Advocate Jan 2014

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ADVOCATE 

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THE ADVOCATE VOL. 72 PART 1 JANUARY 2014 

1

2 VOL. 72 PART 1 JANUARY 2014 

THE ADVOCATE 

CRIMINAL LAW 

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3 

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THE ADVOCATE 

OFFICERS AND EXECUTIVES 

LAW SOCIETY OF BRITISH COLUMBIA 

CANADIAN BAR ASSOCIATION 

BRITISH COLUMBIA BRANCH 

Jan Lindsay, Q.C. 

President 

Ken Walker, Q.C. 

First Vice President 

David Crossin, Q.C. 

Second Vice President 

Timothy E. McGee 

Chief Executive Officer and Executive Director 

CARIBOO 

Susan Margaret C. Grattan 

William Jackson, Q.C. 

Constance Marie Sauter 

KOOTENAY 

Donald Noriyuki Kawano 

Deanna Grace Ludowicz 

NANAIMO 

Mark Burger 

Grant W. Currie 

Clinton Jean Sadlemyer 

Scott Sheets 

PRINCE RUPERT 

Martin Griffith-Zahner 

Sean E. Rowell 

VANCOUVER 

Kenneth Armstrong 

Jennifer Chow 

Samantha Davey 

Timothy J. Delaney 

Diana Lee Dorey 

Jasroop Grewal 

Lisa Hamilton 

Judith Janzen 

Ken Kramer 

Spencer May 

Perry Anthony Mazzone 

BENCHERS 

EX OFFICIO 

The Honourable Suzanne Anton 

Attorney General of British Columbia 

APPOINTED BENCHERS 

Haydn Acheson 

Satwinder K. Bains 

Stacy Kuiack 

ELECTED BENCHERS 

Joseph J. M. Arvay, Q.C. 

Pinder K. Cheema, Q.C. 

Jeevyn Dhaliwal 

Lynal E. Doerksen 

Thomas P. Fellhauer 

Craig A.B. Ferris 

W. Martin Finch, Q.C. 

Miriam Kresivo, Q. C. 

Dean P. J. Lawton 

Jamie Maclaren 

Sharon Matthews, Q.C. 

Peter B. Lloyd, FCA 

Benjimen Meisner 

Claude H. Richmond 

Nancy Merrill 

Maria Morellato, Q.C. 

David Mossop, Q.C. 

C. E. Lee Ongman 

Gregory Petrisor 

Philip A. Riddell 

Elizabeth Rowbotham 

A. Cameron Ward 

Tony Wilson 

Barry N. Zacharias 

ELECTED MEMBERS OF THE PROVINCIAL COUNCIL 

Margaret Mereigh 

Marina Morgan 

Lisa D. Ridgedale 

Alex Shorten 

Mark R. Slay 

Dierk Ullrich 

H. William (Bill) Veenstra 

C. Anthony (Tony) Wilson 

Louisa Winn 

VICTORIA 

Sarah L. Klinger 

Chris Massey 

Kay M. Melbye 

Carmen J. Rogers 

Charlotte A. Salomon 

WESTMINSTER 

Renée L. Aldana 

Edmund Caissie 

Janet L. Clark 

Rebecca Lee Darnell 

Vanessa J.D. Van Sickle 

Perminder Tung 

YALE 

Edmund P. Caissie 

James D. Cotter 

David Charles Dundee 

Robert Oliver Levin 

Michael Welsh 

BRITISH COLUMBIA BAR ASSOCIATIONS 

ABBOTSFORD & DISTRICT 

Joshua Bach, President 

CAMPBELL RIVER 

Kevin Simonett, President 

CHILLIWACK & DISTRICT 

Daniel Sorensen, President 

COMOX VALLEY 

Bonnie Day, President 

COWICHAN VALLEY 

Julia Hendersen, President 

KAMLOOPS 

Christina J. Cook, President 

KELOWNA 

Deanna Stone, President 

KOOTENAY 

Maggie Balfour, President 

NANAIMO CITY 

Sandra Dick, President 

NANAIMO COUNTY 

Clint Sadlemyer, President 

NEW WESTMINSTER 

Diane Gradley, President 

NORTH SHORE 

John Whyte, President 

PENTICTON & DISTRICT 

Michael Welsh, President 

PORT ALBERNI 

Christina Proteau, President 

EXECUTIVE COMMITTEE 

Dean Crawford 

President 

Alex Shorten 

Vice President 

Carmen Rogers, Q.C. 

Secretary Treasurer 

Kerry Simmons 

Past President 

Caroline Nevin 

Executive Director 

Krystle Gill 

Equality and Diversity Representative 

Sean Rowell 

Young Lawyers’ Representative 

Jennifer Chow 

Officer 

Clint Sadlemyer, Q.C. 

Officer 

Bill Veenstra 

Officer 

Michael Welsh 

Officer 

PRINCE GEORGE 

Lorne Dunn, President 

PRINCE RUPERT 

Michael Shaw, President 

QUESNEL 

Jennifer Johnston, President 

SALMON ARM 

Dennis Zachernuk, President 

SOUTH CARIBOO COUNTY 

Angela Amman, President 

SURREY 

Sarando Matheos, President 

VANCOUVER 

Executive 

Richard Pearce 

President 

Mark Fancourt-Smith 

Vice President 

Carolyn MacDonald 

Secretary Treasurer 

Timothy Hinkson 

Past President 

VERNON 

Coady MacEachern, President 

VICTORIA 

Kay Melbye, President 

Changes to the rosters of officers and executives of the Law Society and the various bar associations will be recorded in the issue following the month 

when they are reported by those bodies to the Advocate business office, subject to time limits imposed by the Advocate’s production schedule.

THE 

ADVOCATE 

“Of interest to the lawyer and in the lawyer’s interest” 

VOL. 72 PART 1 JANUARY 2014 

Published six times each year by the 

Vancouver Bar Association 

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The Honourable Mary Saunders 

Jennifer Law Conkie, Q.C. 

Peter J. Roberts 

The Honourable William F.M. Jackson 

VANCOUVER BAR ASSOCIATION 

ADVOCATE COMMITTEE: 

Richard Pearce 

Mark Fancourt-Smith 

Carolyn MacDonald 

Timothy Hinkson 

BUSINESS MANAGER: 

Lynda Roberts 

COVER ARTIST: 

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Entre Nous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 

On the Front Cover: Jan Lindsay, Q.C. . . . . . . . . . . . . 17 

By Julie K. Lamb 

Wills and Estates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 

By John Cochrane 

Reflections of a Deputy Judge of the Yukon Sitting . . . 31 

in Watson Lake, August 1994 

By Marion Allan 

Think You Know CanLII? A Closer Look into a . . . . . . 37 

Prized Asset of the British Columbia Legal Community 

By Colin Lachance 

The Wine Column . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 

Advocate News . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 

News from Courthouse Libraries BC . . . . . . . . . . . . . . 55 

News from BC Law Institute . . . . . . . . . . . . . . . . . . . . 59 

News from CLEBC Society . . . . . . . . . . . . . . . . . . . . . . 63 

LAP Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 

Announcing the 2014 Advocate Short . . . . . . . . . . . . . . 71 

Fiction Competition 

UBC Law Faculty News . . . . . . . . . . . . . . . . . . . . . . . . 73 

UVic Law Faculty News . . . . . . . . . . . . . . . . . . . . . . . . 77 

The Attorney General’s Page . . . . . . . . . . . . . . . . . . . . 81 

Court Notices and Directions . . . . . . . . . . . . . . . . . . . . 85 

Nos Disparus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 

New Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 

New Books and Media . . . . . . . . . . . . . . . . . . . . . . . . . . 125 

Classified . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 

Letters to the Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 

Grumbles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 

Legal Anecdotes and Miscellanea . . . . . . . . . . . . . . . . . 137 

From Our Back Pages . . . . . . . . . . . . . . . . . . . . . . . . . . 143 

Bench and Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 

Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 

ON THE FRONT COVER 

Jan Lindsay, Q.C., is our current Law Society President and 

the first cover subject to appear in our new style. Check out 

her style at page 17.


THE ADVOCATE 

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THE ADVOCATE 

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9 

ENTRE NOUS 

We recently had occasion to stumble upon a personal 

reference letter for a Scottish relative written on March 3, 

1931, when he was a 25-year-old merchant seaman looking 

for work in Glasgow. A highland minister of the Church of 

Scotland wrote: 

I have known the bearer … and the family to which he belongs, very 

closely, for the last nine years; and I have great pleasure in certifying that 

he is the son of most respectable parents, and that his character and conduct 

have always been in perfect keeping with his home up-bringing. He 

is thoroughly upright and honest; truthful and reliable; sober and correct 

in all his conduct; and irreproachable in every way. He will do his work 

faithfully, cheerfully and efficiently, and will try to please his masters 

and to improve himself. I have perfect confidence in recommending him 

for any post requiring intelligence, energy, tact and integrity. 

The carefully typed letter, now more than 80 years old, is yellowing at 

the edges, its folds sharpened by decades of being neatly pressed in a 

folder. It is charming in its directness and, somehow, despite its perhaps 

somewhat excessive veneration of the subject, manages to convey why it


THE ADVOCATE 

is appropriate to be “upright and honest, truthful and reliable”. The underlying 

theme is that praiseworthy character is the very basis for a recommendation 

for “any post requiring intelligence, energy, tact and integrity”. 

The endorsement, in other words, flows directly from the character of the 

young man. 

Curiously, what sprang to mind was not so much that these were wonderful 

things to be said about a relative, but instead a realization that a letter 

like this could never be written about the current mayor of Toronto (or at 

least the mayor of Toronto at the time of writing). To be fair, we should probably 

qualify that Rob Ford may well be able to say that his character and 

conduct are in perfect keeping with his home upbringing—we really do not 

know—but read the rest of the minister’s endorsement again, this time with 

Ford in mind. If ever there were a reason to invent the word inapropos, this 

would be it. While the letter is a bit old-fashioned, does it not succinctly 

summarize the very characteristics that a citizenry ought to be able to say 

about the public servants elected to … well, serve them? 1 

Since the end of October 2013, Toronto’s mayor has lurched uncontrollably 

from one unbelievable lapse to another, abandoning all semblances 

of decency, morality and character in the process. Words like “integrity”, 

“truthfulness” and “honesty” avoid Rob Ford as if they hold an opposite 

magnetic polarity. He has been seemingly hell-bent to behave in the most 

lurid and debauched manner in ways that comedy writers could never 

dream up (but give thanks for). Ford appears to be a man entirely devoid of 

self-awareness. He exhibits a juvenile mind where simply saying “I apologize” 

somehow magically absolves him of every and any wrong he has committed, 

no matter how egregious. For good measure, Ford has never shied 

away from generously sprinkling the word “sincerely” about like an inflated 

pink-faced Tinker Bell waving a magic wand to make everything better. We 

apologize for that image. Sincerely. But there’s nothing more we can do, and 

we are moving on. 

The subject of a police surveillance operation, Ford was photographed 

with known and suspected drug dealers and admitted to smoking crack 

cocaine (probably during one of his “drunken stupors”, he said), driving 

while intoxicated and purchasing illegal drugs. A video allegedly showing 

him smoking crack cocaine finally emerged (after months of denials by 

Ford about its existence), and no sooner had he apologized for it when 

another video appeared showing him in the midst of a profanity-laden 

tirade vowing to visit “first degree murder” on an unidentified foe. Ford 

unleashed was indistinguishable from Ford uncorked. Once out of the bottle, 

he could not be put back in.


11 

With each shocking revelation, Ford threw apologies around as if they 

were grenades, but often they would explode before he had so much as 

launched them. At one point he stooped to the point of using sexually 

derogatory language to defend himself against an allegation of sexual 

harassment. Not even Ford’s wife was spared as he invoked her healthy 

appetite for cunnilingus as the basis of his defence that he could not have 

possibly used derogatory language with a female co-worker. Crass does not 

even come close to describing Ford’s behaviour. 

Each gaffe was more jaw-dropping and unbelievable than the last. And 

yet Ford adamantly and stubbornly refused to step down or take a leave of 

absence. The Ford Motor Company, the Toronto Argonauts, even Santa and 

Mrs. Claus all sought to distance themselves from the mayor as he careered 

off his weekly radio show (which was cancelled) and into the merciless 

crosshairs of late-night talk show hosts. Perhaps predictably, he and his 

abhorrent brother, Councillor Doug Ford, were offered their own television 

program during the fracas. After a single episode, however, the show was 

promptly cancelled on the basis that it should not take six hours to shoot 

and eight hours to edit a 47-minute program. One can only hope that the 

outtakes are released at some point. 

Toronto city councillors, meanwhile, extended one olive branch after 

another. Even Ford’s former closest allies begged him to take a leave of 

absence. But Ford responded like the bully he is: physically intimidating 

other councillors, mocking others’ shortcomings by making rude hand 

gestures, muttering to himself during council meetings, blowing kisses 

to the media and even lunging at councillors and members of the public— 

accidentally knocking a female councillor down in one particular linebacker’s 

rush. Having brought the City of Toronto to its knees in the 

international-reputation sweepstakes, Ford vowed to stay on and to do 

what he said was “right for the taxpayers of this great city”. He was seemingly 

oblivious to the serious reputational harm he was actually causing 

Toronto. 

City councillors had little choice other than to contain the mayor who 

was so obviously out of control (both personally and professionally) and 

unwilling to either help himself or let others help him. Devoid of a statutory 

power to remove him, and with the provincial government (at least initially) 

unwilling to step in, they passed a number of resolutions to curb his 

power. They voted as follows: 

• 37–5 to remove the mayor’s right to fill vacancies on the civic 

appointments committee. 

• 37–5 to cut the mayor’s budget.


THE ADVOCATE 

• 36–6 to transfer many of Ford’s deputies and budget to the deputy 

mayor. 

• 32–10 to decree that Ford could no longer set key matters on the 

legislative agenda. 

Ford immediately vowed an all-out “war” against his fellow councillors 

and promised to launch a legal challenge to council’s actions (yet to materialize 

at the time of writing). In particular, he invoked militaristic language 

to complain that the city council was undermining the very core of democracy 

itself: 

Folks, this is nothing more, this is nothing more than a coup d’état and if 

you don’t know what a coup d’état means, it means that you are overruling 

a government. And some people said: “this is democracy.” What’s 

happening here today is not a democratic process, this is a dictatorship 

process … This, folks, reminds me of when I was watching with my 

brother when Saddam [Hussein] attacked Kuwait and President [George 

H.W.] Bush said, “I warn you, I warn you, I warn you, do not.” 

Well folks, if you think American-style politics is nasty you guys have 

just attacked Kuwait. You will never see something, mark my words 

friends, this is going to be outright war in the next election and I’m going 

to do everything in my power to beat you guys. And I have no sympathy. 

What you’re doing to me is kicking me out of my office and it is the 

worst thing you can do, I was elected by the people. Am I mad? You’re 

absolutely right I’m mad because every one of you guys have sinned and 

it is absolutely the worst thing you can do for democracy in the City of 

Toronto. 

What goes around comes around friends, remember what I am saying. 

So which was it, a coup d’état or an unprovoked invasion of a neighbouring 

country? Ford’s metaphors were as mixed as his drinks (his apparent 

cocktail of choice being vodka and Gatorade). Moreover, these two metaphors 

for Ford’s plight could scarcely be more inappropriate. A coup d’état is 

literally a blow against the state. It typically involves the use of the military 

by a minority group within the existing state establishment to depose the 

government in power. The invasion of Kuwait, on the other hand, was the 

unprovoked intrusion by one nation state against the sovereignty of the 

other. So, was Ford saying he was a government overthrown by an unauthorized 

military or a sovereign entity overthrown by a foreign force? Did he 

seriously perceive the city councillors as being equivalent to Saddam Hussein 

or his regime? If he is Kuwait 23 years ago, who is going to play George 

H.W. Bush in the movie version of Ford’s life? 

While Ford’s ego may have no apparent borders, Ford is not a sovereign 

state. He is the mayor of a city, a creature of provincial statute. The City of 

Toronto Act, 2006, 2 sets out that the “City of Toronto exists for the purpose of


13 

providing good government with respect to matters within its jurisdiction, 

and the city council is a democratically elected government which is 

responsible and accountable”. It is a purpose of the Act that the city must be 

able to ensure that it “is accountable to the public and that the process for 

making decisions is transparent”. 

Ford’s allegation of “a dictatorship” ignored not only the accountability of 

city council, but also the fact that before voting in a public forum (broadcast 

far beyond the boundaries of the electorate it serves) the motions at issue 

were up for questioning and debate by all members of council, including 

Ford. How was that not democracy? 

The mayor’s role is spelled out in the Act as follows: 

It is the role of the mayor of the City, as head of council, 

(a) To act as chief executive officer of the City; 

(b) To preside over meetings of council so that its business can be carried 

out efficiently and effectively; 

(c) To provide leadership to council; 

(d) To represent the City at official functions; and 

(e) To carry out the duties of the head of council under this or any 

other Act. 3 

The mayor’s role as chief executive officer is further defined in the Act: 

As chief executive officer of the City, the mayor shall, 

(a) Uphold and promote the purposes of the City; 

(b) Promote public involvement in the City’s activities; 

(c) Act as the representative of the City both within and outside the 

City; and promote the City locally, nationally and internationally; 

and 

(d) Participate in and foster activities that enhance the economic, 

social and environmental well-being of the City and its residents. 4 

Beyond that, council (not the province) had previously created further 

responsibilities for the mayor, adopted by the city council in 2006 as changes 

pursuant to a bylaw. 5 The council gave, and the council hath taken away. 

The city councillors faced with a mayor behaving criminally, erratically, 

evasively and in a bullying manner realized that they had no legal authority 

to remove or impeach him. Therefore they tabled, debated and voted on 

suspending certain duties and roles contained in the Municipal Code that 

applied to the mayor. This, only after they first privately, then publicly confronted 

the mayor to take some time off to deal with his admitted drug use, 

obvious alcohol abuse and other erratic behavioural issues. The mayor, 

stubborn to the end, refused to step down and instead threatened litigation 

(six paragraphs later it still hasn’t happened). He had his lawyer write to 

council cautioning them from proceeding, in part, on the basis that


THE ADVOCATE 

it is the responsibility of Council to address, and act on the basis of, facts 

relevant to the merits of the question before it for decision, and not make 

such decisions on the basis of speculation, or extraneous or irrelevant 

allegations. 6 

During the very council meetings devoted to the serious question of 

whether the council could sanction the mayor for his admitted criminal 

behaviour and ever-escalating bizarre conduct, Ford intimidated at least 

one council member (standing menacingly in front of him and not allowing 

him to pass), actively taunted members of the public (getting his newly 

appointed driver to videotape the public gallery while the mayor and his 

brother, councillor Doug Ford, yelled at members of the public), made outrageous 

hand gestures designed to taunt other members of council and 

charged wildly across the council floor. Who needed speculative or extraneous 

evidence in these circumstances? 

The principles of the bylaw under consideration state: 

(1) The majority of members have the right to decide; 

(2) The minority of members have the right to be heard; 

(3) All members have the right to information to help make decisions, 

unless otherwise prevented by law; 

(4) Members have a right to an efficient meeting; 

(5) All members have the right to be treated with respect and courtesy; 

and 

(6) All members have equal rights, privileges and obligations. 

How, then, can a majority of members exercising a right to amend a 

bylaw after the minority is given an opportunity to be heard be said to be 

participating in a coup d’état? The notion is, like most of what Rob Ford 

says, complete nonsense. 

Sir Winston Churchill famously noted that “democracy is the worst form 

of government, except for all those other forms that have been tried from 

time to time”. Less commonly quoted is his preface to that statement, 

namely that “no one pretends that democracy is perfect or all-wise”. Rob 

Ford is apparently that no one. Not only is he prepared to pretend democracy 

is perfect and all wise but also that its very foundation is at jeopardy 

because he smoked crack cocaine and the majority of Toronto City Council 

decided to do something about it. 

Any imperfections in the process adopted by the majority of members 

of council (a huge majority, in fact) to strip an out-of-control mayor from 

causing further embarrassment and harm to the city he is duty bound to 

serve must surely be in the interests of the city. Ford was not elected to 

break the law or to be a vulgar idiot unable to function at a basic level of 

decency. Any argument that council stepped onto a slippery slope to under-


15 

mine the wishes of the electorate is surely more absurd than the problematic 

and disruptive behaviours exhibited by the mayor. Ford was given every 

opportunity to take some time off, reinvent himself and return a transformed 

man. 7 Instead, he chose to sink to deeper levels of depravity, none 

of which needed to be proven in court. Most of it was either admitted or selfevident, 

and the bulk of it played out either on the council floor or live on 

television. 

“I’ve changed the culture down here,” Rob Ford boasted in an interview 

shortly after being stripped of most of his budget and staff, leaving only his 

ceremonial duties intact; “You don’t hear about the scandals any more.” 

The merchant seaman whose reference letter started this piece used to 

say “Don’t vote. It only encourages them.” One can only hope that Ford 

Nation heeds that call. 

ENDNOTES 

1. Sadly, we must leave for another day the unfolding 

scandal surrounding the Senate and the Prime 

Minister’s Office, except to pose the same general 

question. 

2. SO 2006, c 11. 

3. Ibid, s 133. 

4. Ibid, s 134. 

5. Pursuant to the Municipal Code, c 27, Council 

Procedure. 

6. George Rust-D’Eye, barrister and solicitor, letter to 

Toronto City Council (15 November 2013), online: 

. 

7. Cue William Shatner. 

t t t 

t t


THE ADVOCATE


17 

ON THE 

FRONT COVER 

JAN LINDSAY, Q.C. 

By Julie K. Lamb 

Jan Lindsay, Q.C., the new president of the Law Society of British 

Columbia, is smart, warm and genuine. Jan has risen to her position 

as president as a result of hard work, determination and a bucketload 

of talent. The profession will be well served by her leadership. 

Jan has lived her entire life in the Lower Mainland. She was born at the 

Vancouver Grace Hospital on January 20, 1955, the first-born child of Abie 

and Carol Klassen. As the eldest offspring and only daughter, Jan was 

expected to set a good example for her younger brothers, Stan, Lory and 

Glen. For the most part, Jan lived up to her parents’ expectations while 

managing to hold her own in a household full of boys. 

After a few years in North Burnaby, the Klassens moved to South Burnaby, 

to a home where Jan’s parents lived for the next 50-plus years. 

Through her early schooling, Jan was a good student, winning academic 

prizes along the way to her graduation in 1973 from Burnaby South Secondary 

School. Despite a respectable high school transcript and the top 

mark in her class on the provincial mathematics scholarship exam, Jan had 

only a remote interest in attending university. Fresh out of high school, she 

took a job as a filing clerk at CIBC in the personal loans department, filing 

and retrieving paper printouts of loans. Six months at the bank and a bit of 

a personal bank balance were enough to make higher education an attractive 

option. 

Jan enrolled in first-year arts at Simon Fraser University in January 

1974. Her school term was interrupted when she was diagnosed with 

Hodgkin’s lymphoma. Treatment was effective, and Jan wasted no time 

in returning to her studies. She spent six weeks in the summer of 1974 at


THE ADVOCATE 

L’École d’été à l’Université du Québec à Montréal studying French, eating 

bagels and appreciating the convenience of the depanneur on the corner. 

In the fall of 1974, Jan returned to SFU to study history and political 

science, the focus of her remaining undergraduate studies. She filled in her 

schedule with French and German courses in anticipation of future travels. 

A summer spent working and travelling in Great Britain and Ireland confirmed 

a wanderlust that continues to the present day. 

After her third year in the Faculty of Arts at SFU, Jan jumped into law 

school at UBC, not to satisfy a lifelong desire to become a lawyer but rather 

because by then she realized she simply liked going to school. While at UBC, 

Jan picked up the nickname “Boom-Boom” Klassen. The story that the 

moniker related to her scoring prowess for the law school’s women’s hockey 

team can no longer be verified. The hockey team was keen enough to travel 

to tournaments in Edmonton and Saskatoon with the law school’s men’s 

team—perhaps as a precursor to the modern Law Games. No doubt there 

was much discussion on those long train rides about torts and evidence. 

Other law school highlights include many happy beer-ups with classmates 

Anne Wallace (now P.C.J.), Jan Bryant, Sandra Watson and many others. 

In those days, Jan spent summers working as a train-order operator for 

CP and later CN. Her role involved spending long hours in a small compartment, 

relaying directions from central dispatch to train engineers and conductors. 

While she earned good money, Jan did well to move on from this 

position and her job as a filing clerk to a career that has (thus far) not been 

completely phased out by technology. 

When Jan graduated from law school in the spring of 1980, she did not 

have an articling position lined up. She managed to find articles starting in 

September at Burnett & Fenton, a four-lawyer firm in downtown Vancouver 

that specialized in civil litigation. Jan worked most closely with barristers 

Ken Price and Jeff Smith. Over the course of her articling year, legend 

has it that Jan conducted 96 small claims trials for ICBC—a good start to a 

career-long relationship. 

Back in those days, Burnett & Fenton shared office space with Rob 

Carson, and Jim McNeney’s crew were regular visitors. On Fridays, 

McNeney would take the whole gang to the Ritz for beverages. Jan learned 

early the importance of collegiality within the profession. 

Shortly after her call to the bar in 1981, Jan was hired by Lindsay Kenney 

as the firm’s first associate. Jan was supposed to junior a complicated products 

liability matter that was heading to trial imminently. She was tasked 

with reviewing volumes and volumes of transcripts from the many days of 

discovery that had taken place. Two days into her new position, Jan’s only


19 

file settled. Concerns about job security were fleeting, as Jan was soon busy 

representing insurance clients and their insureds. 

In 1988, Jan became the first female partner at Lindsay Kenney. Once 

again, she had to hold her own in a group dominated by men. In 1991, Jan 

helped to launch the Langley branch office of Lindsay Kenney with partner 

Kirk Poje and associates Michael Girrard and Mark Bakken. Over the next 

20 years, Jan became the cornerstone of the Lindsay Kenney ICBC litigation 

group in Langley. More recently, on January 1, 2013, Jan and some of her 

insurance litigation colleagues joined forces to establish Lindsay LLP, a boutique 

insurance firm serving western Canada. 

Throughout her career, Jan has defended all manner of personal injury 

actions, including brain injury and other serious injury claims, running 

dozens of trials with and without a jury and arguing a number of appeals. 

As a litigator, Jan enjoys a solid reputation as competent and persuasive 

counsel. She is passionate about her client’s cause, but that doesn’t prevent 

her from realistically assessing the strengths and weaknesses of her client’s 

position. Jan has a talent for being direct without being confrontational, and 

she can deliver a difficult message with compassion. Jan is known for her 

professionalism and her collegiality. Walking through the New Westminster 

courthouse with Jan is like hanging out with Norm at Cheers (it’s where 

everyone knows her name), though Jan gives out more friendly hugs than 

Norm ever did. 

In 2009, Jan was appointed Queen’s Counsel. In 2011, she was recognized 

by her colleagues in the defence bar when she received the Lee Samis 

Award of Excellence from the Canadian Defence Lawyers (“CDL”), awarded 

in recognition of exceptional contributions or achievements by members of 

the CDL. 

Through the years, Jan has mentored many junior lawyers of both genders 

as they came up through the ranks. She saw first-hand how women 

lawyers in particular struggled to meet the demands of private practice and 

to accommodate other life priorities, and she became all too familiar with 

the exodus of young women lawyers from private practice. Addressing the 

challenges of retention of women lawyers remains a priority issue for Jan. 

These efforts, together with her success as a female litigator and partner in 

a downtown firm at a time when they were not as common as one might 

think, led the Women’s Law Forum to give Jan the WLF Award of Excellence 

in 2013, awarded in recognition of lawyers “who have taken risks, fostered 

change, and ultimately opened doors for women lawyers”. 

Jan has served the profession for many years in different ways. She has 

been the co-chair of the Personal Injury CLE with James Vilvang, Q.C., for


THE ADVOCATE 

as long as anyone can remember. She was encouraged to serve on the CBA 

Automobile Insurance Committee and did so for a number of years. Back in 

2000, Jan first volunteered with the Law Society as a member of the Complainants’ 

Review Committee. 

At some point along the way, Jan thought she heard the calling to serve 

as a bencher of the Law Society. Over the course of the next few years, she 

lost bencher elections to a distinguished group from the Westminster 

County bar: David Renwick, Q.C., Grant Taylor, Q.C. (as he then was), 

Robert Crawford, Q.C. (as he then was), Carol Hickman, Q.C., and others. 

Finally, when Greg Rideout was appointed to the bench in 2006, Jan ran in 

a by-election and was eventually rewarded for her perseverance. The celebratory 

cake was particularly sweet. 

As a bencher, Jan is described by fellow bencher Kathryn Berge, Q.C., as 

enthusiastic, very dedicated and clear in her principles. Jan is passionate 

about the independence of the profession and self-governance, and she will 

continue to make these issues a focus of her presidency. 

While she has enjoyed a challenging and fulfilling professional life, Jan 

is the first president of the Law Society who is also a mother. Steven, 

Christopher, Sean and Kelly were youngsters when Jan was building a busy 

litigation practice through the 1980s and ’90s. Her children are now accomplished 

young adults. Jan glows with every one of their successes and suffers 

each of their setbacks and heartbreaks with them. To say that Jan is 

close to her kids understates the essence of their relationship. 

As many will know, Jan shares a personal and professional partnership 

with Richard Lindsay, Q.C. They have been married for 25 years and law partners 

for almost as long. Rick has supported Jan in her professional endeavours, 

and he has adapted well to his “plus one” role at Law Society functions. 

On weekends, you will often find Jan puttering in her garden or rooting 

for those darn Canucks, though she never sits still long enough to enjoy an 

entire game. Rick describes her as more energetic than the Energizer 

Bunny, with always one more thing to accomplish before the day is done. 

To recharge her batteries, Jan regularly seeks refuge at the family compound 

on Savary Island, often with kids and friends in tow. Jan receives 

guests warmly and doesn’t get too fussed with the details. As long as the 

beer fridge is stocked and the cheese selection varied, Jan is content. 

Through the years, Jan has managed to take time away from the practice 

of law to travel, often in conjunction with her children’s adventures. She 

travelled to Peru with her friend Barb in order to catch up with her son 

Steven, who was doing a long South American tour. When Kelly decided to 

study Spanish in Barcelona, Jan dropped her off there to make sure she was


21 

set up comfortably. When the term ended, Jan, her mother and her motherin-law 

travelled back to Europe to escort Kelly home, taking a detour 

through Prague on the way. 

When Kelly was finishing a second trip to Spain, Jan dragged Rick and 

their friend Wayne to Morocco to meet her. The group endured a long car ride 

from Casablanca to Marrakesh and then through the mountains to the end of 

the road to get to the three-day camel expedition in the Sahara Desert that Jan 

had arranged. It was not exactly luxury travel. Trooper that she is, Jan gratefully 

quaffed the desert-warm beer as part of a picnic in the sand. The group 

returned to Casablanca just in time to be marooned there when the volcano 

in Iceland erupted. The quickest way back to North America involved a fiveday 

stay in Istanbul, which turned out to be a highlight of the trip. 

Together Jan and Rick have taken many cruises, including on the 

Mediterranean, around the Iberian peninsula and as far as Odessa in the 

Black Sea. One memorable adventure occurred on safari in Botswana, 

where they enjoyed a scene right out of The Lion King. As their Jeep travelled 

back to camp, the Lindsays’ expedition came upon a pride of lions 

lounging close to their path of travel. One of the female lions suddenly 

bolted into the bush to catch a zebra for the male lion’s dinner. With the 

Lindsays in front-row seats only 20 feet away, the male lion moved in to 

devour the wailing zebra. Unfortunately, the male lion wasn’t up for the 

task and the zebra escaped, crashing into the side of the Lindsays’ Jeep. Perhaps 

allegorically, the female lions stepped in and finished the job botched 

by the male lion while Jan filmed the entire event at very close range, 

never once flinching at the graphic scene that unfolded. While she may not 

have won an Oscar, Jan proved her mettle as an amateur nature filmmaker. 

As we all know, life sometimes throws curve balls. In August 2013, Jan 

was diagnosed with breast cancer. She has faced her diagnosis with dignity, 

courage and more than a small dose of stubbornness. Surgery in September 

was successful, and chemotherapy should be completed in early January. 

Certainly this latest health issue is only a small bump in the road for the 

woman described by young colleague Amy McCallion as the “toughest, 

smartest, coolest woman out there”. 

Jan will bring the same commitment to excellence as president of the 

Law Society as she has shown in every other part of her life. She is quite 

simply as sincere and as nice as she sounds. But perhaps more importantly, 

she brings that sincerity to her desire to serve the legal profession. We are 

very fortunate to have Jan as president. 

t t t 

t t


THE ADVOCATE 

[ 

Ours is not only an ancient and honourable profession, but it is a 

profession essential to the function of free government. If some 

cataclysm were to wipe out the whole of the legal profession overnight, 

so to speak, and destroy all lawyers, a new group of lawyers must come 

into being so that the processes of an ordered free society may continue, 

for the lawyer is the defender of the life, liberty and property of the 

citizenry even as against the government itself. 

