BarTalk December 2022 | Activism & The Law

Activism & the Law

professionaldevelopment

CBABC’s

Catch up on your CPD hours before December 31 cbabc.org/OnDemand

Truth & Reconciliation Series

Career Starter Series

Data, Drugs & Disorientation

CONFERENCES ON THE HORIZON

PRIVACY LAW CONFERENCE | January 27, 2023 | Explore: cbabc.org/privacy Sutton Place Hotel, Vancouver Privacy law is continuously and rapidly evolving. To succeed, lawyers must understand these changes on a global level and how they apply practically at the local level. The 2023 Privacy Law Conference features six educational sessions led by the authorities on privacy law, with a special keynote presentation by Michael McEvoy, Information and Privacy Commissioner for BC.

IMMIGRATION

LAW CONFERENCE | March 3, 2023

Pinnacle Hotel Harbourfront, Vancouver

Join us for our annual provincial Immigration Conference, where you are invited to network, collaborate, and take part in-depth educational sessions and conversations about the latest in practice and policy.

FAMILY LAW CONFERENCE | April 27-28, 2023

Sparkling Hill Resort & Spa, Vernon

This two-day conference takes place in beautiful Okanagan, where we bring you topical discussions in all matters of Family Law, our venerable year in review with Aaron Franks and Todd Bell, the much-anticipated annual Reception Dinner, and more…

Columns

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 7,600 members in British Columbia. We connect our members to the people, knowledge, and skills they need to successfully practice.

FROM THE PRESIDENT

ALEEM BHARMAL, KC

Roots, Food, Culture, and Activism

This past September, I had my CBABC President’s Reception at the recently renovated and beautiful Heritage Hall in my neighbourhood of East Van. I was especially moved that the event featured the food from my cousin Nazir Bharmal’s restaurant, Cayenne Bistro.

This is, in fact, the food I grew up with, with its roots in the Gujurat region of India, where all my grand parents originated — a cuisine that was then strongly influenced by the flavours of East Africa, where my grandparents moved in the early 1900s, as part of the South Asian diaspora moving to that area of the world looking for better opportunity.

That is where my parents were both born and raised, in Tanzania, before the upheaval of the late 1960s and early 70s when the col onial governments of that region were being overthrown, along with a rise in hostility toward South Asians who were seen, not entirely unjustifiably, as part of the previous power structure.

My parents’ community was part of the merchant class in those East African societies. When the disrup tion occurred, they were caught in the middle and lost everything. A large part of that displaced com munity eventually came to Canada as part of the first large wave of non-European refugee immigration to this country.

A similar tale to the one I have described above was more recently much better told by the renowned journalist, Omar Sachedina, both in his article in the Globe & Mail and then in a related TV special on CTV (although my parents’ similar path originated in Tanzania and not Uganda, as his parents’ journey did).

Then, in the late 1970s, my parents adopted my youngest sister, who was one of those then referred to as the “Boat People” from Vietnam, who came to Canada as refugees after the Fall of Saigon. My sister, Ayesha, came over as part of “Operation Baby Lift,” which rescued children from Canadian run orphanages in that part of the world.

All of this is to say, that this rich history and growing up in the largely immigrant neighbour hoods of Scarborough, just outside the City of Toronto, has informed my sense of who I am and what it means to be Canadian. One of the things I’ve learned is to never be complacent and to always be act ively pushing forward and advocat ing to make our society more inclu sive and welcoming.

At CBABC, we’ve come a long way. It was not that long ago that Jennifer Chow became the first person of colour to be CBABC President in 2015. Since then, she’s been followed by Margaret Mereigh, who was a

strong supporter and influence on not just me, but our new First VicePresident, Scott Morishita.

At the national CBA level, it was only a few years ago we had our first person of colour to be President, Vivian Salmon, who is Black. Since then, we had our first Indigenous President, Brad Regher, who I learned was also heavily influenced and supported by Margaret to run.

Today, we have Steeves Bujold as the new CBA National President, the first openly gay man to hold that pos ition. He is promising a bold and progres sive agenda, including an emphasis on trans inclusivity within the profession, an effort in which our Second Vice-President, Lee Nevens, will be heavily involved. And I am happy to say that Lee will be our first trans, non-binary CBABC President in just a couple of years’ time.

I would hazard to guess that our present Board may be the most diverse we’ve had. I am so excited to be working with this incredibly diverse team, almost all of whom I’ve worked with in some capacity in the past — I can’t wait to see what we accomplish!

Aleem Bharmal, KC president@cbabc.org

EXECUTIVE DIRECTOR

KERRY L. SIMMONS, KC

Call to Action

Explaining the independence of the Bench and the Bar

The recent municipal elec tion campaign in British Columbia highlighted a disappointing and dis turbing trend: the public, even candidates in the democratic election process, do not understand the responsibilities and limitations of the role of judges and lawyers in our society. They don’t understand the protections our justice system struc ture provides for everyone.

This trend was further evident in the discourse about stranger vio lence and repeat offenders in every corner of the province, a dialogue that surged following the September release of the Bulter/LePard report, A Rapid Investigation into Repeat Offending and Random Stranger Violence in British Columbia. Even some experienced provincial polit icians appeared to have forgotten their civics lessons, including what level of government is responsible for the Criminal Code

Canadian judges, who are independ ently appointed through a rigorous application process and review, apply the law based on the facts pre sented to them in accordance with the rules of evidence. They are not subject to external influences such as political pressure and public opinion. Sure, they read the news like everyone else, but their role requires them to make decisions, hard decisions, based on the facts and law of the particular case before them. This focus protects all of us in our community.

Laws are made by politicians. They are the ones who are accountable to

the general public. Don’t like the law about judicial interim release? Talk to your federal Member of Parliament. Don’t like that people with serious mental health conditions are on the street and stealing to survive or harming others? Talk to your provin cial and municipal politicians about much better health, housing, and social policies.

As lawyers, with a much better understanding of legal and justice systems, we have an obliga tion to inform general society about these basic democratic princi ples. We have all sworn to protect and promote the rule of law, and that requires us to repeatedly and routinely explain to our friends, family, clients, and strangers how the system works and what is meant by judicial independence and lawyer independence. For a relatable video about judicial independence, share this video prepared by the Canadian Bar Association.

When lawyers, CBA, and the Law Society take up this call to action, to explain judicial independence and the respective roles of judicial, executive, and legislative branches of government, we too will come under attack. It is happening all over the world. Lawyers, representing their clients, are alleged to be just like their client. The concept that we “repre sent” our clients, and are not in agree ment with them, is lost on much of the public. You see this in assertions when lawyers represent clients, from individuals to major corporations,

who challenge government deci sions and policies. You see it in com mentary about Crown counsel, and particularly with respect to crim inal defence counsel. Marie Henein, one of Canada’s best lawyers, has been eloquently speaking for some time about the attacks on lawyers for simply doing their job. Earlier this year she deliv ered the Law Society of BC Rule of Law Lecture. That lecture, the related podcast and her book, “Nothing But the Truth,” should be required for every lawyer to review. It will give you a boost of energy to take up the job of reminding people of why lawyers matter and why democracy depends on us.

I invite all of you to renew your commitment to protecting the rule of law and take up this call to action. The public needs a justice and legal system they can understand, be con fident about, and can access. Very public actors are broadening their criticism, most of it undeserved and based on misunderstanding, mis information, and political agendas. Lawyers must and will defend against attacks on our role and that of judges. Democracy depends on it.

Kerry L. Simmons, KC ksimmons@cbabc.org

MAYA LEBRUN

It is Time Our Voices are Heard

Youths are not 1-dimen sional names in a stack of documents in the courtroom, they are individuals who have a right to have their views and experiences heard in the court on an ongoing basis. As a youth who spent seven years in part of the legal system, I have learned how effect ive it is to have a youth’s input in the courtroom and their involve ment in the evolution of our system. While impacted by the legal system, I experienced social workers, police, lawyers, court-appointed psych ologists, and the occurrence of over 100 court interactions. The family justice system was a major part of my childhood, which has given me insight into its beneficial and nonbeneficial parts. The best asset I found was a free children’s lawyer, who represented my two sisters and me, and ultimately saw us protected from our abuser.

There is a common notion that informing children of what is hap pening in court adds unnecessary stress to their lives, but the truth is they are stressed regardless. Their lives are already chaotic without the added ambiguity of not knowing what is going on in court. If a child chooses to engage in the process with a lawyer, it will be stressful; but this stress is unto working toward a desired outcome, that of having their needs and desires expressed in the process. This is in preference to the stress induced by being tossed

around by detrimental decisions that were made without our input.

