BarTalk December 2021 | Criminal Law by The Canadian Bar Association, BC Branch

DECEMBER 2021 | bartalkonline.org

Criminal Law

TRANSFORMATIVE JUSTICE | DEFENDING WHITE-COLLAR CRIME CASES

Georges A. Goyer, QC Memorial Award for Distinguished Service cbabc.org/awards Deadline: Feb 4, 2022

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BRITISH COLUMBIA

Criminal Law Features 6 7 8 10

Imprisonment, Truth, and Reconciliation

From the President

Clare Jennings

Chilwin Cheng

Executive Director

Transformative Justice and Gender-Based Violence

Kerry L. Simmons, QC

Indigenous Matters

Working With Your Regulator While Police Watch

Dalya Israel and Katrina Pacey

Defending White-Collar Crime Cases

Learning to Unlearn

Gladue Principles and Indigenous Identity

Carrie Robinson

One Size Does Not Fit All

Indigenous Matters

Brandon Hastings

Failure to Obey Court Orders Elder Abuse and Neglect Krista James

Calls to Decriminalize Simple Drug Possession Expand as Overdose Epidemic Worsens

Dustin Klaudt

Having the Difficult Conversations

Joven Narwal

Lana Morelli

Columns

Jennifer Metcalfe

DECEMBER 2021 Volume 33 | Number 6

Cannabis in Canada John W. Conroy, QC and Jack Lloyd

Tackling Racial Disparities in Legal Education

24 25

Kevin Westell

Indigenous Children, Youth, and Family Identity

Carrie Robinson

Guest Column

Making Settlement Conferences Work for Unrepresented Litigants

Michael Butterfield

Guest Column

The Secret to Getting Engaged

Andrew Tang

Practice Talk

28 Criminal Law David J. Bilinsky

and Technology

Dave’s Tech Tips

Irehobhude Iyioha

So what technologies are out there for a criminal lawyer to run their practices?

Commercial Crime

David J. Bilinsky

Nothing Official

Tony Wilson, QC

From the Branch 9

Advocacy in Action

Professional Development

SectionTalk

From the Community

BCLI/CCEL

Update on Parentage Law Reform Project

Courthouse Libraries BC

CLEBC

The Law Foundation of BC

BarMoves

Stacks and Stacks of Legal Acumen 35 Update of Canadian Criminal Jury Instructions th

Annual Report and CLBC’s 30th Location

I’m Not a Miracle Worker. I’m a Janitor

Brandon D. Hastings, Committee Chair Editorial Committee Tonie Beharrell Baljinder Girn

Eryn Jackson Isabel Jackson

Lisa Picotte-Li Sean Vanderfluit

Deborah Carfrae, BarTalk Editor Staff Contributors Alyssa Brownsmith Michaela David

Travis Dudfield Sylvie Kotyk

Carolyn Lefebvre Sanjit Purewal

Jo-Anne Stark Alexandra Suchy

BarTalk is produced on the traditional and unceded territories of the Coast Salish peoples, including the Musqueam, Squamish and Tsleil-Waututh Nations. BarTalk is published six times per year by the Canadian Bar Association, BC Branch (“CBABC”) and is available at cbabc.org/bartalk. This publication is intended for information purposes only and is not legal advice. CBABC supports more than 7,200 members in British Columbia. We connect our members to the people, knowledge, and skills they need to successfully practice. BarTalk enquiries, suggestions, and letters to the editor: Canadian Bar Association, BC Branch 10th Floor, 845 Cambie Street Vancouver, BC V6B 5T3 Membership Enquiries membership@cbabc.org

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FROM THE PRESIDENT CLARE JENNINGS

Having the Difficult Conversations

recently had the opportunity to watch the documentary “But I Look Like a Lawyer,” produced by the Federation of Asian-Canadian Lawyers (BC) Society. (If you haven’t seen it yet, please visit faclbc.ca/documentary — it’s powerful, moving and educational.) In addition to sharing historical and data-driven information, the documentary includes personal stories of racism experienced by AsianCanadian lawyers in law school, in their practices, and in court. It’s an important reminder of the continued racism — conscious or subconscious, overt or hidden — that permeates Canadian life and our legal systems. It reminded me of an experience I had recently at an Ethics PD session. One scenario involved an older male making an overtly sexist statement, and there was some general scoffing from the male participants about whether that still happened in this day and age. It’s understandable, on paper, it seems ridiculous. But one by one, all of the female attendees shared stories of experiences that were similarly sexist, similarly overt.

limited: I can’t truly imagine for myself an entire lifetime of experience that informs who we are now, how we experience the world now, how we react to the world now. We can’t define other people’s experiences. I can’t tell a person of colour that the way someone is interacting with them isn’t due to their race or ethnicity. Even if that’s not the intention, it can be the effect. I once had someone tell me that they experienced something I said as racist because it evoked a racist trope that I wasn’t aware of. My lack of knowledge, and lack of any intention to be racist, doesn’t change this person’s experience of it as racist.

These experiences were timely for me because they really grounded some fairly basic concepts I’ve been reflecting on recently.

We can’t know other people’s experiences. I don’t know what it is like to go through life in Canada as a man, as a person of colour, as a disabled person, or as a gender diverse person.

We can’t know other people’s experiences. I don’t know what it is like to go through life in Canada as a man, as a person of colour, as a disabled person, or as a gender diverse person. I can try and imagine myself in another person’s shoes — and I have a pretty vivid imagination — and that’s important for developing empathy. But it is functionally

I am reminded of the need to talk, to ask, and to listen. And to set aside our own egos and accept the experiences of other people. It’s not easy. Hearing a colleague I considered a friend tell me that they experienced something I said as racist was like a gut punch, a violation of who I try to be as a person. But I

4 BARTALK / DECEMBER 2021

still want to hear it. How can I change the impact I’m having on those around me without them telling me when I’m harming them? Good intentions don’t absolve us of responsibility for the actual impacts of the things we say and do. We need to close the divide between the people who say things like there’s no racism in British Columbia, and the statistics I found that said 43% of Asian Canadians experienced racism in British Columbia in 2020/21. Or that 71% of BIPOC residents of Victoria experienced racism between 2015 and 2020. Or that 82% of respondents to a 2017 survey who identified as visible minority had experienced or witnessed racism. It doesn’t matter whether I would have identified all of these experiences as racism. Our fight is not about whether racism exists in Canada, or British Columbia, or our profession. Our fight is to have those difficult conversations, to confront our own thoughts and behaviours, and to make change. In the words of Nigerian-American writer Ijoema Oluo, “The beauty of anti-racism is that you don’t have to pretend to be free of racism to be anti-racist. Antiracism is the commitment to fight racism wherever you find it, including in yourself.”

Clare Jennings

president@cbabc.org

EXECUTIVE DIRECTOR KERRY L. SIMMONS, QC

Learning to Unlearn “It takes curiosity to learn. It takes courage to unlearn. Learning requires the humility to admit what you don’t know today. Unlearning requires the integrity to admit that you were wrong yesterday. Learning is how you evolve. Unlearning is how you keep up as the world evolves.” — Adam Grant, organizational psychologist and author

“

Unlearning” can be hard work. We are witnessing our profession evolve as we learn more and then unlearn what we used to know to be true. It can be daunting. As lawyers, we gravitate to the certainty of laws, rules, systems, and structure. That framework helps us to navigate the unpredictability of human behaviour, to provide a sense of control in the face of chaos. What we are learning these days is how often “the rules” don’t work for groups of people, and how the rules need to change. Pick any big topic in the legal profession: access to justice, equality & inclusion, workplace management, reconciliation, law school education, selfgovernance of the profession, associate development, lawyer compensation, non-lawyer legal services, mental health. In a discussion of any of those, we are taking a hard look at the status quo and exploring what we didn’t really know about, in order to achieve better results and experiences.

The exploration of what we know starts with listening to other people. What is their perspective? What is their experience? What do they need? What is the problem? What is the goal? Truly listening. Exercising humility. Getting vulnerable and admitting we don’t know everything. Oh no! Not vulnerable! Lawyers are raised up to resist anything that might lead to a perception of vulnerability. Isn’t vulnerability in any form the exact opposite of what we and others expect of lawyers? Surely strength, confidence, control, and assertiveness are required at all times? Well, no, they aren’t. At least not in the form we might traditionally expect. Courage, humility, integrity all reflect strength, and all those are required for unlearning. President Jennings’ column this month explores how we can pursue learning by asking and listening to others and accepting that information. Having those one-to-one conversations, to listen and accept, is critical to unlearning in order to keep up. The big issues in the legal profession require not only the unlearning, but building new models to create systemic change. Recently the Access to Justice BC Leadership Group heard from MIT systems scientist and author Peter Senge. He reminded us that leading systems change is not always comfortable. And that’s okay. It is how it is supposed to be.

Critical to change is to stop, look around, and consider who isn’t in the room as you have the discussion of the day. When we discuss access to justice, do we have the people needing the system present? When we build a Reconciliation Response Plan for our firm, do we have Indigenous voices sharing knowledge? When remodeling lawyer compensation systems, have we listened to all the lawyers, or just the law firm owners? Mr. Senge shared a “systems awareness iceberg.” Above the water is an event or system which is what we see. Below the water are patterns and behaviours, underlying structures, artefacts, and mental models. Those three things continue to prop up the iceberg. When you examine those patterns and behaviours by listening to people and understanding their perspective, you can start to dismantle structures, change behaviours, and replace the artefacts and mental models with ones that will support a new or different system. Again, not easy tasks to undertake, and certainly not comfortable. As we conclude 2021, I invite you to set for yourself the task of unlearning something over the next year. To listen to another’s perspective, especially one which does not usually have a place in your day to day. You’ll keep up as the world evolves.

Kerry L. Simmons, QC

ksimmons@cbabc.org DECEMBER 2021 / BARTALK 5

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JENNIFER METCALFE

Imprisonment, Truth, and Reconciliation

he recent reports confirming unmarked graves of children at residential school sites has brought home for many of us settlers the critical importance of acknowledging the genocide Canada has committed against Indigenous peoples on their own lands. The legacy of residential schools continues today with high numbers of Indigenous peoples held in another colonial institution that separates families and causes immense trauma to individuals, communities, and Nations — prison. Canadian courts have directed the justice system to consider the impact of colonialism in criminal sentencing and in the administration of the sentence. Yet mass incarceration of Indigenous peoples continues to grow, almost doubling in the past twenty years. Indigenous peoples now account for over 30% of people in federal prisons. The experience of incarceration is incredibly harmful to Indigenous peoples, who are generally there because of intergenerational trauma and structural racism caused by colonialism. Indigenous peoples in prison are more likely to be held in maximum security where, according to the Correctional Investigator of Canada, they are often treated in a “cruel, callous and degrading manner.” Indigenous peoples are more likely to be held in solitary confinement, which is considered by the United Nations to be torture after 15 days. Indigenous peoples are more 6 BARTALK / DECEMBER 2021

likely to have violence used against them by correctional officers, and to have higher rates of suicide attempts, self-harm, and death by homicide while in prison. Prisons are failing at their stated goal of “rehabilitation” for Indigenous peoples. Indigenous peoples are significantly less likely to be released on parole and more likely to be held in custody until their statutory release dates than non-Indigenous people, meaning they serve a higher proportion of their sentences in custody rather than under community supervision. Many Indigenous healers, leaders and scholars have explained that Indigenous peoples need healing within their own communities, not “correcting” through colonial systems. As Fran Sugar and Lana Fox said in their 1989 report to the Task Force on Federally Sentenced Women: “How can we be healed by those who symbolize the worst experiences of our past?” Article 6 of the Rome Statute defines genocide as including acts that cause serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part and imposing measures intended to prevent births within the group. These acts must be committed intentionally to meet the definition of genocide.

