Supreme Court Declines to Enshrine the Independence of the Bar as a Principle of Fundamental Justice

This morning in Federation of Law Societies of Canada v. Canada (Attorney General), the Supreme Court of Canada upheld (with minor adjustments) the decision of the British Columbia Court of Appeal and Canada’s Proceeds of Crime (Money Laundering) and Terrorist Financing Act, was held defective since it did not adequately protect solicitor-client privilege in its search procedures. Parliament will have to significantly revise the scheme to add more safeguards.

A narrow set of professional duties was held to meet the principle of fundamental justice test, established in the Malmo-Levine test: R. v. Malmo-Levine; R. v. Caine:

For a rule or principle to constitute a principle of fundamental justice for the purposes of s. 7, it must be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.

Cromwell J declined to follow the Federation’s broad claim that the independence of the Bar was a principle of fundamental justice. But he did give constitutional status to narrower aspects of lawyers’ duties. The state could not impose obligations on lawyers which would undermine their duty of commitment to their clients:

The narrower understanding of the independence of the bar which relates it to the lawyer’s duty of commitment to the client’s cause is the aspect of the lawyer’s special duty to his or her client that is most relevant to this appeal.

[81] The duty of lawyers to avoid conflicting interests is at the heart of both the general legal framework defining the fiduciary duties of lawyers to their clients and of the ethical principles governing lawyers’ professional conduct. This duty aims to avoid two types of risks of harm to clients: the risk of misuse of confidential information and the risk of impairment of the lawyer’s representation of the client.

[82] The Court has recognized that aspects of these fiduciary and ethical duties have a constitutional dimension. I have already discussed at length one important example. The centrality to the administration of justice of preventing misuse of the client’s confidential information, reflected in solicitor-client privilege, led the Court to conclude that the privilege required constitutional protection in the context of law office searches and seizures: see Lavallee. Solicitor-client privilege is “essential to the effective operation of the legal system”: R. v. Gruenke. As Major J. put it in R. v. McClure, “The important relationship between a client and his or her lawyer stretches beyond the parties and is integral to the workings of the legal system itself” (emphasis added).

[83] The question now is whether another central dimension of the solicitor-client relationship — the lawyer’s duty of commitment to the client’s cause — also requires some measure of constitutional protection against government intrusion. In my view it does, for many of the same reasons that support constitutional protection for solicitor-client privilege. “The law is a complex web of interests, relationships and rules. The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system”: McClure, at para. 2. These words, written in the context of solicitor-client privilege, are equally apt to describe the centrality to the administration of justice of the lawyer’s duty of commitment to the client’s cause. A client must be able to place “unrestricted and unbounded confidence” in his or her lawyer; that confidence which is at the core of the solicitor-client relationship is a part of the legal system itself, not merely ancillary to it: Smith v. Jones. The lawyer’s duty of commitment to the client’s cause, along with the protection of the client’s confidences, is central to the lawyer’s role in the administration of justice.

[84] We should, in my view, recognize as a principle of fundamental justice that the state cannot impose duties on lawyers that undermine their duty of commitment to their clients’ causes. Subject to justification being established, it follows that the state cannot deprive someone of life, liberty or security of the person otherwise than in accordance with this principle.

Cromwell J held that the money-laundering scheme compromised those duties:

The lawyer is required to create and preserve records which are not required for ethical and effective representation. The lawyer is required to do this in the knowledge that any solicitor-client confidences contained in these records are not adequately protected against searches and seizures authorized by the scheme.

But lawyers aren’t above the law:

Only when the state’s imposition of duties on lawyers undermines, in fact or in the perception of a reasonable person, the lawyer’s ability to comply with his or her duty of commitment to the client’s cause that there will be a departure from what is required by this principle of fundamental justice.

Interestingly, Chief Justice McLachlin and Moldaver J, in a short concurring judgment felt that the duty of commitment to a client’s cause wasn’t sufficiently clear or certain to ground a constitutional principle. They would have hinged the analysis on the special status of lawyer-client privilege.

(The issue is ) better resolved relying on the principle of fundamental justice which recognizes that the lawyer is required to keep the client’s confidences — solicitor-client privilege

It has been a notable year for Canadian courts in the area of the law of the legal profession, with the Cour d’Appel clarifying the reach of professional secrecy over notarial documents in Canada (Procureur général) c. Chambre des notaires du Québec, 2014 QCCA 552 (CanLII), – rejecting aggressive enforcement activities by the Canada Revenue Agency.

Another loss for the Feds.


  1. “…The principle of fundamental justice which recognizes that the lawyer is required to keep the client’s confidences — solicitor-client privilege” and “[a] client must be able to place “unrestricted and unbounded confidence” in his or her lawyer; that confidence which is at the core of the solicitor-client relationship is a part of the legal system itself, not merely ancillary to it” given these two statements in the case of an ABS does this mean that non-lawyer owners/managers would be restricted from accessing client files — in other words, who would “own” the information in a client file when a solicitor is working for an organization with non-lawyer ownership assuming that the solicitor-client privilege doesn’t apply to the owner(s) or does this privilege apply to non-lawyer owners as well?

  2. I think the answer is that in all firms, the lawyers are required to ensure that non lawyer staff understand and respect the professional obligations which bind the lawyers (and really the firm). This is how legal assistants, librarians and IT staff all have access to client files containing confidences.
    In England and Wales the SRA principles in s. 2(3) and 3 require non-lawyers involved in the management of ABS to respect the professional obligations. The same is true in the Australian jurisdictions.
    As for file ownership (which becomes an elusive concept in a digital environment) if the client paid for the work, it’s the client’s file. Lawyers own their notes, precedents and documents necessary for the operation of the firm, as set out in the documents published by the Law Societies of British Columbia and Upper Canada. The ownership of a firm doesn’t alter the operation of those principles.
    And on the privilege, remember it is the client’s privilege, to protect communications with a lawyer for the purpose of obtaining legal advice. If an accountant employed by a law firm gives advice to a client, that advice is no more protected by privilege than if the accountant was working in an accountancy firm. It’s the client-lawyer relationship that the privilege protects, and that would not extend to other professionals working in an ABS.

  3. Presumably the client owns the information in their file (subject to liens if they haven’t paid for the production of same). And, when they’ve selected a firm that involves non lawyers (as almost all firms do other than sole practitioners working without assistance) that information can be accessed by those members of the firm that need to access it for reasonable purposes, whether they are lawyers or otherwise (receptionist, accounting, IT, etc.)

    I would think having a non-lawyer manager having access to a clients file under an ABS situation would be very similar to the situation currently present if a business development team wanted to look at a client’s file (or any other person in the firm who is wanting to view the file for the firms direct benefit and not the client’s direct benefit).

  4. Yes – though interestingly one of the consequences of lawyer migration is the proliferation of ethical screens which cut off access to unauthorized personnel.

    And increasingly, Outside Counsel Guidelines imposed by major corporations may stipulate restricted access.

    You’re absolutely right that all sorts of law firm personnel need to have access to client files. But the lawyers will be liable (to the client and to the Law Society) in the event of any breach by those personnel.