Thursday, July 7, 2016

The Emerging Principle of Independence of the Bar in Canada

1.     Introduction

     It’s been a good year, or so, for the jurisprudential development of independence of the Bar.  This blog surveys several recent cases in Canada that have refined the understanding of the principle.  These decisions have helped to scope out the limits of independence for both individual lawyers and for the institutional aspects of the Bar.

     Given these recent developments, and the fact several of these cases are still before the Courts, it remains to be seen if this process of refinement will continue, and what the final scope and limits of independence of the Bar in Canada might look like.  However, what appears to be emerging is a better understanding of this principle, which also focuses on its public value in the context of Canadian legal culture.

2.     Individual Independence of the Bar
      My brief survey starts with the Canada v FLSC (FLSC) case from early 2015, where the Supreme Court upheld a BC Court declaration reading down federal legislation, (here and here), so it did not apply to lawyers and law firms.  These laws required counsel to collect information about the identity and finances of clients, imposed disclosure obligations on lawyers and provided broad search and seizure powers to governmental authorities.
     The Court determined that this legislation interfered with the constitutionally recognized right of clients to solicitor-client privilege and found it to be of no force and effect as it applied to lawyers.  However, the majority also went one step further to imbue an aspect of the individual independence of the Bar with further legal legitimacy.
     In FLSC, the appellant argued for a broad recognition of the principle of Bar independence.  Although the Supreme Court declined to decide this wider issue, the majority did determine that the principle of a lawyer's commitment to a client's cause was one that was vital to the operation of the legal system.  This aspect of the legal duty of loyalty that all lawyers owe to clients was also precise enough to be recognized as a new principle of fundamental justice.  In this respect, the Court found the principle essential to the solicitor-client relationship and vital to maintaining confidence in the integrity of the administration of justice.
      A similar subject matter, the privacy rights of lawyers' clients, was also the focus of two more recent 2016 decisions of the Supreme Court.  In Canada (National Revenue) v Thompson and its companion, Canada (Attorney General) v Chambre des notaires du Québec, the Court also recognized the value of legal professional secrecy.  These cases disallowed statutory provisions of tax law that permitted a wide authority for the Canada Revenue Agency to demand disclosure of names and financial information of lawyers' clients.  Further comment about these cases, by former Ontario Law Society Treasurer Vern Krishna, can be found here.
     While 'independence' can be regarded as an absolute concept, the more common public law approach is that there are few, if any, unqualified legal principles in Canadian law.  I examined this point, along with several others in my last blog on the June 2016 Ontario Court of Appeal decision in Groia v LSUC (Groia).
     In that case the lawyer, Mr. Groia, faced limits on his independent professional conduct imposed by what the Court identified as his 'civility' obligations under the Rules of conduct, though as I pointed out, the term does not appear in the professional lawyer rules in Ontario.  The tension between 'civility' and the possible limits on the independent obligations of lawyers to be 'zealous' or 'resolute' advocates for clients remains a live issue for the Bar, as discussed further in this recent blog by Heather Douglas.
     A few days after the Groia decision, the Court of Appeal also released a decision that supports the proposition that whether acting with 'civility' or with 'zealousness', lawyers also face a  "reasonableness" limit in their legal submissions and proceedings before the Court.  In its decision in Best v Ranking the Ontario high Court sanctioned the lawyer involved, for acting unreasonably in advancing a weak civil case at the direction of the client, by imposing personal liability for costs on counsel.  Lawyer and former OBA President James Morton has commented on this decision in his own recent blog, see here.

3.  Institutional Independence of the Bar
     While much of the focus on independence of the Bar has centred on individual lawyerly duties, there has also been some examination of the organizational aspects of independence of the Bar.  For example, while examining specific 'civility' obligations, the Groia decision also touches on institutional aspects of independence.   In particular, the case shines a light on the role of Law Societies in the professional self-regulation of the legal profession in Canada.  In this respect, Canada is pretty distinct in its reliance on lawyer self-regulation, through statutorily authorized, but independent bodies, that are led and elected largely by the profession itself. 

     While it has been suggested that independent Canadian Law Societies have a wide, potentially "unqualified" discretion to regulate the legal profession (in Groia), I think there remains some question about the scope and limits of this authority.  For example, while it is the role of modern legal regulators in Canada to oversee lawyers, this authority intersects with the judicial power to manage lawyer conduct.  As University of Ottawa's Amy Salyzyn points out in a 2014 paper, see here, there remains some ambiguity in the respective roles of Law Societies and the Courts in the regulation of lawyers in Canada.  While touching on lawyerly individual duties to their clients and the courts, the Best v Ranking decision, noted above, also provides a further example of this ambiguity.