Prisons do these things to Indigenous peoples. But are these acts intentional? The Canadian government spends more than half-a-billion dollars each year imprisoning Indigenous peoples, while it denies funding to Indigenous communities to provide healing services. It significantly under-funds Indigenous-run healing lodges, which are available to less than four percent of Indigenous peoples in prison, despite a 2016 Auditor General report that found Indigenous peoples released from a healing lodge were more likely to successfully complete their community supervision than those released from minimum-security prisons. The problem is not a lack of will among Indigenous communities to provide healing services, but Canada’s refusal to fund these initiatives. For example, despite receiving 126 proposals from Indigenous communities to provide alternatives to incarceration and reintegration support totalling $146 million, Public Safety allocated only $10 million over five years in the 2017 federal budget for 16 of these projects, none of which appear to divert Indigenous peoples serving sentences from prisons to Indigenous communities. Canada’s investment in systems of punishment and harm instead of Indigenous-led healing is intentional. It is time for Canada to support Indigenous self-determination in healing services to end the genocidal practice of imprisoning Indigenous peoples in colonial prisons. Jennifer Metcalfe is the Executive Director of Prisoners’ Legal Services, which provides legal aid to incarcerated people in British Columbia.

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CHILWIN CHENG

Working With Your Regulator While Police Watch

Practical advice from an analysis of R v Jarvis

our phone rings. Your client is panicking. A regulator tells them that investigators and the police will be at their site the next day investigating an incident. The investigator tells your client they must assist in the investigation and answer their questions. Pretty routine for a regulated business. But why are the police there? Government authorities, including the Canada Revenue Agency, financial regulators, WorkSafeBC, natural resource regulators, and professional regulators, frequently audit, review and inspect businesses for breaches of their governing statutes. However, sometimes, police agencies involve themselves in those inspections. Regulated persons become caught in a challenging legal position. They subject themselves to administrative sanctions if they fail to cooperate in the inspection. However, their cooperation might produce evidence used by police. R. v. Jarvis, 2002 SCC 73 defined for regulated persons, regulators, and the police how to balance a regulated person’s obligation to cooperate with regulators and the regulated person’s rights under the Charter. Under Jarvis, the court must balance whether: 1. reasonable and probable grounds existed; 2. the inspection proceeded like an investigation; 3. regulators transferred the inspection to an investigative body; 4. the inspection was conducted as a de facto investigation;

5. the investigatory agency used the administrative agency to collect evidence; and, 6. evidence gathered is only relevant for criminal liability. We screened cases citing Jarvis to produce a set of reported decisions detailed enough to understand how evidence was excluded. We coded the dataset so we could analyze it statistically. Out of 115 reported decisions examined, the court excluded evidence in only 18% of cases. Little changed depending on the industry in which these applications arose. In Fisheries Act prosecutions, applications succeed in 25% of cases. They always failed in prosecutions involving the Competition Act, forestry legislation and other environmental statutes. They succeed in 22% of tax prosecutions. Further analysis of the narrower grounds on which courts grant these applications reveal three, rather than six, factors that matter most in these applications. Our statistical analysis, which included regression analysis and a study of histograms, suggests the three top factors motivating courts to exclude evidence among the Jarvis factors are: (1) the nature of the conduct; (2) whether the administrative inspection was conducted more akin to a criminal investigation; and (3) whether the evidence gathered would be relevant only if it was adduced in a criminal trial.

We used these statistical findings to develop practical advice for corporate counsel. These factors suggest corporate counsel should take these steps as soon as the client is exposed to potential jeopardy from a criminal investigation masked as a regulatory investigation: 1. Identify whether there has been a referral to an investigative branch of the regulator or to police. 2. Assert your clients’ right to protections under the Charter in writing and orally. 3. Review any orders to produce documents or give evidence compelled under regulatory provisions to identify whether the regulatory investigation might adduce proof that could be relevant only to a criminal proceeding. 4. Document all steps taken during a review, including the identity of the persons conducting the review, the records taken or inspected, the inspection subjects, and the times at which such inspections took place, among other facts. Applications to exclude evidence in criminal proceedings relying on Jarvis most often fail. But they do succeed. When they succeed, the accused person can often exclude most evidence sought to be adduced and are acquitted of charges linked to that evidence, which is most often a complete exoneration. While challenging to maintain, corporate counsel who advises regulated persons should counsel their clients to establish circumstances that maximize the chance that a Jarvis application succeeds. Chilwin Cheng, former Crown Counsel, Enforcement Counsel with the BC Securities Commission, and IIROC, practises criminal and regulatory defence. DECEMBER 2021 / BARTALK 7

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DALYA ISRAEL AND KATRINA PACEY

Transformative Justice and Gender-Based Violence Increasing justice and accountability

he criminal justice system (“CJS”) is widely recognized as failing to meet the needs of many survivors of gender-based violence. This failure is particularly acute for people who experience intersecting forms of discrimination because of their gender, Indigenous ancestry, race, physical or mental disability, sexual orientation, or other marginalized identities. When engaging the CJS, many survivors feel shamed, blamed and disbelieved by police, prosecutors or the judiciary. They experience a lack of control over the process, unfair scrutiny, and retraumatization. In addition, many survivors are not looking for a carceral response and instead seek accountability, transformation, and healing. While it is urgent and necessary to address the problems with the CJS, it is equally important to meet the needs of survivors who are looking for other systems of justice and accountability. The restorative justice, transformative justice, and anti-violence sectors have responded to this need by developing community-based initiatives that operate outside (or alongside) the criminal justice system. The terms “restorative justice” and “transformative justice” can be broadly described as processes that support healing, accountability, and, in some cases, relationship restoration for people who have experienced harm, the person who caused the harm, and affected families and/or communities. Restorative justice principles are rooted in Indigenous justice systems and practices. Transformative justice 8 BARTALK / DECEMBER 2021

goes one step further to examine the social conditions within which the violence occurred and work toward broader systemic change. It originated within movements led by Black, Indigenous, and activists of colour who were engaged in abolitionist and anti-racism work.

One example is WAVAW’s Transformative Justice Pilot Project (“TJPP”). WAVAW is a rape crisis centre located on unceded Coast Salish Territories (Vancouver). The TJPP supports survivors of sexualized violence through a justice and healing process that focuses on the survivor’s experience of harm, safety needs and wishes for the process. If the survivor is interested in engaging the person who caused the harm, the program will assess any safety considerations and the person’s willingness to participate. The process may also include support people or others who were involved in the harmful experience in some way and where accountability is sought.

There are a small number of restorative/transformative justice programs that specifically address gender-based violence in Canada. They are diverse in their approaches but generally follow the following principles: Survivor-centred

and survivor-driven: the process moves at the speed of the survivor; their needs and safety are central to the process.

Focused

on accountability: the person who caused harm accepts responsibility and works actively to repair the harm as much as possible. Institutional accountability may also be required where a system negatively impacted the survivor.

Trauma-informed:

the process must be responsive to the trauma resulting from an experience of violence and the social and legal systems that may have exacerbated that trauma.

Intersectional

and anti-oppressive: the process is equity-seeking by naming and challenging systems of oppression.

A facilitated direct dialogue may or may not take place, depending on the willingness of all parties who are supported by trained facilitators to shape the process. TJPP’s methodology acknowledges the humanity of both survivors and those who have caused harm and de-centers a carceral approach to accountability. This approach is part of WAVAW’s decolonizing practices in the provision of care, services, and support to all participants. Ultimately, WAVAW’s pilot project will fill a significant gap in service by offering an approach that meets the justice, accountability, and safety needs of survivors who would have never been served by the CJS. Dalya is the Executive Director of the WAVAW Rape Crisis Centre. Katrina is a lawyer and mediator in Vancouver.

advocacyinaction This month, we look at how CBABC’s advocacy seeks to improve the criminal justice system and protect solicitor-client privilege. REFORMING THE POLICE ACT A year ago, the provincial government appointed a Special Committee on reforming the 45-year-old Police Act. Their mandate was to examine and make recommendations on reforms to modernize policing, with a focus on the role of police in complex social issues. Four central themes emerged: Reconciliation

Our Submission on Reforming the Police Act was released to the Special Committee on April 30, 2021. CBABC Vice-President, Aleem Bharmal, was invited to speak before the Committee on July 28. We are currently waiting for the Committee’s final report to be presented to the Legislative Assembly.

COMBATTING MONEY LAUNDERING When it comes to protecting solicitor-client privilege, CBABC strongly opposes suggestions that lawyers should report client transactions and services to government agencies or police, as clients depend on this confidentiality. The CBA acted as Intervener in the 2015 Federation of Law Societies case, where the Supreme Court of Canada held that any provisions of anti-money laundering legislation that requires lawyers to report are struck down.

and anti-racism

Accountability Police

in community

Systemic

change

CBABC assembled volunteer members from several Committees and Sections: Access to Justice, Equality & Diversity, Indigenous Justice Advocacy, Legislation & Law Reform, SOGIC, and Social Justice. These lawyers and law students considered the testimony and submissions offered to the Special Committee and identified several recommendations: Importance

of collecting and reporting disaggregated demographic data

Improving

accountability for police-involved deaths

Addressing

the undesirable effects of police seizure of personal property

Changes

in disciplinary proceedings for police

The

need for minimal reliance on firearms and lethal weapons by police

\ EMAIL: ADVOCACY@CBABC.ORG

More recently, CBABC was granted Participant status in the Cullen Commission Inquiry into Money Laundering in BC, which wrapped up October 2021. During the inquiry, there was lack of evidence to support that lawyers and their practice are a “black hole” facilitating money laundering through the provision of legal services. CBABC argued that existing regulatory requirements developed and enforced by the Law Society of BC are sufficient. After two years of hearings, the Commission’s final report is scheduled for release later this month.

uuu Read more about CBABC’s participation in the Cullen Commission in Kevin Westall’s article on p. 25. Want to get involved? reach out to us at advocacy@cbabc.org.

