BarTalk June 2005
Volume 17, Number 3

by Shelley Bentley

The CBABC sponsors 73 Sections which play a vital role in keeping members informed both on changes in the law, and legal and political issues affecting a given area of practice. They are the main resource utilized by the CBABC in legislative review, law reform initiatives and in responding to matters affecting the profession. What follows is a sample of the recent activities of some Sections.

Criminal Justice-Okanagan
Guest speaker Ed Pedersen examined the report on wrongful convictions by the Committee of federal, provincial and territorial heads of prosecution. The Committee classified the major problem areas that have resulted in wrongful convictions. These included:

• eyewitness problems;
• defence counsel incompetence;
• malicious prosecution (including lack of disclosure);
• problems with expert testimony; and
• false confessions.

The Committee made the following recommendations to assist in prevention:

Eyewitnesses: Have an independent lineup and make sure there is no knowledge of the case or of witnesses by the parties involved. The Crown should make sure that the witnesses are never interviewed collectively, never coached and never told whether the identification was right or wrong. The Crown should be wary of prosecuting with a single witness. A third party witness should be present for witness interviews.

Informants: In custody informers should be rigorously prosecuted if they are lying. All justice professionals should be educated on policies, procedures and dangers surrounding reliance on in custody informers. The Crown should avoid using them unless absolutely necessary. Any agreement with in custody informers must be in writing.

Expert Testimony: Care should be taken to ensure that the expert is qualified to give the opinion. Sometimes experts feel that they need to be biased and to consider who is paying them. Be satisfied that the evidence is being used for its proper purpose.

False Confessions: Standards for interviewing should be implemented to enhance reliability. All interviews should be audio/video recorded. Police should be trained for taking confessions and be educated about why people confess.

Education: Educate police, crown, defence, forensic scientists and hold a national forum on wrongfully convicted persons.

Elder Law
Gerontologist and health care consultant Gillian Telford spoke on situations involving end-of-life decision-making. She outlined the practicalities involved in handling DNR or “do not resuscitate” orders in institutional settings and introduced members to the level system used by hospitals to classify instructions regarding care of patients in DNR situations:

Level 1: comfort measures only, no medication (including antibiotics), no medical interferences;
Level 2: comfort measures and oral medication only, like antibiotics;
Level 3: invasive procedures such as naso-gastric tube feeds, intravenous antibiotics; and
Level 4: all of the above plus cardio-pulmonary resuscitation, being kept alive with a respirator.

Family-Vancouver
Greg Blue from the B.C. Law Institute and Professor Keith Farquhar from the UBC Faculty of Law gave a presentation on the B.C. Law Institute’s proposal to reform succession rights and the post-mortem division of family assets. Mr. Blue presented the Committee’s recommendations for the Section’s review and comment.

Under the Family Relations Act (FRA) a spouse automatically gains a one-half interest in all assets that qualify as family assets once a triggering event occurs.

If one party to a marriage dies after a triggering event has occurred, the survivor can still pursue the statutory half interest in family assets under Part 5 of the Family Relations Act, although some practitioners are of the opinion that a proceeding to assert Part 5 rights must also have been commenced before death. However, if a triggering event has not occurred any claim the survivor might make with respect to family assets that were owned by the deceased spouse will be left to succession law, including the Wills Variation Act if applicable, or else constructive trust litigation.

If the deceased dies without a will, the survivor’s claim is limited by the formula provided under the Estate Administration Act (EAA). If the deceased dies with a will, the survivor is limited to seeking relief under the Wills Variation Act (WVA) and must compete with other family members and possibly a post-marital common law partner.

The Committee proposes resolving these issues by giving a surviving spouse the right to elect to treat the death of the other spouse as a triggering event for the purposes of section 56 of the FRA. Under the proposal a survivor could elect to claim a division of family assets under Part 5 of the FRA whether or not a triggering event had occurred. A survivor who elects to claim under the FRA would be required to forfeit any right to claim under the WVA or EAA. If the survivor elects to claim under the FRA, the deceased’s executor would have the right to claim reapportionment of the family assets. A survivor who claims under the FRA would not be able to serve as executor. The right of election would be exercisable only within six months of the death. The Committee’s view is that the election procedure would simplify the complicated issues that can arise in these circumstances and reduce the likelihood of post-mortem estate litigation. This would represent a policy shift in the direction of giving priority to surviving spouses.

Professor Farquhar criticized the proposed scheme, calling it “conceptually confused” because it attempts to transfer a succession issue involving multiple competing claims by various family members into the FRA scheme for family assets which involves a single contest between two living spouses. It denies the legitimate claims of children by giving priority to spouses in all cases. In his view, the WVA deals with competing claims as well as can be expected. He also doubts that the proposal, if implemented, would have the effect of reducing litigation. He foresees the same issues that currently arise under the FRA cropping up, for example, contests about what is a family asset, whether an asset is exempt from division, and whether reapportionment should occur.

Shelley Bentley practises wills and estates law at Kerr Redekop Leinburd & Boswell in Vancouver.

This article originally appeared in the June 2005 issue of BarTalk and is reproduced here with permission of both the author and the Canadian Bar Association, British Columbia Branch.