by Shelley Bentley

The BC Branch sponsors 72 Sections. They play a vital role in keeping members up-to-date on changes in the law and aware of legal and political issues affecting a given area of practice. They are the main resource utilized by the BC Branch in legislative review, law reform initiatives and in responding to matters affecting the profession. What follows is a sample of the recent activities of some Sections.

Freedom of Information and Privacy
Garth Barriere, recent Policy Director for the BC Civil Liberties Association (BCCLA), appeared before the House of Commons Standing Committee to address members of parliament on Bill C-36, the new Anti-Terrorism Act, on behalf of the BCCLA. At a recent meeting he reviewed a number of the 20 different statutes to be amended by Bill C-36.

1. Criminal Code
a. Terrorist Activity Definition
Mr. Barriere noted the breadth of the Bill, which even amends the criminal law of first degree murder. The amendment deems any indictable offence causing death where the act or omission constituting the offence also constitutes a terrorist activity to be first degree murder.

The definition is very broad and includes activities which he does not think the public would view as terrorist activity. Non-violent civil disobedience such as blocking a road to a nuclear facility or an environmental protest blocking a bridge would be included. Those acts, which might be criminal in nature, should not be swept up into the definition of terrorism, subjecting persons committing such acts to the force of the other provisions.

b. Preventative Arrest Procedures
New preventative arrest procedures allowing detention for up to 72 hours, have a much lower application threshold. Previously the Criminal Code required “reasonable grounds” for believing a person was about to commit an indictable offence; now a peace officer must only “suspect” on reasonable grounds that an arrest is necessary to prevent a terrorist activity.

c. Deletion of Computer Hate Propaganda
Deletion of material from computers or Web sites considered hate propaganda is authorized. It extends to information on personal Web sites rather than information that is disseminated or published. The level of proof required to prove promotion of hate propaganda is changed from “beyond a reasonable doubt” to “a balance of probabilities.” The BCCLA contends that this will have the effect of assisting censorship while making it more difficult for the accused to defend the subject material on the basis that it is the truth or a valid opinion on a religious subject or is in the public interest.

d. Investigative Hearing Procedures
The investigative hearing procedures amendment requires individuals to produce information and documents during an investigation, prior to charge or trial. He believes this provision is a severe transgression of the principle that individuals, as autonomous agents, have the right to choose when to speak and to whom. While the prevention of large scale terrorist activities may justify extraordinary measures, Mr. Barriere notes this challenge to the legal right to remain silent in the presence of state authority should not become a fixture in our society.

2. Official Secrets Act
Amendments to the Official Secrets Act would allow for the discretionary designation of a person as a “person permanently bound to secrecy”, thereby adversely affecting a person’s right to freedom of expression.

3. National Defence Act
The amendment legalizes the Communications Security Establishment (CSE) that formerly existed under the the National Defence Department. The CSE is part of “Echelon,” an international spy organization which includes the U.S., Canada, Australia, New Zealand and the European Economic Community, that intercepts satellite communications from around the world. In theory U.S. law enforcement agencies could spy on Canada but the CSE cannot spy on Canadians and vice versa. Mr. Barriere noted that there are no guaranteed protections of private communications. He suggested that amendments should provide for protections that, at minimum, mirror those found in the Privacy Act.

4. Canada Evidence Act
Changes would allow the Attorney General of Canada to prohibit disclosure of information in any proceeding to protect national security. In the first draft of Bill C-36, the reasonableness of the certificate was not open to review by a court. He noted that judicial review of all government action is a fundamental and irreplaceable component of the proper relationship among the three arms of government and the citizens they serve.

5. Privacy Act, Access to Information Act, Personal Information and Protection of Electronic Documents Act
Once the Attorney General of Canada issues a certificate these Acts do not apply. Various Privacy Commissioners across Canada attacked this provision. It was then amended to allow an individual to challenge the certificate in Federal Court on the basis of whether the very broad criteria for granting a certificate have been met.

Mr. Barriere expressed concern that Bill C-36 compels persons to speak in certain circumstances and displaces parliamentarians in determining civil and political rights. For instance, it will be left up to the executive to decide what protections of personal privacy are afforded individuals whose communications are intercepted by the CSE. Of greater concern, in his view, was the initial attempt to displace judicial involvement in supervising the discretionary decision-making powers at the ministerial level. Because of the uncertain impact of the provisions of Bill C-36 and the speed with which it was passed, Mr. Barriere also recommended that all the provisions of the Bill be subject to a sunset clause.

Taxation
Elaine Reynolds discussed the repeal of the U.S. estate tax. The U.S. estate and generation skipping taxes, but not the gift tax, will be eliminated by 2010 in a gradual phase-out. However, the 2001 Tax Relief Act contains a sunset clause. It provides that all provisions of this omnibus Act including the repeal of the U.S. estate tax do not apply for taxable years beginning after December 31, 2010. This means that without further congressional action the U.S. estate tax will only be repealed for the year 2010 and there will be a return to the current system in 2011. The unpredictability of this arrangement causes estate planning to approach “oxymoron” status.

Even for Canadian estate planners the U.S. estate tax presents a hurdle. For a non-U.S. citizen the U.S. estate tax applies to assets “situated” in the U.S. such as real estate or shares in a U.S. domestic corporation, regardless of whether these shares trade on a Canadian exchange.

Wills and Trusts-Vancouver
Kirsten Jenkins, of Bull, Housser & Tupper, presented a case comment reminding lawyers of the importance of ensuring that an attorney acting under a power of attorney should deal with assets in a way that does not disturb the carefully structured estate plan of the donor.

In Desharnais v TD Bank and TD Securities Inc (2001 B.C.S.C. 1695) Desharnais held a power of attorney for her incapacitated spouse, Hawthorne. He held an RRSP account at TD Bank that his spouse was advised to switch to TD Evergreen, a different company. Prior to becoming incapacitated Hawthorne had designated Desharnais as the beneficiary of this RRSP account. When acting in her capacity as attorney, she transferred the account to Evergreen and this designation was lost. As a consequence the RRSP funds formed part of the estate when Hawthorne died a short time later. Hawthorne left a will but Desharnais was not named as a beneficiary. The Court held TD liable for failing to advise Desharnais of the consequences of the transfer. The Court also noted that under section 49 of the Law and Equity Act, as attorney, she had no power to make a beneficiary designation on behalf of her spouse. Only an annuitant can make a designation.

Shelley Bentley is in private practice at G Davies & Company.

This article was published in the April 2002 issue of BarTalk. © 2002 The Canadian Bar Association. All rights reserved.