Fall 2021 Submissions Advocacy committees have been actively releasing submissions on behalf of members in alignment with Agenda for Justice 2021. Reforming BC

Court Scheduling

Government Budget 2022 Submission

Civil

Jury Trials

Modernizing Land

the Child Protection System

Owner Transparency Act Deadline

Self-Regulation

and LSBC Governance

DECEMBER 2021 / BARTALK 9

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JOVEN NARWAL

Defending White-Collar Crime Cases A primer

any white-collar crime investigations involve parallel civil and administrative investigations and proceedings, and also have an increasingly cross-border and international dimension. There are a wide range of events that may trigger counsel’s engagement, such as (1) receipt of an anonymous or “whistleblower” communication alleging misconduct; (2) allegations of misconduct raised by the media or on social media; (3) allegations of misconduct raised internally by management, or externally by auditors; (4) receipt of administrative demands for information by, or notices of complaint made to, regulatory organizations or notices of hearing to appeal before a tribunal; (5) execution of search warrants, an arrest, or receipt of a summons to appear before a criminal court; (6) actual or threatened civil actions; or (7) informal notification that domestic and international enforcement agencies have been seeking information about the client from third parties; or any combination of the above. What triggers the engagement provides the initial context; however, it is critical for counsel to consider what other possible risks of enforcement action or collateral consequences may exist in order to ascertain the client’s real potential jeopardy. Only with an appreciation of the real jeopardy can an effective defence strategy be developed with a careful 10 BARTALK / DECEMBER 2021

triaging of steps for counsel. This requires mastery of the underlying factual context, relationship dynamics between the targeted client and those who may be adverse, an appreciation of a complex archipelago of legislation and regulation, as well as an understanding of the type of investigative techniques that may be in play. Such techniques range from overt demands for production and warrants executed domestically, to sophisticated surreptitious techniques such as undercover operations, wiretaps and other seizures of electronic communications, to the harvesting of evidence gathered in foreign countries. These investigations are fraught with complexity due to the asymmetrical application of the Charter to administrative versus criminal proceedings, domestically, and differences between constitutional protections domestically versus abroad, such as the distinction between Fifth Amendment in the United States and derivative use immunities in Canada for compelled information under sections 7, 11(c), and 13 of the Charter and statutory protections under the Canada Evidence Act. At times, these complexities require the client to have separate counsel advising on discrete aspects of parallel proceedings, in which case it is important that all decision-making

be framed within the context of the client’s real jeopardy and the client’s objectives within the spectrum of jeopardy. If criminal jeopardy is real but not yet manifest, it may be desirable to resist all processes; in other cases, resolution of other processes may assist in pre-charge advocacy to other enforcement entities that the public interest has already been adequately served and no further action ought to be taken. These are difficult decisions which require counsel to offer insight into the probabilities of other consequences — an analysis that sometimes requires counsel to stay on the cutting edge of policy statements made by enforcers, be aware of current budgetary allocations, keep an ear to the ground about ongoing cases, as well as to have insight into the current state of the capital markets. Counsel must strive to make responsible budgeting decisions throughout the engagement from the triggering event onwards and provide the client with regular updates and revisions to the litigation budget as matters evolve because resourcing requirements can change abruptly. This is particularly important as new developments and access to resources can be unexpectedly limited as enforcers’ increasingly resort to interim orders to freeze assets pending investigations. Defending white-collar cases can be deeply rewarding for counsel, with satisfaction being drawn not just from the trial/hearing work but from the resolution of matters before they draw public scrutiny. Joven Narwal, Narwal Litigation LLP.

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kfredeen@zsa.ca | (416) 219-1584

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DECEMBER 2021 / BARTALK 11

CANADA’S

LEGAL

RECRUITMENT

FIRM

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LANA MORELLI

One Size Does Not Fit All A bill to eliminate mandatory minimum penalties

n February 18, 2021, The Honourable David Lametti, Minister of Justice and Attorney General of Canada introduced Bill C-22, a bill that would repeal certain Mandatory Minimum Penalties (“MMPs”) in the Criminal Code. MMPs are a forceful expression of governmental policies in the area of criminal law (R. v. Nasogaluak 2010 SCC 6), usually in response to a rise in a certain criminal behaviour or to reinforce society’s condemnation of a specific crime. MMPs create a floor to what sentence a court can impose on an offender: the sentence must be equal to or greater than the MMP. Over the past 10 years, Superior Courts around the country and even the Supreme Court have been finding specific MMPs as unconstitutional (see R. v. Nur 2015 SCC 15). The issue that arises most often is that an MMP does not account for all offenders and offenses, it creates a one-sizefits-all sentencing “standard.” However, sentencing is supposed to be an individualized process, focusing on the specific offender and the specific circumstances of the offense. Proportionality is the cardinal rule of sentencing (this looks at the nature and comparative seriousness of the offense, gravity and degree of responsibility) (R. v. Lacasse 2015 SCC 64). By Parliament imposing MMPs, it has taken away the court’s discretion, in some instances, to order a unique sentence for an offender with unique circumstances. Of the current 73 MMPs (relating to 67 offenses), Bill C-22 seeks to 12 BARTALK / DECEMBER 2021

repeal 14 that specifically relate to firearm offenses. It has become clear that these MMPs have contributed to a higher rate of imprisonment and disproportionately affect Indigenous peoples and marginalized Canadians. In 2020, although only representing 5% of the Canadian adult population, Indigenous adults accounted for more than 27% of the federally incarcerated inmates. Repealing these specific MMPs does not mean that these offenses are not serious or not condemned by society. Parliament has simply recognized what former Chief Justice McLachlin said in Nur: there is a spectrum of offenders and an MMP may well be a starting point for most offenders, but not all, those at the low end of the spectrum cannot be forgotten or lumped into what “most offenders” should receive. Repealing MMPs that have a disproportionate effect on Indigenous and marginalized Canadians gives power and discretion back to the court to sentence offenders appropriately, taking into consideration all relevant factors and give actual consideration to the principles of sentencing. These factors and principles of sentencing are found in Part XXIII of the Criminal Code and stated firmly in R. v. Gladue [1999] 1 SCR 688 and R. v. Ipeelee 2012 SCC 13 with respect specifically to Indigenous offenders. The federal government has alluded to further investments to support the preparation of Gladue Reports and

Impact of Race and Culture Assessments to assist courts in determining what a fit and just sentence would be for a specific offender. If Bill C-22 comes into force and effect, there may be more community-based dispositions to promote rehabilitation, reintegration and assisting offenders to become contributing members of society. If an offender is faced with a term of imprisonment of less than two years, a court can decide whether the offender can be safely managed in the community and, if appropriate, impose a conditional sentence order (“CSO”). A CSO is similar to a probation order; however, it brings stricter conditions and more supervision. Repealing MMPs will have the effect of expanding sentencing options and allow courts to impose community-based dispositions where appropriate. Practically speaking, this may put a strain on community corrections (probation officers, conditional sentence supervisors). Funding is required to ensure there are appropriate resources in the community to assist in the goal of Bill C-22: to identify and curb systemic racism and create a more effective criminal justice system. So far, the federal government has promised funding for community organizations and programs to support atrisk youth and provide alternatives to criminal charges where appropriate. More funding needs to be pledged to ensure community-based dispositions are successful to reduce recidivism and ensure public protection. Lana Morelli, Senior Crown Prosecutor in Saskatoon, SK.

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BRANDON HASTINGS

Failure to Obey Court Orders When civil contempt becomes criminal

here are various mechanisms available in the Rules of Court to compel compliance with court orders. But, what happens if these are ineffective? The Criminal Code delineates two types of contempt: (1) contempt “in the face of the court” (in facie) and (2) contempt not in the face of the court (ex facie). Contempt ex facie is our subject. In addition to being codified in s. 127 of the Criminal Code, criminal contempt is also, and more expansively, a criminal offence under common law — the power to punish for civil or criminal contempt is part of the court’s “core” inherent jurisdiction. That jurisdiction was enshrined as part of the Constitution Act (by reference to the law of England), and as such it cannot be limited by legislation.1 So, despite references to contempt in the Rules of Court and the Criminal Code, those sections are not exhaustive. Judges, it would seem, can get creative, though common penalties for both civil and criminal contempt include fines and imprisonment. As you might expect, the latter comes with a criminal record, and generally more severe penalties.2 Because of its heritage, prosecution for criminal contempt is begun by indictment (according to the law of England), but is apparently not subject to the procedure under the Criminal Code for indictable offences.3,4 Penalties for contempt may also be levied by an inferior

court or tribunal, but that’s a bit paradoxical, because it seems those common law powers must first be enabled through legislation.5 Whether breach of an order is civil or criminal depends on the “the nature and quality of the conduct involved,”6,7 because the drivers of criminal and civil contempt are distinct. Criminal contempt is aimed at avoiding or preventing “public injury,” whereas civil contempt aims primarily at obtaining compliance with the order (i.e., to “remedy the breach”). Generally before criminal contempt is considered, a finding of civil contempt will first be made. The test for contempt of a court order essentially amounts to proving an order was intentionally breached, beyond a reasonable doubt, and with direct evidence only. Proving intent has its challenges of course, and the court exercises its powers of contempt with restraint.8 As well, proving a lack of compliance sometimes requires proving a negative. In some cases, therefore, the onus may be reversed by court order, giving a significant opportunity for the alleged contemptor to prove compliance, or provide reasonable excuse, failing which their conduct may be assessed for contempt. Usually only then, if the civil contempt continues, may the court wish

to consider criminal contempt. The correct procedure appears to rest on a motion that (1) asks the court to “review the allegations … to ascertain whether those allegations, if true, would constitute criminal contempt,” (2) notifies the Attorney General, and (3) asks the court to invite the Attorney General to proceed with criminal contempt.9 One should consider notifying the local Crown,10 and I would urge significant consideration vis-a-vis motivations of such a motion as they relate to ethical duties. At some point, principles of denunciation and deterrence take precedence over gaining compliance with the original order. Criminal contempt is thus fundamental to the rule of law: “the gravamen of the offence is not actual or threatened injury … [it] is rather the open, continuous and flagrant violation of a court order without regard for the effect that may have on the respect accorded to edicts of the court.”11 Rule of law in the private realm cannot exist if citizens are allowed to endlessly flaunt court orders. Thus, this peculiarly commonlaw-based criminal offence serves as an important and fundamental organizing force of relationships between private citizens, and thus of our society. Footnotes for this article may be found on BarTalk online. 1-11

Brandon Hastings [bhastings.com] (he/him) is a civil and family litigator and mediator, who regularly conducts appeals, and practices with Cassady & Company on the traditional territory of the Qayqayt first nation. DECEMBER 2021 / BARTALK 13

Indigenousmatters CARRIE ROBINSON

Gladue Principles and Indigenous Identity Mitigating factors and criminal sentences

ndigenous youth are overrepresented in the Canadian prison system. A link between systemic discrimination and incarceration is often made within Gladue Reports that may supplement an Aboriginal person’s defence in the criminal legal system. Indigenous youth aged 20 to 34 without a high school diploma or employment, in Alberta for example, are 3.3 to 5.1 times more likely than their non-Indigenous peers to be incarcerated.1 “Aboriginal youth accounted for 46% of admissions to correctional services in the 10 reporting jurisdictions in 2016-2017, while representing 8% of the general youth population in those same jurisdictions… (Statistics Canada, 2018a).”2 In R v. Gladue in 1995 the Supreme Court of Canada sentenced Jamie Gladue to three years imprisonment for second-degree murder. Jamie’s young, female, Cree identity was not considered by her sentencing judge. Jamie appealed the court’s decision in 1999 and won. The court overturned the trial decision because Jamie’s Aboriginal status was discounted.3 The Criminal Code subsection 718.2(e) requires courts sentencing Aboriginal offenders to take into consideration, “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community, with particular attention to the circumstances of Aboriginal offenders.”4 Providing a Gladue Report helps decisionmakers see the larger life story of the Aboriginal offender.5 Gladue Factors that judges will consider include: Intergenerational impacts 14 BARTALK / DECEMBER 2021

of colonialism and displacement, Racism and systemic discrimination stemming from the Indian Act, Indian Residential School attendance, “Sixties Scoop” of Indigenous children being adopted without consent, physical/ sexual/institutional abuse, loss of parenting skills and familial composition, normalization of violence and neglect, substance abuse/addiction, mental health, over-representation of Indigenous peoples in the child welfare and criminal justice systems, fetal alcohol spectrum disorders, lack of opportunity or isolation of communities, high rates of unemployment and poverty, low levels of educational attainment, loneliness, abandonment and dislocation from culture, community, and family, etc.6 Consideration of these factors may prevent the perpetuating of historical harms committed by the government against Aboriginal peoples through sentencing. A person’s Aboriginal identity matters. Rhaea Bailey, the Manager of Indigenous Services at Legal Aid BC stated that, “Gladue writers are an essential conduit through which the stories of Indigenous people are shared with the criminal justice system. These stories are what ground the application of Gladue principles so that judges understand the impact of colonialism and intergenerational trauma on the individual before the court as well as their strength and resilience. The BC First Nations Justice Council

is taking some important steps to advance and expand the application of Gladue principles in BC as well as to increase the accessibility of Gladue reports through its justice strategy.” The BC First Nations Justice Council (“BCFNJC”) is normalizing the role of Gladue report writers. In BC, there are only three writer positions at three Indigenous centres serving twenty communities. According to Mitch Walker, Director of Gladue Services at BCFNJC, there is a need to follow up on the aftercare healing plans written within the Gladue Reports as they are “part of a broader effort towards reconciliation” and are “focusing on individual client, nation, story and how all those entities have been impacted by colonization.” Statistics Canada. The incarceration of Aboriginal people in adult correctional services, online: <150.statcan.gc.ca/n1/ pub/85-002-x/2009003/article/10903eng.htm#a10> 2 Government of Canada, Overrepresentation of Indigenous People in the Canadian Criminal Justice System: Causes and Responses, online: <justice. gc.ca/eng/rp-pr/jr/oip-cjs/p3.html> 3 R. v. Gladue, [1999] 1 SCR 688. [Gladue] 4 Criminal Code, RSC 1985, c C-46 at s. 718.2(e). [Criminal Code] 5 Legal Services Society, Gladue Report Guide (British Columbia: March 2018) at 2. 6 BC First Nations Justice Council, Gladue Report for Randall Charlie – Sentencing Hearing (November 8, 2019). [Sample Gladue Report prepared for the purpose of sentencing pursuant to section 718.2(e) of the Criminal Code & Gladue]. 1

Carrie Robinson is an Anishinaabe lawyer. She currently works as a Senior Policy Advisor at the Assembly of First Nations.

