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Saskatchewan Doctor's Strike 1962 Part 2

Saskatchewan Doctor's Strike 1962 Part 1

Thursday, March 19, 2015

The Independence of the Bar is Fundamental to Canada's System of Justice: Advocates' Society



Court File No. 35399

IN THE SUPREME COURT OF CANADA

(ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA) BETWEEN:


ATTORNEY GENERAL OF CANADA


Appellant



-   and -

THE FEDERATION OF LAW SOCIETIES OF CANADA


Respondent

-   and -

LAW SOCIETY OF BRITISH COLUMBIA, CANADIAN BAR ASSOCIATION, BARREAU DU QUÉBEC ET CHAMBRE DES NOTAIRES DU QUÉBEC, CRIMINAL LAWYERS’ ASSOCIATION, CANADIAN CIVIL LIBERTIES ASSOCIATION AND THE ADVOCATES’ SOCIETY


Interveners


FACTUM OF THE INTERVENER, THE ADVOCATES’ SOCIETY

(Pursuant To Rule 42 Of The Rules Of The Supreme Court Of Canada)







Lawyers for the Intervener The Advocates’ Society

STERN LANDESMAN CLARK LLP
Suite 1724, 390 Bay Street Toronto, ON  M5H 2Y2

Paul D. Stern
Tel: 416-869-3422
Fax: 416-869-3449

Agent for the Intervener GOWLINGS LLP

160 Elgin Street, Suite 2600 Ottawa, ON  K1P 1C3

Ed Van Bemmel Tel: 613-786-0212
Fax: 613-788-3500




PALIARE        ROLAND        ROSENBERG ROTHSTEIN LLP

155 Wellington Street West, 35th Floor
Toronto, ON  M5V 3H1

Robert A. Centa Tel: 416-646-4314
Fax: 416-646-4301



Lawyers for the Respondent

HUNTER LITIGATION CHAMBERS
2100 – 1040 West Georgia Street Vancouver, BC  V6E 4H1

John J.L. Hunter, Q.C. Tel: 604-891-2400
Fax: 604-647-4554

Agent for the Respondent

BLAKE, CASSELS & GRAYDON LLP
340 Albert Street, Suite 1750 Constitution Square, Tower 3 Ottawa, ON  K1R 7Y6

Nancy K. Brooks Tel: 613-788-2200
Fax: 613-788-2247



BLAKE, CASSELS & GRAYDON LLP

2600 – 595 Burrard Street Vancouver, BC  V7X 1L3

Roy W. Millen Tel: 604-631-4220
Fax: 604-631-3309




Lawyers for the Appellant DEPARTMENT OF JUSTICE

2323 – 234 Wellington Street, East Tower Ottawa, ON  K1A 0H8

Christopher Rupar / Jan Brongers / BJ Wray Tel: 613-941-2351
Fax: 613-954-1920




Lawyers for the Intervener

Law Society Of British Columbia MCCARTHY TÉTRAULT LLP
Suite 1300, 777 Dunsmuir Street Vancouver, BC  V7Y 1K2

Leonard T. Doust, Q.C. / Michael A. Feder Tel: 604-643-5983
Fax: 604-622-5614

Agent for the Intervener

Law Society of British Columbia BORDEN LADNER GERVAIS LLP
World Exchange Plaza
100 Queen Street, Suite 1100 Ottawa, ON  K1P 1J9

Nadia Effendi
Tel: 613-787-3562
Fax: 613-230-8842





Lawyers for the Intervener Canadian Bar Association LAWSON LUNDELL LLP

1600 – 925 West Georgia Street Vancouver, BC  V6C 3L2

Craig A.B. Ferris / Laura L. Bevan Tel: 604-685-3456
Fax: 604-669-1620

Agent for the Intervener Canadian Bar Association NOËL ET ASSOCIES

111 Champlain Street Gatineau, PQ  J8X 3R1

Pierre Landry
Tel: 819-771-7393
Fax: 819-771-5397





Lawyers for the Inervener

Barreau du Québec et Chambre des Notaires du Québec
LAVERY, DE BILLY, s.e.n.c.r.l.
1, Place Ville Marie, bureau 4000 Montréal, QB  H3B 4M4

