Keep your practice current

by Fran Hodgkins

The following are brief summaries of several recent Section meetings held throughout the province. More detailed information and available minutes from the Section meetings are accessible online at www.cba.org/bc in Professional Development, for enrolled CBA members.

Criminal Justice – Vancouver
Meeting: September 17, 2008
Speakers: The Honourable Mr. Justice C.E. Hinkson and Nikos Harris (UBC lecturer)
Topic: Tips for Counsel in Criminal Matters and Abuse of Process Remedies

Prefaced by the caveat that he has been a judge for a short period of time and had limited experience in criminal matters as counsel, Mr. Justice Hinkson provided insight into practices by counsel which he finds helpful in criminal matters. These include a decent opening by Crown to help the court follow the evidence; submissions that relate to the essential elements of the offence and say more than is found in the Code annotations; as well as creative submissions containing some reference to potential consequences of the issue at bar. Ascertaining your judge’s background is also important. Counsel’s being prepared for trial is critical, and an economic (wise) use of time in examining witnesses is appreciated. Mr. Harris explained the need of counsel to apply for creative and specific remedies when faced with a s. 7 Charter violation. He reviewed several cases where the ultimate remedy of a judicial stay of proceedings was obtained, but proffered the notion that counsel should pursue other remedies, as well, when dealing with breaches of s. 7: Where the Crown or other state actor has engaged in conduct that diminishes the administration of justice, or the state is responsible for conduct which impacts on the ability of the accused to have a fair trial, such relief should be considered. Members were also provided summaries of Significant Criminal Appellate Cases by Elizabeth Campbell at this meeting.

Real Property – Vancouver
Meeting: September 9, 2008
Speakers: James Taylor, QC Taylor Jordan Chafetz; Ian Smith, Director and Registrar of Land Titles
Topic: Is Mandatory E-filing on the Horizon?

Mr. James Taylor, QC discussed and provided a detailed handout as to why he is opposed to mandatory e-filing. Following Mr. Taylor’s discussion, Mr. Ian Smith was given 20 minutes to discuss why the Land Title Survey Authority thinks mandatory e-filing is a good idea. A lengthy question and answer period ensued in which some lawyers and attendants applauded the efficiency of mandatory e-filing and cautiously favoured moving forward with it, while others were somewhat skeptical of mandatory e-filing and were not totally comfortable that it was reliable. There were some concerns expressed that mandatory e-filing would not work well in large commercial transactions were there are multiple filings and multiple meets amongst agents.

ADR – Okanagan
Meeting: October 16, 2008
Speakers: Grant Hardwick, Al Perry, Cheryl Berry and Robert Groves
Topic: Panel Discussion: Mediation in the Okanagan

A wide-range of mediation topics including the differences in tone between ICBC mediations, family, estate, child protection and commercial mediations were discussed at the dinner meeting in Kelowna. Mediators and counsel need to be aware and sensitive to the type of mediation they are in, because the customs and practices common to each may vary widely. The panel participants also discussed the usefulness of counsel preparing and exchanging briefs before the mediation session. Those mediators who find briefs less helpful rely instead on what the parties identify to be important at the mediation session itself as a means to provide focus. The panel differed in their comments regarding notices to mediate with some pointing to statistics showing the settlement rate for cases involving consensual, as opposed to compulsory mediation is about the same.

Constitutional/Civil Liberties
Meeting: October 2, 2008
Speaker: The Honourable Wally Oppal, QC, Attorney General of British Columbia and Minister responsible for Multiculturalism
Topic: The Unique Role of the Attorney General in our Constitutional Framework

The Honourable Wally Oppal, QC, Attorney General of British Columbia, addressed the Section about the constitutional role of the Attorney General in our system of government. He explained that, while the Attorney General is a politician and a member of the Legislature, he has additional roles that are not shared with his cabinet colleagues. One of the primary roles of the Attorney General is to be the guardian of the rule of law. As well, the Attorney General is the government’s chief legal adviser and ensures that the administration of justice conforms to constitutional principles. The Attorney General advises cabinet as to the legal implications of their decisions in an impartial way. He noted that the Attorney General acts as the holder of the Great Seal, which after being sworn into office, he delivers to the Lieutenant Governor for safe-keeping. As well, the Attorney General must review all proposed legislative instruments to ensure that they are constitutionally valid and in accordance with the principles of natural justice. In British Columbia, since the 1990 Owen Inquiry, there has been a separation between the office of Attorney General’s office and the Criminal Justice Branch. Now, under the Crown Counsel Act, the Criminal Justice Branch reviews and implements prosecutions. However, the Attorney General may provide direction in exceptional cases to the Criminal Justice Branch, such direction being documented in writing and published in the Gazette to ensure transparency. The Attorney General may also appoint a special prosecutor in cases where there is any apprehension of bias. Mr. Oppal noted that he is often asked questions, whether in the Legislature or by the media, about matters that are before the courts. The Attorney General is strictly bound by the principle of sub judiciae and cannot comment on such matters.

Insolvency Law
Meeting: October 28, 2008
Speaker: Alan H. Brown, Partner of Boughton Law Corporation
Topic: Liquidating CCAA’s: Recent Decisions coming out of The Cliffs Over Maple Bay and Pope and Talbot

This Section met for a very topical discussion on what are referred to as “liquidating CCAA’s,” given the recent Court of Appeal decision in Re: The Cliffs Over Maple Bay and various recent decisions in Re: Pope & Talbot. These decisions have highlighted the uncertainty created by the skeletal nature of the Companies Creditors Arrangement Act in terms of its proper application for companies whose operations are not intended to continue beyond the “reorganization.” The Section discussed both the positive and negative sides of the judicial discretion inherent in CCAA proceedings. The Section also discussed the recent amendments to the Bankruptcy and Insolvency Act and the Companies Creditors Arrangement Act, enacted on July 7, 2008.



From left to right: Cheryl Berry, Grant Hardwick, Robert Groves, Al Perry



From left to right: Ron Skolrood, Pamela Murray, Attorney General Wally Oppal, QC and Art Grant



From left to right: Bill Riley, Jennifer Cockbill, Alan Brown, Kimberley Robertson, Bryan Gibbons

This article was published in the December 2008 issue of BarTalk. © 2008 The Canadian Bar Association. All rights reserved.