• 11 Sep 2023 9:00 AM | FACL BC (Administrator)

    The Federation of Asian Canadian Lawyers BC (“FACL BC”) extends its warmest congratulations to Scott Morishita as he starts his term as the president of the Canadian Bar Association, BC Branch (“CBABC”).

    Notably, Scott is the fourth Asian CBABC president and the first person of Japanese descent to hold this position. Diversity in leadership positions like this fosters an understanding of a range of experiences and perspectives and allows organizations to produce better-informed policies and services. Scott is a proud member of the  2SLGBTQIA+ community.

    Scott has been a valued member and friend of FACL BC since 2019. A respected lawyer with experience in personal injury, insurance and municipal law, Scott brings a strong commitment to addressing issues of access to justice, mental health, and equality. 

    FACL BC also wishes to extend its heartfelt congratulations and gratitude to outgoing president, Aleem Bharmal, KC on a successful term. FACL BC deepened its relationship with the CBABC under Aleem’s leadership and thanks him for his support over the years. Aleem was the third person of Asian descent to hold this position. Previously, the second CBABC president of Asian descent was Margaret Mereigh, and the first was Jennifer Chow, KC, from 2015-2016.

    CBABC is a professional organization representing over 38,000 lawyers, judges and law students across Canada and has 7,800 members in British Columbia. CBABC members practice at the forefront of the justice system, providing services to British Columbians in every area of law.

    FACL BC looks forward to continuing to work with Scott and the rest of the CBABC team in promoting greater equity in the legal profession and wider community. See Scott’s full President Statement here.

  • 1 Sep 2023 4:08 PM | FACL BC (Administrator)

    The Federation of Asian Canadian Lawyers (British Columbia) Society (FACL BC) expresses its warmest congratulations to Justice Negar Azmudeh on her appointment to the Federal Court. 

    Justice Azmudeh immigrated to Canada from Iran when she was 18 and was called to the British Columbia bar in December 1999. For the past 24 years, Justice Azmudeh has focused on immigration and refugee law, and has dedicated her legal career to Canada’s refugee determination system. Most recently, she founded the Quality Centre at the Refugee Protection Division of the Immigration and Refugee Board of Canada (IRB) and led initiatives to increase the efficiency, quality and consistency of decision-making.

    Since the implementation of the Canadian Multiculturalism Act in 1971, Canada has strived to be a respectful, prosperous, and compassionate country. We must recognise that building an inclusive country that values multiculturalism is a work in progress. Our society continuously relies on the tremendous contributions of people of all backgrounds who call it home, including immigrants and refugees. FACL BC is heartened to see Justice Azmudeh appointed to the Federal Court. Justice Azmudeh brings a wealth of perspective and a deep understanding of the issues faced by immigrants aand refugees to the bench. A diverse bench that reflects Canada’s diverse communities and their lived experiences increases public trust and confidence in the judiciary, brings a diverse perspective that enriches the bench, and ultimately improves the administration of justice.


  • 1 Sep 2023 9:09 AM | FACL BC (Administrator)

    Calling all FULL FACL BC members who are members of the Law Society of BC in good standing!

    Led by our VP Internal, Jim Wu, FACL BC is interested in putting together a team for Access Pro Bono’s (APB) Advice-a-Thon legal clinic on Thursday September 14, 2023 at the Vancouver Art Gallery, or by telephone between Tuesday September 5 to Friday, September 22, 2023! 

    FACL BC’s Team members are not required to be physically present (unless volunteering in-person) and do not all need to volunteer at the same time. The schedule is highly flexible and based on your availability.

    You will be offering legal advice solely in the area(s) which you practice. APB handles indemnity and insurance matters and records whether legal advice is provided to an individual client. If you have any concerns about your coverage, please contact Lais Gomes at lgomes@accessprobono.ca directly to inquire. FACL BC takes no responsibility for indemnity and insurance matters related to the Advice-a-Thon.

    APB has 6 in-person spots left: 12 to 1 pm (1 spot available), 1 to 2 pm (3 spots), 3 to 4 pm (2 spots), and overflow spots may be available for FACL BC Team members. The time commitment is 1 hour long for the in-person event. In-person clinics will allow for pre-scheduled and drop-in appointments from members of the general public.

