Totallegaljobs.ca Your one-stop destination to advance your legal career in .

www.totallegaljobs.ca @TotalLegalJobs

Vol. 34, No. 39 FEBRUARY 27, 2015 lawyersweekly.ca

Cop tactics Hunter sees victory for clients slammed in as SCC enshrines independence lawyer arrest Cristin Schmitz Ruling strikes down lawyers’ role in anti-money-laundering regime The courthouse arrest of a Toronto defence counsel after marijuana Cristin Schmitz was found in the clothes she deliv- OT TAWA ered to security officials for a client’s court date has sparked The Supreme Court has quashed pushback from lawyers. the latest bid to enlist lawyers in Laura Liscio, 32, is “inno- Ottawa’s anti-money-laundering cent” — not just “not guilty” — of regime, ending a 14-year legal the charges of possession of mari- battle waged by law societies in juana for the purposes of traffick- the name of defending solicitor- ing, simple possession of mari- client privilege and the independ- juana, obstruction of justice and ence of the bar. breach of trust Peel Regional On Feb. 13 in Canada A.G. v. Police laid Feb. 12, said her coun- Federation of Law Societies of sel Stephen Bernstein of Toronto’s Canada, [2015] S.C.J. No. 7, Bernstein Newman. seven judges ruled unanimously “She’s devastated by being that 2008 federal regulations charged with these allegations,” requiring financial intermediar- Bernstein told The Lawyers ies to verify clients’ identities Weekly. “These are all classic, and record and retain their trumped-up charges.” information for scrutiny by the Bernstein described his client as Financial Transactions and an “ethical young lawyer who has Reports Analysis Centre of Can- been very falsely accused here.” ada (FINTRAC), as well as statu- Liscio was arrested in the tory provisions from 2000 Brampton, Ont., courthouse authorizing the federal agency to while defending her client in an search offices and computers John Hunter of Hunter Litigation Chambers, seen above at his Vancouver offices, represented the Federation Superior Court trial. She and seize information during of Law Societies of Canada in a Supreme Court case that underscored the independence of the bar. Hunter was handcuffed, led through the compliance audits, are unconsti- termed it a win for clients more than lawyers. Alistair Eagle for The Lawyers Weekly public corridors in front of wit- tutional as they apply to Can- nesses, and put into a police car. adian lawyers and law firms, vates that duty of “committed the FLSC, umbrella group for reau du Québec, La Chambre des In a statement, Peel police denied including notaries. client representation” to a s. 7 Canada’s 14 law societies that notaires du Québec, the Criminal they handcuffed her while she The ruling “confirms the Charter-protected principle of launched the test case in 2001. Lawyers’ Association, the Advo- was in “court attire.” Bernstein importance of a lawyer’s fundamental justice, said John The regime attracted the oppos- cates’ Society and the Canadian said Liscio’s clothing clearly undivided loyalty to his or her Hunter of Vancouver’s Hunter ition and intervention of other Civil Liberties Association. marked her as a lawyer. client,” and for the first time ele- Litigation Chambers, counsel for legal groups including Le Bar- Ferris, Page 2 Defence lawyers, Page 23

REAL PROPERTY CRIMINAL LAW BUSINESS & CAREERS E-signatures Solitary Clients want are coming on the spot poise, not panic Exemption for real estate Recent challenges may Rushers tend to leave set to come to an end put limit on confinement a trail of frustration

PAGESTB_LW_basebar_03_12v2_STG 10 3/15/12 4:24 PM Page 1 PAGE 14 PAGE 20

The title insurer that puts you front row, centre

Putting the legal community front and centre has made us the #1 choice with Canadian lawyers/notaries for over a decade. Stewart Title does not support programs that reduce or eliminate the lawyer’s/notary’s role in real estate transactions. PUBLICATIONS MAIL AGREEMENT NO. 40065517 NO. AGREEMENT MAIL PUBLICATIONS

