The Battle for Independence: Assessing the Impact of Bill 21 on British Columbia’s Legal System
Bill 21 – What’s at stake?
British Columbia’s legal system faces a seismic shift with Bill 21, a move that could rock the bedrock principle of lawyer independence. As the government nudges its way into the Law Society’s boardroom, we’re left pondering: will the scales of justice tilt in favour of those in power?
This episode pulls back the curtain on the potential repercussions of such unprecedented government involvement. Joined by Michael Mulligan from Mulligan Defense Lawyers, we dissect the changes proposed to the Legal Profession Act, critique the government’s objectives, and forecast the intricate dance between lawyers and lawmakers in the courtroom ballet.
The legal community stands at a crossroads as we scrutinize the trajectory of professional autonomy in the wake of Bill 21. Our conversation with Mulligan not only maps the contours of the looming battle for the soul of legal self-regulation but also spotlights the broader ramifications for our society’s democratic health. This episode is a clarion call for those who hold the principles of a robust, independent judiciary dear, as we navigate the chilling prospect of a legal landscape where the voice of the advocate could be stifled by the hand that writes the law. Tune in for an in-depth exploration of the stakes at play, where the rule of law hangs in the balance.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 a.m. It’s also available on Apple Podcasts or wherever you get your podcasts.
Legally Speaking April 11, 2024
Adam Stirling [00:00:00] It’s time for Legally Speaking, our regular segment with Michael Mulligan, Barrister and Solicitor with Mulligan, Defence Lawyers. Morning, Michael. How are we doing?
Michael T. Mulligan [00:00:07] Hey. Good morning. I’m doing great. Always good to be here.
Adam Stirling [00:00:09] Always interesting developments, especially in the legal field under the David Eby government. You and I have talked about the online forms that one can fill out with the Civil Resolution Tribunal for matters involving smaller sums of money and the complications that can arise on that. And you often mention the idea that the legal profession is one that is self-regulating and intended to be independent from government. I notice that topic is on the agenda for this week.
Michael T. Mulligan [00:00:38] Sadly, yes. And we’ve spoken before about sort of, government proposals to try to exercise more control over the legal profession. And there was an unfortunate piece of legislation introduced by Ms. Sharma, who’s the attorney general currently, yesterday in the form of what’s referred to was Bill 21. And this particular bill it’s entitled the Legal Profession Act. And if it’s passed and brought into force, it would have, very significant impact on the independence of the legal profession vis-a-vis government. And the real loser in that scenario is going to be anyone who winds up in a dispute with the government at some point. And the reason that’s such a problematic thing, it goes to sort of the heart of how our society functions. And the idea that people can get independent help really is rooted in, first of all, how the legal profession operates at the moment, how it’s regulated in relation to government, and what the provincial NDP wants to do here. So, at the moment, the legal profession is exactly that. It’s a profession and it is independent of government. It’s ultimately the structure of the Law Society, which regulates lawyers, lawyers are equipped with what amounts to a board of directors, and the overwhelming number of people who sit on that board are elected by lawyers from different regions of the province. The government does appoint a small minority of people that sit on the board. But the effect of that structure is that the law, Society, and lawyers are not beholden to the government. And that matters very much if you are somebody who winds up having a dispute with the government, like, for example, every day in my practice, I practice criminal law. Day in and day out my task is to oppose things that the government might want to do to somebody.
Adam Stirling [00:02:41] Yes.
Michael T. Mulligan [00:02:41] Like put them in prison.
Adam Stirling [00:02:42] Yes.
