Many professions such as doctors, engineers, and architects are regulated to ensure that people providing services to the public are properly trained and competent to practice. The need for this is clear: you want to ensure people receive good medical care and the buildings and bridges don’t fall down.
The regulation of lawyers has this objective as well: you want to know that you’re getting competent legal advice when you hire a lawyer.
Because lawyers are often engaged in work that is in opposition to the wishes of the government it is also important that the regulation of lawyers is independent of the government.
If you hire a lawyer to defend a criminal case, prevent the government from apprehending your children, challenging the validity of a law, or pursue indigenous rights, you do not want the lawyer to be concerned about the professional consequences of acting in opposition to the government’s wishes.
This independence is under threat in British Columbia as a result of a proposal to “modernize” the Legal Profession Act in such a way that the provincial government would be able to appoint an increased number of the benchers (directors) that govern the Law Society.
As discussed on the show, the government’s immediate motivations to take greater control include a wish to avoid providing adequate funding for legal aid services by creating a system of paralegals with less training than lawyers to provide legal services for the poor.
The issue of adequate legal aid funding has been pursued by the Law Society for many years.
BC is the only province in Canada that imposes a special tax on legal services. The tax was introduced by an NDP government in 1992.
When the tax was introduced it was done for the express purpose of funding legal aid.
Quickly, however, the tax started collecting more money than the government was providing for legal aid and the extra funds were diverted to general revenue.
The government now diverts more than half of the funds collected pursuant to the special tax while dramatically underfunding legal aid services.
The diversion of tax revenue from legal aid has resulted in various challenges by the Law Society including a vote to censure a past Attorney General.
A history of the funding of legal aid in BC, the special tax, and the disproportionate impact the diversion of revenue from the special tax has had on women can be found here.
The government proposal has met with opposition from the Canadian Bar Association, the Victoria Bar Association, the Law Society, and others.
As discussed on the show, one of the elected benchers from Victoria, Paul Pearson gave up his position because he works as Crown Counsel and concluded he couldn’t effectively oppose the government initiative while also working for the provincial government.
His statement outlining the import of what has been proposed can be found here.
Transcript of the show:
Legally Speaking Nov 9, 2023
Adam Stirling [00:00:00] Time for our regular segment, Legally Speaking, joined by Barrister and Solicitor with Mulligan Defence Lawyers. Good morning, Michael Mulligan. How are we doing?
Michael T. Mulligan [00:00:08] Hey, good morning. I’m doing great. Always good to be.
Adam Stirling [00:00:10] Here. Some interesting items on the docket for this week. It’s that word that we’ve discussed in the past, a Bencher and what the B.C. Government’s proposal to modernize the regulation of the legal profession might impact regarding the abilities that role carries with it.
Michael T. Mulligan [00:00:26] That’s right. And I will say sometimes you need to be a bit worried when the government rationale for doing something is, “modernization”. Not always, but this may be one of them. And so, the background of this is that there are a number of professions that are regulated, they would include things like doctors, engineers, architects, nurses and indeed lawyers. And the reason for that regulation should be obvious when you think about it, is to ensure the public is safe. You don’t want anyone who feels like it purporting to be a doctor or an engineer or something. People would be dying, and bridges would be falling down. And so, if you wish to be any of those things, you would need to meet various requirements like educational requirements, testing requirements, that sort of thing, so that you don’t have incompetent doctors, engineers, nurses, teachers, or various other things. And in many cases, that is really the concern to ensure competence to protect the public. Right. You want to make sure when you go to a doctor, the doctor knows what they’re doing. Or the engineer that signs off on the bridge knows what they’re doing. Some lawyers are a bit of a special case because there is both that requirement or that desire to make sure the public is protected. Right. You don’t want somebody being a lawyer who is dishonest, for example, and will steal your money. And you don’t want somebody who’s purporting to be a lawyer who’s incompetent and giving you bad advice. Obviously, those would be problems. Right.
Adam Stirling [00:02:06] yes.