CARRIE ROBINSON

Indigenous Children, Youth, and Family Identity LEGISLATIVE CHANGES AND COORDINATION Ontario’s child welfare strategy indicates that promoting Indigenous identity prevents Indigenous children and youth from entering government care and the youth justice system. Indigenous identity is a “best interests” consideration for Indigenous children in Canada’s child welfare legislation. Application of this principle prevents permanent loss of Indigenous identity; which is closely tied to cultural roots among First Nations, Inuit and Métis Bands, and communities. Over half, (52%) of children under the age of 14 in foster care are Indigenous.1 This egregious overrepresentation of Indigenous children in care stems from the government of Canada’s past “assimilationist policies.” The Law Society of British Columbia educates that: “Whole generations of children were taken away from their communities, and prohibited from speaking their languages, engaging in their cultural practices and spiritual beliefs, and living Indigenous ways of life. Today… there are currently more Indigenous children in foster care in Canada than ever attended residential schools.”2 Residential schools began in 1884 and ended in the 1990s.3

Later, thousands of Indigenous children were adopted into non-Indigenous homes without consent from 1951 to 1991 in the “Sixties Scoop.”4 On June 11, 2008, Prime Minister Stephen Harper apologized and stated that assimilation policy was meant to “kill the Indian in the child” and “has no place in our country”; but an apology is not enough.5 Today, the Canadian government must ensure that assimilationist policies are not perpetuated in present-day laws and policies. The Child, Youth and Family Services Act (“CYFSA”), 2017 regulates child welfare in Ontario.6 A federal statute, An Act Respecting First Nations, Inuit and Métis children, youth and families, was also enacted in 2020.7 Section 9(2) of this Federal Act includes a “cultural continuity” principle in the best interests of Indigenous children. The CYFSA mandates the province must ensure Indigenous childrens’ identities are included in their care.8 Assimilation must not be promoted by provincial child welfare regulation and implementation.9 “Addressing the overrepresentation of First Nations, Inuit and Métis children and youth in care is a core focus of this work.”10 The ministry’s Ontario Indigenous Child and Youth Strategy (“OICYS”) is part of “child welfare redesign.” The OICYS’ pillar states, “First Nations, Métis, Inuit and urban Indigenous communities and organizations have authority to

care for their children and youth.” This strategy also links culture and opportunities to prevention.11 The ministry “is applying a distinct Indigenous Approach… [The OICYS] seeks to fundamentally transform the system of services for Indigenous children, youth, and families, and is rooted in holistic, preventative and culture-based programs that are designed and delivered by and for Indigenous peoples.”12 Child and family services legislation in Canada looks promising as it now requires the strengthening of Indigenous identity among children and families... on paper!

Government of Canada, Reducing the number of Indigenous children in care, online: <sac-isc.gc.ca/eng/1541187352297 /1541187392851> (citing Census 2016) 2 Law Society of British Columbia, Indigenous Intercultural Course, at Module 3, s 3.3. [LSBC] 3 Ibid. 4 Ibid. 5 Government of Canada, Statement of Apology – to former students of Indian Residential Schools, online: <rcaanc-cirnac. gc.ca/DAM/DAM-CIRNAC-RCAANC/ DAM-RECN/STAGING/texte-text/rqpi_ apo_pdf_1322167347706_eng.pdf> 6 , S.O. 2017, C. 14, Sched. 1. [CYFSA] 7 , (S.C. 2019, c.24). [Federal Act] 8 CYFSA at s 74(3)(b); and CYFSA’s O.Reg 156/18: General Matters Under the Authority of the Minister at s 3. 9 Federal Act. 10 Government of Ontario, Ministry of Children, Communities, and Social Services. [Ministry] 11 Government of Ontario, Ontario’s Indigenous Child and Youth Strategy, online: <children.gov.on.ca/htdocs/ English/professionals/indigenous/index. aspx> [OICYS] 12 Supra 10. 1

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feature

KRISTA JAMES

Elder Abuse and Neglect Are they crimes?

CRIMINAL CODE PROVISIONS

lthough the Criminal Code sentencing provisions codify aggravating factors linked to age or disability (718.2), most crimes are age neutral. That said, many provisions could capture circumstances of elder abuse or neglect. Sexual and physical abuse can be prosecuted under the assault (265268) and sexual assault provisions (271-273). Emotional abuse could be criminal harassment (264) or intimidation (423). An abuser who threatens to harm a pet could be charged with uttering threats (264.1). An adult child who will not visit with grandchildren unless the older person pays for a new car could be charged with extortion (346). At least twenty different Criminal Code sections could be applied to financial abuse, including various theft and fraud provisions. There is also a crime of theft by a person holding a power of attorney (331).

align with various Criminal Code offenses. A 2011 study paper by the Canadian Centre for Elder Law analyzes a number of reported court decisions that apply the Criminal Code to elder abuse and neglect. CROWN COUNSEL POLICY

Elder abuse can be difficult to prosecute. Our adversarial justice system is not gentle with older victims who have health and disability issues. If a victim is living with dementia, they may struggle under crossexamination. If they have serious health issues, or a short life expectancy, they may be unable to testify. Crown might not be skilled in working with a witness who is living with dementia.

Neglect could be prosecuted as a failure to provide the necessaries of life (215) or criminal negligence (219) if there is a dependency relationship. If abuse or neglect leads to death, an abuser could be charged with murder (229-231), manslaughter (234, 236), or causing death by criminal negligence (220).

BC Crown Counsel Charge Assessment Guidelines require Crown to consider the likelihood of conviction and whether the public interest requires prosecution. Some public interest factors noted in policy can apply to elder abuse dynamics, including “the relative vulnerability of the victim,” “the alleged offender’s position of authority or trust,” and “evidence that the offence was motivated by bias, prejudice, or hate based on… age… mental or physical disability, or any other similar factor.”

The Advocacy Centre for the Elderly developed this helpful image to illustrate how different forms of abuse

Crown Intimate Partner Violence Policy is less discretionary, stating that where there is adequate evidence

to prosecute “it is generally in the public interest to proceed with a prosecution.” Of course, elder abuse and intimate partner violence are overlapping categories: many older people are abused by their partners. SHOULD A LAWYER CONTACT THE POLICE?

Even if an older person does not want their abuser — likely a family member — to be charged, police can play a role in responding to abuse if they are properly trained to support older adult survivors of violence and trauma. They can connect older people with helpful services, including victim assistance. They can work with Crown to consider whether a s 810 recognizance or peace bond is appropriate due to safety issues or risk of property damage. They can connect an older person with free legal assistance to get a civil protection order under the Family Law Act. They can provide safe transport. The criminal law is one of many elder abuse response options. The best approach boils down to each older person’s unique circumstances and what they want. As noted in the Practical Guide to Elder Abuse and Neglect Law in Canada, abuse can rob a person of freedom and independence. Lawyers should be conscious that their responses do not further undermine personal autonomy. This Decision Tree, published by Public Guardian and Trustee, summarizes the role of police and other agencies in responding to abuse. It may help lawyers identify next steps. Krista James is a staff lawyer and National Director of the Canadian Centre for Elder Law. DECEMBER 2021 / BARTALK 17

guest

MICHAEL BUTTERFIELD

Making Settlement Conferences Work for Unrepresented Litigants

A View from the Bench from Mr. Justice Crossin

he court process includes a number of Alternative Dispute Resolution (“ADR”) options. These include mandatory mediation and settlement conferences. While unrepresented litigants can be successful in mediation, they struggle more in settlement conferences (“Conferences”). Mr. Justice Crossin of the BC Supreme Court sums up his experiences: “Settlement conferences often prove fruitless where one or more of the parties is self-represented. Without the benefit of advice leading to the settlement conference; and without the ability to obtain advice during the process, the self-represented party finds herself or himself in a foreign land, wary and perhaps distrustful of the process; and reluctant to agree to anything, lest it prove to be ill advised. While this is somewhat predictable, it nevertheless inevitably proves to be a difficult hurdle to overcome in order to achieve any resolution.” The challenge is being met by lawyers providing unbundled, or limited scope retainors (“LSRs”). Some LSRs includes attendance at the Conference, while others coach the client on how to successfully participate in the Conferences. As Justice Crossin reflects “where counsel are present with clients that are genuinely open to the potential of coming to an agreement, it will often lead to a negotiated settlement, fairly and efficiently.” 18 BARTALK / DECEMBER 2021

Counsel representing the other litigant in a Conference may also face significant challenges: “An important element of settlement conferences is the court facilitating and framing ongoing discussions between the parties. Counsel, while willing and able to find a reasonable compromise, also recognise there is a significant power imbalance and consequently are sensitive to having candid discussions with selfrepresented parties. This obviously blunts constructive negotiations. In addition, judges find themselves in a place no less frustrating. In my experience, while the self-represented party is perhaps distrustful of the system generally, not so the judge. The self-represented person often views the judge as an ally. But this is the problem. No matter the extent to which the court makes clear that the role of the court in a settlement conference is that of a neutral mediator, almost inevitably the self-represented party looks to the judge throughout the process for protection, comfort, and legal advice. In this context, the settlement conference proves to be not terribly productive. On occasion, it will be apparent that regardless of financial circumstances, for one reason or another, often strategic, some persons prefer to pursue matters without the assistance

of a lawyer. The majority, however, are persons attempting to navigate a legal landscape without legal advice because access to our courts, armed with a lawyer, is simply financially out of reach for these persons. In my view, for those persons, something akin to an unbundled legal service, perhaps with an assigned lawyer providing discreet legal advice, could well prove to be a linchpin to a more meaningful settlement conference,” continues Justice Crossin. The ideal is for all parties to be represented within the court process. However, that is increasingly not the case. There is often a financial constraint, but in some cases it is strategic. The pitfall for LSR in preparing unrepresented litigants is that Conferences are fluid, and it is impossible to predict all issues which may arise. Justice Crossin suggests that “the ability of the self-represented person to access advice, by phone, during the conference, would be very constructive.” The LSR movement is about access to justice: “A settlement conference is not access to justice in circumstances where it is simply not a meaningful opportunity for one or more of the parties to participate in an informed way,” adds Justice Crossin. A well designed LSR can empower clients and enhance access to justice. Michael Butterfield is a Victoria, BC lawyer and certified mediator and arbitrator. Disclaimer: The views expressed by Mr. Justice Crossin are his own views and not the views of all other judges. Each judge will have their own experiences.

