BarTalk October 2020 | Human Sexuality & the Law by The Canadian Bar Association, BC Branch

October 2020 | bartalkonline.org

HUMAN SEXUALITY & THE LAW

POLYAMOROUS RELATIONSHIPS | LIMITING TRANSPHOBIC SPEECH

OCTOBER 2020

VOLUME 32 / NUMBER 5

Contents

Departments

3 FROM THE PRESIDENT Civility in the Time of COVID-19 by Jennifer J.L. Brun 5

EXECUTIVE DIRECTOR Culture Change by Kerry L. Simmons, QC

10 INDIGENOUS MATTERS White Buffalo Calf Woman Teachings by Troy Hunter 11

70K Legal Battle Leads to Finding that the MCFD Made Unauthorized Orders on a Parent by Frances Rosner

22 NOTHING OFFICIAL Freedumb Fighters by Tony Wilson, QC 28 PRACTICE TALK

The Loss of Women in the Legal Profession by David J. Bilinsky

Inside This Issue Inside this issue, you will read about the White Buffalo Calf Woman, whose ancient teachings emphasized, among other things, gender equality. You will find discussions of law applicable to sex workers, developing a tort of “revenge porn,” precedent for protection of transpersons (including against deadnaming and misgendering), holes in our legal system surrounding LGBTQ2SI+ relationships and reproduction, proposed law banning conversion therapy, calls for a national pharmacare system enabling access to contraceptives and abortion medication, and consent and capacity in long-term care.

— Brandon D. Hastings Chair, BarTalk Editorial Board

29 DAVE’S TECH TIPS

News

Features

12 From China to Canada by Qian Liu

4 Trans Competent Lawyering PD 9 2020-2021 CBABC Board of Directors 15 SOGIC Section Update Update Your Sections 21 CBABC Advocacy Update 24 #MeToo 26 Adapting to the Times Anti-Racism as Part of CPD 27 Tips from Courthouse Libraries BC CLEBC Update

13 Polyamorous Relationships by Catherine J. Wong and Elizabeth Cameron

16 17 23 31

SECTION UPDATE PROFESSIONAL DEVELOPMENT LAW FOUNDATION OF BRITISH COLUMBIA BAR MOVES

Post-Bedford by Carrie Robinson

Combatting “Revenge Porn” by Meg Gaily

Limiting Transphobic Speech by Jadine Lannon

14 Pregnant with Questions by barbara findlay, QC 18 Consent to Sexual Activity in Long-Term Care by Sara Pon and Krista James 19 Reproductive Rights by Jessica Derynck and Adam Picotte 20 Protecting Against Conversion Therapy in Canada by Dustin Klaudt 2 BARTALK / OCTOBER 2020

Also in This Issue

FROM THE PRESIDENT JENNIFER J.L. BRUN

Civility in the Time of COVID-19

o one is untouched by the current global pandemic but as lawyers, we must rise above it. In swearing the Barristers’ and Solicitors’ Oath, we each agreed to conduct ourselves truly and with integrity, and to uphold the rule of law and the rights and freedoms of all persons. Our Canons of Legal Ethics instruct us that, “[a] lawyer is a minister of justice, an officer of the courts, a client’s advocate and a member of an ancient, honourable and learned profession.” It is a lawyer’s duty to be candid and courteous in relations with other lawyers, and to demonstrate personal integrity. We must have the ability to disagree without being disagreeable, as we forcefully advocate our client’s position. While we are duty bound to act professionally, conducting oneself in a civil and professional manner is more than just the right thing to do. As a lawyer, your personal reputation is arguably your most valuable asset. William Shakespeare had it right when he commended lawyers for remaining true to their clients, themselves and their profession, observing in The Taming of the Shrew: “And do as adversaries do in law, Strive mightily, but eat and drink as friends.” The Honourable Madam Justice Rosalie Abella stated in her influential 1999 speech entitled, Professionalism Revisited: “… there are three basic values which merge in a good lawyer: a commitment to competence, which is about

skills; a commitment to ethics, which is about decency; and a commitment to professionalism, which transfuses the public interest into the two other values.” She continued that while there was a crisis of neither competence nor of ethics — most lawyers having both in laudable abundance — the same could not be said of the spirit of professionalism. Justice Abella posited that one explanation for this is that we have moved from a “... society governed by the rule of law to being a society governed by the law of rules.” We have become preoccupied with process. She discussed that despite profound changes in how we travel, live, govern, and think, we still conduct civil trials almost exactly as we did over a century ago. She questioned, rhetorically: “Any good litigator from 1906 could, with a few hours of coaching, feel perfectly at home in today’s courtrooms. Could a doctor from 1906 feel the same way in an operating room?” Until COVID-19, Justice Abella’s comment respecting our traditional courtrooms continued to stand true. Initially, the uncertainty of the pandemic forced the closure of our courts to all but emergency matters. The insufficiency of our outdated system was painfully apparent. Justice stakeholders responded immediately with innovation and experimentation, regularly increasing

court operations as audio and videoconferencing capabilities expanded. As a result, we have realized durable changes that will increase the efficiency of our system and facilitate greater access to justice. But this is only the beginning. There is much more work to be done to streamline our processes and make justice more affordable. With the evolution of our procedures, however, comes uncertainty and increased anxiety. This, in turn, can lead to short tempers and unprofessional conduct. Darwin’s theory of evolution is, at base, premised upon the principle that certain traits are favoured in an environment over others, resulting in modifications of populations by natural selection over time. In my respectful submission, one trait that will always be favoured in the legal profession is civility. So, when the current, uncertain climate is causing you to feel anxious and your temper flares, as the new CBABC President I urge you to pause and think of the age-old admonition, “act in haste, repent in leisure.” Proceed with the courtesy, respect, and pride worthy of our ancient and honourable profession. You will not regret it.

Jennifer J.L. Brun

president@cbabc.org OCTOBER 2020 / BARTALK 3

BARTALK EDITOR

Deborah Carfrae EDITORIAL BOARD CHAIR

Brandon Hastings

EDITORIAL BOARD MEMBERS

Tonie Beharrell Baljinder Girn Eryn Jackson Greg Palm Lisa Picotte-Li Randy Robinson Crystal Tomusiak Sean Vanderfluit

BARTALK SENIOR EDITOR

Carolyn Lefebvre

STAFF CONTRIBUTORS

Alyssa Brownsmith Michaela David Travis Dudfield Eileen Huster Sanjit Purewal Jo-Anne Stark

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TRANS COMPETENT LAWYERING PD PART 1: AN INTRODUCTION Adrienne Smith discusses the challenges facing transgender and gender non-conforming people, including an overview of appropriate words to use, existing legal protections and practice tips on providing inclusive legal services. Tue, Oct 13 – 12:00pm PT bit.ly/bt1020-pd3

PART 2: KEY LEGAL ISSUES IN BC Expert panelists share information about the TRANSforming Justice project and discuss intersectional challenges facing trans people. They also cover key legal issues and ethical & legal obligations for those working with trans people in British Columbia. Fri, Nov 13, 2020 – 12:00pm PT bit.ly/bt1020-pd5

This publication is intended for information purposes only and the information herein should not be applied to specific fact circumstances without the advice of counsel. The British Columbia Branch of the Canadian Bar Association represents nearly 7,200 BC members and is dedicated to improving and promoting access to justice, reviewing legislation, initiating law reform measures and advancing and improving the administration of justice.

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EXECUTIVE DIRECTOR KERRY L. SIMMONS, QC

Culture Change

A profession free from discrimination

his edition, Human Sexuality & the Law, features a fascinating range of legal issues. I want to thank our many contributors for sharing their knowledge, employed every day for the benefit of their clients, with all readers so that we know the latest and emerging issues, a little bit of history, and who to call when we come across these issues with our own clients or in our workplace. To have this issue devoted to this topic shows how integrated these issues have become in our clients’ lives and in our society as a whole. From privacy law to employment & labour law to immigration law, human sexuality no longer plays a role in just criminal or family law. The legal principles of equality and fairness are applied in many areas, and despite progress in rights and responsibilities in assisted human reproduction, adoption by samesex couples, sex work, workplace law, etc., there remain challenges and discrimination. This is where lawyers can improve the state of the world, our laws, and the culture of the legal profession. And about that culture. You will want to be sure that you and your own organization aren’t inadvertently discriminating against people on the basis of gender or sex. How is that parental leave policy working out? Do you actually apply it, or do you say you have one, only to find a workaround that effectively discriminates against the new parent intending to take a leave? What language do you

use in your advertisements for articling students and new associates, in your annual Christmas speeches, in your choices of firm events? These kinds of stories are recent, not those of years gone by. In 2018, CBA marked the 25th Anniversary of the CBA Report, Touchstones for Change: Equality, Diversity and Accountability. That 1993 landmark report examined the legal profession and gender discrimination and while primarily focused on the experience of women lawyers, also reported on the experiences of the LGBTQ2SI+ community. The recent #MeToo movement highlights that discrimination continues within our profession despite the improved circumstances for many lawyers. Our society has changed, the law has changed, and all lawyers, regardless of their sexual orientation or gender identification, should be able to thrive in their profession, free from discrimination. None of us are beyond making the occasional misstep. Whether it is mis-using a person’s preferred pronouns, or forgetting to consider the time of a meeting given your associate’s childcare responsibilities, mistakes will happen. The key is to keep learning through formal and informal education, and then change your actions. That’s where CBABC comes in. Our Section meetings and professional development webinars this fall have many opportunities to

learn about best practices and new concepts, or refresh your memory about what you learned once, but haven’t recently put into practice. The newer, younger members of the Bar have experienced a far different societal environment from the majority of the Bar. They expect equality and a profession free from discrimination. There isn’t really an alternative. They live in a world where sexuality, its expressions and practices, are comparatively more public. The clients they assist will encounter different legal issues. To mentor those lawyers effectively and meet their expectations, more senior lawyers (and judges) need to be aware of those experiences and the new laws to address them, and improve workplace policies and courtroom practices. To the lawyers and judges who daily make a conscious effort in their practice or in their workplaces, to create a culture free from discrimination, thank you! It is not easy to take that role on in addition to the day-to-day work. It is because of leaders like you that lawyers stay in the profession, and the public sees lawyers as champions of equality.

