The Power of Perspectives

The Canadian Bar Association

Kim Covert


Rights and wrongs

By Kim Covert August 9, 2013 9 August 2013

Rights and wrongs

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Things to do with data once you're dead

By Kim Covert August 7, 2013 7 August 2013

It’s the oddest thing, when Facebook reminds you of a dead friend’s birthday.

It happened to me last week, jarred me out of my comfortable morning and made me sad for a bit. She had been more of an acquaintance than a friend, but I’d enjoyed her acerbic wit – never more than as I read her Facebook accounts of her tremendous but futile battle against cervical cancer, which took her in her mid-30s.

The first thing I wondered when I saw the birthday notice was why her husband hadn’t shut down her account. I can understand leaving it open for a time, to give people a place to leave condolence messages, but nearly two years later?

The most likely answer is he couldn’t access it.

Managing digital death – your own or someone else’s – is a growing concern in this linked-in world. Once something’s on the Internet it’s hard to pull it back – and harder still when that something is protected by someone else’s password.

In 2011, according to, 1.78 million Facebook users were expected to die worldwide. The same article notes, “generally, it is illegal for anyone but you, the account creator, to access your account – even with your express permission.”

You thought it was complicated deciding how to will the cottage to the kids – that’s nothing to managing your digital legacy, from Facebook to Twitter to Instagram, just to mention a few of the popular social networks. And then there are things like online gaming sites and others where you might actually have monetary assets in play. Each of these sites should have different passwords; each will have different protocols for closing accounts; and with today’s cloud computing, some of your assets might be housed on computers in different countries, with different laws. And that’s just for your personal online footprint – there can also be a wealth of professional and business accounts to contend with.

A July article in The Economist cites a paper by Maria Perrone in the journal CommLaw Conspectus about how Internet companies decide the fate of your digital corpus.

“(E)very company seems to have its own set of rules, procedures and terms of service. Some require a legal executor to make a request, while others honour requests from anyone who can prove a family connection or even a link to an online obituary,” the article states. “Facebook limits valid parties to requesting either that an account be removed or be turned into a memorial site. Twitter says bluntly that it can deactivate an account on presentation of several bits of information, but it is ‘unable to provide account access to anyone regardless of his or her relationship to the deceased.’”

A PD session at this year’s CBA Legal Conference in Saskatoon will look at the question of who has the rights to our data once we’re dead, and where Canadian law stands on the topic. The goal is to produce a white paper, and perhaps even a resolution dealing with the issue.

In the meantime, it might not be a bad idea for lawyers to urge clients to set up a digital executor – complete with passwords and consent forms, and directions on what to do with the deceased’s digital legacy.

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What’s in your wallet? Pension outlook bleak

By Kim Covert August 2, 2013 2 August 2013

The City of Detroit's declaration of bankruptcy in July couldn’t have come as a huge surprise to anyone who has watched the once-bustling Motor City’s sad and slow decline over the last decade. But the fallout no doubt came as a jolt to anyone counting on a city pension to fund a secure retirement.

As employees of former Canadian tech giant Nortel have already learned, making regular payments into a fund that is supposed to exist for your future well-being is no insurance against poverty in your senior years if your former employer declares bankruptcy – employees are often at the back of the line of creditors with a claim to the remaining assets.

And the problem doesn’t only show its face in cases of bankruptcy – Canadian-owned ratings agency DBRS investigated 461 pension plans in Canada, the U.S., Japan and Europe and reported in June that the average plan had only enough funding to pay 78.3 per cent of promised future benefits. The agency considers 80 per cent a minimum funding threshold.

So what is to be done? The CBA’s Pension and Benefits Law Section is putting forth a resolution to be debated at the CBA Legal Conference in Saskatoon in August that would encourage the federal government to enact legislation to promote the adoption and expansion of pension coverage. While the resolution also encourages the development of innovative pension plan designs, it notes “for many Canadians defined-benefit pension plans are often recognized as the least costly and most effective vehicle for delivering benefits and helping to ensure adequate retirement savings.”

The provinces have asked the federal government to expand the Canadian Pension Plan, and federal Finance Minister Jim Flaherty has proposed a framework for pooled retirement pension plans – which would be dependent on, and therefore welcomed by, the investment industry.

