The Federation of Law Societies of Canada has recommended changes to the federal Immigration and Refugee Protection Act (IRPA) in response to the government’s consultation green paper, “Our Security, Our Rights: National Security Green Paper, 2016”. The Federation’s brief focuses on the special advocate regime currently in place, and the potential use of security cleared lawyers in criminal, civil and administrative proceedings. Recommendations are focused on ensuring the rights of individuals in legal proceedings be upheld by enhancing disclosure to special advocates, while recognizing that national security interests will at times restrict the information that can be disclosed. The four recommendations would ensure that special advocates have access to all material related to the named individual that is in the possession of the government, the right to challenge the scope of information provided by the government, measures in place to, at a minimum, ensure a continuing disclosure obligation on the government of all inculpatory and exculpatory evidence and access to the named individual and the individual’s counsel throughout the entire proceeding. The first recommendation was also made in a submission on the same issue in 2007, when the Federation stated that to effectively perform their role, special advocates must have access to the same information that the government possesses. Not only was this concern not adequately addressed following the 2007 consultations, amendments to the IRPA in 2015 further restricted the access of special advocates to this information. The existing scheme unnecessarily restricts the ability of special advocates to protect the interests and rights of individuals named in security certificates. In its 2016 submission, the Federation again emphasized that restrictions on the special advocate’s access to information are unnecessary to protect national security and may unduly hamper the ability of the special advocate to protect the interests of the named person. “Without seeing all of the information about the named person that is in the government’s possession, there is a real risk that the special advocate will be denied access to valuable information that could serve the individual’s interests” the brief states. The Federation also notes that “legal proceedings that take place in the absence of the individual whose rights and freedom are at stake represent a significant departure from the principle of open and transparent proceedings that is a foundation of the Canadian system of justice. While national security may justify this departure, in the submission of the Federation it… The Federation of Law Societies of Canada is pleased to announce that Maurice Piette of Montreal has been elected President for 2016 - 2017. He is a practicing notary with Piette & Duquette in Montreal. He studied at the Faculty of Law of the Université de Montréal from 1968 to 1971. Maurice obtained his notarial law diploma in 1972 and was admitted to the Chambre des notaires du Québec in the same year. Mr. Piette joined the Federation Council as the representative of the Chambre des notaires du Québec in 2003. Maurice had been active in the Chambre des notaires since 1993, when he was elected as the representative for the district of Montreal. He has been a member of the Administrative Committee of the Chambre des notaires, and served as Vice President of the Chambre from 1996 to 1999, and again from 2005 to 2008 and from 2009 to 2014. “I am honoured to lead the Federation in the coming year”, Mr Piette says. “The organization has undergone immense change in recent years and played a key coordinating role for Canada’s law societies on issues of common interest. With a new strategic plan in the works, I am confident that role will continue and be strengthened.” “The Federation has developed a model code of conduct, has nurtured the growth of CanLII, and has been the voice of the law societies on a variety of important issues before the Supreme Court of Canada”, Mr. Piette adds. “These are just a few ways in which the law societies have used the Federation as a vehicle to advance the public interest in relation to their statutory mandates.” Please also consult the PDF version of the Federation's news release. In view of the ongoing litigation between Trinity Western University and the law societies in Ontario and British Columbia, the Council of the Federation has suspended the consultation on the draft report released by the National Requirement Review Committee ("NRRC"). The consultation report, prepared pursuant to the mandate of the NRRC to consider whether a non-discrimination provision should be added to the National Requirement, was not provided to or approved by the Federation Council or the law societies prior to its release. The preliminary views expressed in the draft report do not necessarily represent the views of the Federation or its member law societies. Decisions about the future of the consultation will be made following completion of the litigation. In the meantime, any feedback received to date will not be considered by the NRRC. The Federation of Law Societies of Canada welcomes the new appointment process announced today to fill the vacancy on the Supreme Court of Canada that will occur with the retirement of Justice Thomas Cromwell on September 1st. The Federation is pleased to be included in the new independent advisory committee as a key national stakeholder in Canada`s