Kerry L. Simmons, QC

ksimmons@cbabc.org OCTOBER 2020 / BARTALK 5

feature CARRIE ROBINSON

Post-Bedford

Prostitution criminal law reform

ex work in Canada is indirectly prohibited as certain acts linked to prostitution are made illegal in the Criminal Code. The continued criminalization of sex work causes concern among sex workers themselves, their allies and legal advocates. According to Kerry Porth, Sex Work Policy Consultant at Pivot Legal Society in Vancouver, BC, “The consensus in the sex work community is that sex work is technically illegal. Sex workers are only offered specific immunity from being charged with some of the (Criminal Code) provisions but they are still sometimes charged with material benefit, procuring, and advertising.” After years of advocacy, in the 2013 case of Canada (Attorney General) v Bedford, 2013 SCC 72, the Supreme Court of Canada (“SCC”) held that several provisions within the Criminal Code were unjustifiably interfering with constitutionally protected rights of sex workers under section 7 of the Charter of Rights and Freedoms; namely, striking down sections 210, 212(1) (j), and 213(1)(c), and amending s.197(1) of the Criminal Code by removing the word “prostitution.” Within the year, Bill C-36, The Protection of Communities and Exploited Persons Act (“PCEPA”), was passed, in 2014, reforming prostitution laws by amending the Criminal Code. The new legal landscape 6 BARTALK / OCTOBER 2020

continues to focus on directly criminalizing human trafficking, the purchase, solicitation, and procurement of sex, through the Criminal Code, by targeting commercial enterprises (strip clubs, massage parlours, and escort agencies) rather than sex workers directly. The PCEPA’s purposes are articulated in the Act, which “treats prostitution as a form of sexual exploitation that disproportionately impacts on women and girls. Its overall objectives are to... [p]rotect those who sell their own sexual services; [p]rotect communities, and especially children, from the harms caused by prostitution; and, [r]educe the demand for prostitution and its incidence.” In dialogue with Porth in June of 2020, she commented that the new legal landscape has reintroduced the laws struck down in Bedford under new legislation and re-enforces the same harms to sex workers as before 2014. Porth further commented that “[s]ex workers continue to face danger under the new rules because their ability to screen clients is impaired as is their choice to work with others and work in indoor locations to improve their safety.” Until 2013, the SCC precedent was set in the 1990 Prostitution Reference (Reference re ss. 193 and 195.1(c) of

the Criminal Code (Man.), [1990] 1 R.C.S.); in which the court sided with the government’s citing prostitution laws as justifiable violations of sex workers’ Charter rights. It seems the difference, in Bedford, was linked to political and societal evolution; in that, sex workers’ security of the person was more strongly weighed in favour of the sex workers in 2013. Although the law has been reformed in light of Bedford, according to Pivot Legal Society, similar harms are perpetuated in that sex workers are put at risk because they are unable to engage in sex work safely. The PCEPA is perceived to be a push back by the legislatures in response to Bedford. By contrast, sex workers, legal advocates, and allies, are of the opinion that sex work continues to be effectively criminalized today. Legal advocacy on behalf of sex workers has set landmark precedent, through Bedford, to uphold the Charter rights of sex workers. Sex workers rights, however, as balanced by the legislatures, continue to be indirectly prohibited through activities linked with sexual exploitation as articulated in PCEPA. In reflecting on the effect of prostitution criminal legal reform from the 1990s until 2020; the topic remains controversial and complex. The new prostitution rules, post-Bedford, are seen as a set-back among sex workers that discourage their health and safety and reverse the changes they fought for. Carrie Robinson (Staff Lawyer, Pivot Legal Society).

feature MEG GAILY

Combatting “Revenge Porn” Developing the statutory tort of non-consensual disclosure of intimate images

egislation affording speedy and effective relief to persons whose intimate images have been disclosed without their consent is in development in Canada. It is now common for many people to privately exchange intimate images through electronic means. Other people take advantage of technology to surreptitiously record intimate images without the subject’s consent (such as “up-skirting”). The disclosure of a person’s intimate images without their consent can have devastating effects, “ranging from suicides by teenage victims to career-ending consequences when established persons are victimized.”1 The criminal offence of knowingly publishing or distributing an intimate image of a person knowing that the person depicted did not consent to its distribution (or being reckless whether the person consented) was created in 2015.2 The Criminal Code defines an “intimate image” to mean a visual recording of a person (by any means) in which the person is nude, or exposing their genital organs, anal region or breasts, or is engaged in explicit sexual activity, and in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy, and to which the person retains a reasonable expectation of privacy at the time of its distribution. In the past few years, several provinces enacted statutes specifically

aimed at combatting the non-consensual disclosure of intimate images (“NCDII”), creating the statutory tort of NCDII, which does not require proof of damage (the “NCDII Acts”).3 The definition of “intimate image” in the NCDII Acts is the same (or similar to) the Criminal Code definition — including that at the time it was created and subsequently disclosed, the person depicted retains a reasonable expectation of privacy over the image. The remedies available under the NCDII Acts include monetary damages, accounting for any profits made through distribution, and injunctive relief. In 2018, Saskatchewan amended its Privacy Act 4 to include the statutory tort of NCDII and offer the same remedies as the NCDII Acts. One of the most pressing and overriding concerns of a person whose intimate images have been disclosed without their consent is the speedy removal of the images and the prevention of further distribution. This relief may not always be possible quickly in criminal or traditional civil proceedings seeking compensatory damages for the tort. In 2018, law professors Hilary Young and Dr. Emily Laidlaw presented a discussion paper to the Uniform Law Conference of Canada (“ULCC”) proposing harmonized NCDII legislation.5 The justification they offered

is that NCDII torts are not geographically limited — the Internet is worldwide. Eliminating different rules for the same conduct in different jurisdictions would also reduce forum shopping and would be less burdensome for intermediaries — the commercial entity that hosts third party content through an online platform. At the ULCC’s 2020 annual meeting held in August, the working group on NCDII (which includes Professors Young and Laidlaw) presented its report and a draft uniform NCDII Act to the joint session of civil and criminal delegates. The draft uniform NCDII Act shares many similarities with existing NCDII Acts (such as the definition of “intimate image”). Notably, it proposes two separate statutory NCDII torts — a simpler fast-track proceeding primarily for declaratory and injunctive relief, and a more traditional action for compensatory damages. The drafters hope that the adoption of a uniform NCDII Act with its fast-track process tort will provide an effective mechanism for the quick, cheap and effective takedown and de-indexing of those intimate images disclosed without consent, and further deter NCDII. Doe 464533 v. N.D., 2016 ONSC 541 at para. 16; default judgment set aside: 2016 ONSC 4920; leave to appeal refused: 2017 ONSC 127. 2 Criminal Code, R.S.C. 1985, c. C-46, s. 162.1. 3 Intimate Images and Cyber-protection Act, S.N.S. 2017, c. 7; Intimate Images Protection Act, S.N.L. 2018, c. I-22; The Intimate Image Protection Act, C.C.S.M. c. 187; and Protecting Victims of Non-Consensual Distribution of Intimate Images Act, S.A. 2017, c. P-26.9. 4 Privacy Amendment Act, 2018, S.S. 2018, c. 28. 5 2018ulcc0001 ulcc.ca/images/stories/2018_ pdf_en/2018ulcc0001.pdf 1

Meg Gaily is associate counsel with the Research and Opinions group of Lawson Lundell LLP and was recently appointed the CBABC representative to the BC Delegation to the Uniform Law Conference of Canada (Civil Section). OCTOBER 2020 / BARTALK 7

feature JADINE LANNON

Limiting Transphobic Speech

ecently, there have been a number of cases dealing with the intersection of freedom of speech and the rights of transpeople in Canada. Most of these cases have recognized that the constitutional guarantee to freedom of expression must give way to the rights of transpeople to be free of speech that challenges their very existence. These rulings have begun to establish a floor for what the basic right to exist with dignity looks like for transpeople. The most significant case in this trend is the BC Human Rights Tribunal’s (the “Tribunal”) decision in Oger v Whatcott (No 7), 2019 BCHRT 58 (“Oger”). The complainant was a transgender woman who ran in BC’s 2017 provincial election. During her campaign, the respondent, Mr. William Whatcott1, created and disseminated a flyer that referred to the complainant by her dead name2 and described transpeople as an “impossibility.” The complainant filed a human rights complaint against Mr. Whatcott under s.7(1) of BC’s Human Rights Code, RSBC 1996, c 210 (the “Code”), which protects against publications that are hateful and that evince an intention to discriminate. The Tribunal agreed that the flyer violated s.7(1) of the Code. In reaching this decision, the Tribunal held that speech that challenges or denies the existence of transpeople cannot receive any protection under the right to freedom of speech. In particular, the Tribunal found that this speech 8 BARTALK / OCTOBER 2020

cannot constitute political speech, as it is no longer legitimate to debate the existence of transpeople. It also found that the myth that transpeople are impossible dehumanizes transpeople and exposes them to vilification and contempt, and likely constitutes hate speech. Another important case for transrights in Canada, and in particular the rights of transgender children, is the BC Court of Appeal’s decision in A.B. v C.D., 2020 BCCA 11 (“A.B.”). A.B. is the transgender son of C.D. and his exspouse. C.D. was opposed to A.B. accessing gender-affirming medical care, and sought to enjoin A.B. from doing so. As the matter was proceeding, C.D. spoke publicly about the case and refused to refer to A.B. by his preferred name and pronouns. The BC Supreme Court found that C.D.’s behaviour constituted family violence (A.B. v C.D. and E.F., 2019 BCSC 254) and issued a protection order barring C.D. from misnaming and misgendering A.B. and speaking about the case (A.B. v C.D. and E.F., 2019 BCSC 604). In A.B., the Court of Appeal overturned both decisions, but reinstated many of the restrictions on C.D.’s speech via a conduct order. The Court acknowledged that C.D.’s right to freedom of speech was engaged, but held that the limitation was justified as it was in A.B.’s best interests. The Court ordered C.D. to acknowledge A.B.’s gender identity, to refer to A.B. by his chosen name

and pronouns and to refrain from speaking to the media about A.B. and the case. There is another case pending in BC that raises questions regarding how far the legal protection against transphobic speech extends when the speech is political. In 2018, the BC Teachers’ Federation filed a human rights complaint against an elected school trustee in Chilliwack, BC, claiming that a number of public comments he made about the Chilliwack School District’s adoption of policies to promote the inclusion of LGBTQ+ students constituted hate speech. If it proceeds, the Tribunal will have to determine whether elected officials are entitled to engage in transphobic speech by virtue of their position as political office-holders. The decisions in Oger and A.B. recognize the right of transpersons to exist without existential challenge, and have established a foundation for the meaningful legal protection of transpersons in Canada. Hopefully, the scope of this protection will continue to expand as decisionmakers grapple with the line between free speech and transphobia.

