The Law Society of BC has announced it will initiate a constitutional challenge to a new law aimed at reforming the regulator.
Bill 21, the Legal Professions Act, reforms the society into a single regulator not just for lawyers, but for notaries and paralegals. The stated goal, according to the provincial government, is to broaden access to legal services to improve access to the justice system.
The society is an independent government-sanctioned agency, comprised of lawyers, that acts to regulate the legal profession. It contends the new law “fails to ensure the independence of the legal professions and their regulator — a fundamental democratic principle.”
One initial concern of the society during consultation on the reforms was the composition of lawyers on the board of directors.
Under the new 17-member board, lawyers will retain a slim majority (of nine). Attorney General Nikki Sharma has claimed the government is “stepping back” by discontinuing the attorney general from being on the new board (as it was on the old one) while also appointing a smaller ratio of government appointees. The new board, however, might include notaries, paralegals and more public members (who may also be lawyers).
The society issued a statement May 16, claiming “unnecessary government direction and intrusion on the legal profession threatens those rights and freedoms.”
“Despite all opposition parties voicing strong concerns that the act threatens the independence of the legal profession, the B.C. government chose to limit further debate by invoking closure and adopting the flawed legislation,” added the society.
“Not only did government fail to permit full and transparent consultation, they also closed debate on Bill 21 in a manner that suggests they never intended to permit a full and open discussion on the implications of seismic changes that we view as contrary to the public interest,” stated law society president Jeevyn Dhaliwal, KC.
The from the society is “the government’s decision to include stigmatizing and discriminatory provisions to compel legal professionals to undergo forced medical treatment,” according to society vice-president Brook Greenberg.
Consultation with the legal community and the public has also been a cause for concern for the society and other stakeholders.
“After the bill was tabled on April 10, the law society, Canadian Bar Association – BC Branch, Trial Lawyers Association of BC and other stakeholders strongly urged the government to reconsider proceeding with the passage of the bill in order to consult more widely with the public and the legal professions,” the law society said in its statement.
The bar association recently held a legal seminar with stakeholders on the matter, although it was closed to the public and media.
In a May 14 open letter to the attorney general, the association echoed concerns of the society.
“To be independent, lawyers must be self-regulated. This means that the board of the regulator must comprise a substantial lawyer majority that is elected by lawyers and through a process that reflects diverse voices, including Indigenous and racialized lawyers. The current slim majority of one elected lawyer does not meet this requirement. Appointed board members are not sufficiently autonomous from other board members, government and political influence to be classed as independent.”
The association did applaud moves to make Indigenous participation and viewpoints greater in policy formation. But, said the association, those policies, including scope of practice for paralegals and notaries, must be decided by the society and not government.
“The restrictions on those who saw drafts of the legislation in advance prevented dialogue to achieve a mutual understanding. If we cannot reach consensus on the changes required, we expect to intervene in any court action,” the association stated, via president Scott Morishita.
The society’s position is not accepted by everyone outside of government.
John Mayr, executive director of the Society of Notaries Public of British Columbia, says unlike other regulators’ bylaws that need to be approved by government there are no such provisions in this new bill.
“The bill does not strip away the independence of lawyers to fearlessly defend clients. The bill does not eliminate client-solicitor privilege. The bill does not give the government direct oversight or control over the regulator,” Mayr told Glacier Media via email.