    Alternatively, APB also has unlimited spots for providing advice over the telephone from September 5 to 22, 2023. Telephone appointments will be scheduled with ample time for conflict checks. Telephone clinics will be 2 hours long. Please register to volunteer at the phone clinic by completing this form.

    If you are interested in joining FACL BC’s Team, please email membership@faclbc.ca by Friday, September 8, 2023 with the subject line “APB Volunteer” and include the following information, so that we may pass it along to APB: 

    • Your name

    • T-shirt size

    • Firm name

    • Phone number

    • Area of practice

    • Chosen time slot

    • Chosen location: Vancouver Art Gallery or Telephone Clinic

    Other than sending this email to volunteer with FACL BC’s team, all other questions regarding the Advice-a-Thon should be addressed directly to APB. We look forward to seeing you there and giving back to our community!

  • 27 Jul 2023 3:15 PM | FACL BC (Administrator)

    The Federation of Asian Canadian Lawyers BC (“FACL BC”) extends its congratulations to the federal government’s new Cabinet. FACL BC is especially pleased to see the historic inclusion of eight Ministers of Asian descent, four of whom are new to Cabinet. A cabinet that reflects Canada’s diverse communities is better suited to represent the interests of all Canadians.

    FACL BC welcomes the appointments of:

    • the Honourable Anita Anand as President of the Treasury Board;

    • the Honourable Arif Virani as Minister of Justice and Attorney General of Canada;

    • the Honourable Gary Anandasangaree as Minister of Crown-Indigenous Relations;

    • the Honourable Kamal Khera as Minister of Diversity, Inclusion and Persons with Disabilities;

    • the Honourable Ya’ara Saks as Minister of Mental Health and Addictions and Associate Minister of Health;

    • the Honourable Rechie Valdez as Minister of Small Business;

    • the Honourable Harjit Sajjan as Minister of Emergency Preparedness and President of the King’s Privy Council for Canada; and 

    • the reappointment of the Honourable Mary Ng as Minister of Export Promotion, International Trade and Economic Development.

    Each of these Ministers brings a wealth of lived experience and community connectedness that enriches Canada’s national fabric and demonstrates that we are stronger when all voices are included at the table. 

    The Honourable Anita Anand was born and raised in Nova Scotia to Indian physician parents and has worked as a scholar, lawyer, and researcher. Prior to her election to the House of Commons in 2019, Minister Anand was a Professor of Law and Associate Dean at the University of Toronto, where she held the J.R. Kimber Chair in Investor Protection and Corporate Governance. Minister Anand was also a member of the Governing Board of Massey College, has served as the Director of Policy Research at the Capital Markets Research Institute (Rotman School of Management), and previously taught law at Yale Law School, Queen’s University, and Western University.

    The Honourable Arif Virani is an Ismaili Muslim who came to Canada in 1972 as a Ugandan Asian refugee. Minister Virani practiced law, first as a civil litigator in the private sector and then as a constitutional litigator at the Ministry of the Attorney General of Ontario advocating for human rights and access to justice. Minister Virani has extensive experience in Canadian and international human rights law from his time as an analyst with the Canadian Human Rights Commission, an investigator with the Québec Commission des droits de la personne et de la jeunesse, and an Assistant Trial Attorney with the United Nations International Criminal Tribunal for Rwanda.

    The Honourable Gary Anandasangaree is a human rights lawyer and community activist who was first elected as the MP for Scarborough-Rouge Park in 2015. Minister Anandasangaree was previously the Parliamentary Secretary to three Ministers - the Minister of Justice and Attorney General of Canada, Minister of Crown-Indigenous Relations, and Minister of Canadian Heritage and Multiculturalism (Multiculturalism). Minister Anandasangaree is an active leader in the Tamil community and has been recognized for his community contributions through receiving the Queen Elizabeth II Golden Jubilee Medal and the Queen Elizabeth II Diamond Jubilee Medal.

    The Honourable Kamal Khera was born in New Delhi, India and is one of the youngest women ever elected to Parliament. She is a registered nurse, community volunteer, and political activist. During the pandemic, she volunteered at a long-term care facility in her hometown of Brampton and administered vaccines in her community. She has previously served as Minister of Seniors, Parliamentary Secretary to the Minister of International Development, Parliamentary Secretary to the Minister of National Revenue, and Parliamentary Secretary to the Minister of Health. She now holds the position of Minister of Diversity, Inclusion and Persons with Disabilities, where she will no doubt utilize her experience in healthcare and as a racialized woman.

