The fundamental importance of solicitor-client privilege and of
lawyers' duty of loyalty to their clients was confirmed once
again by the Supreme Court of Canada on February 13, 2015, with its
highly anticipated decision in Canada (Attorney General)
v. Federation of Law Societies of
To reduce the risk that financial intermediaries may facilitate
money laundering or terrorist financing, the Proceeds of Crime
(Money Laundering) and Terrorist Financing
Act2 (the "Act") and the
Proceeds of Crime (Money Laundering) and Terrorist Financing
"Regulations") impose duties on financial intermediaries,
including lawyers, to collect, record and retain information and
documents allowing those persons on whose behalf they pay or
receive money to be identified.
The Supreme Court of Canada was asked to determine the
constitutionality of certain provisions of the Act and Regulations
insofar as they affect the solicitor-client privilege and the
ethical obligations of lawyers.
In its decision, the Court confirmed that the solicitor-client
privilege is constitutionally protected. Acknowledging that the
expectation of privacy in privileged communications between a
lawyer and his client is invariably high, the Court confirmed that
legislative provisions must not diminish that expectation and
should only interfere with the privilege when it is absolutely
necessary. The Court then went on to expressly recognize, as a
principle of fundamental justice, lawyers' duty of commitment
to their clients' cause.
The Court ultimately concluded that the requirements of the Act
and the Regulations insofar as they apply to lawyers are contrary
to judicially recognized principles regarding searches and seizures
in law offices4, and to the legitimate interests of the
lawyers' clients. The provisions at issue were thus deemed
unconstitutional, as they unjustifiably infringe upon sections 7
and 8 of the Canadian Charter of Rights and
Freedoms5, which respectively deal with the right
to life, liberty and security of the person, and the right to be
secure against unreasonable search or seizure.
The Court has thus confirmed the constitutionally protected
right to be free from unreasonable search or seizure and the
importance of the public's confidence in the legal system. It
has also confirmed the State's inability to unduly impose
duties on lawyers that undermine their duty of commitment to their
clients' causes. In addition, it has emphasized that the
solicitor-client privilege is essential to the effective operation
of the legal system.
Finally, this important decision points out that the legal
profession has already developed standards of practice relating to
the problems addressed by the Act and the Regulations, standards
that reflect a consensus in the profession as to the deontological
rules necessary for ethical and effective representation of
clients, particularly as regards the collection and retention of
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.
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