Canadian Lawyer

October 2020

The most widely read magazine for Canadian lawyers

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UPFRONT 10 www.canadianlawyermag.com NEWS BRIEFS Judge shortage in B.C. a concern for Supreme Court chief justice As the number of bumped hearings rises, Covid-19 has also contributed to case backlog THE B.C. Supreme Court is facing a judge shortage that could lead to delays, says Chief Justice Christopher Hinkson, with the Covid-19 pandemic making it even more difficult to catch up on hearing cases, especially civil matters. "There hasn't been any real increase in the number of judges since the mid-1990s," says Hinkson, despite a growing population in B.C. Hinkson says the increase in "bumped hear- ings" — hearings scheduled for which there is no available judge — has increased dramati- cally, to 218 in 2017 from 69 in 2008 and rising to 281 in 2019. The Covid-19 pandemic is also having an impact, Hinkson says, noting that the court had 1,114 trials, including criminal cases, cancelled during the time when courtrooms were closed in the spring. While many have been rebooked, a backlog persists. The B.C. Supreme Court has had a "chronic problem" with outstanding vacancies at any given time. It got as high as 14 vacancies, about 15 per cent of the court. The average judge per capita in B.C. is 43,000, the lowest in Canada, which has a national average of one per 31,000. Until recently, the B.C. Supreme Court Act provided for 90 puisne judges, plus a chief justice and an associate chief justice, which would bring the total to 92. Hinkson says the federal government has not filled the 90th puisne position, leaving three vacancies recog- nized by Ottawa. Earlier this summer, the B.C. govern- Alberta to open more drug treatment courts Alberta will open new drug treatment courts in several cities, offering judicially supervised addiction treatment to those who commit non-violent offences. The province currently runs drug treatment courts in Edmonton and Calgary. It plans to open courts in Medicine Hat, Red Deer and Lethbridge, as well as two more in as-yet undecided locations. Part of the $20-million investment will also be used to double the capacity of the Edmonton and Calgary treatment courts. Provincial Court Chief Judge Derek G. Redman said the drug treatment courts would help in rehabilitating offenders. Nunavut mandatory minimum sentence for discharging firearm constitutional The Nunavut Court of Appeal has upheld the constitutionality of the mandatory minimum sentence for intentionally discharging a firearm. The two appeals involved whether s. 244.2(3)(b) of the Criminal Code imposing the mandatory minimum violates s. 12 of the Canadian Charter of Rights and Freedoms. In both cases, the court determined the four-year sentence was not grossly disproportionate for the offence. The appeal court had also called attention to the intersection of Canadian criminal law and Inuit Qaujimajatuqangit, a body of knowledge and cultural insights of Inuit on nature, humans and animals. Modified Haida test on Crown's duty to consult rejected The B.C. Court of Appeal rejected a proposed modification of the Crown's duty to consult on overlapping geographic areas where two different First Nations assert treaty rights. In Gamlaxyeltxw v. British Columbia, a chambers judge dismissed the plaintiff's petition but suggested modifying the "Haida Test" by not imposing a duty to consult if imposing it would go against the Crown's duties under a treaty executed with Indigenous peoples. The appeal court disagreed with the chambers judge's change, stating that the test is flexible enough to address the issues of this case. B.C., Alberta look to extend remote witnessing of wills B.C. has introduced amendments to legislation possibly permitting remote witnessing of wills beyond the COVID-19 pandemic. Bill 21 builds upon a temporary Ministerial Order allowing electronic witnessing during the pandemic. Parties involved can use remote witnessing by being in each other's electronic presence, meaning they are communicating simultaneously via audio-visual technology as if they are in the same place. Assistive technology may be used for those who are visually or hearing impaired. In Alberta, temporary accommodation for remote signing and witnessing of wills has been extended until Aug. 15, 2022. B.C.'s new vaping regulations may breach Charter rights The Canadian Constitution Foundation says B.C.'s new vaping legislation may violate the Canadian Charter of Rights and Freedoms because the nicotine ceiling and flavour restriction potentially make vaping products less attractive for those who want to quit smoking, thereby denying their rights to life, liberty and security of the person. The proposed law imposes a limit on nicotine concentrations, requires plain packaging, bans the sale of flavoured vapour products except in age-restricted specialty stores, restricts advertising in spaces where youth may be present and requires a skull-and- crossbones health hazard symbol. WEST UPDATE

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