SILENT COUP AGAINST LAWYERS

Recently, international agencies have ratcheted up their efforts against money-laundering and terrorism.

In 1989, Canada passed its first Proceeds of Crime Act (POCA) creating the offence of money-laundering. In 2000, that law was replaced by a new POCA broadening the scope of enforcement by making it mandatory for prescribed persons to report suspicious transactions to Canada’s new Financial Intelligence Unit, the Financial Transactions and Reports Analysis Centre of Canada (“FINTRAC”). As of November 2001, the Act was further widened to require lawyers and law firms to report clients’ suspicious transactions.

The Federation of Law Societies of Canada (FLSC), the Canadian version of Jamaica’s General Legal Council (GLC), immediately went to war on behalf of all Canadian lawyers. On November 8, 2001, the FLSC filed a petition in the Supreme Court of British Columbia, challenging the constitutional validity of the application of POCA rules to lawyers. Interlocutory injunctions were obtained protecting all lawyers pending the petition’s hearing.

The FLSC, showing a clear intention to protect the fundamental role of lawyers in society and its own regulatory role, contended the inclusion of lawyers was not only unconstitutional, but unnecessary because lawyers are already bound by strict ethical codes, bylaws and regulations, imposed by law societies and intended to prevent lawyers from wittingly and unwittingly assisting in money laundering or terrorist financing activities by clients.

The simple position taken by the FLSC was that asking Canadian lawyers to investigate their own clients on behalf of the State violated the Charter of Fundamental Rights and Freedoms. In order to succeed under the Canadian Constitution, the FLSC had to prove that the anti-money-laundering and anti-terrorism rules, when made applicable to lawyers:
1. constituted a deprivation of life, liberty or security of the person; and
2. the deprivation didn’t accord with the principles of fundamental justice.

At first instance, a brave Chambers Judge found in favour of the FLSC and struck down the Canadian legislation making these rules applicable to lawyers. She said:
In my opinion, imposing the recording and related obligations contained in Part 1 of the Act on legal counsel and legal firms would result in having lawyers’ offices turned into archives for the use of the prosecution, and would violate the principles of fundamental justice insofar as it erodes the solicitor-client privilege……

Section 11 of the Act provided that nothing in Part 1 required a lawyer to disclose any communication subject to solicitor-client privilege but the Chambers Judge correctly (in my opinion) found that provision, limited as it was to Part I of the Act (information recorded by the lawyer) but didn’t apply to subsequent search and seizure provisions, was a sham. She also noted FINTRAC’s authority to disclose information to appropriate law enforcement agencies in certain circumstances.

The Chambers Judge also concluded that the rules placed both lawyers and their clients in jeopardy of potential incarceration: the clients on the basis of information subject to solicitor-client privilege gathered by their lawyers and potentially available for use by law enforcement; and the lawyers because the Act provided the possibility of imprisonment as a sanction for noncompliance with the anti-money laundering requirements. It is settled law that a threat of imprisonment is a deprivation of liberty.

Predictably, the Canadian Government appealed. They contended (inter alia) that the judge erred in determining that the liberty interests of clients and lawyers were engaged in a manner inconsistent with principles of fundamental justice.

The leading Judgment of the British Colombia Court of Appeal [Federation of Law Societies of Canada v. Canada (Attorney General) 2013 BCCA 147] was delivered by Justice Hinkson who treated the lawyer-client privilege point as a secondary issue. At paragraph 6 of his judgment, he opined:
I largely agree with the conclusions of the chambers judge. However, in my opinion, this is not a case which turns on solicitor-client privilege being the applicable principle of fundamental justice relevant to the s. 7 Charter analysis. To the extent that the Regime may interfere with privilege, this is a secondary concern which [the Government] has attempted to address. That said, in my opinion the independence of the Bar is a principle of fundamental justice with which the Regime interferes to an unacceptable degree [my emphasis]……..

The independence of the Bar is the foundation upon which societies are built. Any threat to its existence or effectiveness can lead to the unravelling of any system of justice; anarchy; and despotism. The independence of the Bar is but an extension of the independence of the Judiciary because, without an independent Bar, how shall the judiciary function?

Because of the routine search and seizure provisions, the Appeal Court agreed that the regime potentially facilitates state access to information which is prima facie the subject of solicitor-client confidentiality. But not even this threat to the life blood of the legal profession was considered the all-important principle.

Justice Hinkson held (at Paragraph 102):
In my opinion, there are at least three components to the solicitor-client relationship engaged in this case, namely, solicitor-client privilege, the independence of the Bar, and the duty of undivided loyalty from a lawyer to a client.”
He held that the first component, solicitor-client privilege, was unquestionably “a principle of fundamental justice” (103). He went on (105):
“…. For the reasons that follow, in my opinion, the independence of the Bar is a principle of fundamental justice which meets the Malmo-Levine test.”

He held further (107):
The independence of the Bar is fundamental to the way in which the legal system ought fairly to operate…… In Canada (Attorney General) v. Law Society (British Columbia), [1982] 2 S.C.R. 307 at 335–336, Mr. Justice Estey commented that:
‘The independence of the bar from the state in all its pervasive manifestations is one of the hallmarks of a free society [my emphasis]. Consequently, regulation of members of the law profession by the state must, so far as by human ingenuity it can be designed, be free from state interference, in the political sense…….. 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 [again, my emphasis] and through those members, legal advice and services generally..’.

Justice Hinkson quoted British Columbia’s Chief Justice McEachern in
Omineca Enterprises Ltd. v. British Columbia (Minister of Forests) (1993), 85 B.C.L.R. (2d) 85 at para. 53:

One of the great and often unrecognized strengths of Canadian society is the existence of an independent bar. Because of that independence, lawyers are available to represent popular and unpopular interests, and to stand fearlessly between the state and its citizens.

In finding this to be the fundamental basis upon which the Government was wrong to include lawyers in POCA rules, Justice Hinkson held (113):

As shown by the authorities listed above, the independence of the Bar consists of lawyers who are free from incursions from any source, including from public authorities.

The USA and Australia have also successfully fought to keep lawyers exempt from POCA rules. In Jamaica, we’ve surrendered without a shot being fired. Since 1990, insidious steps have been taken to destroy the substratum of the legal profession by making it subject to similar POCA Rules including routine search (paid for by lawyers) and seizure of lawyers’ offices and books. Not one Member of Parliament, in a House of Representatives dominated by lawyers, raised one voice in opposition.

SHAME.

Our new slave masters (the World Bank; IDB, IMF etc) have instructed us to move towards an unjust society in which lawyers must turn “informer” against their own clients. Before yesterday, The Jamaica Bar Association had said not a word although it might mean loss of many members’ lives in an “informer fe dead” culture.

SHAME.

As the slave masters’ whips cracked, our GLC, the body entrusted to regulate lawyers, not only failed to take a single step or speak a single word to protect Jamaica’s legal profession from this egregious assault, it volunteered to administer the new POCA rules thus relieving the police of the additional burden. Shades of World War II when freedom and democracy was last threatened. England fought back; France surrendered; Italy collaborated.

SHAME. SHAME. SHAME.

Peace and Love

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