S.C.C. File No IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA) -and- -and-

Transcription

1 S.C.C. File No IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA) BETWEEN: ATTORNEY GENERAL OF CANADA -and- FEDERATION OF LAW SOCIETIES OF CANADA -and- Appellant (Appellant) Respondent (Respondent) CRIMINAL LAWYERS' ASSOCIATION (ONTARIO), CANADIAN CIVIL LIBERTIES ASSOCIATION, LAW SOCIETY OF BRITISH COLUMBIA, CANADIAN BAR ASSOCIATION, THE ADVOCATES' SOCIETY, BARREAU DU QUEBEC, AND CHAMBRE DES NOT AIRES DU QUEBEC Interveners FACTUM OF THE INTERVENER, CANADIAN CIVIL LIBERTIES ASSOCIATION OSLER, HOSKIN & HARCOURT LLP Box 50, 1 First Canadian Place Toronto, ON M5X 1B8 Mahmud Jamal W. David Rankin Pierre-Alexandre Henri Tel: (416) Fax: ( 416) mjamal@osler.com Canadian Civil Liberties Association OSLER, HOSKIN & HARCOURT LLP Albert Street Ottawa, ON K1R 7Y6 Patricia J. Wilson Tel: (613) Fax: (613) pwilson@osler.com Ottawa Agent for the Intervener, Canadian Civil Liberties Association LEGAL_! :

2 THE REGISTRAR OF THE SUPREME COURT OF CANADA AND ATTORNEY GENERAL OF CANADA 50 O'Connor Street, Suite 500, Room 557 Ottawa, ON KIA OH8 Christopher M. Rupar Jan Brongers Tel: (613) Fax: (613) christopher.rupar@justice.gc.ca Counsel for the Appellant, Attorney General of Canada AND AND HUNTER LITIGATION CHAMBERS West Georgia Street Vancouver, BC V6E 4Hl John J.L. Hunter, Q.C. Roy W. Millen Tel: (604) Fax: (604) jhunter@litigationchambers.ca Counsel for the Respondent, Federation oflaw Societies of Canada STOCKWOODS LLP King Street West Toronto, ON M5K lhl Michal Fairburn Justin Safayeni Tel: (416) Fax: ( 416) michalf@stockwoods.ca Criminal Lawyers' Association (Ontario) BLAKE, CASSELS & GRAYDON LLP Albert Street Ottawa, ON KlR 7Y6 Nancy K. Brooks Tel: (613) Fax: (613) nancy. brooks@blakes.com Ottawa Agent for the Respondent, Federation of Law Societies of Canada GOWLING LAFLEUR HENDERSON LLP Elgin Street Ottawa, ON KIP 1C3 Guy Regimbald Tel: (613) Fax: (613) guy.regimbald@gowlings.com Ottawa Agent for the Respondent, Criminal Lawyers' Association (Ontario) LEGAL_ l:

3 AND AND AND MCCARTHY TETRAULT LLP Dunsmuir Street Vancouver, BC V7Y 1K2 Leonard T. Doust Michael A. Feder Tel: (604) Fax: (604) ldoust@mccarthy.ca Law Society of British Columbia LAWSON LUNDELL LLP West Georgia Street Vancouver, BC V6C 3L2 Craig A.B. Ferris Laura L. Bevan Tel: (604) Fax: (604) cferris@lawsonlundell.com Canadian Bar Association STERN LANDESMAN CLARK LLP Suite 1724, 390 Bay Street Toronto, ON M5H 2Y2 Paul D. Stern Tel: (416) Fax: (416) stemlaw@bellnet.ca The Advocates' Society BORDEN LADNER GERVAIS LLP Queen Street Ottawa, ON KIP 119 Nadia Effendi Tel: (613) Fax: (613) neffendi@blg.com Ottawa Agent for the Intervener, Law Society of British Columbia NOEL & ASSOCIES Ill, rue Champlain Gatineau, QC J8X 3Rl Pierre Landry Tel: (819) Fax: (819) p.landry@noelassocies.com Ottawa Agent for the Intervener, Canadian Bar Association GOWLING LAFLEUR HENDERSON LLP Elgin Street Ottawa, ON KIP 1C3 Henry S. Brown, Q.C. Tel: (613) Fax: (613) henry.brown@gowlings.com Ottawa Agent for the Respondent, The Advocates' Society LEGAL_ I :

