Anti-terrorism legislation: new threat to right to counsel?

Bill C-36 received Royal Assent on December 18, 2001. Known as the "Anti-Terrorism Act," the Bill is expected to come into force soon after measures for implemetation have been arranged with the provinces, territories, police, and others responsible for enforcement of its provisions, according to a federal government announcement.

The Anti-Terrorism Act will affect lawyers. The Act amends, among other statutes, the Criminal Code and the Proceeds of Crime (Money Laundering) Act [which will now be known as the Proceeds of Crime (Money Laundering) and Terrorist Financing Act].

There are many other new provisions in the Anti-Terrorism Act that have elicited expressions of concern within the legal community and the community at large. The Canadian Bar Association has made representations to the House of Commons, and the Federation of Law Societies has made representations to the Senate, with active support on those submissions from the Law Society of B.C.: see www.cba.org and www.flsc.ca. The Federation has expressed concern that the Act will create barriers to the right to counsel and result in breaches of solicitor-client confidentiality.

Lawyers should be aware of the following new provisions:

Barriers to the right to counsel
  • Section 83.08 of the Criminal Code will make it an offence for anyone to knowingly deal directly or indirectly in any property owned or controlled by or on behalf of a terrorist group. "Terrorist group" is defined in s. 83.01(1) of the Criminal Code. Section 83.08 also prohibits entering into or facilitating any transaction with respect of such property and providing financial or other related services with respect to such property. It appears that any lawyer acting for a terrorist group or a member of such group will be caught by s. 83.08. Unlike the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, there is no exemption for money received by a lawyer on account of professional fees or disbursements, or for the posting of bail. The maximum penalty for contravention of these provisions is imprisonment for up to 10 years.
  • Section 83.14 of the Criminal Code will authorize the Attorney General to apply to the Federal Court for a forfeiture order in respect of property owned or controlled by a terrorist group, property that has or will be used to facilitate or carry out terrorist activity, or currency and monetary instruments owned or controlled by someone who has carried out or is planning to carry out terrorist activity. A lawyer could therefore be named as a respondent in an application with respect to funds held in trust for a terrorist group or a member of such group to whom the lawyer is providing legal services. A lawyer's retainer for professional fees in acting for a terrorist group or a member of a terrorist group could be subject to a forfeiture order. Note that a person does not have to be convicted of a criminal offence before an application for forfeiture is made.
  • Section 83.18(1) of the Criminal Code will make it an offence to knowingly participate in or contribute to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of the group to carry out terrorist activity. Section 83.18(3) defines "participation in or contributing to" as including the provision of a skill or an expertise for the benefit of a terrorist group. It is possible that a lawyer acting for a person or group subject to the provisions of the Anti-Terrorism Act could be liable for prosecution for participating in or contributing to a terrorist activity. The maximum penalty for contravening this provision is imprisonment for up to 10 years.
Breaches of solicitor-client confidentiality
  • Section 83.1 of the Criminal Code will require everyone to disclose forthwith to the RCMP and CSIS the existence of property in their possession or control that they know is owned or controlled by or on behalf of a terrorist group. The section also requires the disclosure of information about a transaction or proposed transaction in respect of such property. Any lawyer, therefore, who knowingly receives funds from a terrorist group will be required to disclose this information to the RCMP and to CSIS. Again, the maximum penalty for contravening this provision is imprisonment of up to 10 years.
  • Section 83.13 of the Criminal Code will authorize a warrant to be issued to search any place where there are reasonable grounds to believe there is property owned or controlled by a terrorist group, property that has been or will be used to facilitate or carry out terrorist activity, or currency and monetary instruments owned or controlled by someone who has carried out or is planning to carry out terrorist activity. Such warrants could authorize a search of a lawyer's office. There are no provisions dealing with how claims of solicitor-client privilege are to be made or addressed.

Chapter 5, Ruling 14 of the Professional Conduct Handbook provides that lawyers who are required under federal or provincial legislation to produce or surrender a document or provide information that is or may be privileged shall, unless the client waives the privilege, claim a solicitor-client privilege in respect of the document. The recent Court of Appeal decision in Festing v.Canada (Attorney General) 2001 BCCA 612 may cast doubt on the constitutionality of this section insofar as it applies to law office searches. However, the Court's judgment has been stayed until after the decision by the Supreme Court of Canada in Lavallee and others v. Canada (Attorney General). For more on the decision in Festing, see page 6.

  • Section 83.28 of the Criminal Code will compel an individual whom police believe has information concerning terrorism offences that have been committed or will be committed, or information that reveals the whereabouts of a person suspected of having committed a terrorism offence, to appear before a judge to answer questions and/or produce materials. Section 83.28(3) provides that such orders may be made only with the consent of the provincial Attorney General. A lawyer may be subject to an order to appear before a judge to answer questions. Section 83.28(8) protects information covered by solicitor-client privilege, but not confidential information. The section does not prevent a lawyer from having to attend court to claim the privilege.
  • Amendments to s. 7 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act will require everyone to report financial transactions that they have reasonable grounds to suspect are related to a terrorist activity financing offence. "Terrorist activity financing offence" is defined in s. 2 of that Act. At present in British Columbia, lawyers are exempted from such reporting obligations as a result of an order of the Supreme Court of British Columbia in Law Society of B.C. v. Attorney General of Canada (see below). That decision does not, at present, apply to B.C. lawyers practising law in other provinces or territories in Canada.
  • Amendments to the National Defence Act will allow the Minister of National Defence to authorize the interception of private communications between a foreign person and a Canadian. This power is vested solely in the Minister. No judicial authorization will be required. This power could be used to intercept, or could result in the interception of, confidential solicitor-client communications.

Lawyers should stay abreast of the status of the Anti-Terrorism Act, and their obligations under it.

Further updates on the Law Society's consideration of this legislation, or any advice to lawyers with respect to it, will appear on the Society's website at www.lawsociety.bc.ca.

Any lawyers who have questions with respect to their duties and obligations are encouraged to contact the Law Society. Questions on Bill C-36 can be directed to Staff Lawyer, Policy and Planning, Michael Lucas or Practice Advisor, Felicia Folk.