    The Honourable Ya’ara Saks was born in Toronto to an Israeli father and Canadian mother, and her first spoken language was Hebrew. In 1995, after graduating from Montreal’s McGill University, she moved to Israel and spent the next 11 years based in Jerusalem, where she completed her MA at Hebrew University in International Relations and Diplomacy on Israeli-Palestinian relations. She returned to Canada in 2006 and was first elected as the Member of Parliament for York Centre in 2020. She was also a member of the Standing Committee on Environment and Sustainable Development and the Standing Committee on Foreign Affairs and International Development. Having served as the Director of Trauma Practice for Healthy Communities, a Toronto-based mental health charity working for better access to mental health services, she is well suited for her new role as the Minister of Mental Health and Addictions and Associate Minister of Health.

    The Honourable Rechie Valdez was born and raised in Zambia and immigrated to Canada in 1989. Minister Valdez is the first Filipino-Canadian woman elected as a MP and appointed to Cabinet. Minister Valdez was elected as the Member of Parliament for Mississauga—Streetsville in 2021. Prior to entering politics, Minister Valdez was a television host and a small business owner, which makes her particularly suitable for the position of Minister of Small Businesses.

    The Honourable Harjit Sajjan immigrated to Canada from India at the age of five. Minister Sajjan previously served as Minister of International Development and Minister responsible for the Pacific Economic Development Agency of Canada and as Minister of National Defence. Now residing in South Vancouver, Minister Sajjan is a former detective of the Vancouver Police Department, where he was a member for over a decade. Minister Sajjan was also the Lieutenant Colonel with the British Columbia Regiment and has participated in deployments to Bosnia and Afghanistan.

    The Honourable Mary Ng immigrated to Canada from Hong Kong and worked for the Ontario Public Service, Toronto Metropolitan University (formerly Ryerson University), and the Ontario Ministry of Education before being elected to the House of Commons in 2017 as the MP for Markham-Thornhill. Minister Ng previously held the posts of Minister of International Trade, Export Promotion, Small Business and Economic Development and as Minister of Small Business, Export Promotion and International Trade.

  • 5 Jul 2023 10:12 AM | FACL BC (Administrator)

    Introduction 

    This long weekend Canadians observed our country’s 156th “Canada Day”, however, this day also marked the anniversary of a much darker date in Canada’s history. A century ago, on July 1, 1923, the Canadian Parliament enacted the Chinese Immigration Act, 1923, also known as the Chinese Exclusion Act (the Act), with the objective of banning all immigration of Chinese peoples to Canada and closely monitoring those who continued to live in Canada. The Act was not repealed until May 14, 1947, and its legacy continues as a painful reminder of the systemic and institutional barriers many people of colour in Canada continue to face. The Federation of Asian Canadian Lawyers BC (FACL BC) invites you to reflect on the many meanings associated with July 1st and commemorate this day as we pass a century since the Act came into effect.

    July 1st is a date that evokes strong and complex feelings, emotions, and reactions across Canada. For the countless Chinese Canadians affected by the Act, many regard July 1st not as Canada Day but know it as “Humiliation Day”. 

    As our young nation ages another year, it is an opportunity for reflection and education about what it means to be Canadian, given Canada’s colonial past and present. It is also a day to think about how our society can come together, while affirming our diversity, to build a stronger and more resilient nation. 


    The Chinese Exclusion Act and “Humiliation Day”

    The Act came into effect 100 years ago in 1923. The Act was an embodiment of prevailing racist ideologies that sought to curtail the influx of Chinese peoples from entering into Canada and to closely monitor the Chinese peoples living in Canada, a population that was growing larger in size.

    This was the only law enacted by Parliament that banned immigration based solely on national origin and represented the culmination of decades of efforts by the Canadian government to curb Chinese immigration. Prior to the passage of the Act, the government of Canada had enacted racist and restrictive policies against people of Chinese descent, such as the Chinese head tax under the Chinese Immigration Act, 1885, which started at $50 when first enacted but reached $500 by 1903 (worth roughly $2,500 and $12,900, respectively, today with inflation), before being replaced by an outright exclusion under the Act. 

    While Parliament sought to curtail the influx of Chinese peoples into Canada, the government of British Columbia passed multiple laws that further disenfranchised and outright banned the Chinese from voting, being elected to political office, from becoming professionals (including practicing law), from living outside of Chinatown, and even from swimming in indoor pools. 

