Saturday, May 23, 2015

Supreme Court of Canada Addresses Trial Judge Bias Issue


     Our Supreme Court of Canada had a recent opportunity to consider the law on what conduct by a trial judge will give rise to a finding of a reasonable apprehension of bias.  The court was clear that disrespectful and disparaging comments directed at counsel was not acceptable and in this case supported such a finding.  The court also looked at the manner in which the judge dealt with certain issues in the trial.  Although stating a clear intent to hear further submissions on an issue the trial then then precluded counsel from addressing the issue. The trial judge was found to have improperly accused counsel of delaying the trial.  The case summary is attached below.


SUPREME COURT OF CANADA

Citation: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25
Date: 20150514
Docket: 35823

Between:
Yukon Francophone School Board, Education Area #23
Appellant
and
Attorney General of the Yukon Territory
Respondent
- and -
Attorney General  of Quebec, Attorney General of British Columbia, Attorney General for Saskatchewan, Attorney General of the Northwest Territories, Commissioner of Official Languages of Canada, Conseil scolaire francophone de la Colombie-Britannique, Fédération des parents francophones de Colombie-Britannique, Fédération des parents francophones de l’Alberta, Fédération nationale des conseils scolaires francophones and Fédération des communautés francophones et acadienne du Canada
Interveners



Coram: McLachlin C.J. and Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon JJ.

Reasons for Judgment:
(paras. 1 to 78)
Abella J. (McLachlin C.J. and Rothstein, Moldaver, Karakatsanis, Wagner and Gascon JJ. concurring)

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

 