4 - lv- AND AND LAVERY, DE BILLY Place Ville-Marie Montreal, QC H3B 4M4 Raymond Doray Loic Berdnikoff Tel: (514) Fax: (514) Barreau du Quebec LAVERY, DE BILLY Place Ville-Marie Montreal, QC H3B 4M4 Raymond Doray Tel: (514) Fax: (514) Chambre des notaires du Quebec LAVERY, DE BILLY Albert Street Ottawa, ON K1R 7X7 Paul K. Lepsoe Tel: (613) Fax: (613) Ottawa Agent for the Intervener, Barreau du Quebec LA VERY, DE BILLY Albert Street Ottawa, ON K 1 R 7X7 Paul K. Lepsoe Tel: (613) Fax: (613) plepsoe@lavery.ca Ottawa Agent for the Intervener, Chambre des notaires du Quebec LEGAL_! :

5 PART I- OVERVIEW 1. The CCLA has intervened in this appeal to highlight the significant access to justice concerns raised by the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 ("Act") and the Proceeds of Crime (Money Laundering) and Terrorist Financing Regulations, SOR/ ("Regulations"). 2. Access to justice is among the most important aspirations of the Canadian legal system and a fundamental civil liberties issue. It is embedded in the rule of law and finds expression in the Charter. 1 The CCLA submits that the impugned measures of the Act and Regulations infringe s. 7 of the Charter by imperiling access to justice. They do so by impinging upon the liberty interests of lawyers and their clients in a manner that trenches upon the independence of the Bar and solicitor-client privilege, two principles of fundamental justice protected under s The impugned measures trigger the liberty interests of lawyers and their clients by imposing record-keeping and record-retention requirements on lawyers, enforced under pain of criminal prosecution, for potential use in criminal prosecution against the clients. In sum, the measures deputize lawyers as involuntary agents of the state to act against their clients' interests. 4. The impugned measures also impinge upon the independence of the Bar and solicitor-client privilege, thereby diminishing access to justice and infringing s. 7 of the Charter: The independence of the Bar ensures that lawyers stand between the citizen and the state in order to protect their clients' interests. Without an independent Bar, lawyers cannot provide substantive access to justice by protecting the rights of ordinary persons in Canada against the state. The impugned measures undermine this principle by requiring lawyers to act as agents of the state and to potentially prejudice their clients' interests. Patricia Hughes, "Defining Access to Justice: The Charter and the Courts (and the Law Commission of Ontario)" (2011) 29 Nat'l J. Const. L. 119, pp LEGAL_ I:

6 - 2 - Similarly, solicitor-client privilege helps ensure that clients can obtain the benefit of candid legal advice within a protected zone of privacy. The privilege stretches beyond the lawyer and client and is integral to the workings of the legal system itself. Access to justice is compromised where legal advice is unavailable. The impugned measures imperil this principle by requiring lawyers to generate and warehouse evidence for potential use in criminal prosecution against their clients. This will necessarily have a chilling effect on communications between clients and their lawyers, thereby further undermining access to justice. PART II- ARGUMENT A. The Act Impinges Upon The Liberty Interests Of Lawyers And Their Clients 5. The Act impinges upon the liberty interests of both lawyers and their clients. This suffices to triggers. 7 of the Charter Simply put, the Act press-gangs lawyers to act as unwilling agents of the state to create evidence for potential use against their clients' interests. It requires lawyers to store-house information for the state's use in investigating and prosecuting money laundering and terrorist financing offences against their clients: The Act impinges upon lawyers' liberty interests by subjecting them to potential imprisonment for failure to comply with the Act. A lawyer who receives more than $3,000 in the course of a single transaction must prepare a "receipt of funds record" containing information about the client's transaction, including its purpose and details (which ordinarily would be subject to lawyer-client confidentiality). 3 Failure to do so is an offence that may result in the lawyer's imprisonment for up to five years. 4 The Act also engages clients' liberty interests by allowing records prepared by their lawyers to be used in prosecutions against them. One of the purposes of the "receipt of funds record" is to create a "paper trail" - an investigative tool for 2 4 Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, ~75. Act, s. 6; Regulations, s. 1(2), "receipt of funds record", s Act, s. 74. LEGAL_! :

