The Plastic Ban Unreasonable and Unconstitutional and Government Intrusion in the Legal Profession

 

We start the episode by discussing the federal government’s attempt to ban various plastic items. The ban was met with constitutional challenges from the Responsible Plastic Use Coalition and two provinces, Alberta and Saskatchewan. The federal government tried to classify plastic as ‘toxic’, a categorization that was deemed unreasonable by the judge due to lack of evidence. Furthermore, the government’s jurisdiction to regulate garbage and related matters was questioned, as it falls under provincial jurisdiction. This situation offers an insightful glimpse into the power struggle between federal and provincial governments and the limitations of criminal law power.

The episode then moves on to the government’s mounting attempts to gain more control over the legal profession. We spotlight a recent case where the federal government tried to compel lawyers to report their clients’ transactions to the tax department. This move raises alarming questions about the independence of the legal profession and the sanctity of client-lawyer confidentiality. The episode highlights the efforts of law societies across the country to push back against such government intrusions.

This attempt to force lawyers to turn information over to the government about their clients is an example of why the BC government’s proposal to take further control over their regulation of lawyers as part of a “Single Regulator” system is so problematic.

The last segment of the episode dives into the intricacies of wills and estates, spotlighting a case where a woman passed away without completing her will. The case underlines the importance of having a will in place and the legal repercussions that follow when one isn’t. A related case, where a judge validated a woman’s wishes for her estate as expressed in a letter, underscores the importance of intent and reasonable action in such scenarios.

Overall, this episode provides a fascinating journey through the legal world’s crossroads with societal issues. With expert insights from Michael Mulligan, it serves as an invaluable guide to understanding some of the most complex and contemporary legal challenges of our time.

From understanding the legal and constitutional implications of a plastic ban to the complexities of estate planning and government intrusion into the legal profession, this episode offers an enlightening deep dive into the labyrinth of the law. Whether you are a law enthusiast, a practicing lawyer, or a curious listener, this episode is sure to broaden your understanding of the intricate dynamics of the legal world.

 

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.

 

A transcript of the show:

 

Legally Speaking Nov 30, 2023

Adam Stirling [00:00:00] Time for a regularly scheduled segment with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. It’s Legally Speaking on CFAX 1070. Morning, Michael. How are we doing?

Michael T. Mulligan [00:00:10] Hey, good morning. I’m doing great.

Adam Stirling [00:00:11] Some fascinating stories on the agenda. In fact, we have an interview coming up next hour, both polling data on our next topic. But the courts are not swayed by public opinion. They are swayed by principles of law. This next story fascinates me.

Michael T. Mulligan [00:00:24] So this is the story of the federal government’s effort to ban various plastic things. And so, they had passed a regulation which purported to implement a ban that would have come into effect just this December for various things like check out bags, plastic cutlery, stir sticks, straws, hence the paper straws.

Adam Stirling [00:00:52] Yes.

Michael T. Mulligan [00:00:52] And so forth. And that was challenged. And it was challenged, interestingly, by two groups. The first group probably shouldn’t surprise anyone. It’s the Responsible Plastic Use Coalition, which would be the companies that would manufacture things like stir sticks and straws and so on. But it was also challenged by two provinces, Alberta, and Saskatchewan. And they challenged that effort on constitutional grounds. And the case that decided that the issue about whether that was permissible and to cut to the chase, it’s not, analyzed how the Canadian Environmental Protection Act works. And so that act, like many modern statutes, will set out a framework of what’s to be done and then will delegate power to somebody else, in this case the federal government to implement regulations. And so, one of the first questions that has to be asked when you have a regulation passed is, was this allowed by that statute? Right. Because that’s where the authority to create the regulation comes from. And the way the Canadian Environmental Protection Act works is it permits the federal government to designate things as being toxic. And then if that doesn’t mean something is toxic, they are then permitted to implement further regulations to control the toxic thing. Okay. So, for example, under the Environmental Protection Act, you could categorize, let’s say, nuclear waste as toxic. Right. And then you might have regulations surrounding what you do to, you know, make sure we safely handle nuclear waste. Right. Fair enough.

