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| Michael D. Lucas |
The law society, other legal organizations, the profession and even opposition parties view the new Act with concern. In particular are concerns that the Act is an incursion on lawyer independence, a right that is fundamental to the working of the Canadian justice system. Despite the concerns identified, the government does not see a problem.
The rule of law is a fundamental constitutional postulate of Canada’s constitutional structure. Because the rule of law is devised, in part, to control the powers of the state, there must be a division amongst those who make the law, those who interpret and apply it and those who enforce it. An independent judiciary has thus been recognized as a necessary component of the rule of law, but full protection of the rule also requires a strong, independent, properly qualified legal profession to support it:
In the absence of an independent legal profession, skilled and qualified to play its part in the administration of justice and the judicial process, the whole legal system would be in a parlous state (Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at p. 187).
Without the dignity, independence and integrity of the bar, impartial justice and the maintenance of the rule of law are impossible.
While the Act was being debated, the Attorney General advised that the Act did not interfere with the independence of a lawyer in their ability to represent a client. Presumably, if the Act does not in its own precise words interfere with a lawyer’s ability to provide legal services or interfere in the lawyer’s relationship with a client, then the Attorney is comfortable that “lawyer independence” is not affected. It would be a mistake for anyone to feel comfortable with that proposition.
This is because the proposition relies on a very limited understanding of what “lawyer independence” actually is. It is important to understand how the Act gives Cabinet new powers over the legal profession that could be manipulated to serve the interests and biases of any particular government.
Legislation that told a lawyer what the lawyer’s duties were to a client, how those duties had to be discharged and what considerations a lawyer must take when advising a client on legal matters would obviously violate the lawyer’s independence. And, in fairness, this point seems to be understood by the government.
But legislation that is silent on those points can still cause significant harm to the independence of the legal profession by interfering with the operations of the regulatory body set up to regulate the profession. In an oft-quoted passage, the courts have said:
Lawyers could not advise citizens as to their responsibilities with respect to particular legislation or governmental action if they cannot maintain their independence as individuals. It is almost impossible to do this if the society that governs them is under the day-to-day control of government. It is imperative that the public have a perception of the legal profession as entirely separate from and independent of government, otherwise it will not have confidence that lawyers can truly represent its members in their dealings with governments (LaBelle v. Law Society of Upper Canada (2001), 52 O.R. (3d) 398).
In other words, the individual independence of lawyers, which the government has focused on in the preparation of its legislation, is nevertheless still dependent on the institutional independence of the body that regulates them. If the regulatory body is under external control — if it is not self-regulating — then individuals or groups other than lawyers can set ethical requirements, professional duties and rules about how an individual lawyer is to represent a client and what professional misconduct would disqualify a lawyer from so acting. There may be nothing overt in the legislation setting out interference by the state, but the very structure the statute sets out can nevertheless take away the profession’s independence to determine ethical, professional regulatory and qualification standards, and that is where the interference with the independence of the bar can be most insidious. The Supreme Court of Canada’s decision in Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869 was clear on this point by approving the following:
Professional misconduct is a wide and general term. … No one is better qualified to say what constitutes professional misconduct than a group of practicing barristers who are themselves subject to the rules established by their governing body.
This is why the Supreme Court also held, in Canada (Attorney General) v. Law Society of British Columbia, [1982] 2 S.C.R. 307, that
Consequently, regulation of … members of the law profession by the state must, so far as by human ingenuity it can be so designed, be free from state interference, in the political sense (pp 335-336).
Direct legislation setting the standards is clearly wrong. But creating legislation that allows interference by other bodies in setting the standards is also wrong. An independent bar requires the profession to set the duties and standards, creating the basis on which lawyers are qualified to practise law and how they are to act, in a manner free from interference in the political sense. When creating legislation to regulate the legal professions, the government must design the legislation “so far as by human ingenuity it can be so designed” to keep the regulation free of interference by the state or other — especially political — actors. This is necessarily a very high bar because an effective rule of law depends on it.
This is what the government appears to have misunderstood. While the new legislation does not set out specific words of interference in the relationship between a lawyer and client, it is not “so far as by human ingenuity it can be so defined” free of permitting interference by external actors in the standards of conduct, conditions of qualification or creation of duties and obligations of lawyers.
Instead, the Act is rife with specific legislative directives on what the regulator must do. The legislation also creates requirements for the provincial Cabinet to create new legal professions and to set out the scope of practice for those professions. While the Act states that the regulator has the duty to ensure the independence of its licensees, it nowhere defines independence as freedom from political interference. In fact, it never defines independence at all.
And then there is the power to make regulations. Given the definition of “regulation” under the Interpretation Act, the new legislation will give Cabinet the ability to pass any rule — for example, requirements for professional conduct —– that the regulator could pass. Moreover, the Act gives primacy to the rules passed by Cabinet over those passed by the regulator. In other words, where the Act requires the regulator to create rules of conduct and qualification (something that might be viewed as consistent with the independence of the bar from the state), there is a Sword of Damocles hanging over the regulator and the profession such that at any time it so desires, Cabinet can override any rules of competence, conduct or qualification of legal professionals, and replace them with ones Cabinet likes better. This clearly creates the ability for the executive, through an Order in Council, to interfere with the independence of the bar in pursuit of political motives should that be desirable for the government’s agenda.
None of this can be said to be, by any measure, consistent with either the spirit of the Rule of Law or the legal principles set out by the Supreme Court of Canada that require regulation of members of the legal profession to be free from state interference “so far as by human ingenuity it can be so designed” that is necessary to protect the rule of law.
It is unfortunate that the government, when preparing the legislation, did not seem to appreciate this and distressing that it was not prepared to invest a little more human ingenuity to design a process that does not interfere with a principle that is important to the preservation of the rule of law.
Michael D. Lucas, KC, is general counsel and senior policy counsel for the Law Society of British Columbia.
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