—Frank E. Holman 

[


23 

WILLS AND ESTATES 

By John Cochrane* 

Owners of assets of significant value should have a will to 

cover the contingency of an untimely death. As owners age, 

they may want to take steps to have more of their assets pass 

outside a will because there are drawbacks to transferring 

assets by will. 

TRANSFERS UNDER A WILL 

The Common Law 

A will is a document prone to litigation, as evidenced by the many cases on 

disputed wills. The 1881 edition of Sir Henry Theobald’s Concise Treatise on 

the Law of Wills 1 refers to approximately 10,600 cases. The 2001 edition of 

Theobald’s Treatise 2 omits many of the old cases, but there is an ample supply 

of new ones from which the editors can draw. The table of cases in the 

2001 edition runs to approximately 9,900 cases. There are a number of reasons 

why there are so many cases on wills. 

First, the absence of the testator/testatrix (“will-maker”) at the time a will 

comes into effect emboldens claimants. Prospective beneficiaries under a 

will can proceed to court shamelessly, knowing that a personal confrontation 

with the will-maker will not occur. The death of the will-maker 

removes the social barrier to legal action that might otherwise exist. Second, 

unlike a negotiated business document, a will is unilateral. Will preparation 

does not include giving notice to those affected. The result is that a will may 

have a surprise element, even a shock effect. The greater the expectation 

on the part of a prospective beneficiary, the greater can be the disappointment; 

and the greater the disappointment, the greater can be the desire for 

redress. 

Third, conditions attached to bequests can be a source of annoyance. 

Whereas inter vivos gifts are usually immediate and unconditional, bequests 

can be subject to a variety of conditions. Bequests that vest only when par- 

* The writer benefited greatly from the generosity and scholarship of Professor Tony Sheppard, of the University of British 

Columbia’s Faculty of Law at Allard Hall.


THE ADVOCATE 

ticular events occur or when specified time periods elapse test the patience 

of beneficiaries. Estate assets that are not distributed to beneficiaries for a 

number of years are normally managed by third parties with little or no 

input from beneficiaries. Resentments can arise if non-vested beneficiaries 

believe that a will-maker is trying to “rule from the grave”. 

Fourth, some contestants of a will take legal action in the hope that a 

judge will look outside the document for evidence of a will-maker’s intentions. 

3 Other contestants hope that a judge will decide that intent is to be 

derived solely from the text of the will. 4 In Re Rowland, 5 Lord Denning 

summed up this latter approach, with which he did not altogether agree: “It 

is not what the testator meant, but what is the meaning of his words.” The 

possibility that a judge may be either an intention-seeker or a textualist can 

spur parties to legal action. 

Fifth, the once-in-a-lifetime aspect of an estate distribution presents 

aspiring beneficiaries with a singular opportunity for financial gain. What 

took years to accumulate can be accessed all at once. In most cases, contestants 

of a will have much to gain in the event of success and little to lose in 

the event of failure. 

Statutory Law 

The common law of wills was well settled when Sir Henry Theobald wrote 

his treatise on wills in the 1800s. 6 Thus the common law of wills developed 

prior to the awakening in our time of a social conscience. It is not surprising 

that statutory modification became necessary. To borrow phraseology 

from A Connecticut Yankee in King Arthur’s Court, 7 some of the ruts of the 

common law, worn deep by time and habit, needed to be diverted. 

Of the various statutory modifications to the common law of wills, the 

most far-reaching has been dependants-relief legislation. This was introduced 

in Canada in the 1920s. 8 This legislation has spawned a further body 

of case law which now represents an important subsidiary part of the Canadian 

law of wills. The leading case of Tataryn v. Tataryn Estate, 9 decided by 

the Supreme Court of Canada in 1994, considered 23 cases on dependantsrelief 

legislation. Since 1994, many more cases have been decided under 

the various provincial counterparts of the legislation. 

In delivering the judgment of the Supreme Court of Canada in the 

Tataryn case, Madam Justice McLachlin (as she then was) described the 

statutory narrowing of will-makers’ rights: 

The absolute testamentary autonomy of the 19th century was required to 

yield to the interests of spouses and children to the extent, and only to 

the extent, that this was necessary to provide the latter with what was 

“adequate, just and equitable in the circumstances.” 10


25 

In the fair garden of testamentary freedom, an arbor of social justice has 

been planted. With a few rare exceptions, people are free during their lifetime 

to disburse their money as they see fit, but distributions under a will 

must meet a specified standard of social justice. 

The courts can now change a will if a judge decides that the required 

standard of social justice has not been met, but the unwelcome side effect 

is that will-makers can no longer be sure that their wills will be honoured 

as written. A will-maker may have sound reasons for treating one child differently 

from another, but a judge may decide that such treatment is not 

“adequate, just and equitable in the circumstances”. In an ancient incident, 

the patriarch Jacob blessed his younger grandson Ephraim rather than his 

older grandson Manasseh. In so doing, Jacob refused to follow the accepted 

practice of the time. He also declined to heed the protest of his renowned 

son Joseph, the father of Manasseh and Ephraim. Jacob’s blessing was 

based on his view that the “younger brother will be greater…and his descendants 

will become a group of nations”. 11 If dependants-relief legislation had 

existed in those ancient times and permitted grandchildren to challenge 

their grandparents’ will, Jacob’s decision probably would have been 

reversed by the courts. 

It is a daunting task for a judge to decide what a will-maker should have 

done or should not have done. The task is especially difficult because the 

person whose testimony would be the most helpful is not available to take 

the stand. Much might be heard from those who seek to benefit from a will, 

but nothing can be heard in the form of oral testimony from the deceased 

who sought to bestow the benefits. 

A Double Transfer of Property 

A will-maker seeks to transfer assets to beneficiaries, but estate assets pass 

first to the will-maker’s personal representative (i.e., the executor) and then 

to beneficiaries. Executors discover, sometimes to their surprise, that they 

control someone else’s property. The amount controlled may be greater 

than an individual executor or executrix has ever controlled before. It is a 

position of temptation to which some executors succumb. 

In a recent two-page article in The Globe and Mail, 12 Canadians were told 

of a massive fraud by one of the executors of the Penna estate. Paul Penna, 

the founder of Agnico-Eagle Gold Mines Ltd., died in 1996 at the age of 73. 

He and his wife Lorraine had no children. Mr. Penna’s will provided that 

$1 million was to be set aside for his wife, with the remaining $23 million 

of his $24 million estate to be divided among various charities. Mr. Penna’s 

will named three executors: his wife, Lorraine, who died in 2003 of complications 

arising from Alzheimer’s disease; former Agnico chairman Charles


THE ADVOCATE 

Langston, who died in 2010 at age 90; and Barry Landen, Agnico’s former 

vice-president of investor relations, who also served for many years as Mr. 

Penna’s financial counsellor. A grant of probate of Mr. Penna’s will was 

never sought and the charities mentioned in the will were not given formal 

notification of their bequests. 

Mr. Landen arranged matters so that he was in sole control of the estate. 

Estate assets were misappropriated and mishandled by Mr. Landen to such 

an extent that Lorraine Penna received no money from the estate and the 

charities gave up hope of ever receiving their gifts. In 2010, 14 years after 

Mr. Penna’s death, Mr. Landen was found guilty of civil contempt and committed 

to imprisonment for 14 months. 13 

Another recent case illustrates that a trusted professional is not beyond 

temptation when serving as an executor. A lawyer who practised law in Nelson, 

B.C. from 1978 to 1990 was the sole executor of the $1,062,000 estate of 

John Alexander George, who died in 1988. The executor properly paid out 

$563,000 to some beneficiaries but used the balance of estate funds to 

finance a personal real estate investment which failed. In a 2010 B.C. 

Supreme Court decision, 14 the executor was found guilty of theft and fraud. 

Ultimately, the beneficiaries who had not received their bequests were paid 

out of the B.C. Law Society Special Compensation Fund. 

An executor is in a position of power. The person for whom the executor 

acts is dead, and beneficiaries are not likely to bite the hand that feeds 

them. Executors may have good reputations, but their true character is 

revealed by the manner in which they exercise their power. 

A Delay in the Distribution of Property 

Before estate assets are distributed, executors need to take whatever time is 

necessary to ensure that all estate liabilities are satisfied and any claims by 

dependants are settled. In the case of income tax liabilities, an executor has 

a personal interest in obtaining a tax clearance certificate, because, if this is 

not done, the executor is personally liable, to the extent of any property distributed, 

for any tax, interest or penalties owing by the estate and the 

deceased. 15 

The necessary delay in the distribution of estate assets has the unfortunate 

consequence of postponing the discovery of any misconduct by 

an executor. In the case of the Penna estate, the misappropriation went 

undetected for several years, by which time estate assets had been 

dissipated. 

Unless a will provides otherwise, an executor is entitled to an annual fee 

based on the value of estate assets. 16 Thus any lengthy delay in the distribution 

of estate assets works to the advantage of the executor. Today, the dis-


27 

tribution of an estate is not as protracted as that described in Bleak House, 

in which “Jarndyce and Jarndyce dragged its dreary length before the 

Court”. 17 but there would appear to be little incentive for an executor to act 

with dispatch. 

Loss of Privacy 

From seclusion in a location known only to the will-maker and possibly a 

few others, a will admitted to probate enters the public realm. Whereas gifts 

made during one’s lifetime can be kept confidential, bequests under a probated 

will are open to public inspection. 

Few wills are of interest to the public, but there are those who are given 

the opportunity to read a will without having to search the court registry. 

Wills admitted to probate are required to be circulated to specified family 

members and to named beneficiaries. Such circulation enables comparisons 

to be made that can lead to lingering animosities. 

A will-maker may not be concerned that his or her wealth becomes 

known at death, but, of course, it is the surviving family members who must 

deal with any after-effects of publicity. 

Questions about Will-makers 

Transfers of wealth on death can be effected by various instruments other 

than wills, such as life insurance policies, RRSPs, annuities with guaranteed 

terms and documents of joint ownership with right of survivorship. When 

such documents take effect, the mental capacity of the person who initiated 

the document is not normally called into question. By contrast, when a will 

comes into effect, the mental capacity of the will-maker at the time of making 

the will can become an issue. Beneficiaries are the focus of a will, but 

the will-maker, even though dead, is not exempt from review if testamentary 

capacity is disputed. 

Involvement of the Courts 

Of the many documents that transfer assets, a will may be the only one that 

requires approval by the courts. Unless an estate is very small, 18 a grant of 

probate is required. The involvement of the courts ensures that justice will 

be pursued, but, of course, the legal process brings into play centuries of 

precedents and practices that can trip up the unwary. 

A hospital carries out various tests to ensure that a newly admitted 

patient is properly treated, and a probate court considers various matters to 

ensure that a person’s last requests are carried out. One difference is that a 

hospital visit may be unavoidable, whereas probate can be avoided if assets 

are transferred outside a will.


THE ADVOCATE 

TRANSFERS OUTSIDE A WILL 

Inter Vivos Transfers 

Asset transfers on an inter vivos basis are becoming more common as a 

result of the aging of the population. People in their 80s and 90s who 

become less active tend to relinquish properties and investments that they 

no longer wish to manage. 19 Those in their 60s and 70s are more likely to 

give up future growth only, a goal that can be achieved by an estate freeze. 

If the elderly wish to have their assets pass outside their wills but still 

retain control of their assets, alter ego trusts can be used. As a result of provisions 

20 added to the Income Tax Act for the year 2000 on, alter ego trusts 

are now tax-effective instruments for seniors. Individuals aged 65 or older 

who do not want to give up control of their assets can transfer them to an 

alter ego trust on a tax-deferred “rollover” basis. On death, assets in the alter 

ego trust are distributed according to the trust document and do not pass 

through the settlor’s estate. 21 

As people become elderly, they are likely to divest themselves of personal 

possessions on an inter vivos basis. A move by the elderly to a smaller 

residence necessitates the disposal of some furniture, and a subsequent 

move to a long-term-care facility usually results in the disposal of hearth 

and home, china, silver, crystal, paintings and books. Downsizing may even 

extend to personal effects such as jewellery and clothing. The wardrobe of 

the very frail may be a hospital gown on loan. “We brought nothing into this 

world, and it is certain we can carry nothing out.” 22 

Intergenerational transfers on an inter vivos basis are becoming more 

common in our time not only because transferors are elderly but because 

transferees are adults. The adulthood of transferees is a relatively new phenomenon. 

In 1851, according to Statistics Canada, Canadian life 

expectancy was 43 years. That number seems implausible until it is 

remembered that 

in 1850 medical science was an infant in its cradle. Few scientific procedures 

or instruments of precision were yet available to aid in diagnosis. 

The stethoscope was still novel and the clinical thermometer had not yet 

been invented. The microscope was not available to medical students at 

Harvard until 1869–70, and even twenty years later the refresher courses 

at Johns Hopkins Medical School were filled with practicing physicians 

who had never seen a microscope. 23 

In the 1800s, testamentary trusts for children were quite common 

because many children were too young to handle assets transferred to them 

directly by parents. Demographics are very different today. The average life 

span of Canadians is now approximately 80 years, so children are old


29 

enough and normally mature enough to handle assets transferred to them 

directly by elderly parents. 

Philanthropy on a large scale is now occurring on an inter vivos basis. 

Canadian universities and hospitals are receiving substantial gifts from living 

donors. The existence of dependants-relief legislation may be one factor 

that is prompting philanthropists to make donations during their 

lifetime rather than under a will. 

Inter vivos transfers are now a statutory requirement in some situations. 

Family law legislation generally calls for the division of family property on 

relationship breakdown. 24 

Segregated Funds 

Canadian life insurance companies offer investment products which have 

become known as segregated funds because the investments are held separately 

from the general funds of the insurer. Investors place money in 

either a deferred annuity or a variable life insurance policy, and the money 

is used to purchase segregated fund units selected by the contract holder. 

Annuities are included in the statutory definition of “life insurance”, with 

the result that payouts on death to designated beneficiaries pass outside a 

will. 

A segregated fund contract and a will have little commonality, yet both 

effect transfers of wealth on death. A segregated fund contract is a “living 

document” that generates regular reports that disclose both the value of 

assets held and the names of beneficiaries to whom funds are to be distributed 

on death. A will, on the other hand, is a “dormant document” that does 

not generate periodic reminders of its existence. 

A segregated fund contract puts a floor under asset values by providing 

principal guarantees at death and at contract maturity dates. A will can only 

transfer whatever asset values exist at the time of death. Misappropriation 

by a third party does not occur under a segregated fund contract because, 

of course, there is no executor or other intermediary. 

Segregated fund contracts are particularly useful if confidentiality is 

desired, because a copy of a segregated fund contract is not circulated to 

beneficiaries on the death of the contract holder. Segregated fund contracts 

are also useful for long-term holdings because the 21-year deemed disposition 

rule applicable to trusts does not apply to segregated funds. 

Most changes to segregated fund contracts can be made by filing a 

change form, whereas changes to a will require a properly executed codicil. 

Payouts of segregated fund contracts are made promptly following the submission 

of a death certificate. Distributions under a will proceed at the pace 

of a snail or a tortoise.


THE ADVOCATE 

CONCLUSION 

It has long been the task of lawyers to help clients transfer their assets by 

will. But lawyers can also help clients arrange their affairs so that assets 

pass outside a will, thereby avoiding the drawbacks inherent in transfers 

under a will. 

ENDNOTES 

1. Henry S Theobald, Concise Treatise on the Law of 

Wills, 2nd ed (London: Stevens & Sons, 1881). 

2. Ibid, 16th ed (London: Sweet & Maxwell, 2001). 

3. British Columbia’s Wills, Estates and Succession Act, 

SBC 2009, c 13, in force 31 March 2014, BC Reg 

148/2013, empowers the court to look outside a will 

for evidence of a will-maker’s intentions. If the court 

determines that a record or document represents the 

testamentary intentions of a deceased person, the 

court may order that such a record or document “be 

fully effective as though it had been as the will or part 

of the will of the deceased person”: s 58(3). 

4. The canons of textual interpretation, including those 

applicable to wills, are expounded in a recent book 

co-authored by Justice Antonin Scalia of the United 

States Supreme Court: Antonin Scalia & Bryan A 

Garner, Reading Law: The Interpretation of Legal 

Texts (St Paul, MN: Thomson/West, 2012). 

5. [1962] 2 All ER 837. 

6. A formal system of written wills appears to have been 

introduced by the Statute of Wills, 1540 (UK), 32 Hen 

8, c 1. 

7. Mark Twain, A Connecticut Yankee in King Arthur’s 

Court (1889), c 8. 

8. In British Columbia, dependants-relief legislation is 

included in the Wills, Estates and Succession Act, 

supra note 3 at ss 60–72. 

9. [1994] 2 SCR 807. 

10. Ibid at 815. 

11. Genesis 48:19. 

12. Jacquie McNish & Paul Waldie, “The dark side of 

Canada’s inheritance system”, The Globe and Mail 

(4 March 2011), online: . 

13. Estate of Paul Penna, 2010 ONSC 6993. 

14. R v Singleton, 2010 BCSC 1734. 

15. Income Tax Act, RSC 1985, c 1 (5th Supp), s 159(3). 

16. In British Columbia, the annual fee payable to an 

executor is authorized by the Trustee Act, RSBC 

1996, c 464, s 88(3). 

17. Charles Dickens, Bleak House (1852), c 1. 

18. Under British Columbia’s Wills, Estates and Succesion 

Act, supra note 3, an estate composed wholly of 

personal property of less than the currently prescribed 

amount of $50,000 can avoid the legal 

requirement of obtaining a grant of probate. 

19. Under Canada’s current income tax system, individual 

transferors of capital assets retain approximately 

75 to 80 per cent of transfer gains subject to tax. The 

extent of retention varies by province due to varying 

provincial tax rates. 

20. Income Tax Act, supra note 15, clause 73(1.01) 

(c)(ii). 

21. Further advantages of an alter ego trust are mentioned 

in Mawdsley v Meshen, 2012 BCCA 91 at 

para 2. 

22. I Timothy 6:7, also quoted in the opening sentence 

of the preface to the 2001 edition of Theobald’s 

Treatise. 

23. Helen Clapesattle, The Doctors Mayo (Garden City, 

NY: Garden City Publishing, 1943) at 21–22. 

24. In British Columbia, division of family property is 

dealt with in the Family Law Act, SBC 2011, c 25, ss 

81–109. 

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31 

REFLECTIONS OF A DEPUTY JUDGE 

OF THE YUKON SITTING IN 

WATSON LAKE, AUGUST 1994 

By Marion Allan 

Iwas appointed a deputy judge of the Yukon in 1990, and for many 

years I travelled to Whitehorse for a week every year. Sitting there in 

the spring or fall was a snap. The courthouse is a beautiful building— 

modern and light. The federal and territorial governments put an 

end to their dispute as to which coat of arms should grace the Supreme 

Court rooms. I believe that there was only one occasion when the senior 

resident judge draped his robes over the “wrong” coat of arms in protest. 

Visiting judges are lodged in the Edgewater Hotel, which—once you haul 

all your luggage up three or four flights of stairs by yourself—has a modern 

suite far more luxurious than anything in the BCSC’s northern B.C. postings. 

As I recall, Whitehorse has a great bookstore, good restaurants and bakeries, 

and excellent espresso. Rumours of good bars abound. The scenery 

and the northern lights are magnificent. 

In 1994, I was asked if I would like to sit “out of town”. Apparently, Watson 

Lake, at mile 635 on the Alaska Highway in southeastern Yukon, is the 

most civilized spot on the circuit. Ross River and Old Crow were reputed to 

be the most challenging destinations. The fact that Ross River is also known 

as Lost Liver speaks for itself. In Old Crow’s accommodation, the judge has 

one bedroom, and the court staff, regardless of gender, share the second 

bedroom with three bunks. All provisions, including bedding and food, have 

to be brought in each time. 

The RCMP take the position that they would be compromised if they 

transported counsel, the judge or the court staff the eight blocks to the 

building in which they hold court. Accordingly, everyone has to make their 

own way by foot no matter the weather conditions. The court clerk is faced 

with the daunting task of transporting numerous court briefcases, exhibits 

and everything necessary for court in temperatures as low as minus 45 

degrees. Our clerk said she used a toboggan to lug everything through the 

snow. On one occasion, she was required to transport four rifles. Everything 

was so cold and slippery that the guns kept falling off the sled. She stuffed


THE ADVOCATE 

two rifles under each armpit facing forward, tied the toboggan’s rope around 

her waist and set off. 

On another occasion, in Pelly Crossing, the two accused were in custody, 

and during their trial they were closely guarded by two RCMP officers. (Sheriffs 

do not attend criminal trials in the Yukon; if the prisoner is in custody, 

one or more RCMP officers referred to as “proves” attend.) In the midst of 

the trial, a murder occurred in the house next door to the courthouse. The 

RCMP officers were paged, and they rushed out of the courtroom. The judge 

quickly called an adjournment and hurriedly left the bench. The clerk was 

left with the vexing problem of deciding what to do with the prisoners. She 

locked them in a small room and sternly told them to stay there. She learned 

later that another door in that small room led directly into the judge’s chambers. 

Fortunately, the accused obeyed her and stayed where they were until 

court reconvened with the return of the officers. 

In August 1994, an assize in Watson Lake came available. The first leg of 

this adventure involved a chartered plane from the Alkan Air hangar in 

Whitehorse at 7:30 a.m. A slick little six-seater Piper Chieftain transported 

me, the court clerk, the court reporter and a victim-services worker. For an 

hour and ten minutes, we flew over mountains and lakes and trees. Nothing 

else. No houses, no roads, no settlements. The court reporter told me 

that she had flown dozens of times over the Pacific to tiny islands in 

Micronesia and that it was much scarier looking down and seeing nothing 

but water. I did not tell her that I would sooner drown quickly and quietly 

than land safely on a mountain and then slowly freeze and be eaten by 

bears. After we landed safely, the sheriff, who had driven the 455 kilometres 

the day before, picked us up at the airport and took us to the Watson 

Lake “Hotel”. The day after this blessedly uneventful flight, I talked to Mary - 

Ellen Boyd on the telephone and told her where I was. She said the only 

thing she knew about Watson Lake was that it was the scene of a famous air 

crash. 

It would be hard to describe the Watson Lake Hotel as a hotel. It was a 

grim institutional building. The only decorations in the hallways were large 

notices that reminded guests that all of the outside doors to the building had 

to be kept locked at all times. That afternoon, my neighbour across the hall 

propped open the security door at the end of the hall, opened his door and 

sat on a chair in the doorway, drinking beer. When I opened my door, he 

asked me if I wanted to come over to his suite and join him for “a cold one”. 

I declined politely and went back to answer the phone. The call was from 

the front desk, from which an angry woman insisted that it could not be 

coincidental that, as soon as I arrived, the doors were left unlocked and


33 

open. I pled not guilty and squealed like a rat on my neighbour. It became 

obvious that at least one of the outside doors was always propped open by 

someone, but it seemed easier not to dwell on the basis for the management’s 

strong concerns about security. 

My “suite” was equipped with a kitchen, but the refrigerator made more 

noise than the Piper Chieftain’s engines. It was chronically unbalanced, but 

I soon found that if I banged it around a bit and stuffed the bathroom floor 

mat under one side of it, I could calm it for a half hour at a time. 

The hotel would be right on the Alaska Highway were it not for a buffer 

zone provided by “The Signpost Forest”. This consisted of more than 20,000 

signs, mostly road signs of towns and cities from all over the world, attached 

to trees and posts spread out over an area of a couple of blocks. Apparently, 

a homesick American soldier who had been sent up north to work on the 

construction of the Alaska Highway in 1942 wistfully erected a signpost 

indicating the direction and mileage to his hometown of Danville, Illinois. 

The idea caught on; an informational sign said that approximately 2,000 

new signs were erected each year, so it’s a good thing there is a lot of open 

space up there. (In 2013, there were over 77,000 signs in the forest.) 

The weather was pleasant initially, although it turned to lightning, 

thunder and rain the second night. That was no surprise—in the 11 days I 

spent in the Yukon that summer, prior to travelling to Watson Lake, I experienced 

the following weather phenomena: choking smoke from the forest 

fires that limited visibility to a few feet, howling winds and fog and rain in 

Skagway, rain and an early morning frost (minus 5 degrees) in Dawson 

City, bright sunshine in Haines Junction and uniformly beautiful weather 

in Whitehorse. 

Court was held across the street from the hotel in the gym of the Community 

Recreation Centre—a great cavernous structure clad entirely in corrugated 

tin, with a vivid mural on one side of it. The entire structure housed 

a gigantic curling rink and appeared to be wholly dedicated to that sport. 

The judge’s “chambers” were a small storage cupboard, which contained a 

desk and a number of curious articles: a snow shovel, spare light bulbs, gardening 

gloves, a couple of Husky hats (one chartreuse and one hot pink), a 

crib board made out of a moose’s antler, uninscribed trophies in an old 

“Nutty Club” carton, and a box of pink and aqua ping pong paddles. A huge 

pile of paper boxes and other garbage sat in one corner; a case of broom bags 

and bags of things from the Home Hardware were piled in another. An odd 

metal structure, which presumably was essential to some aspect of curling, 

leant into a third corner. The wall sported only the Canadian Curling Rules 

and a newsletter headed On the Rocks.


THE ADVOCATE 

The little office was set off in a corner of the lounge that sported a wet 

bar and a pool table overlooking the curling rink. Thankfully (or perhaps 

regrettably), the bar was not stocked during the trial. The lounge was populated 

by the complainant, her relatives, the victim services worker and, 

from time to time, Crown counsel. The office had a single window, which 

looked out into the lounge. Someone had covered some (but not all) of the 

window with cardboard. I peeked out through the crack periodically to 

account for all of the complainant’s family, to make sure I could use the 

bathroom without running into them. 

Robing presented a challenge—anyone in the lounge who wanted to look 

through the window into the office could do so easily. The bathroom had 

three small cubicles, too small for disrobing or enrobing. I decided to 

change in the hotel. 

To get back into my little office, it was necessary to walk in full judicial 

robes through the main gym and past all the participants. To get from my 

office to the “court”, I had to enter behind the lawyers and the accused, pass 

in front of the jurors’ chairs and climb up a series of rickety wooden stairs 

to my “bench” on the stage. The bench was a table with a forest-green tablecloth, 

which I seemed to kick out in front in great billowing lumps whenever 

I crossed my legs. Usually, however, I kept both feet on the floor to 

prevent my chair from rolling backward across the linoleum on the stage 

and into the piano, which was two feet behind me. I do not play the piano 

but, strangely, during the trial I was repeatedly struck by an urge to spin 

around and play a chord or two.* 

Jury selection was set for 9 a.m. The sheriff complained that everyone 

runs on Yukon time. This apparently explained the fact that, although his 

office sent out 150 jury notices, by 9:55 there were about 15 bodies. By 10:10 

there were probably 100 bodies. Both the accused and the complainant were 

local. Six of the panel members who were called up were excused because 

they were related to, or knew, the accused or the complainant or both. The 

charge was sexual assault, and the accused was described variously as the 

uncle or the second cousin of the complainant. 

Feeling a bit out of my comfort zone, I stifled an inordinate fear of saying 

something foolish and resolved to sit quietly and look cool. That resolve 

lasted until counsel for the Crown, a courteous and pleasant man, introduced 

himself as counsel for the Attorney General of Canada. “For the Attorney 

General of Canada—in a sexual assault trial???” I shrieked mockingly, 

one second before I remembered that in the Yukon, territorial prosecutors 

* “But first, ladies and gentlemen of the jury, Rachmaninoff’s Piano Concerto No. 2 in C minor.” – Ed.


35 

only deal with offences under Yukon statutes. Federal prosecutors handle 

all criminal offences, not just drugs and taxes and the like (although I 

understood there was a move afoot to change this). 

While the office was freezing, the gym was sweltering and everyone who 

could remove layers of clothing did so during the first hour. The sheriff 

offered to turn on the air conditioning but warned me that it was very noisy. 

As it was, the complainant was so soft-spoken that she was required to 

repeat each of her answers several times before anyone could hear her. I 

was the hottest person in the building. 

I walked briskly around Wye Lake the first morning. I concluded that I 

had the path to myself because the good burghers of Watson Lake had better 

things to do at 7 a.m. than walk outdoors in a circle and, no doubt, they 

engaged in more strenuous activities such as wrestling with large animals 

when they felt the need for exercise. When I got to court, one of the staff 

warned me that it was a bad idea to walk there in the mornings in August 

because the bears are out feeding on berries in preparation for hibernation. 

That afternoon, I decided to circumnavigate the lake once more for some 

exercise. Again I met no one, but this time, when I was about halfway 

around, I heard great claps of thunder accompanied by great billowing 

black clouds, which came closer and closer and moved significantly faster 

than I. I ran back to the hotel and got there just minutes before the storm 

struck overhead. The rain came down in sheets. In no time, the emerald 

green lawn outside my window was awash in brown mud. Surprisingly, by 

the next morning all of the water had drained, leaving the grass fresh and 

green. The lights flickered off a few times, and I contemplated the challenges 

of preparing a jury charge without electricity. 

That night, there was a small window of opportunity for sleep between 1 

a.m., when a loud live band playing country and western music (badly) shut 

down, and 5 a.m., when a contingent of large trucks revved their engines a 

few feet from my bedroom window until I abandoned the idea of sleep. 

When I got to court the next day, the sheriff told me that a bear had been 

sighted in town the day before and two bear traps had been set. 

The evidence at trial proceeded efficiently: 11 witnesses in two days, two 

for the Crown and nine alibi witnesses for the defence. Counsel’s addresses 

and my charge went smoothly on the third day, although it rained heavily 

at one point. The sound of the downpour on the corrugated tin roof seemed 

to wake up the jury and interest them far more than the drone of counsel 

and the judge. 

The jury deliberated for two hours before returning with a verdict of not 

guilty. They were obviously undeterred by the accused’s criminal record,


THE ADVOCATE 

which had been entered by the defence as the only exhibit in the trial. The 

record disclosed 23 convictions between 1985 and 1991, albeit none for sexual 

assault. It appeared that a good proportion of the community was in the 

courtroom to support the accused, and they broke into applause when the 

foreman announced the verdict. 

After court, determined to avoid bears, I walked along the Alaska Highway 

to the end of town and back. This was only about seven kilometres, but 

I began to consider the challenges that getting fresh air and exercise posed 

to an unarmed cityslicker without mace. I went to dinner with the court 

staff. We had a great time telling stories, despite the fact that the restaurant 

was sold out of meat, chicken and fish. 

That night, another live band, louder than the first and much worse, 

struck up at 10:30 p.m. and “played” through until 3 a.m. The lead “singer” 

invited audience participation and, presumably increasingly under the 

influence of strong drink, the audience grew ever louder and less melodic. 

I decided that the last words anyone in bed wants to hear at one in the 

morning are those of the leader of a country rock group yelling “We’ll just 

take a break and be right back!” I entertained fantasies beginning with phoning 

the front desk and asking “This is a hotel, isn’t it?” and escalating to 

unplugging the entire sound system and throttling the lead singer with the 

electrical cords. The last fantasy was fortified by the fact that there were no 

media in Watson Lake to report me. 

We flew back to Whitehorse in an older Piper Chieftain that seemed 

smaller than the first one. While we were standing on the airport runway in 

Watson Lake, we learned that a Cessna 170 had just made a forced landing 

on the North Klondike Highway outside Whitehorse and then steered into 

a ditch to avoid traffic. Our flight back was turbulent, but happily we all had 

nerves of steel and stomachs of iron. 

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37 

THINK YOU KNOW CANLII? 

A CLOSER LOOK INTO A PRIZED ASSET 

OF THE BRITISH COLUMBIA 

LEGAL COMMUNITY 

By Colin Lachance 

The results of a 2012 survey tell us that 90 per cent of B.C. lawyers 

used CanLII in the 12-month period preceding the survey. The 

same survey disclosed that only 52 per cent of those lawyers 

knew that CanLII (full name: Canadian Legal Information Institute) 

was funded in part by their annual law society dues. 

British Columbia’s lawyers are certainly not alone in being unaware that 

their most frequently accessed legal resource is also one of their greatest 

contributions to supporting access to justice for all Canadians. Indeed, their 

awareness actually exceeds the national average (44 per cent) among the 

over 4,300 survey respondents from law societies across the country. 

To quote Allan Fineblit, Q.C., CEO of the Law Society of Manitoba: 

All CanLII funding comes from law societies. No public money goes into 

it and yet it is a public resource. Anyone can use it for free. It’s one of the 

many nice things lawyers do in the public interest. 