Raymone Doray, Ad.E / Loïc Berdnikoff Tel: 514-877-2913 / 2981
Fax: 514-871-8977

Agent for the Inervener

Barreau du Québec et Chambre des Notaires du Québec
LAVERY, DE BILLY, s.e.n.c.r.l.
360, rue Albert, bureau 1810 Ottawa, ON  K1R 7X7

Paul Lepsoe
Tel: 613-594-4936
Fax: 613-594-8783






Lawyers for the Intervener Canadian Civil Liberties Association

OSLER, HOSKIN & HARCOURT LLP
PO Box 50
1 First Canadian Place Toronto, ON  M5X 1B8

Mahmud Jamal / W. David Rankin Pierre-Alexandre Henri
Tel: 416- 862-6764
Fax: 416-862-6666

Agent for the Intervener

Canadian Civil Liberties Association OSLER,     HOSKIN        &         HARCOURT LLP
1900 – 340 Albert Street Ottawa, ON  K1R 7Y6

Patricia J. Wilson Tel: 613-235-7234
Fax: 613-235-2867





Lawyers for the Intervener, Criminal Lawyers’ Association STOCKWOODS LLP

TD Centre, TD North Tower
77 King Street West, Suite 4130 Toronto, ON  M5K 1H1

Michal Fairburn / Justin Safayeni Tel: 416-593-7200
Fax: 416-593-9345

Agent for the Intervener The Advocates’ Society

GOWLING LAFLEUR HENDERSON LLP
160 Elgin Street, Suite 2600 Ottawa, ON  K1P 1C3

Henry S. Brown, Q.C. / D. Lynne Watt Tel: 613-786-0139 / 8695
Fax: 613-788-3433 / 3509






Lawyers for the Intervener Canadian Bar Association LAWSON LUNDELL LLP

1600 – 925 West Georgia Street Vancouver, BC  V6C 3L2

Craig A.B. Ferris / Laura L. Bevan Tel: 604-685-3456
Fax: 604-669-1620

Agent for the Intervener Canadian Bar Association NOËL ET ASSOCIES

111 Champlain Street Gatineau, PQ  J8X 3R1

Pierre Landry
Tel: 819-771-7393
Fax: 819-771-5397






Lawyers for the Intervener

Barreau du Québec et Chambre des Notaires du Québec
LAVERY, DE BILLY, s.e.n.c.r.l.
1, Place Ville Marie, bureau 4000 Montréal, QB  H3B 4M4

Raymone Doray, Ad.E / Loïc Berdnikoff Tel: 514-877-2913 / 2981
Fax: 514-871-8977

Agent for the Intervener

Barreau du Québec et Chambre des Notaires du Québec
LAVERY, DE BILLY, s.e.n.c.r.l.
360, rue Albert, bureau 1810 Ottawa, ON  K1R 7X7

Paul Lepsoe
Tel: 613-594-4936
Fax: 613-594-8783




I N D E X
PART I - OVERVIEW                                                                                                            1
PART II - POSITION ON THE QUESTIONS IN ISSUE                                                    2
PART III - ARGUMENT                                                                                                        2
PART IV – SECTION 1                                                                                                        10
PART V - NATURE OF ORDER SOUGHT CONCERNING COSTS                              10
PART VI - NATURE OF ORDER SOUGHT                                                                      10
PART VII - TABLE OF AUTHORITIES                                                                            11
PART VIII - TABLE OF STATUTORY AUTHORITIES                                                  12


PART I. OVERVIEW

1.                  This appeal addresses the constitutionality of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, as amended (the “Act”) and the Proceeds of Crime (Money Laundering) and Terrorist Financing Regulations, SOR/2002-184, as amended (the “Regulations”, and collectively, the “Regime”).

2.                  The Advocates’ Society (“Society”) adopts the submissions of the Criminal Lawyers’ Association that the Regime violates Section 8 of the Charter, and additionally submits that the Regime violates s. 7 of the Charter because the Regime constitutes a deprivation of life, liberty or security of the person, and the deprivation does not accord with the principles of fundamental justice. The Regime infringes the liberty interest of lawyers and their clients by making lawyers agents of the state for the purposes of creating, collecting, and retaining potentially incriminating evidence against their clients, on pain of criminal sanction including imprisonment. This infringement is contrary to the principles of fundamental justice because

(i)                 the duty of loyalty that a lawyer owes a client is a principle of fundamental justice that is violated by the Regime; and

(ii)               the independence of the bar from the state is a principle of fundamental justice and this independence depends on the duty of loyalty that lawyers owe to their clients.