    Before the passing of the Act, Chinese immigrants were required to carry Chinese Identity certificates with them at all times and were required to produce those certificates upon the request of law enforcement. After the passage of the Act, all Chinese peoples living across Canada, including those who have lived here for multiple generations, were required to register their status and were issued a Chinese Identity certificate that, at the bottom, included a statement that reminded the bearer of the card: “This certificate does not establish legal status in Canada”.

    For the Chinese-Canadian community, the enactment of the Act on July 1st, 1923, coinciding with Canada Day (then known as “Dominion Day”), gave rise to a new name: “Humiliation Day.” By 1931, the Chinese population in British Columbia had declined to less than four percent of the province’s total population, sparking fears that Chinese communities in Canada would eventually disappear altogether. During the 24 years that the Act was in force, fewer than 50 Chinese immigrants were allowed to enter the country. The message could not have been clearer: “the Chinese do not belong in Canada”. 

    Although the Act sought to exclude and eliminate Chinese Canadians, it had the effect of galvanizing some in the Chinese-Canadian community to demonstrate their patriotism by serving in the Canadian army during the Second World War. Their efforts and service exposed the hypocrisy of Canada’s exclusionary and xenophobic attitudes, leading to social and political change within the country and contributing to the repeal of the Act in 1947. 


    Beyond Exclusion

    Even after the Act was repealed, the struggle against anti-Asian racism continued. Japanese Canadians were unable to return to the coast until 1949 following internment during World War II. Relying on the Immigration Act, 1910, which allowed for the prohibiting of immigrants determined to be "unsuited to the climate or requirements of Canada", the Canadian government continued to enact and enforce policies that restricted pan-Asian immigration until new regulations were enacted in 1967. Even today, the Asian-Canadian community continues to face racism in the form of hate speech and violent attacks, exacerbated by the COVID-19 pandemic

    While Canada has made progress towards nominal inclusion and equality, such as Vancouver and Toronto electing its first Chinese-Canadian mayors in 2022 and 2023 respectively, and increasing diversity in the legal profession and on the bench (such as the recent appointments of Justices Kevin Loo and Anita Chan to the British Columbia Supreme Court), much more must be done to ensure equality and justice for our communities. We must not take for granted the hard-fought gains of the last century.

    FACL BC also recognizes that July 1st is a painful date and a time of mourning for many other groups, including Indigenous people and communities. In the two years since the remains of 215 Indigenous children were found at the Kamloops Indian Residential School in Tk’emlúps te Secwépemc territory, hundreds more unmarked graves have been found across the country. FACL BC stands in solidarity with those affected by the Act and other parts of Canada’s colonial history. We urge our members to consider narratives alongside our own, commemorate the lives lost to Canada’s continuing colonial legacy, and reflect on the meanings of this day beyond the celebration of Canada Day.
  • 20 Jun 2023 7:20 AM | FACL BC (Administrator)

    If you are interested in joining FACL BC’s Board of Directors (the “FACL BC Board”), please complete the nomination form by 11:59 p.m. on July 7, 2023. Your nomination statement should include a short summary of who you are, why you are interested in our organization, and the extent of your previous involvement with FACL BC (if any) (maximum of 300 words). These nomination statements will be sent to all FACL BC members. You may submit a nomination statement for no more than one position described below.

    Nominees will also be asked to provide remarks during our AGM on July 17 - more details to be provided after the nomination deadline.

    The following positions are available: 

    Directors-at-Large (Two Year Term)

    The FACL BC Board has four Directors-at-Large positions available. These positions are open to FACL BC’s full members. Members on the FACL BC Board are expected to assume active high-level and on-the-ground leadership for our various initiatives, including in leading FACL BC committees. 

    Secretary (One Year Term)

    The FACL BC Board has one Secretary position available. This position is open to FACL BC’s full members. The Secretary is an integral part of the FACL BC Board and responsible for, among others:

    • overseeing the issuance of notices of FACL BC General Meetings and Board meetings;
    • taking minutes of FACL BC General Meetings and Board meetings;
    • maintaining the records of the FACL BC Society in accordance with theSocieties Act;
    • assisting in conducting the correspondence of the FACL BC Board; and
    • overseeing the filing of the annual report of the FACL BC and making any other filings with the registrar under the Societies Act

      Area Representatives (One Year Term)

      The FACL BC Board has one Area Representative position for each of Kamloops and Victoria available. Area Representatives are key liaisons between FACL BC and their respective region’s legal community and represent/promote FACL BC in their respective regions. These positions are open to FACL BC’s full members in Kamloops or Victoria.

