unfortunately, Bill C-22 did not complete the second reading as parliament was dissolved prior to the

8 BARNOTES

September 20, 2021, federal election.

The re-elected Liberal government has prioritized the Bill and it was reintroduced in the House on December 7, 2021, as Bill C-5, Bill C-5 is almost identical to the previous Bill C-22 and has proposed three areas of reform: (1) The repeal of all mandatory minimum sentences of imprisonment prescribed for offences under the Controlled Drugs and Substances Act. The repeal of mandatory minimum sentences of imprisonment prescribed for certain offences under the Criminal Code that relate to possession and use of firearms and the unauthorized sale of tobacco and tobacco products.

Mandatory minimum sentences of imprisonment limit judicial discretion by requiring sentences of a particular length of time, without consideration to aggravating or mitigating factors and the circumstances of the particular offender. The constitutionality of certain mandatory minimum sentences have been successfully challenged in Canada, being found contrary to the The proposed amendments may help to address some of the problems associated with limiting judicial discretion including: disproportionate sentences; the requirements having little to no deterrent effect; over-incarceration; and, disproportionate imprisonment of marginalized populations, as well as other issues. (2) The expanded availability of conditional sentences of

imprisonment for certain serious offences under the Criminal Code.

A conditional sentence is ordered when the offender is sentenced to a term of imprisonment of less than two years, to be served in the community under strict conditions. Conditional sentences serve both punitive and rehabilitative purposes. Conditions typically include house confinement, curfews, reporting to a supervisor, restrictions on use of weapons, and participation in treatment or programs not available under a custodial sentence. Offenders can also benefit from employment, educational opportunities, and maintaining access to family, community, and health-related support systems. The strict conditions achieve the sentencing goals of deterrence, denunciation, and maintaining public safety. The proposed amendments maintain restrictions on the use of conditional sentences for some serious offences but makes conditional sentences available to a larger number of criminal offences. For example, the charge of theft over $5,000.00 where the Crown proceeds by indictment would qualify for a conditional sentence if the judge deemed it appropriate based on the matter before him/her. (3) Amendments to the Controlled Drugs and Substances Act to promote the use of diversion measures for simple drugpossession offences.

The amendments would require peace officers and prosecutors to consider referring people to non-

COMMENTARY

punitive, health-care orientated treatment programs such as drug treatment programs, judicial referral hearings, Indigenous culture-based programming, and other restorative justice responses, rather than charging or prosecuting them for simple drug-possession offences. This amendment is aligned with the federal government’s drugs and substances strategy that has focused on harm reduction, prevention, treatment, and enforcement.3 Bill C-5 focuses on amending and repealing existing laws that some say have aggravated underlying social, economic, institutional, and historical disadvantage contributing

to systemic inequalities at all stages of the criminal justice system, from first contact with law enforcement to final sentencing. Perhaps more importantly, the proposed amendments give back discretion to participants in the criminal justice system to make decisions crafted to the unique circumstances of particular offenders and offences. Whether Bill C-5 is passed and achieves its goals remains to be seen.

Government of Canada, Highlights from phase one of the national study on opioid and other drug-related overdose deaths: insights from coroners and medical examiners.

Government of Canada, “Problematic opioid use,” Opioids and the opioid crisis – Get the facts.

Government of Canada, Canadian drugs and substances strategy. 3

On March 31, 2022, Bill C-5 passed its second reading. To become law the Bill must complete three readings by both the House of Commons and the Senate and receive royal assent.

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SPRING 2022 9

FEATURE COMMENTARY

COVID-19 FROM A UNION-SIDE LAWYER’S PERSPECTIVE KEIR VALLANCE, ASSOCIATE

on unpaid leave for a period of time seemed likely to be upheld by an arbitrator.5)

BAINBRIDGE JODOUIN CHEEDHAM

With policies likely to be upheld, unions worked to minimize consequences - financial and otherwise - to their members. For example, when an employee is ordered to stay home owing to risk factors, do they get paid? Such employees are not “sick” as such; are they entitled to use sick leave or other paid leaves?6 Notably, one Saskatchewan arbitrator ruled that such employees could not access sick leave, but that decision was overturned on judicial review.7

Following the repeal of provincial regulations regarding “vaccinate or test” mandates, it is not clear how many workplaces within provincial jurisdiction have changed or removed their COVID-19 policies. Nonetheless, old disputes over these policies linger and new ones arise where policies remain in place, whether in the provincial or federal sector. The shifting medical and legal landscape during the pandemic has meant that nobody has been able to “rest easy” on either side of the labour relations table. Unions, and the majority of union members, have generally supported COVID-19 policies, but unions have still challenged consequences levied against employees who refused vaccination or testing, whether that be unpaid leave, discipline, or termination. But unions’ avenues to challenge employer COVID-19 policies shrank as the pandemic progressed and more arbitral decisions were decided and reported. COVID-19 testing regimes, whether on their own or as part of a “vaccinate or test” policy, were almost certain to be upheld, as was placing employees on unpaid leave if they refused to be tested.1 “Mandatory vaccination” policies without a testing option were perhaps more vulnerable to challenge2, but more recent cases have upheld them3, though discipline or termination rendered has in some cases been successfully challenged4. (For employees under “vaccinate or test” policies, dismissal after being

10 BARNOTES

Where testing was or is required, who should pay for the testing kits, and should employees be paid for their testing time? One arbitrator determined that the employer was required to provide the testing kits, but not to pay workers for their testing time.8 Another issue relates to unpaid leave. How long can an employee remain on unpaid leave due to not getting vaccinated before the employer has the option of dismissing them?9 Unions have, of course, at times found themselves at odds with union members who have objected, often vociferously, to getting vaccinated or getting tested. Inevitably, duty of fair representation complaints will be brought. Unions can take some comfort in the fact that DFR complaints in the age of COVID-19 seem to have the same low rate of success as before and are often summarily dismissed.10 Nonetheless, unions cannot be complacent, and a union’s lack of communication with a grievor in at least one case has led to the matter being allowed to proceed to a hearing on the merits.11