3.                  The Society submits that the Charter breaches identified above cannot be saved under Section 1 of the Charter. Even assuming that the Regime’s objectives are pressing and substantial in our society and that there is a rational connection between the objective of the Regime and the rights violations,

(a)                the Regime is not a minimal impairment of the rights at issue, especially given the parallel law society anti-money laundering regulations that are in place; and

(b)               the effect of the Regime on the liberty interests of lawyers and clients is disproportionate to the Regime’s legislative objective.


PART II.  POSITION ON THE QUESTIONS IN ISSUE

4.                  The Society submits that the constitutional questions stated by the Chief Justice should be answered as follows: Yes to questions 1, 3, 5, and 7; and No to questions 2, 4, 6, and 8.


PART III.  – ARGUMENT


A.                 The Regime Interferes with the liberty interests of lawyers and their clients by making lawyers agents of the state

5.                  The Regime directly imposes obligations on “legal counsel” and “legal firms” (hereinafter “lawyers”). It requires lawyers providing legal advice to obtain and record client information for state use. Section 10.1 of the Act exempts lawyers, “when they are providing legal services” (an undefined term) only from portions of Part 1, in particular from the provisions of s. 7 (reporting suspicious transactions) and s. 9 (reporting all financial transactions).

6.                  The Regime subjects all lawyers to inspection by the “Centre”, hereafter FINTRAC, regardless of whether or not the lawyer has provided legal services. It also compels all lawyers providing legal services to keep a “receipt of funds record” in respect of every amount of $3,000 or more that they receive in the course of a single transaction if the lawyer is receiving or paying funds, other than those received or paid in respect of professional fees, disbursements, expenses or bail, unless the amount is received from a financial entity or a public body,  or another lawyer’s trust account.


7.                  The Regime, however, defines neither “disbursements” nor “expenses”, which makes it very difficult to predict whether or not a lawyer and client would be covered by the Regime and its mandatory data collection provisions. For example, consider the following routine lawyer- client interactions where a lawyer:

(a)                receives settlement funds in trust by a foreign cheque or in cash;

(b)               in settling litigation, effects the purchase of shares in a corporation using closing funds held in trust that were provided by foreign cheque or money order, and then receives and forwards share certificates to his or her client;

(c)                receives contested share certificates from the client to effect settlement and thereby holds negotiable instruments in specie;

(d)               arranges for the release of a caution, or injunctive relief, on terms which require the lawyer to hold funds in escrow, which are received from a client by foreign cheque or money order, or cash; or

(e)                holds in trust security for costs received from the client, pursuant to an undertaking, in order to avoid a motion and order for security for costs, and the client makes payment by cheque, or foreign money order, or cash.

8.                  In each of these routine cases a lawyer is handling “funds” in connection with the provision of legal services and may or may not be compelled to collect the required information.

9.                  The Regime also requires the lawyer to “establish and implement” a program to ensure compliance and to assess the risk, in the course of the lawyer’s activities, of the commission of a money laundering offence or a terrorist financing offence. The Regime requires the lawyer to monitor his or her relationship with the client, and keep a record of that monitoring. Moreover, if the lawyer “considers that the risk of a money laundering offence or terrorist activity financing
offence is high” the lawyer is required to treat the client “as high risk” and to collect and record additional information about the client and the structure of transactions.

10.              More troubling still, the Regime empowers state agents to conduct inspections to determine compliance with Part 1 of the Act, whether or not the lawyer has provided legal services or engaged in activities for which the Regime compels record keeping. The inspection would entail review of whether the lawyer had failed to record or report, requiring broad review of the lawyer’s records respecting clients. Further, the inspector has the power “to use or cause to be used” any computer in the premises, and to require the lawyer to assist with the inspection and copying of information. Failure to cooperate constitutes an offence, punishable by up to five years imprisonment and/or a $500,000 fine.