Mr. Whatcott and his flyers have previously been the subject of a human rights case in Saskatchewan, which ultimately resulted in the Supreme Court of Canada’s ruling in Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11, in which the Court established the threshold for hate speech under Canadian human rights law. 2 A “dead name” refers to the birth or otherwise former name of a trans or non-binary person. 1

Jadine Lannon is an associate at Allevato Quail & Roy, a boutique firm specializing in union-side labour, employment, and human rights law.

news 2020-21 CBABC BOARD OF DIRECTORS President

First Vice-President

Second Vice-President

CLARE JENNINGS Crown Counsel Victoria

ALEEM BHARMAL, QC Community Legal Assistance Society Vancouver

Finance & Audit Committee Chair

Young Lawyers Officer

JUDITH JANZEN Onyx Law Group Vancouver

BRANDON D. HASTINGS Cassady & Company New Westminster

Equality and Diversity Rep

Aboriginal Lawyers Rep

Director at Large

RANDOLPH ROBINSON Crown Counsel Vanderhoof

BALJINDER KAUR GIRN Public Prosecution Service of Canada Vancouver

Director at Large

JENNIFER J.L. BRUN Harris & Brun Law Corporation Vancouver

SCOTT MORISHITA Rice Harbut Elliott LLP Vancouver

LISA M.G. NEVEN Department of Justice Canada Vancouver

RAMINDER K. HAYRE Diamond & Diamond Lawyers Vancouver

DIANE MAUREEN GRADLEY Vancouver

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OCTOBER 2020 / BARTALK 9

Indigenousmatters TROY HUNTER

White Buffalo Calf Woman Teachings Human sexuality and the law

uman sexuality goes back as far as time immemorial. We can look to our spirituality, traditional knowledge and heritage for our basic understanding of being a twolegged person and what it means from a natural law perspective.

When the cloud dissipated, the woman was still standing there, but the man was just a pile of decomposed bones on the ground and therein lies a very important teaching for all humanity about sexuality. The other scout was told to go back to his community and prepare for her coming.

When we look at wildlife, for example, there are animals out there such as geese that mate for life. Humans are supposed to be like that too. When we choose a partner there is a commitment that we make to each other: a sacred union. Quite often this sacred hoop becomes broken by having multiple sex partners, or being sexually abused or assaulted, which can lead to people self-medicating and even overdosing. The teachings of the White Buffalo Calf Woman (bit.ly/bt1020-im1) were brought to humanity many generations ago amongst the Sioux in the heart of Turtle Island (North America) and from there, her teachings spread like wildfire. The ancient oral history tells of this beautiful young woman that appeared on the great prairies when there were two male scouts out searching for buffalo in a time of scarcity. They saw this woman floating over the prairie coming toward them. One of the scouts had impure thoughts and desired her in a sexual way, while the other scout recognized that she was very sacred. The man that had the sexual thoughts went to that woman and all of a sudden, a cloud came up and surrounded the both of them. 10 BARTALK / OCTOBER 2020

She taught many sacred ways of being, including human sexuality and reminded males that man has a big responsibility to not look at women as sexual objects. She also taught men and women have different roles in society, but both are equal. While men were predominantly hunters, providers of things like protection and food, the women had their roles, which were and still are just as important as that of the man. While the women cooked meals, gave birth, breast-fed the babies and predominantly raised children, their work was equal and just as important in all ways to the men. It is said that White Buffalo Calf Woman spoke to the women and told them, the work of their hands and the love

that grows in their hearts is what keeps the people alive. She said to them, you are from Mother Earth and what you are doing is as great as what warriors do. When she left humanity, she went to the four directions and in each direction, she turned into a buffalo and each of the four colours of humanity, red, yellow, black and white. When she left, she was a white buffalo calf, that represented new life. She reminded us that the children are the future of the people. There has been this unraveling of the sacred hoop, which is now the strife of much of what family law has to deal with today. It seems that when a breakdown in marriage occurs, there are now laws in British Columbia such as the Family Law Act and the Federal Guidelines for Child Support, which are in a way, the codification of parents’ duties toward the family and children. These laws perhaps could be viewed as punishment for breaking the sacred hoop of one’s own family, but it is not, it merely is the fulfilment of one’s obligations or “responsibility” as taught by White Buffalo Calf Woman so many centuries ago. Troy Hunter, Indigenous lawyer and founder of New Columbia Law Corporation (Aboriginal, business, and family law).

FRANCES ROSNER

70K Legal Battle Leads to Finding that the MCFD Made Unauthorized Orders on a Parent When parents become involved with the Ministry of Children and Family Development (“MCFD”) following a child protection report, one of the potential responses is the creation of safety plans between social workers and the family. This less intrusive measure is intended to be conciliatory — it allows families to enter agreements with social workers to address the concerns out-of-court. However, there is a significant power imbalance in the agreement making process. Terms are often unilaterally imposed on parents through the social worker’s subjective lens and parents agree out of fear of more intrusive steps being taken against them. The parent(s) will not have their day in court unless legal proceedings are commenced against them — a step that most want to avoid. So parents, particularly Indigenous parents, frequently sign off on agreements that are overreaching and/or unreasonable. These agreements may have far reaching consequences for the family — with parents having little recourse on any perceived infringement of their right to parent. However, in a groundbreaking case decided by the BC Court of Appeal on July 6, 2020, the father of five children, Adrian Crook, successfully challenged the MCFD’s decision made under s. 16(2)(b.1) of the Child,

Family and Community Service Act (“CFCSA”) requiring that his children under the age of ten be supervised while riding public transit.1 The chambers judge found that the MCFD made a reviewable decision on the basis that it was made clear and non-negotiable that the children must be supervised by a person 12-years-of-age or older while riding the bus. Further, that the father had little option to ignore the MCFD’s directions without significant risks to his position as a parent. The chambers judge nevertheless decided that the supervision requirement on the bus was both reasonable and correct. The Court of Appeal disagreed and found that the decision of the Director’s delegates (MCFD) was unreasonable because it exceeded the Director’s authority and jurisdiction to make such an order under s. 16(2)(b.1) of the CFCSA. In assessing the statutory scheme, the Court emphasized that s. 2(b) of the Guiding Principles states that “... the responsibility for the protection of the children rests primarily with the parents.”2 Further, “... the Director is not authorized to order parents how to care for their children in an assessment of a child’s safety conducted under s. 16(2) (b.1).”3 The Director is entitled to make recommendations and give advice to a family — but those recommendations are not binding. If a parent does not agree, which the parent is entitled to do, then the Director must decide if it will take further steps, including

commencing proceedings under the CFCSA. Mr. Crook went public with his three-year legal dispute that culminated in a significant victory for parents involved with the MCFD. On his blog titled: 5 kids 1 condo, Mr. Crook wrote: “For over 3 years now I’ve lived with the threat, often literally a written or verbal threat from a social worker or Ministry Director, that the MCFD will take ‘more intrusive action’ if I failed to comply with their order.” He further stated that “… in reality parents often have no choice, no advocate, no recourse, no money to fight it, and are cowed into compliance under threat of losing their children.”4 Mr. Crook was able to fight the $70,000 court battle to a large extent through funds generated by a GoFundMe Campaign — Let Responsible Kids Take the Bus! Hopefully, this precedent will bring about systemic change for other families entering out-of-court agreements with the MCFD. Otherwise, Indigenous families, disproportionately impacted by poverty, may not have the funds to challenge the terms of an oppressive and over-reaching agreement imposed on them by the Director. Crook v. British Columbia (Director of Child, Family and Community Service), 2020 BCCA 192. 2 Ibid, at para. 59. 3 Ibid, at para 63. 4 bit.ly/bt1020-fr1 1

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

OCTOBER 2020 / BARTALK 11

feature QIAN LIU

From China to Canada How important is legal recognition of same-sex marriage to Chinese LGBT folks?

n May 2019, Taiwan legalized same-sex marriage, marking it the first jurisdiction in Asia endorsing same-sex marriage and giving hope to other Chinese societies with significant influences of Confucianism such as mainland China. This landmark movement for LGBT rights in Asia serves as an example to rebut the idea that homosexuality is a western concept that has no place in Chinese societies. Following Taiwan’s success, China’s LGBT community recently pushed China’s top legislative body to legalize same-sex marriage in its new Civil Code. Unsurprisingly, same-sex marriage did not make its way into China’s new Civil Code, which will come into effect in January 2021. This news, however, is not devastating for LGBT folks who understand that a change in state law would not necessarily translate into a positive change in their daily lives. While some LGBT activists in China have been fighting for marriage equality for a long time, Chinese LGBT folks have relatively low interest (bit.ly/bt1020-p12-1) in securing marriage rights. For most queer women I met in China, the pressure to enter a heterosexual marriage is the greatest source of stress. Chinese LGBT folks have developed various strategies over the years to cope with a hostile society 12 BARTALK / OCTOBER 2020

that attaches stigmas to unmarried individuals. Some lesbians and gay men marry each other to protect themselves from legal and social discriminations against unmarried individuals and sexual minorities. The lack of interest in marriage equality primarily results from the fact that marriage and kinship are considered to be closely related in Chinese societies. Entering into heterosexual marriage does not indicate an unquestioning embrace of heterosexual marriage per se; instead it reveals queer individuals’ effort to preserve familial and community relationships. This close linkage between kinship and marriage leaves

LGBT folks who are greatly influenced by the cultural expectation to link marriage with kinship. It is highly possible that some of them are caught between the Canadian value of diversity and the Chinese value of “fitting in.” The latter is often further reinforced by the strong desire to fulfill filial piety, a central value of family life and a lynchpin for social orders for many Chinese that requires the younger generation to take care of the older generation physically and emotionally. This identity struggle could lead to devastating consequences for some LGBT folks. Nevertheless, the struggle among these LGBT folks is often “invisible” in Canada, as it appears on the surface that their right to marry is secured because of the acknowledgement of same-sex marriage in the Canadian legal system.

me worrying about Chinese LGBT folks who live in so-called queerfriendly countries such as Canada.

Although I admire the important work done by LGBT activists to advocate for marriage equality in China and elsewhere, this short piece aims to reiterate the fact that legal recognition of same-sex marriage may have different impacts on people with diverse backgrounds. Without more attention to how state law’s acknowledgement of same-sex marriage interacts with other layers of social ordering that are important to the individual involved, marriage equality is a romanticized assumption rather than a fact.

While Canada is celebrating and proud of the legal recognition of same-sex marriage, little attention has been paid to the experience of

Qian Liu received her Ph.D. from UVic Law, where she also taught a course on law and sexuality.