In short, the pandemic continues - legally and otherwise - in many workplaces. For recent decisions, see e.g. E.g. Algoma Steel and USW, Local 2724 (22-001), Re, 2022 CarswellOnt 1287 (Ont Arb, Kaplan); CKF Inc an dTC, Local 213 (Covid Testing), Re, 2022 CarswellBC 198 (BC Arb, Saunders). 1

In one case a “mandatory vaccination” policy was declared unreasonable, but that only meant that the employer had to resume its previous “vaccinate or test” policy: Electrical Safety Authority v Power Workers’ Union, 2021 CarswellOnt 18219 (Ont Arb, Stout). 2

E.g. Teamsters Local Union 847 v Maple Leaf Sports and Entertainment, 2022 CanLII 544 (ON LA, Jesin); Power Workers Union and Elexicon Energy Inc (UTELE-P-2), Re, 2022 CarswellOnt 1223 (Ont Arb, Mitchell). 3

Chartwell Housing Reit v HOPEU, Local 2220, 2022 CarswellOnt 1366 (Ont Arb, Misra); BC Hydro and Power Authority and IBEW, Local 238, Re, 2022 CarswellBC 837 (BC Arb, Somjen) (employer’s goals already met by placing employees on unpaid leave).

5 See e.g. Chartwell Housing Reit, ibid, where the arbitrator noted that the dismissals were unwarranted under a mandatory vaccination policy, but opined the result may have been different if a testing option existed. See also Ontario Power Generation v Power Workers Union 2021 CarswellOnt 18200 (Ont Arb, Murray).

E.g. Participating Nursing Homes v Ontario Nurses’ Assn (Covid-19 Sick Pay/Isolation Grievance), [2020] OLAA No 208 (Ont Arb, Stout). 6

UFCW, Local 1400 v P&H Milling Group, [2021] CLAD No 14 (Nat Arb, Pelloc-Binder), rev’d 2021 CarswellSask 715 (QB). 7

Ontario Power Generation v Power Workers Union, ibid. See also Algoma Steel Inc, supra note 1. 8

E.g. see Unifor, Local 973 and Coca-Cola Canada Bottling Ltd (Brampton Vaccination Policy), Re, 2022 CarswellOnt 3349 (Wright) (employer could dismiss employees for non-compliance approximately three weeks after the date of the Award). 9

E.g. Watson and CUPE, Re, 2022 CarswellNat 266 (CIRB).

Wong v CUPE, Local 4948, 2022 CarswellOnt 1423 (Ont LRB).

FEATURE COMMENTARY

COVID-19 VACCINATIONS, PARENT PREFERENCE, AND THE BEST INTERESTS OF THE CHILD BREEANNA L. GEBHART, ASSOCIATE MACKAY & MCLEAN

The rollout of COVID-19 vaccinations for children has resulted in an influx of court decisions across Canada dealing with competing parental views on whether their child should be vaccinated, and what is in the best interest of the child. While the issue of decision making for health care, including vaccinations, is not new in family disputes, the politically charged debate around COVID-19 vaccinations has led to polar opposite views and highly contentious court hearings. Overwhelmingly, the primary argument led in family law disputes against children receiving a COVID-19 vaccination is that the vaccines are experimental and dangerous. The courts, however, have tended to rely on the orders of public health authorities which generally encourage parents to get their children vaccinated against COVID-19 and tout the vaccinations’ safety and efficacy. In , 2021 ONSC 6530 ( ) the Ontario Supreme Court dealt with the issue of 14-year-old triplets and their parents’ competing views on whether they should be vaccinated against COVID-19. In determining that the triplets were entitled to receive a vaccination without their mother’s consent, Mr. Justice Charney stated, with reference to various Canadian public health authorities:

“The responsible government authorities have all concluded that the Covid-19 vaccination is safe and effective for children ages 12-17 to prevent severe illness from Covid-19 and have encouraged eligible children to get vaccinated. These government and public health authorities are in a better position than the courts to consider the health benefits and risks to children of receiving the COVID-19 vaccination. Absent compelling evidence to the contrary, it is in the best interest of an eligible child to be vaccinated.”

Prior to children under the age of 12-years old being deemed eligible to be vaccinated against COVID-19, the issue of vaccinations generally was addressed by the British Columbia Supreme Court in , 2021 BCSC 2435. Mr. Justice Weatherill, with reference to a 4.5-year-old child who had received no vaccinations, recognized the principal set out in , stating: “The responsible governments and public health authorities have all concluded that vaccinations of children are safe and effective. These authorities are in a better position than the Court to consider health benefits and risks associated with vaccination of children. In my view, absent compelling evidence to the contrary, the general proposition is that it is in the best interests of children to receive vaccinations as recommended by the public health system.” Justice Weatherill concluded that it was in the child’s best interests to receive the usual vaccinations as recommended by the public health system, including a vaccination

against COVID-19 available.

when

made

The courts in British Columbia have tended to closely follow this precedent. In , 2022 BCPC 16, Mr. Justice Burnett stated the following with respect to children receiving COVID-19 vaccinations: “Case law has determined that because the responsible government authorities have all concluded that the COVID-19 vaccination is safe and effective for children, the vaccination is deemed to be in the best interest of the child unless there is compelling evidence to the contrary.” To date, the only reported Saskatchewan decision addressing this issue was decided by Mr. Justice Megaw of the Court of Queen’s Bench in 2021 SKQB 243 ( ). , the father of a 12-year-old In girl sought an order allowing him to get his daughter vaccinated against COVID-19 without the consent of the mother, who was opposed. The father wanted his daughter to receive the vaccination due to his concerns regarding the dangers of the COVID-19 virus, while the mother was opposed based on the daughter’s desire not to have the vaccination, the daughter’s diagnosis of vaccine toxicity, and the mother’s general opposition to vaccinations and concerns about the accuracy of COVID-19 information. In making his decision Justice Megaw took judicial notice of the fact that COVID-19 vaccines are safe and effective for use in people, including both adults and children, as shown by the vaccine

SPRING 2022 11

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FEATURE COMMENTARY

approval process undertaken by Canada and by the relevant health authority. In addressing the mother’s position, Justice Megaw rejected the mother’s assertion that COVID-19 vaccinations are experimental: “To argue [the vaccination] is experimental as is put forth by the mother and her supporting affidavits is not in accordance with the general knowledge available regarding [the vaccine] approval process and implementation.” While Justice Megaw did not go so far as to state that government guidelines for vaccinations should be complied with, Justice Megaw made his decision in line with the government guidelines and determined that it was in the best interests of the child to receive a vaccination against COVID-19 without the consent of the mother, and despite the daughter’s desire to not receive one.