7 - 3 - state prosecutors - for use against the lawyers' clients. 5 State agents may apply for judicial authorization to access these statutory records for use in prosecutions. 6 B. The Act's Impingement Is Not In Accordance With The Principles Of Fundamental Justice 7. The Act impinges on lawyers' and clients' liberty interests in a manner that is not in accordance with the principles of fundamental justice. The Act trenches upon two principles of fundamental justice - independence of the Bar and solicitor-client privilege - both of which are essential to promote and protect access to justice in Canada. 8. Independence of the Bar and solicitor-client privilege each satisfy the three criteria for a principle of fundamental justice: (1) they are legal principles; (2) there is a consensus that these principles are fundamental to the way in which the legal system ought fairly to operate; and (3) they can be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty, or security of the person. 7 (a) The Act compromises the independence of the Bar and thereby access to justice 9. As George Finlayson, Q.C. wrote in 1985, before his appointment to the Ontario Court of Appeal, an independent Bar ensures that lawyers are free to "stand between the citizen and the state." 8 Without an independent Bar, lawyers cannot provide substantive access to justice by protecting the rights of ordinary persons in Canada against the state. An independent Bar also underpins public confidence in the justice system. As Finlayson noted: "[i]t is imperative that the public have a perception of the legal profession as entirely separate from and independent of government, otherwise it will not have 6 7 Federation of Law Societies of Canada v. Canada (Attorney General), 2013 BCCA 147, ~~92-93; Federation of Law Societies ofcanada v. Canada (Attorney General), 2011 BCSC 1270, ~112. Factum of the Attorney General of Canada, ~~51, 53. R. v. D.B., [2008] 2 S.C.R. 3, ~46; R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571, ~113. George D. Finlayson, Q.C., "Self-Government of the Legal Profession - Can It Continue?" (1985) 4 Advocates' Society Journal I I, p. II ; Gavin MacKenzie, Lawyers and Ethics: Professional Responsibility and Discipline (4th ed., 2006), pp to LEGAL_l:30469J58. I

8 - 4- confidence that lawyers can truly represent its members m their dealings with government. " Independence of the Bar is undoubtedly a legal principle that can be, and has been, identified with sufficient precision to yield a manageable standard for s. 7 purposes. It is at the root of the legal principle that the state must not deprive a person of liberty by coercing his or her lawyer to act against the person's interests. 10 This Court has recognized and applied this principle on many occasions Independence of the Bar is also fundamental to the way in which the legal system ought fairly to operate. It is both a prerequisite to - and an activator of- Canadians' entrenched civil liberties in a free and democratic society. Just as the promise of the Charter requires an independent judiciary overseeing state conduct, Charter rights are largely meaningless without uninhibited advocates providing their clients with access to the courts' processes. Lawyers make the guarantees of the Charter accessible to Canadians, but, to do so must be free from the influence of government. Legislation that purports to enlist lawyers as agents of the state to act against their clients' interests trenches upon this fundamental principle, and, in tum, undermines public confidence in every Charter guarantee. Rights against the state are hollow unless counsel are free to "[s]eparat[ e] the duty of a patriot from that of an advocate." Independence of the Bar is also closely linked to access to justice, which itself is fundamental to the operation of our legal system. Access to justice under the Charter depends on rights against the state being more than merely illusory. 13 It also depends on public confidence in the legal profession. To the extent that lawyers are enlisted to act as agents of the state, public confidence in the integrity of the profession is undermined Finlayson, id, p. 11. Marandav. Richer, [2003] 3 S.C.R. 193, ~~12, 23, 37. See Maranda, id, ~1 2; A.G. Can. v. Law Society of B.C., [1982] 2 S.C.R. 307, pp ; Pearlman v. Manitoba Law Society Judicial Committee, [ 1991] 2 S.C.R. 869, pp ; Finney v. Barreau du Quebec, [2004] 2 S.C.R. 17, ~1 ; R. v. Neil, [2002] 3 S.C.R. 631, ~13. See also R. v. Cunningham, [2010] 1 S.C.R. 331, ~39; Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, ~32. Neil, id, ~12 ; quoting J. Nightingale, Trial of Queen Caroline (1821), p. 8; Pearlman, id, p See B.C. G. E. U v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, p Finlayson, above, note 8, p. 11. LEGAL_! :