     From the organizational perspective, the broader question about the institutional role of legal regulators is at the heart of a series of current cases, in multiple Canadian jurisdictions, involving the status of British Columbia's Trinity Western University's (TWU) Law School. Under Canada's federal structure, each province and territory has individual responsibility for the legal profession, and each has a separate legal regulator.  Each jurisdiction must therefore determine whether potential applicants meet the requirements for Bar membership. 

     At issue in this case is a community covenant that TWU requires students to sign, prohibiting sexual activity except as between a husband and wife.  This issue has spawned litigation in several provinces from those opposed to accreditation of TWU's Law School because, it is argued, its community covenant is discriminatory on the grounds of sexual orientation, prohibited under Canada's Charter of Rights and Freedoms.  At present seven of ten Canadian provinces have accredited the Law School, so its graduates can be called to the Bar in those areas.  The matter remains before the Courts or subject to review in Nova Scotia* and British Columbia. 

     Last week, Ontario's Court of Appeal upheld that provincial Law Society's decision not to accredit TWU's Law School, see news report of this decision, here.  The matter seems likely to be before Canada's Supreme Court soon, see here.  In determining this issue, I think it likely that the Supreme Court may take the opportunity to comment on and further refine the principle of Bar independence as it touches on the distinct institutional role that Law Societies have played in Canada. 

*Update: On July 26, 2016, the Nova Scotia Court of Appeal released its decision in this case.  The Court found the previous actions of the local Barristers' Society, that refused recognition of the TWU law school, was outside the authority of the provincial legal regulator in the circumstances.   That decision can be found here.   There are several aspects of the case that deal with the institutional independence of the Bar which, in my view, are inconsistent with the recent Ontario decision that dealt with the same underlying issue.  The disparity between the two decisions increases the likelihood that this matter will soon be heard by the Supreme Court of Canada.     

4.  The Public Purpose of Independence of the Bar
     There is some dispute in Canada about whether, and to what extent, the legal profession has historically acted in the public interest, as I've noted before.  However, the recent case law has more and more closely identified the public interest as an important value underlying Bar independence.   In my view, all of the decisions noted above directly or implicitly invoke an appeal to the public interest as a primary value underlying the role and function of the lawyers in Canada's legal system. In addition, there have been several other recent cases that have further refined aspects of this connection.

      Recent cases that connect independent lawyer functions to the public interest include the Hillis decision from Ontario's Superior Court, which I discussed in a previous blog.  That case determined that the Crown duty to call witnesses in criminal proceedings was subject to review by the Courts on a fairness standard, given both the individual public function of prosecuting attorneys and their broader role as 'mini-ministers' of justice. 

     At a wider level, the Court's decision in R v Moodie (Moodie) challenging inadequate legal aid funding is another example.  There the failure of criminal defendants to qualify for state funded counsel is highlighted as an issue of public access to justice.  Alice Woolley presented an interesting discussion of some of the implications raised by Moodie in a blog that can be found here

      Last, I think the case of lawyer Edgar Schmidt, from the Federal Court in March 2016, raised several important issues related to the public interest and the individual government lawyer's role.  In that case a Department of Justice lawyer raised concerns that legitimate legal risks in terms of constitutional compliance were not being considered appropriately, by the Minister or by Parliament, and sought a review of government policy.  

     One of the important issues raised by this case is the challenge faced by lawyers in all organizational settings, to ensure that the 'client', whomever that may be, receives and appreciates the legal opinions of counsel.  Though Mr. Schmidt lost his case, the matter also remains subject to appeal, and raises what I think is a novel point of public interest in the development and promulgation of legislation. 

5.     Conclusion
     The cases above suggest that the principle of independence of the Bar appears to be evolving in a highly dynamic fashion in Canadian law.  Where is this dynamic evolution taking us?  Hard to predict the future, but what appears to be emerging is a description of the function and purpose of Bar independence in Canada that acknowledges its individual and institutional dimensions for a broad public purpose (maybe purposes).

     If this characterization of the jurisprudence is accurate, then it is interesting to note that the development of the principle of independence of the Bar is undergoing a similar kind of jurisprudential refinement as the principle of judicial independence has experienced in Canada, since at least the implementation of the Charter, over 30 years ago.  In fact, this parallel development of lawyer and judge autonomy reflects the interrelation between the different aspects of independence, that can be traced back at least several hundred years.  Whatever the precise final outcome, the developments highlighted above suggest a new and clearer focus on Bar independence, which also seems to be becoming more embedded  as a recognized principle of law in Canadian legal culture.