Michael T. Mulligan [00:02:43] And that arises in other contexts as well. Let’s say the government wants to, I don’t know, expropriate your home or the government wants to you’re having a dispute over, you know, all sorts of things. The government is often on the other side of them suing the government. They’re going to be, Indigenous claims to land. There could be individuals who own property the government wants to do something with. That is not uncommon. And as currently structured, you can be confident that the lawyer that you’re hiring is not in any way beholden to the wishes or desires or whims of the province. Now, if you’re a government, you can appreciate how that might be a little uncomfortable, right? You’ve got a profession here that’s independent and is routinely tasked with opposing things that you’re doing. And so, this bill that Ms. Sharma introduces, Bill 21, would purport to change how lawyers are regulated. And the change would mean that, rather than having elected, effectively volunteers, they don’t get paid, elected people who are running this board of directors, the government wants to have more control over it. So, there would be a reduction in the number of directors to 17. Only five of them would be elected lawyers. And then by various other mechanisms, the government would appoint people, or they’d be selected based on “merit” or various other criteria. And the effect of that would be to allow the government greater control. And so, you can see, some people might have positive or negative views of the government, but you can easily see how that is very undesirable. If you’re somebody who ever winds up in conflict with the government. Now, that’s not just abstract, and it’s apparent from just looking at what is in this bill. Currently we have we have currently a Legal Profession Act. And, and it sets out what the objects and duties of the Law Society are. And the number one is this preserving and protecting the rights and freedoms of all persons. It’s a pretty good policy. And that has real life implications, like in terms of what the Law Society is, is doing. And the new piece, this piece of legislation, Bill 21, would change what the Law Society’s objectives would be. And it sets out a variety of things. You know, some people might think the things that are listed are good. Some people might disagree with them. But think about whether it’s a good idea to have a regulator which has various government goals built into the legislation regulating lawyers. So, for example, the list of things which this legislation includes would be that the regulator must have regard to the following principles. Be supporting reconciliation with Indigenous people and the implementation of the United Nations Declaration on the Rights of Indigenous People.
[00:05:29] Oh.
[00:05:29] Now. Some people might think that’s a great idea. I think that’s a really good government policy. But should lawyers be regulated and directed to do that?
Adam Stirling [00:05:37] Yeah. You say can’t.
[00:05:38] What about a party who disagrees.
[00:05:40] Yeah. Like what if you have a client who wants to forward a petition? Yes.
Michael T. Mulligan [00:05:45] So they’re told to make rules with that objective.
Adam Stirling [00:05:47] Oh.
Michael T. Mulligan [00:05:48] That may be the objective today. And some people might think, oh, that’s great. That’s the current government policy. It’s always going to be benevolent.
Adam Stirling [00:05:54] Yeah.
Michael T. Mulligan [00:05:54] But for example, the B.C. conservatives party policy is they wish to immediately repeal the United Nations Declaration on the Rights of Indigenous People. And so, if there’s a change of government with the okay, we’re just going to insert some other goal for the Law Society here to try to get the regulator of lawyers to cause lawyers to do things, to implement some other government policy. Might that be changed either a few months from now or four years from now, might it no longer say that? Might is say that the goal of the, regulator of lawyers is to, for example, ensure a balanced budget or some other government goal. And so, this is real. It’s not some sort of theoretical what might happen and might the government try to cause this organization to do something. It is real and right there and again, that’s not to say that that’s not a good goal but is just to say it’s not the government’s business. And the attorney general and the premier, they’re both lawyers.
Adam Stirling [00:06:57] yes.
Michael T. Mulligan [00:06:57] They should know better.
Adam Stirling [00:06:58] Yeah.
Michael T. Mulligan [00:06:59] They should just know better. And it’s very easy, I think when you’re in that role to think, well, I’m benevolent. My goals I’m writing into the singer must be good goals. Everyone must agree with my goals.
Adam Stirling [00:07:11] hmm.
Michael T. Mulligan [00:07:11] What’s wrong with ordering this or that to happen? Well, that may well be your view. Few people go around, think they’re just doing harm, right.
[00:07:19] Yeah.
Michael T. Mulligan [00:07:19] There are many people like that. I’m sure they don’t think that. Right. But just a little bit of reflection would cause you to think. Is that a good idea? Do we wish to have a society organized whereby, when the government, is doing something to you and you’re going to get help from a lawyer, the lawyer has to be looking over their shoulder about whether they’re conforming with this objective.
Adam Stirling [00:07:41] Yeah.
