Key Canadian judgment on lawyers' duties

   The Canadian Supreme Court has issued a significant ruling on the importance of the lawyer's duty of commitment to the client's cause.

Canada's anti-money laundering and anti-terrorist financing legislation requires financial intermediaries - those, including lawyers, who handle funds on behalf of others - to collect, record and retain material.

An agency which oversees compliance is permitted to search for and seize that material, and non-compliance carries fines and penal consequences.

The legislation, as it applies to the legal profession, faced a constitutional challenge by the Federation of Law Societies of Canada and other bodies such as the Canadian Bar Association and the Canadian Civil Liberties Association.

The Supreme Court held that part of the legislation is unconstitutional and requires to be read so it does not apply to lawyers. The Court made important statements about the constitutional significance of the lawyer's role.

Cromwell J spoke of the "centrality to the administration of justice of the lawyer's duty of commitment to the client's cause" and stated: "The lawyer's duty of commitment to the client's cause, along with the protection of the client's confidences, is central to the lawyer's role in the administration of justice."

He described the duty as a "principle of fundamental justice", which is concerned not only with justice for individual clients "but is also deemed essential to maintaining public confidence in the administration of justice."

He stated: "Lawyers must keep their clients' confidences and act with commitment to serving and protecting their clients’ legitimate interests. Both of these duties are essential to the due administration of justice. However, some provisions of Canada's anti-money laundering and anti-terrorist financing legislation are repugnant to these duties. They require lawyers, on pain of imprisonment, to obtain and retain information that is not necessary for ethical legal representation and provide inadequate protection for the client's confidences subject to solicitor-client privilege."

The decision is at https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14639/index.do