Sharing land

Outrage halts amendments to BC's Land Act. Plus the SCC’s latest leave to appeal decisions, Doug Ford’s support for patronage appointments, Quebec’s pro-landlord housing amendments, and a former law dean’s disbarment.

Just in: a new way to tick off judges with ChatGPT. A New York law firm asked a court to award more than $100,000 in costs after winning a legal battle with the government. One of the arguments the firm used to support its fees was ChatGPT’s opinion that the fees were reasonable.

To be fair, the firm wasn’t blindly relying on ChatGPT. The firm said it served to “cross-check” other resources and highlight what the average consumer would learn about legal fees if they used ChatGPT for research. But the judge still wasn’t happy about it.

[Using ChatGPT as support for [the firm’s] aggressive fee bid is utterly and unusually unpersuasive. As the firm should have appreciated, treating ChatGPT's conclusions as a useful gauge of the reasonable billing rate for the work of a lawyer with a particular background carrying out a bespoke assignment for a client in a niche practice area was misbegotten at the jump.

Drake hotline bling meme - top panel drake shuns "improperly using ChatGPT for legal research". Bottom panel Drake happily points towards "Improperly using ChatGPT for costs research"

Have a great weekend everyone.

— Dylan Gibbs

TODAY'S DOCKET

8 min read

  • BC halts Land Act amendments

  • The SCC’s latest leave to appeal decisions

  • Doug Ford’s support for patronage appointments

  • Quebec’s pro-landlord housing amendments

  • A former law dean’s disbarment

INDIGENOUS LAW

BC is back to square one on Land Act amendments

Evergreen trees on the side of a hill. A river carves through hilly tree-covered terrain in the background

It’s been a rollercoaster of a month for those watching the proposed changes to BC’s Land Act. In late January, the government pitched amendments that would let Indigenous groups share joint authority over public land in the province. The announcement met significant backlash, partly because of the government’s rushed approach to consultation.

Yesterday, the critical voices won out — at least for now. The province said it’s temporarily halting the amendments to take more time for stakeholder engagement.

HEARSAY ROUNDUP

Canadiana

🤝 Doug Ford was accused of “blatant patronage” for stacking Ontario’s Judicial Appointments Advisory Committee with his ex-staffers. Ford said he agrees with that characterization:

100% I am [okay with my actions being deemed blatant patronage]. We got elected to get like-minded people in appointments… I’m not gonna appoint some NDP or some Liberal. I’ve made it very clear where I stand with judges. Justices of the peace and judges — they’re letting criminals out… It’s unacceptable. So, every single appointment I can, to find tough judges, tough JPs, to keep guys in jail… I’m gonna do it… I’m appointing like-minded people that believe in what we believe in — keeping the bad guys in jail — and I’m proud of the job that we’re doing.

Doug Ford (available on Youtube)

🏠 Quebec officially adopted legislation that prevents tenants from freely transferring leases. Landlords now have the power to terminate a lease whenever a tenant asks for a transfer. And that gives landlords greater power to raise rent between tenancies — tenants can no longer extend rent controls indefinitely by passing their lease on to someone else.

🧑‍⚖️ Justice Pomerance of Ontario’s Superior Court of Justice sentenced Nathaniel Veltman as a terrorist. It’s the first Canadian case to link a white nationalist ideology to terrorism. Veltman drove his truck into a Muslim family in London, Ontario in 2021 — a jury found him guilty of four counts of first-degree murder and one count of attempted murder in November.

👨‍💻 Former Justice Minister David Lametti agreed to archive his X account in response to a lawsuit by Rebel News. Rebel News took Lametti to court after he deactivated his X account last month. Lametti has since reinstated the account and agreed to turn all of its data over to Library and Archives Canada.

🏳️‍🌈 By a referendum vote of 663–639, the town of Westlock, Alberta voted to ban non-government flags (like pride flags) and rainbow crosswalks on public property.

🥾 Manitoba’s Law Society disbarred the University of Manitoba’s former Dean of Law, Jonathan Black-Branch. In December, a Disciplinary Committee panel found that Black-Branch had misappropriated over $500,000 through fraudulent expense claims.