Unsurprisingly, same-sex marriage did not make its way into China’s new Civil Code.

feature CATHERINE J. WONG AND ELIZABETH CAMERON

Polyamorous Relationships Potential issues in family law

uman relationships are diverse. A person can have romantic or intimate relationships with more than one other person at a time. The practice of doing so consensually can be called polyamory. Although the number of people in polyamorous relationships in Canada is unknown, 82.4% of respondents to a 2016 survey agreed or strongly agreed that “The number of people who identify as polyamorous is increasing.”1 WHAT DOES THIS MEAN FOR FAMILY LAW?

The Canadian Civil Marriage Act and Divorce Act are structured around marriage as “the lawful union of two persons to the exclusion of all others.” However, in addition to married spouses, “spouse” under the BC Family Law Act (“FLA”) includes a person who has lived with another person in a marriage-like relationship if they have done so for at least two continuous years or, for some purposes, if they have a child together. There is no requirement in the FLA that a person have only one spouse, but in many ways, such as setting out the right of each spouse on separation to an undivided half interest in family property, it is structured to address the breakdown of twoperson relationships. This raises a number of questions. How should property be divided, or spousal support obligations determined, upon

separation if a person has had more than one spouse at once? Whether or not they are in a romantic or intimate relationship, more than two people may wish to be parents together. As the laws of BC relating to children were not drafted with multi-parent families in mind, and very few issues have been put before the courts for determination, there are several legal challenges these families could face. Some unknown circumstances include: assisted reproduction is used and there is a pre-conception agreement, can a child have more than three legal parents?

It is clear from the basic questions set out above, the law has not contemplated its applicability to polyamorous families. However, this does not mean that multiparent or polyamorous families should simply give up. One option that is recommended is that parties enter into a pre-conception and parenting agreement, which would set out the method of conception, and the intentions and the obligations of the parties with respect to parentage and parenting of the child. If any of the parties in the family wish to opt-out of the parenting arrangements, they could do so as well.

the child is conceived through sexual intercourse, can the parents who are not genetically related to the child be recognized as legal parents?

the event of a relationship breakdown, will all parents be obliged to pay child support? If so, how will child support be calculated? What would be considered a “shared parenting” schedule? How are section 7 expenses to be paid?

the event of the death of a parent, is there an ongoing obligation to support a child that has more than two parents?

It is also recommended that parties seek advice about entering into a cohabitation agreement. If you have a client who plans to enter a marriage-like relationship involving, or have children with, two or more other people, please encourage them to seek the advice of experienced counsel who have worked with multiparent and polyamorous families before. John-Paul E. Boyd, Perceptions of Polyamory in Canada (Calgary, AB: Canadian Research Institute for Law and the Family, 2017) at 74, 128, DOI: <10.11575/PRISM/34544>. 1

Catherine J. Wong and Elizabeth Cameron are family lawyers and executive members of CBABC’s Sexual Orientation and Gender Identity Community Section. OCTOBER 2020 / BARTALK 13

feature BARBARA FINDLAY, QC

Pregnant with Questions

Queer families and assisted human reproduction technologies

orty years ago, if queers had children, the children had been conceived in het relationships. There were custody battles waged over whether the now-queer partner (lesbian, gay, or trans) was a suitable parent: sometimes yes, sometimes no. Then came the lesbian baby boom: children conceived with donated sperm and home inseminations, papered with then-unmandated donor insemination agreements, and postbirth adoption, to ensure that the donor was never a parent. In the early 90s, before the Family Relations Act was amended to include same sex families, unless the nonbio mother was an adoptive parent, courts refused to recognize any rights in her, post-separation, to have contact with her children. And then: assisted human reproduction. The very first human rights case in BC, on the newly-added ground of “sexual orientation,” was a complaint by a lesbian couple against an obstetrician who was, at the time, the only source of commercially-available sperm. He had decided not to inseminate lesbians any longer after he was sued by a lesbian. The moms won. And two lesbian co-moms have been entitled to be registered as parents on their child’s birth certificate since 2001, because of a world-first human rights complaint. The 2004 federal Assisted Human Reproduction Act (“AHRA”) opened 14 BARTALK / OCTOBER 2020

more doors for prospective queer parents. The AHRA represented a typically-Canadian compromise to the ethical question of whether gametes could be bought or sold, or surrogate mothers compensated. The answer was that though it was legal to use “donated” gametes (eggs, sperm, or embryos), and legal to have a surrogate carry a child, it was illegal to pay for the gametes or to pay a fee to a surrogate. The regulations require that if donated gametes were used, they had to be quarantined for six months to ensure that they were free of transmissible conditions. So that has created two streams for queers wanting to carry children: the “official” stream, which involves a fertility clinic and a six-month quarantine of sperm, or the old knowndonor turkey baster method. Non-gestating intended parents can conceive only through clinics, with their own sperm (sometimes mixed sperm from two gay partners) or ova, or donated gametes and a surrogate mother. In BC, the issue of parentage of children conceived through assisted human reproduction technologies (“AHRT”) has largely been settled by the 2013 Family Law Act (“FLA”). The FLA draws a bright line between children conceived through sexual intercourse (whose parents are the two who had sex) and children conceived with AHRT (whose parents are the

“intended parents”). Donors are never parents simply by being donors. Though the FLA contemplates the possibility of more than two parents on a birth certificate, opinions differ about what the maximum number can be. Much of the current case law concerns who is entitled to the use of gametes post-death or post-separation. Because of the consent-based regime of the AHRA, couples are limited in their ability to deal with those issues by contract. Though the current legislative regime, federally and provincially, made it easier for queer couples to have children and be legally recognized as their child’s parents, issues remain, even in BC. Poly families may not be entitled to have all of the adults registered as parents of a child they intend to raise together. Trans folk (especially trans masc gestating parents) report wildly uneven treatment by the health care system, including by fertility clinics. Though BC has a progressive intention-based regime for determining legal parentage, the same is not true in all Canadian or other jurisdictions. Some Indigenous First Nations require a genetic connection to a member of the First Nations. Intending parents using a surrogate abroad have to navigate Canada’s immigration rules in relation to their newborn. From a practitioner’s point of view, AHRT law is a complex, niche area. Talk to an experienced practitioner before you launch in.

barbara findlay, QC has spent her legal career on issues affecting queer communities. She is a founding member of Fertility Law BC, a working group of lawyers practising in this area: fertilitylawbc.ca.

news THE SEXUAL ORIENTATION AND GENDER IDENTITY COMMUNITY SECTION SOGIC UPDATE — by Lisa M.G. Nevens (they/them), SOGIC Co-Chair

The Sexual Orientation and Gender Identity Community (“SOGIC”) Section is an active and growing community of Lesbian, Gay, Bisexual, Trans, Queer, Two-Spirit, and Intersex+ (“LGBTQ2SI+”) and allied lawyers. We invite all members of the CBABC to engage with us in our work, which focuses in three key areas: EDUCATION: We are a leading provider of professional development in LGBTQ2SI+ law, which is critical to improving lawyers’ abilities to understand the legal issues and meet the needs of their clients. Our programming this year will include a three-part webinar series covering LGBTQ2SI+ Law 101, A Focus on Trans Legal Issues, and Emerging Issues in LGBTQ2SI+ Law. We also have several joint meetings in the works that will address issues relevant to discrete practice areas. ADVOCACY: We have several ongoing projects to improve the law, access to justice, and the legal profession for members of LGBTQ2SI+ communities. In addition to training initiatives, these include commenting on law and policy reforms, addressing the overuse and misuse of gendered language throughout the legal system, and advocating for improved identity data collection. COMMUNITY BUILDING: This year, we began to formalise our mentorship connections with the LGBTQ2SI+ student groups at BC’s three law schools. We hope this will assist students through law school and in establishing their careers. We will also continue to host virtual social events and represent lawyers at Pride events wherever possible. In the long term, our goal is to ensure that our profession is welcoming and reflective of BC’s diverse LGBTQ2SI+ communities. We are also always open to new initiatives and collaboration, so please feel free to reach out to our executive with your ideas or concerns. Personally, I look forward to welcoming as many of my CBABC colleagues to our events this year as possible and to meeting new members.

UPDATE YOUR SECTIONS! Sections are the most important tool in the CBA for professional development, networking and advocacy. Review and refresh your enrollment now: cbabc.org/sections/enroll OCTOBER 2020 / BARTALK 15

sectionupdate Keep Current on CBABC Section Meetings Section Meetings Addressing Human Sexuality & the Law Sexual Orientation and Gender Identity Community ("SOGIC") has spearheaded the organization of Section meetings that centre on human sexuality. This year, their four meetings emphasized how the courts have responded to those who do not fall under the binary classification of gender and sex, including transgender people and intersex youth.

uuu Trans Competent Lawyering

uuu Bodily Autonomy

and the Legal Implications of Medically Unnecessary Interventions on Intersex Children: The Next Frontier of Conversion Therapy In February, SOGIC hosted Alesdair Ittelson, the Director of Law & Policy at InterACT: Advocates for Intersex Youth, and discussed his experience working on the following: The first case challenging “conver-

sion therapy” as consumer fraud; The

first public case on behalf of an intersex person subjected to medically unnecessary “genital normalizing” surgery in infancy, and;

Authorizing

the first legislation in US history to name the harms of non-consensual medical interventions on intersex people.

16 BARTALK / OCTOBER 2020

This highly attended webinar held in May featured Adrienne Smith of Adrienne Smith Law and Samuel Singer, Assistant Professor at Thompsons River University, Faculty of Law, who discussed the key legal issues trans people in BC are currently facing. During this meeting, Adrienne and Samuel reviewed case law and public settlements, which covered legal areas ranging from human rights to access to benefits. The meeting also addressed the ethical and legal obligations of legal professionals working with trans people. The speakers provided practical tips for lawyers on working with trans people in BC.

uuu Panel Discussion on A.B. v C.D. SOGIC, in partnership with the Children’s Law Section, organized

a June panel discussion on the recent decision in A.B. v C.D., 2020 BCCA 11. The case centred on whether a trans child, A.B., required consent from his parents, in particular, his father (C.D.) to undergo hormone treatment. The Court of Appeal ultimately ruled in the best interests of the child and the rights of trans youth. The panel included Suzanne Williams of Brown Henderseon Melbye Lawyers, who has more than 25 years of experience as a child’s right advocate; Kay Scorer of Scorer Law Co., who acted as a counsel for claimant A.B., Stephanie L. Hamilton of Guild Yule LLP, who acted as counsel for the intervenor Provincial Health Services Authority; and Dustin W. Klaudt of Robert Fleming Lawyers, who acted as counsel for the intervenor Egale Canada Human Rights Trust.

uuu Making Babies the New-Fashioned Way

This November 2019 meeting, held in partnership with Family Law — Vancouver, hosted Catherine Wong of Saltwater Law, Monique Shebbeare of Monique Shebbeare Law Co., and Zara Suleman of Zara Suleman Law who discussed the legal ramifications of assisted reproduction, defined as a method of conceiving a child other than by sexual intercourse. While the meeting focused on surrogacy and issues that may arise in parenting, the speakers touched upon tips on how to work with LGBTQ2SI+ clients, such as not making assumptions about their gender, pronouns, and their family situations.

professionaldevelopment \ EMAIL: PD@CBABC.ORG

WEBSITE: CBAPD.ORG \

YOUR PROFESSIONAL DEVELOPMENT LINE-UP | FALL 2020 CIVILITY AND THE LEGAL PROFESSION DURING COVID-19

OCTOBER 1, 2020 CBABC President Jennifer Brun and VBA President Andrea Fraser discuss how the meaning of civility in the legal profession has evolved and transformed during COVID.

