‘Lawyers must be answerable to their clients, not the state’

The Supreme Court of British Columbia has upheld a law that transforms the regulatory framework of lawyers in the province and significantly impacts the independence of its bar. 

In a 63-page decision released Wednesday, Chief Justice Ronald Skolrood said the Legal Professions Act is constitutional.

The provincial government passed the law in May 2024 to regulate lawyers, notaries, and paralegals under a single regulator, Legal Professions British Columbia. The Law Society of British Columbia and the Trial Lawyers Association of BC quickly filed constitutional challenges to the legislation, arguing that it erodes the independence of the bar and the judiciary. The Canadian Bar Association intervened when the matter went to trial.

At the core of the case was the question of whether the provincial legislature had acted beyond its authority in passing the legislation. The Court found the Act “does not improperly undermine the independence of the bar and is not ultra vires the provincial legislature. Nor does it violate the Charter.” 

Before the legislation, there was a 32-person system of governance, with the Law Society overseen by 25 lawyers elected by their peers in the profession and up to six non-lawyers appointed by the province. Elected lawyers comprised a substantial majority of the Law Society’s membership, ensuring self-regulation.

Under the new framework, there will be a one-lawyer majority on the regulator’s 17-person board, with four of the nine lawyers appointed by the province. That means elected lawyers will comprise only five of 12 board members at best. The CBA’s BC branch insists lawyers need more than a slim majority represented on a regulator’s board to be independent. Further, those lawyers must not be appointed — they must be elected.

In its written submissions, the CBA noted the Constitution promises everyone in Canada access to independent courts, a fair trial, a right to counsel, and the rule of law — promises that ring hollow without an independent, self-regulating bar.

“The rule of law would mean nothing without an independent bar charged with advising and advocating for their clients independently, free from any state control or influence,” the CBA argued, particularly when the state “is far and away the country’s most frequent and powerful litigant.” 

“This independence allows lawyers to hold state actors to account on behalf of their clients and ensure those clients fully enjoy their legal rights and fully comply with their legal duties.”

Connor Bildfell, a lawyer with McCarthy Tétrault in Vancouver and counsel for the CBA, says the decision recognizes that the independence of the bar constitutes an unwritten constitutional principle — a first for a court in Canada.

“It's a recognition of just how essential the independence of the bar is to our Constitution and to our system of justice. That's a landmark moment, and I was really happy to see that.”

The decision also discusses how the bar's independence engages a functional test: Are lawyers able to advocate for their clients without fear of undue government influence or control?

Bildfell says individual lawyers have to be able to advocate for their clients without fear, and that the bar, as an institution, has to be free and seen to be free from undue government influence or control. While the constitutional principle is not a free-standing basis for striking down legislation, the Court said it does provide a basis for interpreting and applying legislation.

It found the Legal Professions Act does not impinge on the independence of the bar in a way that would make it unconstitutional, even if there's a possibility that some actions later taken under the regime might be unconstitutional.

The legislation shifts the regulation of the profession from self-governance to co-governance. Chief Justice Skolrood was critical of the provincial government’s failure to justify departing from historical practice and a regulatory framework that’s been in place for 150 years.

“The Court was also critical of the process by which the legislation was introduced, and the fact that the bar was not consulted in the way that one would have expected given the significance of the changes,” Bildfell says.

“So, although the legislation passed muster, the Court did not mince words when it came to its criticisms of how the government went about implementing this legislation.”

Also at play here is the question of whether the public will perceive lawyers to be independent.

“The entire justice system requires public confidence in the system. It does not work if people don't have confidence in it,” Bildfell says. 

“They won't use the system if they don’t have confidence that their lawyer is independent and is going to fight for them tooth and nail without fear of retribution or punishment or undue influence by government. They're going to find other ways to resolve their disputes. That’s why one of the points we were making was that even the perception that there may be undue government influence should be sufficient to render this regime unconstitutional.”

The Court’s response is that there hasn't been a showing of legitimate or reasonable perception among the public that independence has been impaired. There are also safeguards in place that allow lawyers to do their jobs independently without undermining the public's confidence in the system.

“Time will tell,” Bildfell says.

“(The decision) is talking about the regime as it appears on paper. It will be interesting to see what happens in the real world.”

In a statement, CBA President Bianca Kratt, K.C. and CBA British Columbia President Patricia Blair said the association intervened in this case to defend the independence of the legal profession. It remains committed to vigorously doing that and engaging constructively on regulatory frameworks that protect Canadians’ confidence in a legal profession free of state control.

“When Canadians seek legal counsel, they should be confident that their lawyer’s advice is wholly independent of government preferences or pressure. Lawyers must be answerable to their clients, their professional obligations, and the courts – not to the state.”