Most recently, in , 2022 ONSC 1441, Mr. Justice Jarvis of the Ontario Supreme Court dealt with parents at odds over vaccinating their children against COVID-19. The mother in this case was opposed to vaccinating her daughter due to what she referred to as “the lie”. In addressing the mother’s position Justice Jarvis had strong words for her, stating: “This is not ‘fake science’. It is not ‘fake medicine’. Whether there is a drug company conspiracy callously or negligently promoting unsafe medicine (the “lie”) in collusion with federal and provincial authorities this Court leaves to another day and to those who think Elvis is alive. He isn’t. He left the building decades ago.” Justice Jarvis ultimately determined that it was in the best interests of the child to receive a COVID-19 vaccination in accordance with

government guidelines, despite the mother’s objections: “Parents should rely on government guidance and should have their children vaccinated unless there is a compelling reason not to do so.” Collectively these decisions show that – absent a truly exceptional and compelling reason – the courts will rule in favor of a child being vaccinated in accordance with applicable public health guidelines, and in the best interests of the child. This is true regardless of the wishes of the child or their vaccine-hesitant parent. While those on either side of the vaccination debate remain firmly divided on the efficacy and safety of vaccines, including those against COVID-19, the courts appear more than willing to defer to science, medicine, and government approval processes in finding that being vaccinated is in the best interests of the child.

SPRING 2022 13

FEATURE COMMENTARY

CHALLENGING TIMES FOR FAMILY LAWYERS CHRISTINE LIBNER SCHARFSTEIN GIBBINGS WALEN FISHER LLP

It is no secret that the COVID-19 pandemic has brought with it a myriad of challenges and firsts for the legal community. We have worked our way through court closures and emergency applications, labour and employment disputes, vaccination disputes, novel parenting disputes, and much more. In a couple of short years (or exceptionally long years, depending on your perspective), a largely unprecedented area has become so well-traversed that many of us are, quite frankly, sick of hearing about it. Family law practitioners, in particular, have had to deal with legislative reforms, rule changes, and process changes that have all coincided with these already challenging times. I’m speaking specifically of the changes to and the that came into effect in March of 2021, the significant amendments to Part 15 of The Queen’s Bench Rules that came into effect around the same time, and the addition of mandatory early dispute resolution into family law proceedings that has now taken effect in some judicial centres. In light of both a global pandemic and a rapidly evolving legal landscape, family lawyers have been forced to adjust and re-envision longstanding legal practices. There’s new terminology to learn, new considerations for family violence to

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be mindful of, new procedural rules to ensure compliance with, and tried and true jurisprudence that must now be put into perspective given the underlying legislative changes. On top of it all, we have had to cope with the serious shortcomings associated with meeting and appearing electronically, especially in an area of the law where narratives are so important. Family lawyers have also had to adjust to interacting more frequently with self-represented litigants, who tend to require more court resources and consume more of the opposing lawyer’s time. In family matters especially, courts are increasingly tasked with balancing the enforcement of court rules with access to justice concerns for selfrepresented litigants. This adds yet another layer of complexity for family lawyers who must play by the rules and assist the Court while remaining zealous advocates for their clients. Parenting matters have seemed to occupy more than their fair share of court time since the onset of the pandemic. Parents have had to navigate uncharted territory when it comes to public health concerns and restrictions, so naturally, disputes arise as to what is in the best interest of the child. Generally speaking, Canadian Courts have tended to support vaccination against COVID-19 and adherence to reasonable safety measures as being in the best interests of the child. With the removal of essentially all governmental regulations related to COVID-19 in Saskatchewan as of March of 2022, it remains to be seen whether the judiciary will remain as firm on COVID safety going

forward. Rest assured, however, that the lessening of government regulations will not end the disputes between warring parents but may serve to shift the evidentiary burden from one combatant to the other. This is an exciting and difficult time to be a family law practitioner. It is incumbent on us to not only keep our practices relevant in the COVID era, but to keep ourselves educated on an area of the law that has recently been modernized. I like to think that one of the intrigues of practicing family law is that there is rarely a dull moment. This has been especially true of late, as we continue to cope with a deluge of fresh challenges. While we have had to work a little harder and a little differently to keep up these past couple of years, it has been anything but boring. In many ways, the challenges faced by family law practitioners have mirrored those of the general public. The ramifications of COVID-19 have seemed all-consuming at times, but thankfully, we have seen a reemergence into somewhat normal life in recent months. Concerns relating to COVID-19 have become but one of the many issues that must be dealt with in this changing legal landscape. Let’s hold out hope that one day soon, COVID-19 will be reduced to a distant, unpleasant memory, much like the rule against perpetuities, so that we won’t have to hear about it quite so often.

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SPRING 2022 15

FEATURE COMMENTARY

INDIGENOUS SELF-DETERMINATION IN THE ERA OF COVID-19 STEPHEN MUSSELL HOWE LEGAL

(“UNDRIP”)1, developed through years of dialogue, deliberation, and compromise between States and Indigenous peoples from around the world, was adopted by the General Assembly of the United Nations in September 2007. UNDRIP does not create new rights. Through its preamble and 46 articles, UNDRIP states international human rights norms in the specific context of Indigenous peoples. These international human rights norms have been broadly accepted as the foundation for social justice, equality, dignity, and respect since the adoption of the 2 in the aftermath of the Second World War. The inherent right of selfdetermination, including selfgovernment, is a foundational principle within UNDRIP. Article 3 of UNDRIP confirms that Indigenous peoples have the inherent right to self-determination, and that the inherent right to self-determination encompasses the right for Indigenous peoples to freely determine their political status and to freely pursue their economic, social, and cultural development: “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their

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political status and freely pursue their economic, social, and cultural development.”