Having a lawyer gives children the ability to have their feelings, needs, and experiences accurately repre sented to the judge. Children’s lawyers help kids under stand how the system works and prepare them emotionally and men tally for the process. They explain in an unbiased and educated manner what is going on in each hearing, and how it will affect them. This allows children to manage their expecta tions for each court date and understand that not all hearings will bring a solution or decision. Children’s legal representation gives kids the ability to receive legal advice to make informed decisions about how they

and empowering method for adher ing to children’s legal rights. Other models like a Friend to the Court and the Best Interest Model remove the major benefit of lawyer-client privilege1. Solicitor-client model is the only place in the system where children have complete confidenti ality. With all other professionals, children are at the mercy of their interpretation of their views and the accuracy of how they are conveyed to the court.

It is vital that youth’s voices are represented and acknowledged in any legal process that impacts their lives. As most legal pro ceedings revolve around the child’s life, it is vital that they have their needs and perspective continuously presented in court and media tion through their own representation. It is not enough to hear from us from singular reports that quickly become outdated, and do not speak to the evolv ing needs in our life. Furthermore, youth voices need to be central to any movement to reform the system. Family justice system actors need to hear from young people who lived through the system when consid ering reform measures. Empowered youth who experienced the system firsthand are vital to identify fault lines and calling out ill-conceived ideas of what the best interests of the child actually are

want to proceed through the system to get the result they want, which for my sisters and I was no contact with our abusive parent.

The relationship we had with our lawyer was a solicitor-client-based model, which is the most proactive

1 I would like to note these alternative methods are effective for infants and children who are unable to articulate their needs or cannot in struct, but once a child can instruct and articu late they deserve to have an unfiltered voice.

Maya is currently studying law. She advocates for children’s rights as a speaker, board member for Mediate BC, and multiple groups aiming to heal the family justice system.

Changing the system so youth voices can be heard

It is vital that youth’s voices are represented and acknowledged in any legal process that impacts their lives.

PATRICK CANNING

Protest in the Age of Code Red The many faces of the rule of law

Last year I argued against extending the Fairy Creek injunction, along with my then-co-coun sel Phil Dwyer and Charlotte Chamberlain, and other lawyers and parties involved. The date, Sept 15, 2021, was memorable for me because it was my birthday, we won, and it was exactly 28 years after blockading old-growth logging at Clayoquot Sound.

The Fairy Creek protests became the largest act of civil disobedience, by number of arrests, in Canadian history. And then — the trucker’s convoy happened. We saw truck ers complain of mistreatment while sipping margaritas in bouncy castles, terrorizing foodbanks, and keeping our capital city up all night with horns blaring. Yet they were unmolested by police and law enforcement. Now, with an inquiry ongoing, the com plaints of unfairness mount.

The blasé attitude of the Ottawa police stands in stark contrast to the blind dedication of police and private security in quelling protest which dares to block the flow of natural resources. At Fairy Creek teenagers, seniors, and reporters were beaten and had their belongings and vehi cles taken from them by police and private security. Peaceful protest ors were pepper sprayed, and then the RCMP dug fingers and thumbs into their eyes, to “make sure it got in there.” A video on Global News showed a cop punch a protestor in the face when they were already on

the ground and restrained by other officers. Later in 2021, the RCMP introduced a policy which they called “pain compliance,” which they used against the Wet’suwet’en.

October which warned of a plaus ible risk of societal collapse. Others have warned that even the strongest democracies will be challenged by climate impacts such as migration, food, and resource shortages.

In the realm of protests and injunc tions the rule of law is engaged in at least three ways — (1) laws must be obeyed, (2) the Crown is bound by the law, and (3) there may be no law on the path we’re on.

The old-growth and pipeline pro testors strive to avoid number 3. The resource companies propound number 1, but, in my experience, are often blind to number 3, and the fact that their actions often actively destroy the systems they rely on.

And 2 — this may be the most important. The Magna Carta, the root of the rule of law as a concept, did not say “a permit’s a permit.” It said — every one is bound by the law, even the King. And, in Canada, the expres sion of the King’s power is the state.

The Fairy Creek protests became the largest act of civil disobedience, by number of arrests, in Canadian history. And then — the trucker’s convoy happened.

Protest/blockade law engages the rule of law in a very tangible way, with both “sides” resorting to rule of law arguments as both a shield and a sword. Former UK House of Lords Justice Tom Bingham noted that the “rule of law” can often mean “hooray for our side,” but that it is more than that. It is a concept, whatever it means, which undergirds western civilization, all civilization — it’s about how we agree to live together. Runaway climate change threatens global civilisation. The UN Office for Disaster Risk Reduction warned this summer of impending collapse of natural and human systems, in a report titled, Our World At Risk, which was largely overlooked by the media. A group of key climate scientists released a report in

Although we leave a terrible legacy for our children in a demolished earth, we can leave them a good tool to deal with the many challen ges they will face — the rule of law. If the use of force is constrained, and procedural rights protected, for all peaceful protestors regardless of their cause, that is a step in the right direction. As lawyers, it is our most sacred duty to ensure this. The chal lenge will only become more intense as our crises escalate.

Patrick has practised environmental law for 11 years and is currently teaching at UVic ELC. Twitter: @PatrickCCanning

advocacy inaction

CBABC continues to strive to modernize the justice system, advocate for funding to support infrastructure and training and bring members’ experience to decision-makers’ attention.

REGULATION OF THE LEGAL PROFESSION

In November 2022, CBABC responded to the Ministry of Attorney General’s Intentions Paper, which outlines proposed reforms to the regulation of the legal profession in BC. The six broad categories for reform include a single statute to regulate all current and future regulated legal service providers.

CBABC has been a long-time supporter of a single regular model to ensure efficiency and congruence in the regulation of lawyers, notaries, and paralegals. However, this is conditional on maintaining self-regulation and setting strong parameters for the scope of practice, criteria for education and competencies, an effective investigation and discipline framework, and satisfactory insurance coverage. Additionally, CBABC does not accept the premise that the proposed regulatory changes will impact access to legal services as the Ministry asserts or desires.

In October, CBABC held a series of roundtables for lawyers throughout BC–members and nonmembers — to provide their thoughts on the proposed reforms. Our Provincial Council and several Committees and Working Groups also provided input, including the Professional Issues Committee and Access to Justice Committee. We are grateful to all who provided their views in the preparation of this submission.

To provide further meaningful and concrete recommendations, we have asked to be included in the continued development of the legislation, regulation, and rules as more specific ideas emerge.

VIRTUAL CHAMBERS

When the return of in-person Chambers was announced, CBABC responded in October 2022 by asking the Supreme Court of BC to move to virtual Chambers hearings for short matters in civil and family law proceedings, with the ability to obtain in-person appearances where circumstances warrant.

This would improve access to justice and transparency, modernize the courts, adhere to invested resources, and encourage further investment in the legal sector.

COURT USER EXPERIENCE SURVEYS

In October 2022, CBABC prepared a submission to the Ministry of Attorney General encouraging the Court Services Branch and the Courts to develop and implement court user surveys. This information would increase innovation and access to justice. Collecting information directly from court users would help court administration identify access issues and potential solutions, and improve public trust and confidence in the courts.

MODERNIZING BC’S FAMILY LAW ACT

CBABC made recommendations in September 2022 to the Ministry of Attorney General in response to Phase 1 of the provincial government’s review to modernize the Family Law Act, with specific emphasis on property division and spousal support. Among CBABC’s recommendations include eradicating the presumption of advancement, including provisions that deal with pet custody, and codifying the test built up in the jurisprudence that defines a marriage-like relationship.

CHRISTIE MCLEOD

Fighting for Change Within (and Outside) the Law The

line between advocacy and activism

Merriam-Webster defines an advocate as someone who supports a cause. A litigator launch ing a Charter challenge against an outdated law and a Member of Parliament introducing a Private Member’s Bill are both advocates working within the confines of exist ing systems (e.g., legal, Parliamentary) to pursue social change.

An activist is similarly defined by Merriam-Webster as someone who supports strong actions in support of or in opposition to one side of a con troversial issue. An activist may be part of a civil society or not-for-profit organization, a grassroots group of like-minded individuals, or acting on their own accord. An activist may be an advocate and work within exist ing systems or undertake actions which are incongruous with existing laws or social norms.

Efforts to reform and strengthen existing laws and policies can take the shape of both advocacy and activ ism, as demonstrated by the growing call for the crime of “ecocide” — an unlawful act committed with know ledge that it will likely cause severe and widespread or long-term damage to the environment — to be added to the Rome Statute of the International Criminal Court. The Independent Expert Panel for the Legal Definition of Ecocide has created legal advocacy tools such as a proposed definition of ecocide and statutory amendments, while Stop Ecocide International uses classic activism tools to call for

change, including an international petition and letter-writing campaigns to elected representatives.

Nelson Mandela was both a legal advocate and an activist. He described his life in the 1950s as running on two separate tracks: his work in the antiapartheid struggle organizing meet ings, protests, and campaigns, and his law practice, which included representing Africans for crimes resulting from apart heid legislation (such as walking through a Whites Only door or being out past 11:00 p.m.). While working at the firm he co-founded, he concurrently led the African National Congress (“ANC”), a Black liberation political party which opposed the National Party’s laws and policies.

