Law Times

Law Times • march 12, 2018 Page 7 www.lawtimesnews.com A portrait of an SCC tigress BY PHILIP GIRARD F ew readers likely need an introduc- tion to Claire L'Heureux-Dubé or Constance Backhouse. L'Heureux- Dubé is the second woman ap- pointed to the Supreme Court of Canada, while Backhouse is an internationally rec- ognized feminist legal historian. What happens when you put these two women together, both icons and icono- clasts in their respective fields? You get a terrific biography of the former by the latter, Claire L'Heureux-Dubé: A Life, published by UBC Press and the Osgoode Society last fall. Some might quail at the size of this book, 545 pages before you hit the foot- notes. Don't. There are more than 150 photos for one thing, portraying the subject in situ- ations ranging from Claire L'Heureux- Dubé's appearance in a dramatic produc- tion at her convent school to dancing at her daughter's wedding. Aside from these, however, you will still be left wanting more after reading the last page. This is a sparkling, intimate account of a woman who always seemed larger than life, not just during her professional career but to those around her from her earliest days. The intimacy results from the un- precedented access that the author had to L'Heureux-Dubé, her family and friends, professional colleagues and others. Unlike many biographies that rely heavily on the subject's personal corres- pondence, this one is based on more than 200 interviews as well as extensive docu- mentary research. By the end, the reader will have no reason to doubt the Winnipeg-born author's wry observation that she came to know more about Quebec than Manitoba, more about her subject's life than her own family and, some- times, more about the judge than she knew herself. Although it was her aware- ness of L'Heureux-Dubé's groundbreaking opinions on sexual assault (Seaboyer and Ewanchuk), s. 15 of the Charter (Symes and Mossop) and family law (Moge) that encouraged the author to think about writing this biography, it is not primarily a study of her case law. Rather, it is a study of the "making" of a woman who was the second of her gender on the Quebec Superior Court, the first on the Quebec Court of Appeal and the second on the Supreme Court of Canada. Before that, she was one of only two women in her law class at Laval and the second woman to enter private practice in Quebec City. Backhouse richly contextualizes all these experiences, giving us glimpses into the barriers faced by women who were not as confident as L'Heureux-Dubé, who, when told that the study of law was for men and she should enroll in social work, demanded to know whether there was a law preventing her from registering for legal studies. Judges, fellow lawyers and clients were all unhappy with women lawyers in the 1950s, but her reputation as a fighter — she was nicknamed La Tigresse, the tigress — eventually won her some respect in these quarters. Yet, for all these firsts, L'Heureux-Dubé's relation- ship to feminism was an un- easy one, a common situation with the women who led the way in many traditionally male-dominated occupations. Indeed, her explicit disavowal of fem- inism on many occasions caused some puzzlement among those who saw her decisions as the very embodiment of fem- inist values. This disjunction made for some ten- sion with her feminist biographer, but it is a creative tension that informs the work. Backhouse critically engages with her subject on a variety of issues in addition to feminism, but she always presents L'Heureux-Dubé's views fairly, allowing readers to come to their own conclusions. L'Heureux-Dubé's professional suc- cesses are all the more surprising in light of the heavy burden of personal tragedy that she experienced. Some of the sorrows of her personal life are well known: the premature death of her troubled son, the suicide of her hus- band. Yet, from the beginning, she was ex- posed to illness, death and family con- f lict. Her father Paul was a strict disci- plinarian, while her mother Marguerite suffered from multiple sclerosis. When Marguerite required hospitalization at one point, Paul committed his daughters to an orphanage where they were mal- treated by the nuns. He could not accept Marguerite's dis- ability and they separated. Later, Lucie L'Heureux died of heart failure at the age of 20, a week after her older sister's bar exams. L'Heureux-Dubé felt these losses deep- ly, but they seemed only to strengthen her resolve to make the most of her life. As a judge, L'Heureux-Dubé did not particularly stand out on the Quebec courts. She seemed to find her voice on the Su- preme Court of Canada, however, writing forceful, sometimes dissenting opinions providing redress for those seeking rem- edies for discrimination based on sex and sexual identity. A risk-taking judge who was not afraid to espouse novel arguments, L'Heureux- Dubé came to be seen as an icon by vul- nerable communities. In perusing this book, I was reminded of the paradox of the irresistible force meeting the immovable object. What happens when they make contact? Read it and find out. LT uPhilip Girard is a legal historian and professor at Osgoode Hall Law School. He's also associate editor at the Osgoode Society for Canadian Legal History. His email ad- dress is pgirard@osgoode.yorku.ca. Beware the use of crypto-currencies BY NADIA CAMPION C rypto-currencies are the newest and big- gest trend in the financial industry. Fuelled by millennials who have grown up in the digital age, their popularity is reaching new heights. Retailers, educational institutions and even some law firms are now accepting Bitcoin or digi- tal tokens as a form of payment. Crypto-currencies — such