UTILIZING THE CBABC RECONCILIATION RESPONSE PLAN IN YOUR FIRM

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bit.ly/bt1020-pd1

OCTOBER 8, 2020

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John P. Brown and Karey Brooks discuss what an RRP is, its components, and the how and why for your firm to develop and implement one.

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PART 1: AN INTRODUCTION TO TRANS-COMPETENT LAWYERING OCTOBER 13, 2020 Adrienne Smith provides this introductory overview of appropriate words to use, existing legal protections, and what we as activists can do to make sure our services are as inclusive as possible to transgender, non-binary and gender non-conforming folx.

ETHICS IN PRACTICE & COMMUNITY

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OCTOBER 20, 2020 Jeevyn Dhaliwal, QC and Kamaljit Kaur Lehal examine emerging ethical problems that could impact your practice by discussing ethical scenarios involving real-life examples, case studies and the codes of conduct.

PRINCE GEORGE CONNECTS: VIRTUAL UPDATES AND PRACTICE MANAGEMENT

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bit.ly/bt1020-pd4

NOVEMBER 20, 2020 Experienced practitioners come together to discuss best practices for virtual hearings/mediation, meeting clients virtually, remote accessibility for your practice, ethical dilemmas that may impact your practice, the impacts of Anti-Money Laundering on solicitor-client privilege, and updates from the Cullen Commission.

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bit.ly/bt1020-pd7

YOUR IDEAS ARE ALWAYS WELCOME. Email pd@cbabc.org if you are interested in presenting one of your topics or have ideas you would like to share!

OCTOBER 2020 / BARTALK 17

feature SARA PON AND KRISTA JAMES

Consent to Sexual Activity in Long-Term Care Understanding capacity and dementia

ontrary to public perception, some people stay interested in sexual activity into late life. Physical intimacy can be an important personal connection. Law and policy must respect the sexuality of older people while protecting vulnerable adults from abuse, particularly in longterm care. Consent is critical to all sexual activity. A person must have decisionmaking capacity to engage in sexual activity, and capacity is impacted by dementia, which is prevalent in long-term care. However, dementia does not automatically mean that a person does not have capacity to consent to sex. A long-term care resident who is not able to make legal, financial, or complex health care decisions may still have the capacity to make other everyday decisions. Capacity can fluctuate from day-to-day or even hour-to-hour, and circumstances and communication support can impact an adult’s decision-making capacity. Dementia can cause symptoms and changes related to sexuality, such as increased or decreased interest in sexual activity or disinhibition. People also sometimes forget their current partner and seek out a new partner, or have their behaviours misinterpreted due to changes in how they communicate.1 18 BARTALK / OCTOBER 2020

There is no legislated test for when a person has capacity to consent to sex while in long-term care. A person’s capacity would need to be assessed if there were indicators that they did not have capacity to consent to a sexual interaction. Analysis of this topic by Seniors First BC suggests a person would need to understand the nature and consequences of the activity and have an operating mind which can give consent. In practice, family and staff often focus on trying to prevent sexual activity and intimacy.2 However, another person cannot provide substitute consent for sex on behalf of an older person. If an older adult does not have capacity to consent to sexual activity, and there are concerns that sexual abuse or assault has occurred, there are protection and response measures in BC. The Adult Guardianship Act provides protective measures for adults who are unable to seek support and assistance. Designated agencies can respond to all types of abuse or neglect, including sexual abuse. The Community Care and Assisted Living Act requires long-term care facilities to protect residents from abuse and requires operators to report abuse or neglect. However, the definition of sexual abuse excludes “consenting sexual behaviour between adult persons in

care” (Sch D, s 1) from being a reportable incident. Law and policy must balance respecting the rights of capable and consenting older adults to engage in intimacy while living in long-term care against the need to protect vulnerable adults from exploitation and abuse. If older people have the capacity to consent to sexual activity, their dignity and autonomy must be respected. Sex and intimacy are a natural part of the human experience and can have many benefits. If older people no longer have the capacity to engage in sexual activity, long-term care homes and

concerned family members should find other ways to support the relationships that are meaningful and important to older people. Longterm care should also ensure their policies and practices are inclusive, so that LGBTQ2SI+ seniors feel a sense of belonging and safety.

Alzheimer Society Canada, “Intimacy and sexuality,” online: <alzheimer.ca/en/ Home/Living-with-dementia/Understanding-behaviour/Intimacy-and-sexuality>. 2 Seniors First BC, Legal Issues in Residential Care: An Advocate’s Manual (2014), at 146-157. 1

Sara is a Legal Researcher and Krista is the National Director at the Canadian Centre for Elder Law. @Sara_Pon — @KristaElan

feature JESSICA DERYNCK AND ADAM PICOTTE

Reproductive Rights On tenuous ground

eproductive rights remain tenuous in Canada. We require a national universal pharmacare program to ensure these rights remain robust. Living in Canada and looking to our neighbours to the south, it is easy to think “good thing we aren’t there.” Over the last few decades, state governments have whittled away at the fulsome access gained through Roe v. Wade through regulations and requiring hospital privileges — the sole purpose of which is to stifle ease of access to abortion. Although the rights obtained through R. v. Morgentaler are not on the same precarious ground as Roe v. Wade, we have practical problems that impair many women’s and transgender people’s legal rights to control their own reproductive health. While contraceptives have been legal in Canada since 1969, access is another issue. In the United States, the Patient Protection and Affordable Care Act (bit.ly/bt1020-jdap1) requires employers and insurers to provide coverage for contraceptives at no cost (save for an exception allowed for religious organizations). Employer and insurer provided coverage cannot be federally legislated in Canada. The federal government has some ability to influence benefit plans such as in the case of access to genetic testing results (bit.ly/bt1020-jdap2). However, a federal law prohibiting benefits plans from making an exclusion

is unlikely to be upheld as this is clearly within provincial jurisdiction. If we were going to have laws requiring insurers and employers to provide contraceptives at no cost similar to the requirement in the Affordable Care Act, each would need to be provincial. Currently, there are no provinces that legislate insurance coverage for contraceptives. In Ontario, a pharmacare program covered contraceptives along with other prescription medication for every person up to age 25. However, the current government removed coverage for anyone covered by their parents’ benefit plan. The result is that secure access to contraceptives for teenagers and young adults has been put at risk. While lack of contraceptive coverage is clearly discriminatory on the basis of sex, the BC Human Rights Code contain exceptions allowing health insurance contracts and group employee insurance plans to discriminate. The same exception that allows an insurer to refuse coverage for pre-existing conditions also allows refusal for contraceptives. Similar exceptions are found in other Canadian jurisdictions. It is arguable that this exception itself violates the Charter.1 Access to abortion providers also remains problematic. While most metropolitan areas continue to enjoy ease of access, this is not the state in smaller jurisdictions. Access to surgical abortion is particularly difficult in the maritime provinces.

Similarly, while most provinces cover the cost of abortion by medication, there is no guarantee for this. Saskatchewan does not provide this coverage. These differences in approach illustrate the differential treatment that may be experienced by those living in urban versus rural areas and the difference in access between those with means and those without. Action Canada for Sexual Health & Rights2 advocates for the federal government to withhold cash transfers to provinces and territories that do not provide access to contraceptives and abortion medication. However, the best method that the federal

government has available for ensuring access is to introduce a national universal pharmacare program that includes contraceptive medications and devices, whether they are medically necessary or used for preventing pregnancy. Canada remains the only country with a universal public health care system that does not cover prescription medication. Such a program would have the effect of ensuring coverage and preventing discrimination based upon sex. See Talos v. Grand Erie District School Board, 2018 HRTO 680 2 actioncanadashr.org 1

Jessica is a lawyer at HSABC. Adam practises complex disability law through LT Thomas Advisors. OCTOBER 2020 / BARTALK 19

feature DUSTIN KLAUDT

Protecting Against Conversion Therapy in Canada

anada’s lesbian, gay, bisexual, trans, queer, two-spirit, intersex, and other sexual minority (LGBTQ2SI+) community has progressed recently in their march toward substantive equality. However, opposing forces continue to subvert LGBTQ2SI+ progress, with practices like conversion therapy. A recent United Nations Independent Expert report (bit.ly/bt1020-dk1) defines conversion therapy as “an umbrella term to describe interventions of a wide-ranging nature, all of which are premised on the belief that a person’s sexual orientation and gender identity, including gender expression, can and should be changed or suppressed when they do not fall under what other actors in a given setting and time perceive as the desirable norm.” Examples include individual talk, behavioural, aversion, or group therapies, spiritual prayer, exorcism, and/or medical or drug-induced treatments. There is no credible research that conversion therapy works. However, there is ample research (bit.ly/ bt1020-dk2) of its harmful impacts, including increased anxiety, depression, suicide or suicidal ideation, selfharm, problematic substance use, poor self-esteem, self-hatred, compromised mental health, post-traumatic stress disorder, social isolation and loneliness. A 2019 report (bit.ly/bt1020-dk3) by Dr. Travis Salway estimates that as many as 20,000 sexual minority Canadian men (approximately 4%) were exposed to conversion therapy. Of these men, 30% had attempted suicide. A further US study reported that 50% of conversion therapy survivors were exposed during adolescence. 20 BARTALK / OCTOBER 2020

