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Read the fine print

Editorial Obiter

Recently, the Canadian Bar Association offered carefully worded recommendations to a federal finance committee tasked with reviewing the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.

While the goals of the act are admirable — preventing money laundering and financing of violent groups — the act has problematic implications for lawyers across the country. Lawyers groups are continuing to call on Parliament to amend the act to comply with a Supreme Court of Canada ruling from 2015, which states that certain portions of the legislation violate solicitor-client privilege. The decision, Canada (Attorney General) v. Federation of Law Societies of Canada, said, “It should be recognized as a principle of fundamental justice that the state cannot impose duties on lawyers that undermine their duty of commitment to their clients’ causes.”

“There are potentially gaps now in the legislation, and it’s incumbent upon Parliament to fix them,” says Nader Hasan, a lawyer in Toronto, who says that means removing “zombie provisions” the act contains. “Regardless of whether Parliament takes them out, they’ll still be of no force or effect. . . . [T]o make the law clearer and more accessible to the public at large, the statute should be cleaned up.” 

The Canadian Bar Association also recently raised concerns.

“Any law or regulation that requires lawyers to monitor and collect information about their clients for state purposes undermines the duty of loyalty owed by lawyers to their clients and significantly weakens the independence of the Bar,” says the CBA submission. The CBA is rightfully calling on the federal government to revise the act “to remove offending sections and clarify which sections do not apply to members of the legal profession.”

“That would give clarity to readers unfamiliar with the SCC decision and avoid mistaken application of this legislation going forward,” says the submission. Obviously, it’s time for the federal government to read the fine print of the SCC decision and make the appropriate changes. Hurry up.

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