We keep real estate transactions where they belong – in your office! www.lawyersweekly.ca/subscribe To subscribe to The Lawyers Weekly, The subscribe to Lawyers To visit

1-888-667-5151 or www.stewart.ca 2 • fEBRUARY 27, 2015 THE LAWYERS WEEKLY News

Contents Ferris: Key elements of profession News

Top court enshrines lawyer independence 1 ‘constitutionalized’ under ruling Police tactics slammed when lawyer arrested 1 Continued from page 1 in fact or in the perception of a “The important thing is it is not reasonable person. Groia says he is prepared to continue the fight 3 so much a win for lawyers, as it is All seven of the Supreme for clients,” said Hunter. “The Court’s judges agreed that ss. 62, Court nullifies minister’s will over clients are entitled to lawyers’ I think those are 63, 63.1 of the Proceeds of Crime racism 3 undivided loyalty and commit- going to be some core (Money Laundering) and Terror- ment to the client’s cause, and…if ist Financing Act are “a very sig- Transgender inmates to declare principles that will sex identity 4 government duties put a lawyer nificant limitation” of the s. 8 in a position of conflict with have long-lasting Charter right to be free from Focus respect to that duty, then that implications under unreasonable searches and seiz- creates a significant problem for ures and, along with s. 64, which REAL PROPERTY the administration of justice. So the Charter. gives “inadequate protection” to Electronic signatures imminent the client’s ability to have faith solicitor-client privilege, are an for Ontario transactions 10 that their lawyer is working just Craig Ferris unjustified violation of s. 8. The for them has been confirmed.” Lawson Lundell government failed to demon- Real estate agents must verify The Supreme Court has now mitment to their client’s cause. strate that it minimally impaired home defects 11 “constitutionalized” under the There are “less drastic means” the right, the court held. Dealing with the problem of Charter two core elements of the of pursuing the valid objectives “There are less drastic means estimates 12 legal profession — solicitor-client of fighting money-laundering of pursuing the same identified privilege and “committed rep- and terrorist financing, Justice objectives,” Justice Cromwell Positive rights violate genuine resentation” to clients, said Craig held, largely held, in striking down s. 64, rights 13 Ferris of Vancouver’s Lawson affirming B.C. lower-court deci- and reading down ss. 62, 63 CRIMINAL LAW Lundell, counsel for the inter- sions exempting lawyers from and 63.1 to exclude their appli- vener Canadian Bar Association. the regime. cation to records held by law- Charter challenges aim to limit “I can see those being real The Supreme Court did, how- yers and law firms. administrative segregation 14 building blocks for other cases,” ever, suggest constitutional He suggested “less drastic Defending professionals on he said. “I think those are going compliance is possible with “sig- means” would include the sorts of multiple fronts 15 to be some core principles that nificant” modifications by gov- protections for solicitor-client will have long-lasting implica- ernment, such as better safe- privilege the court said should Business & Careers tions under the Charter.” guarding solicitor-client govern law-office searches in In the wake of the constitu- privilege and creating “mean- Lavallee, Rackel & Heintz v. Can- When rushing, more frustration tional parameters outlined in ingful derivative use immunity ada (A.G.) [2002] S.C.J. No. 61. than motivation is created 20 FLSC, the federal government of the required records for the All seven judges went on to Showing the aging, unprofitable has little “meaningful ground” to purposes of prosecuting clients.” hold that the measures also vio- partner the door 22 legislate money-laundering con- “Under this specific regime, I late s. 7 of the Charter. The lib- trols in respect of lawyers, Ferris think that’s the end of the road, erty interests of lawyers are said. A more productive route [or] I hope it is,” Hunter noted. infringed because they can be might be “to see if they can con- “But I’m sure the federation would imprisoned if they do not comply vince the law societies to make welcome discussions with the gov- with the act and its regulations, their anti-money laundering ernment, as would individual law the judges agreed. rules a bit more comprehensive.” societies, if there are things that on behalf of five of the seven However, Chief Justice Bever- The Supreme Court held that lawyers can do that will be helpful, judges, that the court should rec- ley McLachlin and Justice the constitutionally deficient that don’t put them into a conflict ognize a new principle of funda- argued that legislation requires lawyers to with their clients.” mental justice “that the state can- the principle of fundamental jus- gather and retain considerably Hunter stressed law societies not impose duties on lawyers that tice that is breached is the recog- more information than the pro- have implemented their own undermine their duty of commit- nized constitutional norm that fession thinks necessary for eth- anti-money-laundering rules ment to their clients’ causes.” lawyers must preserve their cli- ANNOUNCEMENTS 22 ical and effective client represen- over the past 15 years, including “Clients — and the broader ents’ confidences — i.e. solicitor- CAREERS 21 tation. Coupled with the regime’s requiring lawyers to keep public — must justifiably feel client privilege. CLASSIFIED ADS 19 inadequate protections for solici- appropriate records and bar- confident that lawyers are com- “The lawyer’s commitment to DIGEST 16 tor-client privilege, this under- ring them from putting large mitted to serving their clients’ the client’s interest will vary with LAWDITTIES 13 mines what a majority of the amounts of client cash into legitimate interests free of the nature of the retainer NAMES IN THE NEWS 4 judges held to be a lawyer’s consti- their trust accounts. other obligations that might between the lawyer and client, as tutionally protected duty of com- “I think the regulators have interfere with that duty. Other- well as with other circum- stepped up,” Hunter said. “This wise the lawyer’s ability to do so stances,” they said, adding that it has never been about whether may be compromised and the does not provide “a workable it’s a good idea to fight money- trust and confidence necessary constitutional standard.” Riches, McKenzie & heRbeRt llp laundering. This is just about for the solicitor-client relation- Justice Cromwell, writing also PATENTS, TRADE MARKS, COPYRIGHT, LITIGATION whether lawyers can be enlisted ship may be undermined. This for Justices Louis LeBel, Rosalie in contravention of their duties duty of commitment to the Abella, Andromache Karakat- BARRISTERS & SOLICITORS - PATENT & TRADE MARK AGENTS to their clients.” client’s cause is an enduring sanis and , held