Adam Stirling [00:02:35] Yeah.

Michael T. Mulligan [00:02:36] The first issue here was that the federal government decided to essentially categorize plastic. There was a long term for it, but plastic as being toxic.

Adam Stirling [00:02:48] hmm.

Michael T. Mulligan [00:02:48] And that had a couple of problems.

Adam Stirling [00:02:50] yeah.

Michael T. Mulligan [00:02:50] First of all, the judge found that plastics are ubiquitous. They’ve been around for a long time. Furthermore, they are comprised of thousands of different things. It’s not like plastic is one thing. You’ll see that in your recycling symbols, right? Plastic has all kinds of forms, right?

Adam Stirling [00:03:07] Yeah.

Michael T. Mulligan [00:03:08] And the other issue is that there wasn’t any evidence that plastic in some general way was toxic. And on that point, the judge has an interesting analysis that, of course, anything, you know, some sufficient quantity, depending on what you do with it, could be “toxic”. And it caused me to think of, you know, if you remember the radio station promotion, it was back in 2007 in Sacramento, where the radio station had a very unfortunate publicity contest where they were challenging people to drink as much water as.

Adam Stirling [00:03:43] OH yeah, and the guy died or something.

Michael T. Mulligan [00:03:45] Yeah, so it was a woman.

Adam Stirling [00:03:47] oh.

Michael T. Mulligan [00:03:47] She actually drank one and a half gallons of water over three hours without peeing. I’m not sure the night peeing had any impact on it, but she died.

Adam Stirling [00:03:55] yeah.

Michael T. Mulligan [00:03:56] And the problem with drinking too much water is I guess it leeches the salt out of your body and you die.

Adam Stirling [00:04:01] Yeah.

Michael T. Mulligan [00:04:01] And so virtually anything in some sufficient quantities could be harmful. Right. Water is harmful. You could die of too much water.

Adam Stirling [00:04:09] Mm hmm.

Michael T. Mulligan [00:04:10] But it …. That’s not really what’s intended for you. Otherwise, the government could designate anything. Could be in some, but, you know, some form. If you did the wrong thing with it, be somehow harmful. Right. The idea of the Environmental Protection Act is not that the government could say, well, you know, if you eat enough paper, it could kill you, therefore paper is toxic, therefore we can ban you from using paper. Right. That doesn’t follow. It’s got to be toxic in some meaningful way. And the judge concluded that there just wasn’t evidence that plastic is, in all forms of plastic, which is what they were trying to regulate are somehow toxic. It might be an issue if there is pollution, if they’re thrown away and not properly recycled, this kind of thing. But that’s not to say that the substance itself is toxic, allowing the government to regulate it. Right. More than that’s required. So, the first problem that this plastic ban effort had was that there wasn’t evidence that all plastic, which is what they were trying to regulate, was toxic, and therefore the regulation declaring it all to be toxic was unreasonable. There is just no evidence of that. And then the next problem that the federal government had is that in order to have the authority to regulate something, there’s got to be some constitutional power to do that. And in Canada, we divide authority between the provinces and the federal government.

Adam Stirling [00:05:43] yeah.

Michael T. Mulligan [00:05:43] And generally things like garbage. And there’s no doubt that if somebody is throwing plastic garbage along the side of the road, that could be a problem. You know, birds can eat it or whatever it to pollute the river.

Adam Stirling [00:05:53] Yeah.

Michael T. Mulligan [00:05:53] But garbage and related things would presumptively be a provincial matter. Right. So, the federal government doesn’t come in and collect garbage or deal with things of that sort that would be within provincial jurisdiction. And so, the jurisdiction the federal government relies upon for the Environmental Protection Act at all is the criminal law power, which is really kind of on the edges of what the criminal law would generally be dealing with. Right. And the concept there and there is a case, the Supreme Court of Canada case, that finds that the criminal law power, which is designated to the federal government, can empower the federal government to regulate things which are actually dangerous. Right. Like the nuclear waste example.