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guest

ANDREW TANG

The Secret to Getting Engaged

A discussion with Bencher Kevin Westell on how young lawyers can get more involved

he practice of law can be very demanding, particularly for young lawyers who are just beginning their careers. Amidst the constant stress of looming deadlines, it can be difficult for young lawyers to complete their daily work, let alone find the time and energy to work on extra professional projects. Kevin Westell, one of the youngest elected Benchers of the Law Society of BC, a highly accomplished lawyer, and active volunteer and community member, was kind enough to speak with me and offer the following insights into how young lawyers can more easily get involved and give back to their communities. CHOOSE PROJECTS YOU ARE PASSIONATE ABOUT Kevin shared that volunteering for projects you are passionate about, or which intersect with your personal or professional interests, will make the time spent on them feel less obligatory and more rewarding. Kevin also explained that involvement on projects that feature a legal (or law adjacent) component will likely present networking opportunities and the chance to work with friends or colleagues in one’s area of practice. KNOW WHEN TO SAY “NO” Young lawyers have an inability to say “no” and a tendency to take 20 BARTALK / DECEMBER 2021

on too much; however, they are only human. In light of this, Kevin advised it is important for young lawyers to be able to recognize their own limitations and to know when to decline opportunities. This is crucial because, as Kevin put it, it is far worse to volunteer badly than it is to not volunteer at all. Kevin expanded on this by sharing that even if one cannot fully commit to a given project, offering suggestions or referrals to other individuals who may be willing and able to take it on instead are still meaningful ways that one can contribute without becoming directly involved. FINDING THE RIGHT BALANCE IS UNIQUE TO EACH INDIVIDUAL Having limited time should not be seen as a deterrent to becoming more involved. Kevin explained during our discussion that thoughtful intentionality is an important part of practising law, and it is similarly important when it comes to ensuring that personal relationships are properly nurtured. Therefore, Kevin advised that finding the “right balance” between work, home, and volunteer work is very much an art, not a science, and exists as a deeply personal decision that is in constant need of re-evaluation.

FINAL WORDS OF ADVICE Finally, when asked what parting words of advice Kevin had for young lawyers (and what his current self wishes he could tell his younger self), he acknowledged that beginning practice can be both a challenging and isolating experience, and that it can also be difficult early on in one’s career to admit feelings of vulnerability due to the perception that it is synonymous with weakness and a lack of mental fortitude. Having gone through this period of uncertainty himself, Kevin candidly shared that contrary to popular belief, these feelings are virtually universal amongst young lawyers and consequently, as important as it is to work hard, it is equally important to reach out for assistance when necessary because those that do will be supported. In summary, it is all too easy for young lawyers to become fixated on a billable target or their ever growing to-do lists; however, it remains important for lawyers, young and old, to not to lose sight of the many benefits that can be derived from volunteering and community work, as ultimately, the practice of law is a privilege and with it comes a responsibility to give back. The key is finding the right balance that works for you. A special thanks to Kevin Westell for his generous time and valuable insights, both of which made this article possible. Andrew Tang is an associate at Harper Grey LLP practising in the areas of health, professional regulation, and securities law.

feature DUSTIN KLAUDT

Calls to Decriminalize Simple Drug Possession Expand as Overdose Epidemic Worsens

he 2011 Insite decision, found the Controlled Drugs and Substances Act’s (“CDSA’s”) s. 4 criminal prohibitions on possession of controlled substances (“simple possession”) engaged Canadian Charter of Rights and Freedoms (“Charter”) s. 7 interests (life, liberty, and security of the person). This, however, didn’t violate the Charter, as CDSA exemptions, like for Insite’s supervised consumption site (“SCS”), were a “safety valve” preventing criminal prohibitions from violating principles of fundamental justice. Following the public health emergency of the overdose epidemic, now into its fifth year, this “safety valve” is clearly failing. BC’s Chief Coroner recently reported record overdose deaths for 2021 (1,534 by September) and nearly 23,000 persons who use drugs (“PWUDs”) have died in Canada from 2016 to March 2021. In 2021, around 20 PWUDs/day died, with deaths highest in BC, followed by Alberta and Ontario (90% of deaths this year). Rates began dramatically increasing following the COVID-19 pandemic. PWUDs and other harm reduction activists have long called for decriminalization of drug activities, like simple possession and drug trafficking. They view drug use as a health issue (with access to harm reduction encouraged) not a moral issue (where punishment is warranted). Several foreign jurisdictions (Portugal and recently Oregon) have decriminalized simple possession with positive health outcomes.

Following the spike in deaths in early 2016, BC declared a public health emergency (April 2016) and yet neither Canada nor any other province has done so. This spike is attributed to contamination of illegal supplies with powerful opioids or depressants like fentanyl, carfentanil, or benzodiazepine, as illegal producers use these drugs as fillers to reduce production costs. Recently, many experts, organizations, political parties, and some provincial and municipal governments have formally called for simple possession decriminalization or gone a step further and requested geographic exemptions from the application of CDSA s. 4, pursuant to the s. 56 exemption process, developed following the Insite decision. These include public health officials (such as Vancouver Coastal Health’s Dr. Patricia Daly and BC Provincial Health Officer Dr. Bonnie Henry), BC Premier John Horgan, the federal New Democratic Party and Green Party, the federal Liberal Party membership, the Canadian Association of Chiefs of Police, and an expert task force commissioned by Health Canada. Vancouver, Toronto, and Montreal, and the Union of Ontario’s Big City Mayors all support decriminalization. Vancouver and BC have already submitted s. 56 applications for review by Health Canada, with Toronto, Montreal, and Ottawa, reportedly planning applications. The NDP’s Don Davies and Liberal’s

Nathaniel Erskine-Smith both introduced private members’ bills seeking decriminalization last Parliament. Despite these calls, the federal government continues to reject simple possession decriminalization. They have implemented important reforms, like increased permissions for SCSs and overdose prevention sites, approving the overdose reversing drug naloxone, and amnesty for possession offenses after reporting overdoses (the Good Samaritan Drug Overdose Act). These reforms rely on simple possession decriminalization but are insufficient to slow the tragic overdoses. Many PWUDs and advocates now recognize that simple possession decriminalization is merely a first part to necessary comprehensive reforms, which also likely requires drug trafficking reforms allowing regulated “safe supply” of illegal drugs. PWUD advocacy groups, DULF and VANDU, have operated a “safe supply” (also called a compassion club) program and recently submitted a s. 56 request to relax CDSA s. 5 trafficking controls. The national PWUD group, CAPUD, and four individuals recently launched BC litigation seeking simple possession decriminalization and partial decriminalization for necessity trafficking (including for “safe supply” activities). That action relies on s. 7, 15 (equality), and 12 (freedom from cruel and unusual punishment) rights. Whether these decriminalization calls will ultimately succeed is unclear, however, the continued tragedy of the overdose epidemic shows no signs of slowing, and these calls will only continue to grow until real and radical government action is taken. Dustin Klaudt practises in Vancouver (Klaudt Law). He is counsel to CAPUD and the individuals suing Canada for drug decriminalization. DECEMBER 2021 / BARTALK 21

feature JOHN W. CONROY, QC AND JACK LLOYD

Cannabis in Canada

What has and is happening since “legalization” on October 17, 2018

n an article entitled, Cannabis in Canada, in the June 2018 issue of BarTalk, a background overview and links were provided as to what had happened historically in Canada in relation to cannabis from its “prohibition” in 1923 to its proposed “legalization” in 2018 and 2019 and what was planned. On October 17, 2018, Canada, using its constitutional “criminal law power,” proclaimed, in force, the Cannabis Act making it legal for a person 18 years and older (subject to provincial/territorial legislation making the age higher such as Quebec to age 21 and all other provinces [except Alberta that remains at 18] to age 19), to possess, in public, up to 30 grams of legal cannabis or equivalents as defined (dried, fresh, oil, plants, and seeds) and each “household” to produce up to four plants of any size, again subject to provincial legislation with Manitoba and Quebec continuing to prohibit such (see details below). Also, a “young person” (defined to be 12 years of age or older but under 18 years of age for purposes of section 8-9 and 12 of the Act) is allowed to possess, in public, up to five grams of dried cannabis or equivalents and share amongst each other. However, it is an offence to provide such “young persons” with cannabis and such minors are subject to provincial “minor in possession” legislation. On October 17, 2019, “edibles containing cannabis 22 BARTALK / DECEMBER 2021

and cannabis concentrates” were added to define all the legal “classes of cannabis.” “Distribution” of all these products for non-medical purposes is delegated to the provinces and territories and each has their own specific legislation. Please go to Canada.ca for specific details and links to each as well as to a significant amount of additional information on cannabis generally. Access to cannabis for medical purposes continues to be regulated by the federal government under Part 14 of the Cannabis Regulations and “medically approved patients” can continue to either produce for themselves (“PPL”), have a designated producer (“DGL”) grow for them, or purchase online from a federally “licensed producer for medical purposes.” While it is recommended that all “medically approved patients,” under the since repealed Medical Marijuana Access Regulations (MMAR), apply to be registered under the current Act and regulations, those who were medically approved and had a PPL or DGL valid on September 30, 2013, and an authorization to possess valid on March 21, 2014, continue to be grandfathered by the injunction granted in Allard v Canada 2016 FC 236 that continues “until the court

orders otherwise.” Those documents remain valid on their face (despite stating to be expired) for the place/ location specified and cannot be moved or otherwise changed. If a patient needs to change it, then a new application under the new Act must be made. There is no provision federally or provincially for medical dispensaries to provide medically approved patients with their medicine and there is an ongoing issue between the Community Safety Unit (“CSU”) in British Columbia charged with

enforcing the provincial laws. Arguably they do not have jurisdiction over federal medical dispensaries, only social or recreational dispensaries, under provincial legislation. Two non-profit societies in BC are applying for a federal license to sell for medical purposes only (s.8 (1) and (5) of the Cannabis Regulations) and any exemptions from the existing law if required so they can supply their patients via a physical location instead of only online. Criminal law prohibitions are contained in Part 1 of the Act “Prohibitions, Obligations and Offenses” Division 1 “Criminal activities” Sections 8 through 15. Conduct that is prohibited “unless authorized under this Act” defines the offences, all of which, unlike the Controlled Drugs

and Substances Act (“CDSA”), are hybridized with a variety of summary conviction penalties and a maximum penalty on indictment of 14 years imprisonment. If the Crown elects to proceed by indictment, the maximum 14 years continues to afford an accused the option of a preliminary inquiry but by virtue of s.742.1(c) of the Criminal Code — a Conditional Sentence Order is not available. However, the Ontario Court of Appeal in R v Sharma 2020 ONCA 478, an Indigenous female cocaine import case, declared this section (as well as s.742.1(e)(ii) a prosecution on indictment where the maximum is 10 years involving the import, export, trafficking, or production of drugs) as violating both Section 7 and 15 of the Charter in relation to all offenders with immediate effect. Leave to appeal to the Supreme Court of Canada (“SCC”) was granted January 14, 2021 but no date for hearing is scheduled. Counsel should take note for sentencing purposes in all provinces and be prepared to file Section 7 and 15 challenges pending word from the SCC.

Justice Act applies in relation to all contraventions by youths. While there are ongoing outstanding cases under the CDSA, readers interested in past and present numbers are advised to access the online Statistics Canada Cannabis Stats Hub for the number and nature of violations being prosecuted under the Cannabis Act compared to the CDSA.