In respect of CanLII’s annual operational funding, Mr. Fineblit speaks 

true, although CanLII occasionally receives direct grants for various projects 

from provincial law foundations as well. The Law Foundation of 

British Columbia has played a major role in securing CanLII’s entitlement 

to reproduce B.C. legislation, and it also provides an ongoing grant to the 

Law Society of British Columbia that is earmarked specifically to CanLII’s 

benefit. 

Nuances aside, what matters is that CanLII exists and thrives because the 

legal profession came together and made it happen. 

I am grateful to the publishers of the Advocate for the opportunity to use 

this article to thank members of the B.C. legal profession and to remind 

them of their pivotal role in CanLII’s creation and success. I will go further 

and share details of the evolutionary and revolutionary opportunities that 

lie ahead.


THE ADVOCATE 

WHAT DO YOU GET FOR $35? 

Among lawyers, whether they use CanLII every day or only rarely, it is hard 

to imagine that many would suggest $35 per year is too steep a price to pay 

for 24/7 unlimited access to pan-Canadian current legislative and case law 

collections. To those who might object, or at least emit an unconvinced harrumph, 

I ask whether that contribution is an acceptable per-lawyer price for 

the profession to extend the free availability of law to their fellow citizens 

and to anyone else who finds themselves subject to Canadian law. Here, I 

hope to reduce the naysayers down to a more manageable number and rely 

on the following facts and data to make my case of good value for the money. 

The full CanLII database contains over 1.2 million documents, approximately 

10 per cent of which emanate from a dozen B.C. courts and major tribunals. 

Decisions from B.C. courts are sent directly to CanLII from the courts 

at the same time and through the same process as with other publishers, but 

as CanLII can generally process, integrate and post a judgment within hours 

of receipt, decisions can often be found on CanLII on their date of issue. With 

approximately 60,000 Supreme Court and Court of Appeal judgments, CanLII 

offers a near-complete continuous collection from 1990 to the present. For 

the years between 1976 and 1990, CanLII has a further 6,000 historical cases, 

mostly reported and other major cases. Our B.C. legislative database (~2,100 

current and historical versions of statutes and regulations) is updated directly 

and frequently from the material found on the B.C. laws website. 

Importantly, CanLII is not merely a repository; it is a fully functional tool 

that puts all these documents in their proper context (including hyperlinked 

access to associated cases and legislative materials) and in a forum where 

B.C. law is consulted thousands of times every day. Perhaps it cannot (yet) 

fully satisfy the needs of legal researchers, but even the courts take notice of 

what can (and should!) be accomplished through reliance on CanLII. 

For example, online legal research as a “necessary and proper” disbursement 

has long been a matter of debate in B.C., with courts and taxation officers 

generally predisposed to treating it as unrecoverable unless convinced 

otherwise: 

[78] I am even more convinced today that the cost of computerised 

research is properly an item of overhead than I was in 2001 when I 

decided Prevette v. Cusano. In this current electronic age there are even 

more resources available (at no cost) for conducting legal research online 

than ever before (for example, there is now the CanLII system and our 

own courts website—which includes the vast majority of the court’s written 

reasons issues since 1999, at least). Therefore absent convincing evidence 

that pay-per-use type of computerised legal research was a 

necessary adjunct of the prosecution of this case, I will not allow the 

claim for these amounts. 1


39 

Consider also the recently updated practice directive of British Columbia 

Court of Appeal concerning citations. 2 Among the changes, the court ranks 

the neutral citation as preferred to commercial citations and it encourages 

hyperlinks—identifying its own site, CanLII and the Supreme Court of 

Canada site maintained by Lexum as the appropriate destinations. 

If the foregoing does not convince even the most parsimonious B.C. 

lawyer that the $35 is well spent, all I can say is “read on”— because there 

is more. 

AN OVERNIGHT SUCCESS 15 YEARS IN THE MAKING 

While the mountains that dominate the B.C. landscape arrived (geologically 

speaking) in an instant, “Mount CanLII’s” presence in the legal information 

“range” was consciously built pebble by pebble into its present form. At 

some point, it became more than a pile of rocks and grew fully into the 

vision of its founders. Today, CanLII boasts over 215 collections, 1.2 million 

documents and an organic growth rate of 125,000 cases per year, and the 

site receives over 700,000 visits per month. 

There are many different aspects to when, why and how CanLII came 

about, but it is sufficient for the purposes of this column to focus on the 

period of the late 1990s and the work of the National Virtual Law Library 

Group of the Federation of Law Societies of Canada. It was then that the law 

societies collectively began to respond to a confluence of challenges, some 

of which will still ring familiar: 

• the high and rising costs of commercial legal research materials as 

new digital sources represented an additional and not a replacement 

expense to print; 

• a patchwork of isolated and mostly underwhelming free legal 

resources; 

• law societies seeing a need to support their members in accessing 

the law and basic research tools necessary to develop and maintain 

professional competence; 

• a future that risked putting a price tag on public access to the law; 

and 

• the absence of any other stakeholder(s) in the justice system with 

the wherewithal to improve the status quo. 

In August 2000, the Federation of Law Societies signed on to the “CanLII 

Road Map” and committed a combined $500,000 to a 16-month interim 

period during which LexUM (CanLII’s technology supplier and publishing


THE ADVOCATE 

partner, at the time a legal laboratory of the University of Montreal and 

already a long-time online publisher of Supreme Court of Canada decisions 

and world leader in the burgeoning “free access to law” movement) would 

establish and operate the site with whatever material could be acquired. At 

the time, the concept of a “free law” website was well established with successes 

in the United States (the Legal Information Institute at Cornell University) 

and Australia (AustLII), but the CanLII project was unique in that 

it had the benefit of full funding from the legal profession. 

A year later, the site had 18 collections comprising 20,000 documents, 

and all law societies were actively carrying out their commitment to expend 

political capital with the courts, legislatures and Queen’s Printers to acquire 

the source material needed to, first, serve as a comprehensive base and, 

ultimately, provide the forward momentum CanLII required to build success 

upon success. By early 2003, CanLII had 65 collections and 150,000 

documents and was adding cases at a rate of 1,000 per week. 

If the first phase was mostly about building the content, the next phase 

(2003 to 2007) was about improving the technology, delivering the features 

and functionality associated with and required for professional use, and 

responding to an increasingly savvy base of Internet users. Web 2.0 was 

upon us, and through the continuing support of the law societies and 

Lexum’s technology, CanLII began to introduce several professional-grade 

tools such as the Reflex record for case citations, the Satal tool for point-intime 

comparison of statutes and, more recently, search-based RSS 

feeds and deep-linking functionality to support sophisticated research and 

reference practices. As I note in the next section, we are currently taking 

another major leap forward on the technology side. 

By 2008, CanLII was well beyond the “project” phase and the law societies 

saw the next logical step as instituting a governance model better 

suited to a competitive legal publisher operating in a fast-paced web-only 

environment. To that end, the law societies established the CanLII Futures 

Committee. In short order, the committee, under the leadership of B.C. Law 

Society CEO Tim McGee, gained the approval of the Federation of Law Societies 

and its members for a streamlined ownership structure (under which 

the law societies would fund CanLII through the federation instead of 

directly), revised bylaws, and a recruitment strategy to attract and build an 

independent and skills-based board of directors. 

The new board, which included leading professionals and thinkers like 

Johanne Blenkin (CEO of B.C. Courthouse Libraries) and Michael Geist 

(University of Ottawa Canada Research Chair in Internet and e-Commerce 

Law) and new structure, took over in mid-2010 with a mandate to establish


41 

CanLII’s strategic vision and plan. The plan 3 was approved by the federation 

and the law societies in 2011. 

CANLII 2012 TO 2014 

In many ways, today’s environment is no different from the one that gave 

rise to CanLII in the mid-1990s: 

• The costs of commercial legal research materials and tools are high 

and rising. 

• New digital sources often represent an additional and not a 

replacement expense to print. 

• Access to the law and high-quality research tools are necessary to 

develop and maintain professional competence. 

• With so many other barriers to access to justice, Canada can ill 

afford a future that puts a price tag on public access to the law. 

• There are few stakeholder(s) in the justice system with the wherewithal 

to improve the status quo. 

On that basis, I trust I won’t receive much disagreement that CanLII and 

the support it receives from the legal profession through the law societies 

remain relevant and necessary. Furthermore, even with all the challenges 

that remain, the past 15 years have brought about changes that create new 

challenges. It is in the new context that CanLII developed and has been executing 

its strategic priorities. 

What We Have Done 

• Worked with law foundations, courts and others nationally to add 

thousands of historical cases to our collections, to reduce the 

degree to which reliance on commercial databases “just to make 

sure” is necessary. 

• Worked with legal publishers and others to bring free access to secondary 

and explanatory material such as the Lancaster House 

eText on Wrongful Dismissal and as well as to thousands of case 

summaries from the likes of Lancaster House, Maritime Law Book 

and Vancouver’s own Admiraltylaw.com. 

• Developed and launched an Application Programming Interface 

(“API”) that permits external developers to build programs and 

apps that incorporate CanLII content. 

• Surveyed all law societies (over 4,300 responses) to identify the 

profession’s priorities (improve search, expand case coverage, add


THE ADVOCATE 

secondary material) and then built CanLII’s 2013 key initiatives 

around those priorities. 

• Introduced a radically improved search tool that places greater 

control in the hands of users and makes it easier to “find” what 

they want and need as well as easier to search. 

• Carried out a detailed “citation analysis” to identify leading cases 

and priority-case coverage periods as well as any other gaps in 

CanLII’s case coverage to permit CanLII to ensure maximum benefit 

on funds spent adding missing cases. 

• Established a platform that makes it easier to add professionalgrade 

texts to CanLII. 

What We Are Doing 

• Acquiring digital copies of tens of thousands of reported cases to 

position us to make dramatic improvements to our historical collections 

as funds come available. 

• Building a brand-new companion website for secondary material 

(target launch March 2014) that will initially focus on aggregating 

professional development case commentary in the context of an 

interactive discussion forum, but will ultimately serve as a publishing 

platform for a much wider variety of secondary source material. 

• Building relationships with commercial and non-profit organizations 

with a view to considerably expanding the value of services 

users get from either (the model here is one of synergistic cooperation 

with the partner service for the benefit of the user, and not 

one where a CanLII service replaces the need for what the other 

had on offer). 

• Participating in academic research into the semantic analysis of 

legal texts. 

• Exploring models for supplementary funding as the demands of 

today’s sophisticated user of legal information call for development 

at costs and at a pace that may exceed the appetite of 

CanLII’s traditional funders. 

• And, recently, hiring a Vancouver-based manager of content and 

partnerships to keep all these great projects going! 

Where We Go Next 

The audacity of the original CanLII project and the success that followed as 

a result of the will and support of the law societies provides the lesson that


43 

the challenges of the day do not represent constraints but opportunity. 

Whereas CanLII took its early inspiration from forerunners in the international 

Free Access to Law Movement (now worldwide and some 30 countries 

strong), the support and participation of the Canadian legal profession 

has allowed CanLII to run faster and dream bigger. What this means is that 

where we go depends in large part on you and your willingness to use Can- 

LII as a vehicle to address today’s challenges and tomorrow’s opportunities. 

We have shown you what we can do with $35. Are you not curious what 

we could do with $50? 

ENDNOTES 

1. Fairchild v Vancouver Coastal Health Authority, 

2011 BCSC 616, per Registrar Sainty. 

2. See “Court Notices and Directions”, (2013) 71 

Advocate 579 at 582. 

3. Online: . 

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45 

THE WINE 

COLUMN 

By Paul Daykin, Q.C., and Bruno DeVita* 

“I might go to Canada eventually, but I think I’ll stop along the Columbia on the 

way. I’d like to check around Portland and Hood River and the Dalles to see if 

there’s any of the guys I used to know back in the village who haven’t drunk themselves 

goofy.” 

—Chief Bromden, in One Flew Over the Cuckoo’s Nest, by Ken Kesey 

“Pinot Noir is a righteous grape, chock full of incredible texture and hedonistic 

pleasures; it is sex in a glass, so seductive that it is hard to say no to.” 

—Master Sommelier Madeline Triffon 

OREGON! 

There is a lot to be said for Oregon. It is relatively close to B.C. It has an 

agreeable climate and an abundance of outdoor recreation. It is one of only 

five U.S. states that have no sales tax. Portland is home to one of the last 

great independent book stores (Powell’s Books on Burnside). Some claim 

that the “food cart” phenomenon originated in Oregon; in Portland alone, 

one can sample street food from almost 500 food trucks. There are wonderful 

artisanal brewers of beer. And, of course, there is the wine. 

When students of American history think of Oregon, it is Lewis and Clark 

that come to mind, dispatched by Thomas Jefferson in 1804 to explore the 

* Paul Daykin, Q.C., is a partner of Aaron Gordon Daykin Nordlinger, where he also chooses wine, but for a smaller but 

equally thirsty group. Bruno DeVita is the managing partner of Alexander Holburn, a job that includes the important task 

of choosing wines for firm functions. Bruno and Paul have been friends since the age of nine and have been enjoying wine 

together for more than 30 years. They do not plan to stop doing so unless required by their physicians or force majeure.


THE ADVOCATE 

western territory and find a route to the Pacific coast, which they reached 

in 1806. But for wine lovers the important pioneers came much later: the 

families Lett, Sommer, Erath, Ponzi and Adelsheim, among others, purchased 

land in the north part of the Willamette Valley in the mid 1960s and 

early 1970s, planted Pinot Noir and started to develop what would later 

become a respected region known for wines in the Burgundian style. 

There are many events that brought recognition to Oregon wines, but a 

few are notable. Eyrie Vineyards’ 1975 Pinot Noir won second prize in a 

blind tasting of top French Burgundies at the Gault/Milau “Wine Olympics” 

in 1979. In 1987, Robert Drouhin, of the Beaune-based winemaking family, 

purchased land in the Dundee Hills, appointing his daughter Véronique as 

winemaker and lending validation to the notion that fine Burgundies could 

be produced in Oregon. In 1985, wine critic Robert Parker Jr. visited Oregon 

and is said to have “discovered” it in his influential magazine, the Wine 

Advocate. But this probably gives too much credit to wine critics and not 

enough to the wine makers. (Note that Parker owns, with his brother-in-law 

Mike Etzel, an interest in Les Beaux Frères vineyard near Newberg.) 

Currently, there are about 400 wineries in Oregon. The state has four 

main American Viticultural Areas, or “AVAs”: Columbia Valley, Snake River 

Valley, Southern Oregon and Willamette Valley. As the premier AVA in 

Oregon, the Willamette Valley has been divided into six sub-appellations: 

Chehalem Mountains, Eola-Amity Hills, Dundee Hills, McMinnville, 

Ribbon Ridge and Yamhill-Carlton. 

The Willamette Valley is cooler and wetter than most grape-growing 

regions. Its “growing degree days” (a climatological measure of heat during 

the grape-growing season) are similar to those in the northern part of the 

Okanagan Valley, but far less than those in the southern Okanagan, Sonoma 

or Napa. Hence it has become known as a place where an early-ripening 

and difficult grape (Pinot Noir) is grown under difficult conditions. 

But Oregon isn’t just about Pinot Noir. It also produces Chardonnay and 

Alsatian varietals such as Pinot Gris, Pinot Blanc, Gewürtztraminer and 

Riesling. 

If wine tasting in the Willamette Valley is on your itinerary, you will 

travel southwest from Portland on Highway 99, where vineyards, wineries 

and tasting rooms are clustered in and around the towns of Newberg, 

Dundee, Lafayette and McMinnville. 

In less than 45 minutes, you will arrive in the Willamette, and when you 

do, you may well ask yourself why you’ve not travelled there before. With its 

bucolic blend of lush evergreen forest, fertile farmland and rolling hillside 

vineyards, it is a feast for the eyes. Unlike other wine regions, the Willamette


47 

is not primarily focused on wine production and wine tourism. The vineyards 

are ever so present, but they are small and intermingled with stretches 

of fields and groves devoted to a large variety of other crops. This may be a 

function of the relatively early stage of the wine industry in Oregon, but 

when you are there you get the distinct sense that the Willamette is striving 

to be different. You will be hard pressed to locate a tour bus, but you’ll have 

to be on a constant lookout for slow-moving farm vehicles on the country 

roads. And those country roads will not always be paved, so you can expect 

your urban vehicle to be in dire need of a wash when you return home. 

Drive through Newberg into Dundee and then wind your way up Worden 

Hill Road and Ribbon Ridge Road to take in some of the beautiful vistas that 

the region offers. Along the way, you will see vineyards planted predominantly 

with Pinot Noir, that ever-so-fickle and difficult grape that somehow 

finds its ultimate expression in the Willamette soil and climate. The Pinots 

of the Willamette are indeed impressive, and the folks in Oregon are serious 

about them and understandably proud of their product. Almost always 

served in appropriate larger-bowled Burgundy glasses, these Pinots show 

their distinctiveness immediately in their fruit-filled and floral bouquet. 

The flavour of expressive fruit and spice and the velvety texture of the liquid 

tell you at once that this is where Pinot Noir belongs. 

As in any wine region, there is variation in the quality of wines from producer 

to producer. However, there is more consistency of quality in Oregon 

than is found elsewhere. A visit to the wineries is a must if you are travelling 

through. Many have regular tasting hours, and others are by appointment 

only. Alexana Estate Vineyard and Winery on Worden Hill Road in 

Newberg was one of the first on our tour. Founded by Dr. Madaiah Revana, 

the winery was the culmination of a dream to produce wines of Burgundylike 

quality. Dr. Revana sought out and hired one of the top winemakers of 

the area, Lynn Penner-Ash, and now produces several single-vineyard Pinot 

Noirs, as well as a crisp and delicious Riesling. All of the wines we tasted 

were delicious. 

The Willamette Valley is one of those places where the person pouring 

your wine in the tasting room may well be one of the winemakers, and that 

was the case when we visited White Rose Estate Winery. Nestled near the 

top of the Dundee Hills, the property provides spectacular views of the valley 

and is home to one of the oldest vineyards in the region, known as the 

White Rose Vineyard. We were the only visitors at the time and were 

greeted in the tasting room by the head winemaker, Jesus Guillen. He proceeded 

to describe the many single-vineyard wines produced on site as he 

poured a few selections for our enjoyment. All were beautifully aromatic


THE ADVOCATE 

and showed bright and expressive flavours of cherry fruit. This winery is 

worth a visit for the wines alone. The location and view are a bonus. 

Near the White Rose Estate is Archery Summit Winery, with its highly 

acclaimed and, unfortunately, highly priced wines. The property is beautifully 

manicured and overlooks rows of vineyard and the valley below. 

Underneath the winery are caves where the estate’s several single-vineyard 

wines are aged in French oak barrels. Tasting can be done on the outdoor 

patio, where one can enjoy wine and view at the same time. 

In contrast to the upscale features of Archery Summit is the Carlton Winemakers 

Studio, located, as the name indicates, near the town of Carlton, minutes 

north of Highway 99. The “Studio” has as many as a dozen smallproduction 

and garage wineries in its tiny facility. This is where hidden gems 

can be found at reasonable prices. It is here where we were first introduced 

to the wines of Ayoub, a limited-production winery owned and operated by 

Mohamad “Mo” Ayoub. Ayoub is now producing some of the best wines in the 

Willamette Valley, and his own winery is worth a visit. It is by appointment 

only, but you need only go to the website and call Mo at the number shown. 

Other wineries worth a visit include Bergstrom, Les Beaux Freres, Penner-Ash 

and Trisaetum in Newberg, Domaine Drouhin in Dayton and The 

Four Graces in Dundee. As with any visit to a wine-producing area, there 

are only so many wineries one can see in a single trip. Whichever of these 

or other wineries you visit, you will be impressed with the quality, complexity 

and consistency of the wines that Oregon has to offer. 

While it is easy to do a day trip from Portland to the wine country, the 

Willamette has begun to develop into its own destination, and a stay in one 

of the small towns is highly recommended. Perhaps the finest hotel in the 

valley is the Allison Inn and Spa. Located just north of the town of Newberg, 

the Allison welcomes you with manicured gardens and a small vineyard as 

you meander up to the reception area. There, you are greeted with warm 

hospitality as you enter the sun-drenched lobby. The guest rooms themselves 

are spacious and luxurious, with fireplaces, large soaker tubs, separate 

showers and all kinds of nifty switches on the wall that control both the 

lighting and your window blinds (an engineering degree is helpful, but not 

required). Within the common areas you will find an inviting swimming 

pool looking out to one of the many gardens on site, a world-class spa and 

the hotel’s first-rate restaurant, Jory. Adding warmth to the ambience of the 

hotel is original artwork from local artists that hangs throughout the common 

areas and in every room. This is the perfect starting point for a visit to 

the valley, and with a single visit to the concierge desk, you will be set on 

your way with a detailed itinerary and directions.


49 

If you prefer smaller and more intimate accommodation, you may wish to 

try the Abbey Road Farm Silo Suites, a bed and breakfast set among the rolling 

hills of Yamhill County in Carlton on a large property of over 80 acres. This 

impressive inn is unique in that the well-appointed rooms are contained 

within renovated grain silos. We did not ask whether gluten-free rooms are 

available. Included in the price of the room is a hearty country breakfast 

using fresh ingredients from the farm located just outside your door. 

On Worden Hill Road in Dundee, you will find the Black Walnut Inn and 

Vineyard, a luxurious and serene nine-room inn nestled on a hillside overlooking 

the Willamette Valley with views to Mount Jefferson and Mount 

Hood. The inn sits on over 40 acres of farmland that includes a vineyard 

with plantings of Pinot Noir and Chardonnay. Beautiful gardens surround 

the premises, and the rooms offer balconies or patios from which you can 

enjoy the impressive vistas. 

But what is a wine tour without good food? While the Willamette does 

not offer the abundance of restaurants found in the Napa Valley, there is 

no shortage of good places to eat. Start off with a visit to the Red Hills Market 

for something simple but tasty for a luncheon or take-away picnic. The 

Red Hills Market is located in Dundee just minutes from the Allison and 

has a great selection of local cheeses, breads and charcuterie. If you prefer 

to stay, you can try one of their delicious wood-fired pizzas (available with 

gluten-free dough) with a craft beer or glass of local wine as you enjoy the 

laid-back setting. It is worth a visit, even if it is just for a morning coffee 

and pastry. 

For fine dining, there may be no better restaurant in the valley than Jory, 

in the Allison Inn. The executive chef, Sunny Jin, is a native of South Korea 

who grew up in the Portland area. However, he learned his craft at Napa’s 

French Laundry, Sydney’s Tetsuya and Spain’s El Bulli, arguably three of 

the finest and most influential restaurants in the world. He has brought to 

Jory an innovative and flavourful menu that utilizes the best of the valley’s 

local ingredients, including some that are grown right on the Allison property. 

You can enjoy your meal indoors or have it out on the balcony overlooking 

the hills. When you see the wine list, you’ll be somewhat 

overwhelmed with the variety of Pinot Noir that has been set before you, 

but the sommelier will be able to help you with your choice. On one occasion, 

we were directed to a Pinot Noir Reserve from Aubichon Cellars, a tiny 

producer located by Dundee, in a small area of vineyard that we could actually 

see from our table. The wine was remarkably intense for a Pinot Noir 

and was one of the most memorable wines we consumed on that trip—for 

a fraction of the price you would pay for a similar wine in Vancouver.


THE ADVOCATE 

Another dinner option is The Painted Lady, located in Newberg. Set in a 

restored 1895 house, it offers a delicious five-course tasting menu in a warm 

and intimate setting. The menu is limited but has been carefully selected to 

ensure the best of local and seasonal ingredients. The wine list has an 

extensive selection of Oregon wines but also features a number of wines 

from Washington state, California and Europe. 

If you make it to McMinnville, just southwest of Newberg and Dundee, 

take in the charming, tree-lined “downtown” around 3rd Street, and pop into 

Nick’s Italian Café for a casual lunch. The wood-fired pizza is excellent and 

the service is attentive and friendly. Just a couple of blocks away you’ll find 

Thistle, yet another restaurant in the valley that boasts its use of fresh local 

ingredients. It comes through on its promise in a most flavourful way. The 

food here is hearty and served in a casual small-town style. The wine list 

has been carefully chosen and includes an extensive selection of half bottles 

for those who wish to explore or simply limit their consumption. 

Rolling hills, lush farmland, cascading vineyards, gorgeous vistas, great 

food and Pinot Noir. The wine country of Oregon has all this and more. If 

you go, you’ll want to go back. 

2010 DOMAINE DROUHIN DUNDEE HILLS PINOT NOIR 

#427492 $50 

We found cherries and a little chocolate truffle on the nose, some floral 

notes in the mouth and a long, balanced, cozy-by-the-fireplace finish. This 

is an elegant, understated wine with a lot of finesse. Its finest characteristic 

is that it is a versatile food wine that would go well with anything from 

salmon to roast pork. But we recommend that you serve it with your Christmas 

turkey. 

SOKOL BLOSSER “EVOLUTION” 

#616938 $20 

We tasted this white blend from Oregon over lunch and tried to detect the 

grapes that make up this tangy explosion of fruit. I detected Riesling and 

Viognier and was only half–right (there is no Viognier). Bruno correctly 

tasted Pinot Gris and Chardonnay. There are also Muscat, Gewurztraminer 

and four other white varietals, but who’s counting? This is a fun, affordable 

wine in the vein of St. Hallett’s “Poacher’s Blend” from Australia and 

“Conundrum” from California. It has a sweetish finish that makes it a little 

challenging to pair with food, but it would work well with Asian or South 

Asian dishes.


51 

2009 ADELSHEIM WILLAMETTE VALLEY PINOT NOIR 

$25 USD from Pike & Western wine shop in Seattle, and on many local 

restaurant wine lists 

While many California Pinots display that big fruit-forward style we have 

come to expect from Napa and Sonoma, Oregon pinots exhibit a more austere 

French style, and this is a perfect example of that. We found plum and 

cherry notes on the nose, soft berry fruit on the palate and a long, warm, 

peppery finish. This is an uncomplicated wine that is not as interesting on 

its own as it is with food. It is the perfect accompaniment to the porchetta 

sandwich served at Meat and Bread. But you will have to bring your own 

bottle. 

2010 KING ESTATE SIGNATURE PINOT GRIS 

#419671 $26 

Pale in colour but deep in flavour, this Pinot Gris is one of our favourites. It 

has a delicate aroma of apple and citrus. When you taste it, you’ll spend 

more time just enjoying it than thinking about what it tastes like. But, if you 

must know, there are hints of pear and a bit of melon when it’s in your 

mouth, and it finishes with a crisp and refreshing acidity. Drink this with 

fish or poultry or on its own while you’re cooking your fish or poultry. 

2011 UNDERWOOD CELLARS PINOT NOIR 

Marquis Wine Cellars $21 

Aromas of dried cherry and spice jump out of the glass. This is a fresh and 

juicy wine that is easy to drink and has a satisfying and lingering finish. On 

the palate there is abundant cherry fruit with floral touches that give it a 

slightly exotic flavour. Twist the screwcap off and enjoy this good-value 

wine with turkey, duck or even salmon. 

2010 THE FOUR GRACES PINOT NOIR WILLAMETTE VALLEY 

Everything Wine $45 

This is a delicious wine typical of the flavour and quality found in the 

Willamette Valley. Its ripe cherry and red berry aromas draw you in and 

give you a foreshadowing of the satisfying taste that will follow. The 

flavours of the wine are rich and the mouthfeel velvety. Dark berry flavours 

are at the forefront, but smoke, spice and floral undertones give the wine 

complexity and balance. The intense flavours of this wine will pair well 

with just about any grilled meat.


THE ADVOCATE 

2010 WHITE ROSE ESTATE PINOT NOIR WILLAMETTE VALLEY 

Legacy Liquor Store Vancouver and Kitsilano Wine Cellars $45 

This is White Rose’s entry-level wine, but this vintage holds its own against 

many of the single-vineyard wines produced by this estate. White Rose is a 

leader in the production of quality Pinot Noir, and this offering explains 

why. It seduces you with its intense aromas and doesn’t disappoint when 

the tasting begins. This is an elegant wine with vibrant but delicate flavours 

of dried cherry and spice, which coat the palate with a silky texture. This 

vintage is drinking beautifully now but will continue to provide satisfaction 

for another several years. Try it with wild mushroom risotto. 

t t t 

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53 

ADVOCATE NEWS 

By D. Michael Bain* 

TIME FOR CHANGE 

The BBC recently celebrated 50 years of Doctor Who, the world’s longestrunning 

science fiction television series. The series involves a quirky, 

eccentric Time Lord flying through space and time in a device known as the 

TARDIS (which stands for “Time And Relative Dimension In Space” but 

looks suspiciously like a blue police call box) and saving people, places and 

things from almost certain destruction, episode after episode. The faces of 

12 different actors playing the Doctor over that 50-year period is explained 

away by a process called “regeneration”, in which through the magic of special 

effects (which have improved remarkably in the last half century) one 

actor’s features morph into the other and the new actor simply picks up 

where the last one left off. Each Doctor is aware of his past incarnation, but 

he emerges infused with a new character with his own quirks (and quarks). 

I feel a bit like Doctor Who these days—in the 72 years of the Advocate’s 

history, I have suddenly (or perhaps not so suddenly) become the sixth 

incarnation of The Editor of this magazine. This might not be the best analogy, 

since the actor playing the sixth Doctor was the only one to get fired 

from his position; nevertheless, like the Doctor, I have obligations to the past 

and yet a desire to do things a bit differently as I steer this ship through space 

and time. Initially I thought of wearing a bow tie (“bow ties are cool”) or a 

fez, but that’s all been done before (or hence—it’s never really clear with 

time travel). I pause here to note that I am actually wearing a scarf at the 

moment. I just drove at maniacal speed to the courthouse to drop off a written 

submission (with four minutes to spare) and haven’t bothered to remove 

either my trench coat or my scarf. I shall build a robotic dog immediately. 

So … 21st century. Hello! Here we are! The Advocate has arrived with a 

newly updated website, , which you ought to visit 

* D. Michael Bain is the editor of the Advocate.


THE ADVOCATE 

because not only does it describe in detail how you can search past issues 

(in two different ways) but also, for the first time, it features an electronic 

version of the most recent issue, which you can access from your computer 

or tablet or smaller electronic devices. The future, dear readers, is now! I 

told you this was like time travel. Care for a jelly baby? 

Also, you will by now have noticed a few stylistic changes to this month’s 

magazine. First, the cover: our cover artist since September 2012 has been 

David Goatley. David, who is based on Vancouver Island, remains behind 

the easel wielding his brushes but in a style somewhat different from that 

practised by his predecessors. We have moved away from water-colour caricatures 

and toward oil-on-canvas character studies. David is a leading portrait 

painter, having painted official portraits of prime ministers, governors 

general, attorneys general, chancellors, premiers and even the grand old 

Duke of York himself (if 53 can be considered old these days). We hope you 

enjoy this new direction. For those paying attention, we have also moved 

from a gloss to a matte finish on the cover. 

Inside the magazine there are also a few new touches. First off, you will 

notice a change in the font. Sometimes a font is as good as a change. That’s 

not an actual saying, or at least it wasn’t until it was written here. It’s still 

not a saying. Ignore it. But while doing so, please note that you are now 

reading fonts from the Futura and Veljovic families. Meanwhile, another 

island artist, Melissa Mills, of Millipede Design in Victoria, , 

has provided us with new graphics to illustrate our regular 

columns. Look for her work as you peruse these pages. Complementing 

these images are a few single-panel cartoons from Michael Mills, a Vancouver 

artist and filmmaker, whose illustration work will pop up from time to 

time to amuse and enlighten you. 

Now, I could close by launching into some management-speak about 

what the Advocate will be getting up to “on a go forward basis”. However, I 

am not going to do that. To be honest, I would rather kill myself than write 

such rubbish. So, while you ponder the Advocate’s future, past and present, 

I will leave you with some much better rubbish—the words of the tenth (or 

eleventh, given recent plot developments) Doctor himself: 

People assume that time is a strict progression of cause to effect, but actually—from 

a non-linear, non-subjective viewpoint—it is more like a big 

ball of wibbly-wobbly timey wimey … stuff. 

I hope you agree that it is wibbly-wobbly timey wimey for a change. 

t t t 

t t


55 

NEWS FROM 

COURTHOUSE 

LIBRARIES BC 

By Nathaniel Russell* 

“With the ever-increasing impact of technology on the practice of law, a lawyer 

using technology must either have reasonable understanding of the technology 

used in the lawyer’s practice, or access to someone who has such understanding.” 

—Federation of Law Societies of Canada 

“Guidelines on Ethics and the New Technology”, April 2002 

GUIDING THE CLIMB TO TECHNOLOGICAL COMPETENCE 

The above quotation is now 12 years old. Most of this is nothing new. 