Michael T. Mulligan [00:02:06] And so that’s yet another reason why, you know, lawyers or other professionals need to be regulated to make sure there’s competence. But lawyers have a special requirement in that lawyers are in, well, frequently in opposition to things the government might want to be doing. Right. For example, if the government is looking to prosecute you for something and send you to jail or is suing you or trying to take your children away or doing a host of things. Right. The lawyer that you hire may be working in opposition to what the government wants to do to you. Right. And so, for that reason, you want to make sure that lawyers are independent of government. Right. And not just somebody who’s sort of beholden to the government in any kind of a direct way so that, you know, the lawyer is not going to be concerned that they’re going to be disciplined or fired or something bad was going to happen to them when they’re working for you. Right.
Adam Stirling [00:03:10] Yeah.
Michael T. Mulligan [00:03:10] And so your lawyers are in the in addition to making sure that lawyers are competent. They need to be separate and independent of government. And so, lawyers are a self-governing profession. And one of the ways that’s maintained is that the organization responsible for regulating lawyers, so the Law Society, is set up to be separate from government. And so, the board of directors will be the ones where the people on it are called Benchers. It’s a bit of an old term, but basically, it’s the board of directors for the Law Society. The majority of them are elected by other members of the profession. 25 of them are elected in that way. Usually, senior lawyers are elected to serve in that role. The government does appoint some members, six of them, and the attorney general sits on that board of directors. And so that’s how it’s worked for a long period of time. And there’s a proposal now which has caused very grave concern in the legal profession, which would, “modernize” that regulatory scheme to allow the government to appoint more of those Benchers, board of directors, so the government could exert greater control over how lawyers are regulated. And that’s a serious worry if you’re concerned about making sure that lawyers are independent of the government, and it’s come to a bit of a head in Victoria and elsewhere. And this is, I should say, following on submissions made by the Law Society itself, the Victoria Bar Association, and the Canadian Bar Association, all in opposition to what the government has proposed doing, which would allow the government to exert greater control over the legal profession. And what’s underway right now is an election to determine who would be the Bencher, or board member of the board of directors for Victoria.
Adam Stirling [00:05:30] Yeah.
Michael T. Mulligan [00:05:31] And one of the people who’s been doing that now for the last couple of years is Crown Counsel in Victoria. And the norm is that somebody who’s serving in that role and it’s a volunteer position, would do so for typically the term of about eight years or so. They get elected every couple of years, but typically the person would just continue to do it as a volunteer. The lawyer who’s been doing it, Paul Pearson, indicated that he doesn’t feel that he’s able to continue in that role because he is also working for the government as Crown Counsel, and as is indicated, it’s so pivotal and important for the person in that role, be able to oppose what the government has indicated it’s wanting to do. So, he’s not going to run again so that somebody can take over that job to be able to, in a full-throated way, oppose what the provincial government is wanting to do. And he sent out a message to the profession exactly to that effect, talking about how, in his view, what’s proposed here would amount to a seismic shift in the relationship between the Law Society, which is supposed to be independent, and the government. And his concern was that given the fact that he was employed by the government, he would not be able to, in a completely unfettered way, serve to oppose what the government is trying to do. And so, what’s going on now is an election to determine who could take over that job and oppose what the government is wanting to do here. And I should say you might wonder, why would the government want to do this?
Adam Stirling [00:07:29] Yeah.
Michael T. Mulligan [00:07:29] Why would they want to take control? And there are a couple of reasons for that. One of them may be a general desire to have some greater control over an entity that can act in opposition to the government. And we’ve seen a trend in that regard over the past few years, including with things like ICBC. Right. We’ve seen them move to this no-fault scheme where it could be harder to challenge decisions being made by them. And so there may be a generalized interest in maintaining greater control over an organization that can act in an independent way in opposition to government desires. Another stated reason is a government there has been for years and we’ve talked about this a serious underfunding of legal aid in British Columbia. We are the only province where there’s a special tax that lawyers have to charge their clients who are hiring them. That tax was supposed to go to pay for legal aid.