This inherent right is further elaborated on in Article 4, which provides that Indigenous peoples, in exercising their inherent right to self-determination, have the right to, , self-government in matters relating to their internal and local affairs: “Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or selfgovernment in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.” Decisions made and actions taken by Indigenous peoples pursuant to their inherent right to selfdetermination, including selfgovernment, frequently conflict with decisions made and actions taken by Crown governments pursuant to their assumed and ostensible sovereignty. The decisions made and actions taken by Indigenous peoples, particularly those relating to land and water defence, have been repeatedly quashed through violent physical and/or western legal means. In the era of COVID-19 Indigenous communities, bands, and Nations have regularly and continually exercised their inherent right to selfdetermination. They have done so to protect the health and safety of their people regardless of the conflicting laws or rules put in place by Crown governments. The unique context brought about by the COVID-19 pandemic has seemingly disarmed Crown governments who have done

little to counter actions taken by First Nations. The resultant space created for the legitimate exercise of Indigenous self-determination is one bright spot in what have been a dark past few years. One example is the Nuxalk First Nation, a small Indigenous community of about 1,300 located in the Bella Coola Valley on the central coast of B.C. In the early months of the pandemic the Nuxalk declared a state of emergency. They established a checkpoint on the only highway into the Bella Coola Valley to restrict the flow of non-essential travel. Days later, the B.C. government declared fishing and hunting to be essential, frustrating the efforts of Nuxalk, and allowing for a relatively free flow of travel through the Bella Coola Valley. Following the death of a ‘Namgis Nation woman on April 24, 2020, and in direct contravention of the B.C. government’s declaration, Nuxalk ordered a lockdown of the Bella Coola Valley. They immediately began turning away visitors and tourists, including those who had intended to fish or hunt.3 Nuxalk’s exercise of selfdetermination despite the existence of a contrary Crown government declaration is just one of dozens of related examples from across what’s now known as Canada, a handful of which I outline below. From coastto-coast-to-coast Indigenous peoples, frustrated with the perceived lack of Crown government interest in safeguarding the health and wellness of their people, have taken matters into their own hands both on- and off-reserve.

FEATURE COMMENTARY

Some actions taken by First Nations include: •

•

In Saskatchewan, the Clearwater Dene Nation erected a security checkpoint on a highway that runs through its land in late May of 2021. The checkpoint was established in response to uranium mining exploration in the area which, the Nation asserted, could contribute to the spread of COVID-19.4 In Manitoba, Pimicikamak Cree Nation established a checkpoint on the only road connecting it to the rest of Manitoba. At the checkpoint motorists were given temperature checks, asked if they'd been tested for COVID-19, and if they had any symptoms. Some who intended to stay in the community and interact with community members were required to spend days inside a school converted into a makeshift isolation centre.5

Nations. This has left little room for Crown governments to dispute the urgency and necessity of Indigenous peoples acting pursuant to their own laws and jurisdiction to safeguard their members.

The ongoing COVID-19 pandemic, while unimaginably destructive and devastating, has created space for the legitimate and largely uncontested exercise of Indigenous self-determination. This space is widening. As capacity and knowledge grow within Indigenous communities, bands, and Nations, so does the awareness that their inherent right to self-determination can and should be exercised whether a global pandemic exists or not. This development should be seen as a welcome one by all Canadians who purport to stand for the upholding and protection of human rights.

UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples: resolution/ adopted by the General Assembly, 2 October 2007, A/RES/61/295. UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III).

https://www.macleans.ca/news/canada/howfirst-nations-are-finding-ways-to-keep-covid-19and-outsiders-at-bay/.

https://www.cbc.ca/news/canada/ saskatchewan/uranium-first-nation-clearwaterriver-dene-nation-1.6047439. 4

5 https://www.cbc.ca/news/canada/manitoba/ northern-manitoba-first-nations-covid-1.5895446.

https://www.cbc.ca/news/canada/sudbury/firstnations-borders-checkpoints-law-1.5557691.

https://globalnews.ca/news/8234102/firstnations-communities-covid/; https://www.cbc. ca/news/canada/newfoundland-labrador/ apocalypse-then-indigenous-covid-1.5997774

In Ontario, at least 18 First Nations in northeastern Ontario controlled access into their communities starting in the spring of 2020. Some, including M’Chigeeng, set up checkpoints on provincial highways and turned certain motorists away.6

The frustration felt by First Nations is nothing new. Crown governments have a long history of sacrificing the health and wellbeing of Indigenous peoples in the supposed interests of the broader (non-Indigenous) population. However, unlike dams, deforestation, and extractive resource activities which often result in health and social impacts that are latent and difficult to prove, the impacts of the COVID-19 pandemic have been apparent and have unquestionably and disproportionately impacted First

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SPRING 2022 17

FROM THE BENCH

COURT ETIQUETTE NEIL ROBERTSON, JUSTICE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN Introduction

While the courts have continued working during the pandemic, many hearings have been conducted by telephone or videoconference. The opportunity for lawyers to learn by watching others at court was reduced. Since judges are responsible for policing observance of court etiquette, a short primer about court etiquette might be timely as lawyers return to more inperson appearances at court. What is Etiquette?

Etiquette is defined as conventional rules of social or official behaviour. They are customs and conventions, usually unwritten. Is it important?

I think so or I would not be writing this article. Court etiquette is part of the heritage and tradition of the legal professions. The courtroom and its etiquette convey a sense of solemnity and add dignity to the proceedings. The formalities we observe in court remind us that we are entrusted with important business affecting others. They convey to others that we recognize this fact and that the court is a serious place for fair resolution of their claims and disputes. How lawyers and judges behave in court set the tone and provide an example and cue for other participants. They serve a practical purpose in curbing disruptive behaviour.