Mandela ultimately took his efforts outside of South Africa’s debased legal system, however, as inequality was entrenched within the laws of the land. In 1961, Mandela stopped practising law, went into hiding, helped form the military wing of the ANC, and organized acts against the National Party. Even after being imprisoned, Mandela continued to organize campaigns to challenge racial inequality.

Activists often start advocat ing within existing systems before launching campaigns, protests, or extralegal efforts. For example, many

Indigenous Nations participated in the National Energy Board (now the Canada Energy Regulator) process regarding the Trans Mountain Expansion Project application. Despite significant opposition, the pipeline project was approved and so activists began occupying and obstructing the work site, and many continued to illegally do so after an injunction was granted prohibiting protestors from being on-site.

History has demonstrated that many significant legal changes came about, at least in part, due to extralegal activ ism efforts. Nevertheless, lawyers ought to tread carefully when clients ask about undertaking acts of civil disobedience. A lawyer who advises acts of civil disobedience could be considered a party to the offence, found to have induced the offence, or even be found guilty of civil or criminal con spiracy. The Professional Legal Training Course Practice Materials indi cate that counselling — or even participating — in civil disobedience that a lawyer believes is morally justifiable will not generally result in professional disci plinary measures, barring extreme cases and circumstances that consti tute professional misconduct.

As both a lawyer and a longstand ing activist, I believe that careful and contextual consideration of a cause will dictate whether it is best sup ported by legal advocacy or lawful civil society efforts — or both! After all, while the law can be both a sword and a shield, it was a sling-shot and a rock that David used to ultimately defeat Goliath.

LinkedIn: linkedin.com/in/christieamcleod

Christie McLeod practises environmental and Aboriginal law at Miller Thomson LLP and is a passionate climate activist.

JAMIE MACLAREN, KC

The Everyone Legal Clinic Makes an Entrance Seeding public interest practices across BC

Over the past two decades, Access Pro Bono (“APB”) has provided free legal services to hundreds of thousands of people across BC. Despite the positive impacts of this vast experience, the organization has seen how geographic, socioeconomic, and racial disparities in access to qualified legal counsel have prevented too many British Columbians from finding justice.

It’s clear that British Columbians in rural, remote, and reserve com munities often have nowhere to turn for local or “hometown” legal help. Many British Columbians from racialized communities are also distrustful of a legal system with a history of institutionalized racism and repeated failures to protect indi viduals and communities. They lack access to culturally safe legal help, if they have access to any legal help at all.

Worsening these problems, BC’s articling system isn’t working for everyone. It excludes a dispro portionate number of mature law graduates, Indigenous law graduates, and people of colour, whose profes sional skills and life experiences are suited to serving racialized clients well. Mature students from remote areas, for example, are often forced to move to BC’s big cities to secure an articling position. Many leave their families and home communities for good

APB came to see how accessibility of legal services is tied to diversity of legal professionals, and how sys temic barriers to professional entry are limiting diversity and generally interfering with the dream of becom ing a lawyer in BC. In 2020, the organization conceived of a virtual public inter est law teaching clinic and legal practice incu bator as one way to foster a more inclusive and culturally respon sive justice system –– by widening the diversity of legal professionals, increasing the afford ability of legal servi ces, and serving more people from under served communities.

In late 2020, the Law Society of BC created its Innovation Sandbox to encourage private and non-profit sector development of innovative ways to improve access to legal advice and assistance. This coincided with the justice sector’s broad acceptance of videoconferencing technologies as necessary means to deliver legal services and adminis ter justice during the height of the COVID pandemic.

In August 2021, APB seized the opportunities at hand, and applied to the Innovation Sandbox for permis sion to develop and operate a virtual legal clinic to serve as an experien tial learning centre for articling stu dents and new notaries, and as an

incubator for legal practitioners who provide affordable legal services to underserved BC communities. The Law Society accepted APB’s pro posal, and the way was cleared for the Everyone Legal Clinic.

Fast forward to today, and the Clinic is a going concern with 25 articling students, 16 supervising lawyers, four staff, and dozens of volunteer mentors. The articling students are based in 15 different BC commun ities, as far west as Ucluelet, east as Cranbrook, north as Burns Lake, and south as Victoria. A quarter of the students are Indigenous, and three quarters are BIPOC. They all engage in a six-month learn ing semester curriculum centred on the practical, modern-day aspects of running a socially responsible law practice that serves “everyday legal problems” in areas like family, employ ment, tenancy, criminal, consumer, corporate, and wills and estates. After six months and until their call to the Bar, they provide a wide range of fixed-rate services to the public, under the guidance of the Clinic’s supervising lawyers.

The Clinic’s articling students are also available remotely and locally to assist lawyers’ practices by way of affordable research, litigation, and legal aid services. They offer fixed term work arrangements for legal research and writing tasks, criminal or family legal aid tariff work, or secondments to law firms or practice groups. Visit everyonelegal.ca to see how one of the Clinic’s articling stu dents can support your law practice.

Jamie is a Life Bencher, and co-founder of Access Pro Bono and the Everyone Legal Clinic. Follow Jamie on LinkedIn

communitynews

TIPS FROM

Information Activism

Libraries are a locus of equal access to information. But beyond that, they are the vanguard for “information activism.” Courthouse Libraries BC (“CLBC”) is unique among North American law libraries in that — while we started out as a modest clutch of law books owned by the colony’s earliest barristers — we now stand for raising legal literacy for all British Columbians. This dual mandate makes us unique: yes we serve lawyers; but we are accountable to those who never had the privilege of a legal education. Our official vision is that everyone in BC has ready access to the legal information and resources they need.

CLBC’s information activism is evident from our biggest programs to our smallest encounters with folks who enter the courthouse fraught by angst and emerge possessed of a confidence to navigate their legal journey with autonomy and hope. Our larger programs advance systemic changes: LawMatters funds, trains, and promotes public libraries in their capacity to offer legal reference support in even the smallest BC communities; Clicklaw aggregates free, digitally-available legal information and offers a HelpMap that lists clinics and other services by location, specialty, etc. Various internal working groups at CLBC are also driven by information activism: from our Prison Outreach team, to our Accessible Collections team (reducing barriers faced by those with visual impairments), to our Court Forms Accessibility team (advising Court Services about the challenges people face filling out forms), to our TRC Working Group.

branchnews

The REAL Initiative

Securing the Future of Rural Practice

The REAL initiative connects rural firms and 2L students for a valuable summer experience. Participating firms receive funding to hire this student for the summer in hopes that they will find their path in rural practice.

Help shape the future of your firm and secure the future of rural practice by registering today at cbabc.org/REAL

*Approximately ten firms are selected each summer based on the highest need communities in the province as well as ability/willingness to offer an articling position the following year.

RURAL EDUCATION & ACCESS TO LAWYERS

LEE NEVENS

Glass Ceilings Draw Blood

The Code of Professional Conduct for BC states that “[a] lawyer is a min ister of justice, an officer of the courts, a client’s advocate and a member of an ancient, honourable and learned profession,” and encourages lawyers to stead fastly adhere “to the time-honoured virtues of probity, integrity, honesty and dignity.”1 To fulfil these respon sibilities, we are trained to be rigor ous, but dispassionate advocates who prioritise duty above personal inter est and safeguard our reputations as the essential currency of our practice.

Many of the underlying principles of this approach are noble and draw people to the profession. But they can exact a compounding personal toll on those of us who advocate on issues related to our own identities. Because, whether we admit it or not, we are not just lawyers. We are humans. And it’s a rare human who can crack a glass ceiling without getting cut.

Advocacy related to one’s own iden tities can take many forms: standing in court arguing for the basic human rights of members of one’s commun ity; fighting for equal respect within the profession; being tirelessly avail able for education, consultations, and representation to taking the risk of practising law authentically and openly as oneself. This is unique from other forms of advocacy because the harms addressed are not abstrac tions, but lived experience, and the consequences of failure are amplified and personal.

This conflicts with what is expected of lawyers. We are not supposed to be personally implicated in our work, to have feelings and bodies, or to risk our reputations. Yet advocacy related to one’s own identity requires all of these and regularly risking being seen as a nuisance, a bad lawyer, a poor representative of one’s com munity, or overly sensi tive for simply raising concerns and seeking equal treatment.

The value of the work that marginalized lawyers do to improve our system and our society is incalculable. They are the change-makers that keep our laws and society moving slowly, hopefully inexorably, closer to alignment with our values. But the compound physical, emo tional, and social toll of working in these conditions is intense.

The National Study on the Psychological Health Determinants of Legal Professionals in Canada helps quantify the toll.2 It found an alarming level of mental health chal lenges in the profession across the board, but when it comes to lawyers with “diverse” identities, the results are downright devastating.