9 - 5- The relationship of trust and loyalty that characterizes the lawyer-client relationship is necessarily weak:ened. 15 With the public's confidence in the legal profession goes meaningful access to justice, given lawyers' role as "vital conduit[ s ]" to the courts In this respect, independence of the Bar closely resembles other accepted principles of fundamental justice that embody access to justice aspirations. Access to justice "underlies Charter rights, such as s. 7's right to life, liberty and security of the person, consistent with the administration of justice and s. IS's right to equality." 17 Access to justice is also reflected in many of the "Legal Rights" in ss. 8 to 14 of the Charter, especially the s. IO(b) right to counsel and the ss. 11 and 14 rights to a fair hearing. These rights provide an "invaluable key to the meaning of 'principles of fundamental justice."' 18 (b) The Act compromises solicitor-client privilege and thereby access to justice 14. By requiring lawyers to generate and warehouse evidence for potential use in criminal prosecutions against their clients, the Act also compromises solicitor-client privilege, and therefore infringes s. 7 ofthe Charter. 15. This Court has repeatedly recognized that solicitor-client privilege is a principle of fundamental justice protected under s. 7 of the Charter: In R. v. McClure (2001), the Court stated that "[s]olicitor-client privilege and the right to make full answer and defence are principles of fundamental justice." The Court held that the privilege "is important to the administration of justice as a whole" and "exists whether or not there is the immediacy of a trial or of a client seeking advice." 19 Is Neil, above, note II, ~I6. IG See British Columbia (Attorney General) v. Christie, [2007] 1 S.C.R. 873, ~22. I? Hughes, above, note 1, p Is Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, p. 503; R. v. Mills, [1999] 3 S.C.R. 668, ~69. I 9 R. v. McClure, [2001] 1 S.C.R. 445, ~41. LEGAL_ I :30469 I 58. I

10 - 6 - In R. v. Brown (2002), the Court affirmed that solicitor-client privilege 1s a "fundamental tenet[] of our system ofjustice." 20 In Lavallee, Racket & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink (2002), the Court again recognized that solicitor-client privilege is protected under s. 7 of the Charter. The Court affirmed that "all information protected by the solicitor-client privilege is out of reach for the state. It cannot be forcibly discovered or disclosed and it is inadmissible in court. It is the privilege of the client and the lawyer acts as a gatekeeper, ethically bound to protect the privileged information that belongs to his or her client. Therefore, any privileged information acquired by the state without the consent of the privilege holder is information that the state is not entitled to as a rule of fundamental justice." The Attorney General of Canada asserts that solicitor-client privilege is recognized as a principle of fundamental justice only in the limited circumstances where a client's liberty is directly at stake, and contends that the privilege is not a freestanding constitutional right. 22 As noted above, however, clients' liberty interests are directly engaged, because the Act transforms their lawyers into record-generating archives accessible by the state upon judicial authorization. This Court has been vigilant to "avoid lawyers becoming, even involuntarily, a resource to be used in the criminal prosecution of their clients." 23 The Act undoubtedly trenches upon this principle. Indeed, this is the very purpose and effect of the Act as it applies to lawyers. 17. In any event, the Attorney General takes an excessively narrow view of the role of solicitor-client privilege in preserving the integrity of the justice system and in promoting access to justice as a whole (rather than merely in the criminal context). As noted by Deschamps J. in her concurring reasons in Maranda (2003), "[t]he protection [of solicitor-client privilege] extends to advice given in both criminal and civil cases, without R. v. Brown, [2002] 2 S.C.R. 185, ~1. Lavallee, Racket & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, [2002] 3 S.C.R. 209, ~24. Factum ofthe Attorney General of Canada, ~~ Maranda, above, note 10, ~12. LEGAL_I:

11 - 7 - distinction. [...] Solicitor-client privilege has been recognized by this Court as a principle of fundamental justice, which applies equally to both civil law and criminal law." 24 Deschamps J. cautioned that "contemporary imperatives dictate that the same generous approach be taken which led to the recognition of this privilege as a principle of fundamental justice." 25 Since then, this Court in Celanese (2006) has affirmed unambiguously that, even in the civil context, "[t]he protection of solicitor-client confidences is a matter of high importance. " None of these principles is undercut by Binnie J.'s isolated comment in National Post (2010) that solicitor-client privilege is not generally seen as "constitutional." The point of this obiter dictum was merely to highlight that the courts have "leaned against conferring constitutional status on testimonial immunities," in that case, journalistic privilege. While Binnie J. rejected the creation of a new constitutional immunity for journalistic privilege, he was quick to add that "solicitor-client privilege is supported by and impressed with the values underlying s. 7 of the Charter." Nor is the s. 7 infringement salvaged by s. 11 of the Act, which provides that nothing in the Act requires legal counsel to "disclose any communication that is subject to solicitor-client privilege." Section 11 only protects against disclosure of privileged communications by legal counsel. It does not protect against the mandated recording and retention of information, which can include privileged information, such as the "purpose and details of the transaction." 28 Privileged communications could be deduced or otherwise derived from the information in "receipt of funds records." That information can later be accessed by the state and used in prosecuting the lawyer's clients. 20. It is also useful to remember that solicitor-client privilege is foundational to the justice system exactly because of its close association with access to justice. This Court has elucidated this linkage and the systemic importance of the privilege on numerous occasions: Id., ~~40, 57 (emphasis added), Deschamps J., concurring with the majority in the result. Id., ~40. Celanese Canada Inc. v. Murray Demolition Corp., [2006] 2 S.C.R. 189, ~54. R. v. National Post, [2010] I S.C.R. 477, ~39. Regulations, s. 1(2), "receipt of funds record", s LEGAL_ 1:

12 - 8 - In Smith v. Jones (1999), the Court stated that "[t]he decision to exclude evidence that would be both relevant and of substantial probative value because it is protected by the solicitor-client privilege represents a policy decision. It is based upon the importance to our legal system in general of the solicitor-client privilege. " 29 In Campbell (1999), the Court stated that the "privilege is based on the functional needs of the administration of justice. The legal system, complicated as it is, calls for professional expertise. Access to justice is compromised where legal advice is unavailable. " 30 In McClure (200 1 ), the Court noted that the privilege "stretches beyond the parties and is integral to the workings of the legal system itself. The solicitorclient relationship is a part of that system, not ancillary to it. " 31 In Maranda (2003), Deschamps J. noted how solicitor-client privilege "enables all individuals to participate in society with the benefit of the information and advice needed in order to exercise their rights. It is closely associated with access to justice." 32 In Blank (2006), the Court stated that "the justice system depends for its vitality on full, free and frank communication between those who need legal advice and those who are best able to provide it. [...] The resulting confidential relationship between solicitor and client is a necessary and essential condition of the effective administration of justice. " Thus, like the independence of the Bar, solicitor-client privilege is essential for effective access to justice. It is critical to the proper operation of our justice system, Smith v. Jones, [1999] I S.C.R. 455, ~51. R. v. Campbell, [1999] 1 S.C.R. 565, ~49. McClure, above, note I9, ~31. Maranda, above, note I 0, ~40. See also General Accident Assurance Co. v. Chrusz (1999), 180 D.L.R. (4th) 241, ~92 (Ont. C.A.), Doherty J.A.( dissenting in part) ("[ a]ccess to justice depends in part on the ability to obtain effective legal advice. The surrender of the former should not be the cost of obtaining the latter. By maintaining [the] privilege, we promote both personal autonomy and access to justice"). Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319, ~26. LEGAL_! :

