Law Times

Page 4 April 23, 2018 • lAw Times www.lawtimesnews.com Lawyers call on feds to comply with SCC ruling BY DALE SMITH For Law Times L awyers groups are calling on Parliament to amend federal anti-money- laundering legislation to comply with the Supreme Court of Canada decision that states that the act violates so- licitor-client privilege. These groups say that the law must be changed to ref lect the court rul- ing and not try to go around it. The Commons finance com- mittee will be undertaking the statutory review of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, in the wake of the Supreme Court of Canada's decision in Canada (Attorney General) v. Federa- tion of Law Societies of Cana- da, 2015 SCC 7. That decision struck down portions of the act that subject lawyers to searches and seizures that they are required to col- lect, record and maintain when it comes to the identity of their clients and of the money they re- ceive from them. "[The decision] matters be- cause of the importance of not being conscripted to do any- thing that would undermine the lawyer-client relationship, such as reporting a client for a large cash transaction," says Michael Lacy, partner in the criminal law group of Brauti Thorning Zibar- ras LLP in Toronto and presi- dent of the Criminal Lawyers' Association. Lacy points out that people come to lawyers for advice and guidance and need to be able to consult freely, as well as retain those lawyers. "As long as the lawyer makes it clear he or she cannot accept proceeds of crime and are not wilfully blind in accepting cash, they should not somehow be re- quired to report the transaction to law enforcement," says Lacy. Nader Hasan, partner with Stockwoods LLP in Toronto and member of The Advocates' Society, says the act needs to be "cleaned up" because it contains "zombie provisions." "Regardless of whether Par- liament takes them out, they'll still be of no force or effect. That said, to make the law clearer and more accessible to the public at large, the statute should be cleaned up," says Hasan. "There are potentially gaps now in the legislation, and it's in- cumbent upon Parliament to fix them," he added. Groups such as the CLA, the Canadian Bar Association, the Canadian Civil Liberties Asso- ciation and The Advocates' So- ciety, who all were intervenors in Federation of Law Societies, are making submissions that will be forwarded to the com- mittee as part of their study. "The best result would be to remove the offending sections and provide further clarification on what sections don't apply to lawyers as a result of the deci- sion," says Rob De Luca, direc- tor of the public safety program with the Canadian Civil Liber- ties Association. De Luca says that a number of the court's findings were quite important for recognizing the importance of solicitor-client privilege and lawyers' duty to a client's cause. "A large difficulty with the scheme as it existed was that it really authorized sweeping searches of law offices," says De Luca. "It essentially deputized law- yers into what the court found to be criminal investigations; these weren't simply administrative investigations." De Luca says it's important that the decision insulates law- yers from becoming a state agent given that they have a responsi- bility to their clients. "It's important to recognize that there's a host of other pro- tections that are already avail- able, including our prohibi- tion on being able to facilitate a crime, as well as the audit pow- ers of the law societies," says De Luca. "Given those other important powers that are available and are regularly enforced, this coercive scheme that turns lawyers into state agents is simply not accept- able and not desirable," says De Luca. Those searches are particu- larly of concern to the CCLA, particularly as the existing law would allow the examination and photocopying of materi- als prior to getting a warrant by agencies such as FINTRAC. Warrants would only be needed if a lawyer's office was in their own home. When coming up with its amendments, Parliament needs to pay particular attention to the principles around the protection of solicitor-client privilege that the SCC laid out in Lavallee, Rackel & Heintz v. Canada (Attorney General, White, Ot- tenheimer & Baker v. Canada (Attorney General) and R. v. Fink, [2002] 3 SCR 209, 2002 SCC 61 (CanLII), which Federa- tion of Law Societies affirmed, says Hasan. "The Supreme Court's deci- sion in Lavallee set out the min- imum constitutional require- ments that would be necessary in cases where the state sought to search a lawyer's office," says Hasan. "Because of the concerns about solicitor-client privilege, more onerous safeguards were going to be necessary." The Canadian Bar Associa- tion has already sent a letter to the committee stating that the act should be amended "to re- move the offending sections and clarify which sections do not ap- ply to members of the legal pro- fession." "That would give clarity to readers unfamiliar with the SCC decision and avoid mistaken ap- plication of this legislation going forward," wrote CBA president Kerry Simmons. The CBA did not provide comment to Law Times before deadline. LT NEWS NEWS NEWS Thursday May 24, 2018 7 - 11 PM RockForLife_LT_Apr23_18.indd 1 2018-04-20 10:29 AM Nader Hasan says Parliament should liaise with law societies so that any legislation that emerges mirrors the best ethical prac- tices that are possible.

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