Progress on lawyers’ concerns about new laws

Tuesday, November 21, 2001 saw two successful “wins” for the Canadian Bar Association, and for the lawyers of BC. At 9:00 a.m. PST, Justice Minister Anne McLellan appeared before the House of Commons Standing Committee on Justice and Human Rights, to announce important amendments to Bill C-36 (The Anti-Terrorist Act) in response to forceful submissions by the CBA and others.

Following an extensive consultation with CBA Sections across Canada, the CBA Board of Directors approved a comprehensive submission (see www.cba.org) calling for a sunset clause, provisions for curtailing extraordinary police powers and privacy intrusions, a tighter definition of terrorist and terrorist acts, and other amendments to ensure a careful balance between security concerns and the Constitutional rights of individuals.

At 11:30 a.m. PST, BC Supreme Court Justice Marian Allan released her decision to temporarily exempt lawyers from the application of Section 5 of regulations under the Proceeds of Crime (Money Laundering) Act, until arguments can be heard regarding the constitutionality of the regulations. This section would have required lawyers to secretly report to government on “suspicious transactions”, placing them in direct conflict with their ethical duty to their client.

The CBA was an intervenor in these proceedings, represented on a pro bono basis by Ron Skolrood, Chair of the CBABC Constitutional/Civil Liberties Section, and Greg Del Bigio, member of the National CBA Criminal Justice Section.

The CBA had been critical of the proposed legislation for more than three years, and in August was joined by the Federation of Law Societies and Law Society of BC in publicly calling for changes to the law to protect clients’ rights. In court, the challengers argued that confidential information shared between clients and their lawyers should be exempt from the Act, and that lawyers should not be forced to report to the government what their clients say to them in confidence.

Madam Justice Allan agreed, saying: “While the government’s goal of deterring and prosecuting money laundering offences is laudatory, the fundamental values of the Constitution must be protected.” The Act’s regulations, the judge said, “authorize an unprecedented intrusion into the traditional solicitor-client relationship.”

The CBA has urged the federal government to respect and apply this exemption nationwide. “Although this decision has been rendered in a BC Supreme Court, we look to Justice Minister McLellan to respect the court’s serious concerns about this legislation as it applies to the entire legal profession,” said Carman Overholt, CBABC President.

“Every Canadian needs to be able to trust that the information provided to their lawyer is privileged and confidential, and that their lawyer is working to protect their interests, not to spy and report on them on behalf of the government.”

The CBA intends to continue its intervention in the full hearing of this matter.

This article was published in the December 2001 issue of BarTalk. © 2001 The Canadian Bar Association. All rights reserved.