Lawyers with disabilities and those who are Indigenous, ethnicized, and/or 2SLGBTQ+ were found to experience significantly higher rates of psychological distress, moder ate to severe depressive symptoms,

and burnout compared to those who are not differently abled, are White, straight, and cisgender.3 For example, one of the biggest gaps is the finding that 61.9% of non-binary legal profes sionals have experienced suicidal idea tion since beginning their careers, com pared to 24.1% of legal professionals as a whole, and 11.8% of the Canadian population over their lifetime.4

Discrimination experienced outside of professional practice likely contrib utes to these alarming numbers, but what happens within the profession also matters. For example, one of the most highly significant risk factors identified was emotional demand, which is inseparable from advocacy related to one’s own identity.5 The study also found that lawyers with marginalized identities experience higher levels of incivility and violence in the workplace, includ ing unwarranted criti cism, unsolicited sexual advances, threats of violence, and bullying.6

What keeps people going despite these challenges? Very often it’s steadfast commitment to the potential and principles of our pro fession. But the personification of the virtues of probity, integrity, honesty, and dignity alone does not protect the human who is doing the work. We also need acknowledgement, resources, support, and more people to share the burden. And we clearly need change.

1 Ibid 2.1-5(f).

2 flsc.ca

3 Pages 200-202, 210-211, 219-220, 233-234.

4 Pages 39-43, 221, 224.

5 Page 70.

6 Pages 319-323, 325.

Lee

The compounding toll of advocacy related to one’s own identities

Nevens (they/them), Second Vice President, CBABC; Co-Chair, SOGIC BC; Co-Chair, BC’s Legal Equity and Diversity Roundtable.

sectiontalk

CBABC members enjoyed a fulsome return to in-person socials and hybrid substantive law meetings this fall, with over 80 activities to choose from. Here are some of the highlights.

MONTE CARLO NIGHT

The Young Lawyers – Lower Mainland, Business Law and Women Lawyers Forum Section members partnered with Chartered Financial Analyst Society Vancouver and Chartered Professional Accountants BC to bring back the annual Monte Carlo Night! The event took place at the Vancouver Club and brought together over 150 attendees to enjoy a night filled with live jazz, appetizers, refreshments, and of course, casino games.

Attendees also had the opportunity to donate their clothing for a cause. The event supported Working Gear and Dress for Success, two charities that provide industry-appropriate clothing to lowincome or unemployed individuals.

LAND OWNER TRANSPARENCY ACT AND REAL PROPERTY TAXES IN BC

This popular Wills & Trusts – Vancouver Section virtual meeting attracted over 200 attendees in October and covered pertinent tax requirements under the Land Owner Transparency Act and Land Owner Transparency Registry. Attendees gained insight on the various taxes that impact wills and estates practice, including speculation, vacancy, and housing taxes.

MARITIME LAW NOVEMBER DINNER

Maritime Law members were keen to reconvene in-person at the sold-out annual November Dinner. The evening featured light-hearted humorous tales from esteemed Maritime Bar members, David McEwen, KC, John Bromley KC, Gary Wharton, and Elyn Underhill.

IMMIGRATION LAW ANNUAL FALL LAUNCH

Over 30 Immigration Law members gathered at the SeaHouse Restaurant to kickstart the membership year. Adrienne Denham, Vice-Chair of the Immigration Law - Overseas Lawyers Group, welcomed new and familiar faces and members were treated to live music, a heated patio, and an abundance of appetizers!

This year’s annual ALF Holiday Banquet was held on Friday, November 25. We were honoured to host our keynote speaker Justice Len Marchand, Jr. of the British Columbia Court of Appeal. Justice Marchand has dedicated a substantial portion of his career to achieving reconciliation for many Indigenous people through, among other things, advancing civil claims for abuses suffered by residential school survivors.

The ALF would like to extend our congratulations to the winners of this year’s ALF awards:

„ 2022 CBABC Special Contribution Award: Myrna McCallum and Douglas White III, Kwul’a’sul’tun

„ 2022 CBABC Student Appreciation Award: Chelsea Gladstone, Tara-Lynn Wilson, Jaxxen Wylie

ALF’s Warrior Project helps fund articling positions for Indigenous students in BC. In 2022, the ALF donated $20,000 to create the “CBABC Aboriginal Lawyers Forum Scholarship ”, to fund Indigenousto-Canada articling student scholarships through the Everyone Legal Clinic

The time has come again to ask the public for donations. To contribute directly to our Scholarship Fund, visit Access Pro Bono’s Canada Helps and choose “CBABC Aboriginal Lawyers Forum Scholarships”. Auction item donations are now also being accepted for the ALF’s 2023 Online Auction in support of the Warrior Project. Please contact isabel.jackson@justice.gc.ca.

CONNECTING WOMEN LAWYERS

THE MADAM JUSTICE PROJECT

The national Section of the Women Lawyers Forum (“WLF”) brings together women lawyers and law students to promote women’s stature and influence in the legal profession in Canada, to create programs and networking opportunities that support women lawyers, and to advocate for change in the legal profession, the justice system and Canadian society at large.

As part of this mandate, the WLF (in collaboration with the CBA Judges Section) created the Madam Justice project in 2021. Featuring interviews with diverse women judges from across the country, the Madam Justice project highlights the different paths that led each judge to the Bench and provides candid advice for lawyers looking to improve their advocacy skills or to pursue a career as a judge.

uuu Check out the profiles of the 45 women judges who have participated so far, and stay tuned as more interviews are coming soon!

WLF Update by Puneet Klar

Resolving Estates Disputes in British Columbia is a comprehensive resource for lawyers and support staff who are new to estate litigation, or rely on updated discussion of the law and procedure in their established practices. This manual combines some of the practical features of CLEBC’s popular deskbooks (such as instructions on commencing claims, notice and service requirements, and procedural considerations) with the substantive legal discussion that is standard of CLEBC’s practice manuals.

To be updated annually, this manual highlights developments in the jurisprudence and

amendments to legislation relevant to estates disputes. As a complimentary publication to British Columbia Probate and Estate Administration, this manual covers disputes related to proving a will, wills variation, curative proceedings, actions of fiduciaries (including attorneys, trustees, and personal representatives), and inter vivos trusts and transfers. It also addresses committeeship applications, contentious passing of accounts, and issues of spousal status, as well as evidence, alternative dispute resolution, and costs in the estates disputes context. The online edition of this manual will feature links to full-text cases and legislation.

Check out CLEBC’s website in 2023 for more details.

CLEBC is pleased to announce its upcoming new addition to its publication library: Resolving Estates Disputes in British Columbia, to be released in early 2023

Roger J. Chouinard

Property Group

Cameron M. Proctor PrairieSky Royalty Ltd.

Grant

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LINDSAY A. WADDELL

The Role of Intervener

The term intervener (or intervenor) refers to a non-party that is per mitted to “intervene” or participate in a legal proceeding with a view to providing the decision-maker with a perspec tive going beyond what the parties themselves can offer. Applications for leave to intervene are most common in appellate and superior courts engaged in judicial review.

Appellate courts have developed rules and a rich body of jurispru dence governing whether and how prospective interveners will be granted leave to intervene. There are two bases upon which leave to intervene may be granted. The first requires an applicant to demon strate that it has a direct interest in the outcome of the proceeding. The second — and far more common — requires an applicant to demonstrate that the appeal or proceeding raises an issue of public law in which the proposed intervenor has an indirect interest, and in relation to which it can bring a unique perspective that will be of assistance to the court.1

The prevalence and use of interven tion in Canadian courts increased significantly following the advent of the Charter, when the impact of a particular law, government action or remedy took on renewed importance. Intervener participation at the Supreme Court of Canada is now routine and seems to be trending upward.2

There is no shortage of academic literature considering why courts entertain interveners. Whatever the rationale, there is little question that

the impact of interveners on Charter and human rights jurisprudence over the past 35 years has been sig nificant. It is impossible, in so few words, to review the specific impacts that interveners have had in any depth. However, I offer a few exam ples below to illustrate the role that interveners can play in advancing the law and what may be lost without their perspective.

In Carter v. Canada, 2015 SCC 5, the Supreme Court of Canada allowed an appeal challenging the constitutionality of ss. 24(1)(b) and 14 of the Criminal Code in rela tion to physician assistedsuicide — reversing its decision of two decades earlier in Rodriguez v. British Columbia, [1993] 3 SCR 519. Before the hearing, the Court granted leave to no fewer than 27 interveners who brought a variety of perspec tives for the Court’s consideration. While not all members of Canadian society share equal appreciation for the Court’s decision, it is clear that the Court had a strong sense of the impact its decision would have on all sides of the debate — a vantage point achieved in large part as a result of the many interveners.

In contrast, the absence of certain types of interveners in two recent cases may have been a factor contrib uting to more limited perspectives being reflected in the Court’s reasons.

In Ward v. Quebec, 2021 SCC 43, the Supreme Court of Canada grappled with an appeal juxtaposing

a disabled child’s right to safeguard his dignity against a comedian’s right to freedom of expression (targeting the youth in his comedy routines) without hearing from a single dis ability rights or major equality rights intervener. A majority of the Court concluded that the expression was unlikely to incite others to hate the youth or to lead to his discrimina tory treatment — two findings which might have benefited from broader intervener involvement.