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Aspects of Court Etiquette

In commenting on aspects of court etiquette, I acknowledge that their practice is inconsistent amongst both judges and lawyers. There is room for discussion on whether some aspects are still accepted custom and should be observed. Address the Judge, not each other

As advocates, you are there primarily to persuade the judge or jury, not the other lawyer or party. If you could persuade them, you likely would not be in court. So address the judge, not each other. And if opposing counsel address you, ignore them. Attire

Dress appropriately when appearing in court, usually described as business attire. Lawyers only gown in the superior courts, not in Provincial Court. There is a standard attire: court shirt; tabs; vest; and gown with dark pants or skirt and dark shoes. Lawyers appearing in court attire are supposed to look alike. Individual expression is not in vogue. If not properly attired, the presiding justice may decline to recognize you. The robes worn by Queen’s Counsel are slightly different from standard barrister’s robes. Traditionally, barrister robes were wool and Queens’ Counsel robes were silk, hence the phrase “taking silk.” The Court of Appeal and Court of Queen’s Bench both have written policies on gowning published on sasklawcourts. and ca.: Court of Appeal Both policies allow for modification to the extent necessary to accommodate personal circumstances, such as pregnancy or

disability. If a modification is required, tell the registrar or court clerk before court begins so that they can inform the presiding justice. The rule of thumb is that if the presiding justice is gowned, you should be gowned. In the Court of Appeal, lawyers robe whenever appearing before a panel of justices. Robes are not worn when appearing before a single justice. In the Court of Queen’s Bench, we gown for trials, applications not heard s. 522 in Chambers, judicial interim release applications, and appeals. There is no gowning for Chambers, pre-trial conferences, appeals and bail reviews. It can be confusing, both for lawyers and justices. For example, summary judgment applications are heard in Chambers, so there is no gowning. Don’t hesitate to call the local registrar to ask about whether to gown, especially in the Court of Queen’s Bench. The clerk will check with the justice. Our courthouses have change rooms for lawyers. They are provided so lawyers can change into and out of their court attire. The courtroom is not the change room. I once wrote a paper for a seminar about practice in the Court of Appeal called “Don’t Forget Your Cufflinks”. If you find you have forgotten part of the court attire when you are in the change room just before court, don’t panic. Explain to the clerk, who can tell the judge before court opens. Then apologize to the court and ask to appear. Some of us have been in the same predicament ourselves, so may be inclined to relax the rules. Finally, a word about the different robes

FROM THE BENCH

worn by judges and justices. Justices of the Peace have a green stripe on their robes. For Provincial Court Judges, it is blue. For Court of Queen’s Bench, it is red. For Court of Appeal, the robes are entirely black. And for the Supreme Court of Canada, they have both a black robe similar to the Court of Appeal and an ornate red ceremonial robe with white trim. Bowing

While not all judges do so, I try to remember to bow to the courtroom from the bench at the start of each day. The bow is intended to signify two things. First, to show my respect for everyone in the courtroom, especially the lawyers who I acknowledge as officers of the court there to assist me. Second, to remind myself that while I exercise judicial authority, I do so as a servant of Her Majesty Queen Elizabeth II, who promised in her Coronation Oath on June 2, 1953 to govern the peoples of Canada “according to their … laws and customs” and to “cause law and justice, in mercy, to be executed in all your judgments.” Judges in turn have sworn in the oath of allegiance to loyally serve our Queen, so are bound to honour her promise. What is your role in this tradition? Acknowledge the judge’s bow. Either bow back or at least provide a nod of the head. After I bow, I will usually say “Good morning” or “Good afternoon.” Again, your role is to respond accordingly. It is also appropriate to bow or nod toward the bench when entering or leaving the courtroom while it is in session. That small courtesy shows respect. Civility

While I am addressing aspects in alphabetical order, if I were doing so in order of importance, civility would be

top of the list. I can do no better than to commend to you the publication of The Advocates’ Society, , freely available on their website at “advocates. ca.” Our system is adversarial. But it should not be uncivil. As lawyers representing clients in a dispute, you may be adversaries, but you should not be antagonistic. You are opponents, champions for your cause, not personal enemies. Civility keeps conflict from getting out of hand. Lawyers should try to reduce, not foster, conflict. Most disputes between parties arise from some form of relationship. After the dispute is resolved, the parties may wish or be compelled by necessity to resume some form of relationship. If so, your clients will be better served by their lawyers having treated each other and the other side with respect rather than derision. Finally, civility is not just a question of good manners. It is an ethical duty, as set out in the of The Law Society of Saskatchewan at 5.1-1 “When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law, while treating the tribunal with candour, fairness, courtesy and respect.” and 5.1-5 “A lawyer must be courteous and civil and act in good faith to the tribunal and all persons with whom the lawyer has dealings.” Judges understand that tempers can fray and may forgive occasional lapses, within reason. But if you cannot control your temper in court, then you should not appear in court. The registrars and sheriffs and their deputies are court officials. Treat them as such, including promptly returning phone calls and emails. Judges arer offended when they hear about rudeness to court officials, who are less able to defend themselves. And when it occurs, judges do find out.