      Student Directors (One Year Term)

      The FACL BC Board has one Student Director position for each of BC’s law schools (UBC, TRU, and UVic) available. Student Directors are key liaisons between FACL BC and their respective law school and represent/promote FACL BC at their respective law school. These positions are open to FACL BC’s student members who are current JD or graduate law students at UBC, TRU, or UVic. For more information on the Student Director position, please click here.

      All FACL BC Board members are expected to attend monthly Board meetings, participate in FACL BC committees (Membership, Advocacy, or Mentorship), and contribute actively to the planning and execution of FACL BC programming and initiatives.

      If you have any questions, please contact us at info@faclbc.ca.

    • 19 Jun 2023 11:01 AM | FACL BC (Administrator)

      "Dealing with climate change is among the most important challenges that will face Canada and the world in the 21st century. The impact of climate change will be especially felt by already vulnerable people, exacerbating the social and legal difficulties they face. It is imperative that lawyers and justice actors who desire a just society engage pro-actively in curbing climate change and mediating its impacts.”

      – The Right Honourable Beverley McLachlin, former Chief Justice of Canada

      The Law Society of BC’s 2023 Annual General Meeting will be held on June 27, 2023. Members can vote on resolutions during the meeting or through advance online voting, which is open now until 5:00 p.m. PDT on June 26. Visit the Law Society’s website for the full text of all resolutions and more information about how to vote.

      FACL BC endorses Resolution 4: Member Resolution on the Role of Lawyers in Addressing Climate Change, and encourages our members who are eligible to participate to vote in favour of it. This resolution has been put forward by Terri-Lynn Williams-Davidson, Gid7ahl Gudsllaay, K.C. and Hasan Alam, Advisory Director for FACL BC.1

      If passed, the resolution will require the Law Society of BC to encourage lawyers to take steps to address climate change and advise their clients as appropriate of the risks and opportunities of climate change; to set up a task force or advisory group to study the issue to develop practice guidelines and create educational programming; and to set an example by carrying out a climate impact report for the Law Society itself.

      FACL BC’s mandate is to promote equity, justice, and opportunity for Asian Canadian legal professionals and the wider community. World leaders and governments, institutional investors, the Supreme Court of Canada,2 and innumerable stakeholders, including youth, have recognized that climate change is a reality, a global financial risk, and an existential threat to humanity. Recent wildfires, heat waves, and floods across our province have underscored how climate change is impacting us, with the most vulnerable members of our communities being hit the hardest. Further, studies done in Canada have demonstrated that climate change disproportionately harms Indigenous, Black and other communities of colour.3 In light of this existential threat that our communities are facing both domestically and globally, FACL BC recognizes that it is incumbent upon Asian Canadian legal professionals to formally incorporate climate change considerations into our roles as lawyers to ensure the well-being and livelihood of our communities. 

      As Dr. Carol Liao, one of the contributors to this resolution, aptly stated, "We are all going to be climate lawyers, whether we like it or not."


      1  This statement by the movers of Resolution 4 provides more information

      2 Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11.

      3 The Canadian Climate Institute, Centring Social Justice is Sound Climate Policy: https://climateinstitute.ca/centring-social-justice-is-sound-climate-policy/


      For more background on the resolution:

    • 25 May 2023 12:54 PM | FACL BC (Administrator)

      May 25, 2023

      In April of 2022, Federation of Asian Canadian Lawyers BC (FACL BC) hosted an event entitled “The Legal Community’s Responsibility to Address the Climate Crisis.” At this event, the idea was raised to bring forward a resolution at the Law Society of BC (LSBC)’s 2022 Annual General Meeting (AGM). FACL BC members put forward Resolution 4: Member Resolution regarding the Role of Lawyers in Addressing Climate Change, which unfortunately didn’t pass

      This April, FACL BC hosted another event on this topic to raise awareness and stimulate discussion about the legal community’s role in addressing climate change, as well as to solicit feedback on this year’s draft resolution that will be brought to the LSBC’s June 27th 2023 AGM.* As Dr Carol Liao stated in her op-ed encouraging lawyers to vote in last year’s AGM: “lawyers can’t ignore climate change.” 