Michael T. Mulligan [00:07:41] That’s not wise. Other things become just creepy when you think about the idea that the government would have such control over this entity if it comes into being. Let’s look at this, for example, section 78. This section of this bill would permit the executive officer of this proposed regulator, remember, the directors are, not just independent lawyers. They’re a bunch of people who are appointed or selected based on whatever criteria might be picked out there without a warrant or any judicial authorization. They could come in to start examining the records of a lawyer. Wow. They could go in and observe the person practicing. Just think about that.
Adam Stirling [00:08:26] I mean, legal confidentiality is huge.
Michael T. Mulligan [00:08:29] Yeah. And it’s one thing if the regulator is independent of government, right. It’s a very different thing when the regulator is now sort of an organ of government and has government goals written into its legislation. And so just think about that. Let’s imagine you’ve got a property dispute involving the government. They want to expropriate your farm or house or put it in a highway, or you’re having some dispute over whatever, right. Whether your children should be apprehended. You’re charged with a crime.
Adam Stirling [00:08:56] Yes.
Michael T. Mulligan [00:08:57] Governments prosecute you. They want you to go to jail. And this entity, which is not really at arm’s length of the government, there’s a bunch of government goals built into its legislation. That entity is now going and rifling through your lawyer’s files without a warrant.
Adam Stirling [00:09:12] Hmhm.
Michael T. Mulligan [00:09:13] Think about that. That is very dangerous. And once again, nobody does these things thinking, oh yes, I’m setting out to do evil. I’m setting out to sort of undermine fundamental values of society. Everyone, of course, not everyone. Almost everyone. And I’m sure Ms. Sharma and Mr. Eby both have benevolent intentions. Right.
Adam Stirling [00:09:34] yes.
Michael T. Mulligan [00:09:34] And everyone likes to think they’re benevolent. All these things must be good. You know, when I set out these goals, this is what I want this organization to be. And, you know, the people that we think we would appoint to be on the board, who we might select, right. Everyone would have in mind some positive outcome and some well-meaning person who’s acting in the public interest, whatever that might be. Right. But that’s not always so. And this is one of those things that goes right to the heart rate of living in a free and democratic society.
Adam Stirling [00:10:08] Yes.
Michael T. Mulligan [00:10:09] And, you know, we appreciate things and it’s easy to understand, like why, for example, judges need to be independent of government. Judges can’t do a thing without lawyers involved in it.
Adam Stirling [00:10:20] No, you’re right.
Michael T. Mulligan [00:10:21] They don’t collect cases, no other road….and I judge that to be unfair… No. Right.
Adam Stirling [00:10:27] Yeah.
Michael T. Mulligan [00:10:28] They its they are.
Adam Stirling [00:10:31] Yeah, that’s a good point.
[00:10:32] It is idiotic. You know courts and judges need to be independent, but they can only act independently and do things. If you’ve got lawyers, who are they representing people and bringing cases or making arguments. And this is just completely unwise, really shallow thinking. In terms of this, the policies underlie this, and the responses to it from the Law Society reflect that. Their response to this bill introduced yesterday was the legislation tabled today fails to protect the public interest in having access to independent legal profession governed by an independent regulator that are not constrained by unnecessary government direction and intrusion.
Adam Stirling [00:11:15] Wow.
Michael T. Mulligan [00:11:15] Now, I appreciate I may not be the sexiest thing in the world, right? That’s a long sentence, but that should give you great pause. This is past is not just some other passing piece of legislation on some policy that might be here today. It might be gone, down the road. This goes to the heart of how the system operates. You’re right in the gears of it all. And when you have a government that’s trying to exercise this kind of control and right in the legislation, they’re writing in things that are their policy priorities, telling this organization to do this and that, that is really, really worrisome. And even if you think Mr. Eby or Ms. Sharma, aren’t evil and aren’t doing things that are bad, and even if you like the policies that are written in there, I think very, very long and hard about this, because it is clear that some of this would be if there’s a change of government, as there may well be gone and it may be replaced by something else, and you may not like what it’s replaced with. And the point is that none of that should be in that legislation which regulates lawyers. If you wish to live in a place where you could want independent legal advice, the government can’t come in and look at your legal file. And if you wind up in a dispute with the government, the person that you’re hiring, you can have confidence is not looking over their shoulder, wondering whether they’re going to have some regulatory problem with some entity that has a bunch of government priorities settled in its legislation. So, this bill, Bill 21, if this is passed and implemented, just has really long-term negative implications. It is terribly thought out. And I really hope that there is some sober second thoughts going on about the wisdom of doing this and some reflection when you have the Law Society telling you that this will undermine the independence of the legal profession. That’s not, by the way, it’s just like the independence of judges. Sometimes people are wrong. You think oh, gee, those judges, they just want, you know, just independence for themselves. It’s not a benefit. It’s like the independence of the judiciary is not a benefit intended to sort of protect or help out a judge. Right. It’s not like the dental plan.
