Principles of fundamental justice and lawyers' duty

Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7 is yet another case where the Supreme Court of Canada disapproved of federal legislation -- here holding certain reporting requirements imposed on lawyers unconstitutional:  

[95]                          Principles of fundamental justice find their “meaning in the cases and traditions that have long detailed the basic norms for how the state deals with its citizens”: Canadian Foundation for Children, Youth and the Law, at para. 8, per McLachlin C.J. The duty of commitment to the client’s cause is fundamental to how the state and the citizen interact in legal matters.

[96]                          Clients — and the broader public — must justifiably feel confident that lawyers are committed to serving their clients’ legitimate interests free of other obligations that might interfere with that duty. Otherwise, the lawyer’s ability to do so may be compromised and the trust and confidence necessary for the solicitor-client relationship may be undermined. This duty of commitment to the client’s cause is an enduring principle that is essential to the integrity of the administration of justice. In Neil, the Court underlined the fundamental importance of the duty of loyalty to the administration of justice. The duty of commitment to the client’s cause is an essential component of that broader fiduciary obligation. On behalf of the Court, Binnie J. emphasized the ancient pedigree of the duty and wrote that it endures “because it is essential to the integrity of the administration of justice and it is of high public importance that public confidence in that integrity be maintained”: para. 12 (emphasis added). This unequivocal and recent affirmation seems to me to demonstrate that the duty of commitment to the client’s cause is both generally accepted and fundamental to the administration of justice as we understand it.

[97]                          The duty of commitment to the client’s cause is thus not only concerned with justice for individual clients but is also deemed essential to maintaining public confidence in the administration of justice. Public confidence depends not only on fact but also on reasonable perception. It follows that we must be concerned not only with whether the duty is in fact interfered with but also with the perception of a reasonable person, fully apprised of the relevant circumstances and having thought the matter through. The fundamentality of this duty of commitment is supported by many more general and broadly expressed pronouncements about the central importance to the legal system of lawyers being free from government interference in discharging their duties to their clients. In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, McIntyre J. put it this way:

. . . in the absence of an independent legal profession, skilled and qualified to play its part in the administration of justice and the judicial process, the whole legal system would be in a parlous state. [p. 187]

[98]                          In Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307, Estey J. wrote:

The independence of the Bar from the state in all its pervasive manifestations is one of the hallmarks of a free society. Consequently, regulation of these members of the law profession by the state must, so far as by human ingenuity it can be so designed,be free from state interference, in the political sense, with the delivery of services to the individual citizens in the state, particularly in fields of public and criminal law.The public interest in a free society knows no area more sensitive than the independence, impartiality and availability to the general public of the members of the Bar and through those members, legal advice and services generally. [Emphasis added; pp. 335-36.]

[99]                          Similarly, in Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869, the Court took up the theme in these words:

Stress was rightly laid on the high value that free societies have placed historically on . . . an independent bar, free to represent citizens without fear or favour in the protection of individual rights and civil liberties against incursions from any source, including the state. [p. 887]

(Citing the Ministry of the Attorney General of Ontario, The Reports of the Professional Organizations Committee (1980), at p. 26.)

[100]                      In Finney, the Court said this:

An independent bar composed of lawyers who are free of influence by public authorities is an important component of the fundamental legal framework of Canadian society. [Emphasis added; para. 1.]

[101]                      Various international bodies have also broadly affirmed the fundamental importance of preventing state interference with legal representation.   The Basic Principles on the Role of Lawyers adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders state that “adequate protection of the human rights and fundamental freedoms to which all persons are entitled . . . requires that all persons have effective access to legal services provided by an independent legal profession”: U.N. Doc. A/CONF.144/28/Rev.1 (1991), at p. 119. Similarly, the Council of Bars and Law Societies of Europe’s Charter  of Core Principles of the European Legal Profession emphasizes lawyers’ “freedom . . . to pursue the client’s case”, including it as the first of 10 “core principles” (online).  The International Bar Association’s International Principles on Conduct for the Legal Profession, adopted in 2011, also emphasize committed client representation as the first principle governing lawyers’ conduct: “A lawyer shall maintain independence and be afforded the protection such independence offers in giving clients unbiased advice and representation” (p. 5 (online)).

[102]                      I conclude that there is overwhelming evidence of a strong and widespread consensus concerning the fundamental importance in democratic states of protection against state interference with the lawyer’s commitment to his or her client’s cause.

[103]                      The duty of commitment to the client’s cause ensures that “divided loyalty does not cause the lawyer to ‘soft peddle’ his or her [representation]” and prevents the solicitor-client relationship from being undermined: Neil, at para. 19; McKercher, at paras. 43-44. In the context of state action engaging s. 7  of the Charter , this means at least that (subject to justification) the state cannot impose duties on lawyers that undermine the lawyer’s compliance with that duty, either in fact or in the perception of a reasonable person, fully apprised of all of the relevant circumstances and having thought the matter through. The paradigm case of such interference would be state-imposed duties on lawyers that conflict with or otherwise undermine compliance with the lawyer’s duty of commitment to serving the client’s legitimate interests.