      Resources

      Climate Change

      Addressing Climate Change in All Sectors of the Legal Profession

      Other Professional Legal Associations’ Climate Resolutions

      Other BC and Canadian Professional Associations’ Climate Resolutions

    • 16 May 2023 12:27 PM | FACL BC (Administrator)

      The Federation of Asian Canadian Lawyers (British Columbia) Society (FACL BC) expresses its warmest congratulations to Justice Shin Doi on her appointment to the Superior Court of Justice of Ontario. 

      Justice Shin Doi immigrated to Canada from South Korea and was raised in Toronto, as part of the Korean Canadian community. Throughout her distinguished career, Justice Shin Doi has worked towards building strong and inclusive communities. Prior to her appointment, Justice Shin Doi was a co-founder of the Federation of Asian Canadian Lawyers and the previous president of FACL Ontario. Additionally, she co-founded the Korean Canadian Lawyers Association, Roundtable of Diversity Associations, Women General Counsel Canada, and Korean Legal Clinic.

      FACL BC is heartened to see Justice Shin Doi appointed to the Superior Court of Justice of Ontario. Access to justice not only requires our justice system to have the capacity to help society with their legal issues, but also requires society to view our justice system as an institution that can help them. A diverse bench that reflects Canada’s diverse communities and their lived experiences increases public trust and confidence in the judiciary, and improves the administration of justice. FACL BC is confident that the appointment of Justice Shin Doi, an Asian-Canadian woman with a demonstrated commitment to promoting inclusion within the legal profession, will greatly strengthen our judicial system.



    • 2 May 2023 2:52 PM | FACL BC (Administrator)

      FACL BC Case Commentary: BC Provincial Court Tackles Anti-Asian Hate Crimes, Recognizes Role of COVID-19

      Introduction

      Diversity is one of Canada’s greatest strengths, and with May designated as Asian Heritage Month, it is a time to celebrate the long and rich history of Asian Canadians and their contributions to our country. It is also a time to acknowledge the racism faced by Asian Canadians that continues to this day, particularly in light of the COVID-19 pandemic and the upsurge in hate crimes and discrimination that followed (“Anti-Asian Hate”). The pandemic served to amplify pre-existing prejudice and stereotypes about those of Asian descent, exasperated by misinformation and xenophobia. Vancouver, in specific, was named “the anti-Asian hate crime capital of North America” in 2021. 

      While the worst days of the pandemic are behind us, it is nevertheless important to recognize that Anti-Asian Hate and the racist and discriminatory views that perpetuate it continue to persist. Although reported hate crimes in BC appear to be dropping, as noted in a recent CBC article, many Asian Canadians continue to experience discrimination and have simply given up reporting these incidents to the police. As a historically marginalized group, the underreporting of such crimes suggests a decreased trust amongst Asian Canadians with the justice system. The unwillingness of Asian Canadian victims to report hate crimes, in conjunction with the decrease in reported hate crimes since the pandemic, may indicate that current hate crime statistics do not reflect the full extent of Anti-Asian Hate. 

      As we prepare to celebrate Asian Heritage Month, FACL BC wishes to highlight two decisions where Anti-Asian Hate was considered to be a key factor and where the court took judicial notice of the heightened vulnerability and marginalization of Asians as a result of the COVID-19 pandemic:

      1. R. v. Castonguay, 2021 BCPC 315; and

      2. R. v. Bethune and Secreve, 2022 BCPC 243

      These cases highlight the insidious nature of discrimination and hate crimes against Asian Canadians, but also an increased sensitivity of the courts to the prevalence of Anti-Asian Hate during the pandemic. In both Castonguay and Bethune and Secreve, the courts acknowledged the social context in which the crimes took place and the impact they had upon the Asian Canadian community during a particularly vulnerable time. By considering the social context, the courts were able to recognize the significant impact of the crimes on the Asian community and acted accordingly to maintain the public interest. This commentary aims to bring attention to the role courts have played in recognizing and protecting vulnerable and marginalized communities, as well as identifying areas where the justice system can continue to improve.  

      R. v. Castonguay

      Facts:

      On December 29, 2021, Mr. Castonguay pleaded guilty to wilfully committing mischief by causing damage while being motivated by bias, prejudice, or hate towards persons of Chinese ethnic origin or descent, an offence contrary to s. 430(4.1) of the Criminal Code.