11.              The only limitation to the inspection power is solicitor-client privilege, through in effect a reversed onus, i.e. only if claimed, only if for a named client and with the client’s last known address provided. The Regime constitutes an unreasonable interference with the fundamental and ancient principles of solicitor client-privilege. The Society agrees with the submissions of the intervener the Criminal Lawyers’ Association on this point.

12.              The Regime, however, does nothing to protect confidential material that is not privileged. The right to keep information confidential, which is a fundamental human right, cannot be vindicated once it has been violated. Not only does the Regime permit the invasion of a client’s right to privacy in their own lawyer’s records, it conscripts the lawyer in this effort by compelling the lawyer to record the client’s information.

13.              Any information that FINTRAC obtains through an inspection can be disseminated to other state agencies, both within Canada and internationally, whether or not the lawyer was
providing legal services. First, where FINTRAC has reasonable grounds to suspect that the designated information would be relevant to investigating or prosecuting a money laundering or terrorist activity financing offence, it shall disclose the information to the appropriate police
force, the Canada Revenue Agency, the Canada Border Services Agency and the Communications Security Establishment, CSIS and may disclose to an institution or agency of a foreign state. Neither the records kept about the client by the lawyer, nor the information about the lawyer and his or her clients obtained through the inspection, are exempt from disclosure.

14.              Second, FINTRAC may be required to produce information obtained through inspections under power of a subpoena or summons issued in the course of court proceedings in respect of a money laundering offence, a terrorist activity financing offence or an offence under the Act.

15.              Third, pursuant to s. 65 of the Act, FINTRAC may voluntarily choose to disclose any information obtained through the compliance inquiry and examination “that it suspects on reasonable grounds is evidence of a contravention of Part 1”, to “appropriate law enforcement agencies” or to a regulator.

16.              There are completely insufficient restrictions in place to a limit recipient’s use of information obtained from FINTRAC:

(a)                proposed further amendments to the Act eliminate any restriction on use;

(b)               while there is some restriction on the use of information disclosed under subsection 65(1), there is no clearly expressed restriction on the use of information obtained through the inspection of the legal counsel or legal firm, and the same information could be obtained directly pursuant to Act sections 59 to 61;


(c)                there is no restriction on the use of derivative evidence obtained as a consequence of the law enforcement agency receiving the information under s. 65;

(d)               there is no restriction of secondary use of the information, so that information used “for purposes relating to compliance with Part 1”, once filed in court, may be used in other domestic or international proceedings, for example pursuant to the Mutual Legal Assistance in Criminal Matters Act.

17.              In conclusion, the Regime infringes the liberty interest of lawyers and their clients by making lawyers agents of the state for the purposes of creating, collecting, and retaining potentially incriminating evidence against their clients, on pain of criminal sanction including imprisonment.

B.                 Regime violates principles of fundamental justice

18.              The Regime’s infringement of the right to liberty is contrary to the principles of fundamental justice because

(a)                the duty of loyalty that a lawyer owes a client is a principle of fundamental justice that is violated by the Regime; and

(b)               the independence of the bar from the state is a principle of fundamental justice that depends on the duty of loyalty that lawyers owe to their clients.

19.              A lawyer’s duty of loyalty to her or his client is a principle of fundamental justice. That duty is the sine qua non of a functioning judicial system. That duty of loyalty informs the principle of independence of the bar and gives it sufficient precision to stand as a principle of fundamental justice, violated by the Regime. One important aspect of the duty of loyalty is the duty to keep client confidences. As Justice Cory noted:
  
Lawyers are an integral and vitally important part of our system of justice. It is they who prepare and put their clients' cases before courts and tribunals. In preparing for the hearing of a contentious matter, a client will often be required to reveal to the lawyer retained highly confidential information. The client's most secret devices and desires, the client's most frightening fears will often, of necessity, be revealed. The client must be secure in the knowledge that the lawyer will neither disclose nor take advantage of these revelations.

Our judicial system could not operate if this were not the case. It cannon function properly  if doubt or suspicion exists in the mind of the public that the confidential information disclosed by a client to a lawyer might be revealed.