Adam Stirling [00:13:30] yes.
Michael T. Mulligan [00:13:30] You’re right to judge.
Adam Stirling [00:13:31] Yeah, yeah.
Michael T. Mulligan [00:13:31] It is intended to protect people that are winding up in front of the judge and people that are going to hire a lawyer. It’s you, ladies, and gentlemen, who, at the end of the day, are disadvantaged if you’re unable to get independent legal advice from somebody who’s not beholden to a bunch of government policies. So, this piece of legislation is seriously problematic, and should be rethought. And it’s obviously disappointing that people like the Ms. Sharma, Mr. Eby, both of whom have law degrees, don’t recognize how dangerous and, and unwise, this piece of legislation is. So hopefully that gets rethought. Because otherwise, even if they think it’s great now, they are not going to like what this turns into when they are out of the office, because nobody’s there forever. So that’s the Bill 21 and the very disappointing proposal for the Legal Profession Act.
Adam Stirling [00:14:25] Thank you for the analysis, Michael. We’re going to take a quick break, Legally Speaking, with Michael Mulligan right after this.
[00:14:31] COMMERCIAL.
Adam Stirling [00:14:31] Legally Speaking, continues Michael Mulligan with Mulligan Defence Lawyers. Michael, I was just thinking about what you told us before the break about this, these troubling, proposed changes to the regulation of the legal profession. And I’m reflecting on all the times the government of British Columbia has found itself taking legal positions that ultimately the courts found against Kinder Morgan Trans Mountain expansion project, of course, being one of the more noteworthy examples earlier in the mandate that was secured in 2017. But even since then, in terms of ICBC reforms and other reforms, all the times that the courts have not found in the government’s favour. So, the government has found a way to alter the courts themselves by way of regulation of the legal profession. Like you mentioned, a judge cannot, on their own volition, go out and make findings on issues. A judge can only decide upon the materials that are brought to him or her by counsel, by a lawyer and a lawyer is prohibited from doing certain things, and it never gets to the judge.
Michael T. Mulligan [00:15:28] You’re exactly right. And even if there isn’t some express prohibition, even if it’s. You shall not sue the government, that’s not likely.
Adam Stirling [00:15:36] Yeah.
Michael T. Mulligan [00:15:36] But if you have a circumstance where there’s a bunch of rules and regulations in place, for example, directing, that people, or lawyers try to achieve various objectives of the government, just think about what the implications are of that. Right. You’re going to have this regulatory body that is directed to make rules to achieve various government objectives. For example, the one we talked about. And so, if you’re somebody who is opposed to one of those government objectives, and now you’re trying to get a lawyer and the lawyer is subject to discipline, if they don’t comply with rules made by this government entity. That’s just, where are you?
Adam Stirling [00:16:19] Yeah.
Michael T. Mulligan [00:16:19] And so it’s just very, very troubling, and very short sighted. You know, it’s almost hard to believe you’ve got these people who are obviously well-educated, like Eby and Shamra and both lawyers. You would just hope that the, the, the people would have just a little bit more foresight, than, you know, what might we do to achieve my current goal? It’s just very, very disappointing. This thing is, you know, just a disastrous piece of legislation. It is extremely short sighted. And anyone just giving it a little bit of reflection in terms of what’s fair, what kind of a society do we want to live in? Would realize, but this is not a good idea. Even again, as he said, if you think the current government or the current objectives, or the people they might pick to make these decisions or the current principles that they’ve written into this, even if you think those are lovely and you think, well, of course everyone should be trying to achieve that outcome again, that could be different and is likely to be different in pretty short order. Yeah. And now where are you? And so, this just shouldn’t be done. It’s just wrong. It is a terrible idea. It is a terrible piece of legislation. And, it will have a real impact on real people, all over the place with all kinds of disputes. You mentioned some of them. You have a dispute over ICBC?