legal community. As announced by the Prime Minister, the new advisory committee will consist of seven members, including four nominated by the legal community. Federation President Jeff Hirsch will represent the Federation on the committee. Mr. Hirsch and the other members of the new advisory committee will be responsible for recommending a short list of functionally bilingual, qualified candidates for consideration by the Prime Minister for an appointment to the Supreme Court of Canada. New to this process is the opportunity for potential candidates to apply for the position. As detailed in its mission statement, the Supreme Court of Canada is the final court of appeal in Canada. It serves Canadians by deciding legal issues of public importance. The Court is committed to the rule of law, independence and impartiality, and access to justice. “Canada’s justice system, including our Supreme Court, is the envy of the world. It is vital that our judicial institutions continue to be respected, both in Canada and abroad” says Mr. Hirsch. “Public confidence in the qualifications of the justices of the Supreme Court of Canada is essential to that respect. The Federation is pleased to participate in an open, transparent and non-partisan process with a view to maintaining and enhancing public confidence”. News Release Two Supreme Court of Canada decisions handed down June 3rd, 2016 have confirmed the importance of solicitor-client privilege. The Federation of Law Societies of Canada (FLSC) intervened in both cases. The first case, Canada (National Revenue) v. Thompson, involved a lawyer from a small Alberta town who was asked to provide certain information to the Minister regarding his own tax obligation, including his accounts receivable listing. The lawyer refused to provide the names of his clients to the Minister, on the basis that they were protected by solicitor-client privilege. Based on the statutory exclusion of “accounting records” from the definition of solicitor-client privilege in the Income Tax Act (ITA), the Federal Court ordered Mr. Thompson to provide the information. The Federal Court of Appeal allowed the appeal in part, sending the matter back to the Federal Court to consider whether solicitor-client privilege may actually attach to any of the client names (even though they were contained within “accounting records”). The Minister appealed, and in its June 3rd decision the Supreme Court set aside the Court of Appeal’s decision – but not because, as the Minister argued, the Court had no discretion to determine whether information within accounting records was actually privileged. Rather, the Supreme Court held that the Court of Appeal’s remedy did not go far enough to protect the clients’ right to solicitor-client privilege. In doing so, the Court emphasized key arguments made by the Federation: that since the definition of solicitor-client privilege in the Income Tax Act was enacted in 1965, the privilege had evolved from a mere evidentiary rule to a principle of fundamental justice; and that solicitor-client privilege is a right that belongs to, and can only be waived by, the client. Although the Court held that the language in the definition was sufficiently “clear and unambiguous” to abrogate solicitor-client privilege, the case did not actually turn on this point, because the Court held, in the companion case of Canada (A.G.) v. Chambre des notaires, that the Income Tax Act definition of solicitor-client definition was contrary to s. 8 of the Charter. In contrast to Thompson, which primarily turned on statutory interpretation, the Chambre case was a constitutional challenge by the Chambre des notaires du Québec and the Barreau du Québec to the statutory scheme. The Court held that the scheme was contrary to s. 8 of the Charter, the unreasonable search and seizure provision, insofar… The Federation of Law Societies of Canada has committed to respond to the Calls to Action published in the 2015 report of the Truth and Reconciliation Commission in a manner that respectfully engages representatives of Canada’s Indigenous peoples and promotes reconciliation. In its 2015 final report, the Truth and Reconciliation Commission included Call to Action 27, which called on the Federation of Law Societies of Canada “to ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal-Crown relations.” “This is the next step in the Federation’s response to the Calls to Action in the report” says Federation President Jeff Hirsch. “The first step was the program at the Federation’s annual conference last October. The conference brought together representatives of law societies, Indigenous leaders, academics and other key stakeholders to begin the national dialogue on how the Federation and Canada’s law societies could respond appropriately to promote reconciliation." There was consensus among the conference participants that responding to the Calls to Action must be meaningful and prompt, and include direct collaboration with Indigenous peoples from the outset. On March 11, 2016, the Council of the Federation voted to establish a working group to develop recommendations on how best to effectively respond to the Calls to Action. The Council resolution included a commitment to a process that engages representatives of Indigenous peoples. “In providing a national response, we will ensure it complements the ongoing work of law societies across the country ” Jeff Hirsch added. Our news release is available here.