by Shelley Bentley

There are 71 BC Branch provincial Sections. These Sections play a vital role in keeping members up-to-date on changes in the law and aware of legal and political issues affecting a given area of practice. They are the main resource utilized by the BC Branch in legislative review, law reform initiatives and in responding to matters affecting the profession. What follows is a sample of the recent activities of many Sections.

ADR - Okanagan
Rules of conduct for collaborative lawyers in the family law context were discussed at a recent meeting. All lawyers who engage in collaborative law regardless of whether every aspect of their practice is collaborative must follow these rules. Here is a sampling of the rules:

• Lawyers should use their best efforts to ensure that their clients are making a full disclosure. If the client refuses to a make full disclosure the lawyer must withdraw from representation;
• Lawyers must minimize or mitigate imbalances of power;
• They must use their best efforts to retain a matter in the collaborative process, if appropriate, and must never threaten to withdraw from the collaborative process for tactical reasons;
• They must make every effort to conduct a case in a timely and efficient manner and take responsibility for an orderly and productive decision-making process;
• The welfare of children is paramount. Collaborative lawyers must not interview minors. However, with the agreement of the parties and lawyers the minors may participate in some of the four-way conferences, if appropriate; and
• Lawyers must do nothing to increase the emotional level of the dispute and do everything to lower it.

Administrative - Victoria
Guy McDannold, counsel for the City of Nanaimo, discussed the Supreme Court of Canada case of Rascal Trucking. The important issues centred on the City’s jurisdiction to pass a resolution declaring a trucking company’s actions in dumping soil on its own leased lot a “nuisance” and the standard for review of the City’s decision. The BC Court of Appeal took a narrow approach to the case and held that the Municipality could only exercise those powers expressly conferred by statute, those powers necessarily or fairly implied by the expressed power in the statute, and those indispensable powers essential and not merely convenient to the effectuation of the purposes of the corporation. The S.C.C. took a broader approach and decided that it was not appropriate to use rules of statutory interpretation to restrict the scope of the Council’s jurisdiction. It was held that the Council had the jurisdiction to declare the pile of dirt a nuisance and to order its removal. With respect to the standard of review it was held that decisions by municipalities involving a question of law are to be reviewed on the standard of correctness. However, even though the decision makers here were elected officials with no particular expertise, the court held that in reviewing intra vires decisions, deference would be accorded unless the particular decision was patently unreasonable. In endorsing this deferential stance, the Court specifically recognized that the decisions of Council are to a large extent motivated by political considerations and not by an entirely impartial application of expertise.

Criminal Justice - Nanaimo
Corporal Thompson outlined the important features of the new DNA Identification Act and consequential amendments to the Criminal Code, most of which came into effect on June 30, 2000. These provisions add to the limited 1995 Criminal Code provisions establishing the conditions and procedure to be followed for obtaining a warrant to collect samples for forensic analysis from those suspected of having committed certain serious offences.

In addition to providing for the taking of bodily substances when suspected of a crime, the new legislation requires samples to be taken from those convicted of certain primary offences. The sample results are placed in a DNA bank and can only be used for the purpose of comparison to a crime scene sample. The primary offences consist mainly of the most serious and violent offences including incest, murder, manslaughter, assault with a weapon, sexual assault. For “secondary” offences a DNA sample may be ordered by a court if it is in the interests of public safety. Secondary offences include breaking and entering with intent, arson, assaulting a peace officer, robbery and hostage taking, among others. There are three possible sample sources; blood (by finger prick), oral swab or hair. Each method has a different success rate for providing sufficient material to make a proper analysis. Police are empowered to use as much force as necessary in order to obtain a sample.

Criminal Justice - Victoria
The new Provincial Court Criminal Case Flow Management Rules and the growing strength of the opposition to these rules were discussed. All Section members in attendance at a recent meeting voted to take the position that the rules are unworkable and contrary to the public interest and should be abolished.

Environmental and Natural Resources (Forestry) (Joint Meeting)
Craig Godsoe of Borden Ladner Gervais discussed the potential impact of Bill C-33, the Species at Risk Act. The Act provides for the establishment of a national endangered species listing process by the Committee on the Status of Endangered Wildlife in Canada, with the final listing determination made by Cabinet. Once a species is listed, prohibitions apply to prevent activities that kill or harm the species or destroy or damage its “residence”. Cabinet may also designate and protect critical habitat. This may include a species’ hunting grounds, food supply and sheltered areas in addition to its residence. The Act will apply to all federal lands, harbours, Indian reserves, the NWT, provincial lands where the provincial government requests it and provincial and private lands designated as critical habitat where the Federal government determines provincial protections are inadequate.

Securities
Guest Speaker, Steve Wilson, Executive Director of the BC Securities Commission, described changes in securities markets in recent years. Globalization, advancing technology, demographic shifts have transformed securities markets. Constantly evolving financial products and services, constantly evolving new businesses needing regulation and the pace with which securities legislation is being rendered obsolete have changed the face of the market. This has caused the Commission to rethink its approach to securities regulation generally and to evolve from a government bureaucracy to a customer service organization.

Youth Justice
AG Ministry lawyer, Barbara Jackson, reviewed the highlights of the pending Youth Justice Act. This new Act will allow more flexibility for the Provinces to choose options that best suit the systems in place and will reflect the basic principle that different kinds of crime should be addressed in different ways. In particular, non-violent crime should be treated differently than violent crime. The changes will also provide a broader, more comprehensive approach to youth justice that looks beyond the justice system for solutions to youth crime.

Shelley Bentley is in-house counsel at the Loewen Group Inc.

This article was published in the October 2000 issue of BarTalk. © 2000 The Canadian Bar Association. All rights reserved.