Finally, in Northern Regional Health Authority v. Horrocks, 2021 SCC 42, the Court considered whether labour arbitrators have exclusive (as opposed to concur rent) jurisdiction to deal with human rights complaints arising out of unionized employ ment relationships. The Court concluded that an arbitrator’s jurisdic tion to deal with such matters was exclusive without hearing from a single union or organ ization representing the interests of unionized workers.

In a world where the lived experi ence of many decision-makers remains more privileged than much of Canadian society, and where the parties themselves often have no obli gation or ability to address broader impacts, interveners will continue to have an important role to play in the evolution and development of equal ity and human rights jurisprudence.

1 J.P. v. British Columbia (Children and Family Development), 2016 BCCA 124 (Chambers) at para. 3.

2 Geoffrey D. Callahan, Intervenors at the Supreme Court of Canada, (2020) 43:1 Dal LJ 33 at 34.

Lindsay Waddell is a partner at Moore Edgar Lyster LLP with a litigation practice focused on human rights, administrative, labour, constitutional, and professional regulatory law.

practicetalk

DAVID J. BILINSKY

The Generational Divide

Staffing in the new environment

r You can’t get the genie back in the bottle r

— Music, lyrics, and recorded by Don Henley

There is a great divide among lawyers today. Law firms are trying to stuff the remote work genie back in the bottle by demanding that lawyers return to the office. Law firms are facing a pushback — from partners and associates alike — bucking the return to the office mandate. Fact is, according to a survey by Major, Lindsey & Africa who received responses from 1,800 partners, over two thirds want the option to work remotely.

The more junior the partner, the greater the importance of working remotely is to them. 16% of part ners who have been partners for one to five years would quit over remote work restrictions. It is only 7% for those partners in the 20+ year category.

This is backed up by the “Where Does the Legal Profession Go From Here? report by the American Bar Association that found that 44% of lawyers with 10 years or less experience would change firms to one that offered more freedom on work arrangements. Only 13% of those with 41 years of experience would leave their firm (query if other factors such as reluctance to start anew with a firm at an older age is a stronger motivation to hold onto their present firm).

I don’t believe that the data in Canadian firms would be much dif ferent since Canada appeared to have an even stronger buy-in on working remotely.

What does this push-back against management’s return to work poli cies indicate? I believe this shows that lawyers — associates and part ners alike — have tasted the forbidden flesh of the benefits of working remotely. They have experienced no lost commuting time. They can juggle family com mitments and work commitments better. They can rearrange work hours to suit their lifestyle. Child and elderly care are certainly accom modated better than in a return to the office environment. Indeed, they

Hybrid work arrangements are becoming the norm, with lawyers in the office 2-3 days a week. Partners are standing up against more restrict ive policies. Firms, who are facing competitive hiring environments, will have found that their recruit ment policies may have to change to accommodate the new environment.

What of the argu ment that firm culture and training is lost? Lawyers are stating that perhaps training was not happening as well or as often as senior partners made out. Targeted training with specific allocated times are becoming the norm and are a better use of everyone’s time. Culture should also be built on tar geted activities rather than simple attendance at an office.

Furthermore, do firms wish to risk losing their best talent at a time when demand for lawyers is boun cing back? Firms have found that the balance of power has shifted… and that you can’t get the genie back in the bottle.

have asked — and answered — the question of whether they need to be chained to the office to maintain their billable hours and income.

Zoom and Microsoft Teams have made client and office meetings virtually frictionless. The younger generation are willing to vote with their feet when the senior partners demand a back-to-the-office policy.

The views expressed herein are strictly those of David Bilinsky and do not reflect the opin ions 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

The more junior the partner, the greater the importance of working remotely is to them.

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KRISTA JAMES AND BÉNÉDICTE SCHOEPFLIN

Elder Abuse Advocacy

In March 2022, the Canadian Network for the Prevention of Elder Abuse launched Future Us, a pan-Canadian engage ment strategy that identifies ways for everyone to contribute to elder abuse prevention and response. Lawyers can play a pivotal role.

Institutions and communities need elder abuse policy. Policy-drafting often falls to lawyers. Agencies require policies that align with provincial laws and identify proto col if someone thinks an older person — patient, client, housing resident, co-worker, or volunteer — is being abused. Often staff and volunteers want to help but do not know what to do. They experience vicarious trauma, particularly when they feel helpless and do not know how to escalate the matter or make an appropriate referral.

Governments need your input. In 2022, the House of Commons Standing Committee on Justice and Human Rights released a report following their study of elder abuse. Many lawyers made submis sions, including through the CBA. Currently, the Government of BC is considering reform of Part 3 of the Adult Guardianship Act, which con tains BC’s adult protection provi sions. Please consider extending your support so that CBABC can partici pate in these types of submissions. You can also ask locally elected offi cials to use their power and influ ence to support Future Us goals and make elder abuse a priority.

Not-for-profits need your support. They help individuals and work toward system change daily. Organizations like CanAge and Seniors First BC provide much needed advocacy for older people and their families. Elder abuse networks lead prevention efforts at local, regional, and national levels. They provide critical infrastruc ture for public educa tion, knowledge mobil ization, research and ongoing engagement across sectors and com munities. In our prov ince, you can support the BC Association of Community Response Networks.

There are various ways for lawyers to support these organiz ations. Many are recruiting Board members. BC also has an interagency Council to Reduce Elder Abuse. CBABC has a seat at that table and needs a new volunteer. Contact CBABC if you are inter ested. Charitable donations are also very helpful; not-for-profits accom plish a lot on a shoestring budget and too often struggle to keep their doors open.

The justice system needs resources. BC has a 93-page integrated crossagency Violence Against Women in Relationships Policy. In compari son, the BC Crown Counsel policy on elder abuse is less than two pages. The CCEL is consulting with stakeholders on the key elements of a model inter-agency policy on sup porting vulnerable witnesses and victims with capacity issues because

mental capacity is often a chal lenge when it comes to elder abuse prosecution. If you work in this area, the CCEL would love to hear your thoughts.

Finally, you can join the call for a United Nations Convention on the Human Rights of Older People. A UN Convention is necessary to enshrine older people’s rights. With a convention, and the assistance of a Special Rapporteur, governments can have an explicit legal frame work, guidance, and support that would enable them to ensure that

older people’s rights are realised in our aging societies.

The Future Us Roadmap provides many more suggestions for how you can contribute.

In 2022, the Canadian Longitudinal Study on Aging found that one in ten older adults across Canada experi ence some form of elder mistreatment each year. Our population is aging, and our infrastructure is not pre pared. People are the core of Future Us, and elder abuse initiatives need both leadership and solid support behind the scenes. There is a role for you and a place for your skills.

Krista James is a staff lawyer and National Director of the Canadian Centre for Elder Law. Bénédicte Schoepflin is Executive Director of the Canadian Network for the Prevention of Elder Abuse.

Lawyers, you have a critical role to play

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CAM WARDELL

When Opinion Offends Employment

Dismissing

the activist

These days you don’t need to look very far to find widely publicized videos of individuals involved in activism or protest, be it obnoxious convoys, staged soup-throwing, or other civil disobedience. The ease of identify ing the participants, as well as the typical online outrage that follows, leaves employers considering the difficult issue of whether they can continue to work with an activist employee and/or whether they are within their rights to dismiss. The answer is, as always, it depends…

As a general rule, even without “just cause,” an employee can be dismissed at any time and for any reason, as long as they are pro vided sufficient notice. A failure to provide notice makes a dismissal “wrongful,” not the reasoning for the act itself.

However, special rules exist for federally-regulated employees or members of a union (just cause is typically required) and dismissals made for discriminatory reasons, such as age, gender identity, dis ability, or “political belief,” are prohibited by our Human Rights Code (subject to accommodation, discussed below).

Adding another layer of complica tion is that public sector employers may also need to consider the right to free expression in the Charter (a potential subject for its own article).

The question of just cause for offduty activity is governed by a

five-factor analysis of whether the conduct (1) harms the employer’s reputation, (2) renders it difficult for the employee to perform their duties, (3) leads to the refusal of others to work with that employee, (4) is a serious breach of the Criminal Code, and/or (5) makes it difficult for the employer to operate or direct its workforce.1 At their heart, these factors seek to assess the proxim ity of the (mis)conduct to the workplace. Accordingly, employ ers sensitive to reputa tional damage are wise to implement policies touching on that sensi tivity in the context of employee activism to set the foundation of this connection prior to an issue arising.

On the question of discrimination, the protected ground of “political belief” has received recent attention from the Human Rights Tribunal, alleged as a basis for noncompli ance with pandemic restrictions. In dismissing a complaint against vaccination passports, the Tribunal clarified that the protection relates only to the expression of a political belief, and that it does not generally function to allow the disregard of established rules.2

In dismissing the vaccine passports complaint, the Tribunal relied on earlier case law featuring a police officer who, in his personal time, engaged as an outspoken member

of a group in favour of decrimin alizing drugs.3 Although the officer had taken steps to identify his advo cacy as his own personal views and not those of the police, and had cleared some speaking engagements with his superiors, the officer was directed to cease or otherwise limit his comments.

