Contrary to superstition and the movie series, this past Friday the 13th turned out to be a good day.
In November 2001 our Law Society and the Federation of Law Societies of Canada, with the assistance of the Canadian Bar Association as an intervenor, appeared before the Honourable Madam Justice Allan seeking to exempt lawyers from the Proceeds of Crime (Money Laundering) Act, which had just come into force. Thus began our long-running dispute with the federal government about the limits of government infringement and interference with the lawyer-client relationship.
The dispute ended this past Friday with the decision of the Supreme Court of Canada in Canada (Attorney General) v. Federation of Law Societies of Canada. The court concluded that the search provisions of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and the associated regulations infringed s. 8 of the Charter and that the information gathering and retention provisions, in combination with the search provisions, infringed s. 7 of the Charter.
The result strongly supports the right of Canadian citizens to obtain legal advice and assistance without concern that their lawyers will be required to act on behalf of the state in collecting and retaining their information, which might then be disclosed to the state without their consent. In reaching this result, the court concluded that there is overwhelming evidence of a strong and widespread consensus concerning the fundamental importance in democratic countries of protection against government interference with the lawyer’s commitment to his or her client’s cause.
The result also strongly supports the significance of self-regulation and our ethical standards. In taking the fight against money laundering and terrorist financing seriously, we adopted effective rules prohibiting lawyers from accepting large amounts of cash and requiring them to know their clients. The court ultimately relied on these rules in assessing the impact of the federal legislation on lawyers’ obligations to their clients.
As the court noted, while our professional ethical standards cannot dictate to Parliament what the public interest requires or set the constitutional parameters for legislation, our ethical standards do provide evidence of a strong professional consensus as to what ethical practice requires. Since the legislation required lawyers to gather and retain considerably more information than we thought necessary, this fact, coupled with the inadequate protection of solicitor-client privilege, undermined our duty of commitment to our clients’ causes.
Friday the 13th was indeed a good day for the rule of law and the administration of justice, and we should all be proud of the part our Law Society played in upholding the rights of every citizen of Canada.