The Supreme Court of Canada decided last week in the case of
Attorney General of Canada v. Federation of Law Societies of Canada 2015 SCC
7, that the government should not interfere with a lawyer’s commitment to
his or her client’s cause. In doing so, the court held that commitment to the client’s
cause, was fundamental to the solicitor-client relationship. Lawyers
across the country welcomed the decision as a victory for the public and in providing clarity
to how the legal profession should deal with its clients.
The case involved an act cumbersomely entitled “Proceeds
of Crime (Money Laundering) and Terrorist Financing Act” (“Money
Laundering Act”). Parts of the Money Laundering Act and certain regulations
under the Money Laundering Act sought to require lawyers and law firms to
collect confidential information about their clients that could be subject to
search and seizure by the government. Alarmed by the prospect, the Federation
of Law Societies of Canada sought to a declaration from the court that such
legislation was unconstitutional. Several lawyers’ associations including
The Advocates’ Society, the Canadian Bar Association and the Canadian Civil
Liberties Association intervened in the case.
The Money Laundering Act requires financial intermediaries
(including lawyers) to collect, record and retain material, including
information verifying the identity of those on whose behalf lawyers pay or
receive money. It put an agency in place to oversee compliance with the
legislation and allowed that agency to search for and seize material. The
Money Laundering Act imposed fines and penal consequences for non-compliance.
Sections of the regulations made lawyers subject to the
Money Laundering Act when receiving or paying funds or giving instructions to
pay funds (other than in respect of professional fees, disbursements, expenses
or bail). Other sections of the regulations imposed record-keeping
requirements and yet other sections of the regulations imposed identification
requirements.
The Federation of Law Societies commenced a constitutional
challenge to the Money Laundering Act as it applied to lawyers. The challenge was brought in British Columbia and matter made its way to the Supreme Court of Canada.
The majority of the court struck down the sections of the
Money Laundering Act and the regulations that applied to documents in the
possession of lawyers and law firms. The majority held that those
provisions had a predominately criminal law character rather than an
administrative law character. They facilitated detecting and deterring
criminal offences and investigations in prosecuting criminal offences.
There were penal sanctions for non-compliance. The provisions authorized
sweeping searches of law offices which inherently risked breaching
solicitor-client privilege. The court held that the public's expectation of privacy in
solicitor-client privileged communications was high regardless of the context
and nothing about the regulatory context of the Money Laundering Act or the fact
that a regulatory agency undertook the searches diminished that expectation.
In addition, the court found that the impugned provisions wrongly transferred the
burden of protecting solicitor-client privilege to lawyers. Nothing in
the legislation required notice to be given to clients and clients may not even
be aware that their privilege was threatened. Unless the search was of a
lawyer’s home office, nothing required prior judicial authorization.
Searches were not contingent upon proof that there were no reasonable alternatives.
The court held that the provisions allowing warrantless searches are
presumptively unreasonable, examining and copying documents proceeded until
privilege was asserted and approached that greatly elevated risk of a breach of
privilege.
The search powers in the Money Laundering Act as applied to
lawyers along with the inadequate protection of solicitor-client privilege
constituted a very significant limitation of the right to be free of
unreasonable searches and seizures.
The court held that principles of fundamental justice have
three characteristics:
- there must be a legal principle;
- there must be a significant societal consensus that they are fundamental to the way in which the legal system ought to operate; and
- they must be sufficiently precise so as to yield a manageable standard against which to measure deprivations of life.
The court found that the lawyer’s duty of commitment to the
client’s cause meets this test. There was overwhelming evidence of a
strong and wide-spread consensus concerning the fundamental importance in
democratic states of protection against state interference with the lawyer’s
commitment to his or her client’s cause. That duty was fundamental to the
solicitor-client relationship and how the state and the citizen interact in
legal matters. The lawyer’s duty of commitment to his or her client’s
cause is essential to maintaining confidence in the integrity of the
administration of justice.
The Court concluded that the Money Laundering Act required lawyers to gather and
retain considerably more information that the profession thought was needed for
ethical and effective client representation. This coupled with the
inadequate protection of a solicitor-client privilege undermined a lawyer’s
ability to comply with the duty of commitment to the client’s cause.
Those offending sections of the legislation were unconstitutional and should be struck. Other sections that simply authorized the making of regulations were administrative, not criminal, in nature and did not infringe the Charter of Rights and Freedoms.
Regards,
Blair
No comments:
Post a Comment