Canadian Lawyer

10 J U N E / J U LY 2 0 1 9 w w w . c a n a d i a n l a w y e r m a g . c o m R E G I O N A L W R A P S A S K A T C H E W A N PROVINCE MAKES IT EASIER TO SEIZE PROPERTY L ast April, the Saskatchewan government had some bad news for nine individuals — it was coming after some of their stuff. The province gave notice to someone in Saskatoon via a govern- ment website that it intended to seize $360 it believes was either the alleged proceeds of a crime or an instrument of an unlawful activity. Saskatchewan also tried to let a seemingly unsavory Regina resident know it was going to keep $4,233.65 in cash it intended to take through the province's Seizure of Criminal Property Act. The entire haul for the month — unless the owners of the cash fight the seizure process and win — would be $19,392.50. Accord- ing to the provincial auditor, the Criminal Property Forfeiture Fund collected $1,014,268 from forfeitures in the 2017-18 fiscal year. That year, it doled out $111,525 in grants to police and non-profits. (The year before, the figure was much larger at $2.5 million.) But after amendments to the 2009 act that go into effect in June, the Saskatchewan government may well be making bigger hauls. The amended legislation expands the scope of the property or cash the government can seize from people it suspects — but doesn't necessarily have to prove — are engaged in unlawful activities. It goes beyond taking the proceeds of crimes to include property that may have been used to commit a crime, such as a car or home used to deal drugs. Property could also be seized in matters involving sexual offences, gang or terrorist activities or vehicles owned and used by people with a history of impaired driving suspensions. Proceeds from forfeited property will be used to fund victim services and compensation, policing initiatives and other pro- grams promoting community safety, Corrections and Policing Minister Christine Tell said in a news release. "These changes are designed to help combat serious crimes that threaten the safety of our communities." But is Saskatchewan going too far when it comes to civil forfei- ture laws? When the conservative Saskatchewan Party government announced the amendments, NDP justice critic Nicole Sarauer complained that the new rules could result in the province nabbing property from possibly innocent people. "Individuals who are sub- ject to these proceedings aren't necessarily convicted of a crime and they may never be convicted of a crime," she told the media. "The burden of proof on these is much lower than criminal proceedings. There's not legal aid representation for this." O N T A R I O BAY STREET FIRMS WORKING TOGETHER ON BLOCKCHAIN TECHNOLOGY S everal major Canadian law firms are working together on a pilot project to make a "smart contract" using Ethereum blockchain. Technology firm OpenLaw announced the project, which includes Bennett Jones LLP, Blake Cassels & Graydon LLP, Davies Ward Phillips & Vineberg LLP, Fasken Martineau Dumoulin LLP, Norton Rose Fulbright LLP and Stikeman Elliott LLP. The six-month pilot with a consultancy called GenesisB focused on automating a merger and acquisition escrow agreement, Open- Law said in the announcement. Doctoral candidate and legal researcher Amy ter Haar, who has worked with consultancies including GenesisB, on similar projects and studies smart contracts, teaches a course where anyone can set up a blockchain-based system. "It's really efficient when it's fully realized," she says. "I'm a big believer in what will be enabled through all kinds of projects like this." Bennett Jones partner Simon Grant, one of the lawyers who worked on the project, says it was a "phase one" trial that used a real escrow agreement and model but not client funds. Since the project, however, Bennett Jones has w o r k e d separately with clients on putting smart contract technol- ogy into practice, using skills learned in the OpenLaw project, says Grant. By removing the need for an individual to act as an escrow agent, he says, automation can be used not only in mergers and acquisitions but other types of transactions such as financing or even transactions where escrow isn't currently used because it is too complicated. "The collaboration . . . was among multiple law firms, but it was also between lawyers and programmers — being in the same room at the same time building this project for the ground up," says Grant. Toronto is a hub for exciting work on blockchain and other technology, he says. "What [technology companies] may not have is training on how contracts are understood and treated legally," says Grant. Anthony de Fazekas, head of technology and innovation for Norton Rose Fulbright Canada in Toronto, says it was important for companies such as OpenLaw to get the perspective of a variety of law firms, so different lawyers could have input on the legal parameters and standards of turning a traditional document-based contract into a smart contract. "We are already seeing the trend [toward smart contracts] in cli- ent projects. With a smart contract, you're going to need a law firm to sign off, from risk and liability and contractual standard point of view," says de Fazekas, who also participated on the project. While a document may become a set of coded processes in a smart con- tract, a lawyer will still need to know how to audit each process, to validate the different allocations of risk between the parties, he says. "That's why these projects are important to lawyers and to law firms," says de Fazekas. — Anita Balakrishnan " . . . there is no constitutional protection, no statute of any kind that I know of in Canada that says you have to actually be convicted of something to lose your property." Derek From, Canadian Constitution Foundation

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