The Tribunal found that the employ er’s directions infringed upon the protection of political belief, save and except where comments could not be accommodated as overly critical or disrespectful of the police. The Tribunal made it clear that an employee may breach their duty of loyalty through the content of offduty political speech as well as the manner of its expression, and that accommodation was not required for polit ical activity or speech clearly incompatible with an employee’s duties (the example given being a Revenue Canada employee refusing to cease public criticism of the gov ernment, including by comparing Pierre-Elliot Trudeau’s government to the Nazis4).

While there are many caveats, an employee may be dismissed for their activism depending on its content and manner of expression.

1 Millhaven Fibres Ltd. v. Oil, Chemical & Atomic Workers Int’l Union, Local 9-670 (Mattis Grievance), [1967] O.L.A.A. No. 4.

2 Class of Persons v. Horgan, 2021 BCHRT 120.

3 Bratzer v. Victoria Police Department, 2016 BCHRT 50.

4 Fraser v. Canada (Public Service Staff Rela tions Board), [1985] 2 S.C.R. 455.

Cam is a partner at Mathews, Dinsdale & Clark and an editor of CanLII’s awardwinning Manual to BC Civil Litigation.

communitynews

Rise’s Virtual Legal Clinic

Rise Women’s Legal Centre is a community legal clinic and teaching facility committed to finding innovative ways to provide family law services to women and gender diverse people all over BC. The Law Foundation is proud to support some of Rise’s creative access to justice programs, including the Virtual Legal Clinic (“VLC”), which leverages technology to increase access to legal services for women living in underserved communities.

Since 2017, the VLC has been partnering with community organizations across the province to deliver client-centred and trauma-informed legal services to clients in their own community. The program is staffed by a legal navigator, a staff lawyer, and pro bono counsel. Clients receive up to three hours of legal service, with an option to access additional services if needed. Community partners provide safe access to computers and other technology, and support clients in implementing the clinic’s advice. The VLC also offers regular workshops to community partners and trains lawyers and law students to deliver virtual legal services.

The VLC’s unique model is working. A recent evaluation found that most participants reported great satisfaction with the VLC, citing useful advice, increased understanding of legal options, and overall support in navigating the family justice system.

CLAIRE KANIGAN

New Paths Toward the Right to Housing Forged by Tent City Litigation

COVID-19 caused home lessness to soar while service and shelter access shrank. Many unhoused people were forced to shelter outdoors and fill service gaps with mutual aid, in some cases forming “tent cities.” Defences against “decampment” catalyzed progress in the jurisprudence follow ing Victoria (City) v. Adams, 2008 BCSC 1209 [Adams]. Prince George (City) v. Stewart, 2021 BCSC 2089 [Stewart], and Bamberger v. Vancouver (Board of Parks and Recreation), 2022 BCSC 49 [Bamberger] offer promising avenues for advancing the right to safe shelter, and ultimately, the right to stable housing.

In August 2021, the City of Prince George sought an injunction to dis place people sheltering on vacant city property. They asserted that shelter space was available, and sought dec larations that the respondents contra vened the Trespass Act and a zoning bylaw. Days later, the city adopted the Safe Streets Bylaw, which prohibited sitting or lying on a street or erect ing structures — such as a tent — that impede pedestrian traffic.

Chief Justice Hinkson dismissed the statutory injunction targeting the main encampment, citing “excep tional circumstances” that justified its refusal despite a clear breach of a bylaw, as per the Thornhill test. These included the insufficiency of accessible, low-barrier shelter spaces (Stewart, para. 74), life-threatening cold temperatures (para. 91), and high proportion of Indigenous resi dents (para. 69-71). Further, the

respondents argued that they could not comply with the injunction without breaching the Safe Streets Bylaw (para. 72).

Interestingly, Chief Justice Hinkson refused declaratory relief stating that “absent other suitable housing and daytime facilities” (emphasis added), residents must be permit ted to stay. (para. 115). While not purporting to expand the Adams right, Chief Justice Hinkson noted that COVID-19 left many without shelter “in either the daytime or the nighttime” (para. 73) and that survival required finding ways to keep warm (para. 64).

In July 2021, the General Manager of the Vancouver Park Board (“GM”) sought to displace a Downtown Eastside park encampment that formed after another was dismantled. She issued an order pursuant to the Parks Control By-Law closing the park to overnight sheltering, then another in September 2021 to the same effect. Both cited the Park Board’s commit ment to prevent encampments when “suitable spaces [were] available for unsheltered people to move indoors” (Bamberger, para. 38).

Park residents sought judicial review of the orders. In response, the Park Board sought injunctions to enforce the orders and the bylaw’s daytime sheltering prohibition. Justice Kirchner found that reasonableness required the GM to confirm that suitable spaces were available for all residents, which

she had not done (Bamberger, para. 89). The evidence revealed that pur portedly available beds were occupied or subject to restrictive conditions, and that residents’ “suitability” needs were significant and varied. Justice Kirchner also concluded that the orders failed to proportionately balance the resi dents’ Charter rights with their stated objectives (para. 150).

Justice Kirchner determined that resi dents were owed procedural fairness, including notice and an opportun ity to be heard. Residents’ section 7 Charter rights were at stake, elevat ing their interest and right to be heard above other park users (para. 63). The orders were quashed and remitted, and the associated injunction was dismissed. Applying Thornhill, Justice Kirchner adjourned the injunction application to enforce the bylaw, finding that, as in Stewart, the facts demonstrated “excep tional circumstances.” (Bamberger, para. 176).

Ultimately, tent city litigation aims not to advance just the right to shelter in a park, but the right to live in stable, dignified housing. These develop ments have broken ground on the path to this goal. With new demands for procedural fairness and Charter considerations, judicial review offers novel tools for housing justice, while overcoming Thornhill and hints at daytime sheltering rights foretell progress in injunction and Charter jurisprudence. The turn toward con sidering suitability and accessibility is a turn away from using shelter bed numbers alone to justify displace ment, and brings meaningful protec tion of unhoused people’s section 7 rights one step closer.

Claire Kanigan is an associate at Arvay Finlay LLP and a member of the CBABC Social Justice Section Executive.

DIMPLE KAINTH

Can Lawyers Afford to Ignore the Law Society?

What should a lawyer do when they receive noti fication from the Law Society that someone has made a complaint about them, or that they are other wise the subject of an investigation?

First, they should not panic. Second, they should take the matter ser iously, even if they think the matter is minor, frivolous, or unwarranted. Third, they should respond to the Law Society. Why? Because if they do not respond, the Law Society has the power to act on their failure to do so.

The Legal Profession Act (“LPA”) makes it clear that the Law Society’s primary objective is to protect the public interest. To do this effect ively, the Law Society must rely on lawyers to respond to its inquir ies. This is accomplished through Rules 3-5(7) and 3-5(11) of the Law Society Rules and Section 7.1-1 of the Code of Professional Conduct, which place a positive duty on lawyers to cooperate with investiga tions, respond promptly to the Law Society’s inquiries, and to provide it with any documents and informa tion it requests.

When lawyers fail to respond, or fail to respond adequately, the Law Society can take disciplinary action. The Law Society may issue a citation against the lawyer for their failure to respond and eventually there will be a hearing of the citation. This will likely result a finding of professional misconduct and a penalty.

Alternatively, the Law Society can take administrative action and issue an administrative suspension under Rule 3-6 of the Law Society Rules. Under this rule, the Law Society must give a lawyer at least seven days of notice of the suspension, and if the lawyer fails to respond by the deadline, they will be suspended.

An administrative sus pension is a quicker and more effective way for the Law Society to ensure compliance with the rules. A suspended lawyer is not entitled to do anything that is con sidered the “practice of law” (which is defined in Section 1 of the LPA). Some examples of pro hibited conduct include:

„ Speaking or meeting with clients about client matters;

When

„ Working on client matters;

„ Signing correspondence or any other communication (e.g., emails) under designation of “Barrister & Solicitor”;

„ Supervising staff; and

„ Indicating or implying they are qualified or entitled to practice law in any public communica tions, such as firm websites, Facebook, LinkedIn, Twitter, etc

Suspended lawyers must also comply with Rule 4-47(3) and, among other things, inform all clients with active matters about the suspension and the steps they have taken to protect the clients’ interests during the suspension period.

An administrative suspension is inconvenient, results in lost income, and can be very embar rassing for lawyers. Since there are very few tasks suspended lawyers are permitted to do, they must be careful because if they do anything that is considered the “prac tice of law,” they may also face potential disci plinary action for prac tising while suspended.

