The Power of Perspectives

The Canadian Bar Association
Family law

How to address cryptocurrencies during a divorce

By Garrett Horvath and Liam Cummings March 27, 2018 27 March 2018

How to address cryptocurrencies during a divorce

 

Bitcoin and other cryptocurrencies are a hot ticket right now. Originally a way for underground anonymous transactions, digital currencies have picked up steam after investors and speculators found they could double their money quickly (or lose it just as fast). The most well-known cryptocurrency, Bitcoin, peaked at over $24,000 CAD in December and is currently sitting at roughly $ 10,400.

Where Bitcoin is headed is anyone’s guess, but for now at least there is clearly value in it and other digital currencies. And separating couples have taken notice, which is why divorce lawyers need to get up to speed on what  to do when their client or the opposing party has purchased cryptocurrency during the relationship.

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Legal innovation

Trust technology: Rethinking smart contracts for the future

By Ann Macaulay March 26, 2018 26 March 2018

Trust technology: Rethinking smart contracts for the future

 

Blockchain purists imagine a world that eventually has no banks or insurers as we currently know them, one in which lawyers operate in a different way, says Usman Sheikh of Gowling WLG in Toronto.

The disruptive potential of blockchain “will change the fabric of our society,” and create significant upheaval in the legal profession, says Sheikh, describing the potential impact on lawyers as revolutionary.

Blockchain technology is “one of the most disruptive, impactful technologies to have been invented, some say since the early days of the Internet,” says Sheikh, who heads his firm’s Blockchain & Smart Contracts Group, although how things will evolve remains uncertain.

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The profession

After IGGillis Holdings: Protecting privilege when giving common legal advice

By Mark Tonkovich and Stephanie Dewey March 26, 2018 26 March 2018

After IGGillis Holdings: Protecting privilege when giving common legal advice

 

The Federal Court of Appeal’s recent decision in IGGillis Holdings brings comfort and certainty to transactional and advisory lawyers working collaboratively in today's complex legal environment.  While the case arose in the context of a tax audit, its teachings on privilege should reach all areas of practice.

IGGillis Holdings soundly affirms that sharing legal advice with other transacting parties, or working together with other parties' lawyers to develop that legal advice, will not waive solicitor-client privilege where the collaboration is done in pursuit of a transactional common interest.  As explained in CBA National last fall, the CBA intervened in this closely-watched appeal to assist in fully canvassing the underlying issues and the common practices of the Canadian bar.

The CBA argued in its factum that "[t]he more significant and complicated a legal issue, the more likely that clients will engage teams of specialized lawyers across multiple firms to jointly provide legal advice to them."  The practice of active collaboration between different parties and their respective lawyers was thrown into serious doubt by the Federal Court's earlier ruling, which held that the common interest exception to the waiver of privilege rule did not apply in the transactional or advisory (non-litigation) context. 

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Criminal law

The SCC interprets influence peddling broadly

By Yves Faguy March 23, 2018 23 March 2018

The SCC interprets influence peddling broadly

The Supreme Court dismissed Bruce Carson’s appeal, affirming his guilt on influence peddling charges in connection with his efforts to help a company sell water treatment systems to First Nations.  In an 8-1 ruling (Justice Suzanne Côté is the one dissenter), the top court noted that the former aide to then Prime Minister Stephen Harper admitted that he “was a person who had influence with the Government of Canada at the time…” The Criminal Code makes it a crime to sell influence “in connection with any matter of business relating to the government.” The Court wrote:

Simply showing that the accused accepted a benefit in exchange for promising to influence government does not suffice to make out the offence. Nevertheless, the phrase “any matter of business relating to the government” must be interpreted broadly. Reading the words of this phrase in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament, a matter of business relates to the government if it depends on government action or could be facilitated by the government, given its mandate. Matters of business relating to the government include publicly funded commercial transactions for which the government could impose or amend terms and conditions that would favour one vendor over others. The phrase “any matter of business relating to the government” must not be restricted to matters of business that can be facilitated by government under its existing operational structure. The offence captures promises to exercise influence to change or expand government programs.

The trial judge had acquitted Carson on account of the fact that it was up to the First Nations – not the government – to decide on whether to make the purchase.

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Privacy

Cambridge Analytica fallout: How will GDPR be enforced?

By Yves Faguy March 23, 2018 23 March 2018

Cambridge Analytica fallout: How will GDPR be enforced?

Jessica Davies warns that in the aftermath of Cambridge Analytica’s harvesting scandal, businesses are going to have get wise quickly about making sure they will be compliant with the EU’s General Data Protection Regulation (GDPR) – coming into force in May.

