Bill 203:The Legal Profession Amendment Act (Queen’s Counsel Appointments) YASSIR ALNAJI * I. INTRODUCTION ill 203 titled The Legal Profession Amendment Act (Queen’s Counsel Appointments)1 was introduced in the first session of the 41st B legislature. The bill was sponsored privately by the Honorable Steven Fletcher (PC) of the Assiniboia constituency. The bill purported to reinstate the historic tradition of appointing lawyers as Queen’s Counsel or King’s Counsel depending on the reigning regent. During the reign of a queen, the title is abbreviated "Q.C." in English, or "c.r." in French ("conseiller de la reine"). During the reign of a king, the title is "K.C." in English, and again "c.r." in French ("conseiller du roi"). II. HISTORY The practice of appointing lawyers as Queen’s Counsel (Q.C.) or King’s Counsel (K.C.) dates back to the year 1603, when the King of England appointed Sir Francis Bacon as the first K.C. for his exemplary service and “His Majesty's Counsel learned in the law.”2 An individual * J.D. The author of this article is articling at MLT Aikins LLP in Winnipeg, Manitoba. 1 Bill 203, The Legal Profession Amendment Act (Queen’s Counsel Appointments), 1st Sess, 41st Leg, Manitoba, 2016. 2 “BBC - History - Francis Bacon”, Bbc.co.uk. (2017), online: <http://www.bbc.co.uk/history/historic_figures/bacon_francis.shtml> [Accessed 12 Apr. 2017]. Bacon was originally granted the Queen’s Counsel Extraordinary letters patent by Queen Elizabeth I in 1597. See William Searle Holdsworth, History of English Law vol 6 (London: Methuen, 1938) at 473-4. 462 MANITOBA LAW JOURNAL | VOLUME 41 ISSUE 1 bestowed with the designation could wear silk robes (often called “taking the silk”) and was given priority over other lawyers when speaking to matters in court. As England began expanding its colonial rule, the practice permeated its various territories. Practitioners who represented the regent’s interests in various jurisdictions often received the designation. In Canada, only the federal government had the authority to grant the designation on behalf of the Crown until 1897. This point was decided in the case of Attorney General for the Dominion of Canada v Attorney General for the Province of Ontario.3 In that case, the province of Ontario argued that the Crown was as much a part of the provinces as it was a part of the federal government. The Judicial Committee of the Privy Council agreed with the province of Ontario and recognized their power to bestow the designation to the provinces.4 In Manitoba, the practice began in 1909, and a new batch of lawyers was appointed on New Year’s Day each year by the Attorney General of the province. The practice halted briefly in 1973 when the NDP Attorney General, Alvin Mackling, made no appointments that year. He stated that the practice “had become meaningless because of the method by which they were made.”5 This marked the beginning of an on-again off-again approach to the designations depending on the governing party of the province. On January 9, 2001, the NDP government stated in a news release that the Q.C. designation would be halted indefinitely due to the partisanship of the practice. It was to be replaced by a Senior Counsel or S.C. designation that would be decided by a group of Chief Justices and the Law Society of Manitoba. This was to be based on merit and would remove the arbitrariness of the selection process. No further steps were taken to implement this new approach and the Law Society Act was amended to repeal the statutory authority to give the designation.6 3 [1897] UKPC 49, [1898] AC 247. 4 Ibid. 5 Gordon Goldsborough, "Manitoba Queen's Counsels / King's Counsels", 2017, online: <http://www.mhs.mb.ca/docs/people/counsel.shtml>. 6 Ibid. Legal Profession Amendment Act 463 Similarly, in 1993 the Liberal government lead by Jean Chrétien, ceased to grant the appointment. Then in December of 2013, the Harper government resumed the practice by appointing seven lawyers as Queen’s Counsel.7 It appears to have been a trend for Liberal or New Democrat governments to halt the designation until a Conservative government regains control and reinstates the policy. III. LANGUAGE OF BILL 203 Bill 203 as introduced is comprised of only three provisions which bring about the intended change. The bill acts to amend The Legal Profession Act8 of Manitoba as it exists by introducing the following provisions under Part 7 before section 84 of the Act: Queen's Counsel 83.1(1) The Lieutenant Governor in Council may, by letters patent under the great seal, appoint such members as he or she considers proper to be, during pleasure, provincial officers under the name "Her Majesty's counsel learned in the law for the Province