[Disbarment is the presumptive penalty].

In our case, we have numerous acts of fraud over an extended period of time based on a consistent dishonest scheme, during which the Member told his subordinate staff to "stop asking questions and just pay it". We also have no evidence in mitigation, no extenuating circumstances whatsoever. Rather, we have a person who abused trust in an esteemed position (Dean of Law) in our profession.

2024 MBLS 1, para 5

SCC

Latest leave to appeal decisions

Woman stands holding a suitcase with a Canadian border crossing in the background. She looks dejected as if she's been turned around.

The Supreme Court granted four leave to appeal applications over the past two weeks. You’ll be disappointed if you’re hoping the Court will hear more private law cases — but the appeals do cover an interesting mix of administrative and criminal law. And one raises an interesting question about the Court itself.

If someone’s visa expires while immigration authorities are thinking about removing them from the country, do they lose their right to appeal the removal decision?

Canada let Dorinela Pepa come to the country on a permanent resident visa. But she got married before she arrived. And she didn’t mention her marriage until she stepped off the plane in Canada. The immigration authorities treated Ms. Pepa’s late disclosure as a misrepresentation, which eventually led to an order removing her from the country. Between her arrival in Canada and the Immigration and Refugee Board’s final decision, Ms. Pepa’s visa expired.

People who “hold a permanent resident visa” can appeal their removal order to the Immigration Appeal Division. But the Appeal Division said Ms. Pepa lost her right to appeal when her visa expired. The Federal Court of Appeal said that was a reasonable conclusion.

Dustin Kinamore was charged with sexual assault. Before the alleged assault, the complainant texted Kinamore saying she didn’t want to have sex with him. Are her text messages evidence of her past sexual history?

The Court of Appeal said no:

[The texts were used] as evidence that [the complainant] had no intention of engaging in a sexual relationship with Mr. Kinamore and that Mr. Kinamore could have had no understanding or expectation to the contrary. [S]uch statements are not caught by [the rules that apply to prior sexual history].

Oddly, the Supreme Court already seems to have decided this issue in 2020 (albeit from the bench). The Court has already faced criticism for deciding too many cases from the bench — it probably won’t help if the Court signals those decisions are up for reconsideration.

An offender with cognitive disabilities needs longer to complete their rehabilitative programming. Can the court increase the length of their sentence to make sure they finish the programming? The Court of Appeal said there’s nothing wrong with that:

It is entirely appropriate for a sentencing judge to consider an offender’s dangerousness, or the length of time it might take them to complete programming, as relevant factors in their assessment of an appropriate sentence within the applicable range. In fact, the Criminal Code expressly requires that sentencing judges turn their minds to the protection of the public and to rehabilitating offenders in determining a fit sentence.

2023 ONCA 552, para 15

The Controlled Drug and Substances Act protects anyone who sticks around at the scene of a drug overdose. If police show up and find drugs, they can’t charge good samaritans at the scene with drug possession. But it’s not clear whether police can still place those good samaritans under arrest.

Here’s the relevant legislative provision:

No person who seeks emergency medical or law enforcement assistance because that person, or another person, is suffering from a medical emergency is to be charged or convicted of [simple possession] if the evidence in support of that offence was obtained or discovered as a result of that person having sought assistance or having remained at the scene.

CDSA, s. 4.1(2)

The distinction between charging someone and arresting them makes a big difference for Mr. Wilson. He had drugs with him at the scene of an overdose. And even though police couldn’t charge Mr. Wilson for possession, they still arrested him for it. The arrest led to a search. And the search uncovered guns. Police never charged Mr. Wilson for possession, but they sure charged him for the guns.

FROM THE READERS

In response to Wednesday’s story about the UR Pride v. Saskatchewan litigation:

A reader selected "Justice served" in the Hearsay poll and wrote: "I agree that calling a judge an "activist" has become a slur. However, the judge's comment that he was just resolving "a legitimate dispute between two parties" suggests he has already decided that hte claim was legitimate rather than frivolous and vexatious."
Dylan Gibbs

That’s all for today.

You can also find me on LinkedIn and X/Twitter @DylanJGibbs.

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