The question on a lot of minds, up until now, has been how 28 different countries will enforce the regulation, which has extra-territorial reach.

Jess Geary also digs into the issue:

Post-GDPR, the data is back in the control of the consumer. As of May 25th, 2018, consumers will be able to request what data is being held about them and they will have the right to be forgotten and, more importantly, get greater clarity on transparency on how their data is being used. The emphasis is now on the brands to negotiate this new opt-in world successfully – or they face a fine of €20m or 4% of global turnover.

This increasing scrutiny from consumers is only going to get worse, especially with more and more high profile data breaches (I am confident there will be more). So how do businesses and brands tackle this growing scepticism from consumers, in an age where data is becoming more powerful and valuable than ever?

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Corporate counsel

2018 In-House Counsel Compensation Survey: How do you measure up?

By CCCA-ACCJE March 22, 2018 22 March 2018

2018 In-House Counsel Compensation Survey: How do you measure up?

The 2018 In-House Counsel Compensation & Career Survey results are in! Now in its fifth wave, the survey, developed jointly by the CCCA and The Counsel Network and conducted by Bramm Research, provides the most up-to-date and robust analysis of in-house counsel compensation in Canada. It measures and benchmarks compensation packages, and reports on career-related topics and trends for Canada’s in-house counsel community.

Highlights of the survey include the following:

  • The impact of an aging workforce is being felt. This year’s sample consists of a greater percentage of respondents with fewer years in the profession than in 2016. In the previous study, 30% of the sample had fewer than 10 years in practice. This year, that percentage has climbed to 40%. A by-product of this shift is that we have more respondents this year in a lower salary range and fewer respondents with more experience earning higher salary ranges.

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Privacy

Cambridge Analytica: The legal implications for Facebook and everyone else

By Yves Faguy March 21, 2018 21 March 2018

Cambridge Analytica: The legal implications for Facebook and everyone else

Facebook is clearly in trouble over allegations that the social media giant has been derelict in its duty to protect its users’ privacy, in the wake of revelations that the British firm Cambridge Analytica harvested information, without permission from the Facebook profiles of more than 50 million of its users.  Facebook is now facing multiple investigations in several countries -- never mind the lawsuits piling in.

The US Federal Trade Commission looking into whether Facebook violated its 2011 settlement by allowing the misuse of user data ostensibly collected for academic research.

In the UK, Facebook CEO Mark Zuckerberg has been personally summoned to appear before a House of Commons committee to give testimony on the latest developments in the matter.

The EU is hinting, too, that major fines may be on the way.

And now the Office of the Privacy Commissioner of Canada is now launching its own investigation.

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Voting rights

SCC to hear case on expat voting rights

By Justin Ling March 20, 2018 20 March 2018

SCC to hear case on expat voting rights

At a time when foreign influence in domestic elections is at an all time high, the Supreme Court will finally hear arguments tomorrow in favour of why outside agitators should be allowed to participate in Canadian elections. In so doing, the top court is set to tackle the definition of what, exactly, is in the Canadian social contract.

It’s not exactly Russian propaganda, however.

In 2015, the Ontario Court of Appeal ruled that section 11(d) of the Elections Canada Act, which bars Canadian expats who have been out of the country for more than five years from voting, was constitutional. In so doing it overturned a lower court ruling which struck down the section.

The legislation effectively disenfranchises more than a million Canadians living abroad, although Ottawa has held that such a prohibition is within international norms (as CBA National has written previously, that is not even remotely true in the G7 context, where most countries allow full franchise for non-resident citizens.)

Two Canadians living in the United States, who launched the lawsuit, contend otherwise. Pointedly, they write in their factum to the top court that “the disenfranchisement of Canadian citizens in this case cannot be saved by s. 1 of the Charter.”

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Constitutional law

Untying the Blackmore case from the Polygamy Reference

By Beverley Baines March 19, 2018 19 March 2018

 

The recent ruling by the Supreme Court of British Columbia upholding the polygamy convictions of Winston Blackmore and James Oler raises three problematic questions, constitutionally speaking, about due process, the binding nature of reference opinions and the rules revisiting earlier decisions.

In 2011, the B.C. Supreme Court upheld Canada’s anti-polygamy laws in a much-publicized reference decision. In her ruling in  Blackmore, Justice Sheri Ann Donegan followed the opinion of then Chief Justice Richard Bauman in the Polygamy Reference. She viewed his opinion about the constitutionality of the polygamy prohibition as a binding judgment.  For the reasons discussed below, she should have untied her decision from his.