Adam Stirling [00:08:40] Yes.
Michael T. Mulligan [00:08:40] Set up by the NDP when they were in government last time.
Adam Stirling [00:08:42] Yeah.
Michael T. Mulligan [00:08:43] And the government now diverts more than half of the money it collects to other purposes, doesn’t give it to the organization that provides legal aid to help the poor. And part of this proposal would be to set up a scheme of paralegals who would be intended to provide legal assistance to the poor. And the concern about that is whether those people would have the same degree of training that a lawyer would have. And there is a worry in the profession that it’s not appropriate to offer a lower quality of service potentially to somebody. And it would be, rather than properly funding legal aid, giving people who have less training, having them provide assistance to people who can’t afford to hire a lawyer is not necessarily an appropriate solution to that problem. And what should happen is proper funding and the money shouldn’t be diverted that’s been collected. So that’s one of the things that’s underlying this as well. And so, it’s a serious issue. And one of the important things to remember is that the independence of the legal profession, much like the independence of the judiciary, right, is not something which is intended to be a benefit to the judges or to the legal profession. That’s not why it exists. It exists in order to service the public interest. Right. You want to have, and you should have confidence that the judge deciding your case and the lawyer who’s helping you are acting independent of government. And they don’t need to be concerned that they’re going to be disciplined or regulated if something were to happen to them when they’re making a decision or they’re helping you. And what’s currently proposed would serve to undermine that. And that’s why the public should be very concerned about what the government has suggested here. And that’s why the lawyer who’s been serving in this role in Victoria has indicated he doesn’t feel comfortable continuing in that position because there just needs to be clear opposition to what the government has proposed in line with the opposition has been expressed by all of the organizations that deal with us. So that’s what’s going on and that’s why people should be concerned about the Government’s proposal to try to take greater control over how the legal profession operates.
Adam Stirling [00:11:43] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking on CFAX 1070 will continue right after this.
Adam Stirling [00:11:49] We’ve recently discussed the phenomenon of 24-7 camping here in Victoria and a pledge by Victoria Council to phase out the practice of relying on encampments in parks for human beings to shelter themselves who have not otherwise reasonably available alternative shelter. But in that sentence, itself arises an interesting question What do those words mean? Is there some sort of test somewhere? How does a court interpret them? Well, the B.C. Legislature, would appear, is lending a hand. Michael Mulligan with Mulligan Defence Lawyers, as Legally Speaking, continues in the latest Miscellaneous Statutes and Amendment Act.
Michael T. Mulligan [00:12:26] Indeed, I must say it is one of those titles of a piece of legislation you can sometimes not get all the way through with the tired, Miscellaneous Statutes Amendment Act. And I think number four, know, the background of all of this is a case that actually arose in Victoria and made its way to the Court of Appeal. It’s a case Sidney, Victoria versus Adams,
Adam Stirling [00:12:50] Yes.
Michael T. Mulligan [00:12:50] That’s a Court of Appeal decision from 2009. And that decision is the one that dealt with the issue of whether a person’s got a constitutional right to put up a tent to shelter themselves in a park. And that case begins with what the Court of Appeal describes as stories, which says this appeal addresses a narrow issue when homeless people are not prohibited from sleeping in public park, public parks and the number of homeless people exceeds the number of available shelter beds. Does a bylaw that prohibits homeless people from erecting any form of temporary overnight shelter is that unconstitutional? That’s the essence of it. And so what was described by the Court of Appeal then is that narrow issue, whether somebody could erect a temporary shelter, at night, if there weren’t enough shelter beds and the Court of Appeal, agreed with the trial judge there in that case and said, yes, you do have a constitutional right to do that narrow saying no, that sort of form, the sort of the structure of what can and can’t be done in terms of regulating that. Now, like many things in life, as you said, you know, what do these words mean? And since then, there’s been a number of cases where there’s been arguments about well you know what is reasonable?
Adam Stirling [00:14:22] Yeah.