Documents

You may approach the witness box to show a witness a document, but don’t linger there and ask questions. Ensure everyone has a copy of the document (judge, opposing counsel and witness) before asking questions about it. Otherwise, we have no idea what you and the witness are talking about. It is not only inconsiderate, but also ineffective, to question ta witness about a document which no one else can see. If the record is identified by the witness or is to be entered by consent, then ask to have it entered for identification or as an exhibit by giving the original to the clerk to have it properly marked and retained for the court file. Electronic Devices

Turn off your cellphone. Your attention should be focused exclusively on the court proceeding. What would you think if I browsed through my electronic device while you were presenting your case? If you are using your electronic device to look at an electronic version of your file or to check a statute or caselaw, then explain that to the judge in asking permission to use the device. Forms of Address

There are forms of address for lawyers, judges and justices. (While in this article I sometimes use the word “judge” in a generic sense for both judges and justices, there is a difference.) Address opposing counsel by name (Mr., Ms. or Mx.) or as “My friend.” Queen’s Counsel are addressed as “My learned friend.” Justices of the Peace are addressed as “Justice” or “Your Worship.” Provincial Court Judges are addressed as “Judge” or “Your Honour.” Justices of the Court of Queen’s Bench and Court of Appeal are addressed as “Justice” or “Your Lordship” or “Your

SPRING 2022 19

FROM THE BENCH

Ladyship” or by “My Lord” or “My Lady.” Justices of the Supreme Court of Canada prefer to be addressed by “Justice” or “Mr. Justice” or “Madam Justice.” The Chief Judge or Chief Justices may be addressed by that title. Lawyers sometimes use the incorrect appellation in addressing the judge or justice and then apologize. While the apology is appreciated, I understand that it can be difficult to keep the different titles straight, especially when engaged in argument. I doubt any judge or justice takes offence. If unsure, you can always default to the neutral “the Court” or “Sir”, “Madam” or “Ma’am.” Finally, a word about addressing other participants, especially witnesses. Some lawyers ask to call witnesses by their first name. If they agree, perhaps there is no reason to object. But I never did as a lawyer. It seemed to me overly familiar, since the witness would not be expected to reciprocate by calling me by my first name. (I do realize that in some cases it may be a tactic to assert authority over the witness or get them to relax.) I called witnesses “Mr. Smith” or “Ms. Jones” or used “Sir” or “Ma’am.” I did that to show respect. (Now I would remind myself to be sensitive to other chosen personal pronouns, such as Mx., as set out in our Court’s published on the sasklawcourts.ca website) Punctuality

Be on time for court and be prepared to start at the scheduled hour. There will be times when participants, including the judge, are unavoidably late. If that happens, try to let the court know that you are delayed and then apologize when you show up. But don’t make it a habit. Judges understand that lawyers sometimes need additional time before

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court begins. Things come up that may require a delay, for example to talk with the other lawyer about last minute settlement proposals or with arriving witnesses. But if you need additional time, tell the clerk who can inform the judge. Personally, I prefer to start on time and then recess to allow those discussions to take place. What annoys me is to be waiting outside the courtroom looking in while the lawyers mill about with no apparent concern for the start time. If you are driving to court out of town and driving conditions are bad, then slow down and take your time. Pull over and phone the courthouse to say you are delayed. Court can wait. Judges drive the same roads, so should understand. And if not, better a chastisement from the bench than injury or death. Refreshments in the courtroom

No, it is not a picnic. The court provides water only. If you need to eat, for example because of a diabetic condition, explain that to the court and ask for breaks when you need them. But if you are medically unable to fulfill your professional responsibility, you should not take on the case or, having done so, should withdraw in favour of a lawyer who can. Showing respect for opposing counsel

At the end of the hearing, it is customary to shake hands with opposing counsel. While this custom has been suspended during the pandemic, to avoid transmission by close contact, other gestures of mutual respect might be considered. For example, one judge observed counsel instead turn and bow to each other at the end of the case. After a hard fought contest, you may not feel much like doing so. But it is the right thing to do. You will not regret it. And when reserved decision comes out and your side is unsuccessful, you will probably feel deflated. But try to pick up the phone and call to congratulate

the successful counsel. Your adversary today may be your partner tomorrow. Speaking

All proceedings are recorded, although recordings of Chambers hearings are for the use of the court only. Regardless, watch what you say when near a “hot mike.” Speak from the podium, if provided, or, if not, from your table. Don’t go walkabout. Apart from the distraction, the microphones may not pick up nor record what you say. Don’t interrupt opposing counsel. If you need to speak with them during proceedings, ask for a break to do so. When making an objection, stand and wait to be recognized. If you have the floor, stop speaking and sit down if the opposing counsel stands. Generally, each side gets one chance to speak. In some cases, the first speaker may get a further reply. But that is it. It is not a back and forth. Stop speaking if the judge speaks. Yes, the judge may interrupt you. Do not speak indiscreetly in the courthouse, especially in the courtroom before or after court sits. The walls have ears. Standing

Stand whenever the judge or jury enter or leave the courtroom. Remain standing until the clerk says to sit or court is adjourned. Stand when speaking, including when replying to the court or making an objection. If you cannot stand for any reason, again just tell the clerk before court or presiding judge at the start of proceedings. Judges do not wish to inflict more suffering than necessary on lawyers. When you have the floor and the other lawyer stands, it is a signal to yield the

FROM THE BENCH

floor so they can speak. Do so. Do not speak over one another. Take turns. Play nice. Thanking the judge for rulings

It is customary to thank the judge for rulings made in court, especially if you are the lawyer whose argument did not prevail. Judges are called on to regularly make decisions which displease at least one and sometimes both parties. We understand you may be disappointed. We have been in your position when practicing as lawyers. Your thanks need not be effusive. But it is a courtesy that is appreciated. What you should not do is show your displeasure by an exasperated sigh, grimacing, rolling your eyes or

grumbling. When we see that, we may wonder whether it is genuine or done for the benefit of the client. In either case, it diminishes the lawyer in the court’s eyes. Trial judges must make quick decisions on procedural rulings, some of which will be wrong. Do not tell the judge they are wrong. As I replied to one lawyer, “Maybe so, but that is my ruling.” And do not continue to argue or try to negotiate after the ruling. You may ask for clarification if there is some point that is unclear or was not addressed, but otherwise move on. Where to sit?

As a young lawyer, I well recall being

told by the then Registrar of the Court of Appeal, Fred Newis, that I was sitting on the wrong side of the courtroom. But if there is a convention or etiquette about who sits where, I have not been able to find it. The only rule that I am aware of is that the defence lawyer sits nearest to the prisoner’s box, so they can communicate with their client. If anyone knows of a reliable source for such a convention, please let me know. Finally

While you might question some forms of court etiquette, it is part of the heritage of our professions and worth knowing. It can be a lot to remember, especially for newer lawyers. It gets easier with practice and experience.