Each province can lay Provincial Offences Act charges for selling cannabis without a license. Most charges are prosecuted under the Federal Cannabis Act and remain “criminal” in nature.

Part 2, s. 51-60 provide for “Ticketable Offences” and using Part XXVII of the Criminal Code to prosecute those that possess up to 50 grams or grow five or six plants (among other offenses), and provide fines generally as a penalty and imprisonment in default of payment as well as other specific provisions. This Part appears to be neglected across the country in favor of prosecutions under provincial legislation with large fines imposed instead of criminal convictions.

The Quebec Court of Appeal in AG Quebec v Murray-Hall (2021 QCCA 132) recently overturned a Quebec Superior Court ruling (2019 QCCS 3664) that held that the provinces attempt to absolutely prohibit the growing of four plants per household was an invasion of the federal “criminal law” power and not saved by the province’s ancillary powers.

Provision is continued in the Cannabis Act for a Drug Treatment Court Program and the Youth Criminal

The Court of Appeal held that the provincial law was a valid exercise of provincial authority on the

basis of “cooperative federalism” and that “cannabis” fell within the category allowing the application of the “double aspect” doctrine because the same matter has a federal and provincial aspect and the legislative objectives were complementary: combating the harms of consumption, so there was no conflict between the laws as citizens could comply with both. Each province can lay Provincial Offences Act charges for selling cannabis without a license. Most charges are prosecuted under the Federal Cannabis Act and remain “criminal” in nature. Nova Scotia, New Brunswick, and Quebec almost exclusively use the Federal law. Newfoundland utilizes its ticketing program to a certain degree. Ontario and the Prairies utilize Provincial Offences Act charges as well as Federal charges. Ontario issues tickets for most offences involving possession in a vehicle (typically a fine). In Toronto, most charges are under the Provincial Offences scheme, but outside of Toronto most charges are under the Federal legislation unless in a vehicle. British Columbia uses a mixture of federal and provincial charges. The CSU is authorized to issue Notices of Administrative Monetary Penalties (“NAMPs”) pursuant to s.94 of the Cannabis Licensing and Control Act of BC. S. 94 authorizes the Director to issue NAMPs equal to the amount of cannabis seized and if a hearing is sought, then the Director is mandatorily required to double the penalty being sought. The constitutionality of this mandatory double penalty is currently subject to a constitutional challenge. The old John W. Conroy, QC (johnconroy.com) and the young Jack Lloyd @JackLloydLawyer. DECEMBER 2021 / BARTALK 23

feature

IREHOBHUDE IYIOHA

Tackling Racial Disparities in Legal Education

A pioneer leadership program for Black professionals

his fall, the University of Victoria (“UVic”) introduced a first-of-its-kind leadership program for Black students known as the Black Professionals Leadership Program (“BPL Program”). A familiar set of data led the university here. Most Black students starting law school either at the JD or, in the case of international students, at the graduate level immediately face a new reality: That they are often the only Black student in an entire first year cohort of up to 200+ students, or that they are one of two or three students. There is a diversity problem in Canadian law schools, and Black students are the most disadvantaged racial group. Beyond law school, the legal profession in Canada has a similar problem. A 2019 survey by the Law Society of British Columbia reveals that while nearly 52% of BC lawyers are Caucasians, only 16.15% identified as “visible minority.” It is not clear what percentage of this figure are Blacks. While 23.61% did not disclose their identity, once we extrapolate from the data that Blacks make up only a fraction of the percentage of visible minority lawyers, the dismal ratio of Black to Caucasian lawyers becomes self-evident. This clearly has implications for access to justice for the Black community in all areas of law, including — and perhaps most significantly — in the criminal justice area. For a community that faces institutional racism and is frequently and systemically policed, access to criminal justice is critical for the Black community. About a decade of police 24 BARTALK / DECEMBER 2021

data obtained by CTV in 2018 shows that between 2008 and 2017, Blacks were disproportionately subjected to stops unassociated with any formal investigation and their information collected — a practice known as “carding” — though they make up less than 1% of the population. A year later, nothing had changed as the racial disparities in police checks persisted into 2019. We also know that Blacks are overrepresented in Canadian prisons, accounting for over 8.6% of the federal prison population though they represent only 3% of the population. As a 2021 study by University of Toronto Professor Akwasi OwusuBempah reveals, about one in every 15 young Black men in Ontario has been jailed compared to about one out of every 70 young white men. This data shows an overrepresentation of Blacks in the criminal justice system and an underrepresentation of Blacks in the legal profession. Access to justice is expensive and often a hostile experience for Blacks. In Canada, law schools too are historically perceived as unwelcome spaces for Black students. Besides the everyday racism on campus, the reality of being the only one of your kind in a threeyear program can be intimidating. The Black Professionals Leadership Program addresses these challenges starting with a simple premise: Black students belong in law schools too and law schools ought to give careful thought to their needs and wellness.

Supported by UVic’s Strategic Framework Impact Fund in its pilot stage, the BPL Program is a holistic professional support initiative that implements UVic’s strategic priority to entrench “equity, diversity, inclusion and dialogue throughout the university community so that all members feel welcomed, valued and supported to achieve their highest potentials.” The BPL is unique in its offerings: Comprehensive support frameworks enhancing learning and promoting wellness for Black students enrolled in a university program. With the support of UVic departments and faculties and world-class advisors in Canada and the USA, the BPL supports Black law students through programs designed to improve Black student representation and retention in the legal profession, with a longterm vision of bridging gaps to access to justice. Three services are offered in these inaugural years: Faculty-Mentor support matching Black students with faculty mentors who offer culturally-sensitive learning support to ensure students excel in their core courses and programs; Practitioner-Mentor support matching Black students with legal practitioners; and Leadership-Development seminars and workshops offering skills for life beyond law school, for the job market, business and financial management, and mental wellness. These are provided through partnership with several UVic programs, including the School of Business, History, Engineering, etc., and the faculty-led Mental Health program, “UVic Bounce,” with plans of partnering with the BC Legal community, including law firms. Black students belong in law schools too: The BPL supports this belonging. Professor Irehobhude Iyioha, PhD is Founder/ Director, Black Professionals Leadership Program, University of Victoria, where she researches on the limits of law.

feature

KEVIN WESTELL

the Canadian Charter of Rights and Freedoms.

Commercial Crime

The Commission of Inquiry into Money Laundering

had the pleasure of representing the CBABC at the Commission of Inquiry into Money Laundering in British Columbia along with my cocounsel, Ms. Stephanie Dickson. Final submissions were heard this past October and now, as of the time of writing, both the public at large and the parties await the Commissioner Cullen’s final report.

recommendations may significantly affect how CBABC members will be able to do their jobs going forward. We have also remained acutely aware that, as a public-facing proceeding, the Commission’s recommendations may have a long-term impact on the extent to which clients can feel confident that their dealings with lawyers will remain strictly confidential in the future.

The Commission’s mandate was to conduct hearings and make findings of fact respecting Money Laundering in BC. After hearing the evidence and considering the submissions of counsel, Commissioner Cullen will make whatever recommendations he considers necessary and advisable regarding issues that include:

One of our principal goals was to ensure that the Commissioner was consistently reminded of the essentiality of solicitor-client privilege to the work that lawyers perform in the public interest. We emphasized that any anti-money laundering (“AML”) measure that could interfere with solicitor-client privilege or the related concepts of independence and confidentiality would therefore likely compromise the public interest.

the

extent, growth, evolution, and methods of money laundering within the legal profession;

the

acts or omissions of regulatory authorities or individuals with powers, duties or function in respects of those sectors to determine if those acts or omissions have contributed to Money Laundering in BC;

the

scope and effectiveness of the powers, duties, and functions exercised or carried out by the regulatory authorities; and

barriers to effective law enforcement.

On behalf of CBABC, we approached the Commission with the interests of the members (over 7,000 BC lawyers in all practice areas) in mind. We recognized that Commission Cullen’s ultimate conclusions and

The

duty of confidentiality refers to a lawyer’s ethical and professional obligation not to disclose to anyone information received from a client in the course of a professional relationship.

Solicitor-client

privilege is narrower in scope and refers to the sacrosanct privilege that attaches to communications between lawyer and client relating to the giving or receiving of legal advice. It is a principle of fundamental justice and protected by s. 7 of

“Independence”

in the context of the role that individual lawyers must play in relation to their clients refers to the proposition that the state cannot impose duties on lawyers that interfere with their duty of commitment to advancing their clients’ legitimate interests.

Through our examination of key witnesses and in our submissions, we also sought to dispel and rebut the well-publicized, yet unfounded claims that lawyers and the legal profession were a primary contributor to the money laundering crisis. Besides adopting the recommendations of Law Society of British Columbia, the CBA made two specific recommendations to the Commission: that

the government refrain from creating a regulatory AML regime for lawyers (or attempting to apply an existing regulatory AML regime to lawyers); and that

the Commission explicitly recognize the essential nature and constitutional and legal character of certain foundational elements of the lawyer-client relationship, namely the independence of lawyers, the duty of confidentiality and solicitor-client privilege.

Whether these recommendations have found favor with the Commissioner remains to be seen. Like the public, the CBABC’s members will simply have to wait for the final report. Kevin Westell practises criminal, regulatory and administrative law. He is a partner at Pender Litigation and has been a CBA member since 2008. DECEMBER 2021 / BARTALK 25

sectiontalk Fall 2021 Section Meetings CBABC Sections have been very busy this fall, with more than 70 events being held since September 1. Most sessions are now available as recordings; here are a few of the most popular.

u CHANGES TO THE LAND TITLE & SURVEY AUTHORITY OF BC

Commercial & Real Estate–Okanagan hosted Larry Blaschuk, the Land Title & Survey Authority (“LTSA”) Registrar, who discussed the tips and traps for filing to the Land Owner Transparency Registry (“LOTR”), and information about which documents should be registered to the LTSA. Wills & Trusts–Okanagan hosted Nancy Ling and Taeya Fitzpatrick who discussed the impact of the LOTR’s requirements on landowners.

u GUARDING AGAINST UNDUE INFLUENCE, FROM THE OFFICE TO THE COURTROOM

Wills & Trusts–Vancouver hosted Tara Britnell, QC, who discussed her role in Seifred v. Arnold, 2021 BCSC 278, a hotly contested committeeship application involving a Nomination of Committee alleged to have been made under undue influence. In addition, Tara offered practical tips for solicitors and litigators on how to guard against undue influence.

u KEEPING UP WITH THE CHANGES TO THE DIVORCE ACT

Significant changes to the Divorce Act became effective in March 2021. Family Law–Vancouver hosted John-Paul E. Boyd, QC, who discussed the relocation provisions of the Act, as well as related caselaw.

Real Property Sections Encourage LOTR Extension Through the efforts of the Commercial & Real Estate, Real Property–Vancouver, and the Solicitors’ General Practice Sections, the BC government has extended the filing deadline for the LOTR by a full year to November 30, 2022. A letter was written by the Section members and submitted to the provincial government, encouraging government to provide greater support and more time for clients to work with legal professionals in charge of filing their paperwork. The LOTR is designed to help end hidden ownership and money laundering, yet legal professionals were faced with administrative hurdles and time constraints with regards to the former filing deadline.

Indigenous Lawyers Seek Bencher Positions The Aboriginal Lawyers Forum (“ALF”) worked collectively to support Indigenous candidates running in the Law Society of BC (“LSBC”) Bencher Elections. ALF hosted a series of Meet the Candidate meetings, where attendees could engage in a live Q&A with the Bencher nominees. LSBC is currently undertaking three initiatives with specific impacts for Indigenous peoples, and in light of this, ALF identified a significant need for Indigenous peoples to be represented at the Bencher table and encouraged all CBABC members to consider Indigenous candidates in the election.