Michael T. Mulligan [00:14:22] There has to be food provided. What about restrictions? What if they’re shelter beds, but they say, you know, you can’t do drugs or be drinking in the shelter? Does that count? You know, what is what is the shelter says you have to be in by 11:00 at night. You can’t just come in at two in the morning. Does that count? Right. This kind of thing.
Adam Stirling [00:14:39] Yes.
Michael T. Mulligan [00:14:41] And so the way that would play out is that if there was a municipality seeking an injunction to stop people camping in a particular park, you’ve had various trial judges determining whether there should be an injunction granted to prohibit that or not. And those kinds of arguments have been made and there have been different decisions about, well, what exactly does that mean? And so, this part of that Miscellaneous Statutes Amendment Act attempts to define what would be required. And so, it says this is for the purpose of enforce enforcing under section 334, a bylaw against a person who is sheltering in an encampment, while homeless alternative shelter is reasonably available to the person and meets the basic needs of the person for shelter. If and I should just pause there for a moment, bearing in mind the Court of Appeal when they originally made that decision. So, this is a narrow issue about can you put a covering over you at night? Right.
Adam Stirling [00:15:51] Yeah.
Michael T. Mulligan [00:15:51] That’s expanded to sort of the basic needs of a person. Right. So, there’s been a movement since 2009 and now.
Adam Stirling [00:16:00] Interesting.
Michael T. Mulligan [00:16:01] And so this would require the following things. The person may stay overnight at the shelter. B) the person has access to a bathroom and shower at or near the shelter because it can’t be a bathtub. C) the person is offered, without charge, one meal a day at or near the shelter. And D) shelter is staffed when persons are sheltering at the shelter.
Adam Stirling [00:16:26] Hmm.
Michael T. Mulligan [00:16:26] And so what would happen if this passes? Right. Is the government trying to define what would be the requirement for a bylaw to stop somebody from camping in a park? Right.
Adam Stirling [00:16:44] yeah.
Michael T. Mulligan [00:16:44] And so a person would be able say, well, look, there’s a shelter space available, but there’s no shower. Well, that wouldn’t count. Right. Or there’s a shelter space available, but no free food.
Adam Stirling [00:16:55] Yeah.
Michael T. Mulligan [00:16:55] That wouldn’t.
Adam Stirling [00:16:56] How near is near? Do we know? Because you mentioned the shower. It’s bathroom or shower at or near the shelter. And I’m just wondering.
Michael T. Mulligan [00:17:03] The shelter, the shower in the bathroom has to be at or near the free meal has to be at or near. It’s not defined. And so no doubt there would be continued argument about what exactly does this mean?
Adam Stirling [00:17:16] I see.
Michael T. Mulligan [00:17:17] if this passes, but this seems to be an effort to sort of crystallize what the exact what the requirement would be, and it’s more than what the original Court of Appeal case seems to deal with. Right. The narrow issue of can you put a covering over you at night if there’s no shelter space.
Adam Stirling [00:17:41] Yeah.
Michael T. Mulligan [00:17:42] And on the other end of that, there have been arguments about, you know, things like, you know, the things we mentioned. Right. What about shelter space is available, but it’s some requirement that a person doesn’t want to adhere to, right. Like, I can’t bring my dog there or it doesn’t allow a couple to go there, or they don’t allow drug use there. Or you have to be to a certain time. Right. Those kinds of things. Those things aren’t on this list. And so, if this passes, the idea might be to do away with some of those arguments about, hey, that space doesn’t count because I can’t bring my dog or that space doesn’t count because you need to be in at a certain time. The idea would be, I suppose a municipality would be able to say, well, look, there’s not a requirement, there’s food, shelter, it’s overnight.
Adam Stirling [00:18:28] Yeah.
Michael T. Mulligan [00:18:29] There’s a shower, you get a free meal and there’s staff there. That’s it.
Adam Stirling [00:18:33] Yeah.
Michael T. Mulligan [00:18:35] And so it’s an interesting one that I think people should know about. So, we can consider that because reasonable people could disagree about this policy.
