Are the walls closing in on an independent legal system in B.C.?
That is the fear coming from the legal community as the B.C. Attorney General contemplates finalizing a new law to “modernize” the regulation of lawyers in this province.
At issue is the development of a new single legal regulator that will encapsulate not just lawyers, but notaries and paralegals under one umbrella, with the stated goal of expanding access to basic legal services and making regulation more streamlined for the public.
As such, the Law Society of BC, which sets professional standards and disciplines lawyers via independent hearing panels, would no longer exist under its present format, exclusive to lawyers.
It’s a move that the society itself is generally in favour of but longstanding concerns about government overreach have not been addressed and legislation proposals are in their 11th hour with B.C. Attorney General Niki Sharma set to table a bill this spring.
Lawyers are particularly concerned the government will strip a new regulator board of a majority of elected licensed lawyers and stack it in favour of government appointees who could be swayed by government interests over that of an independent legal system that is supposed to counter the state.
“It's crucial to ensure a functional justice system and to allow the judiciary to remain independent. All of these roles are critical for free and democratic society governed by the rule of law,” said Michael Elliott, president of the Trial Lawyers Association of BC.
“There's concern,” said Elliott, “that this will, in fact, reduce the independence of the bar and increase government control over lawyers.”
This month, Sharma’s office tabled an update with the ministry’s “contemplated framework.”
A new regulator board would consist of 17 directors, a minimum of 14 of whom would be licensees (notaries, lawyers and paralegals); of those 14 licensee directors, nine would be lawyers. And among the 17 directors, three would be appointed by government.
The key from the lawyers’ perspective is to have a majority of elected lawyers. Elliott says the proposed framework does not guarantee this (government appointees could technically be part of the group of nine lawyers).
As it stands, the society has 32 benchers (directors), seven of whom are appointed by government, including a seat for the Deputy Attorney General.
“Do elected benchers still constitute a majority of the new board? It looks like based upon the most recent update by the government, the answer to this would be no, which would seriously threaten the independence of the bar in B.C.,” said Elliott.
Lawyers would like to see guarantees of a majority of elected lawyers running the board baked into legislation, said Elliott.
“Are important aspects of this proposed reform found in the legislation, or will they be found in regulations? And if they're found in regulations the concern is that even if some of the concerns are dealt with initially, that this government or subsequent governments can then act to change things like composition of the board or other scope of practice matters by way of Orders in Council, which opens the door for tremendous mischief and further encroachment on the independence of the bar,” said Elliott.
The association asserts B.C. ought to model Ontario’s reforms when it grouped lawyers and paralegals together but kept 40 out of 53 board directors elected lawyers.
So far the ministry has yet to approve such a statutory framework, stating: “The Ministry believes a balanced board will focus on the public interest and avoid a board that is merely ‘representative’ of the interests of a particular profession.”
“Why the government is insisting upon greater government control over lawyers is unknown,” said Elliott.
But he said the BC NDP has shown a penchant for “greater influence and control over the professions in this province,” be it with reforms to regulatory oversight of real estate professionals, engineers and health-care workers, including doctors.
“That's concerning, in and of itself, but where it becomes really concerning is when that control is attempted to be exacted over a profession whose role and job it is to help control government overreach and to be a check and balance against government,” said Elliott.
Most recently, the society has stated its concerns about the process.
“On the process side, discussions regarding the proposed legislative framework continue to take place behind closed doors, with non-disclosure requirements limiting the capacity for meaningful discourse with the profession(s) and with the public on core changes that have profound significant public policy implications,” wrote Don Avison, society president and CEO in his March 8 update to the bench.
Avison also quoted correspondence from Lawyers’ Rights Watch Canada to the ministry: “We have become aware of concerns about draft legislation that has now been developed but has not yet been circulated for consultation with either the legal profession or the public. We draw your attention to international law and standards requiring public participation in the development of any proposed laws that affect people's rights and freedoms.”
A key perceived benefit of the changes could be better access to justice by having paralegals conduct more routine legal services.
“The rationale for change is simple. Far too many people in B.C. cannot afford the cost of a lawyer,” stated the B.C. Ministry of Attorney General in its September 2022 intentions paper.
The ministry is also intent on having the new board include Indigenous representation.
“Another important guiding principle in carrying out its mandate is how the regulator will identify, remove, and prevent barriers to the practice of law that have a disproportionate impact on Indigenous persons and other persons or groups that are under-represented in the practice of law.”
This is not the only battle lawyers in B.C. are fighting to maintain independence.
Last November, the Federation of Law Societies of Canada was granted an injunction against the federal government to delay the implementation of new laws under the Income Tax Act (Bill C-47). The bill is designed to further compel lawyers to report more instances of client transactions where abusive and aggressive tax avoidance is suspected, to the Canada Revenue Agency.
Correction: An earlier version of this story wrongly named Michael Elliott as Michael Phillips. We apologize for the error.