Funding Applications Now Open: Hire a Law Student to Work in Your Rural Community in Summer ‘22 Apply Today

26 BARTALK / DECEMBER 2021

RURAL EDUCATION & ACCESS TO LAWYERS

\ EMAIL: SECTIONS@CBABC.ORG

SOGIC UPDATE — by Dustin Klaudt (he/him)

CBABC SOGIC Summary of Criminal Law-Related Education and Advocacy Despite, criminal law reform advocacy generally falling under the purview of CBA National, the CBABC Sexual Orientation and Gender Identity Community Section (“SOGIC”) has engaged in and is planning various criminal law-related education and advocacy initiatives. Last December, on World AIDS Day, SOGIC held a panel discussion on the present state of Criminalization of HIV in Canada. SOGIC continues to support the CBA’s request for urgent reform, in consultation with the HIV community, to bring the existing law in line with science and human rights and in a manner that is supportive of current HIV care, treatment, and prevention. CBABC has previously highlighted the movement to criminally ban conversion practices. With the federal government’s commitment, in their past campaign platform, to reintroduce legislation within their first 100 days, SOGIC continues to encourage prompt passage of a future bill (developed in consultation with the conversion practices survivors community). We will also continue to advocate that the provincial government effectively utilize all the powers available to it (including the creation of a related regulatory provincial offence). We welcome the BC Green’s recent modified private members’ bill (M 204-2021) on conversion practices as a good start toward effective provincial protections.

WLF UPDATE by Kyla Lee

Gender Discrimination in Impaired Driving Law Canadian impaired driving legislation has not been considered through an intersectional feminist lens. The 80mg% standard was developed in the 1950s, using research involving predominately European male subjects. At this time, it was determined that 80mg% represented universal impairment in the ability to drive. However, the cis male and cis female bodies develop a blood alcohol concentration differently, assuming all other factors such as weight and consumption are equal. To calculate a cis male’s blood alcohol level compared to a cis female’s blood alcohol level, the male blood alcohol level is multiplied by 1.17. While a male may not reach 80mg% after two beers, a female body may. The 80mg% threshold may therefore be inappropriate when applied to women. The situation becomes even more complex when considering people who are transitioning. The Criminal Code does not set out a formula to calculate blood alcohol level for trans or non-binary individuals. As the calculations are gender-based, they are not inclusive. Impairment science has not explored how the blood alcohol concentration of individuals at various stages of transitioning may be impacted. These calculations should therefore be reexamined in order to prevent a discriminatory legislative and scientific gap.

DECEMBER 2021 / BARTALK 27

practicetalk DAVID J. BILINSKY

Criminal Law and Technology Criminal lawyers at the crossroads r Sex crime, sex crime

Nineteen eighty four Nineteen eighty four... r

— Music & Lyrics by A. Lennox, D. A. Stewart, recorded by The Eurythmics.

hat will criminal law look like in 2041? There is a host of technologies being developed that are reshaping the entire criminal law playing field. From artificial intelligence (“AI”) to developments in surveillance, biometrics, DNA analysis, cellular triangulation, evidence analysis, voice recognition systems, advanced camera and image analysis and enhancement, Internet search technologies, the growth of the “dark web,” facial and voice recognition software, robotics, “shot spotter” technology, licence plate recognition, and many others that seem to walk out from CSI TV episodes and into our lives. Other emerging projects seek to use real time computer and pattern analysis to predict and prevent crime. Using a network of cameras and technologies, these projects analyze and assess suspicious activity and thereby highlight potential emergent criminal behaviour, alerting authorities far faster than traditional methods. Still other projects seek to use AI to predict elder victims of financial and physical abuse, allowing authorities to intervene to prevent or stop such exploitation. Robots and drones can be utilized to inform police regarding potentially dangerous situations and assist with public safety without putting the public and/or police in harm’s way. 28 BARTALK / DECEMBER 2021

DNA analysis is growing increasingly sophisticated; enhanced by the growth in forensic sciences. On the court side, there is the increased growth and development of court management computer systems worldwide and the increased realization of the benefits that such systems bring to the administration of criminal justice. There is the work of such academic and non-profit organizations worldwide such as HiiL (The Hague Institute for Innovation of Law) that combine a data and research-based approach and best practices to promote people-based access to justice solutions. Increasingly, courts worldwide are slowly gaining access to technology in order to present the range of high-tech evidence being collected by police and prosecutors working together. The Air India case in BC was a good example of a hightech court designed around the needs of the Crown to present the volumes of video and documentary evidence that were amassed during the case efficiently and effectively. Then there is the growth of trial preparation and trial presentation software along with case management systems available to defence lawyers to assist in the handling and presentation of their cases. From simple PowerPoint files to sophisticated trial presentation software on iPads, tablets, laptops, and other devices, to transcript, audio and video analysis tools, and others, criminal defence lawyers can present, highlight, callout, compare, present, and emphasize evidence in ways never before possible that serve their client’s needs.

Technology is a tool. In the context of criminal law, it also raises ethical issues such as the due protection of privacy and the protection of constitutional rights. It raises issues of inherent bias built into algorithms and data analysis. There is the issue of transparency of such systems, as many will be proprietary and not open to analysis. Neural networks, quantum computing and other such emerging computing technologies are not well understood and, as such, explaining how they arrive at their conclusions may not even be possible. There is the danger of profiling and unfairly targeting individuals and/ or groups. There is the danger of using systems to determine recidivism, particularly if someone is assessed at low risk and then goes on to commit violent acts. Nineteen Eighty-Four gave us one insight into how technology, applied for the wrong purposes, could be used to control a whole world. Criminal lawyers stand at the crossroads, guarding against such excesses and protecting liberties. But to do so, they must understand the emerging high-tech landscape in order to exercise their persuasive powers against such misuses. The views expressed herein are strictly those of David Bilinsky and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members. David J. Bilinsky is the principal of Thoughtful Legal Management, a technology and practice management consultancy and is the former Practice Management Advisor, Law Society of British Columbia. Email: daveb@thoughtfullaw.com Blog: thoughtfullaw.com

dave’s techtips

So what technologies are out there for a criminal lawyer to run their practices? uuu TRIAL DIRECTOR (ipro.com/products/trialdirector) is one of the leading trial presentation software packages available for trial lawyers. It

allows you to load in all transcripts and video evidence and organize your evidence into trial notebooks.

You

can attach, view, and link exhibits and create a witness binder and exhibit lists.

Evidence

can be presented by video clip and documents sections can be called out, zoomed and highlighted. Document sections can be placed side by side for comparisons, overlaid, and redacted if necessary.

You

can share document subsets securely with expert witnesses and consultants.

Trial

teams can share the same case notebook with team members who work from a central trial notebook.

uuu TRIALPAD, TRANSCRIPTPAD, DOCREVIEWPAD, EXHIBITPAD (litsoftware.com) is a suite of litigation tools designed for use on an iPad. This suite of applications takes a litigator through the whole process of preparing for trial, including: document review, organizing documents for trial, loading exhibits with notes, reviewing transcripts, and then organizing it all into a trial notebook for presentation in court with dynamic exhibits, call-outs, and more. uuu COSMOLEX (cosmolex.com) is a fully-integrated general and trust accounting system with practice management. This onestop solution provides you with all the systems to be compliant with both general accounting (balance sheet, income statement, accounts payable and receivable, and all other required accounting reports) as well as trust accounting (compliant with all Law Society trust accounting requirements) plus practice management (client lists, file lists, conflict checks, limitation date reminders, calendaring and bring-forward reminders, document management, email management, etc.) that a criminal lawyer needs to run both the business as well as the practice sides of their practices. uuu MICROSOFT HOME AND BUSINESS OR MICROSOFT OFFICE 365 (microsoft.com/ en-us/microsoft-365/get-startedwith-office-2021) provides you with desktop or cloud-based versions of Word, Excel, PowerPoint, Outlook, and more

to perform all the email, communication, word processing, and other functions you will need as a practising lawyer. Alternatively, you can use the Apple suite that comes installed on a Mac (Pages, Numbers, Presentations, Mail) to accomplish the same functions in a Mac environment. uuu SYNC.COM (sync.com) provides you with secure file backup, storage, and sharing based in Canada. This is a secure alternative to Dropbox that protects your practice against Ransomwear. uuu SCANSNAP IX1500 (fujitsu.com/us/products/ computing/peripheral/scanners/ scansnap/ix1500) is the scanning workhorse of the legal field. With full duplex scanning via its sheet feeder, the ScanSnap assists in taking paper documents and converting them into fully textsearchable documents that can take your practice paperless. uuu SMARTPHONE There are many excellent smartphones like the iPhone 13, Google Pixel 6, or Samsung Galaxy A32, depending on whether you prefer the iOS or Android environment. More important that the phone, I believe, is your choice of carrier and data plan. A litigator is on the road a lot: choose a carrier with great service in the area(s) where you will be operating most often to avoid dropped calls and poor reception. © 2021 David J. Bilinsky

DECEMBER 2021 / BARTALK 29

communitynews Update on Parentage Law Reform Project BCLI has been at work for a little over a year on a project to reform the law of parentage. The project’s focus is part 3 of the Family Law Act. This legislation provides an answer to the question of who is legally a child’s parent. It is meant to be comprehensive, covering children conceived by sexual intercourse or assisted human reproduction. Part 3 came into force in March 2013. Since that time, there have been developments in medicine and society that may call for reforms to part 3. BCLI has formed an expert project committee, made up of a wide range of professionals. The project committee has been meeting regularly throughout 2021. It began with a big-picture overview of legal and social trends affecting parentage law. Lately, its meetings focus on discrete legal issues for reform of part 3 of the Family Law Act. The committee has been reviewing court orders declaring parentage. It has plans to move on to parentage agreements, surrogacy, and other substantive provisions of part 3. The goal is to develop proposals for a public consultation next year. In the meantime, you can follow the committee’s progress at bcli.org.