20.              The duty of loyalty is essential to the integrity of the administration of justice and it is of high public importance that public confidence in that integrity be maintained. A litigant (and the public) can have faith in our adversary system of justice because of the litigant’s faith in her or his lawyer's undivided loyalty. The duty of loyalty, which is the same as the absence of a conflicting interest, is essential for the independence of the bar. As Binnie J. wrote:

The value of an independent bar is diminished unless the lawyer is free from conflicting interests. Loyalty, in that sense, promotes effective representation, on which the problem-solving capability of an adversarial system rests.

21.              The independence of the bar is fundamental to Canada’s system of justice. An independent bar is a fundamental feature of a free and democratic society. In Canada (Attorney General) v. Law Society (British Columbia), Estey J. wrote:

The independence of the bar from the state in all its pervasive manifestations is one of the hallmarks of a free society. Consequently, regulation of these 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, with the delivery of services to the individual citizens in the state, particularly in fields of public and criminal law. The public interest in a free society knows no area more sensitive than the independence, impartiality and availability to the general public of the members of the bar and through those members, legal advice and services generally. The uniqueness of position of the barrister and solicitor in the community may well have led the province to select self-administration as the mode for administrative control over the supply of legal services throughout the community.

22.              The independence of the bar is a great strength of Canadian society and an element of the rule of law. An independent bar must be free to represent citizens without fear or favour in the protection of individual rights and civil liberties against incursions from any source, including the state. To stand fearlessly between the state and its citizens, lawyers must be free of state control and influence.  As LeBel J. commented  “an independent bar composed of lawyers who are free of influence by public authorities is an important component of the fundamental legal framework of Canadian society.”

23.              The Regime, as described above, diminishes the value of an independent bar by imposing conflicting interests upon lawyers. The Regime turns lawyers into a resource to be used in the investigation and prosecution of their clients. This jeopardizes the constitutional protections for clients against self-incrimination and turns lawyers’ offices into “archives for the use of the prosecution.” Lawyers must be free to represent their clients’ interests without the fear of being conscripted to act against their clients or facing state sanctions. The Regime is fatally deficient and violates the liberty interests of lawyers and their clients and does so in a manner that does not accord with the principles of fundamental justice.

PART IV.  SECTION 1


24.              The Charter breaches identified above cannot be saved under Section 1 of the Charter. Even assuming that the Regime’s objectives are pressing and substantial in our society and that there is a rational connection between the objective of the Regime and the rights violations, the Regime is not a minimal impairment of the rights at issue, especially given the parallel law society anti-money laundering regulations that are in place. Moreover, the effect of the Regime on the liberty interests of lawyers and clients is disproportionate to the Regime’s legislative objective. The Society adopts the submissions of the Respondent on section 1.


PART V.  NATURE OF ORDER SOUGHT CONCERNING COSTS


25.              The Society does not seek costs, and asks that no costs be awarded against it.




PART VI.  NATURE OF ORDER SOUGHT

26.              The Society respectfully asks that the appeal dismissed, and seeks leave to present oral argument to supplement the above submissions.

All of which is respectfully submitted on April 30, 2014.



Paul D. Stern
Stern Landesman Clark LLP
Tel: 416-869-3422; Fax: 416-869-3449
Robert A. Centa (LSUC# 44298M) Paliare Roland Rosenberg Rothstein LLP Tel: 416-646-4314; Fax: 416-646-4301

Lawyers for the Intervener, The Advocates’ Society



PART VII.   – TABLE OF AUTHORITIES









PART VIII.  – LEGISLATION

CANADIAN   CHARTER   OF  RIGHTS   AND   FREEDOMS   –   PART   I   OF   THE

CONSTITUTION ACT, 1982




1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d’une société libre et démocratique.
7.  Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu’en conformité avec les principes de justice fondamentale.





8.  Everyone has the right to be secure against unreasonable search or seizure.

8. Chacun a droit à la protection contre les fouilles, les perquisitions ou  les saisies abusives.




Universal Declaration of Human Rights, G.A. Res. 271(III), UNGAOR, 3d Sess., Supp. No. 13, UN. Doc. A/810 (1948) 71


Article 12.

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.




International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171



Article 17


1.  No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

Everyone has the right to the protection of the law against such interference or attacks.