Adam Stirling [00:06:43] yeah.

Michael T. Mulligan [00:06:44] you know, we don’t want nuclear waste left around on the side of the road. That could be very dangerous. And so the criminal law power can be stretched enough to allow the federal government to regulate that. There’s also a general catchall in the Constitution dealing with peace, order, and good government.

Adam Stirling [00:07:01] Oh, yeah, the POGG power.

Michael T. Mulligan [00:07:02] Yeah, the POGG power. But, boy, you’re really over the edge in your constitutional jurisdiction. If. You’re trying to hang your head on POGG.

Adam Stirling [00:07:09] Yeah.

Michael T. Mulligan [00:07:10] The conclusion in this case was both because the classification of all plastic as toxic was without evidentiary foundation. It is just unreasonable. So, it didn’t meet the requirements of the Environmental Protection Act. So, the federal government lost on that front. And furthermore, the challenge brought by Alberta and Saskatchewan was also successful and found that there just isn’t authority to do this. Even if the legislation allowed, you know, the government to regulate things that aren’t toxic because they could be littered or they could, some of the bad things could happen with them, that’s beyond the federal government’s authority. And so, on both grounds, the federal government lost. And so that is why the purported ban on all those various things is not going to come into effect. The federal government may appeal. We’ll wait and see what comes of that. But I suppose the good news is if you’re, you know, on the B.C. ferry trying to cut your bagels, I’ve had this experience with a balsa wood knife that was softer than the Beagle itself.

Adam Stirling [00:08:21] Yep.

Michael T. Mulligan [00:08:22] hopefully you’ll find a bit of a reprieve and we won’t have things, I like to refer to that as a knife shaped object doesn’t really accomplish the purpose of a knife, but we’ve got a bit of a reprieve. And happily, we have a judicial system that analyses whether things like this are not just popular, or people might like them or might make you feel good. We’re doing an actual analysis as to whether it’s both rational, and lawful. And on both grounds here, the federal government struck out. So, enjoy your enjoy your plastic knives and enjoy your straws that don’t dissolve in your drink. You’ve got a little bit of a reprieve thanks to the Federal Court of Canada.

Adam Stirling [00:09:05] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking will continue right after this.

[00:09:10] COMMERCIAL.

Adam Stirling [00:09:11] Legally Speaking, continues here on CFAX 1070 with Michael Mulligan from Mulligan Defence Lawyers. Michael, what’s next on our agenda today?

Michael T. Mulligan [00:09:18] Next on the agenda is a case that deals with the confidentiality of information provided to your lawyer. And it’s a timely thing. We spoke recently about some of the misguided proposals the provincial government has to try to get additional control over the operation of the legal profession. And this is an example of the kind of thing that is so tempting for government to do. And it’s an example of how law societies across the country push back against efforts for the government to intrude in, for example, the core principle of there being privilege and confidentiality when you’re getting legal advice. And this was the challenge that came out of changes made to the income tax legislation. And what happened in 2023 is the Federal government amended the legislation to require people, including lawyers, accountants, anyone to report various things to the tax department. And they created these categories of what they referred to them as reportable transactions and notifiable transactions and they are transactions which are not, there’s nothing inherently wrong with either of them. The reportable transactions were things including a contingency fee, contingent fee arrangement, confidentiality protection or contractual protection agreements, and where there could be a tax benefit arising from those, there would be an obligation under these amendments to report them to the government. And this concept of a notifiable transaction isn’t even yet defined. Basically, it’s the Federal Tax department wanting to find out if people, taxpayers, might be using some kind of a transaction that could have a tax implication so that they could investigate them. Fair enough. I understand, I suppose, why the federal government would want the Canada Customs and Revenue people to be able to examine these things, but the way they’re trying to find out about them is to compel people who are providing legal or other advice with respect to tax matters, to report their own clients to the government.

Adam Stirling [00:11:48] hmm.