Lawyers who choose to use technology in the course of practice are 

expected to do so competently, and ethically. But what of the technologies 

we never chose and just turned up suddenly and invited themselves in: the 

social web 1 that wheedled itself into our lives, interconnected our private 

details and became enmeshed within the factual matrix of many litigation 

files; or the Internet itself, which undergirds nearly all communication— 

not just e-mail, but modern landlines too—and interconnects nearly every 

modern apparatus, from phones to cars? 

Is it even possible to opt out of a “reasonable understanding” of social 

media, metadata, GPS tracking, phishing scams, etc.? Or has this choice 

been abrogated? 

FAMILIARITY WITH TECHNOLOGY AS A CORE CONDITION OF COMPETENCY 

Technology is engaged by nearly every chapter in the Professional Code of 

Conduct (“the Code”) and can cause issues under any of the head rubrics of 

* Nathaniel R. Russell is a liaison lawyer with Courthouse Libraries BC.


THE ADVOCATE 

competency, confidentiality, marketing, party/witness/juror/judicial communications 

and others. 

Courthouse Libraries B.C. helps lawyers improve their competency, both 

in the classic legal research sense and with help in understanding technology. 

The definition of “competence” has evolved from the old Professional 

Conduct Handbook (“the Handbook”) concept of substantive/procedural 

knowledge plus other “skills to represent the client’s interests effectively”, 2 

to a more fulsome definition of “competent lawyer”. Chapter 3.1-1 of the 

Code enumerates attributes that a competent lawyer must possess, including 

investigatory, legal research and effective practice management skills, 

plus the ability to perform all functions in a cost-effective manner. 

Our training programs, which we deliver to hundreds of lawyers yearly 

throughout B.C., emphasize not only cost-effective legal research skills but 

also skills that go to a broader concept of competency, such as using social 

media for gathering evidence in litigation. 

We use examples like Beattie v. Beattie, 3 which show that a reasonable 

understanding of social media is no longer really elective but mandatory in 

areas of practice like family law. Social media evidence can be fundamental 

to a case. Read Beattie, and you will not escape concluding that 

• conspicuous tweeting was the petitioner’s great undoing in her 

attempt to secure further spousal support based on need; and 

• any counsel who could have missed the evidentiary feast of Twitter 

boasts about Lexus ISC convertibles, red carpet galas, spa weekends 

and a knack for “killing pitchers of Raspberry Mojitos” would 

have serious self-doubt as to their own competency when confronted 

with this information after the fact. 

CLIMBING THE MOUNTAIN WHILE AVOIDING THE CLIFF 

We can promote competence with technology and acknowledge contradictions 

such as whether you use or avoid social media, it is at your peril. We 

stand on the brink of conceding that one cannot safely eschew technology 

and still run a litigation practice. But we see how a vigorous drive toward 

technological competency can also risk other ethical pitfalls. 4 It’s understandable 

how enthusiasm may be blunted by the inherently guarded 

nature of professional regulations. 

Once you decide to reach the altitude of “reasonable understanding” and 

join Facebook to scour for evidence damaging to another party’s guardianship 

bid, what’s to say you don’t fall off some ethical cliff on the other side? 

Did you camouflage your purpose in your online investigations or breach a


57 

term of service to inveigle your way into viewing private information? 

There is tension between tech-savvy competence—knowing what you can 

do—and compliance with other ethical norms—what you may do. 

In the context of fast-paced technological innovation, it’s rarely the case 

that ethical and competency norms are simultaneously apparent. 

E-mail was long in use before the Law Society of British Columbia’s 

Ethics Committee finally opined in April 1998 5 that e-mail communication 

was not, in and of itself, a violation of the ethical duty of confidentiality 

under the old Professional Conduct Handbook. Likewise, the use of thirdparty 

service providers for electronic data storage and processing of confidential 

client information, or “cloud computing”, was commonplace for 

many practitioners before the due diligence guidelines of the Cloud Computing 

Working Group were issued over two years ago. 

As we devise another year of training programs for 2014, we look forward 

to offering guidance through training and other library resources to make 

your ascent to competence less perilous. Please visit our Stream blog 6 for a 

January 2014 post on tips for using social media responsibly in litigation. 

ENDNOTES 

1. Also called “Web 2.0”, the social web refers to the 

online manifestation of social relations through networking 

services like Facebook, Twitter, LinkedIn and 

other sites where user-generated content is key. 

2. Chapter 3, Rule 1(c) of the former Professional 

Conduct Handbook. 

3. 2013 SKQB 127. 

4. Simon Chester, Doug Jasinski and Steve Matthews 

presented interesting materials on “Ethically Growing 

Your Practice with Social Media” at the 2013 

Pacific Legal Technology Conference. They cover a 

range of ethical pitfalls relating to the social web. 

Materials are available for a fee through the Trial 

Lawyers Association of B.C. 

5. “Advice to the Profession Regarding Transmission of 

Confidential Information over the Internet”, (1998) 3 

Benchers Bulletin (June–July) at 8. 

6. The Stream features practice-oriented posts from 

Courthouse Libraries B.C. staff and guest bloggers. 

See online: . 

t t t 

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THE ADVOCATE 

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59 

NEWS FROM 

BC LAW INSTITUTE 

By R.C. “Tino” Di Bella* 

The British Columbia Law Institute (“BCLI”) has completed another busy 

and successful year with ten significant projects and events: 

1. Assisted Living, B.C. Report—Completed and published in the fall of 

2013, the Assisted Living, B.C. Report reviews a broad range of issues in 

assisted living and makes 50 recommendations for reform of the Community 

Care and Assisted Living Act. 

2. Common-Law Tests of Capacity Report—Completed and published in the 

fall of 2013, this report provides a current, scholarly review of the current 

common-law tests of the mental capacity to carry out activities 

such as making a will, making a gift, entering a contract or getting married. 

The report includes a draft statute to address the recommended 

reforms. 

3. Canadian Association of Occupational Therapists—The Canadian Centre 

for Elder Law (“CCEL”) drafted a series of provincial and territorial 

tables that summarize the key legislation applying to elder abuse and 

neglect. The Canadian Association of Occupational Therapists is incorporating 

this material into a professional development module for 

health professionals. 

4. Contribution after Settlement under the Negligence Act Report—To be 

approved for publication and release in December 2013, this report 

recommends law reform to clarify B.C. law relating to the implications 

of settlements made by one or more, but not all, of the alleged defendants 

in a court action. Clarity in the law in this area will support 

settlements. 

* R.C. “Tino” Di Bella is the chair of the BCLI.


THE ADVOCATE 

5. Financial Elder Abuse Background Paper—The CCEL produced a background 

paper on financial elder abuse that was circulated to financial 

sector and government stakeholders in advance of a March 2013 forum 

hosted by the International Federation on Aging in conjunction with 

Human Resources and Skills Development Canada. 

6. Fraud Educational Toolkit for Seniors—The CCEL created an illustrated 

wall calendar and a series of educational fact sheets and videos to help 

seniors recognize and protect themselves against fraud. The tools are 

available in English and French. 

7. Older Women’s Dialogue Phase One Report—This three-phase project 

included (1) a series of consultation events with over 300 women in 9 

languages, (2) a stream of the 2012 Canadian Conference on Elder Law 

and (3) an International Women’s Day event held in March 2013. The 

report describes the project findings and identifies areas of future 

needed work. 

8. Questions and Answers About Pension Division on the Breakdown of a 

Relationship in British Columbia—The BCLI’s earlier Q&A document 

was updated by its original author, Tom Anderson, Q.C., and republished, 

assisted by BCLI staff, to accord with recent changes made in 

the Family Law Act in B.C. 

9. 10th Anniversary of the CCEL—On October 1, 2013, we celebrated both 

the 10th anniversary of the inception of the CCEL and National Seniors 

Day, including a three-part program at the SFU Harbour Centre campus. 

Special guest speakers included the Honourable Robert Bauman, Chief 

Justice of B.C.; Jay Chalke, Q.C., ADM of Justice B.C.; Professor Rebecca 

Morgan, Stetson University, Florida; and Mark Forsythe, of CBC Radio 1. 

10. Wills, Estates and Succession Law Continuing Education—The BCLI supported 

and collaborated with the CLEBC to develop and host a program 

to be held in late November 2013 to provide continuing education relating 

to the wills, estates and succession legislation and new probate 

rules and forms, all to be implemented March 31, 2014. 

During 2013, we have also continued or initiated several other projects and 

events. 

1. Dental Elder Abuse Response (“DEAR”)—In collaboration with Runnymede 

Dental Centre, the CCEL is creating elder abuse awareness 

materials, developing a training module for older adult volunteers and 

working with Runnymede to develop a program to support volunteer 

seniors who will inform and advise other seniors.


61 

2. Federation of Law Reform Agencies of Canada (“FOLRAC”) 2014 Symposium—In 

collaboration with the Law Reform Commission of 

Saskatchewan, the BCLI will co-host the 2014 FOLRAC Symposium at 

Allard Hall, UBC, in February 2014. The FOLRAC Symposium, 

attended by the various law reform agencies in Canada and invitees, 

provides a forum for developing best practices in legal research and law 

reform work in Canada. 

3. Franchise Law, B.C.—British Columbia has no franchise legislation. 

This project will recommend the enactment of B.C. franchise legislation 

generally consistent with the Uniform Law Conference of Canada 

(“ULCC”) Uniform Franchises Act. 

4. NICE Network—As a founding member of the National Initiative for 

Care of the Elderly (“NICE”), the CCEL carries out legal research and 

review for NICE projects. Currently NICE is engaged in the National 

Prevalence Study Regarding Elder Abuse and Neglect in Canada, a 

multi-year project in which the CCEL is involved. 

5. Power of Attorney Elder Abuse Awareness—In collaboration with Volunteer 

Richmond Information Services (“VRIS”), the CCEL is working 

with Chinese seniors and local stakeholders in Richmond, B.C., to 

develop a Chinese-language educational tool to help educate seniors 

and their family members about powers of attorney and to prevent 

abuse and misuse. 

6. Strata Property Law: Phase Two—In mid-2013, the BCLI began a large 

legal research and law reform project to review seven topics in B.C. 

strata property law. The project aims to provide reform recommendations 

for the next generation of B.C. strata property law. 

7. Technology, Remoteness, Disability and Evidence—In the fall of 2014, the 

BCLI will complete a two-year project to (1) make law reform recommendations 

regarding removing legal and procedural barriers to the use of 

cost-efficient assistive and other technologies to facilitate the giving of 

evidence and (2) provide educational practice support for the better use 

of remote communications and assistive technologies in evidence giving. 

8. Understanding the Lived Experiences of Supported Decision-Making—The 

CCEL is conducting legal research and consulting with stakeholders on 

the use of supported decision-making, and will produce a research 

paper setting out findings. The goal is to produce an initial scoping 

paper that can provide the basis for a more comprehensive investigation 

of the subject.


THE ADVOCATE 

9. Vital Statistics (ULCC)—Vital statistics legislation is out of date in 

Canada. With the support of the BCLI, including Jim Emmerton as 

chair, a ULCC working group will make recommendations for updating 

the vital statistics regimes in Canada, potentially including an updated 

ULCC Model Vital Statistics Act. 

The BCLI expresses its gratitude for the many financial and volunteer 

contributions in 2013 and continuing in 2014. Your continued support is 

essential to the BCLI’s ability to carry out its research and law reform work 

with professional, non-partisan, scholarly results that benefit all British 

Columbians. 

t t t 

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the ADVOCATE 

JULY 2012 

SPECIAL ISSUE 

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Phone: 604-737-8757


63 

NEWS FROM 

CLEBC SOCIETY 

By Susan Munro* 

EDUCATING THE PROFESSION ABOUT THE WESA 

Here at CLEBC, our initiative to educate the B.C. legal profession about the 

Wills, Estates and Succession Act (“WESA”) is now well under way. The new 

statute comes into force on March 31, 2014, and will result in major changes 

in practice and procedure. We have planned a full suite of course and publication 

updates, along with an online resource centre, to ensure that the 

B.C. legal profession has all the tools it needs to fully understand the new 

statute, new rules and new forms. For many of these projects, we’re working 

with the British Columbia Law Institute, where much research into a 

new wills and estates regime for this province has been done. 

THE WESA RESOURCE CENTRE 

CLEBC has created a portal, , to connect B.C. legal 

professionals with information and resources about the WESA. We have 

included many informative articles on the new Act, convenient listings of 

available print and online publications, and a listing of upcoming WESA 

events and courses. Check the site often, as we are adding new information 

all the time. 

WESA COURSES 

In February 2014—in Vancouver (February 13 and 14), Victoria (February 

20 and 21), and Kelowna (February 27 and 28)—CLEBC will offer a full-day 

course (either live or by webinar) followed by a separate half-day course 

(live course only). The full-day course, “Estate Administration: Navigating 

the New Rules”, will deal with the nuts and bolts of the new Probate Rules 

* Susan Munro is the director of publications at CLEBC.


THE ADVOCATE 

and the WESA’s estate administration provisions. The half-day course on 

the second day, “Estates Applications under the New Rules”, will examine 

the rules and forms in more detail, particularly the procedures to apply for 

administration grants. The full-day course is aimed at all practitioners, 

while the half-day course is geared more toward paralegals, legal support 

staff and junior lawyers. Peter Ramsay, Q.C., will co-chair each of the 

February 2014 courses, with Genevieve N. Taylor (Vancouver), Margaret R. 

Sasges (Victoria) and Geoffrey W. White (Kelowna). 

CLEBC’S WILLS AND ESTATES PUBLICATIONS 

It has been a busy year for Jonathan Vogt, our senior legal editor, who is 

responsible for our many wills and estates publications. He has supported 

the work of our stellar volunteers by coordinating and editing updates to all 

our wills and estates resources—both print and online. 

Since 1979, the B.C. Probate and Estate Administration Practice Manual has 

been the first resource for the B.C. legal profession when handling probate 

and estate administration matters. The current edition features alerts 

throughout the chapters for the WESA and the new Probate Rules. The next 

(2014) edition will arrive in February, in time for the February 2014 CLEBC 

courses. Subscriptions include online access and forms and precedents on 

CD-ROM. 

B.C. Estate Planning and Wealth Preservation is a comprehensive guide to 

help you provide effective estate planning strategies and tools for your 

clients and their complex portfolios. All the key knowledge is here, from 

valuable overview commentary to details of tax planning techniques and 

drafting considerations. The update to Estate Planning will be published in 

June 2014. 

Wills Precedents: An Annotated Guide has been immensely popular since 

it was first published in 1998. This collection of sample will clauses and documents 

includes representation agreements and many other B.C.-focused 

precedents. Peter W. Bogardus, Q.C., and Mary B. Hamilton and Sadie L. 

Wetzel of Davis LLP have created an outstanding and practical resource. 

We’ve recently added a “document builder” to Wills Precedents. Users can 

select desired clauses, create complete document templates, save the templates 

for future use and download the complete document to the user’s 

computer. The next edition will arrive in February 2014. 

Annotated Estates Practice 2013, a portable consolidation of core wills and 

estates law materials, includes key statutes annotated by leading estates 

lawyers. The current edition includes the full consolidated text of the WESA 

and of the new Probate Rules and forms, as well as updated narrative


65 

overviews of the recent legislative initiatives. In addition, this edition 

includes tables of concordance for the WESA and for the revised Probate 

Rules. The 2014 edition will be released in April. 

The WESA Transition Guide, first published when the new statute was 

introduced, has been completely updated with information about the new 

Probate Rules and other important changes. This guidebook includes 

overviews of the WESA and the Probate Rules, detailed tables of concordance 

and full, annotated versions of the WESA and Probate Rules. You will 

also find topical chapters that review key emerging and transition issues, 

and learn what you don’t need to worry about at this time. 

INTRODUCING OUR PAPERLESS COURSE MATERIALS INITIATIVE 

Just a reminder that as of January 1, 2014, registrants of our programs will 

receive course materials in electronic form only. The electronic version of 

course materials provides more flexibility for storing and access (before, 

during and after the course). Materials are downloadable in PDF, fully 

searchable and updated to incorporate additional papers even after the 

course. We provide complimentary Wi-Fi access at our live courses, so you 

can easily access the course materials on your tablet or laptop. We’ve 

already received some great support for this change. If you have any questions, 

please contact CLEBC online at . 

t t t 

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THE ADVOCATE 

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67 

LAP NOTES 

By Anonymous 

I THOUGHT I COULD DO IT ALONE 

I have few early memories, but a couple stand out: my first pair of skates at 

the age of two, and my first drink at the age of five. Grandpa, who I loved 

dearly and pestered persistently, gave me a small glass of his homemade 

wine to satisfy my curiosity. The crowd of relatives loved my song and dance 

performance, and I loved the effect of the alcohol. I had a friend for life. 

When I reached high school, drinking was commonplace. I fell in with 

that crowd easily. Besides, I was shy and a little booze loosened me up. I 

became a party guy. I was blessed with academic skills and encouragement 

from my family. Then off I went to university, away from home and the 

parental oversight. I was free and I took advantage of the newfound liberty. 

It was fun and I found more drinkers, but my academic achievements were 

less than stellar. However, I did manage to obtain a B.A. 

I had the good fortune to meet a kindly professor of criminal law during 

my undergraduate years. He suggested that I had the requisite aptitude to 

become a lawyer. So I landed as a first-year student at the UBC school of 

law. It was like dying and going to heaven: a new experience, exciting challenges 

and a whole different life. And, of course, there was plenty of drinking 

while I worked on my plans to change the world. The faculty of law 

honoured me with an LL.B. My parents were very proud of their only son. 

I took up with my first wife, and we set out to seek our destiny. 

My luck held as I fell into an articling position with a very senior and 

respected lawyer who brought me into his practice at the highest level. My 

learning was deep and broad. He provided me with all the tools necessary 

to maintain a long and successful career in law. He sold me his practice at 

a very reasonable price when he retired. I had good clients, prestige and 

money, lots of money. I brought in a partner. The firm prospered. My wife 

and I lived the good life. Dinner parties with a wide variety of elixirs, suc-


THE ADVOCATE 

cessful friends, fine restaurants, travel and a life in the fast lane. I had it 

made. 

Regrettably, my wife found the lane a little too fast, and she left. It hurt, 

but I was still on top of the world. However, my practice was beginning to 

suffer. Apparently many lawyers spend long hours developing their practices. 

My drinking habits conflicted with my work habits. I determined to 

lend my talents to real estate investment, and when that died in the early 

1980s, fuelled by my drinking bravado, to a couple of business ventures, 

which failed. My practice became a shambles and my prospects were 

becoming dim. 

I needed a fresh start. I found a new and exciting wife. A kind friend in 

the profession invited me into his practice. We stayed together for ten 

years, with some success. My two children were born. I had new meaning 

in life. But the pressure mounted as my financial needs grew but my 

income did not. I drank to relieve the stress and to escape my reality. I 

began to drink during the day, and alone. My wife became distressed. I was 

depressed. I wasn’t coping with life, and my drinking was becoming obsessive. 

I denied that the drinking was causing the problems; I thought it was 

a solution. 

LAP had seminars on how to use one’s law experience in business. That 

was what I needed—to hook up with a business that could appreciate my 

wealth of legal and managerial experience. I arranged an interview with 

Derek LaCroix at LAP. He spoke of the subject, then, in a casual sort of way, 

asked if I ever thought that I might have a drinking problem. I knew he was 

right, but those decades of denial had built a strong resistance to that truth. 

But with his support I accepted that I did. My admission to that fact was the 

beginning of my recovery from the deadly grip of alcoholism. 

I had always believed that it was important to be self-sufficient. My pride 

told me that I needed no help. Then LAP helped me with counselling and 

a referral to an addictions doctor. LAP held 12-step meetings to start me in 

the program of Alcoholics Anonymous. They were available to me when I 

needed help. I was introduced to other lawyers, in trouble like me, who 

helped me with sponsorship, support and fellowship. A group of us established 

our own meetings to assist each other in the process of recovery. My 

life began to change. I began to see people, particularly in our profession, 

not as hostile and indifferent, but just as normal folks doing the best they 

could. Most were kind and supportive. I did some backsliding and at times 

wondered if I could make it. But my miracle happened, and the obsession 

to drink evaporated. My lifetime companion, alcohol, and I had a parting of 

the ways. It was not a sad occasion.


69 

My life today would probably be described as normal. I have been blessed 

with an opportunity to practise in an excellent firm. My needs are met, my 

wife has stood by me, and happily so, I believe. Our relationship is better 

than ever. My boys are grown and in university. My life is filled with joy and 

hope. I could never have imagined that this was possible. I am the benefactor 

of many blessings, not the least of which was the unselfish help I 

received from many kind and caring people in our profession. I thought 

that I had to, and could, do it on my own. I guess that my lesson is to always 

keep an open mind and don’t be afraid to ask for help. 

The Lawyers Assistance Program is an independent organization of members of the legal community (lawyers, judges, 

families and support staff). We provide peer support and referral services to help people deal with personal problems, 

including alcohol and drug dependence, stress, anxiety and depression. We are volunteers and staff committed to providing 

confidential, compassionate and knowledgeable outreach, support and education. We seek to foster collegiality among 

our peers and to promote health and well-being in our community. You can reach the LAP by telephone at 604-685-2171, 

toll-free at 1-888-685-2171 or via the LAP website: . 

t t t 

t t 

Practice Restricted To WCB 

Sec. 257 Determinations, Opinions and Court Applications on referral 

______________________ 604-267-3033 ______________________ 

• Claims and appeals • Vice Chair at Review Board for 6 years • More than 25 years personal injury litigation 

Vahan A. Ishkanian 

Barrister & Solicitor 

• Cell 250-508-6336 • Fax: 250-544-0728 • E-mail: vishkanian@wcbbclawyer.com


THE ADVOCATE 

Guild Yule LLP is pleased to 

announce that The Honourable 

Lance Finch is returning to 

the firm as Associate Counsel 

effective January 1st, 2014. 

Lance Finch obtained his LLB from UBC in 1962 

and was called to the Bar of British Columbia in 1963. 

He was awarded an Honorary Law degree, LLD, 

by the University of British Columbia in 2003. From 

1983 to 1993 he was a trial judge of the Supreme Court 

of B.C. and from 1993 to 2001 was a judge of the Court 

of Appeal of British Columbia. From 2001 until his 

retirement in 2013, The Honourable Lance Finch was 

the Chief Justice of British Columbia and the Yukon. 

He practiced with Guild Yule from 1963 until 1983. 

We are very happy to have him rejoin us. 

Acclaimed British Columbia 

Insurance Defence Lawyers, since 1924. 

604.688.1221 guildyule.com


71 

ANNOUNCING THE 2014 ADVOCATE 

SHORT FICTION COMPETITION 

ELIGIBLE CONTRIBUTORS 

Any person who is now, or has been, a member of the Law Society of British 

Columbia (including lawyers, judges and masters) or who is an articled 

student. Contest judges and the “staff” of the Advocate are ineligible to 

contribute. 

ELIGIBLE FICTION 

A fictional work, written in English, to a strict maximum of 2,500 words that 

deals, if only incidentally, with legal subject matter. For the 2014 competition 

(and in order to keep things challenging and interesting) the work must 

contain the following sentence: “I can ___________________ my bonbons 

depending on size and intricacy.” The blank in the sentence (which is a real 

phrase uttered in a law firm boardroom) may be filled in by the author. It 

may be a single word or several. 

The contributor must be the author of the work, which must be entirely 

original and must not ever have been published or submitted for publication 

or consideration in a writing competition elsewhere. 

DEADLINE FOR SUBMISSIONS 

The close of business on Friday, September 5, 2014. Submissions will not be 

re turned, so authors should maintain file copies of their work. 

FORMAT FOR SUBMISSIONS 

Two double-spaced, typed manuscript copies, each with a separate cover 

sheet bearing the work’s title together with its author’s name, address, daytime 

telephone number and a word count. The author’s name should not 

appear anywhere on or in the manuscript itself, as all submissions will be 

judged anonymously, strictly on literary merit. 

ADDRESS FOR SUBMISSIONS 

Advocate Short Fiction Competition 

c/o D. Michael Bain, Editor 

The Advocate, #1918–1030 West Georgia Street, Vancouver, B.C. V6E 2Y3


THE ADVOCATE 

JUDGES 

David Roberts, Q.C., Anne Giardini, Q.C., and Peter Roberts. The decisions 

of the judges as to the literary merit of the contributions shall be final. 

PRIZES 

First prize: 

$400 gift certificate at a local book store and publication in 

the Advocate 

Second prize: $250 gift certificate at a local book store and possible publication 

in the Advocate 

Third prize: $100 gift certificate at Zefferelli’s Spaghetti Joint and possible 

publication in the Advocate 

Winning entries will be selected by, at the latest, February 27, 2015. Contest 

judges may award fewer than three prizes if, in their judgment, they 

consider it appropriate. 

All submissions, including winning entries, will also be considered for 

possible publication by the Vancouver Bar Association or an independent 

publisher in a selection of “legal fictions” to be released at a later date. 

TRANSFER OF RIGHTS 

In consideration of having their fiction reviewed for: 

(a) possible selection as winning entries; 

(b) possible publication in the Advocate; and 

(c) possible inclusion in a selection of submissions to be published in 

book form; 

contributors agree upon submitting their work that the Vancouver Bar Association 

(publisher of the Advocate), or its licensee, shall have the sole and 

exclusive right, in Canada and for a period of 15 years, to print, publish and 

sell their work in such form or forms as the Vancouver Bar Association may 

in its discretion consider appropriate, such right to revert automatically to all 

contributors whose works of fiction are not selected as winning entries or for 

inclusion in the selection of submissions to be published. 

Contributors further undertake, if required by the Vancouver Bar Association, 

to execute both a written assignment in order to confirm the transfer 

of rights described above to the Vancouver Bar Association and a waiver of 

the moral rights attached to their work, should their work be selected for 

publication in the Advocate as a winning entry or for inclusion in a selection 

of submissions to be published in book form. All proceeds or royalties, if 

any, from the sales of such a selection will be paid to the benefit of the Vancouver 

Bar Association, a non-profit organization.


73 

UBC LAW 

FACULTY NEWS 

By Simmi Puri* 

UBC LAW LAUNCHES LL.M. IN TAXATION 

UBC Law is accepting applications for its newly launched tax LL.M. program. 

It is the first program of its kind in western Canada and the only fulltime 

program of its kind in English-speaking Canada. This one-year 

program, with a part-time option, provides graduates with a solid foundation 

in core areas of tax law and practice with the opportunity to develop 

expertise in a specific area of interest. 

The program will commence in August 2014 and is open to applicants 

with a J.D. or LL.B. degree, tax practitioners in law or accounting, and practising 

lawyers who wish to specialize in tax law. 

The application deadline is January 31, 2014. Early applications, particularly 

for international applicants needing student visas, are strongly 

encouraged. 

The program will be directed by Professor David Duff and Associate Professor 

Wei Cui. 

Professor Duff has taught and written in the area of tax law and policy for 

more than 15 years, at the University of Toronto Faculty of Law from 1996 

to 2008 and at UBC Law since 2008. He is a member and former governor 

of the Canadian Tax Foundation, a member of the International Fiscal Association 

and an international research fellow of the Oxford University Centre 

for Business Taxation. Professor Duff has numerous publications on tax 

law and policy, is the primary author of Canada’s leading casebook on Canadian 

income tax law and has been cited in several Supreme Court of Canada 

decisions, including the court’s most recent decision on the General Anti- 

Avoidance Rule, Copthorne Holdings v. Canada. 

* Simmi Puri is the communications coordinator for UBC Faculty of Law.


THE ADVOCATE 

Associate Professor Cui teaches and writes in the areas of international 

taxation, tax policy and administration, the VAT/GST, tax and development, 

and Chinese law. He has extensive practical experience with both U.S. and 

Chinese tax law, having worked with leading global law firms in both New 

York and Beijing and served at one time as senior tax counsel for the China 

Investment Corporation. He is a member of the Permanent Scientific Committee 

of the International Fiscal Association. 

Learn more about the program and application process by visiting the 

tax LL.M. website, . 

DISTANCE LEARNING AT UBC LAW 

UBC Law is excited to announce that we will be offering graduate-level 

courses through distance learning in 2014. These online courses present a 

great opportunity for foreign-trained lawyers to work toward the requirements 

to practise law in Canada and for anyone interested in taking a graduate-level 

course in law outside of a degree program. The distance learning 

courses currently under development include business organizations, property 

law and Canadian criminal law and procedure. Stay tuned to the UBC 

Law website, , for further details on admission requirements, 

the application process and course information. In the meantime, if 

you have any questions, please contact Chira Perla, director of graduate and 

certificate professional programs, UBC Law, at . 

THE MITCHELL GROPPER, Q.C., FACULTY EXCHANGE PROGRAM 

Thanks to generous donations from a committed group of supporters and 

volunteers, the faculty exchange program between the Faculty of Law at 

UBC and the Faculty of Law at the Hebrew University of Jerusalem now has 

the necessary funding to ensure the continuation of the program. This 

important program provides the opportunity to enhance the teaching and 

learning experience at UBC Law and the Faculty of Law at the Hebrew University 

of Jerusalem through interdisciplinary study and international 

engagement. 

UBC Law is delighted to name the faculty exchange program in honour 

of Mitchell Gropper, Q.C., for his ongoing commitment, support and leadership 

in the Jewish and legal communities. 

The program was established in September 2010, providing participating 

professors with the opportunity to conduct a six- or seven-week course or 

seminar overseas. Both faculties of law host an exchange professor, enriching 

students with international instruction and giving professors the oppor-


75 

tunity to collaborate globally. Since the program began, each faculty has 

hosted three visiting professors from the other university. 

ABOUT MITCHELL GROPPER, Q.C. 

Mitchell Gropper is a senior partner with the law firm Farris, which he 

joined in 1998 after practising for 28 years with the Vancouver office of 

McCarthy Tétrault LLP. Prior to joining that firm, he was a professor in the 

Faculty of Law at Western University in London, Ontario. He is rated by 

LEXPERT as one of Vancouver’s leading lawyers in mergers and acquisitions, 

corporate finance, mid-market advisory services, income funds and 

corporate commercial. He was named one of Canada’s 40 “Deal-Makers”, 

one of Canada’s 100 most creative lawyers and one of Canada’s 100 leading 

“cross-border” transaction lawyers, and was recently recognized by Best 

Lawyers in Canada. In 2012 he was presented with a Lexpert Zenith Award, 

which recognizes lawyers who demonstrate competitive excellence in law, 

strong community contribution and mentorship. Mitchell is currently the 

chair of the board of the Jewish Federation of Greater Vancouver and, until 

recently, was a director of the Arts Club Theatre and chair of the board of 

trustees, Jewish Foundation of Greater Vancouver. 

t t t 

t t


THE ADVOCATE 

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Call 604.822.5373 or visit www.startanevolution.ca/Hesse


77 

UVIC LAW 

FACULTY NEWS 

By Jeremy Webber* 

The Law Centre is the flagship legal clinic at the University of Victoria. Each 

year, almost 40 per cent of our students serve a semester at that clinic 

alone—and the Law Centre is one of four experiential learning opportunities 

at UVic (the others being the Environmental Law Clinic, the Business 

Law Clinic and the Co-op Program). In 2013 its director, Glenn Gallins, Q.C., 

received the CBA’s Georges A. Goyer, Q.C. Memorial Award for Distinguished 

Service for his many contributions. 

The Law Centre serves a very important role for our students and indeed 

for the community at large. What follows is an account by Alyssa Holland 

(J.D. 2013), winner of the William R. McIntyre Medal. Alyssa is now clerking 

at the Federal Court of Appeal. She will clerk at the Supreme Court of 

Canada in 2014–15. 

THE LAW CENTRE: RAISING THE BAR ON LEGAL EDUCATION 

By Alyssa Holland 

I never expected to find my ideal job while I was still in law school. 

And yet, in the last semester of third year, I found myself doing work 

I cared about, making regular court appearances and learning from 

mentors and colleagues that I admired. In short, I was living a law student’s 

dream. 

It was January 2013, and I and eleven other law students had 

walked out of our classrooms and into the Law Centre, a legal clinic 

operated by the University of Victoria’s Faculty of Law. Led by the tire- 

* Jeremy Webber is the dean of law at UVic, where he is also the Canada Research Chair in Law and Society.


THE ADVOCATE 

less Glenn Gallins, Q.C., and a small but dedicated team of lawyers and 

staff, this clinic is practically a rite of passage for UVic law students 

and assists approximately 1,800 low-income clients each year. Its 

recent move to co-locate with the new Justice Access Centre at the Victoria 

Courthouse, accomplished in August, is a fitting tribute to its 

place at the heart of Victoria’s legal community. 

While clinical education is increasingly de rigueur among Canadian 

law schools, the Law Centre has the enviable track record of more than 

35 years in continuous operation, with an alumni base of nearly 1,500. 

It is so well-established that a student’s first court appearance could 

very likely take place before a judge who completed the Law Centre 

clinical program, in a courtroom full of other counsel who either completed 

the program as students or support it today as supervising 

lawyers and mentors. Although the clinic’s students may sometimes 

make agonizingly thorough submissions—hoping to defeat inexperience 

with preparation—they occupy a critical place in the legal community 

by providing services to those who would otherwise appear 

alone or not at all. 