yukon francophone school board #23 v. yukon (a.g.)
Yukon Francophone School Board,
Education Area #23                                                                                       Appellant
v.
Attorney General of the Yukon Territory                                               Respondent
and
Attorney General of Quebec,
Attorney General of British Columbia,
Attorney General for Saskatchewan,
Attorney General of the Northwest Territories,
Commissioner of Official Languages of Canada,
Conseil scolaire francophone de la Colombie‑Britannique,
Fédération des parents francophones de Colombie‑Britannique,
Fédération des parents francophones de l’Alberta,
Fédération nationale des conseils scolaires francophones and
Fédération des communautés francophones
et acadienne du Canada                                                                              Interveners
Indexed as:  Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General)
2015 SCC 25
File No.: 35823.
2015: January 21; 2015: May 14.
Present: McLachlin C.J. and Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon JJ.
on appeal from the court of appeal for the yukon
                    Courts — Judges — Impartiality — Reasonable apprehension of bias — Allegation that judge’s comments and interventions at trial as well as his community involvement before and after appointment as a judge gave rise to reasonable apprehension of bias — Whether judge’s conduct and community involvement raised reasonable apprehension of bias.
                    Constitutional law — Charter of rights — Whether school board can unilaterally decide to admit students who are not covered by s. 23 of the Canadian Charter of Rights and Freedoms.
                    The Yukon Francophone School Board is the first and only school board in the Yukon. It has responsibility for one school, École Émilie‑Tremblay, a French‑language school founded in 1984. In 2009, the Board sued the Yukon government for what it claimed were deficiencies in the provision of minority language education. The trial judge ruled in the Board’s favour on most issues.
                    The Court of Appeal concluded that there was a reasonable apprehension of bias on the part of the trial judge based on a number of incidents during the trial as well as the trial judge’s involvement as a governor of a philanthropic francophone community organization in Alberta. Accordingly, it ordered a new trial except on three issues, only two of which were appealed to this Court: the trial judge’s conclusion that, under s. 23 of the Charter, the Board had the unilateral right to set admission criteria so as to include students who are not covered by s. 23; and the trial judge’s decision that the Yukon is required to communicate with the Board in French.
                    Held: The appeal from the Court of Appeal’s conclusion that there was a reasonable apprehension of bias requiring a new trial is dismissed, but the Board’s claims pursuant to the Languages Act should be joined with the other issues remitted by the Court of Appeal for determination at a new trial.
                    The test for a reasonable apprehension of bias is what would a reasonable, informed person think. The objective is to protect public confidence in the legal system by ensuring not only the reality, but the appearance of a fair adjudicative process. Impartiality and the absence of bias have developed as both legal and ethical requirements. Judges are required — and expected — to approach every case with impartiality and an open mind. Because there is a presumption of judicial impartiality, the test for a reasonable apprehension of bias requires a real likelihood or probability of bias. Judicial impartiality and neutrality do not mean that a judge must have no prior conceptions, opinions or sensibilities. Rather, they require that the judge’s identity and experiences not close his or her mind to the evidence and issues. The reasonable apprehension of bias test recognizes that while judges must strive for impartiality, they are not required to abandon who they are or what they know. A judge’s identity and experiences are an important part of who he or she is, and neither neutrality nor impartiality is inherently compromised by them. Judges should be encouraged to experience, learn and understand “life” — their own and those whose lives reflect different realities. The ability to be open‑minded is enhanced by such knowledge and understanding. Impartiality thus demands not that a judge discount or disregard his or her life experiences or identity, but that he or she approach each case with an open mind, free from inappropriate and undue assumptions.
                    In the present case, the threshold for a finding of a reasonable apprehension of bias has been met. In addition to several disparaging and disrespectful remarks made by the trial judge and directed at counsel for the Yukon, several incidents occurred which, when viewed in the circumstances of the entire trial, lead inexorably to this conclusion.
                    The first was the trial judge’s conduct during an incident where counsel for the Yukon attempted to cross‑examine a witness based on confidential information contained in student files. After hearing some argument on the confidentiality issue, the trial judge told counsel he would entertain additional arguments on the matter the following day. However, he started the next day’s proceedings with a ruling unfavourable to the Yukon and without giving the parties an opportunity to present further argument. While this by itself is unwise, the trial judge’s refusal to hear the Yukon’s arguments after his ruling, and his reaction to counsel, are more disturbing. He both characterized the Yukon’s behaviour as reprehensible and accused counsel for the Yukon of playing games. Viewed in the context of the entire record, the trial judge’s conduct was troubling and problematic.
                    The trial judge’s treatment of the Yukon’s request to submit affidavit evidence from a witness who had suffered a stroke was also improper. The judge accused counsel for the Yukon of trying to delay the trial, criticized him for waiting half‑way through the trial to make the application, suggested that that the incident amounted to bad faith on the part of the government, and warned counsel for the Yukon that he could be ordered to pay costs personally if he brought the application. There was no basis for the accusations and criticism levelled at counsel and, viewed in the context of the rest of the trial, this incident provides further support for a finding of a reasonable apprehension of bias.
                    Moreover, the trial judge’s refusal to allow the Yukon to file a reply on costs is highly problematic in the overall context of the trial. After the release of his reasons on the merits, the trial judge required each party to file their costs submissions on the same day. To the Yukon’s surprise, the Board sought not only solicitor‑client costs, but also punitive damages and solicitor‑client costs retroactive to 2002. The trial judge’s refusal to allow the Yukon to file a reply factum is questionable, particularly in light of the fact that the Yukon could not have known the quantum of costs sought by the Board at the time it filed its factum. The judge’s refusal is made all the more worrisome by his decision to award a lump‑sum payment to the Board, in addition to retroactive costs.
                    All of these incidents, taken together and viewed in their context, would lead a reasonable and informed person to see the trial judge’s conduct as giving rise to a reasonable apprehension of bias.
                    However, the Court of Appeal erred when it concluded that the trial judge’s current service as a governor of the Fondation franco‑albertaine substantially contributed to a reasonable apprehension of bias. Membership in an association affiliated with the interests of a particular race, nationality, religion, or language is not, without more, a basis for concluding that a perception of bias can reasonably be said to arise. Canada has devoted a great deal of effort to creating a more diverse bench. That very diversity should not operate as a presumption that a judge’s identity closes the judicial mind.
                    In the present case, it is difficult to see how, based on the evidence, one could conclude that the Fondation franco‑albertaine’s vision could be said to “clearly align” with certain positions taken by Board in this case or that the trial judge’s involvement in the organization foreclosed his ability to approach this case with an open mind. Standing alone, vague statements about the organization’s mission and vision do not displace the presumption of impartiality. Although consideration of the trial judge’s current role as governor of the Fondation franco‑albertaine was a valid part of the contextual bias inquiry in this case, his involvement with an organization whose functions are largely undefined on the evidence cannot be said to give rise to a reasonable apprehension of bias.
                    The Court of Appeal’s conclusion that the Board could not unilaterally decide whom to admit to its school should not be disturbed. There is no doubt that a province or territory can delegate the function of setting admission criteria for children of non‑rights holders to a school board. This delegation can include granting a minority language school board wide discretion to admit the children of non‑rights holders. In this case, however, the Yukon has not delegated the function of setting admission criteria for the children of non‑rights holders to the Board. In the absence of any such delegation, there is no authority for the Board to unilaterally set admission criteria which are different from what is set out in the territorial regulation applicable to French‑language instruction.
                    This, however, does not preclude the Board from claiming that the Yukon has insufficiently ensured compliance with s. 23, and nothing stops the Board from arguing that the Yukon’s approach to admissions prevents the realization of s. 23’s purpose.

                    Finally, it is unclear why the Court of Appeal decided that this case was not a suitable vehicle for determination of rights under the Yukon’s Languages Act. The Board’s claims raise significant factual issues that may well lead to a finding that parts of the claims were justified and should be determined at the new trial with the benefit of a full evidentiary record.

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.