The recent federal Bill C-8 (bit.ly/ bt1020-dk4), seeks to protect against harmful conversion therapy using criminal law. New Criminal Code prohibitions would target: i) causing a person to undergo conversion therapy against their will (regardless of the victim’s age); ii) causing a minor under 18 to undergo conversion therapy; iii) advertising an offer to provide conversion therapy; and iv) receipt of financial or material benefit from the provision of conversion therapy. If passed, Canada would join Malta and Germany in criminalizing conversion therapy. CBA’s Sexual Orientation and Gender Identity Community (“SOGIC”) and Health Law Sections (amongst many others– a 2018 petition (bit.ly/ bt1020-dk5) to criminalize conversion therapy received 18,000+ signatures) previously submitted (bit.ly/bt1020dk6) that the federal government should “determine whether [criminal sanctions] could be used to ban conversion therapy comprehensively and ban the removal of vulnerable individuals from Canada for the purpose of undergoing conversion therapy.” The bill responds to a growing Canadian campaign (bit.ly/bt1020-dk7) to ban conversion therapy, that has won several recent successes at the provincial and municipal levels. Several provincial governments (Manitoba, Nova Scotia, Ontario, and Prince Edward Island) have legislated bans or restrictions on provincial health care systems conducting or funding conversion therapy. Several municipalities (including Vancouver in 2018) have also banned the business

practice of conversion therapy. A BC private member’s bill, Bill M218 (bit. ly/bt1020-dk8), also sought to ban public financing of conversion therapy and the service provision and consent to provide such therapy to minors, but, did not proceed past first reading. The proposed federal bill is likely to be hotly debated when Parliament resumes following prorogation into fall. If passed into law, the LGBTQ2SI+ community will gain important protections nationally, however, criminal prohibitions alone are unlikely to comprehensively address the harms of conversion therapy. Only minors benefit from a comprehensive criminal ban on conversion therapy. Adults are only protected by a prohibition on coercive efforts, that may prove difficult to define and enforce. Further, there are several potential constitutional challenges to the prohibitions, based on Charter liberty and religious freedom arguments (bit.ly/ bt1020-dk9), likely to be litigated in the future. Finally, a comprehensive solution to conversion therapy likely requires complementary federal and provincial legislation mandating tax, professional discipline, family law, or even civil liability consequences, that are tied to acts of conversion therapy and exercisable independently. The debate over Bill C-8 likely won’t be the last of this legal and policy context, and though the criminal prohibitions are a welcome starting point, both the federal and provincial governments will likely need to take further innovative measures to eradicate the harms of conversion therapy. Dustin is an associate with Robert Fleming Lawyers and is Co-Chair of the CBABC SOGIC.

advocacy CBABC ADVOCACY UPDATE BACK TO BUSINESS! We normally consider autumn a time to fall back into our normal schedules — with vacations ending and children back in school, this is the time to return to the routine. However, this year has been anything but routine: CBABC found opportunities to work with volunteer members throughout the summer months, advocating on behalf of the profession. In our last update, we reported on our submission to the Finance Committee for the 2021 provincial budget considerations. That committee released its report in August, and it agreed with CBABC by making the following recommendations to improve access to justice: Increase

investments in legal aid services across all eligible areas, including family law legal aid, mental health law, and prison law, to enable expansion of eligibility, scope of services covered, and coverage limits.

Increase

funding for broadbased community restorative justice programs, including piloting models in areas such as elder abuse and education.

Increase

investments in Indigenous justice programs and services, including ensuring a distinction-based approach for First Nations, Métis and Inuit peoples.

\ EMAIL: ADVOCACY@CBABC.ORG Improve

access to the courts and justice system through investments in digital transformation, including expanding the use of online platforms for virtual hearings, and continuing with pandemic-related measures such as remote swearing of affidavits and witnessing signatures.

CBABC’s response to the Enhanced Care legislation and resulting no-fault auto insurance program was met with a different reply: the provincial government responded (bit.ly/bt1020au1) that the new legislation will be implemented on schedule in May of 2021, despite CBABC’s concerns that this will harm victims of motor vehicle accidents. The Auto Insurance Working Group rolled up its sleeves and continued to provide submissions to the government: As

to a proposal to suspend jury trials (bit.ly/bt1020-au2) for civil matters, CBABC responded that the temporary suspension of jury trials is an acceptable response to the ongoing need to maintain proper social distancing measures in courtrooms during the pandemic;

to a proposal for binding arbitration for motor vehicle accident cases, CBABC responded by stating that binding arbitration (bit.ly/ bt1020-au3) ought to be voluntary and costs must be fairly apportioned. The Vancouver International Arbitration Centre was viewed as a good venue for this process; and

to amendments to the Evidence Act (bit.ly/bt1020au4), CBABC indicated that the proposed $3,000 limit on expert reports is insufficient and the government was invited to explore other methods to limit expert report fees; in addition, CBABC indicated that a cap on disbursements is inappropriate, as circumstances in each case should determine the allowance for costs — and that any limit ought to be balanced and not arbitrary.

Our Freedom of Information and Privacy Section also made a major submission for the review to the Personal Information Protection Act (PIPA) (bit.ly/ bt1020-au5), focussing on the need to amend the legislation to keep up with national and international standards on privacy protection. In addition, the submission addressed the issue of the importance of maintaining solicitor-client privilege to ensure that such communications are not required to be released to the Privacy Commissioner. And on that note, solicitorclient privilege and the need for confidentiality continues to be the main focus of the position CBABC is taking at the Cullen Commission Inquiry into Money Laundering; the hearings are resuming this month and expected to continue into April, with a focus on the role of professionals in money laundering to be heard late November. Stay up to date on the Cullen Commission website (bit.ly/bt1020-au6) and live feeds!

OCTOBER 2020 / BARTALK 21

nothingofficial TONY WILSON, QC

Freedumb Fighters

Anti-maskers and the cult of freedumb

urrent projections indicate that by October 1, the COVID-19 pandemic will have killed almost 10,000 Canadians and 215,000 Americans. Despite health professionals in both countries advising that the use of facemasks in public places will help prevent the spread of the virus (and thereby reduce the death rate), there are those who, in the name of “freedom,” vehemently oppose wearing facemasks, despite the evidence that masks reduce the incidence of contagion. Sometime in July, I saw an anti-mask demonstration in downtown Vancouver that snarled traffic for blocks. I marvelled at the signs. “Freedom is not free.” “My body-my choice.” “Masks Don’t Work and Are Harmful — Reduces Oxygen and Increases CO2.” “Keep Your Laws off My Face.” “COVID is a Conspiracy.” “Plandemic not Pandemic.” “A facemask is a symbol of tyranny.” But to really get a sense of the crowd, there was one woman talking on her cellphone carrying a sign that linked masks with mandatory vaccinations, 5G towers, state surveillance and Bill Gates; not realizing that the cellphone she was talking on could track her movements far more accurately than any government-sponsored Bill Gates conspiracy that involved vaccinations, Science Fiction B-Movie plots and 5G towers. The most rabid anti-maskers unabashedly lie about the “dangers of facemasks.” Masks are “killing people” they say, because facemasks deprive the body of oxygen and increase CO2. Yet doctors, nurses 22 BARTALK / OCTOBER 2020

and other health professionals always use medical facemasks during surgical procedures and aren’t dropping dead on top of their patients in the middle of surgery due to oxygen deprivation or inhaling too much CO2. Perhaps these antimaskers should have their next surgery performed by doctors and nurses without facemasks, just so that their wackadoodle theories can be tested. Other anti-maskers have brought God into it. In Florida a few months ago, angry anti-maskers protested a local government mandate to wear facemasks in public places, arguing that masks were the work of the devil and contrary to God’s wonderful breathing system. Some have linked the wearing of masks to the imposition of sharia law, because if facemasks are required today, then by 2024, the government will mandate chadors, niqabs and burqas for women (although they don’t deal with what men will be forced to wear). Then there’s the constitutional argument predominantly used by American anti-maskers because mandatory facemasks deprive them of their constitutional right... to shop! I’ve watched dozens of videos filmed by other shoppers where anti-maskers have screaming fits or temper tantrums in front of extremely patient salesclerks, complaining that their constitutional right to shop is being infringed. Some anti-maskers are trying to use official looking “mask

exemption certificates” off the Internet where the holder is exempt from any law requiring facemasks, and an offending business can be fined up to $150,000 for not serving them. It’s a total fraud of course, and retailers have caught on to the scam. They’re quite comfortable politely telling anti-maskers: “if you don’t want to wear a mask in our store, then don’t shop here.” I keep hearing about “freedom” in this debate, but what this really is, is an exercise in “freedumb” by a cult of entitled brats who have never been told “no” in their lives. Freedumbers believe in rights without responsibilities and freedom without limits. Their freedom to buy a supersized bag of Doritos at Walmart without a mask is more important than my health or the health of my friends and family. So, unless you suffer from COPD, lung cancer, cystic fibrosis, or your face has been badly burned in a fire, there is no excuse for not wearing a mask in public during this pandemic. Stay home and use Amazon. Stop whining, pouting, screaming at employees or sobbing into your cellphone because a store won’t serve you. Stop spouting bubbleheaded conspiracy theories you read on Facebook. Shut up and wear the damn mask. Tony Wilson, QC is a franchise lawyer at Boughton in Vancouver and is now a Life Bencher of the Law Society, so don’t phone him anymore to complain because it won’t help. The views expressed herein do not reflect the opinions of the CBABC, or their respective members.

announcement LAW FOUNDATION OF BRITISH COLUMBIA

Working to Modernize the Mental Health Act In November 2019, the Law Foundation Board approved funding for an application designed to research potentially beneficial reforms to BC’s Mental Health Act. In March 2020, the non-profit organization Health Justice was established to carry out this three-year law reform project. The Mental Health Act governs detention and involuntary treatment in psychiatric wards and facilities throughout the province for people with mental disabilities. The need for innovative law reform work in this area was clear — the substantive approach of the legislation has remained relatively unchanged since the statute was created in 1964. People with involuntary status under the Mental Health Act can experience a range of deprivations of freedom and human rights, from losing their right to make health care decisions to being subject to mechanical restraints and solitarily confined in seclusion rooms. Health Justice is conducting legal research, human rights education, and advocacy to promote reforms to the Mental Health Act that would give effect to modern human rights principles and evidence-based health care practices. The organization’s work is led in collaboration with people with personal experience of detention and involuntary treatment under the legislation. Access to justice for Mental Health Act detainees is a high priority for Health Justice. Since its inception, it has focused on the increased access to justice barriers and isolation experienced by involuntary patients detained in psychiatric wards and facilities as a result of the COVID-19 pandemic. Health Justice has also provided community education and legal analysis in response to a bill proposing to amend the Mental Health Act to introduce a new form of detention and involuntary health care for children and youth in BC. BC is one of the few provinces in Canada that does not have a service to provide independent legal advice and assistance for people detained under the Mental Health Act. Health Justice is synthesizing research and evaluations of successful models used in other provinces and international jurisdictions to ensure that people with involuntary status are enabled to access independent advice and supported in exercising their rights. To find out more about Health Justice and its work, go to healthjustice.ca.

