On 13 June 2024, Professor Tollefson was invited to speak at the 48th Annual British Columbia Law Clerks Reunion Dinner held in Vancouver BC (program here). Below is a copy of his speech.

Speech by Professor Chris Tollefson^[1]

Honourable Justices & Chief Justices, honoured guests, clerks and former-clerks.

It is a great pleasure to share the podium with our new Chief Justice. We both arrived at UVic Law at about the same time in the early 1990’s, myself as a brand-new prof and he as a whip-smart young 1L.

Chief Justice Marchand: your numerous contributions to UVIC are well remembered at our place — including representing us, I’m reminded, on the rugby pitch in three successive triumphs in the annual Slaughter Cup against our arch-rival UBC.

I’ve had the privilege of being connected in various ways to this fine clerking program for a long time — almost four decades. In that time, as you can probably imagine, I’ve written my share of clerking reference letters…It is a duty for which I feel I’ve been richly compensated– in various ways. Over the years I’ve amassed quite a nice collection of Tim Horton’s coffee mugs and Starbuck’s gift-cards. It’s also been really gratifying to hear from former students about what a great experience clerking has been, how much they have learned and what many amazing friendships they have made.

I was somewhat of an accidental law clerk. When I applied for a clerkship in 1984, I had very little idea what law clerks did. For some reason, I put down on my application that I wanted to clerk at the Court of Appeal. I was pretty sure I wouldn’t get an interview. Lo and behold, I was invited to come over and do an interview.

My recollection of that interview is pretty blurry. I do recall being ushered into a room where a small group of judges were sitting in a semicircle. The only question I remember was from a gentleman who peered over his bifocals and kindly but very directly asked:

“Mr. Tollefson, I’ve reviewed your transcript and CV and am curious… when were you planning to learn about EQUITY?”

I remember he pronounced the 3 syllables of the word “equity” very deliberately….At that point in 2L, to be honest I didn’t really have a much of an idea of what equity was, let alone a plan to learn more about it. The best I could muster by way of an answer was to say that I hoped that this was an area I would get a “proper exposure to through clerking”.

I regretted that glib response almost instantly . And on the ferry ride home, I rehearsed in my head all of the other possible ways I could have answered the question. By the time the ferry docked at Swartz Bay I was certain that clerking was not in the cards. To my surprise though, soon after a clerkship offer arrived. Even more surprising was finding out I had been assigned to clerk to the very same learned Justice who had posed the equity question in the first place.

The more I researched about my questioner, the Honourable Justice Douglas Lambert, the more I realized the irony of this turn of events. To cut to the chase, and likely in spite of my interview performance, I did end up getting a proper exposure to the concept of equity while clerking — and from a mentor who happened to know quite a bit about the subject. Perhaps Judge Lambert saw me, a scruffy young man with vaguely anti-establishment politics, as someone who — more than other applicants – could really benefit from some judicial tutelage. What I can honestly say is that year clerking for Judge Lambert was by far my most formative legal learning experience.^[2]

Since that clerking year, 1985, we’ve of course seen – both in our province and across the country – some enormous social and legal changes. Perhaps most profound and important of these in the realm of Indigenous law and Aboriginal rights and reconciliation.

Back then, as a somewhat cynical, 20-something, I was skeptical of the idea that Courts were suited to playing a hands-on role — or for that matter any role — in big social transformations. It’s fair to say my clerking experience changed my thinking on this question — in closing I’d thought I’d share some thoughts on that topic.

Back then, law clerks were encouraged to watch court as much as possible, even if it meant getting their daytime work assignments done after hours. In the Fall that year, a lot of clerks were following a case that was being argued in courtroom 34. In that courtroom that November, a group of Haida Elders had travelled down to Vancouver to assert their rights and title to Lyell Island, located on the southern archipelago of Haida Gwaii.

The case was about whether an injunction should be granted to prevent them from protesting against logging on the island, a special place in Haida tradition known as Athlii Gwaii. The courtroom was jammed with Elders in button blankets and other regalia, along with media, various onlookers and a large contingent of law clerks. The Elders declined legal representation, preferring to speak for themselves.