13 - 9 - ensuring that people will fully engage with the legal system by communicating frankly and freely with their lawyers. By contrast, the application of the Act to lawyers unconstitutionally erodes solicitor-client privilege by turning lawyers into evidencegathering tools for the state. This erosion has a chilling effect on the interaction between lawyers and their clients in the provision of legal services, leading to clients' disengagement from the legal system and diminished access to justice. In short, contracting the protected zone of privacy between lawyers and their clients ultimately reduces access to justice and thereby infringes s. 7. PART III- ORDER SOUGHT 22. The CCLA takes no position on the disposition of these appeals. It does not seek costs and asks that none be awarded against it. It also seeks leave to present 10 minutes of oral argument. Toronto, April29t\ 2014 ~ Mahmud Jamal W. David Rankin OSLER, HOSKIN & HARCOURT LLP Canadian Civil Liberties Association LEGAL _ I :

14 PART IV- TABLE OF AUTHORITIES Cases Paragraph A. G. Can. v. Law Society of B.C., [1982] 2 S.C.R B.C.G.E. U v. British Columbia (Attorney General), [1988] 2 S.C.R Blank v. Canada (Minister of Justice), [2006] 2 S.C.R British Columbia (Attorney General) v. Christie, [2007] 1 S.C.R Canada (Attorney General) v. Bedford, [2013] 3 S.C.R Celanese Canada Inc. v. Murray Demolition Corp., [2006] 2 S.C.R Finney v. Barreau du Quebec, [2004] 2 S.C.R General Accident Assurance Co. v. Chrusz (1999), 180 D.L.R. (4th) (Ont. C.A.) Krieger v. Law Society of Alberta, [2002] 3 S.C.R Lavallee, Rackel & Heintz v. Canada (Attorney General), White, 15 Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, [2002] 3 S.C.R. 209 Maranda v. Richer, [2003] 3 S.C.R , 16, 17,20 Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 10, R. v. Brown, [2002] 2 S.C.R R. v. Campbell, [1999] 1 S.C.R R. v. Cunningham, [2010] 1 S.C.R R. v. D.B., [2008] 2 S.C.R. 3 8 R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R R. v. McClure, [2001] 1 S.C.R , 20 R. v. Mills, [1999] 3 S.C.R R. v. National Post, [2010] 1 S.C.R R. v. Neil, [2002] 3 S.C.R , 11, 12 LEGAL _1 :

15 - 2 - ReB. C. Motor Vehicle Act, [1985] 2 S.C.R. 486 Smith v. Jones, [1999] 1 S.C.R Articles Finlayson, Q.C., George D. "Self-Government of the Legal Profession Can It Continue?" (1985) 4 Advocates' Society Joumal11 Hughes, Patricia. "Defining Access to Justice: The Charter and the Courts (and the Law Commission of Ontario)" (2011) 29 Nat'l J. Const. L , 12 2, 13 Text MacKenzie, Gavin. Lawyers and Ethics: Professional Responsibility and Discipline (4th ed., 2006) 9 LEGAL_ I :