Supreme Court strikes down provisions of Money Laundering Act as they apply to Lawyers

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:

 

1. there must be a legal principle;
2. there must be a significant societal consensus that they are fundamental to the way in which the legal system ought to operate; and
3. 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

Supreme Court of Canada Permits Physican-Assisted Suicide

In a landmark ruling, The Supreme Court of Canada overturned its decision from 22 years earlier and found in favour of a dying person's right to die with dignity.

The issue of physician-assisted suicide first came before the Supreme Court of Canada in 1993.  At that time, Sue  Rodriguez, a 42 year old woman suffering from amyotrophic lateral sclerosis (ALS) applied to the Supreme Court of British Columbia for the right to “die with dignity” and to permit a physician to help her end her life.  The matter was eventually appealed to the Supreme Court of Canada which held in a close 5 – 4 decision that the section of the Criminal Code of Canada (“Criminal Code”) which prohibited giving assistance to commit suicide was constitutional.  At that time, the Supreme Court held that the principles of “fundamental justice” in section 7 of the Charter of Rights and Freedoms (“Charter”), requires that a fair balance be struck between the interests of the state and those of the individual. 

The majority of the court held that the respect for human dignity, while one of the underlying principles upon which our society is based is not a principle of fundamental justice within the meaning of section 7.  The long-standing blanket prohibition in the Criminal Code against assisted suicide fulfils the government’s objective of protecting the vulnerable, is grounded in the state interest in protecting life and reflects the policy of the state that human life should not be depreciated by allowing life to be taken.  Such a blanket prohibition also seems to be the norm among Western democracies and such a prohibition has never been adjudged to be unconstitutional or contrary to fundamental human rights.  

 

The court held that Parliament's repeal of the offence of attempted suicide from the Criminal Code was not a recognition that suicide was to be accepted within Canadian society.  Rather, it merely reflected the recognition that the criminal law was an ineffectual and inappropriate tool for dealing with suicide attempts. 

 

The court found that it was preferable not to decide the difficult and important issues raised under section 15 of the Charter (prohibition of discrimination) but rather to assume that the prohibition on assisted suicide in the Criminal Code infringes section 15 since any infringement is clearly justified under section 1 of the Charter.  The impugned section of the Criminal Code has a pressing and substantial legislative objective and meets the proportionality test.  A prohibition on giving assistance to commit suicide is rationally connected to the purpose of the section which is to protect and maintain respect for human life. 

 

The dissenting judges wrote various opinions but essentially held that the particular section of the Criminal Code infringed the right to security of the person.  They ruled that the legislation has an element of personal autonomy which protects the dignity and privacy of individuals with respect to decisions concerning their own body.  A legislative scheme which limits the rights of a person to deal with her body as she chooses may violate the principles of fundamental justice under section 7 if the limit is arbitrary.  A limit will be arbitrary if it bears no relation to or is inconsistent with the objective that lies behind the legislation.  Here, it made no sense to have a legislative scheme which makes suicide lawful but assisted suicide unlawful.  The effect of this distinction was to deny to some people the choice of ending their lives solely because they were physically unable to do so, preventing them from exercising the autonomy over their bodies available to other people.  Such denial amounts to a limit on the right to security of the person which does not comport with the principles of fundamental justice. 

 

The dissenting judges held that section 15 of the Charter had no application in this case because the case was not about discrimination.  What was required was that in all cases that the judge be satisfied that, if and when the assisted suicide takes place, it would be with the full and free consent of the applicant.  Further, the dissenting judges held that section 7 of the Charter which grants Canadians a constitutional right to life, liberty and security of the person, is a provision which emphasises the innate dignity of human existence.  Dying is an integral part of living and, as a part of life, is entitled to the protection of section 7.  It follows that the right to die with dignity should be as well protected as in any other aspect of the right to life.  State prohibitions that would force a dreadful, painful death on a rational but incapacitated terminally ill patient were an affront to human dignity. 

 

In 2014, the matter was back before the Supreme Court of Canada in the case of Carter v. Canada (Attorney General) 2015 SCC 5,.  This time, the Supreme Court unanimously found in favour of the right to die with dignity.  The matter again was on appeal from the courts of British Columbia where the majority of the British Columbia Court of Appeal concluded that they were bound by the conclusion in Rodriguez as a matter of stare decisis. 

 

However, the Supreme Court invalidated the applicable sections of the Criminal Code to the extent that they prohibited physician-assisted suicide for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.  The court suspended the invalidity of the provisions of the Code for a period of 12 months in order for Parliament to enact legislation to address the court’s ruling.

 

In reaching its unanimous decision this time around, the Supreme Court held that the trial judge was entitled to revisit its decision in Rodriguez.  Trial courts may reconsider settled rulings of higher courts in two situations:  (1)  where a new legal issue is raised; and (2)  where there is a change in the circumstances or evidence that fundamentally shift the parameters of the debate.  Here both conditions were met.  The argument before the trial judge involved a different legal concept of section 7 of the Charter, in particular, the law relating to the principles of over-breadth and gross disproportionality had materially advanced since Rodriguez.  The matrix of legislative and social facts in this case also differed from the evidence before the court in Rodriguez.

 

The court held that the right to life is engaged where the law or state action imposes death or an increased risk of death on a person either directly or indirectly.  Here the prohibition deprives some individuals of life as it had the effect of forcing some individuals to take their own lives prematurely for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.

 

The rights to liberty and security of the person which deal with concerns about autonomy and quality of life were also engaged.  An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy.  Their prohibition denies people in this situation the right to make decisions concerning their bodily integrity and medical care and thus trenches on their liberty.  By leaving them to endear intolerable suffering, it impinges on their security of the person.