Michael T. Mulligan [00:11:48] And if they fail to do so, the lawyer or accountant or whoever it might be is subject to a fine of up to $25,000 or 12 months in prison. So, a pretty powerful incentive to do that. Right. And the implication of it is that you might go to your tax lawyer and be asking for advice about some transaction and if this legislation is permissible. A tax lawyer might be compelled to report you to the government so they could go and look into it.

Adam Stirling [00:12:12] hmm.

Michael T. Mulligan [00:12:12] Not exactly what you would expect when you go to get legal advice.

Adam Stirling [00:12:14] No. Discourage people. Yeah.

Michael T. Mulligan [00:12:17] Very much so. Right. And so, this application was brought for a temporary injunction to prevent that from coming into force with respect to lawyers. And I should say there’s precedent for it because the government tried to do that with respect to money laundering, and they tried to require lawyers and others to report financial transactions to the government, which, of course, has all kinds of implications in terms of, again, confidentiality when you go to talk to a lawyer about something. The fact that a lawyer in that case would have to have reported you secretly to the government. Pretty disturbing.

Adam Stirling [00:12:58] Yeah.

Michael T. Mulligan [00:12:58] That was challenged successfully. And then the legislation was amended to remove those provisions with respect to lawyers. And instead, law societies have implemented strict provisions to prevent lawyers from being used to launder money like they’ve restricted when lawyers could accept cash, in low amounts, only for particular things. And there are special professional obligations lawyers have in terms of identifying clients and ensuring that they’re not being used for some improper purpose. So, the profession is dealing with it, has dealt with it in a strict way itself, which is as it should be, and a much better solution than requiring lawyers to secretly report on their clients to the government. And so, this effort from the tax perspective is akin to that. And so, the court hearing this application found that in applies the test you talked about before in terms of in terms of injunctions. Is there a serious issue to be tried? Yes. Would there be irreparable harm if there wasn’t an injunction? Again, the court concluded yes, there would be. Because you would just undermine the core idea that your lawyer is keeping information confidential, having a lawyer rat you out sort of undermines the whole purpose of getting independent, confidential legal advice. And then on a balance of convenience is the final test. And so, the conclusion here on an interim basis is that lawyers will not be required to secretly report you to the income tax department. And we’ll have to wait and see what the outcome of that is eventually. People should be aware that your accountant may be required to report you. And if they don’t do so, it could be subject to very large penalties, and they could be required to report you things which we don’t even know what they are going to be adding to the list. So that’s kind of disturbing. And the overarching thing to bear in mind is just an example of how it is so important that the legal profession be independent of government and not for the benefit of the legal profession, but for the benefit of anyone who might be out there trying to get advice, knowing that you’re not going to be turned in to the government for doing so. And it’s an example, a real example, of how having law societies independent of the government to push back on those kinds of efforts, which are, of course, so tempting for government. Right. Say we can just find out what’s going on if we just make all these lawyers and accountants turn their clients over to us. It is very tempting and very real. And so, it’s a contemporary example of why that independence is so important and why the efforts in British Columbia to try to by the government to try to get more control over the legal profession they call it single regulator is so concerning. So that’s the current state of affairs. Be warned about what your accountant might be doing. And at least for the moment, if you’re getting tax advice from a lawyer, they are going there now, have a temporary injunction in place whereby they’re not going to have to turn you into the tax department for doing so.

Michael T. Mulligan [00:16:08] All right. Up next, this has to do with wills and estates, does it not?