      The incident occurred on April 2, 2020, when Mr. Castonguay visited the Chinese Cultural Centre (the “Centre”) in Vancouver and defaced several of its window panes with racist and hateful comments. The messages espoused the killing of persons of Chinese origin, referencing Hitler's annihilation of the Jewish persons in the Holocaust. Mr. Castonguay’s messages also called for the forced removal and exclusion of Chinese people from Canada, claiming they were all infected by COVID-19. The messages were discovered by the directors of the Centre the following day, resulting in the closure of the building and causing its staff members, volunteers, and visitors to feel unsafe.

      Judgment and Reasoning:

      The Crown sought an effective sentence of nine months of imprisonment against Mr. Castonguay, followed by a three‑year probationary period. However, due to a significant delay in Mr. Castonguay’s sentencing, the defence argued that he should be given a reduced sentence, suggesting there might have been a different outcome had the sentencing taken place earlier.

      In determining to what extent Mr. Castonguay should be given the benefit of a reduced sentence, Judge H. Dhillon relied upon the principle of proportionality in imposing a fair, fit, and principled sanction. Taking into consideration the gravity of the harm caused by Mr. Castonguay’s messages to the staff members and attendees of the Centre, Judge H. Dhillon found that the harm extended to society at large, negatively affecting all persons who identify as Chinese as well as all persons of Asian background or descent. Judge H. Dhillon also acknowledged the social context in which the incident took place, taking judicial notice of the history of racism against the Chinese community, the importance of the Centre to their cultural heritage and community, and the increased vulnerability of the Chinese community due to misinformation about their connection to COVID-19. 

      Despite the written and verbal statement Mr. Castonguay provided to the court, in which he expressed remorse for his actions, Judge H. Dhillon found that the social context and circumstances of the offence caused the aggravating factors of the case to outweigh the mitigating factors. Consequently, Judge H. Dhillon sentenced Mr. Castonguay to eight months of imprisonment, followed by a three‑year probationary period. Considering the gravity of the harm caused by Mr. Castonguay, Judge H. Dhillon concluded that he would have been given a similar sentence had the sentencing occurred earlier.

      Takeaways:

      Judge Dhillon's decision demonstrates the importance of considering the social context when assessing the mitigating or aggravating factors of a criminal act, especially when assessing the gravity of the harm caused by the offender to the victims. By taking judicial notice of the social context in which the incident occurred, Judge Dhillon acknowledged the historic struggle of Chinese Canadians against racism and the significance of the Centre in the Chinese community. Additionally, by taking into account the recent upsurge in Anti-Asian Hate, Judge H. Dhillon recognized that the vulnerability of the Chinese community allowed Mr. Castonguay’s actions to have far-reaching effects on all persons of Asian background or descent, necessitating a denunciatory sentence. 

      It is worth noting that Judge Dhillon was the first female South Asian judge to be appointed in BC. Her nuanced reasoning in Castonguay may have been informed by her own experiences as an Asian Canadian, which likely played a role in her ability to recognize and express the significance of Mr. Castonguay’s actions and the impact they had on the Asian community. Her decision is a salient reminder of the importance of diversity on the bench and the value it can bring to the Canadian justice system and the public.

      R. v. Bethune and Secreve

      Facts:

      In this case, the defendants Mr. Eric Bethune and Ms. Astrid Maria pleaded guilty to committing mischief for wilfully obstructing, interrupting, and/or interfering with the lawful use, enjoyment, or operation of the property contrary to s. 430(4) of the Criminal Code

      The defendants were patrons of a cafe in Richmond and failed to abide by the COVID protocols (e.g. seating restrictions) that the cafe had in place at the time. The defendants were asked by an employee multiple times to change seats. After refusing their requests, the defendants threw a cup at the employee and made numerous anti-Chinese comments toward the cafe employees before leaving. Despite the various discriminatory comments uttered during the incident, the defendants denied that their mischief was motivated by any bias, prejudice, or hate.

      Judgement and Reasoning:

      Judge Vandor found that it would not be in the public interest to grant a discharge and held that a suspended sentence with 12 months of probation for Mr. Bethune and Ms. Secreve was more appropriate. In sentencing, Judge Vandor of the Provincial Court of British Columbia found a number of aggravating factors that favoured a stronger sentence, including:

      • Mr. Bethune and Ms. Secreve perceived both the cafe employees to be of Chinese race or ethnic origin. 