Adam Stirling [00:18:45] Yeah. Yeah.
Michael T. Mulligan [00:18:46] And given that it’s in an act with a title that deals with it, I should say the legislation deals with 187 various things and I think no sort of public debate or attention drawn to this, at least so far. It was just introduced last week. But that’s what’s going on. And just so people are aware of it and can think about what should be the requirement from a legal perspective before there could be a restriction on somebody being able to set up the tent or some other shelter to sleep in. And that’s what the government is proposing. So, people should think about it, and we’ll see what comes of it.
Adam Stirling [00:19:26] Yeah, it’s interesting. Still a long time since I’ve read Adams, but I remember the discussion between positive and negative rights, like negative rights imposed upon the government and duty of non-interference was positive rights more about entitlements governments should provide. And unless I’m mistaken, there was no actual entitlement to shelter. The government didn’t need to provide shelter. In that case, it was the non-interference issue. But if we’re going to talk about supplying one meal per day near a shelter, it sounds like we are moving closer towards that entitlement and away from the liberty aspect.
Adam Stirling [00:19:57] Yeah or I mean suppose that we look at as this this this is past doesn’t require that meals and showers and shelter spaces and staff be provided. It would be the idea here would be that if those things don’t all exist.
Adam Stirling [00:20:13] Yeah.
Michael T. Mulligan [00:20:13] Overnight shelter bathroom with shower, free meal, and staffing. What it would mean is that a municipality would not be able to get an injunction to stop people from setting up tents in the park, basically. Right. So is the basic requirement of Adams. Right. Is that for a government to be able to stop people from covering themselves up at night?
Adam Stirling [00:20:43] Yeah.
Michael T. Mulligan [00:20:43] That’s how it started.
Adam Stirling [00:20:44] Yeah.
Michael T. Mulligan [00:20:45] Right. There has to be some other alternative. The idea was we can’t create a circumstance where somebody has no choice and they’re forced to lay outside and be unable to cover themselves up at night. Right.
Adam Stirling [00:20:59] Yeah.
Michael T. Mulligan [00:20:59] That’s where that started, which I think is perhaps understandable. Right. You know, if you have, if you have a legal regime in place, which means effectively a person cannot, you know, cover themselves up at night or keep warm. That’s not permissible. That sort of falls below the sort of minimum constitutional requirement.
Adam Stirling [00:21:24] Hmm.
Michael T. Mulligan [00:21:25] And so, you know, even that case, it wasn’t one that said, look, the municipality must provide shelter space.
Adam Stirling [00:21:30] No.
Michael T. Mulligan [00:21:31] It just stood for the proposition that you can’t stop a person from putting a tarp up or a tent if they have no other choice, nowhere else to go. But of course, since then, you wind up with all these arguments as people are inclined to do.
Adam Stirling [00:21:46] Yeah.
Michael T. Mulligan [00:21:46] About what you know, is that a good enough shelter space and how far away should that be and what are the requirements, or does it have to be a staff member there? And what about food, there’s no shower and so forth. And so, the different judges have interpreted that in a different way. And I suppose rather than trying to go back to the Court of Appeal and argue about what is the constitutional requirement here, this piece of legislation would attempt to define that. I guess another question will be whether they are able to make that decision, because ultimately, it’s a constitutional assessment as to whether a person has a right to put up a shelter. But these are the elements that at least the government’s proposing be there for that analysis of whether there is an alternative and whether there can be a bylaw that would restrict somebody from putting up a shelter at a park.
Adam Stirling [00:22:41] All right. That’s all the time we have for today. Michael Mulligan, but fascinating as always. Thank you.
Michael T. Mulligan [00:22:46] Thank you so much. Have a great day.
Michael T. Mulligan [00:22:47] All right, you two. Legally Speaking, during the second half of our second hour every Thursday on CFAX 1070.
Automatically Transcribed on November 10, 2023 – MULLIGAN DEFENCE LAWYERS