Michael T. Mulligan [00:16:14] It does. And I think it’s a good and important case for people to know about. These sorts of things happen in real life. And so, this is a case of a woman who passed away at age 76 and she passed away without having completed a will. She was in the process of trying to create a will. She was in an assisted living facility, and she consulted with a lawyer and gave them instructions about what she wanted to do. She was somebody who didn’t have a spouse or children or surviving parents. She did have a brother. But her wish that she expressed to the lawyer was that she wanted to leave her estate, not to her brother, but to someone else and their children. And the lawyer took her instructions, having spoken to her and received a letter from a doctor confirming her capacity to make a will and sent her a letter confirming what she had said she wanted to do. I confirm you told me this is what your testamentary wishes are. But unfortunately, Covid intervened and the woman who was in a care facility was not allowed to have visitors for an extended period in 2020 and 2021. She suffered from various medical conditions. She didn’t use technology like iPads and so on to communicate. And sadly, she passed away before she had completed a will in the ordinary way. Her estate was substantial. It was a million and a half dollars. And after she passed away, a copy of the letter was found in her effects. And it was confirmed with a lawyer that where did write that letter confirming what her wishes were. And the way it works is if you pass away without a valid will, the Wills and Estates in the Will Estates and Succession Act specifies what is to happen to your property. Right, if you die intestate. And in this case, the effect of there not being a will was that her surviving brother would have inherited all of her estate, and that was something which she had expressly said to the lawyer was not her wish. And so, the issue for the judge was, can the judge rely upon this letter written by the lawyer confirming what the woman’s wishes were. And indeed, there’s a section of that Wills Estates and Succession Act 58(2) that deals with the issue of when a judge could recognize and implement something which allows you to determine what the wishes of the person were. Even when the document doesn’t meet all the requirements of a will.

Adam Stirling [00:19:07] Interesting.

Michael T. Mulligan [00:19:08] And that would often come up with things like let’s say somebody drafts up a will and let’s say they sign it but don’t get it witnessed properly. Well, that doesn’t really meet the requirements, right? As long as you’re satisfied that they really wrote it and that was their intention and so on. That’s the sort of circumstance you might say. It clearly fits within that. This was a bit different because the this wasn’t a document written by the woman at all. Right? She’d spoken to her lawyer, told the lawyer what she wanted to do. The lawyer had confirmed what she said and sent it back to her. She put the letter. So, we know, she got it into a file entitled Lawyers info re: Estate.

Adam Stirling [00:19:48] Yeah.

Michael T. Mulligan [00:19:49] But it wasn’t something that she wrote herself at all. And so that’s why this was an interesting case with the judge struggling with that issue of is that something that should be used to determine what her wishes were? And the court in this case actually looked at a New Zealand decision, which in that case, under different legislation, a court found that the notes written by a lawyer about what a deceased had told the lawyer they wanted to do should be recognized. And so that’s one of the things that the judge looked to as a precedent. They also look to a case and other interesting fact pattern in B.C., which was a circumstance where after somebody had passed away without a will, there was a discovery on the person’s computer that they had sort of typed out what they wanted to do. They typed out a document saying get a will made at some point five we assets split for remaining brothers and sisters.

Adam Stirling [00:20:51] hmm.

Michael T. Mulligan [00:20:52] And that was implemented.

Adam Stirling [00:20:53] Yeah.

Michael T. Mulligan [00:20:54] And so the broad takeaway is that we want to, or the legislation contemplates trying to do what somebody wanted to have happen. Right. Was this the person’s intent? And the objective is to make that happen. In this case, it was helped along by, and this isn’t always so. But other relatives, including the brother who would have been the person entitled to the entire estate if this wasn’t a valid will, was advised of the application and didn’t contest it. And so, it’s an example of something you don’t see in every case where people act sort of reasonably, look you know, I could get all of this money potentially, but I’m not going to fight about it. The objective being, it seems like everyone concerned here to do what the person wanted with her estate and that was the outcome. The notes in the letter from the lawyer were recognized as representing her wishes. And so, the money will be distributed as she had told her lawyer she wanted to. Even though she wasn’t able to ultimately get the will finalized and sign it.

Adam Stirling [00:22:03] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking, all of time for this week. But a pleasure as always.

Michael T. Mulligan [00:22:08] Thanks so much. Have a great day.

Adam Stirling [00:22:09] All right. Take care. Bye now.

Automatically Transcribed on December 1, 2023 – MULLIGAN DEFENCE LAWYERS