      • The defendants’ comments and actions were motivated by anti-Chinese hate/bias/prejudice. Mr. Bethune told the employee, “The Coronavirus is you”. Judge Vandor found that by doing so, he associated the employee with the virus and that it was a dehumanizing expression that called into question whether the employee was a human being. He noted, following Castonguay, that this kind of speech vilifies the targeted group by blaming its members (i.e. people of Chinese and Asian descent) for the current COVID-19 pandemic and other problems in society.

      • The significant impact the incident had on the employee. The employee testified that she was afraid of walking on the street and making eye contact with people, especially Caucasian people, because she was afraid that they would hurt her too. She eventually stopped working at the cafe after three months because of the incident.

      Judge Vandor, citing the various examples of the defendants’ feelings, beliefs, and attitudes towards people of Asian and Chinese descent, held that the principles of general and specific deterrence and denunciation called for a suspended sentence, which more appropriately addressed the defendants’ actions and the motivations behind those actions.

      Takeaways:

      Like Castonguay, this case recognizes the increased vulnerability of Canadians because of misinformation directed at persons who are perceived to be of Chinese origin and the blame towards them for the COVID-19 pandemic as aggravating factors for sentencing. Following Castonguay, Judge Vandor readily acknowledged the hardships and racism that people of Chinese, and generally Asian, descent face as a result of the pandemic. By facing those issues head-on, the court was able to ground its decision in the historical and cultural context necessary to understand the harm that was caused and to provide a proportional sentence. 

      Conclusion:

      How courts determine the different degree or kind of punishment in respect of an offence are dependent on the facts and circumstances of each case, as well as the principles of deterrence and denunciation set out in s. 718 of the Criminal Code. As seen in both Castonguay and Bethune and Secreve, the broader social contexts of each case were additionally taken into consideration when determining appropriate sentences for the offenders. 

      Judge H. Dhillon and Judge Vandor both acknowledged the increased vulnerability of the Chinese and Asian community due to the COVID-19 pandemic, finding that the harm done to victims extended to society at large, negatively impacting all persons of Asian descent. As both cases included offenders targeting persons of Chinese ethnic origin or persons whom they perceived to be of Chinese ethnic origin during a time of increased vulnerability and a rise in Anti-Asian Hate, both judges arrived at the finding that the social context of the offences constituted a significant aggravating factor. The judges also found that mitigating the offenders’ sentences would be adverse to the principles of deterrence and denunciation. As the actions of the offenders in both cases contributed to the prevalence of COVID-19 misinformation and Anti-Asian Hate, denunciatory sentences were imposed to send the message that the justice system will not tolerate this type of criminal behaviour. 

      Both cases may indicate that courts are more likely to impose denunciatory sentences in cases involving COVID-19-related discrimination against people of Asian descent, as judges must consider the social context of the “profound impact these kinds of criminal acts have on members of vulnerable communities” (Castonguay at para. 35). In other words, the above cases show that the social context of Anti-Asian hate crimes is especially relevant where COVID-19-related discrimination is involved. However, such reliance by the courts on COVID-19 as a justification for the increased protection of the Asian community may suggest that Asians are only considered “vulnerable communities” in the context of COVID-19-related discrimination, while ignoring the long history of racism against people of Asian descent that continues to this day. This may play a role in the low rate of reported hate crimes by pan-Asians in Canada, as incidents of Anti-Asian Hate may not involve COVID-19-related discrimination or be as overt and obviously racist as the incidents underlying the cases above. 

      The Canadian justice system must acknowledge that the vulnerability of the Asian community is not limited to COVID-19-related discrimination. In order to effectively uphold the principles of deterrence and denunciation, courts must be willing to apply similar reasoning in all cases of racial discrimination against those of Asian descent, not just those related to COVID-19. Just as the process of sentencing “must be situated both in the present day but also with an eye to the context and history faced by Chinese Canadians in Canada” (Castonguay at para. 15), the justice system must be similarly flexible in addressing the various forms of stereotypes and prejudices, whether direct or indirect, faced by the Asian community. 

      Federation of Asian Canadian Lawyers (British Columbia) Society

      info@faclbc.ca | faclbc.ca | @faclbc



    Powered by Wild Apricot Membership Software