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nothingofficial TONY WILSON, QC

“I’m Not a Miracle Worker, I’m a Janitor” Why Michael Clayton is still the best lawyer movie

hen my son was doing his economics degree a decade ago at UVic, he regularly badgered me to watch the latest “lawyer movie” he’d just seen. It was Ridley Scott’s “The Counsellor.” The film chronicles a lawyer mixed up with Mexican drug lords, and involves deceit, money, murder, sex, and decapitations. After watching it, I told him it was a dark, dangerous, and gory film, but at times, philosophical and cerebral. Always the jokester, he said the whole thing was a big practical joke on me, and that it was the worst movie he’d ever seen. Not liking my puns, he said I wasn’t allowed to describe a movie as “cerebral” anymore, especially if it had decapitations. That begs the question. Are there any good lawyer movies out there? Obviously, everyone has their favourite. 1997s “The Devil’s Advocate” lost me when it became clear that Al Pacino was The Devil. I learned from Tom Cruise’s 1993 “The Firm” that it’s mail fraud if you premium an account! (Who knew?) Having taught ethics at a law school since 2015, “The Paper Chase” is one of my all-time favourites. “Legally Blonde” is another “Law School” movie but it’s as authentic as “Spaceballs.” I liked Aaron Sorkin’s film about the Chicago 7 (particularly Sacha Baron Cohen’s courtroom scenes). I never liked 1979s Kramer versus Kramer because, at the time, my parents were going through a divorce. “Anatomy of a Murder” is a classic,

especially when Jimmy Stewart provides four defences to murder and asks the defendant which category he falls into. But my favourite is still Tony Gilroy’s “Michael Clayton,” where George Clooney plays a Manhattan lawyer who does more “fixing” than “lawyering” while struggling with a bad business investment, a gambling problem, a divorce, a young son, a firm merger, three horses who save his sanity (and his life), and a partner at the firm who, in the process of a mental breakdown, realizes that he and his law firm are defending evil. Here, evil isn’t a Bond villain or Osama Bin Laden. Here, it is an agri-business client whose weedkiller is also killing farmers, whose CEO is trying to cover it up, and whose obsequious in-house lawyer (Tilda Swinton) will do anything (including murder) to put her client’s darkest interests ahead of her own ethical duties. It has some of the best lines in lawyer movies. Clooney’s character tells an obnoxious client who committed a hit-and-run and expects him to perform a miracle: “There’s no play here. There’s no angle. I’m not a miracle worker, I’m a janitor.” After a failed attempt on his life orchestrated by Swinton’s ethically challenged corporate counsel, he says: “I’m not the guy you kill. I’m the guy you buy.” When he tells his boss

that their firm is on the wrong side of the herbicide-kills-farmers file, Sydney Pollock, (as the managing partner), admits the client’s liability and says: “This is news? The case reeked from Day One. I’ve got to tell you how we pay the rent here?” In other words, it was in client’s interest as much as the firm’s to delay and obfuscate; churning the fees while the plaintiffs eventually gave up or died. The movie has become such a classic that James Parker of The Atlantic re-reviewed it 10 years after its release and mentioned another character lurking in the foreground: “Evil.” Comparing the movie with The Devil’s Advocate, he says: “there’s no lively, twinkling Satan/Pacino in Michael Clayton, no CIA master villain. Evil is not an active principle in this universe; it is a sluggish compound of evasion, appetite, and self-interest. It gathers around your ankles.” In real life, Evil isn’t as camp and obvious as the Devil or a Bond villain. But when you think evasion, appetite, and self-interest are starting to gather around your ankles, you should probably watch Michael Clayton again. Tony Wilson, QC is a Life Bencher of the Law Society, a Vancouver Franchise Lawyer, humourist, self-professed thought leader and all-around raconteur. Consequently, the views expressed herein are his alone and do not reflect the opinions of the Law Society, the CBABC, or their respective members. DECEMBER 2021 / BARTALK 31

communitynews TIPS FROM

Stacks and Stacks of Legal Acumen Criminal lawyers are often solos — which means no one to share the costs of professional publications. If you can’t spare tens of thousands of dollars to stock your own private library, come learn about our vast criminal law collection.

CLBC’s subscriptions include CriminalSource (from Westlaw Canada), with 18 major criminal law texts and annotations (in addition to 13 criminal law periodicals, newsletters, and bulletins). These titles alone would cost over $14,000 if bought directly. We also offer Lexis Advance Quicklaw’s criminal law package, which features the latest The Practitioner’s Criminal Code, 2022 Ed. by Alan D. Gold. This package also includes NetLetters on precise topics, case digests, and texts from prominent authors. Then there are the books in print. Over 220 books on Canadian criminal law have circulated on loan from our collection since the beginning of 2021. And, as always, more journals, ebooks, and other tools (e.g., Rangefindr) are available for free through our Remote Access to Subscription Databases service. Go to courthouselibrary.ca, select Remote Access to Subscription Databases (under the How We Can Help tab) and activate your free Courthouse Libraries BC account. You’ll see that Irwin Law (over 150 ebook titles) uses a new platform called vLex, which makes searching and printing excerpts more simple than ever. If you’re feeling overwhelmed, just ask us for help. Our librarians can be reached by phone at 1-800-665-2570, or anytime by email via librarian@courthouselibrary.ca.

CLEBC is Proud to Announce the 35th Update of Canadian Criminal Jury Instructions In 1984, The Honourable Mr. Justice Bouck of the British Columbia Supreme Court approached CLEBC about publishing standard jury instructions in the criminal and civil areas. We agreed to undertake the project, persuaded that such volumes would benefit the Bench and Bar and enhance the administration of justice in Canada. The first edition of Canadian Criminal Jury Instructions (“CRIMJI”) was published in the fall of 1987 and has been updated annually.

32 BARTALK / DECEMBER 2021

CRIMJI contains more than 150 standard instructions covering trial procedure, rules of evidence, offences, and defences. The instructions present the law in an organized, orderly way, in language that is easy to understand. While standard instructions are, of necessity, somewhat generic in nature, a fair degree of customization is made possible by the user notes and the presentation of alternatives and blanks to fill in with case-specific information. In addition, CRIMJI instructions can be modified electronically by downloading the instructions, which are available on CD-ROM, as well as the online version of CRIMJI.

Many people have contributed to CRIMJI over the years, but there are a few that stand out and to whom CLEBC would like to express special thanks. The founding authors — the late Mr. Justice John Bouck and Professor Gerry Ferguson — brought an incredible amount of time, energy, and commitment to this project, and deserve much credit for the significant contribution they have made to the administration of justice in Canada. The 35th CRIMJI update will be available in December 2021.

communitynews The Law Foundation of BC’s 2020 Annual Report is Now Available Online. Please note that due to a printing error the print version of the Annual Report contains an error in the Financial Highlights on page 34. The narrative description of the Foundation’s expenditures was correct, but the bar chart labelled “Expenses” should have reported the Foundation’s total grants and expenditures as $32,856,993 (incorrectly printed as $32,856,990), including total grants approved of $30,282,532 (incorrectly printed as $32,282,529). We apologize for this unfortunate error. The digital copy that was distributed electronically did not contain this error. You can find the correct digital copy of the Annual Report online at the Law Foundation of BC’s website: lawfoundationbc.org/our-work/annual-report

Abbotsford Courthouse and CLBC’s 30th Location In September 2021, Courthouse Libraries BC (“CLBC”) opened its 30th location in the Abbotsford Courthouse — the first entirely new courthouse built in BC in almost 20 years. The project was funded by the Law Foundation of BC and the Law Society of BC, with facilities support from the BC Ministry of Attorney General. Although COVID put a damper on opening-party plans, fulltime local librarian Harman Arora has been actively engaging with the local courthouse community, local Bars and public libraries to spread the word about this valuable new resource available to the people of Abbotsford and area. She has also been assisting local and visiting lawyers during regular weekday hours, as well as members of the public by appointment. The library’s three public computers — with access to all the CLBC digital legal databases, online public legal information through ClickLaw, and the productivity tools (Word, Excel etc.) required to draft forms and documents — are a big attraction at the new facility. If you have a legal inquiry or research question, your local CLBC law librarian is a great resource. Anyone in the province can access CLBC law librarian expertise by phoning 1-800-665-2570 or emailing librarian@courthouselibrary.ca. If you want to contact the Abbotsford library directly, you can call 778-666-2953 during public hours Monday to Friday, 9am-12:30pm and 1pm-4pm, or email anytime to abbotsford@courthouselibrary.ca. BC’s courthouse library collections are uniquely focused on practice-relevant legal resources, and CLBC is committed to curating the Abbotsford law library collection to directly meet local needs. If there’s a resource you’re looking for or want to recommend, contact Harman, and help build-up the best new courthouse library in BC.

DECEMBER 2021 / BARTALK 33

barmoves Who’s Moving Where and When Andy Chow

Pamela Lindsay

joined MLT Aikins growing Trademark team. Andy, who is based in the firm’s Vancouver office, is a seasoned patent and trademark lawyer.

joined the partnership of Lindsay Kenney LLP. Pam’s practice focuses on Business Law.

Fiona Wong

Chad Gerson

recently joined Lesperance Mendes as a litigation associate, focusing on strata governance and employment issues. She completed her articles at a national firm and was called in 2021.

joined the partnership of Lindsay Kenney LLP. Chad’s practice primarily focuses on Business Law.

Jordan Bell

Tamara Dewar

joined Lawson Lundell as an associate in their Corporate Commercial group. Jordan was called to the British Columbia Bar in 2021.

joined the partnership of Lindsay Kenney LLP. Tamara’s practice focuses primarily on Estate Litigation and Employment and Labour law.

Gagan Dosanjh

Christopher Ness

joined Lawson Lundell as an associate in their Corporate Commercial group. Gagan was called to the British Columbia Bar in 2021.

joined KSW Lawyers as an associate assisting clients with all corporate, business and real estate matters, including incorporations, corporate reorganizations, commercial lending and borrowing, and more.

Katherine Zhou

Katie Matthews

joined Lawson Lundell as an associate in their Banking and Debt Financing group. Katherine was called to the British Columbia Bar in 2021.

joined KSW Lawyers after graduating from Thompson Rivers University and completing her articles in 2021. She currently practises general litigation with a primary focus in insurance defence.

34 BARTALK / DECEMBER 2021

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.

Marichelle Defensor-Jiloca

Taylor Stone

joined Lawson Lundell as an associate in their China group. Marichelle was called to the British Columbia Bar in 2020.

joined Jamal Law Group as an associate working with clients in family law.

Cheri Eklund

Gurvir Sandhu

joined Eyford Partners as an associate. The primary focus of Cheri’s practice is the resolution of insurance disputes through mutual agreement, mediation, or the trial process.

joined EKB LLP as an associate. Gurvir’s practice focuses on business law, including corporate governance, securities compliance, mergers & acquisitions, and general corporate commercial matters.

Drummond Lambert

Faraz Ravanbakhsh

joined Eyford Partners as an associate. Drummond carries on a broad practice that includes construction litigation, Aboriginal law, commercial litigation, insurance defence, and judicial review.

joined Harper Grey LLP’s Commercial Litigation and Construction Law groups. Faraz was called to the BC Bar in 2019 and was previously with McLean Armstrong in West Vancouver.

Brooke Fortugno

Roshni Veerapen

joined Eyford Partners as an associate after recently being called to the British Columbia Bar. Brooke’s practice includes commercial litigation, insurance defence, judicial review, and employment disputes.

joined Harper Grey LLP’s Health Law and Professional Regulation. Roshni was called to the BC Bar in 2014 and was previously in-house counsel with the College of Dental Surgeons of BC.

Kyle Friesen

Aaron Kandola

is General Counsel, Legal Services at the new Surrey Police Service, following more than 22 years as Legal Advisor to the RCMP in British Columbia.

joined Harper Grey LLP’s Business Law group, advising on corporate/ commercial, and real estate matters.

DECEMBER 2021 / BARTALK 35

Putting it all together With a defined benefit pension plan for Canada’s legal community. 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 predictable retirement pension income for lawyers and staff. Everyone benefits.

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• Attract and retain top talent. • Reduced costs, risks and administration. • Eliminates compliance and fiduciary risks of administering a pension.

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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. 08/2021

BarTalk December 2021 | Criminal Law

Articles inside

Annual Report and CLBC’s 30th Location

BarMoves

I’m Not a Miracle Worker. I’m a Janitor

So what technologies are out there for a criminal lawyer to run their practices?

Tackling Racial Disparities in Legal Education

Commercial Crime

Cannabis in Canada

Calls to Decriminalize Simple Drug Possession Expand as Overdose Epidemic Worsens

The Secret to Getting Engaged

Professional Development

Gladue Principles and Indigenous Identity

Making Settlement Conferences Work for Unrepresented Litigants

Elder Abuse and Neglect

Indigenous Children, Youth, and Family Identity

Failure to Obey Court Orders

Advocacy in Action

Learning to Unlearn

Transformative Justice and Gender-Based Violence

Working With Your Regulator While Police Watch

Having the Difficult Conversations

One Size Does Not Fit All

Defending White-Collar Crime Cases

Imprisonment, Truth, and Reconciliation