If you are involved in a Law Society complaint or investiga tion, you cannot afford to ignore the Law Society. Do not exacer bate things by failing to respond. Investigations are not limited to the issues arising from the ori ginal complaint or concerns, and the tone, content, and substance of your responses matter. Consider retaining or getting advice from counsel experienced in Law Society matters before responding, espe cially because your livelihood may be at risk. Having objective advice can make responding to the Law Society easier and less stressful, help you stay focused on the issues, and make the process more efficient.

Dimple Kainth is the principal of Satya Law. She assists lawyers and law firms with disciplinary and practice management issues. She is a former investigator and in-house counsel with the Law Society of BC. The views expressed herein are strictly those of Dimple Kainth and do not reflect the opinions of the Law Society of BC.

lawyers fail to respond, or fail to respond adequately, the Law Society can take disciplinary action.

What Happens When a Victim or Witness of a Crime has Capacity Issues?

Does this present a barrier to accessing justice? How can criminal justice system professionals help support capacity? The BC Law Institute and Canadian Centre for Elder Law (“CCEL”) hope to answer these questions in the Supporting Vulnerable Victims and Witnesses project (“Project”).

In 2009, the Provincial Strategy Document: Vulnerable Adults and Capability in British Columbia (“Vanguard project”), recommended criminal justice system professionals create policies to support this population. CCEL updated the Vanguard project in 2021. There was little to no progress on this recommendation.

The Project seeks to fill this gap. It will consist of two parts:

1. Research on existing policies of Crown Counsel, police, victim services, and other professionals on vulnerable victims and witnesses. This section will compare British Columbia’s policies with policies in other provinces across Canada and other countries.

2. A model policy framework and list of best practices.

Feedback from key informants working with vulnerable victims and witnesses will inform both the research and model policy framework. CCEL will finish this project in early 2023. For updates, please refer to bcli.org. The BC Council to Reduce Elder Abuse has made this work possible with their generous funding.

REBEKA BREDER

From Activism on the Streets to Advocacy in the Courtroom

In my June BarTalk article, I wrote about how I turned my passion in animal protection into a career in animal law. I grew up as an animal rights activist in Montreal, where I helped organize and attend various animal rights rallies and advocated before different government bodies, all in the name of increasing animal pro tection. The included picture is me (on the left) in my teens in the 1990s, protesting on the streets of Ottawa against the Canadian commercial seal hunt. At the risk of sounding “cheesy,” at some point around that time, I decided I wanted to eventu ally go to law school so that I can turn my advocacy on the streets into advocacy in the courtroom. I wanted — and still want — animals to get a much needed and deserved voice in our legal system.

Why should we care about animals having such a voice? I will suggest three reasons.

First, how we treat the most vulner able in our society — be it the elderly, children, the disabled, marginalized people, or animals — is a reflection of who we are as individuals and as a society. I believe all of these groups should have meaningful protection regardless of whether a living being has fur, scales, or human skin.

Second, how we treat animals in our legal system matters because of our innate connection to animals. As Dr. Carl Safina, a professor at Stony Brook University said, “when babies are born, we do not adorn their nurseries with pictures of cellphones

or laptops.” Instead, we put up pic tures of cute farmed animals, wild animals, or little fish. Should our legal system — which governs who and how someone is protected — consider animals as just “things”?

Third, I believe we owe it to animals to make things better. As a human species, we have taken away so

always been incredibly important to me. I find that being an animal law lawyer is an extension of my advocacy for animal rights as a younger girl.

When I see judges say or write statements like:

“I accept Ms. Breder’s prop osition that in the case law, there is an acceptance that an animal is not just an ordinary piece of property… [A]nimals are something more than just a simple chattel… [t]hey are living beings that people create inextricable bonds with and those bonds are powerful.” (Lan v. Nand, 2015 BCPC No. 15-51173), or

much from them. We’ve taken away their homes (think entire habitats that are clear cut). We’ve taken away their most basic freedom and wellbeing (think factory farms, where the majority of the over 800 million farmed animals killed each year in Canada spend their entire lives inside windowless buildings, where they are confined to such tiny living conditions to the point that they cannot ever stretch their wings or breathe fresh air or touch earth with their own feet).

For these reasons, advocating to make things better for animals has

“…[a]n additional considera tion is the fact that the mammals most directly affected, the wolves, have no ability to bring the action...”(Pacific Wild Alliance v. British Columbia [Forest, Lands, Natural Resource Operations and Rural Development], 2022 BCSC 904) in order to grant stand ing to an environmental conservation organization (Pacific Wild) to challenge the legality of killing wolves.

It confirms that advocacy in the courtroom can indeed help animal protection.

There is still a long way to go for animals to obtain meaningful pro tection and rights in our legal system. But I also have no doubt that the number of animal law cases will only continue to rise, as more people and organizations choose to advocate for animals in court.

Rebeka Breder is an animal law lawyer and is chair of the CBABC Animal Law Section.

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Culture is Integral to Justice

Many contempor ary conversations about restorative justice emphasize its origins within Indigenous traditions. These trad itions demonstrate the benefits to victims and perpetrators alike when they are granted access to cultur ally appropriate and safe models of justice. But this isn’t only true for Indigenous peoples — the benefit of more relational ways to find a resolu tion is resounding across cultures. As a white immigrant and settler, rather than speaking outside of proper protocol guidelines about a cultural experience I do not hold, I’d like to emphasize this key role of culture in justice from a different angle.

Considering how culture should and can never be separated from justice is especially important for my fellow progressive white leaders. If we’re honest enough, I would wager that the first impulse for many white minds upon reading “culturally safe” is to file this discussion under a side tab — as an “alternative” post, an attempt that will focus on “diversity” rather than the law.

Already, we have before us an opportunity for unlearning. Savala Nolan, Executive Director for the Center of Social Justice at the UC Berkeley School of Law, explains: “When I ask white students how they know they’re white, the answer is almost always the same: silence… White people often don’t under stand that they are as “raced” as any person of colour” (June 2020).

The idea then that our legal system keeps culture out to stay universally accessible is harmfully oblivious. Rather than considering culture as something that is rightfully kept outside of the courtroom, we could instead consider: What is the meaning of this process for the client? Is justice really served when the participants are not dir ectly active agents in the resolution process? And if there haven’t been opportunities for healing?

Restorative justice processes challenge settlers to recog nize what we lose when we argue for process efficiency, knowing full-well that our systems are back-logged and inaccessible to most. They challenge us to reconsider the supposed fairness in homogeneous processes when in reality the law’s application varies greatly across various locales in this country. Our fundamental rights are supposed to be substantive after all, based not in treatment but in outcomes.

When we slow down and truly reflect on what is most important in life we recognize that anything that is worth doing is infused with deep connections and shared meaning. This here too echoes a core teaching in many Indigenous cultures which honour right relations.

Alternative dispute resolution processes provide an incredible

opportunity to infuse culture into the project of finding justice. All restorative justice and mediation processes begin by asking partici pants to first set guidelines together which support how they will speak with each other. These are upheld and brought back into the conver sation by the facilitator throughout the process. In this way a shared reli ance — or, a cultural commitment — to horizontality and full consent are kept at the core. And there is so much more that can be done.

By working to advance access and examine the culture that under scores the way mediation is offered through its Calls to Action and Equity, Diversity, and Inclusion Committees, Mediate BC is humbly learn ing to center mean ingful client experi ences in the pursuit of justice. This may just lead to changing the way we’re used to doing things.

Fellow settlers — I ask you to reflect with me on the role of culture in your life, and in the work you contribute to in the name of social progress and justice. How do you welcome and involve those who you collaborate with in finding the justice they are looking for? How would you like to be wel comed if you were in their place?

“Black and Brown People Have Been Protesting for Centuries. It’s White People Who Are Responsible for What Happens Next.” — Time Savala Nolan (June 1, 2020).

ALEKS BESAN

Aleks Besan is the Director of Training at the BC Society of Transition Houses and sits on Mediate BC’s Board.

LETTER TO THE EDITOR

Re: “They Live Among Us” by Tony Wilson, KC, BarTalk October 2022

“I read with hesitation the above-noted article, the title of which very effectively gives a heads-up to a coming display of the arrogant elitist/supremacist and condescending tone so often indulged in by the author of this column. In the course of a single page, Mr. Wilson proceeds to ridicule those holding opposing and/or very divergent views in areas as serious as electoral integrity, public health safety and efficacy, and human rights, including the right to peacefully protest. He concentrates mostly on attacking specific people clearly suffering from serious ignorance and/or mental illness, mostly through contemptuous dismissal or ad hominem insults, and thereby seems to marginalize any fact-based or logic-based concerns in those important areas, concerns shared by many who could never reasonably or justly be called “conspiracy theorists,” “anti-vaxxers,” or “crackpots.” What is this — Grade 3 level name-calling during recess? This sort of cheap, sneering bullying — “punching down” actually — by people who seem to consider themselves members of some truth-guarding elite has no place in a publication such as this. It is a disgrace and an affront to the legal profession’s support for reason, civility, freedom of expression and the pursuit of justice, regardless of whether one agrees with any of the admittedly fatally-flawed arguments these people put forth. Did it not occur to you that these non-lawyers were not represented by counsel, a luxury few can afford?