More than its longevity, what sets the Law Centre apart is its 

approach. Glenn prepares his students to be skilled and dedicated 

advocates for their clients, all of whom land at the Law Centre because 

they cannot afford paid legal counsel and do not qualify for legal aid. 

Students provide a broad range of services in criminal, family and civil 

matters, and regularly run their own trials. Yet regardless of the category 

of legal problem, the goal is always the same: to approach clients 

holistically and to assist them with the many social, economic and 

health issues that are often inseparable from their need for a lawyer. 

Drawing on the expertise of both an in-house social worker and community 

organizations, Law Centre students routinely connect clients 

with resources aimed at both improving their lives and preventing 

future encounters with the justice system. In my short stint as a Law 

Centre student, I saw first-hand the difference such an approach can 

make to both a client’s well-being and the outcome of their legal 

matter. 

With the triumphs, however, came disappointments. There were 

those we could not help, often because they fell through the gap 

between legal aid’s qualifying criteria and the services that Law Centre 

students are authorized to provide. It is not easy to tell a young 

homeless man, charged with an indictable offence but who has been 

denied legal aid, that you cannot represent him. Nor is it easy to tell a


79 

broken-hearted woman, left destitute by marriage breakdown, that we 

cannot help her with her division of property claim. These individuals, 

and their reasons for falling through the cracks, were not exceptional. 

“Poverty law”, as a practice such as the Law Centre’s is often 

termed, exposed me to the very best of Victoria’s legal community, but 

it also made the failings of our legal system both clear and personal. 

Yet even if I never again appear in criminal or family court, I will 

always carry with me the stories of my clients. Of the indigenous 

woman who overcame the dual legacies of residential schools and 

addiction to rebuild her life; of the young man who was so illiterate 

that the Crown prosecutor didn’t believe me when I said that varying 

a no-contact order to allow communication by Facebook would provide 

no benefit to him. These clients taught me about challenges I 

have never faced and about the community I called home and my privilege 

within it. 

As I have become older, my education, work and social network 

have specialized and narrowed. I, like so many others in the legal profession, 

could easily find myself having little meaningful contact with 

the people who need, but cannot afford, the services lawyers provide. 

The Law Centre interrupted that trajectory and confirmed that when 

practised with empathy, diligence and creativity, law can be a powerful 

tool to make a difference in the life of the stranger in need. 

The lawyers, judges, colleagues and clients I encountered during 

my four months at the Law Centre provided a powerful antidote to the 

cynicism that too often taints student discussions about our future professional 

lives. They taught me to expect more from this profession 

that I am on the cusp of joining—more creativity, more accessibility, 

more humanity. Glenn calls this “holistic lawyering”; I hope that one 

day it will just be called lawyering, period. For now, I’ll just call it the 

best job I ever had. 

t t t 

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THE ADVOCATE 

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81 

THE ATTORNEY 

GENERAL’S PAGE 

By the Honourable Suzanne Anton, Q.C.* 

EYE ON INNOVATION: THE FAMILY MAINTENANCE ENFORCEMENT 

PROGRAM 

One of the great pleasures of being the Attorney General and Minister of 

Justice is meeting the frontline employees who deliver the services British 

Columbians rely on. In September, I met the executive and staff of the 

Family Maintenance Enforcement Program (“FMEP”), who are celebrating 

25 years of operation. I was proud to congratulate them for a successful program 

that is not often recognized for its many achievements. A prime example 

of successful justice service innovation, the FMEP monitors and 

enforces court orders and agreements, and collects child support and 

spousal maintenance. In the past 25 years, it has collected more than 

$3 billion on behalf of its clients—B.C. families. For any government program, 

that is an astonishing achievement. 

Before the FMEP, children of separated or divorced parents did not 

always receive the financial support to which they were entitled. To get 

paid, parents often had to return to court. Today, things are very different 

for most B.C. families because support payments are enforced administratively, 

not through the courts. 

Each year, 85,000 parents and 75,000 children receive some payment 

after enrolling in the FMEP. While no program can guarantee results, about 

95 per cent of orders receive some payment after enrolment, and over 80 

per cent receive payments each year. 

There is no charge to access the FMEP’s services. Any British Columbian 

currently living in the province, with a maintenance order or agreement, 

can enrol in the program, established in 1988. Its continued success is a 

credit to the staff and executive who proactively and incrementally updated 

* The Honourable Suzanne Anton, Q.C., is British Columbia’s Minister of Justice and Attorney General.


THE ADVOCATE 

its operations to meet client needs. Built on a model of administrative 

enforcement, such as wage garnishment or the denial of drivers’ licences, 

the program has increased its rate of support-payments collections dramatically. 

For example, in its first year, just over $500,000 was received. Contrast 

that to about $16 million now processed monthly. 

Just as we are moving toward client-focused resources to solve legal disputes, 

such as the online Civil Resolution Tribunal, the FMEP has embraced 

technology to serve the changing needs of its clients. 

MEETING CLIENT NEEDS AND EXPECTATIONS 

British Columbia’s family maintenance program was an early adopter of 

online tools, becoming the first enforcement program in Canada to launch a 

website providing easy-to-understand resources and tools, such as the child 

support calculator for parents and the support deduction calculator for businesses. 

Clients can now track information about their case online, communicate 

in a secure and confidential way, and have their payments made and 

deposited directly through ebanking. The FMEP website gets approximately 

one million hits each year, and the use of direct deposit is not only handy for 

clients, it is faster and more secure than mail and saves government money. 

Providing digital-based services recognizes that there is now an entire 

generation of adult British Columbians who have never known a time when 

the Internet did not exist. They will expect and, I believe, demand that a 

majority of their interactions with government occur online. We have an 

obligation to provide services that meet this reality and recognize that many 

people must look after their personal business outside of conventional 

office hours. 

The program also uses administrative tools effectively—the denial of drivers’ 

licences and the attachment of funds from employment or from federal 

government payments—to enforce maintenance payments, which 

keeps these types of conflicts out of the courtroom and, importantly, alleviates 

pressure on parents who no longer have to seek resolution in front of 

a judge. 

CONCLUSION: CLIENT SATISFACTION 

The FMEP has continual success because it has kept one guiding principle 

at the centre of its operations—meeting the needs of British Columbians. 

The lesson for government and other institutions providing services is that 

British Columbians don’t necessarily care how they find resolution, 

whether it’s in a courtroom, in person or online. They care that outcomes 

are fair and are delivered as quickly as possible.


83 

At the core of our work going forward is the belief that B.C.’s justice system 

must change with the changing needs of its citizens and that the needs 

of British Columbians will be better met through new service delivery 

options. We have introduced Justice Access Centres and alternatives to 

courts for family and civil justice matters, and we’re preparing to launch the 

online Civil Resolution Tribunal. These options complement the FMEP and 

mirror its innovation. 

The current budget for the Ministry of Justice is about $1 billion, and we 

continue to feel funding pressures even though the crime rate is decreasing. 

Through collaboration with our justice partners, we must seek alternatives 

to the old ways of doing things. A cost-neutral program, the FMEP 

helps keep conflicts over family maintenance support payments out of 

B.C.’s court system. As the FMEP demonstrates, these innovations succeed 

when they lead to better outcomes for the citizens we serve. The success of 

this program translates to success for B.C.’s children and families. 

t t t t t 

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THE ADVOCATE 

[ 

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the economic life and the government of the country is modelled. 

—Elihu Root 

[


85 

COURT NOTICES 

AND DIRECTIONS 

By the Honourable Suzanne Anton, Q.C.* 

Supreme Court of British Columbia 

Practice Direction 

Re: Civil Marriage Act—Procedures for Divorce 

Issued: October 28, 2013 

Effective: Immediately 

Number: PD-43 

SUMMARY 

This Practice Direction sets out the procedural requirements for a non-resident 

same-sex couple who married in British Columbia, to obtain a divorce 

under the Civil Marriage Act, S.C. 2005, c. 33, and should be read in conjunction 

with Part 2 of that Act. This Practice Direction does not apply to 

divorces granted under the Divorce Act. 

DIRECTION 

Form of Proceeding 

1. An application for divorce under the Civil Marriage Act shall be commenced 

by Requisition in accordance with Rule 2-1(2) and Rule 17-1 of 

the Supreme Court Civil Rules. 

Who May Bring Application 

2. In keeping with s. 7(2) of the Civil Marriage Act, an application for 

divorce may be made by 

a. both spouses jointly, or 

b. one spouse with the other spouse’s consent, or


THE ADVOCATE 

c. in the absence of that consent, the spouse making the application 

must present an order from a court located in the jurisdiction 

where one of the spouses resides declaring that the other spouse 

iii. is incapable of making decisions about his or her civil status 

because of a mental disability, or 

iii. is unreasonably withholding consent, or 

iii. cannot be found. 

Filings Required on Joint Application of Both Spouses 

3. If the application for divorce is made by both spouses jointly, the following 

documents must be filed in the civil registry of the Supreme 

Court: 

a. a requisition in Form 31 signed by both spouses 

b. a Marriage Certificate 

c. a draft order in Form 35 approved as to form by both spouses (see 

sample order in Schedule A) 

d. a joint affidavit sworn by both spouses or affidavits sworn by each, 

setting out facts tending to prove the matters required by s. 7(1) of 

the Civil Marriage Act (see sample affidavit in Schedule B). 

Filings Required on Application of One Spouse with the Other’s Consent 

4. If the application for divorce is made by one spouse with the consent 

of the other, the following documents must be filed in the civil registry 

of the Supreme Court: 

a. a requisition in Form 31 signed by the applicant spouse 


c. a draft order in Form 35 approved as to form by the applicant 

spouse (see sample order in Schedule A) 

d. an affidavit sworn by the applicant spouse setting out facts tending 

to prove the matters required by s. 7(1) of the Civil Marriage Act 

(see sample affidavit in Schedule C) 

e. an affidavit of the non-applicant spouse stating his or her consent 

to the proceeding. 

Filings Required on Application of One Spouse in the Absence of the Other’s 

Consent 

5. If the application for divorce is made by one spouse in the absence of 

consent of the other spouse, the following documents must be filed in 

the civil registry of the Supreme Court:


87 

a. a requisition in Form 31 signed by the applicant spouse 


c. a draft order in Form 35 approved as to form by the applicant 

spouse (see sample order in Schedule A) 

d. an affidavit sworn by the applicant spouse setting out facts tending 

to prove the matters required by s. 7(1) of the Civil Marriage Act 

(see sample affidavit in Schedule D) 

e. a certified copy of an order from a court located in the jurisdiction 

where one of the spouses resides declaring that the other spouse: 

iii. is incapable of making decisions about his or her civil status 

because of a mental disability; or 

iii. is unreasonably withholding consent; or 

iii. cannot be found. 

No Corollary Relief 

6. The Divorce Act does not apply to a divorce under the Civil Marriage Act 

and no claim for corollary relief may be brought on an application for 

divorce under the Civil Marriage Act. Further, no application for relief 

under the Family Law Act may be brought on an application for divorce 

under the Civil Marriage Act. 

Effective Date of Divorce 

7. A divorce granted under the Civil Marriage Act dissolves the marriage 

of the spouses and takes effect on the date of the order granting the 

divorce. 

Certificate of Divorce 

8. After a divorce granted under the Civil Marriage Act takes effect, the 

civil registry will issue a Certificate of Divorce to a person who so 

requests and files a Certificate of Divorce in the form of Schedule E to 

this Practice Direction. The Certificate of Divorce may be filed concurrently 

with the applicable required filings as referred to in paragraphs 

3, 4 and 5 of this Practice Direction. 

Filing Fees 

9. The fees that apply to filing the Requisition for an application for 

divorce under the Civil Marriage Act (desk order divorce) and to 

issuance of a Certificate of Divorce by the registry are as set out in 

Schedule 1 of Appendix C of the Supreme Court Civil Rules. 

Austin F. Cullen 

Associate Chief Justice


THE ADVOCATE 

SCHEDULE A 

No. …………………………… 

………………………. Registry 

In the Supreme Court of British Columbia 

In the Matter of the Civil Marriage Act 

Between 

and 

Applicant(s) 

Respondent (if applicable) 

ORDER MADE AFTER APPLICATION 

) ) ….. day, the ……..... 

BEFORE ) A JUDGE OF THE COURT ) day of ………………. 

) ) 20…..... 

ON THE APPLICATION OF ………… [party(ies)]………….. without a hearing 

and on reading the materials filed by …………….[name of party(ies)/lawyer]; 

THIS COURT ORDERS that: 

1. pursuant to section 7 of the Civil Marriage Act (Canada), 

……….[name]……….. and ………[name]…….., who were married 

at ………….[place]…………. on …..[dd/mmm/yyyy].., are divorced 

from each other, the divorce to take effect on the date of this order. 

THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER: 

………………………………………………… 

Signature of 

party lawyer for ……[name of party(ies)]……. 

……………..[type or print name]…………………………….. 

………………………………………………… 

Signature of 

party lawyer for ……[name of party(ies)]……. 

……………..[type or print name]……………………………..


89 

SCHEDULE B—Sample Affidavit of Applicants—Joint Application 

Note: Where the application for divorce is made jointly by both spouses, this affidavit may 

be modified to be a joint affidavit of both applicants with the references changed from “I” to 

“we”. Both applicants must swear/affirm the joint affidavit. Alternatively, each applicant may 

file a separate affidavit. 

This is the …..[1st/2nd/3rd, etc.]… affidavit 

of …………..[name]…………… in this case 

and was made on …..[dd/mmm/yyyy]…. 



No. …………………………… 


Between 

Applicant(s) 

AFFIDAVIT 

I, ……….[name]…….., of ……….[address]………, ….[occupation]…………, 

SWEAR (OR AFFIRM) THAT: 

1. I am one of the applicants. 

2. There is no possibility of reconciliation between my spouse and me. 

3. The certificate of marriage or certified copy of the registration of marriage attached to my 

affidavit and correctly describes the true particulars of the marriage. 

4. I was living separate and apart from my spouse at the start of this proceeding and I have 

lived separate and apart from my spouse since ….[dd/mmm/yyyy]….. 

5. Neither I nor my spouse resides in Canada at the time of making this application. 

6. I reside in………….. [city/state/country] and have been resident there since …. 

[dd/mmm/yyyy]…. 

7. A divorce cannot be granted in …… [state] because it does not recognize the validity of 

my marriage. 

SWORN (OR AFFIRMED) BEFORE ) 

ME at …………………...................... ) 

on ……………………………………… ) 

) 

) 

………………………….......... 

………………………………………… ) Signature of deponent 

A commissioner for taking ) 

affidavits for………………. )


THE ADVOCATE 

SCHEDULE C—Sample Affidavit of Applicant— 

Other Spouse Consents to the Application 






No. …………………………… 


Between 

Applicant(s) 

AFFIDAVIT 



1. I am the applicant. 







6. I reside in………….. [city/state/country] and have been resident there since …. 



my marriage. 

8. Filed with my application is the affidavit of my spouse indicating [his/her] consent to this 

proceeding. 


ME at …………………...................... ) 

on ……………………………………… ) 

) 

) 

………………………….......... 





91 

SCHEDULE D—Same Affidavit of Applicant— 

No Consent of Other Spouse to the Application 






No. …………………………… 


Between 

Applicant(s) 

AFFIDAVIT 



1. I am the applicant. 







6. I am resident in………….. [city/state/country] and have been resident there since …. 



my marriage. 

8. Attached to this affidavit as Exhibit A is a certified true copy of the order made by..........., 

on ............, declaring that my spouse (Choose which applies) 

a) is incapable of making decisions about his or her civil status because of a mental disability; 

or 

b) is unreasonably withholding consent; or 

c) cannot be found. 


ME at …………………...................... ) 

on ……………………………………… ) 

) 

) 

………………………….......... 





THE ADVOCATE 

SCHEDULE E 



No. …………………………… 


Between 

and 

Applicant(s) 

Respondent (if applicable) 

CERTIFICATE OF DIVORCE 

This is to certify that ......…………….......…[name]…….....….........…….. and 

………………[name]………………., who were married at …………………. 

[place]……………….. on ………[dd/mmm/yyyy]………......., were divorced 

under the Civil Marriage Act (Canada) by an order of this court which took 

effect and dissolved the marriage on ………[dd/mmm/yyyy]………....... . 

Given under my hand and the seal of the court 

Date: ………..[dd/mmm/yyyy]……………. 

……………………………………………………… 

Registrar


93 

British Columbia Court of Appeal 

Practice Directive (Criminal) 

Title: Ineffective Assistance of Trial Counsel 

Issued: November 12, 2013 


Cite as: Ineffective Assistance of Trial Counsel (Criminal Practice Directive, 12 

November 2013) 

If a party is not represented and makes allegations of ineffective assistance of 

trial counsel, the appeal will be immediately referred to case management for 

directions. 

Stage One: Counsel’s Duties Where There are Allegations that Trial Counsel was 

Ineffective or Incompetent 

1. Before advancing an appeal involving grounds of appeal which allege 

ineffective assistance or incompetence of trial counsel, counsel for the 

appellant must: 

(a) Take steps necessary to satisfy him or herself that there is some 

foundation for any allegations that trial counsel was ineffective or 

incompetent; and 

(b) Informally notify trial counsel of the nature of the allegations bearing 

on the professional conduct of trial counsel, and give trial 

counsel a reasonable opportunity to informally respond to the allegations 

to counsel for the appellant. 

Stage Two: Advancing an Appeal Alleging that Trial Counsel was Ineffective 

2. Where a Notice of Appeal or amended Notice of Appeal includes 

grounds of appeal alleging the ineffective assistance of trial counsel: 

(a) The Chief Justice will designate a justice of the Court as a case 

management judge to make directions with respect to the appeal. 

(b) The registrar will, within four weeks of the filing of the Notice of 

Appeal, schedule a case management hearing to be presided over 

by the case management judge. 

3. Where the Notice of Appeal includes grounds of appeal or is amended 

to include grounds of appeal that trial counsel was ineffective or incompetent, 

counsel for the appellant shall formally serve a copy of that 

Notice of Appeal on trial counsel.


THE ADVOCATE 

4. The appellant shall prepare and provide to trial counsel his or her affidavit 

setting out the factual basis for the allegations bearing on trial 

counsel’s professional conduct and a signed waiver in which the appellant 

expressly waives solicitor-client privilege to the extent necessary 

to allow trial counsel to respond to the allegations against him or her. 

The appellant shall also deliver a copy of the affidavit and signed 

waiver to the Crown/respondent. 

5. Upon written request by counsel for the appellant, trial counsel shall 

forward his or her entire trial file to counsel for the appellant, in accordance 

with the professional obligations of counsel. 

6. If trial counsel wants to keep a copy of all, or any portion, of the trial 

file before transferring the file to counsel for the appellant, trial counsel 

may (at his or her own expense) make copies of whatever documents 

he or she wishes from the file. In addition, if trial counsel wants 

access to the file in connection with the appellant’s case after it has 

been transferred to counsel for the appellant, counsel for the appellant 

must facilitate this access to the entirety of that file in a timely way, 

and must permit trial counsel to make copies (at his or her own 

expense) of whatever documents he or she wishes from the file. 

7. Upon receipt of a copy of a Notice of Appeal, the Crown/respondent 

will forward a letter in Form A to trial counsel requesting an affidavit 

in response to the allegations set out in the appellant’s material. 

8. Upon receipt of the material referred to above, namely (a) a copy of a 

Notice of Appeal, (b) a signed waiver of privilege, (c) any affidavits or 

other material setting out the factual basis for the allegations bearing 

on trial counsel’s professional conduct, and (d) the request from 

Crown/respondent, trial counsel shall prepare an affidavit in response 

to the allegations. Trial counsel’s affidavit shall not divulge any confidential 

information learned or obtained by trial counsel during the 

course of the file or instructions given by the appellant, except to the 

extent necessary to fully respond to the allegations of ineffective assistance. 

Trial counsel’s original affidavit and a copy shall be provided to 

counsel for the appellant. 

9. Upon receipt of trial counsel’s affidavit, counsel for the appellant shall 

review it and where he or she is of the opinion that it divulges confidential 

information or instructions of the appellant exceeding what is 

necessary for trial counsel to respond to the allegations, edit the copy 

of the affidavit and redact any portions of the affidavit over which 

privilege is asserted. A redacted copy of the affidavits shall be sent to


95 

the Crown/respondent (with redactions showing as blackened lines) 

and trial counsel, unless otherwise directed by the case management 

judge. 

10. Counsel for the appellant shall file with the Court (a) the original copy 

of trial counsel’s affidavit and (b) any edited or redacted version of the 

affidavit, both which shall be sealed by the registrar pending directions 

from the case management judge. 

Stage Three: Case Management 

11. At the case management hearing, the case management judge may 

make any directions necessary to ensure a timely and fair hearing of the 

appeal, and shall specifically consider whether, after receiving submissions 

from counsel for the appellant and the Crown/respondent, it is 

necessary to make directions concerning each of the following matters: 

(a) Confirmation that trial counsel has been formally served with a 

copy of the Notice of Appeal. 

(b) The time periods for preparation of any affidavits relied upon by 

the appellant in support of any allegations impugning the professional 

conduct of trial counsel to the extent that these materials 

have not already been prepared. 

(c) The time periods for preparation of trial counsel’s affidavit and the 

submission of that affidavit to counsel for the appellant to the 

extent that this has not already occurred. 

(d) The time periods for any editing or redacting of trial counsel’s affidavit 

by counsel for the appellant to the extent that this has not 

already occurred. 

(e) The time period for providing a copy of trial counsel’s affidavit to 

the Crown/respondent, in either (i) unedited form, where counsel 

for the appellant determines that no editing is required or, (ii) 

edited form, where counsel for the appellant takes the position that 

editing is necessary because the affidavit divulges privileged information 

which is not necessary to respond to the allegations made 

against trial counsel. 

(f) If trial counsel’s affidavit has been redacted by counsel for 

the appellant, the case management judge will, if required, review 

the original affidavit, the redacted affidavit and the appellant’s 

affidavit, and after hearing from the parties, decide whether 

solicitor client privilege has been waived by the appellant with 

respect to some or all of the redacted portions. If so, the case man-


THE ADVOCATE 

agement judge will release these redacted portions to the Crown/ 

respondent. 

(g) The time period for the filing of the appellant’s application to 

adduce fresh evidence, including but not limited to any affidavits 

referred to above. 

(h) If either party applies to cross-examine pursuant to Code s. 683(1) 

(b) or (d) on the affidavits filed, the division of the Court hearing 

the appeal must decide this issue. Such application shall be heard 

the same week the appeal is scheduled to be heard and by the same 

division hearing the appeal. 

(i) Counsel will advise the case management judge if they wish to 

cross-examine on any filed affidavit. The case management judge 

will direct that trial counsel and/or the appellant attend the hearing 

of the appeal and the application to adduce fresh evidence and 

be available for cross-examination should the division of the Court 

so order. If counsel require a subpoena for a witness, they will submit 

their application for a desk order to the case management 

judge for the consideration of the Court. 

(j) The time period for filing of the appellant’s factum after the filing 

of the affidavits. 

(k) The case management judge may provide a memorandum to the 

division hearing the appeal setting out any orders or directions, 

with copies to the parties. 

Stage Four: The Hearing 

12. Subject to the directions of the case management judge, a date for the 

hearing of the appeal shall not be set until: 

(a) The appeal books and transcripts have been filed in accordance 

with the Rules. 

(b) The appellant has filed an application to adduce fresh evidence, 

identifying any and all affidavits filed. 

(c) All of the matters listed in paragraph 11 (a) through (j) have been 

considered and\or addressed by the case management judge. 

The Honourable Chief Justice Bauman 

for the Court of Appeal of British Columbia 

History: Replaces the Criminal Practice Directive titled Ineffective Assistance 

of Trial Counsel, dated 19 September 2011 and 1 February 2005.


97 

FORM A 

Form Letter to Impugned Trial Counsel 

Dear Sir / Madam: 

Re: R. v. (name of appellant) CA0 ______________________ 

As you are aware, the above-captioned individual is appealing his/her 

conviction from (identify offence(s)) returned on (date) in (level of 

court). You were counsel at trial for (name of appellant). I represent the 

Crown/respondent in this matter. 

The appellant has alleged in a(n) (amended) notice of appeal filed on 

(date) that your representation of him/her was ineffective and resulted 

in a miscarriage of justice. The details of this alleged ineffective representation 

are contained in the appellant’s affidavit sworn (date) and 

(identify any other supporting material). It is my understanding that 

(name of appellant’s counsel) has served this material upon you. 

The Court of Appeal will require a response to these allegations from you 

in order to properly dispose of this ground of appeal. Your response 

should be in affidavit form. Please prepare and swear an affidavit responsive 

to the particulars of the allegations raised against you. To facilitate 

your doing so, it is my further understanding that (name of appellant’s 

counsel) has delivered to you an express waiver of solicitor-client privilege 

to the extent necessary for you to respond, signed by the appellant. 

It is not my intention to engage in a discussion with you concerning the 

content of your affidavit other than to point out that a complete 

response to each and every allegation is desirable. To this end, I’d ask 

you to have particular regard to the following portions of the appellant’s 

material: 

(enumerate applicable or pertinent paragraphs, etc.) 

Once your affidavit is sworn, please deliver the original and a copy to 

(name of counsel for the appellant). (Name of counsel for the appellant) 

will then vet your affidavit for its adherence to the scope of the waiver 

of privilege. Do not send a copy to me at this point in time. Should there 

be any disputes about whether your affidavit exceeds the scope of the 

waiver, they will be addressed through the case management process 

currently underway in connection with this appeal under the auspices 

of (name of case management justice).


THE ADVOCATE 

Provincial Court of British Columbia 

Notice 

Title: Judicial Case Managers 

Assignment of Duties Pursuant to s. 11 of the Provincial Court Act 

Issued: December 1, 2013 


The following are the duties, classes of cases or matters to which Judicial 

Case Managers are assigned by the Chief Judge: 

a. Fixing of dates for a preliminary inquiry, trial, sentencing hearing, 

hearing, conference or other proceeding; 

b. In the context of performing designated duties or on the direction 

of a judge, adjournments, and where jurisdiction to grant adjournments 

is given to a judge or the court under an enactment, authorization 

is given pursuant to s. 31(1) of the Provincial Court Act to 

exercise all the powers and jurisdiction of a judge or the court with 

respect to adjournments; 

c. Issuing process, making orders and doing acts as may be required 

at a first or subsequent appearance for case management purposes 

including, but not limited to: 

iii. Conducting arraignment; 

iii. Ordering a s. 486.4 ban on publication (by consent); 

iii. Ordering a s. 517 ban on publication; 

iv. Amending Informations (by consent); 

v. Vacating bench warrants (where not opposed by counsel); 

vi. Vacating trial dates upon entering of a guilty plea or stay of 

proceedings, or upon the issuance of a bench warrant; 

d. Recording of guilty pleas except on Youth Criminal Justice Act 

matters; 

e. Taking of elections except from unrepresented persons; 

f. Making orders to obtain Pre-Sentence Reports (PSRs), Technical 

Suitability Reports (TSRs) or other information that may be 

requested or required in connection with the recording of guilty 

pleas or taking of elections when consented to by Crown and 

Defence Counsel;


99 

g. Consent remand(s) of persons in custody pursuant to s. 516 of the 

Criminal Code of Canada, and all matters involving judicial interim 

release that are uncontested as to release and the form and conditions 

of release including uncontested variations of existing release 

orders and making a detention order where counsel consent; 

h. Making a consent order that a preliminary inquiry or trial be conducted 

in French; 

i. Making a no contact order under s. 516(2) of the Criminal Code of 

Canada where the accused is represented and by consent; 

j. Marking bail for an estreatment application; and 

k. Under the Youth Criminal Justice Act, reading the Information at 

the first appearance, and attending to the s. 26 age and notice 

requirements. 

t t t 

t t 


Notice 

Re: Notes for Forms and Workflows—December 2013 



ADOBE VERSIONS 

To use the Consent Requisition, Consent Remand and Consent Arraignment 

electronically, the forms have been built to work with Adobe Reader 

9.0 or higher. Adobe Reader is free and can be downloaded from the internet. 

Note that forms are fillable and saveable. 

SIGNATURES 

w 

w 

Counsel (Crown and Defence) signatures are not required on the Consent 

Requisition, Consent Remand and Consent Arraignment forms. 

Forms do not specify signature required. Counsel may sign if they wish 

to but still need to provide the printed names and contact information 

in the appropriate sections on the forms.


THE ADVOCATE 

EMAIL SUBMISSIONS TO THE JCM 

w 

w 

w 

w 

w 

When submitting a form by email to the JCM, counsel are expected to 

copy opposing counsel so both will receive an email copy of the submitted 

form, and so the JCM can reply to all to provide confirmation to 

all counsel as to whether the form has been accepted. 

When replying to an emailed form, JCMs will reply to all by email to 

inform all counsel whether the form has been accepted or not. 

JCMs may reject the form for various reasons including an incomplete 

form or if received too late to process. 

The Court Registry does not accept email submissions. For locations 

accepting emailed forms, the completed consent forms can only be 

received and accepted through the JCM’s generic scheduling email 

address. 

Not all forms will be accepted in all locations by email as of 

December 1, 2013. 

a 

a 

a 

a 

Consent Requisition and Consent Remand — With the exception of 

Surrey, North Vancouver and Vancouver Provincial (Adult Criminal) 

courthouses, most other court locations will accept the Consent 

Requisition and Consent Remand forms by email. 

Consent Arraignment — As set out in the Practice Direction, at this 

time the Consent Arraignment form will only be accepted by 

email, fax or in person in Victoria and Western Communities. 

Trial Scheduler locations — The forms will not be accepted by 

email or facsimile at the following locations: Burns Lake, Fort Nelson, 

Golden, McKenzie, Powell River, Sechelt, Valemont. The Trial 

Scheduler will accept the forms in person. 

Circuit court locations — Circuit court / unstaffed locations will 

not accept these forms in any format (email, facsimile or in person). 

The process is not available in these locations. Please refer to 

the Provincial Court website for a list of Unstaffed Court Locations: 

http://www.provincialcourt.bc.ca/locations-contacts 

DEADLINE FOR FORM SUBMISSIONS 

The Practice Direction indicates that the forms are to be submitted “no later 

than 12:00 noon of the business day prior to the scheduled appearance.” This is 

the absolute latest time. Note that local cut-off times may vary based on incustody 

transport issues.


101 

WHEN TO USE FORMS 

Application 

Consent Vary Bail by Consent Remand Consent 

Requisition Consent Arraignment 

Status NEW Existing – PCR 317 NEW NEW 

Consent Required Yes Yes Yes Yes 

For use by 

Defence, Crown 

Accused, Defence, 

Crown 

Defence, Crown 

Defence 

Signatures 

Required 

No Yes No No 

For Out-of-Court 

Use 

Yes Yes Yes Yes 

For nonscheduled 

Yes Yes No Yes 

appearance date 

Submitted by 

parties to 

JCM Office 

(Registry may file 

call aheads) 

Registry / JCM / Registry / JCM / 

Court 

Court 

JCM Office 

t t t 

t t 

Form 1 - Consent Requisition 

a 

a 

a 

a 

a 

a 

Not for self-represented litigants 

Defence may appear as agent or designated counsel 

Submit to JCM (Call ahead may be filed by counsel in person at the 

Registry) 

To be used to change, cancel or call-ahead a non-trial appearance 

Used when a personal appearance is not required in court 

Crown and Defence counsel agree to a return date, time, reason 

and method


THE ADVOCATE 

Form 2 - Application to Vary Bail by Consent 

a Existing Court form CS # PCR 317 

a Can be filed by counsel or accused 

a Submit to Registry / JCM / Court 

a To be used to vary bail by consent 

a Used when a personal appearance is not required in the courtroom 

a Crown consents to the variation request – Crown to sign form 

a Registry to produce new bail document(s) 

a Accused to sign new bail document(s) 

Form 3 - Consent Remand 

a For use only on appearance date 

a Not for self-represented litigants 

a All counsel agree in-custody accused is not required to make an inperson 

appearance 

a Crown and Defence counsel agree to a return date, time, reason 

and method 

a Defence to appear as agent or designated counsel 

a Can be received by JCM (CSBJP may accept form filed by counsel 

in person at the Registry) 

a NOT to be used to vary bail 

Form 4 - Consent Arraignment 

a Victoria and Western Communities court locations only (Dec 2013 

until further notice) 

a Not for self-represented litigants 

a For Adult Criminal matters only – not to be used for Youth matters 

a Defence to appear as agent or designated counsel 

a For use as an alternative to in-person appearance 

a If submitted and accepted prior to the pre-set arraignment event, 

JCM to vacate the future arraignment appearance 

a Used for setting preliminary inquiries, trials, hearings and/or sentencing 

dates 

a For multi-accused files, separate forms must be prepared for each 

accused 

t t t 

t t


103 


Practice Direction 

Title: Criminal Caseflow Management Rules 

Simplified Front End Criminal Process (2013) 



No. 2013/CPD-1 

Purpose 

The Criminal Caseflow Management Rules (CCFM Rules) were first 

approved by OIC 1356/99 pursuant to section 482(2) of the Criminal Code of 

Canada. The objectives of these rules included reducing time to trial, more 

effective use of judicial resources and increasing accessibility of the Court. 