COMMENTARY

DO WE NEED WELLBEING & AUTHENTICITY TO BE INCLUSIVE & DIVERSE? LESSONS FROM KWAYESKASTASOWIN After teaching Kwayeskastasowin this winter, I could see that the B.A., J.D & L.L.M. “culture” detrimental to wellbeing CANDIDATE is alive within colonial attitudes, practices, and beliefs. Law in Canada, the US and AU was inherited through colonialism. Colonialism is not a historical event, but an inherited Numerous studies undertaken in cultural structure that has been Canada, the United States (US), embedded into institutions, laws, Australia (AU) and the United politics, and people. Colonial culture Kingdom (UK) demonstrate that the has been translated into legal culture rates of addiction and psychological as power, prestige, status, and money. distress among law students and lawyers are at epidemic levels. It is not a coincidence that wellbeing Psychological distress begins in law among the legal profession declines as school and bleeds into professional inequality continues. The “ostracizer” life, inevitably leading to devastating and the ostracized are harmed. consequences for the individual, the Central to wellbeing and inclusion profession and society. Causation, is social connection and belonging. though controversial, has primarily Connection, belonging and diversity been attributed to a “culture” are established through authenticity. consisting of attitudes, practices, and Brené Brown has said that “our beliefs embodied within law schools connection with other people is only as deep as our connection with and the legal profession. ourselves.” Authenticity occurs TONI REMPEL

when a person can express their true self, make independent choices, and take responsibility for them. As such, authenticity is also central to integrity, the cornerstone of the Professional Code of Conduct. As Professor Krieger has contended, “depression and unprofessional behavior among law students and lawyers typically proceed from a loss of integrity- a disconnection from intrinsic values and motivations, personal and cultural beliefs, conscience, or other defining parts of their personality and humanity.” Wellbeing and authentic professional identity are fundamental to diversity and integrity within the legal profession. What I have learnt this year, is that as a legal community, we must move towards a culture of wellbeing and authenticity to be inclusive of diversity, not only for the wellbeing of others but for our own wellbeing.

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COMMENTARY

NO REASON TO BE SMUG It should be remembered that our recognition of the rights of LGBTQ+ UNIVERSITY OF persons is a fairly recent development. SASKATCHEWAN Until 1969, when Prime Minister Pierre Trudeau famously declared that “the state has no business in the bedrooms of the nation,” sexual The Texas legislature recently passed activity between people of the same a bill – referred to in the media as the sex was a criminal offence. Section “Don’t Say Gay” bill – that is meant 15 of the Charter, which came into to prevent teachers from discussing effect in 1985, did not include sexual sexual orientation or gender identity orientation as one of the grounds in an “inappropriate” way. Although on which a claim could be made the rationale for this legislation for equality, though the Supreme is couched in terms of the rights Court eventually decided that sexual of parents, critics argue that it is orientation should be regarded as meant to stigmatize and discriminate an “analogous ground” to the listed against gay and transgender children. grounds. The courts gradually Meanwhile, over in Florida, the recognized that committed sameGovernor is urging child protection sex relationships should be accorded authorities to launch child abuse some legal status, but it was not until investigations against parents who 2005 that same-sex marriage was put support gender-affirming treatment on the same footing as a civil marriage between a man and a woman. for their children. BETH BILSON, Q.C.

On this side of the border, we can take some satisfaction from the fact that Canadian jurisdictions have gradually recognized an expanded range of rights for gay and transgender people, and that these gains seem secure. Canada is sometimes characterized as having one of the most extensive regimes in the world for the recognition and protection of the rights of its LGBTQ+ citizens. Before we get too self-congratulatory about the liberality of our laws and our practices, however, we should acknowledge that the protections we all enjoy of our constitutional rights are always fragile, and that we need to keep refreshing our understanding of and commitment to them.

The legal system is gradually working its way through the ramifications of the recognition of these rights to protection under the Charter and under human rights legislation. These include the consequences of divorce for same-sex partners, the entitlement of same-sex spouses to workplace benefits, reproductive issues, the significance of faith-based protocols in educational institutions, and the assessment of the perils faced by LGBTQ+ refugee claimants in their home countries. In recent years, a number of provinces and municipalities, including Regina and Saskatoon, have banned gender conversion therapy designed to assist transgender young people to reclaim the gender they were assigned at birth; this therapy has now been

banned by Parliament across the country. Like other equality-seeking groups, LGBTQ+ citizens have been able to see the development of a more elaborated and detailed legal framework for their rights, and every new addition has made the structure more secure and stable. On the other hand, members of the LGBTQ+ community continue to struggle for full recognition of their equality rights. Not only does overt violence against gay and transgender people continue at a disturbing level, but there are many more indirect and subtle challenges to full equality. When our institutions, including law firms, plead that renovating washrooms to be gender neutral is not worth the cost; when we brush off a discussion of pronoun preferences as too trivial to bother with; when we joke about the changed voice or appearance of someone undergoing the difficult process of gender reassignment; when we decide our conference agenda or our law school curriculum does not have “room” for a session or a course focusing on LGBTQ+ rights; or when we engage in stereotyping about “the gay lifestyle,” we are undermining the ability of our LGBTQ+ colleagues, classmates and neighbours to live comfortably and equally in our society. As with discussion of how equality rights for any group should be advanced, the hardest part is not at the level of articulating grand constitutional or legal principles, important though those are. The hard part is giving earnest and continuing consideration to what will make

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COMMENTARY

members of the LGBTQ+ community feel valued and supported where they work, where they study and where they live. When they have to pay as little attention as the rest of us to going to the washroom, signifying how they wish to be addressed or taking their children to school, then we might be getting somewhere. Continued from page 7

Patel, Deep. “5 Differences Between Marketing to Millennials vs. Gen Z”, (27 November 2017), online: Forbes <https://www.forbes. com/sites/deeppatel/2017/11/27/5d%E2%80%8Bifferences%E2%80%8Bbetween-%E2%80%8Bmarketing%E2%80%8Bto%E2%80%8Bm%E2%80%8Billennialsv%E2%80%8Bs%E2%80%8B-%E2%80%8Bgenz/?sh=1407b2112c9f>