as Bitcoin, Ethereum, Litecoin and others — have two things in common. Firstly, they use blockchain technology. Secondly, they face an uncertain but evolving regulatory future. No one knows how big the crypto-currency market is, who is involved (due to the often anonymous or encrypted nature of crypto-currency trading), how crypto- currencies are valued or whether crypto-currencies are a commodity, a currency or a security. It is inevitable that as crypto-currency and its uses continue to evolve, new legal issues will emerge that both lawyers and the courts in Ontario will have to ad- dress. These issues will include the expansion and appli- cation of existing legal remedies to fit the unique fea- tures of crypto-currency trading and overcoming chal- lenges that exist in enforcing rights and seeking redress against wrongdoers. The fact that crypto-currencies ex- ist as strings of code stored on a network of computers around the world where every transaction is encrypted is meant to make crypto-currency transactions more secure. However, the use of "hot wallets" and other measures designed to enhance security can make it ex- tremely difficult for investors who have suffered losses to trace funds or seek redress. Clients need to be aware of the risks around crypto- currencies. The Canadian Securities Administrators has is- sued warnings to investors about the risk of trading in crypto-currencies, alerting the public to the fact that the crypto-currency market is unregulated and may be subject to significant price volatility. Similarly, the Ontario Securities Commission has expressed serious concerns about crypto-currencies and digital tokens. Notwithstanding this, many investors are eschew- ing the warnings and ignoring the traditional corner- stones of investing, namely security, transparency and profitability, in pursuit of achieving significantly higher investment returns in the crypto-currency markets. But with higher returns comes greater risk, and in the unregulated world of crypto-currencies, the risks are considerable. There is great potential for fraud, misrepresentation and, quite simply, theft. These issues can arise for indi- vidual investors, but they have also plagued exchanges and trading platforms, which are largely unregulated and often operate offshore. Securities regulators have grappled with the question of whether trading in crypto-currencies engages securi- ties laws. Last year, in the face of a boom in initial coin offerings, the CSA and OSC made it clear that many of the digital tokens offered for sale in ICOs and later listed on exchanges fall within the definition of a "security." Digital tokens may, therefore, be subject to securities laws, including, among other things, requirements for filing of a prospectus with the OSC, dealer registration and ongoing compliance with the securities regulatory regime. Similarly, the Securities Exchange Commission and the United Kingdom's Financial Conduct Authority are on high alert and investing significant resources to protect investors, as demonstrated by their investi- gation and prosecution of a Quebec-based company, PlexCorps, allegedly involved in a fraudulent ICO. In- vestors in PlexCoin, a digital coin distributed by Plex- Corps, were told through social media that they would "take control of their money" on the promise of deliver- ing substantial returns (1,354-per-cent return) based on the appreciation in value of the PlexCoin. The SEC, and eventually Quebec's Autorité des marchés financiers, is- sued orders against PlexCorps and its directors and of- ficers to prevent them from continuing to engage in unregistered offerings and the distribution of Plex- Coin tokens. But is this enough? Likely not. The line between what regulators will consider a security and not a se- curity is blurry at best. This issue brings into focus the ultimate question — whether regulators have the au- thority and jurisdiction to regulate the crypto-curren- cy markets. Although regulators have provided some guidance, it is far from obvious which crypto-curren- cies will catch their attention. There is confusion and uncertainty in the marketplace, not only as to whether any given crypto-currency is subject to regulatory oversight but also as to which regulator is responsible for that oversight, depending on whether a crypto-cur- rency should be classified as currency, a commodity or a security. The result is that the courts are being asked to inter- vene and decide questions of regulatory authority and jurisdiction. For example, federal judges in a New York case brought by the SEC against Maksim Zaslavskiy and his companies are scheduled to rule on the ques- tion of whether digital currencies backed by invest- ments in real estate and diamonds (which did not ex- ist) are securities that can be regulated like stocks and bonds. In Canada, although there are no reported court decisions addressing these complex issues to date, there has been a surge in regulatory activities over the last six to eight months. At present, while interlocutory injunctive relief, in- cluding Norwich and Mareva orders, may offer some initial relief, recovering the losses suffered in a world without boundaries and in respect of digital tokens that are not backed by any tangible assets may prove to be a challenging task. Ultimately, it is up to the lawyers to help guide their clients through this increasingly complex digital world and to fill the legal and regula- tory gaps that currently exist in the crypto-currency markets. LT uNadia Campion is a complex commercial litigator at Polley Faith LLP. u SPEAKER'S CORNER COMMENT That's History Philip Girard

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