OCTOBER 2020 / BARTALK 23

#MeToo CBA NATIONAL MAGAZINE

#MeToo and Addressing Sexual Harassment in Law SEXUAL HARASSMENT IS RIFE IN LEGAL WORKPLACES. BUT HOW CAN WE STOP IT? This year, the International Bar Association released “Us Too? Bullying and Sexual Harassment in the Legal Profession,” the largest ever global survey on bullying and harassment in the legal profession. The IBA survey heard from almost 7,000 respondents from 135 countries. Some of the findings include the following: One

in three female respondents have been sexually harassed at work;

Sexual

harassment victims do not report in 75% of cases;

Principal

reasons for not reporting include the status of the perpetrator and fear of repercussions; and

Individuals

at workplaces with policies and training were just as likely to be bullied or sexually harassed as those at workplaces without policies and training.

The #MeToo movement has not yet hit Canadian legal workplaces, but it is likely coming. Read the full article

CBA NATIONAL MAGAZINE

#MeToo and Sexual Assault Prosecutions A LOOK AT WHAT’S CHANGED. For many clients accused of sexual assault, the question that weighs most heavily on their mind is “how could this happen?” How is it that an accusation levelled against them from one person can have effects that ripple through every aspect of their lives, and how is it that charges can go forward after only one person’s version of events is heard? To understand how we got to this point, it’s helpful to know something about the procedural aspects of sexual assault charges and some of the historical hurdles to sexual assault investigations. Oral testimony is usually the best evidence that Crown counsel has to prove their case. Indeed, most sexual assault cases do not turn on physical evidence. Either the results from a forensic investigation were unclear or inconclusive, the complainant did not consent to a medical examination or the alleged assault did not involve any actions that would transfer DNA. In cases of historical sexual assault, the events in question happened so long ago that any forensic evidence that did exist is no longer available. Read the full article

24 BARTALK / OCTOBER 2020

CBA NATIONAL MAGAZINE

#MeToo: The Return of the Victim? THE TERM “SURVIVOR” HAS BEEN WHOLEHEARTEDLY EMBRACED IN CONTEMPORARY FEMINISM. BUT IS IT ALWAYS APPROPRIATE? Contemporary feminists have made some important critiques of the mainstream feminist movement of the 1970s and 80s that is often referred to as the second wave — among them the generalization of women’s experience that does not reflect the experiences of racialized and poor women, and relatedly, the ongoing discrediting of unconventional women in criminal justice responses to sexual assault. Yet there remain some striking similarities to earlier feminisms in public and activist discourse around sexual harassment and assault. For example, the emotionally arresting image of the woman victim of sexual violence — strategically mobilized by feminists campaigning to change sexual assault laws in the 1970s — is one we continue to see today on textbook covers and in awareness campaigns by anti-violence organizations: she is visibly bruised, filled with terror, alone, and often conventionally attractive and white — a decontextualized, ideal woman victim. And while feminists in the 1970s spread awareness about and shared their experiences of sexual assault through consciousness raising groups, the #MeToo movement can be seen as a similar contemporary feminist project. Perhaps in most ways, except its dissemination through online social media, the #MeToo movement resembles consciousness raising insofar as it aims to highlight the prevalence of sexual violence. Read the full article

CBA NATIONAL MAGAZINE

#MeToo and Restricting the Use of Non-Disclosure Agreements in Canada THE USE OF NDAS IN SEXUAL HARASSMENT CASES HAS COME UNDER SCRUTINY IN THE US AND IN THE UK. CANADA NEEDS TO FOLLOW SUIT. Non-disclosure agreements are used to protect commercial interests or reputations. They can also operate to the mutual benefit of parties, allowing them to exchange commercial information or to enter into settlement agreements. The use of NDAs in sexual harassment cases, however, has come under scrutiny, mainly as a result of high profiles cases in the United States and in the United Kingdom where they have served to cover up the sexual misconduct of powerful men. In the Canadian context, there is little guidance on whether it is appropriate to use an NDA to suppress the disclosure of allegations of sexual harassment and the ethical boundaries for lawyers drafting these agreements. The basic rule is that NDAs are inapplicable where the disclosure of the conduct is protected by legislation, or where the act that is the subject of the NDA constitutes serious wrongdoing. Read the full article

OCTOBER 2020 / BARTALK 25

news CBA NATIONAL MAGAZINE

Anti-Racism as Part of Continuing Professional Development IT’S ESSENTIAL TO ADVANCE SYSTEMIC CHANGE AMONG LEGAL PROFESSIONALS.

CBA NATIONAL MAGAZINE

Adapting to the Times IF LAW FIRMS DON’T, MANY ARE GOING TO GO UNDER.

Prior to COVID-19, the legal industry was going through significant changes. A growing number of clients sought to be more in control of their files and billing. Meanwhile, external lawyers increasingly provided legal coaching to their in-house counterparts, instead of on the record representation. Indeed, Big Law has been downsizing for years, with many corporate clients growing their legal departments. The lucrative days of law in the 1980s seems to be over. Many lawyers have been offering flat fees and unbundled packages to attract clients. Then COVID-19 came along and blindsided the legal industry. Government relief measures have become critical for many people, law firms and businesses to pay their bills. However, the government cannot afford to keep the economy on life support indefinitely. Lawyers are going to have a tough few years ahead of them. A further squeeze on the legal market is that there are too many lawyers and not enough clients. Universities like Bond University in Australia doesn’t require an LSAT. Many law students are going abroad to law school, and then returning to the US and Canada to practice law.

Racial disparities exist in the law: in its application and its impacts, as an access to justice issue and in the experiences of legal professionals. Continuing professional development — an essential part of ensuring professional competence among legal professionals — must address this reality. It is all the more pressing that this be done, given the anti-racism and diversity issues that have come to the surface in recent years. There’s more to competency than getting training in anti-racism, beyond merely diversity, and developing the cultural competency to address client needs. Lawyers must have the knowledge and understanding if they are to take part in changing and disrupting systemic racism and racial disparities.

Many of these students graduated in a few years, come back to North America, and complete their exams to get licensed. They eventually become sole practitioners and compete with lawyers that went to law school locally. The straw that broke the lawyer’s back — COVID-19 was the final straw for many law firms. With tight margins, staff on payroll, and rent in central areas, they could not afford to continue with their practice. Since the coronavirus spread, lawyers and their firms — of all sizes — are increasingly desperate for leads. Managing partners are just trying to meet their payroll obligations and rent while waiting to see how long it will take the economy to recover. Read the full article 26 BARTALK / OCTOBER 2020

Read the full article

TIPS FROM

HUMAN SEXUALITY AND PUBLIC LAW

Follow this URL (bit.ly/29903973) to see an excerpt from LGBTQ2+ Law: Practice Issues and Analysis (2020). We also have seven print copies in our collection. The chapters cover intersections between sexuality and the law, and include 20 personal stories of LGBTQ2+ individuals’ who’ve fought to reform the Canadian legal system. Harvey Brownstone, Canada’s first openly gay judge, tells his story of a conversation with another judge who said “Well, Harvey, getting to know and becoming friends with a gay colleague like you helped me to understand the implications of the legal issue I was required to resolve.” The issue was a same-sex couple’s right to adopt children, which was granted. The lesson from the exchange was something larger: the “moral opprobrium” against non-heteronormative sexuality will not detach itself from the legal system on its own accord. It requires the aid of drivers and catalysts — diversity in the legal profession being one of them. “That comment,” notes Judge Brownstone, “made me realize in a very profound way the importance for judges themselves of having diversity on the bench.” Another driver and catalyst is the role of public law intervenors. There are few textbooks directly on the subject of intervenors and intervention law, however there’s a free resource through our Irwin Law collection on the Remote Access Subscription Database (see courthouselibrary.ca) called “Five More Minutes: Representing Public Interest Interveners Thirty-Five Years After the Charter” under the Special Lectures 2017 title.

CLEBC Update CLEBC’S RESPONSE TO COVID-19 Ensuring the health and safety of our valued customers, contributors, and employees, and moving to an online platform for all our courses has been CLEBC’s highest priority since COVID-19 began six months ago. Due to the hard work of our CLEBC team and our contributors from across BC, all of CLEBC’s CPD courses are now offered online through Zoom. To further support the legal community, the “CLEBC

Lawyer Wellness and WellBeing Resources” web page offers seven hours of free online wellness and well-being courses (in short one-hour modules) and other helpful resources (cle.bc.ca/wellness). Course topics include “Wellness in the Practice of Law” and “Increasing Productivity Through Happiness” and many others. We are also offering reduced course pricing. For more details on these initiatives, please visit: cle.bc.ca/covid19update.

Customer Service department for more information. We greatly appreciate the trust and confidence you have placed in CLEBC and welcome your feedback on how we can best support you during this challenging time (cle.bc.ca/ask-ceo-linda). Please stay safe and healthy, Linda W. Russell, CEO, CLEBC and the CLEBC Team.

Additionally, if you are experiencing financial hardship due to COVID-19, you may be eligible for further reductions in our course prices. Please contact our

OCTOBER 2020 / BARTALK 27

practicetalk DAVID J. BILINSKY

The Loss of Women in the Legal Profession Achieving equality r Bangin’ your head all day long against the glass ceiling Lauralee made her mind up, she had enough She jumped the fence right there And then to go someplace she’s never been She waived the nine to five a big goodbye... r

— Music and lyrics by Bettis, Farren, Wells; recorded by Jo Dee Marie Messina.

n 1993, the CBA commissioned the Task Force on Gender Equality in the Legal Profession, chaired by former Supreme Court Justice Bertha Wilson. This Task Force’s main focus was on gender equality; it also addressed issues concerning Aboriginal women and women from subordinate racialized groups. How much has changed in the 27 years since this Task Force? According to lifeinlaw.ca, quoting from the Mapping Her Path Data Collection and Analysis Report 2016, prepared by The Justice Education Society of BC: 37% of lawyers in BC are women,

even though women make up more than 50% of law school graduates; 71%

of women lawyers who quit their jobs cite work-life balance as the reason and 61% describe the work environment as a contributing factor to their decisions;

66%

of women called to the Bar in 2003 were still practising in 2008 compared to 80% of men; and

29%

of the women lawyers who have left practice, quit their law careers entirely.

