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.

Wills and Trusts-Okanagan
Gordon MacRae spoke about the complexities involved in determining capacity, the standard of care expected of lawyers, choosing the appropriate planning vehicle and estate planning by Committees.

With respect to the standard of care, Mr. MacRae emphasized it is critical that client interviews be documented to recognize specific indicia of capacity. This includes a person's specific answers to questions, as well as their general demeanor. In determining capacity he added that there is a hierarchy of capacity but that distinctions are difficult to make and that lawyers should be wary of putting emphasis on such hierarchy. Specific tests may be useful where a person is clearly not capable, however, many can be very skilled at hiding capacity. Be suspicious if a client is dull, uncertain, suspicious of others, very happy or unhappy, inattentive, or socially inept. Where there is any doubt about capacity, a medical doctor's opinion can be important but is not determinative.

ADR-Vancouver
Provincial Court Judge Harbans Dhillon discussed the mandatory settlement conference in Small Claims Court and the Court Mediation Practicum Program. She described the "settlement" conference as a misnomer. Although the settlement conference is intended to encourage settlement, it is also intended to allow the presiding judge to paper the file for trial. The latter function involves particularizing the issues and providing directions for disclosure of case law as well as obtaining an estimate of the likely length of trial. During the conference Judge Dhillon tries to identify impediments to settlement including issues with respect to credibility and the quantum of the claim.

Administrative-Victoria
Dr. Sheila Wynn, Deputy Minister of BC's Environmental Assessment Office, spoke to subsection members about the Office's activities under the Environmental Assessment Act. When the Act came into force in 1995 it amalgamated three other processes; the Energy Project Review Process, the Mine Development Assessment Process and the Major Project Review Process. The Act was designed to meet criticisms about lack of consistency. The specific purposes of the Act are:

• to promote sustainability by protecting the environment and fostering a sound economy and social well-being;
• to provide for the thorough, timely and integrated assessment of the environmental, economic, social, cultural, heritage and health effects of reviewable projects;
• to prevent or mitigate adverse effects of reviewable projects;
• to provide an open, accountable and neutrally administered process for the assessment of reviewable projects and referable activities that pertain to the environment or land use;
• to provide for participation, in an assessment under this Act, by the public, proponents, First Nations, municipalities and regional districts, the BC government and its agencies, the Government of Canada and its agencies and BC's neighboring jurisdictions.

Civil Litigation-Vancouver Island
Lyle Harris, author of the CLE publication entitled "Discovery Practice in British Columbia", discussed some of the current issues in discovery practice. Among them he covered the sufficiency of description for lists of documents after the amendment to Rule 26, clinical records, privilege and waiver of privilege. He commented that there is no blanket claim for privilege. The onus is on the party asserting privilege to establish that privilege exists. There is no privilege attached to clinical records. However, clinical records by their nature can be deleted on the grounds of irrelevance, embarrassment or privacy. Mr. Harris gave some examples of waiver of privilege. Having a boyfriend sit in a room with a client is a waiver of privilege as a result of a disclosure to a third party. Privilege can be waived if the court holds it is in the public interest to do so. There is no solicitor-client privilege over documents if counsel is retained for a fraudulent purpose. If a solicitor's affidavit deals with substantive matters, there is case authority for the proposition that privilege is waived. In Hartech v. Stamp privilege was waived as a result of the client blaming the lawyer as a reason for doing something.

Criminal Justice-Vancouver
Don Muldoon, Vince Michaels and Peder Gulbransen, who are regarded as experts in the area of impaired driving law, led a panel discussion highlighting practical issues in impaired driving cases as well as the intricacies of the law in this area. With regard to advice to give the client upon receiving the "midnight call" from the police station, Mr. Muldoon advised lawyers to make sure that the client has privacy. Although the rudimentary minimal advice he gives to clients is that a client is required by law to provide a sample, it is important to ensure that the client exercises his or her right to silence. The client should be reminded that even after speaking with counsel police will often ask questions about drinking patterns and obtain other incriminating evidence after the exercise of the right to counsel has occurred. Mr. Muldoon has experienced situations lately where police are asking for sobriety tests after advice has been given. Lawyers should advise the client that he or she should not participate in any sobriety test. When a client voluntarily participates in sobriety tests after the officer's opinion regarding impairment has been formed, the sobriety tests would likely be admissible for the purpose of trying to prove that the client was impaired.

Okanagan Joint Meeting of Criminal Justice, Family and Real Property CBABC Director of Communications, Caroline Nevin, spoke to Section members about things to remember in dealing with media. Ms. Nevin commented that by understanding the rules by which media operate, lawyers can control their media exposure to get what they want.

News
The reporter's job is to print or air news and not to ferret out the truth as you may perceive it. What is news? News will always meet one or more of the following four criteria: it must be interesting, important, unusual and/or informative. A story is perceived to be of lesser or greater value depending on who it will affect and who may be interested. But how or whether your story gets covered also depends on the day. Something minor may make big headlines on a day when there's little else to report on.

Off The Record
Remember that nothing is off the record. Any interaction with a reporter should be treated as time on the witness stand.

Plain Language
Also, remember that reporters know their job but they don't know yours. The law has its own language and complicated process. It's easy to lose people in legalese. Keep your language simple, pitch it to no more advanced than a high school audience.

Prompt Action
Further, reporters are driven by tight deadlines. This means that if the story is going to run with something from you in it you must returns calls promptly.

Not The Enemy
Finally, reporters are not the enemy. Unless you know for sure that a reporter has been truly lousy at reporting stories in the past or has an established history of bias against your issue, there is nothing to fear.

Immigration
Criminal lawyer David Martin spoke about the proceeds of crime legislation. A lawyer who accepts money or property from a client knowing or being willfully blind to the fact that it is proceeds of crime may be charged with offences of possession or laundering. Due diligence is expected of a lawyer. Furthermore, a lawyer who discovers that funds held in trust are the proceeds of crime should retain counsel, release the funds only on court order and maintain confidentiality. There is a legal fee exemption allowing legal fees to be exempt from forfeiture under the proceeds of crime legislation.

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

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