In 2012, the Court began the Provincial Court Scheduling Project which, 

in its first phase, focused on simplifying the front-end process. To support 

the changes, the CCFM Rules were amended in 2013, see OIC 484/2013. 

The Court continues to be committed to the efficient, effective and equitable 

use of judicial resources and the simplification of the process with the 

goals of improving accessibility and supporting the administration of justice 

in the province. The 2013 revisions reduce administrative processes by 

returning case management responsibility to counsel; supporting the introduction 

of the new trial scheduling platform; and allowing the Court to 

introduce new efficiencies to make the best use of judicial resources. 

This Practice Direction supports the objectives of the 2013 revision to the 

rules and process. These directions will be interpreted in a manner consistent 

with the intention and spirit of the requirements of the Criminal Code 

of Canada and the CCFM Rules. I make the following Practice Direction pursuant 

to my authority under the Provincial Court Act, R.S.B.C. 1996, c. 379, 

and Rule 3 of the CCFM Rules. 

Rescind 

1. The CCFM Practice Directions set out in Appendix A are rescinded. 

Application 

2. These directions apply to all criminal proceedings in the Provincial 

Court including to proceedings in specialty and therapeutic courts to 

the extent that the directions are not inconsistent with directions or 

protocols specific to that court.


THE ADVOCATE 

Definitions 

3. The following definitions apply to this Practice Direction: 

a. “JCM” or “JCMs” means Judicial Case Manager(s); 

b. “specialty and therapeutic courts” include Downtown Community 

Court (Vancouver), Drug Treatment Court, First Nations 

Courts, Victoria Integrated Court, Cowichan Domestic Violence 

Court and other similar types of court; 

c. “YCJA” means Youth Criminal Justice Act. 

4. The JCM is a “trial scheduler” as defined in the CCFM Rules. 

5. Where appropriate and reasonable, a reference to Defence Counsel or, 

more generally, counsel, may be interpreted to include self-represented 

accused. For clarity, this provision does not apply to paragraph 

49 of this direction. 

Judicial Case Managers 

One of the objectives of the Court is to improve the use of judicial resources by 

assigning most administrative and remand matters to JCMs. A full description of 

the authority of JCMs is set out in the Chief Judge’s JCM Assignment of Duties 

available at: . 

6. The JCM may adjourn a matter to a later date or to appear before a 

Judge for direction at the JCM’s discretion. 

7. The JCM may direct timeframes for a matter following discussion with 

both Crown and Defence Counsel. 

8. The failure to comply with any direction of a JCM may result in the 

matter being referred by the JCM to a Judge. 

Initial and Subsequent Appearances 

A further objective of the Court is to move matters from the first appearance 

through to a scheduled date in a timely manner. For this reason, most appearances 

will be before a JCM. JCMs will schedule matters for appearance before a 

Judge when necessary. Counsel may request a scheduled appearance before a 

Judge or may request that a scheduled appearance be moved before a Judge (see 

“Scheduling an Appearance before a Judge” in this direction). 

9. Subject to paragraph 15, all out-of-custody, non-contested appearances 

will be heard before a JCM. 

10. Subject to paragraph 11, an in-custody accused may appear before a 

JCM in the following manner:


105 

a. video, if available in the institution; 

b. by counsel appearing as agent or designated counsel; or 

c. other means, such as telephone, when approved in advance by the 

JCM. 

11. Counsel must notify the Court Registry no later than 12:00 noon of the 

business day prior to the scheduled appearance of an in-custody 

accused for approval and instructions on arranging an alternate form of 

appearance as contemplated in paragraph 10a and c. 

12. Counsel is responsible for notifying the opposing counsel upon receiving 

JCM approval for an alternate form of appearance by an in-custody 

accused. 

13. An accused, whether in-custody or out-of-custody, may be represented 

before a JCM by: 

a. designated counsel; or 

b. agent (including duty counsel). 

14. In general, in-person appearances of an in-custody accused will be 

heard before a Judge. 

15. The JCM will refer a matter to a Judge: 

a. if the matter is being heard before the JCM and a contested issue 

emerges; 

b. an accused wishes to enter a guilty plea and deal with sentencing; or 

c. for any other reason at the JCM’s discretion. 

Appearance of Counsel 

It is important to note that alternate forms of appearance cannot be accommodated 

in all locations. This direction does not require JCMs to accommodate alternate 

forms of appearance. The availability of alternate types of appearances 

may vary by location. 

16. When counsel wishes to attend an in-person scheduled appearance 

before a JCM by an alternate means, counsel must request prior JCM 

approval. 

17. The process for requesting approval to appear by alternate means is as 

follows: 

a. No later than 12:00 noon of the business day prior to the scheduled 

appearance: 

iii. submit a request in-person at the JCMs Office, or 

iii. submit a request by email or facsimile (if available in the location) 

to the JCM with the following details


THE ADVOCATE 

1. the reason for the request, 

2. the alternate means to be used, and 

3. in the case of a telephone appearance, the telephone 

number at which counsel may be reached for the 

appearance. 

b. The telephone number provided to the JCM for the purposes of the 

appearance must be a direct land-line number or a mobile telephone 

number with acceptable sound quality. 

18. Counsel should notify opposing counsel upon receiving JCM approval 

to appear by alternate means. 

19. The Court may cancel the appearance by alternate means and require 

an in-person appearance by counsel at the Court’s discretion. 

Scheduling by JCM 

20. Appearances before the Court that will be scheduled by a JCM include: 

a. matters for sentencing; 

b. JCM referrals of matters for appearance before a Judge; 

c. JCM approved requests of counsel for an appearance before a 

Judge; 

d. contested issues; 

e. applications; 

f. pre-trial conferences; 

g. interim appearances; and 

h. trials or preliminary inquiries. 

21. When a matter being heard by a JCM is referred by the JCM to a Judge, 

the matter may be heard that day provided it can be accommodated by 

the Court and counsel are available, otherwise the matter will be scheduled 

to another day. 

22. On matters where Crown is assigned, the JCM will take into account 

the assigned Crown’s availability when scheduling events. 

23. On matters where Crown will not be assigned, Defence Counsel may 

request a trial date at or after the first appearance. The JCM may set a 

date at that time. 

Scheduling an Appearance Before a Judge 

Counsel may request that a matter be set before a Judge by contacting a JCM in 

the JCM Office.


107 

An objective of these directions is to move matters from first appearance to a 

conclusion in a timely manner. If either counsel is concerned about delay, counsel 

may bring the matter to the attention of a JCM. The JCM will work with counsel 

to improve timeliness. When appropriate, the JCM will schedule the matter for 

appearance before a Judge. (Also see “Timeframes” in this direction.) 

24. The JCM may schedule a matter for appearance before a Judge: 

a. upon a request from Crown or Defence Counsel; or 

b. at the discretion of the JCM. 

25. Counsel may request a scheduled appearance before a Judge by delivering 

Form 1 (CPD 1) Consent Requisition to the JCM in the JCM Office 

in one of the following ways: 

a. attending at the office in person; 

b. by email; or 

c. if available in the location, by facsimile. 

26. The JCM will notify Defence Counsel and assigned Crown, if any, 

when a matter is to be scheduled for appearance before a Judge pursuant 

to paragraph 24. 

Changing Non-Trial Appearance Date 

The purpose of this section is to provide a convenient means for counsel to contact 

a JCM to cancel or reschedule an appearance. 1 

Note that the Court expects counsel to contact the JCM when an adjournment 

is required: see paragraphs 38 and 39 of this direction. 

Also, during the initial period of operation under the 2013 Rules and these 

directions, Form 1(CPD-1) Consent Requisition may be used to cancel Trial 

Confirmation Hearings (see “Transition for Matters Proceeding on December 

1, 2013 and After” in this direction). 

27. In addition to scheduling an appearance, counsel may use Form 1 

(CPD-1) Consent Requisition for the following purposes: 

a. to change an appearance date; 

b. to cancel an interim appearance; or 

c. to request an earlier appearance. 

28. Counsel may submit Form 1 (CPD-1) Consent Requisition to a JCM in 

the JCM Office in one of the following ways: 



c. if available in the location, by facsimile.


THE ADVOCATE 

Alternate Forms of Appearance 

These provisions allow alternate forms of appearance for varying bail, for 

remand and for arraignment. The Court expects counsel will use the forms 

whenever possible for matters that come before a JCM. This practice will support 

the objective of promoting processes that use court resources effectively. 

Form 4 (CPD-1) Consent Arraignment will only be available for use in Victoria 

until further notice from the Court: see “Transition for Matters Proceeding 

on December 1, 2013 and After” (paragraph 55) in this direction. 

Form PCR 317 will be used as Form 2 (CPD-1) Application to Vary Bail by 

Consent until further notice from the Court. 

29. A form of appearance, other than an in-person appearance, may be 

requested by submitting the relevant form, Form 2 (CPD-1) Application 

to Vary Bail by Consent, Form 3 (CPD-1) Consent Remand or Form 4 

(CPD-1) Consent Arraignment, to a JCM in the JCM Office in one of the 

following ways: 



c. if available in the location, by facsimile. 

30. If the JCM is not satisfied that a form submitted by counsel is complete 

or meets the requirements of the appearance, counsel will be required to 

attend in Court or resubmit the form in a manner satisfactory to the JCM. 

Application to Vary Bail by Consent 

31. Form 2 (CPD-1) Application to Vary Bail by Consent may be used when 

Crown and Defence Counsel agree to a bail variation pursuant to section 

503(2.2) or section 515.1 Criminal Code of Canada. 

Consent Remand 

32. Form 3 (CPD-1) Consent Remand may be used by Defence Counsel, 

under instructions from her/his client, seeking an adjournment of a 

bail hearing or by Crown, with the agreement of Defence Counsel, 

seeking a remand under section 516 Criminal Code of Canada. 

33. Form 3 (CPD-1) Consent Remand will, generally, be used the day the 

accused is scheduled to appear before the Court in-custody. Where 

counsel wish to change a non-trial appearance of an in-custody accused 

prior to the scheduled appearance date, counsel may use Form 1 (CPD- 

1) Consent Requisition in place of Form 3(CPD-1) Consent Remand. 

Consent Arraignment 

34. Form 4 (CPD-1) Consent Arraignment may be used when Crown and 

Defence Counsel:


109 

a. have discussed the matter; 

b. are in agreement that the matter is ready to be set for trial, preliminary 

inquiry, sentencing or other hearing; and 

c. agree that an in-court arraignment or appearance is not required. 

35. Form 4 (CPD-1) Consent Arraignment must be submitted to the JCM 

no later than 12:00 noon of the business day prior to the scheduled 

appearance. 

36. Form 4 (CPD-1) Consent Arraignment may not be used for YCJA 

matters. 

Court’s Expectations of Counsel 

A goal of this direction is to use judicial resources efficiently through a reduction 

in the number of administrative tasks brought before the Court. 

Counsel is expected to communicate effectively with one another for the effective 

management of their files. 

Counsel is expected to notify the JCM promptly when it becomes apparent that 

an appearance will be adjourned or scheduled Court time is no longer required. 

37. It is the responsibility of counsel contacting a JCM for any of the reasons 

referred to in this direction to ensure that the communication 

comes to the attention of the JCM responsible for scheduling the matter, 

in a timely manner. 

38. When counsel becomes aware that an adjournment of a coming 

appearance is required, counsel is expected to contact the JCM as soon 

as possible to request a new appearance date. (See “Changing Non-Trial 

Appearance Date in this direction) 

39. Counsel is expected to contact the JCM as soon as possible before the 

trial or hearing date in the event of an adjournment application (contested 

or uncontested) of a scheduled trial or hearing date. Counsel 

may contact the JCM in the JCM Office in one of the following ways: 


b. by email; 

c. if available in the location, by facsimile; or 

d. by telephone. 

40. Counsel should follow-up, in writing, with opposing counsel to confirm 

all requests made to a JCM relating to dates, adjournments, disclosure, 

reports or other matters relevant to the conduct of the file. 

Timeframes 

An objective of these directions is to leave the responsibility for file management 

with counsel. The Court expects counsel to begin communication with one


THE ADVOCATE 

another early and continue to communicate effectively throughout the process 

leading to trial or other disposition. The Court’s role is to provide guidance that 

assists counsel in moving matters forward in a timely manner. While strict timeframes 

and rules will not be created, the Court will take an active role in the management 

of a file if the Court’s expectations of counsel are not being met. 

41. The Court expects that simple (summary) matters will progress from 

first appearance to arraignment in 60 days; more complex matters will 

progress in 90 days. 

42. The arraignment process for all YCJA matters must be completed 

within 60 days of the initial appearance. 

43. The JCM may schedule the matter for appearance before a Judge if the 

JCM is of the view the matter is not progressing in a timely manner. 

44. Either counsel may request direction from the JCM on timeframes or 

make a request to the JCM that the matter be scheduled for an appearance 

before a Judge if the matter is not progressing in a timely manner. 

The JCM may work with counsel to resolve problems relating to the 

progress of a file prior to scheduling an appearance before a Judge. 

Interim Appearance 

There may be situations where it is appropriate to have a pre-trial appearance 

before a Judge or JCM to ensure trial readiness. At the time of scheduling the 

trial/preliminary inquiry date, the JCM may consult with counsel to determine 

whether an interim appearance is required. If an interim appearance is required, 

the JCM will schedule an interim appearance in addition to setting the date for 

trial/preliminary inquiry. 

45. Situations where an interim appearance before a Judge or JCM may be 

set include: 

a. an accused is representing her/himself; 

b. where the trial or preliminary inquiry is expected to take more 

than three (3) days; 

c. the JCM determines, after consultation with counsel, an interim 

appearance is required. 

46. Counsel may request an interim appearance before a Judge or JCM by 

contacting the JCM in the JCM Office in one of the following ways: 


b. by email; 

c. if available in the location, by facsimile; or 

d. by telephone.


111 

47. An interim appearance will not be set for matters proceeding summarily 

unless the JCM determines an interim appearance is required. 

Alternative Measures (Diversion) 

48. As matters proceeding by alternative measures may not progress 

within the timeframes anticipated in this direction, the JCM has discretion 

regarding setting timeframes and allowing adjournments when 

both counsel consent. 

Notice 

49. Any requirement to provide notice or to provide a response to opposing 

counsel is satisfied if sent by email to the email address provided 

by that counsel for the purpose of notice. 

Transition for Matters Proceeding on December 1, 2013 and After 

50. Arraignment hearings fixed under the former CCFM Rules but set for a 

date on December 1, 2013 or after will be treated as arraignment events 

as required under the Criminal Code of Canada and not arraignment 

hearings under the former CCFM Rules. 

51. The Arraignment Report required under the former CCFM Rules for 

arraignment hearings will not be required for an arraignment event set 

for a date on December 1, 2013 or after. 

52. Trial confirmation hearings fixed under the former CCFM Rules but set for 

a date on December 1, 2013 or after will be treated as an appearance date 

to confirm the trial will be proceeding (confirm trial date appearance). 

53. The Trial Readiness Report required under the former CCFM Rules for 

trial confirmation hearings will not be required for a confirm trial date 

appearance set for a date on December 1, 2013 or after. 

54. Where counsel are in agreement that a confirm trial date appearance 

set for a date on December 1, 2013 or after is not required, counsel may 

file Form 1 (CPD-1) Consent Requisition in the manner set out under 

Changing Non-Trial Appearance Date in this direction. 

55. Until further notice from the Court, Form 4 (CPD-1) Consent Arraignment 

will only be available for use in Victoria as of December 1, 2013. 

ENDNOTES 

1.All forms are attached to this direction in Appendix B 

and available from the Provincial Court online at 

. 

Appendices A and B on following pages S


THE ADVOCATE 

APPENDIX A 

Table of Practice Directions Rescinded December 1, 2013 

Date of Practice 

Direction 

Victoria (South Vancouver Island) CCFM 25 October 2010 

Reducing the Number of Appearances prior to an Arraignment Hearing 

Vernon (Okanagan) CCFM 3 May 2010 

Arraignment and Trial Confirmation Hearings, Compliance and 

Administrative Court Sittings 

Penticton – Okanagan CCFM 6 April 2010 



Arraignment TCH 2 March 2010 

Nelson-Kootenay District 



Dawson Creek – CCFM 10 January 2010 



Kamloops 4 January 2010 



Victoria – South Vancouver Island District CCFM 1 December 2009 

Arraignment and Trial Confirmation Hearing 

Victoria Youth Project CCFM 1 October 2009 



Fort St. John – Cariboo Northeast District CCFM 12 August 2009 



Vancouver Criminal District CCFM 4 May 2009 



Prince George – Cariboo Northeast District CCFM 16 February 2009 



Williams Lake – Cariboo Northeast District CCFM 5 January 2009 



continued on next page


113 

APPENDIX A 

Table of Practice Directions Rescinded December 1, 2013 

Date of Practice 

Direction 

Robson Square Youth Justice Court CCFM 3 November 2008 



Quesnel – Cariboo Northeast District CCFM 1 October 2008 



Kelowna – Okanagan District 5 May 2008 



Colwood – South Vancouver Island District CCFM 10 April 2008 



Duncan – South Vancouver Island District CCFM 6 May 2008 



Prince George – Cariboo Northeast District CCFM 4 February 2008 

Compliance Court Sittings 

Port Coquitlam – North Fraser District 4 February 2008 



Judicial Case Managers 18 June 2007 

Assigned to the Pilot Projects by the Administrative Judge 

Assignment of duties pursuant to s. 11 of the Provincial Court Act 

Victoria and South Vancouver Island District CCFM 18 June 2007 



Arraignment Hearings CCFM 25 November 2003 

Elections CCFM 25 November 2003 

Out-of-Town Counsel Attending Arraignment Hearing CCFM 10 February 2000 

Adjustments to Arraignment Process 20 October 2000 

Arraignment Process – Rule 5(4) CCFM 20 October 2000 

Transition to the New Criminal Process to be enacted pursuant to s. 482(2) 27 May 1999 

C.C.


THE ADVOCATE 

APPENDIX B 

Form 1 (CPD-1) Consent Requisition 

Form 2 (CPD-1) Application to Vary Bail by Consent [Note: Form PCR 

317 will be used as Form 2 (CPD-1) Application to Vary Bail by Consent] 

Form 3 (CPD-1) Consent Remand 

Form 4 (CPD-1) Consent Arraignment 

GONE FISHING 

Many years ago when we were all young and keen and inexperienced 

and full of enthusiastic mistakes, W.J. Wallace (as he then 

was) was practising at the firm then known as Bull, Housser, Tupper, 

Ray, Guy, and Merritt, along with a collection of younger fellows 

with no strong sense of respect for their elders. 

Wallace J. (as he now is) decided to have a sign made which 

read, “In Conference”. He designed it so that it could be hung by a 

little chain from his doorknob when he did not wish to be disturbed. 

He was forced to discontinue its use within a week. The 

first time he hung it out, W.A. Esson (as he then was) turned it over 

and wrote in large black ink letters on the back of it, “Gone Fishing”. 

Its owner, emerging from his office, discovered this reversal 

and the legend on the back and restored the sign to its proper position. 

It was to no avail. Any time he hung it on his doorknob, the 

first person to walk past his door turned it around. He discreetly 

filed it in his desk drawer and it was never used again. 

—Reprinted from (1984) 42 Advocate 406


115 

NOS DISPARUS 

By R.C. Tino Bella 

Arthur Morrell Harper, Q.C. 

Arthur Harper was born in Vancouver on February 

17, 1914, to Andrew Miller Harper and Ellen Redgrave 

Harper. Unlike the majority of British 

Columbians, Arthur lived his whole life here, with 

the exception of the war years. As he was the 

youngest of three children and the only son in the 

family, he was introduced to the principles of fairness 

and reason in dispute resolution, which were to guide him all his life. 

Arthur’s father, Andrew, who was a graduate of Queen’s University, moved 

to Vancouver in 1906 to article with well-known lawyer Joe Martin and later 

served on the County and Supreme Courts from 1933 to 1944. 

The high point, or what at least seemed to be his fondest memory, of public 

school was the creation of “The Iroquois Club” at Cecil Rhodes Elementary. 

This small group remained close through all their years. 

Upon graduating from King Edward High School, Arthur entered the University 

of British Columbia, where he was fortunate to meet Eleanor Darrel 

Gomery, whom he would ultimately marry in 1940. No doubt it was here 

that he found his love of bridge, at which he excelled until the very end. His 

friends would say that after two rounds he knew which player held which 

cards. Upon graduation in 1934, Arthur attended the Vancouver Law 

School, obtaining an articling position with G.E. Housser of Walsh Bull & 

Company. Until 1995, when UBC conferred an honorary bachelor of laws 

degree upon him, he relished telling students and young associates that he 

did not have a degree. 

Having been called to the bar in 1937, which was still in the Depression 

years, and always being independent and self-reliant, Arthur decided to 

hang out his shingle as a sole practitioner in Vancouver. They were at first


THE ADVOCATE 

lean years as he sat waiting for any client to come through the door, answering 

his own telephone and typing his own correspondence. But they did 

come, and so by 1940 he felt ready to take on the responsibility of a family. 

Darrel (“spelled like barrel”, she would advise people all her life) was to be 

Arthur’s perfect life-long partner in all of his activities. 

With the war looming, as an army reservist Arthur had qualified as an 

artillery officer, but on hearing that his battalion was likely to be posted on 

the inaccessible Yorke Island in Queen Charlotte Strait in 1941, he wisely 

applied to the Royal Canadian Navy, where he was accepted for officer 

training in 1941. After a time at HMCS Discovery in Vancouver, it was off to 

King’s College in Halifax, where he graduated as a sub-lieutenant in the 

RCNVR. He was posted to the high-speed Fairmile motor launches carrying 

out anti-submarine patrol in and around the shipping lanes to Halifax Harbour, 

the Gulf of St. Lawrence and the Strait of Belle Isle, where German 

submarines had been too effective. Arthur soon established himself as competent 

and reliable, traits that were not always present in a navy which 

swelled from nothing to the third-largest in the world in just a few short 

years. The Canadian navy assumed responsibility for the North Atlantic, 

protecting Britain’s convoy lifeline. 

During this time Darrel, who had obtained specialized training in teaching 

the hard of hearing, was able to obtain a position in Halifax and join 

Arthur. Much of the time he would spend at sea in a very small boat full 

of aviation fuel in dreadful conditions. In 1943, at age 29, he was given command 

of his own Fairmile motor launch (the second love of his life), the 

ML 111, which he took with his flotilla of five others to Bermuda for continued 

patrolling. His final posting was to the RCN destroyer Ottawa toward 

the end of the war, when he declined the offer to continue and make a 

career in the RCN. It was no match against returning home to Darrel and 

his young daughter Shannon, who only knew him from photographs, and 

the resumption of the profession he loved. His performance, which was to 

serve as a predictor of that in the profession, is contained in his award of 

Mention in Dispatches, given: 

for outstanding zeal, efficiency and devotion to duty while with His 

Majesty’s Canadian Coastal Forces. This officer at all times displayed 

high qualities of leadership and example, thereby adding greatly to the 

efficiency of the entire M.L. Flotilla. 

Returning to Vancouver to resume his professional life and add his son 

Andrew to the family, Arthur joined W. (Bill) H. Campbell in practice. While 

still practising, his brief but unsuccessful foray into civic politics convinced 

him that his talents lay elsewhere. To his good fortune, in 1947, C.W. Tysoe,


117 

having tussled with him on several occasions, lured him away to partnership 

in Craig, Tysoe, Harper & Langfield. This proved to be the start of both 

a lasting friendship and the basis for a vibrant, growing firm. Arthur honed 

his skills as trial counsel and earned his reputation for being deadly before 

a jury. Initially active both civilly and as Crown counsel on the Assizes, he 

soon developed a large insurance law practice. 

With Tysoe’s appointment to the bench, Arthur comfortably assumed 

leadership. His advice and counsel were sought by many clients, both large 

and small. While very successful (which to lawyers means long hours and 

briefcases home), he remained loyal to old clients from long in the past. He 

was known widely as considerate and fair in his dealings with opposing 

counsel and at all times civil and respectful. In 1960, he was appointed 

Queen’s Counsel. Now I have to tell you here that I met his lovely daughter 

(now my wife) in the rain in a pre-computer UBC Faculty of Arts registration 

line-up in 1962. Soon a regular at their dinner table but without ever 

being made aware of his position in the legal profession, I could sense his 

pride and commitment to the profession. 

Accepting that he had a responsibility not only to the profession but also 

to the larger community, he ran successfully for the position of bencher of 

the Law Society of British Columbia, rising ultimately to the position of treasurer 

(as some of us fondly remember that title) in 1968–69. It was here that 

he made his most significant contribution. His good friend Charlie Brazier, 

Q.C., while travelling in New Zealand, had learned of the existence of its 

Law Foundation. They, along with Ken Meredith, Q.C., took on the battle 

with the chartered banks, which to this point had never been required to 

pay any interest on trust accounts on deposit. You can imagine their opposition. 

Nevertheless Arthur succeeded in persuading Robert Bonner, Q.C., 

then Attorney General, of the benefit of such a foundation to the people and 

province of British Columbia. The Law Foundation of British Columbia was 

created, with Arthur serving as the first chairman, guiding it smoothly 

through the early years. The first of its kind in North America, it served as 

the model for what now exists in virtually every jurisdiction. 

Arthur’s family was his anchor. In 1915, his father had the foresight to 

purchase acreage on the southwestern tip of Gambier Island when the only 

access was by Union steamship. It was a place where returned men and 

their families could live on little in rustic conditions but with dignity. Growing 

up during summers there taught him things such as patience, tolerance, 

the inherent value of hard work and an appreciation of the value of simplicity 

in life. Within several years after returning from the war, he and Darrel 

set about building their cottage themselves, by hand. No electricity to make


THE ADVOCATE 

ice for the G & T’s in those days! Today his seven grandchildren and 11 

great-grandchildren (the fifth generation on the island) are still able to be 

exposed to many of the same experiences. Baba, as he was known to all in 

the family, will always be in their memories. 

Arthur was a loyal follower of many sports but particularly of the Lions. 

He was one of the original season ticket holders. There was an audible sigh 

of relief from Darrel when I became his seat partner as, eschewing the parking 

lot at Empire Stadium, he preferred to walk blocks up the hill, rain or 

dry, to park for free. He belonged to numerous service and social clubs 

through the years, with perhaps his favourite being the now-gone Capilano 

Winter Club, of which he was a founding member—more likely it was 

because he once scored the elusive 8 ender curling there. Summer family 

bonspiels in Nelson were a tradition. As he withdrew from practice at a far 

earlier age than most of us, he turned to golf at Capilano Golf and Country 

Club, where he and Darrel met yet another group of friends. Year after year, 

they would pack their travel bags and head off for a month of golfing 

through England and Portugal. 

Arthur and Darrel travelled extensively and for extended periods, returning 

many times to England and Europe, as well as in the other direction, 

touring China when it was not yet stylish to do so. He loved fishing and 

cruising the passages of B.C. in his endless string of boats, which he did well 

into his 80s. That is no small undertaking, even for the younger among us. 

Darrel loved just the cruising. Always ready to accept a challenge, they 

moved their centre of operations to Vancouver Island, spending 12 idyllic 

years near Duncan perfecting their golf and making yet another circle of 

friends. At age 88, while both he and Darrel were in good health, Arthur 

decided the time was right to be closer to their children and grandchildren. 

They sold their house, pared down their life’s collection of things and took 

up residence at Hollyburn House in West Vancouver, where they ruled for 

another ten years. They continued to enjoy relative good health until Darrel 

died in 2011, four months after their 70th wedding anniversary. Arthur 

bore his loss and loneliness quietly, as a gentleman would. Always eager to 

hear any news of his firm, he had kept in touch with his old partner Harvey 

J. Grey, Q.C. Harvey died on February 8, and at his memorial on February 

23 Arthur was able to hear the many fine tributes not only to Harvey 

but also to himself and what he would always think of as his firm. He visibly 

glowed to be in the company of his colleagues once again. 

Arthur died eight days later, at 99 years of age, after a mercifully brief 

time in hospital. His birthday two weeks earlier had been a particularly 

happy event for him, being surprised by little great-grandchildren holding


119 

balloons spelling out “Baba” and belting out a barely understandable birthday 

song. He took care to engage each one individually to help him share 

the moment and his favourite chocolate cake, seeming to understand that 

he would not be seeing them again. 

While mobility had become an issue for Arthur in the last few years, 

thankfully he retained his faculties to the end, still managing his own affairs 

with the clarity of thought and decisive manner for which he had always 

been known. 

W. James McJannet, Q.C. 

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THE ADVOCATE 

Free Desktop Access to the Complete Advocate Archives 

For assistance, contact Courthouse Libraries BC 

604-660-2841 or librarian@courthouselibrary.ca 

The Advocate archive (1943 to present) has been digitized and is now 

available via HeinOnline. Members of the Law Society have free 

desktop access to HeinOnline through the Courthouse Libraries BC’s 

“Lawyers Reading Room.” 

Step 1: Go to Courthouse Libraries BC’s website at: 

http://www.courthouselibrary.ca/ and click on the Lawyers’ 

Reading Room. 

Step 2: To sign up for Reading Room access, follow the instructions 

on the log in page. 

Step 3: Log in. Once you are logged in, click on the 

logo. 

Step 4: Click on Advocate (Vancouver Bar Association), listed under 

Subscribed Libraries. 

To search the Advocate, click on the Search tab at the top and enter 

search term(s) in the Quick Search box. HeinOnline also has Field Search 

and Advanced Search options. To browse the issues simply expand the 

volumes by clicking on the + 

sign.


121 

NEW JUDGE 

By R.C. Tino Bella 

Andrea Brownstone 

From those of us settled contentedly (some might 

say smugly) on the west coast, it is often a portent of 

profound intelligence that someone has moved here 

from the colder parts of the country. In Andrea’s 

case, the route was somewhat circuitous, but ultimately 

the more gratifying because of it. 

Born and raised in Winnipeg, she demonstrated 

early indications of that intelligence by graduating from high school at age 

16, followed by a B.A. in English literature from the University of Manitoba. 

As her dalliance in arts neared its completion, however, parental pressure 

and student poverty compelled her, like many, to make a suitable career 

choice. Although her childhood ambition had been to become an interpreter 

at the UN, she quickly recognized that her lack of fluency in another 

language was probably a major obstacle (once again that irrepressible intelligence 

was at work). Ultimately, she attributes her decision to pursue law 

to a day when her Shakespeare prof was looking out the window toward the 

U of M law school, lamenting that some of his best students ended up “over 

there”. She decided not to stick quite so close to home, and both her legal 

career and her odyssey began with her move east to attend Osgoode. 

It was a somewhat dissonant beginning for the eventual emergence of a 

barrister that she was awarded Osgoode’s graduating prize for highest combined 

marks in commercial law, business law and tax. Nevertheless, it was a 

third-year semester at the Parkdale Community Legal Services clinic that 

sparked her desire for the stimulation of litigation. Articles followed at a boutique 

firm in Toronto, where she remained following her call until she married 

and moved to pursue general litigation in Edmonton (it gets worse before 

it gets better). Before long, to her considerable chagrin, she found herself with


THE ADVOCATE 

a booming foreclosure practice. Never in any of her studies, and certainly not 

during her immersion in poverty law at Parkdale, had she anticipated that she 

might be spending her days taking houses away from people! 

Disillusionment with the work led her to resign and enrol in the LL.M. 

program at the University of Alberta. However, after completing her course 

work and the research for her thesis, she gave birth to her first son, 

Benjamin. Ever the optimist, she resolved to write her thesis while the baby 

slept. The “baby” is now 28 (and reportedly still sleeping well), but the 

thesis was never completed. 

Fortune then smiled on Andrea once again with a move to Vancouver. 

Here she began writing for Carswell—completing chapters of “Remedies in 

Tort” and the C.E.D. She also did some behind-the-scenes work for Justice 

Lynn Smith on the CIVJI civil jury instructions and filled whatever uncommitted 

minutes that remained with the birth of her second son, Matthew. 

Spending time at home with her children was important, of course, but 

Andrea faced the dilemma that confronts so many women, especially in 

this profession, of also wanting to pursue her demanding career. She 

addressed that by doing locums for a Richmond lawyer (now her brother 

judge, Paul Meyers), teaching courses on the Canadian legal system in the 

Douglas College criminology program and continuing her legal writing. 

