Canadian Lawyer

12 S E P T E M B E R 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m \ AT L A N T I C \ C E N T R A L \ W E S T REGIONAL WRAP-UP B .C. mining lawyers say that the newly released U.S. Securities Exchange Commission's second stab at its transparency rule, aimed at curbing corruption and bribes to government officials in the resource sector, goes a long way in levelling the playing field for Canadian companies working abroad. In a global oil, gas and mineral sector, the SEC rule puts the same disclosure obligations on U.S. resource companies as those in many other countries, including Canada. The SEC said in a June 27 press release that the reporting requirements are in line with the European Union Accounting and Transparency Direc- tives (as implemented in the European Union or the European Economic Area member countries), Canada's Extrac- tive Sector Transparency Measures Act and the U.S. Extractive Industries Transparency Initiative. "I think it is a good thing — it levels the field," says mining lawyer Brian Abraham, co-chairman of Dentons' Mining Group. Canada enacted its ESTMA on Dec. 16, 2014 and it was brought into force on June 1, 2015. The "publish what you pay" Act is meant to support corruption offences outlined in the Criminal Code of Canada and Canada's Corruption of Foreign Public Officials Act. The ESTMA imposes requirements that resource extraction companies must disclose payments to government, government officials or representatives. The only exception is reporting payments to First Nations government, which has been delayed from implementation until 2017. Abra- ham says there are early indications from the new Trudeau government that this clause in Canada will not be imple- mented. elsewhere as something "no one could believe." This is not the first conviction obtained using cellphone records and GPS information, but its facts are an unambigu- ous indication of where the law is going and what kinds of evidence prosecutors will be expected to present and defence counsel will be expected to deal with. Lisa Silver, who teaches law at the University of Calgary and has blogged on the case, says it is "a persuasive example of a 'smart' prosecution." She points out that the Crown gathered disparate technological facts and rather than "just putting in the evidence . . . . weaved a story around it." Silver says "technology is all around us, we have to be mindful of it, and mine it for our clients' benefit." The prosecution may have been "smart," but the defence was vigorous. Before the trial, Didechko's legal team launched a Charter challenge against the admissibility of the evidence obtained from the car's GPS, the cell towers and Didechko's cellphone. But Justice Frederica Schutz, in a lengthy, detailed, 308-paragraph judgment, found the production orders and sometimes warrantless searches were reasonable and that Didechko's s. 24(2) and s. 8 Charter rights had not been infringed and his protection against unreasonable search and seizure had not been violated. The rise in the use of cellphone records and GPS data in prosecutions leaves some of the defence bar and privacy advo- cates uneasy. Groups such as the Ottawa-based Public Interest Advocacy Centre, while primarily concerned with use of cell- phone information in the marketplace, has concluded that the law is falling behind technological advances. Ann Cavoukian, a long-time privacy advocate and now executive director of Ryerson University's Privacy and Big Data Institute in Toronto, says, "There is enormous concern . . . with the police use of technology to capture private information." Cavoukian says she is "absolutely certain" there will be increased police activity in this area, "which is why we have to insist on proper authorization." The University of Calgary's Silver says the defence bar has to start dealing with "the courtroom of the future." She even characterizes the increased challenges as "exciting. . . . It's almost like there's a private investigator in the background at all times . . . and we have to, as I have said, mine that as litiga- tors." — GEOFF ELLWAND writerlaw@gmail.com Cellphone and GPS mining lead to Edmonton hit-and-run conviction despite no witnesses Continued from page 11 Mining lawyers welcome SEC transparency rule

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