Assigned to preside was Justice Harry McKay. Judge McKay was the one judge that I knew before my clerking year. His son Don was my best buddy in law school. Harry was Old School. After serving as a teenager in WWII, Harry enrolled in UBC law. He became a successful criminal lawyer up country in Fernie. He also served as an MLA for Fernie before being appointed to the bench in 1971. By the 1980’s, the Chief Justice was entrusting to him many of the BC’s most serious criminal cases. Harry was no soft touch, especially I am reliably told, when it came to sentencing. His nickname was “the Hammer”. When I realized that Judge McKay was going to preside, I wasn’t sure what to expect. But I shouldn’t have worried.

From the outset, there was a deep sense of respect in that courtroom that I still vividly recall. The Elders spoke powerfully and eloquently. Judge McKay listened intently and showed deference. There was a real dignity to the process that I wasn’t expecting. It made an impact on me that I carry with me to this day. I recently went back to look at news clippings from the hearing. At several points, the news stories note how the evidence given by the elders seemed to move the Court. At one point, Judge McKay is quoted as commenting that Haida culture will remain strong as long it continues to produce leaders like those who were testified before him.

Judge McKay did grant that injunction against the logging protests. But in his reasons he made it very clear that the underlying issue was one that required a political solution. From the perspective of 2024, it is hard to argue with him.

The history books now recount that the stand that those Elders took at Athlii Gwaii ultimately led (about a decade later) to the creation of Gwaii Hanaas — one of the world’s very first National Parks co-managed by an Indigenous Nation. And of course, since then, both on Haida Gwaii around the province and across the country, the journey to reconciliation has come a great distance.^[3]

While Courts must be careful to “stay in their lane”, as we like to say now, they have an important, even essential role to play in that journey. Watching proceedings in courtroom 34 helped convince me of that.

To perform this role in our collective journey towards reconciliation, indeed to fulfill their true potential, courts must be a place where we can grapple honestly and meaningfully with our differences – with a view to finding common ground, and to charting respectful and just paths forward.

In short, courtrooms must be places of learning. The late Chief Justice Lance Finch elaborates on this theme in his insightful 2012 article “The Duty to Learn”.^[4] And it is also why I tell all my students, especially those lucky enough to become law clerks: Go watch court. As much and as studiously as you possibly can. Thank you, Haw’aa, and good evening.

[1] With thanks to Professor Michelle Lawrence, Mark Underhill K.C. and Lydia Young (articling student) for their input and advice.  Footnotes added after delivery. All errors and omissions are my own.

[2] Not only was Justice Lambert a kind and highly engaged mentor for all of his clerks, he was also a prodigiously productive and courageous jurist — authoring reasons in many landmark cases including Delgamuukw, Gladstone, Van Der Peet and Haida Nation.  At a 2022 Memorial celebrating his life and career, Louise Mandell KC said this: “His Judgments in the area of Aboriginal and Treaty rights law – 23 in all – gave voice to the hope of Indigenous people that having Aboriginal and Treaty rights included in the Constitution would lead to a just settlement of the land question. He wrote some of legal history’s finest pages. Written with the deepest care, and rooted in fundamental principles of law and equity, he reflected what he wished to protect. He protected Indigenous cultures, and appreciated their beauty and the complexity of their laws and legal orders”.

[3]  The most recent development came on May 16, 2024 when legislation confirming Haida Aboriginal title throughout Haida Gwaii received Royal Assent: the Haida Nation Recognition Amendment Act, 2024.  This legislation implements  the Gaayhllxid • Gíihlagalgang “Rising Tide” Haida Title Lands Agreement, a first-of-its-kind negotiated agreement between the Haida Nation and B.C. that is in partial settlement of the Haida Nation’s title claim in BC Supreme Court. The Haida Nation’s title claim against Canada remains extant.

[4]  The Honourable Lance S.G. Finch, “The Duty to Learn: Taking Account of Indigenous Legal Orders in Practice” (BC CLE: 2012): link.