 

The prohibition on physician-assisted dying infringes the right to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice.  The object of the prohibition was not to preserve life whatever the circumstances but more specifically to protect to protect vulnerable persons from being induced to commit suicide at a time of weakness. 

 

Having concluded that the prohibition on physician-assisted dying violated section 7 it was unnecessary to consider whether deprived adults who are physically disabled of the right to equal treatment under section 15 of the Charter. 

Regards,

Blair 

Ontario Court Summarizes Criteria for Intervening as a "Friend of the Court" in Trinity Western University case

The Ontario Divisional Court (Justice Nordheimer) recently handed down its decision concerning criteria for parties who apply to intervene in lawsuits as "friends of the court" -  Trinity Western University v. Law Society of Upper Canada 2014 ) ONSC 5541.

 

Trinity Western University (“TWU”) is a Christian university located in Langley, British Columbia.  TWU submitted a proposal to establish a law school to the British Columbia Ministry of Advanced Education and the Federation of Law Societies of Canada in June of 2012.  The new law school is planned to open in September of 2016.

 

All TWU students, faculty and staff are required annually to sign a community covenant agreement which includes a commitment to voluntarily abstain from various conduct  including “sexual intimacy that violates the sacredness of marriage between a man and a woman”. 

 

TWU sought accreditation for its law school from a number of provincial law societies.  The Law Society of Upper Canada (“LSUC”) voted against the accreditation of TWU’s proposed law school.  TWU brought an application for judicial review to the Divisional Court of Ontario.

 

Subsequently, eleven motions were made for leave to intervene in the application on behalf of 14 organization and individuals:

 

1. Canadian Counsel of Christian Charities;
2. The Christian Legal Fellowship;
3. Justice Centre for Constitutional Freedoms;
4. The Association for Reformed Political Action Canada;
5. The Evangelical Fellowship of Canada and Christian Higher Education Canada;
6. Catholic Civil Rights League and Faith and Freedom Alliance;
7. Gerard P. Charette;
8. Canadian Association of Labour Lawyers;
9. Criminal Lawyers’ Association;
10. Out On Bay Street and OUTlaws;
11.  The Advocates' Society.

 

Justice Nordheimer set out the principles upon which a court should grant intervener status. 

Rule 13.02 of the Rules of Civil Procedure provide:  “any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument”. 

He then cited two instructive cases:  Peel (Regional Municipality) v. Great Atlantic and Pacific Company of Canada Ltd., where the Chief Justice of Ontario said:  “Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in the end, in my opinion, the matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the moving parties”.        

These basic principles were expanded upon as they apply to cases involving the Canadian Charter of Rights and Freedoms by the case of Bedford v. Canada (Attorney General) where the court said:  “Where the intervention is in a Charter case, usually at least one of three criteria is met by the intervener:  It has a real, substantial and identifiable interest in the subject matter of the proceedings; it has an important perspective distinct from the immediate parties; or, it is a well-recognized group with a special expertise and broadly identifiable membership base “.  

 

Having regard to both cases, Justice Nordheimer concluded that even under the principles set out in Bedford, a proposed intervener must still satisfy the basic requirement that their participation will result in them making a useful and distinct contribution not otherwise offered by the parties.  He also referred to the Supreme Court of Canada’s decision in R. v. Finta, where the Chief Justice (as she then was) stated: “The criteria under rule 18 [ now rule 57] require that the applicant establish:  (1) an interest; and (2) submissions which will be useful and different from those of the other parties”.

 

Finally, Justice Nordheimer found it helpful to mention three other principles that governed the granting of intervener status - first as a general principle, the threshold for granting intervener status in a public interest or public policy case is lower than it is for a private case; second, in Charter cases, courts recognize that it is important for the court to receive a diversity of representations reflecting the potential wide ranging impact of its decision; and, third, the fact that the proposed intervener is not indifferent to the outcome of the appeal is not a reason to deny it the right to intervene.  However, the court should take into consideration that there should be some balance between the positions to be advocated when granting intervener status, i.e. the court should not allow piling on.

 

Of the 14 proposed interveners in this case, the first 10 supported the position of TWU.  The final four supported the position of the LSUC.

 

Justice Nordheimer noted that there was some degree of overlap, albeit limited, with the positions of the interveners.   Each of the proposed interveners had a slightly different perspective on the issues raised.  

 

Justice Nordheimer held that the court process is not akin to a public consultative process where every conceivable difference of opinion or view is to be gathered and digested.  The principal focus of the court is to resolve the issues that are in dispute between the parties in accordance with the applicable legal principles but in doing so to be guided by considerations of the broader impacts that the court’s decision may have.  It is to this latter consideration that the interveners can provide assistance. 

 

As a result, he found that it was not necessary for seven organizations to be given intervener status in order to gain an appreciation of the right to freedom of religion and freedom of association.  Accordingly, out of the seven Christian organizations, he granted intervener status to the Christian Legal Fellowship and jointly to The Evangelical Fellowship of Canada and The Christian Higher Education Canada.

 

Justice Nordheimer granted intervener status to the Judicial Centre for Constitutional Freedoms as a non-religious organization.  It brought a different perspective to the issues. 

 

He did not grant intervener status to Mr. Charette who, as both a lawyer and an ordained Roman Catholic deacon, had concerns that appeared to be very much directed towards his own rights which were at that point hypothetical. 

 

As for the rights of gays and lesbians, he granted intervener status jointly to Out on Bay Street and OUTlaws. 

 

Finally, concerning the issue of the protection of the public and how regulator bodies should deal with accreditation decisions, Justice Nordheimer granted intervener status to The Advocates’ Society and the Criminal Lawyers' Association. 

Regards,

Blair