Adam Stirling [00:17:49] Yes.
Michael T. Mulligan [00:17:50] Overland.
Adam Stirling [00:17:51] Yeah.
Michael T. Mulligan [00:17:51] You have a criminal dispute. You, ma’am, your children being apprehended. You want to sue the government? You’re arguing about the constitutionality of something. You’ve got some maybe, as you pointed out, environmental litigation over things. So, a whole host of issues involves the government as a party. And the government just needs to keep their hands off. They just need to restrain themselves. Right. The test is not always. And the Law Society has also said it’s retaining counsel. And there’s going to be a constitutional challenge at other law societies across the country are likely to intervene in that. It’s going to be a legal argument about all of this, and it’s unclear what the outcome of that is going to be. The Supreme Court of Canada has made clear that in very strong language about, you know, sort of as far as human ingenuity permits, we need to have, a system that ensures that the legal profession is independent of government.
Adam Stirling [00:18:43] Yes.
Michael T. Mulligan [00:18:43] Right. And so there may be a legal, you know, decision about whether this is possible or constitutional because it goes right to the heart of the independence of the bar and the independence of the judiciary and what they can do, it’s just, really fundamental. And so there will be some legal argument about that. But the test is not whether something is legally possible, like whether you can do something. You know, that’s not the test as to whether something is right or good or should be done. You know, the language you used before describing that is, you know, it’s like we don’t figure out the recommended or desirable dose of medication by figuring out the amount of medication that will kill the patient, and then recommending that doctors back off just a little bit.
Adam Stirling [00:19:26] Yeah.
Michael T. Mulligan [00:19:27] Right. The test is not can you do something or is there is it legally possible to do something right. The test really should be with all of these sorts of things. Is this wise? Is this a good idea? Not will this get me what I want? Or will this advance my current agenda? Or can we get away with it? Or can we force this through? Do we have a majority at the moment to force this through? That’s not well. I’m sorry…. Analysis provided.
Adam Stirling [00:19:54] Yeah.
Michael T. Mulligan [00:19:54] It should not be the analysis engaged in. There should be some reflection about whether this was a good idea or not. And this is not. And you would hope, but obviously not, that there would be, not only would you have people like this Ms. Shamra and Mr. Eby, both who are lawyers would reflect upon this and realis with not much consideration this is not a good idea. You would hope that they would be getting that sort of professional advice as well. You know, there are hundreds of lawyers who work for the government. You would just hope that somebody would think carefully about this. And if they haven’t realized it, give them that advice. This is a bad idea. And just think about the implications of this going forward when you’re not here anymore. And your view of whether the people doing this or the rules or the goals or the objectives are good or bad are going to be radically different when you’re on the other side of some of these things. And suddenly the goal or objective is completely contrary to what you think is obviously the right thing to do. And then you’re going to go and look for some help and you may find none is available. So, this is really problematic, and I hope the public sees that and thinks about this and realizes that the people who will lose under this sort of a regime, or anyone who might find themselves at some point in conflict with the government, that’s really what this would result in a loss of.
Adam Stirling [00:21:15] Michael Mulligan for Mulligan Defence Lawyers all the time. But a very important topic and very important remarks and analysis, Michael. Thank you.
Michael T. Mulligan [00:21:23] Thank you so much. Always a pleasure to be here.
Adam Stirling [00:21:25] All right. Legally Speaking, during the second half of our second hour every Thursday here on CFAX 1070, I’m going to think very carefully about what Michael has told us there. I am very concerned about this legislation, and I hope that anybody who can do anything about it that is listening to me right now does everything that they can in terms of urging the government to reconsider this matter, because I just don’t think it would be helpful regardless of what happens.
Automatically Transcribed on April 12, 2024 – MULLIGAN DEFENCE LAWYERS