28 BARTALK / OCTOBER 2020

In 2019, Forbes released its list of Most Innovative Leaders (bit.ly/ bt1020-pt1). Of the 100 names on the list, only one was a woman and there were no women of colour or LGBTQ women represented. While some progress has been made in gender equality, there is still considerable room for improvement. How much longer until we break the glass ceiling? 50 years at the highest executive levels, according to new research from The Myers-Briggs Company around gender, diversity and management.” (from research released in 2020: prn.to/2QH8pco). What can be done? Justicia in BC has produced a number of model policies around Flexible Work Arrangements, Parental Leave and Respectful Workplace Model Policies (bit.ly/bt1020-pt2). However, paper documents only go so far. Lawyers from Harper Grey LLP have created a new forum LifeinLaw.ca to counter the attrition rate of female lawyers. They offer a confidential, independent mentoring service outside of a law-firm setting and aim to help women succeed in their legal careers, even as they juggle life and family responsibilities and personal priorities. The CBA’s Women’s Lawyers Forum (bit.ly/bt1020-pt3) develops programs, plans and initiatives for women in the legal profession across Canada.

Katie Burke, Chief People Officer, Hubspot, writing in Forbes, lists five ways to promote women and give them the recognition they deserve (bit.ly/bt1020-pt4): 1. Cite women in business presentations. Reference women leaders in presentations and highlight their perspectives. 2. Take a hard look at who you follow. Look at your social media feeds and see if you can improve the gender, racial, socioeconomic, geographic, or other form of diversity of whom you read. 3. Update your imagery. Look at your firm’s website, jobs page, publications and marketing materials and look at how women are represented. Be thoughtful about the composition of the imagery and what it conveys about gender and leadership at your firm. 4. Change the face of Wikipedia. In 2016, just 17% of Wikipedia entries were about women. Pick your favourite female lawyer or judge and consider updating Wikipedia to feature their profile using Wikipedia’s public guidelines. The views expressed herein are strictly those of David Bilinsky and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members. David J. Bilinsky, Practice Management Advisor (on leave), Law Society of British Columbia Email: daveb@thoughtfullaw.com Blog: thoughtfullaw.com

dave’s techtips Women in Law Firms in 2017, McKinsey & Company, management consultants, produced a paper entitled “Women in Law Firms.” (mck.co/3bwBeC0) To say that it is nutrient rich in regards to the present role of women in law firms and the factors that play into their advancement is an understatement. This is a solid piece of work and represents the situation in both Canada and the USA as the three authors, Marc Brodherson (New York), Laura McGee (Toronto), and Mariana Pires dos Reis (Silicon Valley) represent diverse locations. Some of their conclusions: [F]emale

lawyers (and many of their male colleagues) fear that participating in flexiblework programs will damage their careers.

Women

of colour account for only 10% of senior associates, 3% of equity partners, and 4% of managing partners.

For

every 100 women promoted to partner, 141 men are promoted. all law firms call gender diversity a very important or a top priority, only 36% of women believe that gender diversity is a priority for their firm, compared with 62% of men.

a “women’s issue” — and an issue that galvanizes the partnership and demands accountability for progress — they will likely struggle to translate programs and policies into results.

While

The

difficulty of balancing work and family is the number-one reason that women do not want to make partner (61% of women), followed by inadequate benefits for the personal costs (54%).

Women

are considerably less likely than men to think that promotions and assignments at their firm are based on fair and objective criteria.

than half of women (58%) and almost half of men (48%) credit their supervising attorney or partner with advising them on advancing their careers.

Only

5% of women and 9% of men see leaders regularly held accountable for progress on equality.

Until

firms find ways to make diversity a firmwide issue, not

In an article in Forbes entitled, “The Ultimate Paradox: Law Firms’ Persistent Gender (Im) Balances,” (bit.ly/bt1020-pt5) Christina Blacklaws, President of the Law Society of England and Wales, is quoted on the lack of progress on gender equality in law firms, saying: “The bottom line is the situation isn’t likely to change until the governance model changes and moves toward a more corporate model.” While law firms should embrace gender equality as the “right thing to do,” a bit of economic persuasion works as well. In January 2019, around 170 General Counsels (“GCs”) and Chief Legal Officers, based largely in the US, published a letter calling for law firms to focus on diversity, or risk losing their companies’ legal spend; a further letter was signed by 65 GCs of major companies in the UK and Europe in March. (tmsnrt.rs/3lTiHVb)

>>> Continued from page 22

5. Drop the mic. At your next meeting, firm presentation, shareholder or partner meeting ensure that women get to present or speak

publicly and without interruption. Hopefully over the next 27 years we can make the legal profession much

more representative in terms of gender equality and stop the flow of women lawyers jumping the fence and waiving a legal career a big goodbye. OCTOBER 2020 / BARTALK 29

B R I T I S H CO L U M B I A CAREER OPPORTUNITIES In-House Lawyer – Technology | 3-6 Years | Vancouver

Our client is a long established Vancouver-based technology company in the fintech space, with operations right across North America, now looking for a new in-house lawyer. You will be the sole lawyer at the business, reporting directly to the CEO and providing a wide range of legal advice to the company. Most important is an understanding of the tech space and the regulatory environment that surrounds it. In this role you’ll enjoy a highly supportive culture, an interesting and varied workload, and true work-life balance. It will likely suit a lawyer with around 3 to 6 years of experience, but the year of call is less important than finding the right fit. For more information contact Amrit Rai or Mike Race at 604-681-0706 or LegalBC@zsa.ca quoting reference #BT30055.

ICBC Lawyer | 2-10 Years | Vancouver

We are working with a leading insurance firm that is looking to hire a litigation lawyer to join their busy team. The ideal candidate will have between 2-10 years’ experience in personal injury and insurance defence matters, and be an entrepreneurial individual who is keen to build upon the solid foundation provided by the firm and benefit from their competitive salary structure. There is also the opportunity to diversify your practice in time. For more information or to apply, please contact Mike Race or Amrit Rai at LegalBC@zsa.ca quoting reference #BT28968.

Sr Associate / Jr Partner - Securities | 5-10 Years | Vancouver

We’re working with one of the top Vancouver-based regional law firms, with an exceptionally busy securities practice, now looking for an experienced lawyer in that space. It’s a terrific opportunity for a business-minded senior associate or junior partner level to work with a range of interesting clients and continue to build their practice and career within a highly supportive environment and strong collegial culture at the firm. To learn more contact Mike Race or Amrit Rai at LegalBC@zsa.ca. Ref. #BT30068.

Civil Litigation Lawyer | 4-8 Years | Vancouver

Our client is a reputable boutique downtown Vancouver litigation firm with a practice that covers a broad range of disputes. If you have broad civil litigation experience, trained at a well-regarded firm, and are a self-starter with superb technical litigation skills, this could be for you. You will have the opportunity to work with impressive & sophisticated clients on a wide range of general litigation matters including commercial litigation, breach of contract cases, estate litigation, and insurance. You’ll be working autonomously, without hard billing targets, in a truly collegial and supportive working environment. For more information please contact Mike Race or Amrit Rai at LegalBC@zsa.ca. Ref. #BT29825.

zsa.ca

C A N A D A ’ S

L E G A L

R E C R U I T M E N T

F I R M

T M

NOW AVAILABLE FOR PURCHASE

Business Services Compensation & Benefits Charge-Out Rates These surveys provide vital benchmark information for compensation planning. Results available: October 30, 2020 Visit cbabc.org/bclma to learn more.

30 BARTALK / OCTOBER 2020

barmoves Whoâ&#x20AC;&#x2122;s Moving Where and When

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

TO VIEW ALL BAR MOVES GO TO CBABC.ORG/BARMOVES.

Denis G. Silva

Natasha Rodrigues

joined DLA Piper. Denis focuses his practice on corporate finance and M&A and has experience advising public and private clients in the mining, technology, and financial sectors.

completed her articles and joined Singleton Reynolds as an associate.

Ellie Einarson

Makaela Peters

joined Harper Greyâ&#x20AC;&#x2122;s Health Law and Professional Regulation groups and was called to the BC Bar in 2020.

joined Singleton Urquhart Reynolds Vogel LLP as an associate.

Daniel Babcock

Izabella Chamberland

joined Singleton Urquhart Reynolds Vogel LLP as an associate.

Sophie Marshall

Eman Jeddy

joined Lawson Lundell as an associate in their Real Estate group. Sophie was called to the British Columbia Bar in 2020.

joined Lawson Lundell as an associate in their Banking & Debt Financing group. Eman was called to the British Columbia Bar in 2020.

OCTOBER 2020 / BARTALK 31

Defined Benefit Pension Plan for Law Firms Most law firms have no pension arrangements at all. But that’s about to change. Lawyers Financial is partnering with CAAT, an $11-billion, not-for-profit trust, to launch DBplus, a defined benefit pension plan for law firms of any size. DBplus eliminates the funding risk for employers and creates a guaranteed retirement pension income for lawyers and staff. Everyone benefits.

For employers

For employees

• Attract and retain top talent.

• Earnings are predictable.

• Reduced costs, risks and administration.

• Reduced stress – no complex investment decisions.

• Eliminates compliance and fiduciary risks of administering a pension.

• Consolidate existing registered funds into DBplus.

The Bottom Line DBplus will provide a guaranteed retirement income that is paid monthly for life. On average, a member who participates over their entire career in DBplus is expected to receive approximately $8 in pension benefits for each $1 they contribute.

Visit lawyersfinancial.ca/pension to learn how your law firm can get started.

Lawyers Financial products and plans are sponsored by The Canadian Bar Insurance Association (CBIA). Lawyers Financial is a trademark of CBIA. CAAT Pension Plan is a trademark of Colleges of Applied Arts and Technology Pension Plan.

09/2020

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

OCTOBER 2020 / BARTALK 32

BarTalk October 2020 | Human Sexuality & the Law

Articles inside

BAR MOVES

DAVE’S TECH TIPS

LAW FOUNDATION OF BRITISH COLUMBIA

Consent to Sexual Activity in Long-Term Care

CBABC Advocacy Update

Protecting Against Conversion Therapy in Canada

Adapting to the Times Anti-Racism as Part of CPD

SECTION UPDATE

PROFESSIONAL DEVELOPMENT

Post-Bedford by Carrie Robinson

Polyamorous Relationships

Limiting Transphobic Speech

SOGIC Section Update Update Your Sections

70K Legal Battle Leads to Finding that the MCFD Made Unauthorized Orders on a Parent by Frances Rosner

From China to Canada

Pregnant with Questions

Combatting “Revenge Porn” by Meg Gaily