Amidst all of this, she had her third child, Jaclyn. 

Jaclyn’s birth was followed by part-time work with Forbes and Boyle, a 

Richmond firm, where Andrea gravitated once again to litigation. As the 

firm did not have a family practice, she began to develop one, expanding it 

over time to include mediation and collaborative family law—a focus she 

found to be particularly rewarding. 

Always eager for new experience, and attracted by the public interest 

aspect of the job, she took a position with the Law Society in 2005—the 

penultimate stop in the journey that would eventually bring her to the 

bench. The Law Society presented a thoroughly different experience. As an 

investigator in the professional conduct department, Andrea’s task was to 

explore and assess complaints against lawyers. The diverse experience she 

had gained in practice became a huge asset in enabling her to quickly get to 

the heart of a complaint and to deal with lawyers with admirable empathy 

and insight. Despite that, it took her some time to appreciate the impact 

that her polite, purposeful letters had upon otherwise confident and capable 

lawyers who could be reduced to a state of anticipatory doom merely by 

the sight of a Law Society envelope. 

Her considerable strengths did not go unnoticed in this environment, 

and within a remarkably short time she was promoted to manager of the


123 

conduct department. A restructuring in 2010 saw her assigned to the even 

broader role of manager of investigations, monitoring and enforcement, a 

position she maintained with great distinction and widespread appreciation 

until her appointment to the bench. 

In response to her growing stature at the Law Society, Andrea was 

recruited to teach a full-term course in ethics at the UBC law school. She 

provided a combination of pragmatism and theory that was much appreciated 

by her students. For all of you from the criminal defence bar who are 

reading this in search of an answer to the question of whether you should 

plead clients before her, some guidance might be taken from the fact that 

her generosity in grading at UBC earned her the moniker “Professor A-B”. 

Andrea is calm and blessed with a generous amount of common sense 

and proportionality. She is also highly principled, but be forewarned that 

in the face of an obvious injustice some of that calmness and proportionality 

might be temporarily suspended. Following completion of her first year 

of law school, her family took a vacation together. Her father had rented a 

vehicle suited to the size of the family and the venture. They were stopped 

at a roadside fruit stand when they heard a bang as the rental vehicle was 

hit. The fruit stand owner came over to act as a mediator, and it was determined 

that her father would drive to his friend’s garage, where the wrongdoer 

would pay for the damage. With the inflated sense of skill that one 

year of law school can unfortunately impart, Andrea went along to act as 

legal counsel. Once at the garage, the wrongdoer began to balk at paying, 

claiming to have no money. Drawing upon her vast legal knowledge, 

Andrea began to explain why he had to pay. An increasingly animated discussion 

ensued, with bits of Arabic and the odd Latin maxim being thrown 

about. A small crowd began to form. While her father was becoming concerned 

over the change of mood, the baby barrister was in full force and 

determined not to back down. In the meantime, her father did some quick 

calculations, determined that the fight reduced to the equivalent of 

roughly $15 and promptly agreed to pay. It apparently took some time 

for Andrea to forgive him for snatching defeat from the jaws of her first 

victory. 

Her experience in criminal law has been more limited than her civil and 

family background, but she is not altogether without previous exposure to 

criminals. As a teenager, she biked to her summer job at a day camp. At the 

end of the first day, with that feeling of initial disbelief which is then followed 

by a sense of immense violation, she realized that her bicycle had 

been stolen. When asked why she hadn’t locked it, she said ingenuously 

that she thought crooks would prefer the challenge of taking one that was


THE ADVOCATE 

locked. It is fair to say that her estimation of the sophistication of criminals 

has changed somewhat since then. 

So what’s she like, truly and fundamentally? We need judges whose 

engagement in life has provided exposure to human frailty, theirs and others’ 

alike; who balance compassion and mercy with respect for the rule of 

law; and, above all, who bring insight and wisdom to the difficult tasks of 

weighing character and, ultimately, justice. Andrea embodies those traits in 

abundance. She will be an enduring testimonial to the wisdom of those who 

selected her. 

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125 

NEW BOOKS 

AND MEDIA 

By R.C. Tino Bella* 

Bring Me One of Everything, by Leslie Hall Pinder. Marblehead, MA: Grey 

Swan Press, 2012. Paperback; 235 pages. $16.95. 

Reviewed by David Roberts, Q.C. 

The page of this book that hosts the ISBN number also contains the familiar 

disclaimer: 

This book is a work of fiction. Names, characters, places and incidents 

are products of the author’s imagination or are used fictitiously. Any 

resemblance to actual events, locales or persons living or dead, is entirely 

coincidental. 

This is the usual defence against actions for libel. The clue to the truth 

lies in the phrase “or are used fictitiously”. That furtive phrase is not typically 

found in the standard weasel disclaimer. This book is about Wilson 

Duff, the distinguished British Columbia anthropologist, professor and 

museum curator, and about the culture of what, in the time about which 

this book is written, was known as the Queen Charlotte Islands. It is specifically 

about the village of Ninstints, the magical heart of Haida culture, now 

a world heritage site and justly so designated. Ninstints is the modern 

name, bestowed by the fur traders in the 18th century. It is more properly 

known by its Haida name, SGang Gwaay. 

The author is a member of the bar of British Columbia. For many years 

she practised in Vancouver, a practice that mainly involved native land 

claims. So she knows of what she writes. 

Duff is given the name Austin Hart in the book. Other well-known actors 

in the cultural history of British Columbia are given walk-on parts and stage 

names: Bill Reid and his French wife, for two, are thinly disguised with fictitious 

names; Charles Edenshaw, the famous Haida carver, though he died


THE ADVOCATE 

in 1920, maintains a ghostly influence in the plot; and Hilary Stewart, the 

founder of the Archaeological Society of B.C., as well as those who produced 

the opera Beyond Eden in Vancouver in 2010, are all “used fictitiously” in the 

novel. 

Bring Me One of Everything is the tale of the felling of the totem poles at 

Ninstints in 1957, not prompting much outcry at the time but promoting 

much disapproval and finger wagging as the years wore on. Wilson Duff was 

the curator of anthropology at the provincial museum in Victoria from 1950 

to 1965 and professor of anthropology at UBC from 1965 until his death, by 

his own hand, in 1976. 

Duff and Reid journeyed to Ninstints with what was, in truth, a logging 

crew. Their chainsaws cut down the totem poles and, even more desecrating, 

the mortuary poles, sawed them into lengths suitable for transportation 

and, after reassembly, installed them in museums in Victoria, Ottawa and 

Vancouver. Some poles were never reassembled and remain in the cellar. 

The narrator of the tale, Alicia Purcell, is a successful author and publisher 

who is retained by the composer to write the libretto of an opera 

about the clear-cutting of the poles. The novel is really three stories cleverly 

intertwined: the story of the man who felled the poles and the mystery 

of his suicide; the story of the fractious relationship between Alicia and her 

brittle mother, whose illegitimate daughter she is; and the story of the 

development of the opera about the anthropologist and the poles. Haunting 

the tale all the way through is the mystery of who Alicia’s father is: a secret 

kept by the mother and only unveiled in an off-hand comment as she lies 

on her deathbed. 

Bring Me One of Everything is beautifully written, the product of a superior 

literary intellect. It ranks up there with the work of Gabrielle Roy and 

Margaret Laurence and is worth reading just for the sheer joy of the author’s 

literary talent. The three plots are neatly and intricately woven together 

and create a remarkable page-turner. 

The difficult relationship between Alicia and her widowed mother is 

developed in a way that could only be done by someone familiar with the 

difficulties that sometimes beset mother-daughter relationships. Pinder 

paints the character of the mother with a delicate brush. 

The tale of the desecration of the totem poles is well known to anyone 

familiar with Haida Gwaii, but Pinder explores the competing philosophies 

with some care. The issue is whether one should try to preserve the poles, 

either in situ or by removing them to museums, or leave them to disintegrate, 

eventually collapsing and rotting on the ground. There is no clear 

answer to this conundrum. It depends on your point of view. Some years


127 

ago, on one of our several journeys to Haida Gwaii, I fell into conversation 

with the watchman at Ninstints. I remarked on the fact that a number of the 

poles were in poor shape and a few lay on the ground. I let drop the incautious 

remark that the Haida really ought to take better care of such priceless 

artifacts. Wonnegon, the watchman, gave me a disdainful look and 

launched into a gentle lecture on the subject. The gist of his philosophy was 

that man is born, grows up, matures, spends a lifetime working and living, 

ages, falls into decay and at last dies. So it is, he said, with the poles. It is 

their destiny, like all things. All things, he emphasized: they are doomed to 

thin away into insignificance and oblivion. It all depends on your point of 

view. Ashes to ashes. Dust to dust. 

The plot of the writing of the opera is developed with great sophistication. 

Alicia’s journeys to interview all the people who had known the anthropologist 

and all of whom had struggled to unearth the reason for his unpredicted 

suicide is a tale of a psychological enigma. It remains unsolved, just as the 

reason for Wilson Duff’s suicide remains unsolved today, for he left no death 

note behind and his death by his own hand took all his acquaintances and 

his family by surprise. There appeared to be no reason for it. A theory is 

developed that Hart (or Duff) became increasingly eccentric if not actually 

psychologically disturbed and that he killed himself in the hope of being 

reincarnated as Shawcross, the carver. Hart’s journals, which Alicia manages 

to unearth in the provincial archives, have reference to Shawcross’s own suicide. 

In fact Edenshaw himself committed suicide in 1920. 

There are two minor sub-plots. One, running through the narrative like a 

graceful countermelody, is the tale of two stone masks used in ritual dancing. 

One mask has eyes through which the dancer sees; the other is blind. 

One fits over the other. The masks are part of the famous mythical Haida 

story “Raven Steals the Light”. Oddly, neither mask is Haida. The blind mask 

was collected from the Tsimpshian village of Kitkatla and the sighted mask 

from Metlakatla. Austin Hart is obsessed with the task of bringing the masks 

together, as one is in Paris, and although the French do lend it briefly, they 

won’t give it up at any price. The other mask and a replica of its mate can be 

seen now in the Museum of Civilization in Ottawa. The other sub-plot has to 

do with a Haida rattle that has gone missing. This rattle, carved in the form 

of a raven, is in fact now to be found in the Museum of Anthropology at UBC. 

Bring Me One of Everything gets its title from instructions given by missionaries 

to the Haida in the 19th century. They were bent on collecting 

artifacts, some for their own collections, others to sell. In itself this creates 

a little window on the witless arrogance with which the white man has 

treated the natives of this country. We are still at it.


THE ADVOCATE 

[ 

WHAT IS LAW? 

I’ll give you my answer, and it is very simple: The law is the 

accumulation of rules, enforceable in the courts, incorporating the ideals 

of right and justice of the community for the time being. 

—F.C. Cronkite 

[


129 

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ADVOCATE 

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THE ADVOCATE


131 

LETTERS TO 

THE EDITOR 


Dear Sir, 

Re: New Books & Media 

(2013) 71 Advocate 931 

I was most pleased to read the 

review of P.W. Bridgman’s collection 

of short stories in the November 

2013 Advocate. Roberta Rich, 

whose own work is positively 

assessed in the same issue, provides 

the insight of a successful 

author to good effect. 

The short story has long been 

undervalued, in my opinion. One 

hopes that the vault of Alice Munro 

to Nobel limelight may initiate a 

welcome change. The attention of 

the Advocate may not have the 

same international impact [Says 

who? We’re under new management! 

—Ed.], but it serves to bring focus 

and no doubt encouragement to a 

skilled and subtly nuanced practitioner 

of this lapidary-like art. 

Yours truly, 

Michael G. Coleman 

Duncan 

t t t t t 

Dear Sir, 

Has the time not come for 

reforming the procedure relating 

to indictable offences? Is it still 

necessary to have preliminary 

inquiries? 

Our current system of preliminary 

inquiries, followed by trials 

in the superior courts, has its origins 

in the days when neither prosecutors 

nor magistrates had legal 

training and when the Crown was 

under no obligation to disclose its 

case to the defence before the hearing 

commenced. It enabled the 

defence to know what case it had to 

meet in the superior court, and, 

theoretically, enabled the magistrate 

to dismiss a case without 

merit. 

Those considerations no longer 

apply. 

Preliminary inquiries greatly 

delay the conclusion of proceedings. 

They cause both the accused 

and the witnesses for the prosecution 

unnecessary stress, and add


THE ADVOCATE 

greatly to the cost of both the prosecution 

and the defence. They 

ought to be abolished. 

All trials should take place in the 

Provincial Court, except where the 

Crown seeks a punishment or the 

law requires a punishment in 

excess of two years. In such cases 

the accused should have the option 

of being tried by a superior court 

and jury or by a provincial court, 

no matter what the defence or the 

maximum penalty, and if s/he 

chooses a provincial court trial the 

latter court should have the same 

sentencing jurisdiction as a superior 

court. S/he should also have 

the right to plead guilty in the 

provincial court even if a sentence 

in excess of two years applies or is 

sought, including life imprisonment 

for murder. 

All trials in the superior court 

should be before a judge and jury. 

Such reforms would greatly 

reduce costs, expedite proceedings 

and reduce stress on the part of the 

accused and the witnesses for the 

Crown. 

Yours truly, 

Jakob S. de Villiers, Q.C. 

Victoria 

Dear Sir, 

Re: Legal Anecdotes & Miscellanea 

(2013) 71 Advocate 943 

I just read with great interest 

your fine article on the Beatles litigation. 

Well done! I expect that 

there is a book to be written about 

the perils of Paul in the courts. My 

sons have a Berlin-based indie 

band, Rooftop Runners, which has 

played “in the seedy part of Hamburg”, 

i.e., Die Reeperbahn. They 

are starting out by releasing a CD 

in Germany-Austria-Switzerland 

through Motor Records in Berlin. 

So I am sending your article to the 

boys as a cautionary tale. 

Yours truly, 

A. Daniel G. MacIsaac 

Victoria 

Tell the boys to be sure to “Mach 

Shau!” – Ed. 

Dear Sir, 

Re: Entre Nous 

(2013) 71 Advocate 809 and 

“Another Association with 

John Diefenbaker” (2013) 71 

Advocate 833 

Before a bit of office time this 

Saturday morning I was at Starbucks 

with a coffee, a cheese bagel 

and the November issue of the 

Advocate. The editorial is timely, 

informative and balanced, but the 

pièce de résistance is Tom Berger’s 

article on Dief. Reading it, I didn’t 

want it to end—and not only 

because I would then have to head 

to the office. I have no idea how 

many honours Mr. Berger has collected, 

but he deserves more. 

Yours truly, 

Alan M. Ross 

Vancouver


133 

GRUMBLES 


Dear Sir, 

Re: Trials of Prisoner Transport 

As a formerly practising criminal 

defence lawyer and now an incarcerated 

inmate, I have perhaps a 

more personal acquaintance with 

in-custody travel than many. I have 

seen some of my fellow inmates 

taken from the Fraser Regional Correctional 

Centre (“FRCC”) to 222 

Main Street in Vancouver so that 

they can appear for an adjournment, 

or confirm a date or even just 

sign documents. There are video 

conference facilities at FRCC, and 

postal service is adequate as well. To 

have a client transported in person 

to Vancouver without giving a video 

appearance or postal service serious 

consideration is a waste of resources 

and a heavy burden upon the client. 

Let me tell you of the specifics of a 

recent court date for a fellow 

inmate. 

Wednesday, October 16, 2013: 

4:10 a.m. – Woken up by the 

guard; getting dressed and 

brushing teeth in the dark while 

trying not to disturb cellmate. 

4:30 a.m. – Leave living unit and 

go to records holding cells (this 

is a concrete room). 

5:15 a.m. – Loaded onto a bus to 

travel to North Fraser Pre Trial 

Centre (“NFPTC”); the inmate 

is handcuffed, shackled, sitting 

in a small cage shoulder-toshoulder 

with other inmates. It 

is a cold ride. 

5:45 a.m. – Arrive at NFPTC, 

unload and into another holding 

cell; the shackles hurt when trying 

to get off the transport; use of 

the washroom in the corner of 

the holding cell is in front of 

everyone else. 

7:00 a.m. – A breakfast of a muffin, 

peanut butter and jam, a 

cup of cereal and a cup of milk 

is provided. 

8:00 a.m. – Handcuffed and 

shackled again, boarding the 

transport to travel to 222 Main 

Street.


THE ADVOCATE 

9:00 a.m. – Arrive at 222 Main 

Street and unload into holding 

cells. 

9:45 a.m. – Meeting with lawyer 

in meeting room. Speak for 10 

minutes and sign two documents, 

then return to a holding 

cell (a 5 x 8–foot room with two 

other prisoners in it. No court 

appearance occurs. 

12:45 p.m. – Provided with 

lunch, being 2 sandwiches, a 

juice and an orange; consumed 

while sitting in the holding tank; 

bathroom facilities are in the 

corner of the room with almost 

no privacy. 

3:30 p.m. – Enter transport, 

handcuffed and shackled to 

return to NFPTC; this departure 

time can vary between 3:30 p.m. 

and 6 p.m., depending upon 

when court concludes. 

4:30 p.m. – Arrive at NFPTC, 

then sit in holding tank. 

8:00 p.m. – Board transport, 

again handcuffed and shackled 

to go to FRCC. 

8:30 p.m. – Arrive at FRCC; strip 

searched and returned to living 

unit; a frozen meal is provided; 

the meal is so bad that most 

inmates don’t eat it. 

As can be seen, the travel time is 

extensive. In all, this trip to court to 

chat with counsel for 10 minutes 

and sign two documents entailed 

13 hours in various holding cells 

and three hours on prisoner transport 

vehicles (handcuffed, shackled 

and locked in a small cage). 

This is a miserable 16-hour day for 

the inmate. Had counsel instead 

mailed the forms, or made use of 

the video appearance system, the 

inmate might have walked to 

records, made the appearance, and 

been back to the living unit in an 

hour or two at most. 

Please take a moment and think 

about this 16-hour day before making 

scheduling decisions. Your 

client will thank you, or at least 

think less ill of you. 

Dear Sir, 

Respectfully, 

William J. Mastop 

c/o Fraser Regional 

Correctional Centre 

I had occasion to read the March 

edition of the Advocate and in particular 

the Letters to the Editor. I 

perused them immediately after 

reading the obituaries (simply to 

verify that my name is not there). 

As one who has read (and enjoyed) 

every one of Mr. Lecovin’s letters 

to the editor, I am nevertheless disappointed. 

Surely (I know, don’t 

call me “Shirley”) someone else 

must be writing to the Advocate. 

Has the practice of law come to the 

point where no one has time or 

inclination to comment upon the 

various vicissitudes and peculiari-


135 

ties of the practice of law? 1 We 

used to comment upon everything; 

and no letter went without a 

reply from another practitioner 

who disagreed completely with 

whatever point had been taken. 

We vied with each other to see how 

adversarial we could be and how 

much invective we could inject 

into our answers without completely 

offending propriety and 

Gerald Lecovin. For many years, 

there was a lively poisoned pen 

correspondence going on between 

Grant Burnyeat in which they took 

shots at each other’s size, intelligence 

and veracity. This ended 

only because Burnyeat was 

appointed to the bench and it was 

considered unseemly (not by 

them) for a member of the bar and 

a member of the judiciary to attach 

each other so venomously. Now, 

everything is vetted for political 

correctness. One of the videos produced 

by members of the bar in 

the ’50s [sic], had to be withdrawn 

from circulation as it offended 

someone’s sensibilities. 

Thank God (whoever he/she 

may be), for the CBA Senior 

Lawyers Section dinner meetings 

where we can get together and 

recount, without recrimination, 

1 Had “Anonymous” not spent the previous eight months 

so enamoured with the three (!) published letters from 

Gerald J. Lecovin, Q.C. in the 2013 March issue of the 

Advocate, he might also have noticed the published 

letters from T.S. Woods and Oliver Butterfield in that 

same issue. – Ed. 

many of the peccadillos and bonmots 

of our brethren both on and 

off the bench. 

“Anonymous” 

Received on the letterhead of 

Lecovin & Company 

P.S. — As to the issue about the 

wearing of gowns in court, it is 

noteworthy that on the eve of his 

retirement Finch, C.J. acknowledged 

that he had changed his 

opinion. 

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THE ADVOCATE 

[ 

The purpose of the community of lawyers is that ordinary citizens shall 

always have at their disposal the man who can protect them, who can 

stand up before arbitrary power from whatever quarter it may come and 

assert the inalienable rights of the individual to the eternal freedoms. 

—Sir Norman Birkett 

[


137 

LEGAL ANECDOTES 

AND MISCELLANEA 

By D. Michael Bain* 

“Seeking the wellsprings of musical composition—why a composer chooses the 

succession of notes and the harmonies he does—whether it be George Harrison or 

Richard Wagner—is a fascinating inquiry.” 

—Judge Richard Owen, Bright Tunes Music Corp v. Harrisongs Music Ltd. 1 

On December 13, 1973, the United States Senate confirmed 

Richard M. Nixon’s nomination of Richard Owen to a seat on 

the United States District Court for the Southern District of 

New York. 2 Judge Owen, a 1950 graduate of Harvard Law 

School, is also a pianist and published composer of opera and orchestral 

works. In 1955, Owen’s opera Dismissed with Prejudice was the first and only 

opera production ever offered by the New York Bar Association! While practising 

law, Owen composed a number of other works, including art songs 

with titles such as “I Saw a Man Pursuing the Horizon” and “There Were 

Many Who Went in Huddled Procession”. His works extended into the 1980s 

with the operas The Death of the Virgin, Abigail Adams and Tom Sawyer. 

Owen was asked in the early 1980s whether it was feasible, in this complex 

time, to pursue multiple disciplines. He answered: 

If a person is motivated and has the skills, he can have a number of different 

disciplines. But there is more to know today than, say, during Jefferson’s 

time when it was possible to be involved on so many fronts. 

When disciplines compete for your time, it can be quite taxing. 3 

For his part, Owen appears to have been able to combine his interest in 

music with his interest in law. Once a judge, he decided a number of cases 

* D. Michael Bain is the editor of the Advocate. His interest in The Beatles extends into solo careers and ensuing litigation.


THE ADVOCATE 

concerning music and copyright, including one confirming that Béla 

Bartók’s Concerto for Orchestra was a “posthumous” work within the meaning 

of the copyright renewal provision of the U.S. Copyright Act although 

assigned to another during the composer’s lifetime (a divided appellate 

court overturned this decision). 4 It may well have made sense, then, to 

assign Judge Owen to the case of Bright Tunes Music Corp v. Harrisongs 

Music Ltd., in which the plaintiff owner of the song “He’s So Fine” (composed 

by Ronald Mack and recorded by The Chiffons in 1962) sued the 

owner of “My Sweet Lord” (composed and recorded by George Harrison in 

1970) for damages arising from plagiarism and copyright infringement. 

The Chiffons’ “He’s So Fine” had reached number 12 on the U.K. charts in 

June 1963, the same week that The Beatles’ “From Me To You” held the number 

one spot. But it was more than six years later, in December 1969, that 

Harrison (on the road with Delaney & Bonnie and Friends in Copenhagen) 

slipped away from a press conference to vamp away on his guitar and experiment 

alternating the words “Hallelujah” and “Hare Krishna” to pleasing 

melodic effect. “I was inspired to write ‘My Sweet Lord’ by the Edwin 

Hawkins Singers’ version of “Oh Happy Day”, Harrison wrote in 1980: 

I wasn’t consciously aware of the similarity between “He’s So Fine” and 

“My Sweet Lord” when I wrote the song as it was more improvised and 

not so fixed, although when my version of the song came out and started 

to get a lot of airplay people started talking about it and it was then I 

thought “Why didn’t I realize?” It would have been very easy to change a 

note here or there, and not affect the feeling of the record. 5 

Little did Harrison realize that his song dedicated to “raising God consciousness” 

would lead to the slightly less spiritual pursuit of more than two 

decades’ worth of litigation. Bright Tunes filed suit while “My Sweet Lord” 

was in the middle of its 14-week run on the music charts in 1971. Allen 

Klein was acting as Harrison’s manager at the time, 6 and he entered into 

negotiations to try to settle the lawsuit before things got out of hand. Early 

on, Klein suggested that Harrison would be willing to purchase the entire 

Bright Tunes catalogue. These discussions went nowhere. 

Bright Tunes went into receivership (delaying things somewhat) but 

before the matter came to trial, Harrison made his best offer in January 

1976 at $148,000, or 40 per cent of the writer and publisher’s royalties from 

“My Sweet Lord” earned in the United States. He also sought to retain copyright 

in “My Sweet Lord”. The offer, although considered “a good one”, was 

rejected by Bright Tunes. Bright Tunes then suddenly increased its request 

from 50 per cent of the U.S. royalties, with Harrison retaining his own copyright, 

to a demand for 75 per cent of the worldwide recording royalties and 

a surrender of the “My Sweet Lord” copyright.


139 

What Harrison did not know was that his (now former) manager, Klein, 

had entered into discussions with Bright Tunes to purchase Bright Tunes for 

himself. So the counter-offer that came back was based largely on information 

Klein had divulged during his negotiations to purchase Bright Tunes. 

Klein had furnished the plaintiff with information concerning the domestic 

royalties generated by “My Sweet Lord” and his estimate of the overseas 

earnings and present and future value of the copyright. Nevertheless, no 

settlement was reached and the case for the liability portion of the case 

came before Judge Owen. 

The trial was heard February 23–25, 1976 (the last day being Harrison’s 

33rd birthday), with both sides calling expert witnesses. Harrison’s expert 

testified that the motifs were common enough to be in the public domain; 

however, in cross-examination, he confirmed that the combination here 

was so unique that he had never come across another piece of music that 

used this particular sequence. 7 Judge Owen reasoned: 

It is apparent from the extensive colloquy between the Court and Harrison 

covering forty pages in the transcript that neither Harrison nor [Billy] 

Preston [who appears on the recording] were conscious of the fact that 

they were utilizing the “He’s So Fine” theme. However, they in fact were, 

for it is perfectly obvious to the listener that in musical terms, the two 

songs are virtually identical except for one phrase … What happened? I 

conclude the composer, in seeking musical materials to clothe his 

thoughts, was working with various possibilities. As he tried this possibility 

and that there came to the surface of his mind a particular combination 

that pleased him as being one he felt would be appealing to a 

prospective listener; in other words, that this combination of sounds 

would work. Why? Because his subconscious knew it already had worked 

in a song his conscious mind did not remember. Having arrived at this 

pleasing combination of sounds, the recording was made, the lead sheet 

prepared for copyright and the song became an enormous success. Did 

Harrison deliberately use the music of “He’s So Fine”? I do not believe he 

did so deliberately. Nevertheless, it is clear that “My Sweet Lord” is the 

very same song as “He’s So Fine” with different words and Harrison had 

access to “He’s So Fine.” This is under the law, infringement of copyright, 

and is no less so even though subconsciously accomplished. 8 

Harrison lost an appeal, and the matter moved on to an assessment of 

damages. For this analysis the court looked at four principal sources of revenue 

for compositions: performance royalties, sales of sheet music, 

mechanical royalties and the profits of Apple Records Inc., the publisher. 

The performance royalty ($359,794) was easy to calculate, as was the sheet 

music sales figure ($67,675). 

Mechanical royalties involved a nightmare calculation, where the judge 

first noted the amount attributable to the song as a single and as an album 

track on each of All Things Must Pass and The Best of George Harrison. But


THE ADVOCATE 

the court also accepted Bright Tunes’ argument that the enormous success 

of “My Sweet Lord” generated revenue for Harrison’s other compositions on 

All Things Must Pass. The court relied heavily on the amount of American 

airplay received by each song from All Things Must Pass with a corresponding 

percentage assigned to each of the 22 songs on the album. The judge 

eventually concluded that 70 per cent of the total mechanical royalties from 

the single and 50 per cent of the mechanical royalties earned by the album 

were attributable to “My Sweet Lord”. Judge Owen used a different approach 

for The Best of George Harrison since, in his view, that album was not greatly 

enhanced by the inclusion of “My Sweet Lord” and it contained other enormously 

popular songs. In the end he assigned $54,526 from the single, 

$588,188 from All Things Must Pass and $6,877 from The Best of George 

Harrison, for a total of $649,591 in mechanical royalties. 

For Apple Records’ profit, the judge examined the “spread” between the 

manufacturing costs Apple paid Capitol Records and the price at which it 

sold the records. He assigned sums for each album and the single for a further 

total of $1,077,958. 

Having determined that Harrison had not consciously plagiarized “He’s 

So Fine”, the judge then applied the rationale that only three-quarters of the 

success of “My Sweet Lord” could be attributed to “He’s So Fine”. With a few 

other deductions thrown in for good measure, he finally settled upon a 

grand total of $1,599,987 in damages. 

But even here things did not resolve. Before Judge Owen’s decision on 

damages was rendered, in 1978 Klein (using settlement monies he had 

obtained in litigation severing his ties with The Beatles) had actually purchased 

Bright Tunes (including its interest in “He’s So Fine” and the corresponding 

litigation) outright for the sum of $587,000. The purchase was not 

for Harrison, but for Klein’s own company, ABKCO. Thereafter ABCKO 

stepped into the shoes of Bright Tunes in the lawsuit against Harrison. 

Harrison counterclaimed for various breaches of fiduciary duty, seeking 

a constructive trust over the “He’s So Fine” asset acquired by Klein. After 

yet another two-day hearing before Judge Owen, ABKCO was required to 

hold the rights of “He’s So Fine” in trust for Harrison, with those interests 

being transferred to Harrison upon the payment by him of $587,000 plus 

interest to ABKCO. 9 This would allow Klein to “break even” on his purchase 

of Bright Tunes, with Harrison owning a 100 per cent interest in both “He’s 

So Fine” and “My Sweet Lord”. 

Appeals and yet more litigation continued into the 1990s as the parties 

fought about the impact of royalty earnings in foreign jurisdictions and 

competing actions filed in the United Kingdom. 10 It all did, however, even-


141 

tually resolve through settlement for an undisclosed figure. When it was 

over Harrison owned both “My Sweet Lord” and “He’s So Fine”. 

Harrison at one point tried to give “My Sweet Lord” away to make the litigation 

stop—“Just let ’em have it; it doesn’t matter to me,” he explained 

later. His lawyers presumably talked him out of it, nevertheless he summed 

up the litigation experience this way: “As far as I’m concerned, the effect the 

song has had far exceeds any bitching that’s been going on between copyright 

people; it’s just greed and jealousy and all that.” 11 

Hallelujah. Hare Krishna. 

ENDNOTES 

1. Bright Tunes Music Corp v Harrisongs Music Ltd, 420 

F Supp 177 (SDNY, 1976) [Bright Tunes]. 

2. He assumed senior status in September 1989. 

3. “Encounters by George Sturm: Richard Owen”, 

Music Associates of America (undated), online: 

. 

4. See Bartok v Boosey & Hawkes Inc, 523 F 2d 941 

(USCA 2d Cir, 1975). 

5. George Harrison, I Me Mine (New York: Ganga, 

1980) at 176. 

6. See “Legal Anecdotes & Miscellanea” (2013) 72 

Advocate 943. 

7. The experience led Harrison in 1976 to write “This 

Song”, which includes the lines: “This song has nothing 

tricky about it / This song ain’t black or white and 

as far as I know / Don’t infringe on anyone’s copyright 

so … This tune ain’t bad or good and come ever 

what may / My expert tells me it’s okay / As this 

song came to me unknowingly.” 

8. Bright Tunes, supra note 1 at 180. 

9. ABKCO Music Inc v Harrisongs Music Ltd, 508 F 

Supp 798 (SDNY, 1981), aff’d with modification and 

remanded 722 F 2d 988 (2d Cir, 1983). 

10. See ABKCO Music Inc v Harrisongs Music Ltd, 944 

F2d 971 (2d Cir, 1991). 

11. Fred Bronson, The Billboard Book of Number One 

Hits (New York: Billboard Books, 2003) at 1310. 

t t t 

t t


THE ADVOCATE


143 

FROM OUR 

BACK PAGES 

By R.C. Tino Bel 

If you want to know about court attire generally (from Geoffrey 

Chaucer onward), you could not do better than Murray B. Blok’s article 

“A Brief History of Court Attire” (2006) 64 Advocate 65. Mr. Blok 

chronicles the fascinating history of how lawyers and judges came to 

be adorned in gowns and wigs (some indeed became bigwigs). 

The wearing of wigs was, of course, abolished in British Columbia in 1905 

by An Act Further to Amend the Supreme Court Act, S.B.C. 1905, c. 16. Sadly 

there is no Hansard to record exactly how lively the debate over the issue 

became. There is some evidence, though, that it did become somewhat spirited. 

And so we thought that we could share two articles previously published 

in the Advocate on the topic. 