It’s generally accepted that no one is saving enough for retirement – for many people it’s a case of not earning enough to save, especially as the middle class continues to be gutted. People are encouraged to invest their money to benefit from compound interest and market gains, but market instability derails even careful personal retirement savings plans. Let’s face it, Warren Buffett wouldn’t be the Oracle of Omaha if everyone could read the market as well as he does – even those who understand the workings of the market can be left holding an empty bag when it goes into a sudden tailspin. The average person socking pennies away for the future can lack the capacity to recover from a market shock. The boomer cohort that will retire within the next 10 years will leave a much smaller workforce to pay into private and public pension plans. When you also hold out the spectre of more public-sector bankruptcies to come, the collective financial future looks pretty bleak.

“Rich” defined-benefit pension plans are fingered as culprits in the declining fortunes of the auto manufacturing industry, and are frequent targets of opponents of public service unions. But what might actually be necessary is effective government oversight – a 2005 New  York Times article titled The End of Pensions details some of the creative accounting that allows companies to take pension funding holidays. If companies can neglect their financial obligations with impunity, what recourse does a worker have?

Writing in the Globe and Mail following the news from Detroit, Don Pittis notes that pensions backed by governments with relatively low debt, including Canada’s, are safe for now, but, “In the wake of Detroit, employees and unions making deals with healthy governments and private sector employers must learn not to accept promises. They must demand that cash be set aside now, placed in a well-run fund, and managed for the long term.”

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Controlled substances and safe communities

By Kim Covert August 1, 2013 1 August 2013

Controlled substances and safe communities

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Court system an abusive one for victims of FASD

By Kim Covert August 1, 2013 1 August 2013

The criminal justice system can be an abusive one for children and adults with the kind of disability that robs them the ability to foresee the consequences of their actions, says a lawyer who is intimately acquainted with the problem.

Corey La Berge has been the deputy Children’s Advocate for Manitoba since January. Prior to that he spent years working with people suffering from Fetal Alcohol Spectrum Disorder both in and out of the courtroom, and he says even he doesn’t always recognize the symptoms of a client with FASD. Society’s inability to recognize – and accommodate – the disability is doubly punishing for its victims, he says.

“We are abusive because we expect people to live in a world that’s not accommodating them and then we blame them for their failure,” says La Berge. “The opportunity cost, I find, is overwhelming. We’re taking all these children and we are blaming them and punishing them for their behaviours – that are normal behaviours that we can expect to see (in someone with FASD); calling them criminals.”

Any alcohol intake during pregnancy exposes the fetus to the risk of FASD, which can cause a number of problems – and since it’s a spectrum disorder, it can present differently in each victim. Many – though not all – victims of FASD will come before the courts for reasons including poor impulse control and impaired judgment. Quite often people with this disorder will also have a background of abuse or domestic instability – La Berge says the disability can be the least of their problems.

There are no hard numbers on the prevalence of FASD in Canada. The most-quoted statistic, an estimated 9.1 of every 1,000 births, or approximately one per cent of the population, is from 2006 and based on U.S. data. Small localized studies have shown a higher prevalence in certain areas – La Berge says, for example, that Manitoba statistics show 17 per cent of the kids in care in that province have FASD.

It’s a disability with no cure, but an early diagnosis can help if only because officials and support workers know what they’re dealing with and reset their expectations accordingly. The diagnosis becomes the treatment – and is especially important in the criminal legal system.

“If you’ve got a client in a wheelchair, the court’s not going to order that they do a bunch of jumping jacks every day,” says La Berge. “So I don’t see the difference if they’re being court-ordered with conditions that I know they cannot meet.”

At the CBA Legal Conference this month in Saskatoon, council members will be asked to debate a resolution that among other things will call on the federal government to amend the Criminal Code to provide a legal definition of FASD; allow a judge to order an FASD assessment of an accused adult; and allow the diagnosis to be a mitigating factor in sentencing. It would also ask that Correctional Service of Canada be required to accommodate FASD as a disability.

“The most important amendment that we could make to the Criminal Code, and certainly it’s more than justified, would be the ability to order an assessment,” says La Berge. “Judges should be able to know whether the accused in front of them has a disability that is impairing their ability to instruct counsel or participate meaningfully in the process.”

La Berge hopes to use his new position to do a better job of educating people about how FASD affects children, youth, and the adults they become.

“I hear people say … that we’re far too lenient and we have to punish these kids, and that’s been reintroduced a bit in (recent criminal code) legislation. I think to myself, ‘man, you just have no idea.’ These kids – their lives have just been full of punishment.”

The answer isn’t to put resources toward stricter penalties for offenders or restricting judicial discretion in sentencing.

 “Why aren’t we investing money in creating healthy places for people to live, keeping children safe, keeping adults safe in community, supporting people – giving them opportunities instead of just setting them up for failure and investing in police and prosecution and defence and judges?”

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