By Bernise Carolino for Canadian Lawyer Magazine
The Canadian Bar Association has announced that it has submitted written arguments to the British Columbia Supreme Court as one intervenor among several in two cases assailing the constitutionality of Bill 21, BC’s Legal Professions Act, 2024.
In a news release, the CBA warned that the new legislation could discourage those seeking legal advice, chill vigorous advocacy, and limit access to justice.
The written submissions noted that Bill 21 made elected lawyers a minority in their regulatory body and empowered the BC government to directly control lawyers and legal practice.
The submissions claimed that the legislation made the province an outlier in the country and beyond, eroded the legal profession’s independence, and breached the constitutional guarantees of independent courts, a fair trial, the right to counsel, and the rule of law.
In its news release, the CBA shared that the Law Society of British Columbia commenced the first case, while the Trial Lawyers Association of BC and Kevin Westell brought the second suit.
Need for independence
In its written submissions, the CBA alleged that Bill 21 amounted to legislative overreach and compromised independence and the appearance of independence alike.
“Much like the appearance of judicial independence, the appearance of lawyer independence, both at an individual level and at an institutional level, is vital to public confidence in the justice system,” the CBA said in its submissions.
The CBA emphasized that self-regulation, or the regulation of lawyers by lawyers:
- was a precondition to independence
- required the regulator’s board to comprise a substantial majority of lawyers elected by lawyers
- held lawyers accountable to their peers and the public, not the state
- ensured that the bar was institutionally independent
The CBA accepted the significant roles of notaries and paralegals in the justice system. However, the CBA stressed that, unlike lawyers, these professionals lacked the constitutional imperative for institutional independence from the government and the obligation to advocate resolutely for clients in adversarial matters against the government.
The CBA added that Bill 21 did not guarantee that notaries or paralegals would, like lawyers, uphold the duties of loyalty and commitment to a client’s cause.
In its submissions, the CBA urged the BC Supreme Court to declare the legislation of no force or effect.
The CBA listed Michael A. Feder, Connor Bildfell, Lindsay Frame, and Nico Rullmann of McCarthy Tétrault LLP as counsel in its written submissions.
According to his firm bio, Connor Bildfell is a Vancouver-based partner focusing on corporate/commercial litigation, class actions, privacy, public law, and regulatory disputes.
“The court's ultimate decision will have significant implications for the independence of the bar, which is a cornerstone of our justice system as a whole,” Bildfell said in an article in the CBA’s National Magazine. “The issues here are absolutely vital.”