Paul Herbert, b.Sc., PHm., r.PH, ll.b., J.D., PH.D. brant latHam, b.a.Sc. b.Sc. (cHem. eng.), ll.b. Much of the impetus to treat principle that is essential to the that the notion that “the state Dan HitcHcock, b.eng. (elec. eng.), ll.b. garY m. traviS, b.Sc. (geol.), ll.b. lawyers the same as other finan- integrity of the administration cannot impose duties on lawyers Jeff PervanaS, b.a.Sc. (eng. Sci.), ll.b. micHael aDamS, b.eng. (mecH. eng.), b.Sc., ll.b. cial intermediaries has come of justice.” that undermine their duty of micHael Yun, b.Sc. (biocHem), J.D. tHomaS mcconnell, b.Sc. (biol.), J.D. Steven cHeng, b.a.Sc. (elec. eng.), J.D. from the Financial Action Task The court held that, subject to commitment to their clients’ Force, of which Canada is a mem- providing adequate justification causes” is a recognized “norma- TRADE MARK AGENT marta tanDori cHeng ber, which sets global standards under s. 1 of the Charter, “the tive legal principle and basic 2 BLOOR ST. EAST, SuITE 1800 TELEPHONE: (416) 961-5000 for combating money-laundering state cannot impose obligations tenet of the legal system” that is TORONTO, ONTARIO M4W 3J5 FAx: (416) 961-5081 and the financing of terrorism. ESTABLISHED 1887 E-MAIL: [email protected] on lawyers that undermine their sufficiently precise to provide a In FLSC Justice Cromwell held, compliance with the duty, either workable standard.