In a decision released on Friday, the Supreme Court of Canada
has recognized a new principle of fundamental justice: a
lawyer's duty of commitment to the client's cause.
In Canada (Attorney General) v Federation of Law Societies
of Canada, the Federation of Law Societies commenced a
constitutional challenge to the Proceeds of Crime (Money
Laundering) and Terrorist Financing Act and its regulations.
The legislation is designed to limit the risk that financial
intermediaries may launder money or finance terrorists, either
wittingly or not. It requires financial intermediaries (including
lawyers) to collect, record and retain information verifying the
identity of those on whose behalf they pay or receive money. It
puts in place an agency to oversee compliance, the Financial
Transactions and Reports Analysis Centre of Canada (FINTRAC), and
allows that agency to search for and seize that material. The
legislation authorizes sweeping searches of law offices and imposes
fines and penal consequences for non-compliance. The central
contention of the Law Societies was that the scheme substantially
interferes with lawyers' duty of commitment to their
clients' cause because it imposes duties on lawyers to the
state to act in ways that are contrary to their clients'
legitimate interests and may, in effect, turn lawyers into state
agents for that purpose.
Finding several provisions of the legislation repugnant to
duties essential to the due administration of justice, the Supreme
Court recognized as a principle of fundamental justice that the
state cannot impose duties on lawyers that undermine their duty of
commitment to their clients' causes. The duty is fundamental to
the solicitor-client relationship and how the state and the citizen
interact in legal matters. The lawyer's duty of commitment to
the client's cause is essential to maintaining confidence in
the integrity of the administration of justice. The Supreme Court
found that the impugned legislation requires lawyers to create and
preserve records not required for ethical and effective
representation, with the knowledge that solicitor-client
confidences contained in those records are not adequately protected
against search and seizure. Taken as a whole, the legislation
limits the liberty of lawyers in a manner that is not in accordance
with the newly-recognized principle of fundamental justice relating
to the lawyer's duty of committed representation. As a result,
several provisions of the legislation should be read down to
exclude legal counsel and legal firms from their scope of
operation. Further, other provisions were declared to be of no
force or effect, in their entirety.
However, the Supreme Court declined to determine the existence
of the broader principle of fundamental justice that had been
identified by the BC Court of Appeal as "the independence of
the bar", which was interpreted to mean that lawyers "are
free from incursions from any source, including from public
authorities". Whether that broader principle exists will have
to wait for another day.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).