The Federation of Law Societies of Canada v Attorney General of Canada 2013 BCCA 147

http://www.courts.gov.bc.ca/jdb-txt/CA/13/01/2013BCCA0147.htm

Appeal dismissed. Reasons by Hinkson JA. concurred in by Finch CJBC and Neilson JA. Concurring reasons by Frankel JA concurred in by Garson JA

Introduction

[1] Money laundering and terrorist financing involve the process of disguising activities in order to make them appear legal. The objective of these activities is to mask financial resources and criminal conduct from the scrutiny of state authorities.

[2] Beginning in 1989, the federal government introduced legislation aimed at combating these activities. The application of the various forms of legislation to lawyers and notaries proposed by the Attorney General of Canada (“Canada”) has been the subject of disagreement between Canada, and the members of the Federation of Law Societies of Canada (“FLSC”) and its member societies.

[3] In December of 2008, Parliament introduced amendments to 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”), making them applicable both to legal counsel and legal firms in all provinces and territories, and to notaries in the province of Québec. I will refer to the Act and Regulations collectively as the “Regime”.

[4] In response to the amendments, the FLSC filed a petition challenging the application of the Regime to lawyers, and to notaries in the province of Québec. It conceded that requiring lawyers and notaries in Québec to take steps to deter criminals from employing them to launder money and finance terrorism is a valid societal goal, but contended that the Regime failed to respect Canada’s fundamental constitutional principles.

[5] The petition was heard by a chambers judge in the British Columbia Supreme Court who found that the Regime offended the rights of lawyers and their clients in a manner that did not accord with solicitor-client privilege pursuant to s. 7 of the Canadian Charter of Rights and FreedomsPart I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, and could not be justified pursuant to s. 1 of the Charter. She granted an order severing and striking down portions of that legislation as they apply to members of the legal profession and notaries in the Province of Québec. Her reasons for judgment are indexed at 2011 BCSC 1270. Canada appeals the order of the chambers judge.

[6] I largely agree with the conclusions of the chambers judge. However, in my opinion, this is not a case which turns on solicitor-client privilege being the applicable principle of fundamental justice relevant to the s. 7 Charter analysis. To the extent that the Regime may interfere with privilege, this is a secondary concern which Canada has attempted to address. That said, in my opinion the independence of the Bar is a principle of fundamental justice with which the Regime interferes to an unacceptable degree. For the reasons that follow, I would dismiss the appeal.

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