The first question raised by the Blackmore ruling is whether Justice Donegan adhered to due process when she raised the issue about the constitutionality of s. 293 of the Criminal Code banning polygamy. There is no indication in Justice Donegan’s otherwise detailed judgment that she gave the applicants, Winston Blackmore and James Oler, any notice of her intention to raise the issue of the constitutionality of section 293. Neither Mr. Blackmore or Mr. Oler argued this issue. Justice Donegan confirmed that “Mr. Blackmore specifically does not challenge the constitutionality of the polygamy provision” (emphasis in original).

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Division of powers

A pan-Canadian securities regulator at last?

By Justin Ling March 19, 2018 19 March 2018

A pan-Canadian securities regulator at last?

It’s déjà vu, all over again, as the Quebec government heads to the Supreme Court to try and nix an opt-in national securities regulator.

The case is the culmination of a fight that originally began as a crowd-pleasing compromise solution.

A provincial history: In 2011, the top court considered in a reference case the constitutionality of a proposed national securities regulator and unanimously concluded “that the day-to-day regulation of securities […] essentially remains a matter of property and civil rights”, which falls under exclusive provincial jurisdiction.

It also held that the nature of a financial market “may, in principle, support federal intervention that is qualitatively different from what the provinces can do,” but ultimately concluded that, despite their fundamentally intertwined nature, they couldn’t be managed by a single desk — at least not by Ottawa’s edict. The court called that the “wholesale takeover of the regulation.”

Instead, the court said that a “cooperative approach” which would allow for “the essentially provincial nature of securities regulation” could work, while simultaneously addressing national issues “remains available and is supported by Canadian constitutional principles and by the practice adopted by the federal and provincial governments in other fields of activities.”

It was invitation of sorts to Ottawa to figure out a voluntary system.

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Privacy

The law is failing at meeting our privacy expectations in a digital world

By Kristina Yeretsian March 16, 2018 16 March 2018

The law is failing at meeting our privacy expectations in a digital world

 

The interaction between digital proliferation and the law is growing increasingly complex, as courts are confronted with fundamental questions about our reasonable expectations of privacy in an online world.

The Supreme Court of Canada’s recent ruling in R. v. Marakah is a case in point. Marakah centers on text messages, and whether it is reasonable for a sender to have an expectation of privacy over messages once they have been received in the recipient’s phone. The appellant, Nour Marakah, sent text messages regarding illegal transactions in firearms. The police seized both Mr. Marakah’s BlackBerry and his accomplice’s iPhone, and found incriminating text messages. The police charged him and sought to use the text messages as evidence against him. In one of her final criminal law decisions, then Chief Justice Beverley McLachlin wrote for the majority, concluding that under s. 8 of the Charter of Rights and Freedoms, people have a reasonable expectation of privacy as to the contents of the text messages they send. McLachlin’s reasoning was consistent with the analysis of the United States’ Chief Justice John Roberts in a 2014 ruling, Riley v. California, where his court unanimously held that the warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional.

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Ethics and criminal justice

Reconciliation in Canada’s legal system

By Ann Macaulay March 16, 2018 16 March 2018

Reconciliation in Canada’s legal system

 

Lawyers, judges, law schools and legal organizations have a long and challenging road ahead in addressing historic and current deficiencies in how Indigenous peoples are treated in the Canadian legal system. Of the 94 calls to action in the Truth and Reconciliation Commission’s 2015 report, two are specifically directed towards the legal profession. One calls upon the Federation of Law Societies to ensure that lawyers receive cultural competency training. The other calls upon law schools to require that all law students take a course in Indigenous peoples and the law.

“Indigenous lawyers can only do so much,” said Koren Lightning Earle, Indigenous Initiatives Liaison at the Law Society of Alberta in Calgary, who spoke at a March CBA-FLSC Ethics Forum in Toronto on steps lawyers and the legal system can take to achieve reconciliation with Indigenous peoples. “Part of the next step of reconciliation is now that we know the truth, we have to deal with it, we have to swallow it, we have to move forward.”

Between 1831 and 1996, more than 150,000 First Nations, Inuit and Métis children were removed, sometimes forcibly, from their families and sent to residential schools. This was “designed to assimilate Indigenous children into Canadian society by eliminating parental involvement in their spiritual, cultural and intellectual development,” said moderator Paul Schabas, Law Society of Ontario Treasurer. Reconciliation is still at the beginning of the process, he added. 

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