Congratulations, Mr. Wilson — you just embraced and held up to a worshipful level the irrational, uncivil and non-evidence-based behaviours you claim to decry. Instead of this sort of anti-intellectual bully-boy tirade, I look forward to seeing an article from you some day in which you seek instead to analyze and expound on your own undoubtedly stunningly valuable views on these various topics. Then perhaps the ignorant, uneducated and mentally ill who struggle through an often incomprehensible world full of real-life harms and injustices could benefit from the constructive contributions of someone with a legal background, rather than simply be further beaten down by more of the same destructive and hatred-filled put-downs.

By the way, the title “They Live Among Us” is possibly the most disgusting short-hand way possible to describe other fellow human beings, and brings to mind that this is how some people actually describe the mentally ill, the drug-addicted and/or the homeless, i.e., as not being human. No doubt you didn’t mean to display support for a society divided in various classes or castes, but next time you might at least consider the divisive and mean-spirited nature of your choice of words. There’s been plenty of vilification going around for the past few years already, and many of us are simply sick of it.

This was a strongly critical letter, yes, but I am relieved that I was able to write something this restrained and civil, particularly since the first four words that came to mind after reading this horrific piece were the four (profane) words by the Mayor of Peterborough that you so admiringly quoted.”

— Trevor Wiebe, North Vancouver, BC

Tony Wilson’s Response

“In a profession that thrives on differing opinions, I have always welcomed comments from readers who agree or disagree with my opinions in “Nothing Official.” Getting a reaction, even if it’s negative, means that people have actually read a column of mine, and in this reader’s case, are motivated enough to strongly disagree with me, which is what any opinion columnist should hope for. If an opinion columnist like me doesn’t have an opinion about something, or the column doesn’t motivate readers to think, laugh, or disagree with me, then “Nothing Official” is a merely public relations column and not worth reading.”

— Tony Wilson, KC

nothingofficial

TONY WILSON, KC

Her Majesty Was a Pretty Nice Girl

The end of the modern Elizabethan Age

Iknew something was amiss on the morning of September 9 because the BBC logo on my Facebook feed showed a black background with white letters rather than the usual red background in its logo. The formal announcement of Queen Elizabeth’s death came only a few hours later.

Since then, many Canadians, includ ing a monarchy sceptic like me, grieved for her and, in our own way, thanked her for her 70 years of service to the UK, Canada, and the world as Queen. Living all my 66 years with a Queen, (and having learned to sing God Save the Queen before Oh Canada), a King in 2022 takes a bit of getting used to for everyone, even the BBC. While lis tening to the BBC World Service (as I do), even the announcers stumbled over the new King’s name on the day the Queen died, calling him “Prince Charles the Third” more than once.

Those of us with QC’s had to be reminded by the Law Society that Section 21 of the Interpretation Act automatically made us all KC’s without further pomp or circum stance, and our QC’s are now KC’s, as if we were never QC’s at all. I wondered why I couldn’t remain QC for a little while longer, in homage to Elizabeth II, but appar ently, the designation obliges us, if called upon, to provide advice to the sovereign; whoever he or she may be. As it’s profoundly difficult to provide legal advice to a muchloved Queen who has died, a KC it is. But even that takes a bit of getting used to. One former QC (now KC)

expressed her confusion with the automatic changeover and tonguetripped with the designation, calling it a KFC. Another lawyer jokingly asked me if I was going to form a musical ensemble called “KC and the Sunshine Band.”

I first met the Queen, from afar, in Victoria in 1971. There was a cottage industry of Centennial celebrations in the 60s and 70s, and 1971 was the Centenary of BC entering Confederation. My parents (being arch monarchists), took us everywhere to see the Queen, so we saw her getting on and off the Royal Yacht Britannia when it was docked in Victoria’s Inner Harbour. But my fondest encounter was when she did an extended walkabout near the BC Provincial Museum (as it then was called). My Junior High School band was tasked with playing music for the Queen and her entour age. Perhaps 30 feet from where we were playing, as the Queen strolled through the crowds, the wind picked up, and my sheet music was blown near enough to the Queen that she watched it sail uncomfortably close to her hat. Then she glanced directly at me, as if to say: “that was you, wasn’t it?”

The Brits seem to have better luck with their Kings and Queens than they do with their prime ministers. The buffoonish Boris Johnson was pushed out in the summer, only to be replaced by Liz Truss, who

was Prime Minister for a whole 45 days. Her “mini-budget,” provided unfunded tax cuts to the wealthy and caused the Pound to plummet. The tax cuts were thrown out, along with her other ideologically driven policies, into the dustbin of history. Shortly afterwards, the Daily Star ran a competition as to who would last longer — Liz Truss or a head of lettuce. The lettuce won after only six days. A short tenure for a politician is now called “Trussian.”

Despite our collective love for the Queen, Canadians may soon re-evaluate our attach ment to the British Monarchy, just like the Law Society did in the 1990s when the Benchers removed allegiance to Queen Elizabeth and her Heirs and Successors from the Barrister’s Oath. Some Quebec MNA’s have refused to take an oath to the new King, and I expect more than a few parliamentar ians and public officials in other Canadian jurisdictions may raise the same issue, citing, among other things, that politically charged word “colonialism.”

But until things change, all I’ll say for the moment is “God save the King.”

Tony Wilson, KC is a Life Bencher of the Law Society, a Vancouver Franchise Lawyer, hu mourist, 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.

barmoves

Who’s Moving Where and When

Ashley Dalla Zanna joined Singleton Urquhart Reynolds Vogel LLP as an associate after summering and articling with the firm. Ashley maintains a broad litigation practice focusing on commercial and workplace disputes.

Alegria Indio

joined Singleton Urquhart Reynolds Vogel LLP as an associate after summering and articling with the firm, where she maintains a construction litigation practice.

Sharla Johnson joined Singleton Urquhart Reynolds Vogel LLP as an associate after articling with the firm. Sharla maintains a broad litigation practice in numerous practice areas.

Adam Rose joined Singleton Urquhart Reynolds Vogel LLP as an associate after summering and articling at the firm, where he focuses on resolving challenging disputes for large-scale construction projects.

Cen Yang joined Singleton Urquhart Reynolds Vogel LLP as an associate after summering and articling at the firm. Cen maintains a broad litigation practice in various practice areas.

Robin Dean

joined Clark Wilson’s Indigenous Law group. Robin has particular expertise in Indigenous rights, title and governance issues, judicial reviews of government action, and dispute resolution.

Hailey Laycraft has moved her Real Estate and Corporate Commercial practice to Synergy Business Lawyers LLP.

The Honourable Richard B.T. Goepel, KC returns as senior counsel to Watson Goepel following his retirement from the BC Court of Appeal. He brings a wealth of experience and knowledge to the firm after serving on the Bench for over 20 years.

Todd Bell joined Farris as a partner. Todd Bell is a highly skilled family law litigator and trial lawyer with wide-ranging courtroom experience spanning all levels of court in British Columbia.

Wally Braul an energy, Indigenous law and environmental lawyer joined DLA Piper (Canada) LLP as senior counsel in their Litigation, Arbitration, and Investigations group.

Harninder Dhillon joined Legacy Tax + Trust Lawyers’ Tax Litigation practice group. She will assist clients on audits conducted by the CRA and clients who are disputing income tax and GST assessments.

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

Virginia Richards joined Clark Wilson’s Family Law group where she will advise clients on a range of matters, including marriage, separation and divorce agreements, as well as the division of property and business interests.

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

Nicole Iaci joined Mandell Pinder LLP as an associate. Nicole advises Indigenous governments on the resolution of historical claims and the negotiation of agreements between Indigenous and Crown governments.

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

Betty Nguyen joined Mandell Pinder LLP as an associate. Betty advises Indigenous governments and their businesses on land transactions, commercial transactions of all types, policy and law development, and governance issues.

Liyan Wu joined Lawson Lundell as an associate in their Asia Pacific group. Liyan was called to the British Columbia Bar in 2018.

Mahir Mohamed joined Mandell Pinder LLP as an associate. Mahir advises Indigenous governments and their businesses on commercial and land transactions and supports clients in treaty negotiations.

Kevin Chen joined Lawson Lundell as a Land Owner Transparency Act Coordinator in their Real Estate group. Kevin was called to the British Columbia Bar in 2022.

Mario Checchia joined Branch MacMaster LLP as a litigation associate. His practice is focused on litigation, class actions, insurance coverage, subrogation, and defence.

We all have our reasons for buying life insurance. Those reasons are big. And getting bigger. Before we know it, those reasons will be able to reach the top of the fridge, they’ll ask to borrow the car, they’ll tell us our music isn’t cool, that they can handle it, whatever it is, and just when they’ve come around to our music, which is, it turns out, retro, and retro, it turns out, is cool, those reasons are graduating, moving out, growing up, and meeting reasons of their own. You’ve got your reasons.

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