The next time you are asked whether you wear a wig to court (and to be 

honest, it is surprising how many people do ask this question), you need 

not get your knickers in a knot or indeed flip your wig. Instead, you can 

recount the entire history of court attire in British Columbia. You can regale 

whoever is inquiring as to the nuances of the debate that led to the prohibition 

on wigs in this province. And then you can refer them to the two articles 

reproduced here, from 1960 and 1984. After that you’ll probably 

wonder why no one invites you to parties. 

The articles appear on pages 144–148. 

t t t 

t t


THE ADVOCATE 

OFF WITH THE WIGS! 

By James Morton* 

Down “ 

with the wigamore, down with ’em rarely,” might well 

have been the theme song of Stuart Henderson when, over 

half a century ago, the likeable lawyer introduced in the B.C. 

Legislature his bill for the removal of wigs from the heads of 

judges and lawyers in B.C. 

In spite of so surprising a move, or perhaps because of it, the debate 

was short and the bill soon passed on a mixed vote of Liberals and 

Conservatives. 

The division of the House on the bill was queerly assorted. Premier Sir 

Richard McBride voted for it, some said they thought because of his plentiful 

supply of grey, curly hair and that he had no need of a wig. 

On the other hand, J.A. Macdonald (afterwards to become the first Chief 

Justice of the B.C. Appeal Court) voted against it. The great bulk of his Liberal 

followers supported their colleague, who was sometimes in those days 

of the game of euchre, called the left bower of the Opposition leadership, 

with John Oliver as the right bower. There was a good deal of conservatism 

in Macdonald’s makeup and he cared little for radical departures. 

In those days the Liberal Opposition was a strong and threatening force. As 

I remember, they numbered 18 in a house of 42, as against 21 Conservatives; 

two Socialists, J.H. Hawthornthwaite and Parker Williams, and one Independent 

Labor, a man named Davidson who afterwards joined the Socialists. So, 

with the almost solid support of the Liberal party, and the number of Conservatives 

who followed McBride, the bill passed with a fair majority. 

While McBride supported the bill his attorney-general, Charlie Wilson, 

opposed it, though in a jocular way, as he read from Carlyle’s “Sartor Resartus” 

his philosophy of clothes, his sarcastic remarks on some of the styles of 

fashion of his time. Like McBride, he seemed to have little need of a wig to 

cover the grey hairs that stood up on his head like quills upon the fretful 

porcupine. Still, he objected to the removal of a wig. I think W.J. Bowser and 

other Conservative lawyers opposed the bill, but the lay majority of the 

party supported it. 

* Former secretary to Premier John Oliver. 

* Published with the kind permission of the Victoria Colonist. 

* Reprinted from (1960) 18 Advocate 209.


145 

The socialist-labor triangle at the end of the Opposition benches 

appeared to treat the whole affair as a joke, and Hawthornthwaite, perhaps 

with the scant ginger thatch of Chief Justice Gordon Hunter in mind, introduced 

an amendment to compel all judges and lawyers to wear red wigs. 

A number of Conservatives supported his bizarre sarcasm. Among them 

was my boss, F.L. Carter-Cotton, owner of the Vancouver News-Advertiser 

and president of the council. This seemed rather out of place in one of such 

grave, Confucian air, but he advised me to make it clear that such support 

was purely in derision of the bill. So the amendment received a small 

vote, as I think the mover expected it would, as a matter never seriously 

considered. 

Among the judges and lawyers I only remember one voice raised in serious 

opposition. It was that of Mr. Justice Archer Martin, even hinting that 

it should be disregarded. But Chief Justice Hunter, who seemed never to 

care whether he appeared on the bench in a black robe or a nightgown, 

ordered that the mandate be obeyed. 

In fact, Mr. Justice Martin, who in turn became a chief justice, was a man 

of seemingly paradoxical character. From his Irish birth he appeared to have 

inherited a streak of rebellion, yet he was the greatest stickler of all for the 

preservation of British customs in the courts. Like an Eldon of old he still 

wrote with a goose quill pen and sanded the letters for drying. He was a dignified 

figure as he sat there in the splendor of wig and robes and resented 

any innovation. 

One day a reporter was standing in the courtroom door as the judge 

passed, and said severely, “Why don’t you remove your hat?” 

The reporter said that his hat went down to his knees and his heart to his 

boots under the withering rebuke. Yet it was reserved to Mr. Justice Martin 

to return to his ancient glory in one way, since as a judge of the Exchequer 

Court, which is under federal jurisdiction, the wig always remained on his 

head in dealing with such cases. 

I have sometimes heard the removal of the wigs attributed to the erratic 

Joseph Martin, but I know positively that Stuart Henderson was the mover 

of the bill, as I was in the press gallery at the time. 

Well, Martin and Henderson have long since passed from the scene, and 

now after over half a century of trial, I doubt whether any of our judges and 

lawyers today would wish to return to the bob-tailed, curly peruke with all 

its cost and discomfort. 

It is said there are fewer bald legal heads as a result of the change. 

t t t 

t t


THE ADVOCATE 

WIGS—WHITE—RED 

“ON THE GREEN”—GONE! 

By Alfred Watts, Q.C. 

Wigs have been around for a while, first worn by Egyptian 

mummies. Nowadays they mostly adorn judges and barristers 

in England. 

British Columbia courts inherited the custom but it proved 

in some quarters not popular, and in 1905 “An Act to amend the Supreme 

Court Act”, Section 112 was repealed and the following section substituted: 

“The wearing or use of the customary or official wig by judges, barristers or 

registrars of the Court during the sitting of this Court is hereby prohibited.” 

Stuart Henderson, later our leading criminal defence lawyer, moved the 

bill which was discussed in Committee of the Whole. He made the point 

that wigs were expensive, uncomfortable and unnecessary. Mr. Henderson’s 

leader, J.A. Macdonald, later Chief Justice, B.C.C.A., opposed Henderson 

in the matter, but Premier McBride supported him probably because his 

own mop of hair, as his portraits testify, required no embellishment. 

Obviously the legislature was out to have a bit of fun on this weighty subject. 

Charles Wilson, Q.C., then the Attorney-General and later Treasurer of 

the Law Society, quoted from Carlyle’s Sartor Resartus on sumptuary laws 

implying that if people were to lose such articles of clothing bit by bit by local 

laws, one result might be the eventual conduct of trials in the buff. 

In a further flight of fancy Jim Hawthornthwaite, the socialist member 

from Nanaimo, moved to prohibit the wearing of all but red wigs. This 

amendment received tongue-in-cheek support from the Honourable the 

Attorney-General, J.A. Macdonald, and other generally dignified gentlemen. 

Eventually the house became tired of the little game, and the bill was 

passed 17 votes to 13. But, of course, being British Columbia that was not 

the end of it. 

There was a meeting of the Law Society and a resolution passed declaring 

that in the opinion of the members of that Society, notwithstanding the 

Statute, wigs should be retained as part of the court costume. The Benchers 

took up this resolution and wrote a rather ponderous and somewhat ill- 

* Reprinted from (1984) 42 Advocate 405.


147 

advised letter to the Judges of the Supreme Court agreeing with the resolution 

and pointing out that in present situation some judges were wearing 

wigs and some were not and suggesting that such conduct was “unseemly”. 

The Benchers then went on a little further and suggested that the Judges 

consider the question “seriously”. 

This resulted in “wigs on the green” and a letter of April 4, 1904, from 

L.G. McPhillips, Q.C., one of the Benchers, to the Secretary advising that 

“Davis” (E.P. Davis, Q.C.), had told him that Hunter and Duff were very 

angry about the resolution and the Benchers letter, particularly in applying 

the word “unseemly” to the Judges and, also, in suggesting that the Judges 

take the matter “seriously”. 

For once the Honourable Mr. Justice Martin was in tandem with the 

Benchers; he writing to the Honourable the Attorney-General 17 March, 

1905 advising of the concern of the profession and the Benchers and 

expressing himself in part as follows: 

Seeing that this motion seeks to curtail the personal liberty of the Judges 

to wear their “customary” and time-honoured Court apparel, I beg to formally 

protest against it, not only on the grounds that Judges being Federal 

Officials exercising jurisdiction in the Provincial Courts (except the 

Admiralty Court which is Federal) are not subject to such personal supervision, 

but also because there is no precedent from such legislation affecting 

the courts in the parliamentary annals of our country. Personally I 

feel that to even formally propose such personal legislation is at once an 

indignity to the Bench and a reflection upon the proposer. I had thought 

that sumptuary legislation had disappeared some centuries ago with the 

Blue Laws of New England, which are always cited as odious examples of 

abhorrent legislation which sought to restrain personal liberty even in 

the matter of apparel. 

Mr. Justice Martin further pointed out that the majority of his brothers 

were in accord with his views and concluded “it is at once most inconsistent 

and anomalous that the profession in Canada should adopt the costume of 

the profession in England and yet discard that part of it which is its most 

distinctive and honoured mark!” 

Unfortunately the “majority” did not include the one man who mattered, 

Chief Justice Hunter, who, apart from a certain lack of enthusiasm for Mr. 

Justice Martin, was not in any event dedicated to the preservation of this 

particular part of court attire. Accordingly the Chief Justice, majority or no, 

exercised his autocratic privilege and ordered that the wigs be discontinued. 

It is related that the following morning eminent counsel, having imbibed 

a brace of pre-trial heart starters, cantered into Court doffing his wig to all 

and sundry. Unfortunately, nearing the Bench, he tripped and crashed 

heavily—ah well!


THE ADVOCATE 

However, Mr. Justice Martin had the last word. It will be noted in the 

above-quoted portion of his letter to the Attorney-General that he mentioned 

the Admiralty Court as a Federal preserve, and as he was the Federal 

Judge for the Exchequer Court he could find no reason to obey Chief Justice 

Hunters edict and continued to wear his wig in Admiralty Court as he 

always had done. 

Certainly the young barrister of today can be thankful for the amendment 

of 1905 which has saved him much expense, not to mention 

discomfort. 

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149 

BENCH 

AND BAR 

January comes from the Latin word for door (ianua) and represents the 

door to the new year. In literature, doors symbolize hope, opportunity, 

passage from one state to another, entrance to new life and initiation. 

The open door can represent both opportunity and liberation; it might 

be seen as an invitation to discovery. A door can signify welcome and even 

beckons one to the promise of something beyond. Our colleagues are forever 

on the move and find themselves opening doors to new opportunities and 

promises. Whether they are carried or thrust over the threshold, we welcome 

them all to the new year and to new digs. Here’s where they are now. 

John Bradbury has joined the Vancouver office of Miller Thomson. He 

was previously with Samis and Company. Anukiran K. Klar moves from 

the Quay Law Centre to Kahn Zack Ehrlich Lithwick in Richmond. After a 

Lawyers who have moved their practices should fax details of their past and present circumstances to Peter Roberts at 

604-669-1620 to ensure an appearance in “Bench & Bar”. Note that we do not report changes in lawyers’ status within their 

firms (from associate to partner, for example) other than in cases where persons formerly articled have been hired as associates. 

WCB & CPP 

G C 

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info@gosalandcompany.com 

DISABILITY APPEALS 

Sarj Gosal 

B.A., LL.B. 

G C 

GOSAL & COMPANY 

BARRISTERS & SOLICITORS 

254 - 12899 76th Ave. Surrey, BC V3W 1E6


THE ADVOCATE 

long stint with the Cohen Commission, Maia Tsurumi rejoins Fasken Martineau 

DuMoulin. Anjili I. Bahadoorsingh moves to Terra Law Corporation 

from Heenan Blaikie. Catherine L. Woods, Q.C., moves her considerable 

talents to Alexander Holburn Beaudin + Lang as associate counsel. She left 

Guild Yule to do so. Nicholas Davies, who has based himself in Whistler 

these past 22 years, has now joined MacLean Law Group. MacLean Law 

Group also welcomes the arrival of Ling Jiang, who moves from Surrey to 

take up his new post. Laura Nichols and Devon Peck recently joined the 

firm of Hungerford Tomyn Lawrenson and Nichols. Jon Buysen returns to 

his old firm Stikeman Elliott after a stint at Lawson Lundell. The Honourable 

Lance Finch returned to Guild Yule on January 1, 2014, and will 

be associate counsel there. 

James M. Bond, Q.C., moves from McMillan to Alexander Holburn 

Beaudin + Lang. Jason Z. Murray joins Eyford Macaulay Shaw & Padmanabhan 

after a stint at Klein Lyons. Chris Beneteau moves to the employment 

law firm of Tevlin Gleadle from Lawson Lundell. Samantha P. 

Simpson moved her practice from North Shore Law to join Jenkins 

Marzban Logan in Vancouver. Kimberley J. Santerre moves from Jenkins 

Marzban Logan into the Interior to join Rush Ihas Hardwick in Kelowna. 

Amber C. Lo moved to Kerfoot, Burroughs & Co. after articling at Farris, 

Vaughan, Wills & Murphy. 

The Advocate regrets misspelling the name of the winner of the 2012 Advocate 

Short Story competition. Allan McDonell, Q.C., is the deserving winner, 

and his story “The Survey” appears at page 845 of the November 2013 

issue. We regret the error and would also like to clarify that Allan formerly 

managed an 80-person litigation group at Russell & DuMoulin. He was not, 

however, managing partner. Lucky him. 

Madam Justice J. Miriam Gropper has been appointed an adjudicator 

under the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, 

c. 165. 

David Perry has been appointed as acting chair of the Hospital Appeal 

Board for six months. He replaces Derek Brindle, Q.C., who served two 

terms as chair. 

Thomas R. Humphries has been reappointed as a member of the Interior 

Patient Quality Review Board until October 15, 2014.


151 

Barbara Buchanan was appointed to the board of the British Columbia Press 

Council on January 1, 2013, for a two-year term. The Press Council is a selfregulatory 

body established in 1983 to promote ethical practices within the 

B.C. newspaper community and to serve as a forum for complaints against 

member newspapers. It created a code of practice for journalists. 

Brenda Edwards has been appointed a member of the board of directors at 

Restorative Justice Society Victoria. 

James D. Kondopulos of Roper Greyell, Kinji G. Bouchier of Lawson Lundell, 

Amandeep Sandhu of McMillan and Teresa Tomchak of Farris, 

Vaughan, Wills & Murphy were all recently named winners in Lexpert’s Rising 

Stars: Leading Lawyers Under 40 competition. They are all now recognized 

as among Canada’s leading lawyers under 40. That will only last so long. 

Don Yule, Q.C., of Guild Yule was awarded the Peter Hyndman award for 

mentoring at the VBA AGM on November 21, 2013. 

Chris Kelsey has been appointed as board chair and vice chair of St. 

Joseph’s General Hospital. St. Joseph’s is governed by a board of 12 

appointed by the owner, the Bishop of Victoria, under authority of the Hospital 

Act and operates under an affiliation agreement with Island Health. 

The Western Canada General Counsel Awards were given out in Calgary on 

November 4, 2013. Salman Manki, corporate counsel with Westport Innovations 

Inc., received the Tomorrow’s Leader Award. Shannon Rogers, 

president and general counsel with Global Relay Communications Inc., 

received the Business Achievement Award. 

On November 8, 2013, the Honourable Christopher E. Hinkson, a judge of 

the Court of Appeal for British Columbia, was appointed Chief Justice of the 

Supreme Court of British Columbia to replace Mr. Justice Robert J. Bauman, 

who was appointed Chief Justice of British Columbia on June 7, 2013. 

The Honourable Richard B.T. Goepel, a judge of the Supreme Court of 

British Columbia, was appointed a judge of the Court of Appeal of British 

Columbia to replace Mr. Justice Christopher E. Hinkson whose trajectory 

is outlined above. 

Some time ago, Lesslie Askin challenged the ability of the Honourable 

Shirley Bond to be appointed as Attorney General of British Columbia on


THE ADVOCATE 

the grounds that Ms. Bond was not a member of the B.C. bar. Ms. Askin’s 

petition was dismissed. She appealed and the Court of Appeal dismissed her 

appeal, reasoning that when the relevant provincial legislation is considered 

separately and cumulatively, it cannot be said that there is an express 

or necessarily implied requirement that a person appointed to the office of 

the Attorney General be a member of the bar or even be qualified to practise 

law. The Supreme Court of Canada dismissed a leave application on 

November 11, 2013. 

A domestic cat in the Cornish village of Little Treviscoe has been terrorizing 

the neighbourhood by attacking dogs, chasing children and breaking 

into homes. “Shiny” (also nicknamed “Devil Cat”) has even sent some adults 

to hospital. The website Metro reports that “police 

are powerless to do anything because dangerous dog laws do not apply to 

cats”. The owners of Shiny say that they have had no problems with him 

since he was neutered; nevertheless they have reportedly booked Shiny in 

to see an animal psychologist. 

Glenn Gallins, Q.C., and Donald J. Sorochan, Q.C., were jointly awarded 

the CBABC’s highest honour—the Georges A. Goyer Q.C. Memorial Award— 

at the annual CBA Bench & Bar dinner on November 8, 2013. The Georges 

A. Goyer Q.C. Memorial Award, created in 1992, recognizes exceptional 

contributions to the advancement of the law and the legal profession, to 

jurisprudence or to the law in British Columbia. It was established in memory 

of Georges A. Goyer, Q.C., a respected member of the bar, who passed 

away after a courageous battle with cancer. 

In the November issue of the Advocate (page 952), Greg Fabbro was 

reported to have left Dentons to join Terra Law. In fact, he left McCarthy 

Tétrault. The Dentons Fabbro, Jessica Fabbro, remains at Dentons. 

Fabbrolous! 

The Honourable Mr. Justice William Smart has retired from the Supreme 

Court of British Columbia, effective August 31, 2013, and returned to private 

practice. He was appointed to the Supreme Court in January 2007, having 

articled at Tupper, Jonsson and served a stint in the Crown counsel office. 

After a brief time at Braidwood Nuttal, he joined Len Doust, Q.C., and Ken 

Smith, but then in 1988 he and the Honourable Justice Jim Williams (as 

he now is) formed the firm that specialized in a sophisticated criminal practice, 

both for the Crown and the defence.


153 

The Honourable Madam Justice Catherine Ryan retired from the Court of 

Appeal effective September 15, 2013. Madam Justice Ryan articled at 

Boughtons and spent her entire career with the Ministry of the Attorney 

General, in the later stages of which she practised almost exclusively before 

the Court of Appeal. She was appointed to the County Court in 1987 and 

became a Supreme Court Judge with the merger of the two courts. 

The Honourable Madam Justice Jo-Ann Prowse retired from the Court of 

Appeal effective August 31, 2013. Madam Justice Prowse articled at Russell 

and DuMoulin and worked for six months as an associate with that old firm. 

Then she, Hamar Foster and Donald Williamson formed a firm with an 

office in Maple Tree Square, in Gastown. She was appointed to the County 

Court of Vancouver in December 1986. 

In 2012 British Petroleum (“BP”) pleaded guilty to 14 criminal charges, 

including manslaughter and admitted negligence in misreading important 

tests prior to the explosion on its oil rig in the Caribbean, which killed 11 

workers and spilled countless barrels of oil into the sea in 2010. BP has 

already paid $4.5 billion in fines and other penalties and over $42 billion in 

cleanup costs and compensation for victims. Now BP is facing the second 

phase of a civil trial in U.S. Federal Court in New Orleans. The plaintiff is 

the U.S. federal government. The first phase of the trial, which took place 

over two months earlier this year, centred on the issue of whether BP was 

guilty of negligence (already admitted) or gross negligence. Judge Carl J. 

Barbier has not yet ruled on this issue. 

If the judge rules in favour of the American government’s position that 

there was gross negligence and that 4.2 million barrels were spilled, then 

the fines could amount to as much as $18 billion. The negligence, gross or 

otherwise, consists not only in facilitating the explosion in the first place, 

but also in not stemming the flow more quickly. 

BP contends that it was guilty of mere negligence and that only 2.45 million 

barrels were discharged into the sea. Those who know about these things 

maintain that if the worst happens, BP could come close to bankruptcy. 

Now, the gnomes who compile “Bench and Bar” were puzzled that a civil 

action by the federal government against BP could result in fines. Gnomic 

inquiries turned up the fact that some of the claims are being made pursuant 

to the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), which provides for civil 

fines: a minimum of $1 for every barrel spilled through simple negligence to 

$5,300 per barrel if there is a finding of gross negligence. Experts will be 

called to testify about the amount spilled. The trial is expected to become a


THE ADVOCATE 

battle of experts. No doubt, in the dusty back corridors of the New Orleans 

courthouse, settlement negotiations will be surreptitiously conducted. 

One wonders, and the gnomes wonder, why the parties don’t wait until 

the first issue is decided before plowing on with what must be a monumentally 

costly second phase, which might be avoided if the judge finds that BP 

was not grossly negligent. 

This litigation has been bedeviled by accusations of misconduct in the 

administration of the court-supervised claims program. The FBI director, 

one Louis Freeh, has issued a report that found that several members of the 

staff administering the program had taken kickbacks for referrals. So far, 

Judge Barbier has rejected BP’s three separate requests that settlement payments 

be suspended. 

November 15, 2013, saw the annual bencher elections. Re-elected in Vancouver 

were David Mossop, Q.C., Miriam Kresivo, Q.C., Tony Wilson, Herman 

Van Ommen, Q.C., and Maria Morellato, Q.C. Elected for the first 

time were Joseph Arvay, Q.C., Sharon Matthews, Q.C., Jeevyn Dhaliwal, 

Jamie Mclaren Craig, Q.B. Ferris, Elizabeth Rowbotham and A. Cameron 

Ward. In Victoria, Pinder K. Cheema, Q.C., and Dean P.J. Lawton were 

elected. Nancy G. Merrill was re-elected by acclamation in Nanaimo. In 

New Westminster, Philip A. Riddell was re-elected and W. Martin Finch, 

Q.C., was elected. In the Kootenays, Lynal E. Doerksen was re-elected by 

acclamation while Tom Fellhauer had the same fate in the Okanagan district. 

Lee Ongman and Gregory Petrisor were both re-elected in the Cariboo 

district. Last, but by no means least, District No. 8, Prince Rupert, saw a 

hard-fought battle in which Barry Zacharias was re-elected by acclamation. 

Thanks to all who ran for election, whether successful or not. 

Those who toil in the basement of the Advocate office have been keeping a 

watchful eye on developments in the J.P. Morgan, London Whale case. 

Extradition proceedings have been launched against the employees Javier 

Martin-Artajo, now living in his native Spain, and Julien Grout, now in his 

native France. U.S. federal authorities expect to have Martin-Artajo in hand 

soon, but anticipate problems with Grout. France does not generally extradite 

its own citizens. Meanwhile the Justice Department is in settlement 

talks with J.P. Morgan and is seeking $11 billion from the bank over its sale 

of questionable mortgage securities: a separate matter from the Whale case. 

The Advocate supposes that the bank has the resources to fork over such 

large sums in fines, which, presumably, would not be tax deductible. 

As we go to press it is reported that J.P. Morgan has settled the mortgage 

securities fraud for $13.5 billion. Some of this sum is said to be destined to


155 

compensate victims. Well, that’s nice: but how many million victims were 

there? 

Typographical curiosities: # 

Everybody uses this symbol. It is sometimes referred to as a pound sign, but 

more recently a hashtag. It is an abbreviation of Libra Pondo, a pound by 

weight. In medieval England, the “lb” was written with a tilde (like the squiggle 

that appears above the n in señor), which signifies a contraction. Thence 

it was corrupted into # by scribes in a hurry. In English it is also known as a 

comment sign (in programming languages), a cross (in China), a hex (in Singapore 

and Malaysia), an octothorp (or octotherp) and a space (in galley 

proofs). The word “octothorp” first appeared on a 1973 U.S. patent for a telephone 

by Bell Labs, whose engineers claim to have coined the word in 1968. 

The octothorp should not be confused with the musical notation for 

sharp notes. The sharp sign (♯) also has two sets of intersecting parallel 

lines, although these rise from left to right (so as not to clash with the horizontal 

lines of the musical staff). The vertical lines in a sharp are also perfectly 

vertical, whereas in an octothorp they are often slanted. 

Arlene M. Doll, Frank S. Borowicz, Q.C., Thomas G. Lewis and Lisa M. 

Wong have been appointed members of the Mental Health Review Board, 

while Margaret Ostrowski, Q.C., Joan A. Bubbs, Maureen E. Baird, Q.C., 

Wayne N. Plenert, Tiina P. Williams and Oleg H. Tomchenko have all 

been reappointed. Ms. Ostrowski has been designated as chair. 

Richard T. Taylor was reappointed as a director and vice-chair of the British 

Columbia Assessment Authority for a term to October 31, 2016. 

J. Richard W. Hall recently ended his four-year federal government Governor 

in Council appointment. To stay busy, he will be assuming the inaugural 

position of president of the Tulita Land Development Corporation, 

which represents the Sahtu Dene and Metis in the Northwest Territories. 

Tajdin I. Mitha, David J. Handelman and Carrie H. Manarin were all 

reappointed as members of the Employment Assistance Appeal Tribunal. 

Firoz Kassam has been appointed to the Drugs Benefit Council of British 

Columbia for a term ending December 31, 2015. 

The Collaborative Family Separation Professionals of Victoria are presenting 

a collaborative practice training in that city on March 6, 7 and 8, 2014.


THE ADVOCATE 

The training, “Next Steps: Working With the Full Team Approach”, will 

enable participants to adapt a California-style team-based model to the 

unique characteristics of B.C. collaborative practice, including trust building, 

powerful communication strategies, the critical role of case manager 

and dealing with impasse. 

Please contact Devlin Farmer for information regarding the training 

at or visit . 

Cabinet has conferred the honorary title of Queen’s Counsel on the following 

recipients below: 

Robert Tadashi Banno 

Diane Mary Ellen Bell 

Daniel Raymond Bennett 

David James Edward Bilkey 

Daniel William Burnett 

Nicole Marie Byres 

Dale William Darychuk 

James Andrew Dowler 

Lorne Arthur James Dunn 

John Robert Esson 

David Alexander Jardine 

James Wilfred Hogan 

Andrew Brent Kerr 

Jeffrey James Lowe 

Deanna Grace Ludowicz 

William Shawn Maclagan 

Timothy Edmund McGee 

Geoffrey Stuart Moyse 

Kevin Patrick O’Neill 

Robert Michael John D. Orr 

Michael Leslie Pearce 

Dennis Clarke Quinlan 

Elaine Elizabeth Reynolds 

Clark Murray Roberts 

Kerry Lynn Simmons 

Laurence Ralph Stinson 

Michael Tammen 

James Alan Vanstone 

John Ian Gardiner Waddell 

Sandra Joan Watson 

Robert Victor Wickett 

Angela Ruth Westmacott 

The Vancouver Bar Association held its annual general meeting at the Hotel 

Vancouver on November 21, 2013. The election results saw the annual 

change in officers and a slate of newly elected members at large. Richard 

Pearce (Webster Hudson & Coombe LLP) takes over as president, while 

Timothy Hinkson (Guild Yule LLP) assumes the title past president, joining 

a long line of esteemed members of the bench and bar who have held 

this post. Mark Fancourt-Smith (Lawson Lundell LLP) was elected as vice 

president, while Carolyn MacDonald (KPMG Law LLP) was acclaimed as 

secretary-treasurer. 

The six newly elected members at large are Andrew Aguilar (McMillan 

LLP), Aaron Atkinson (Harper Grey LLP), Kerry Burgi (Borden Ladner 

Gervais LLP), Colin Edstrom (Harris & Company LLP), Alexis Omichin-


157 

ski (Hammerberg Lawyers LLP) and Darren Stewart (Fasken Martineau 

DuMoulin LLP). Congratulations to all for successful campaigns. 

Finishing off their mandated terms as members-at-large, in addition to 

Ms. MacDonald and Mr. Fancourt-Smith (both mentioned above), are Sarah 

Batut (Fasken Martineau DuMoulin LLP), Andrew Brine (Harper Grey 

LLP), Stephanie Gutierrez (Fasken Martineau DuMoulin LLP) and 

Nicholas Tsoi (Slater Vecchio LLP). The Vancouver Bar Association is 

indebted to these individuals for their two years of service. 

Also departing from the board in late 2013 were Patrick Cleary (Alexander 

Holburn Beaudin & Lang LLP), the past-past president, and Michael 

Bain (Hamilton Howell Bain & Gould) who, having assumed the reigns of 

this magazine as editor, decided it was time to hang up his hat as secretarytreasurer 

after 10 years of service to the VBA (well shy of the record held by 

his predecessor, Miriam Kresivo, Q.C., who lasted 14 years). 

Amendments to the U.K. Defamation Act, which came into force on January 

1, 2014, deal with a website owner’s liability for defamatory comments 

posted on his or her sites. The new provisions provide that website operators 

have to notify posters of a complaint of defamation. Upon notification, 

authors of the comments have five days to issue a written response outlining 

whether they consent to the removal of the comments from the site. A 

failure to respond places website operators under the obligation to delete 

the comments within 48 hours of that five-day deadline expiring if they are 

to avoid exposure to liability. 

When notifying authors that their comments are subject to defamation 

complaints, website operators would have to conceal the identity of the 

complainant from those authors if such anonymization is sought by the 

complainants. 

In cases where the authors do not consent to the removal of the comments, 

those individuals or businesses are required to inform website operators 

of their name and address and tell the operator whether or not they 

consent to the handing over their details to the complainant. A complainant 

must be informed by the operator within 48 hours of an author’s response 

and of the content of that response. 

Website operators are then required to delete comments from their site 

within two days of receiving a notice of complaint if it has “no means of contacting 

the poster” through a “private electronic communication” channel, 

such as via e-mail. 

If authors who do respond to website operators’ notifications of a complaint 

fail to provide details of their full name and address, the operators are required


THE ADVOCATE 

to remove their comments within two days of that response. If a “reasonable 

website operator” believes that details given by an author are “obviously false”, 

they must also delete the comments within the 48-hour deadline. 

In cases where authors of defamatory comments repost the same or substantially 

similar comments after they have been removed twice before 

from the site, website operators are obliged to remove the comments within 

48 hours of receiving a notice of complaint. 

CALL FOR SUBMISSIONS 

The Commonwealth Judicial Journal (the “CJJ”) is the flagship publication of 

the Commonwealth Magistrates’ and Judges’ Association (the “CMJA”) and 

attracts a readership from magistrates, judges and other legal practitioners 

from around the Commonwealth and beyond. It is published twice annually. 

The CJJ welcomes submissions from judges, masters, barristers and solicitors 

practising in all Commonwealth countries, including Canada, on all 

aspects of the law, particularly those related to the judicial function at the 

domestic, regional and international level as the CMJA membership 

includes judicial officers at all levels from around the Commonwealth. 

Persons wishing more information, including detailed submission guidelines, 

are encouraged to contact Judge Thomas S. Woods—one of the Canadian 

members of the CJJ’s Editorial Board—via the following coordinates: 

By regular mail 

Judge Thomas S. Woods 

Commonwealth Judicial Journal Editorial Board 

c/o Provincial Court of British Columbia 

2620 Mary Hill Road • Port Coquitlam, B.C. V3C 3B2 • CANADA 

By fax 

By e-mail 

604-927-2233 

Thought du Mois: 

“I have walked that long road to freedom. I have tried not to falter; 

I have made missteps along the way. But I have discovered the secret 

that after climbing a great hill, one only finds that there are many 

more hills to climb. I have taken a moment here to rest, to steal a view 

of the glorious vista that surrounds me, to look back on the distance 

I have come. But I can only rest for a moment, for with freedom come 

responsibilities, and I dare not linger, for my long walk is not ended.” 

—Nelson Mandela (1918–2013) 

(Anti-apartheid revolutionary and former President of South Africa)


159 

CONTRIBUTORS 

Marion Allan retired from the bench, rejected retirement and in September 

2013 joined Clark Wilson LLP as associate counsel, where she focuses 

on mediations and arbitrations. She still does not play the piano. 

John Cochrane was called to the B.C. bar in 1960. Now retired, he is a former 

chairman of Chatterton Petrochemical Ltd. of Vancouver and Kalama 

Chemical Inc. of Seattle. He did not rhyme the word “fit” with “acquit.” 

Colin Lachance is the president of CanLII. He obtained his LL.B. from the 

University of Alberta and is a member of both the Law Society of Alberta 

and the Law Society of Upper Canada. He has been involved at the virtual 

intersection of technology law and public policy for some time, having previously 

worked with major telecommunications companies. 

Julie K. Lamb is a litigator at Guild Yule LLP, where she focuses on personal 

injury, professional negligence and medical and dental malpractice claims. 

She has extensive trial and appellate experience but, we suspect, is far more 

interesting than such a statement reveals. Julie has been a friend of our 

cover subject for years and a fan for even longer. 

David Roberts, Q.C., was editor of the Advocate for 29 years and practised 

general litigation for 49 years. He is a constant contributor to these pages 

and a mighty entertaining and knowledgeable dinner companion. We recommend 

that you seek him out for lunch or dinner, or maybe even breakfast 

some time. 

t t t 

t t


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Advocate Jan 2014

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