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Parker, Kim & Ruth Igielnik. “On the cusp of adulthood and facing an uncertain future: What we know about gen Z so far”, (1 April 2022), online: Pew Research Center's Social & Demographic Trends Project <https://www.pewresearch. org/social-trends/2020/05/14/on-the-cuspof-adulthood-and-facing-an-uncertain-futurewhat-we-know-about-gen-z-so-far-2/>

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PRO BONO

WITNESS TO HOUSING, EVICTIONS AND HOMELESSNESS DAVIDA BENTHAM

STAFF LAWYER AND OUTREACH DIRECTOR, PRO BONO LAW SASKATCHEWAN

We are seeing increasing numbers of people facing eviction, commonly due to an inability to pay rent. Although this issue is not new, it is increasing; possibly exacerbated by economic consequences of the pandemic, changes to the social assistance program and the rising cost of living. This article will explore the impact government programming and the justice system has on low-income people’s experience with housing, eviction and homelessness. Changes to Social Services

In the fall of 2021, The Ministry of Social Services made substantial changes to the Saskatchewan Income Support (SIS) program. SIS is available to people who otherwise have no income. The changes removed direct payment to landlords and utility providers, which historically ensured that housing costs did not fall into arrears and result in eviction. Months after these changes took place, a survey by the Saskatchewan Landlord Association found that more than 30% of SIS clients – about 4000 people – did not pay rent in

September or October of 2021.

As a result of extensive community and stakeholder criticism, the Ministry responded that November by reinstating direct payment for clients of high needs with complex challenges who are at a risk of homelessness. On March 1, 2022, the Ministry stated more than 150 clients were benefiting from direct payments. Criticism remains that many clients who need to be put back on direct payments are not and that, due to these changes, many people are slipping through the cracks and becoming homeless. Low-income advocates believe the shift away from direct payment is because the SIS amount allotted for housing, falls drastically short of what is actually required. For example, in Saskatoon and Regina a single adult on SIS receives $575/ month for shelter and utilities and $285/month for food and other expenses. Rentals.ca’s March 2022 Rent Report finds that the average cost of a one-bedroom unit is $966 and $963 in Regina and Saskatoon respectively. Office of Residential Tenancies

The provincial tribunal for settling disputes between landlords and tenants is The Office of Residential Tenancies (ORT). Sarah Buhler, faculty at the University of Saskatchewan College of Law, read all the ORT eviction decisions for 2020 to understand patterns and themes and the impacts experienced by tenants. The research was timely, as it covered the partial mortarium on evictions that was in place for the first 131 days of the pandemic.

Some key findings of her research are as follows. Of eviction hearings that occurred before the pandemic (January 1 to March 11, 2020), the landlord received an eviction order in 97% of them, and during the pandemic this number fell to 90%. Of those eviction orders, 87% and 80% respectively were immediate eviction orders. Tenants have rather low participation in the hearings. About 37% of tenants did not attend their eviction hearing and fewer then two dozen tenants had legal representation. Ms Buhler finds that, For many tenants, the “choice” not to appear at an eviction hearing is made within a context of deep structural inequalities where factors including histories of trauma experienced at the hands of institutions, including justice institutions, are ever present. Further, it must be considered whether many tenants know all too well what is likely to happen at an eviction hearing at the ORT: their chances of averting an eviction, regardless of their circumstances or the evidence they present, are very, very small. Indeed, this research found that tenant appearance at hearings had no meaningful impact on outcomes.1

The ORT has moved to an e-filing system, which PBLS believes will be an added barrier to the clients we serve - many of which are not computer literate nor have access to the necessary resources to file or respond to e-filed claims. Additionally challenging, if a tenant wishes to appeal an ORT eviction decision that is based on rent

SPRING 2022 25

PRO BONO

arrears, they must place one months’ rent with the Queen’s Bench. A sum virtually never available to an individual who finds themselves facing eviction. Homelessness

On behalf of PBLS I attended the City of Regina Housing Summit. At the submit, results of Regina’s third Point-in-Time (PiT) count of homelessness were reported. A PiT count provides an estimate of homelessness in a community at one specified time. The 2021 PiT count revealed a 71% increase in homelessness from the 2018 count.

Prince Albert’s 2021 count had a 25% increase over their 2018 count. We have evidence that homelessness is increasing and with Canada’s inflation rate hitting a three-decade high, it is difficult to believe that without any substantial intervention numbers will decrease. PBLS assists clients on residential tenancy matters at both our free legal clinics and through our Residential Tenancy Panel. If you would like to sign-up as a PBLS volunteer or if you don’t have time, donate, please visit pblsask.ca.

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26 BARNOTES

Buhler, Sarah. "Pandemic Evictions: An Analysis of the 2020 Eviction Decisions of Saskatchewan’s Office of Residential Tenancies." Journal of Law and Social Policy 35. (2021) at page 81 – 82. https://digitalcommons.osgoode.yorku.ca/jlsp/ vol35/iss1/4

CALENDAR OF EVENTS

VISIT WWW.CBASASK.ORG

Jun 16

CBASK Annual Meeting | Saskatoon Club | 3pm | In-person & Virtual Registration Open

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Oct

Law Firm Showcase

Dec 7

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Jan 26-27, 2023

2023 Mid-Winter Meeting | Delta Bessborough, Saskstoon | In-Person

CBA Saskatchewan Section Year | Sep 2022 to Jun 2023 FALL 2023: Section Meetings will remain virtual and be delivered via Zoom as part of your Membership. There are no additional fees to attend. Register for Sections at cbasask.org to ensure you get notices of upcoming section meetings and then register for the specific meetings you want to attend. This is all part of your CBA membership and there is no extra cost to attend an online Section Meeting. Also visit cbapd.org and learn about great webinars relevant to your areas of practice accessible as part of your CBA membership.

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