of Manitoba". Qualifications 83.1(2) A person is not eligible for appointment unless he or she has been a practising lawyer in Manitoba for at least 10 years. Restriction on number of appointments 83.1(3) No more than 10 appointments may be made in a year. 9 The bill appears to be stated in plain language and does not read as being overbroad such that it may be used for other purposes. Upon first reading the bill, some problems may be identified. One is that the bill uses “he or she” rather than simply restating “the Lieutenant Governor in Council” in 83.1(1)10 or “the person” in 83.1(2).11 Additionally, 83.1(2) is 7 Designation of Queen’s Counsel", (2017), online: <https://web.archive.org/web/20131220194656/http://www.justice.gc.ca/eng/news- nouv/nr-cp/2013/doc_33009.html>. 8 CCSM, c L107. 9 Bill 203, supra note 1. 10 Ibid, s 83.1(1). 11 Ibid, s 83.1(2). 464 MANITOBA LAW JOURNAL | VOLUME 41 ISSUE 1 entitled “Qualifications,” however, the section only refers to eligibility. It is arguable that an individual can be eligible but not qualified, as the two terms do not mean the same thing. Another problem that will be explored further in the parliamentary debate sections of this paper is that the only eligibility requirement is ten years of practice in Manitoba. There is no requirement that the person is in good standing with the Law Society, or that they never faced disciplinary action as a result of unethical behavior. IV. PARALLEL LEGISLATION Today, three out of the ten provinces in Canada do not grant the Queen’s Counsel designation. Those provinces are Manitoba, Quebec, and Ontario. Alberta does not include in its Legal Profession Act12 any provision capable of granting the Q.C. designation. Instead, it has the Queen’s Counsel Act13 as stand alone legislation which authorizes the Lieutenant Governor in Council to grant the designation. When compared to the proposed Manitoba legislation, the Queen’s Counsel Act differs regarding qualifications and exceptions. Under “Qualifications” in the Manitoba bill, the person must have practiced in Manitoba for ten years, whereas in the Alberta legislation, the person must have practiced for ten years anywhere in Canada, or the superior courts of the United Kingdom.14 This qualification requirement is much broader than that in the proposed Manitoba bill. Perhaps this is because until recently, Manitoba did not have a large regional firm. Such is not the case in Alberta where regional and national firms such as Borden Ladner Gervais and the like are commonplace. The Queen’s Counsel Act does not contain a restriction on the number of appointments like that in the proposed Manitoba bill. In 2016, a total of 39 lawyers received the designation in Alberta.15 Interestingly, in the 12 RSA 2000, c L-8. 13 RSA 2000, c Q-1 [Queen’s Counsel Act]. 14 Ibid, s 2. 15 Justice and Solicitor General of Alberta, "Queen's Counsel appointments - Alberta Justice", (2017), online: <https://justice.alberta.ca/initiatives/Initiatives%20Library/queenscounsel.aspx>. Legal Profession Amendment Act 465 Alberta legislation under section 3, any person appointed to the office of Minister of Justice and Solicitor General of Alberta who is not already appointed as Q.C., shall be appointed.16 This seems to align directly with the concerns of critics that the designation is too politicized and that merit is irrelevant. The Alberta Queen’s Counsel Act allows exceptions to its qualification requirements. The following is stated under section 4 of the Act: 4. Notwithstanding section 2, the following may be appointed pursuant to section 1: (a) a Member of the Legislative Assembly or of the Parliament of Canada; (b) a deputy appointed for the Minister of Justice and Solicitor General under section 4 of the Government Organization Act; (b.1) a Deputy Attorney General appointed under section 1(3) of Schedule 9 of the Government Organization Act; (c) a Bencher of The Law Society of Alberta.17 I do not imagine including a section like this would help the bill succeed in Manitoba’s Legislative Assembly. Although, perhaps some opposition members would like the ring of Q.C. added to the end of their names. Finally, the Alberta legislation includes a “revocation of appointment” under section 10 of the Act. This states that the Lieutenant Governor in Council shall revoke the appointment if the person is disbarred or resigns in the face of Law Society discipline.18 In the proposed Manitoba bill, there is no mechanism by which the designation can be revoked. Saskatchewan, like Alberta, has The Queen’s Counsel Act.19 The legislation bears many similarities to the one in Alberta but does not contain de facto designation for the Minister of Justice and Solicitor General.