BC NDP bill will exert undue influence, undermine independence of legal system, says lawyer

Written By Michael Elliott

“The power that the Law Society of B.C. has to regulate, discipline, and disbar lawyers is too great to be left in the hands of B.C. government-controlled or influenced appointees.”

––Michael Elliott

Yesterday the BC NDP Government introduced Bill 21, the Legal Professions Act (2024). It is a disturbing piece of legislation designed to give the government political control over lawyers.

The Legal Professions Act (2024) – more commonly referred to as the single legal regulator reform – is a new piece of legislation from the B.C. government to create a single, centralized regulator to oversee all legal professions in the province, including lawyers, paralegals, and notaries.  

The Attorney General’s proposed single legal regulator is designed to replace the existing legal regulatory system, where lawyers are self-regulated through an independent Law Society of British Columbia. Paralegals are not regulated, while notaries are regulated by the Society of Notaries Public of British Columbia.  

The issue most lawyers have with the BC NDP plan to overhaul regulation of the legal system isn’t with creating a single regulatory entity.

Rather, lawyers are concerned about the radical statutory authorities the government has included in the legislation, and the unjustifiable concentration of more power over the legal system into the hands of cabinet and the Attorney General, and the implications for the integrity of our independence from government. 

“Lawyers are concerned about the … unjustifiable concentration of power over the legal system into the hands of cabinet and the Attorney General.”

The B.C. government is preparing to ram through legislation that removes or weakens the current majority-elected Law Society model with the aim of replacing it with a regulatory body made up of a minority of elected lawyers and a majority of other licensees and both direct and indirect/partial government appointees.

Many lawyers are deeply concerned about larger patterns of alarming behaviour exhibited by this government: The lack of transparency around the development of Bill 21, an essentially non-existent public engagement program, and a consultation process limited to a small, select set of stakeholders under non-disclosure agreements who arrived at major changes to the regulation of the legal professions. 

The BC NDP have already demonstrated extreme government overreach and control in their efforts to restructure the regulation of other professions, notably the healthcare professions. So, lawyers, other legal professionals, and the legal system as a whole are deeply concerned about the damage Bill 21 will do to the rule of law in B.C. 

Self-regulation for lawyer independence is fundamental democratic principle

In the current system, there are 32 seats on the Law Society’s board of directors, known as ‘Benchers.’ 

Of those, B.C. lawyers elect 25 seats across nine different regions/districts. The remaining seven seats are unelected and controlled by the provincial government, including one occupied by the Attorney General and six appointed via cabinet or the Lieutenant Governor in Council. 

Benchers oversee the Law Society of B.C., which is authorized by the Legal Profession Act to regulate, discipline, and even disbar lawyers.

Law Society of B.C. benchers regulate, discipline and even disbar lawyers.

It has been a longstanding and fundamental convention in Canada that, as a modern and democratic society, it is essential to have a legal system where lawyers are self-regulated, so that as a profession, lawyers can be independent – especially from government interference or influence.  

Supreme Court of Canada Justice, Willard Estey, articulated this clearly in the 20th century when he wrote: “Regulation of these members of the law profession by the state must, so far as by human ingenuity it can be so designed, be free from state interference, in the political sense, with the delivery of services to the individual citizens in the state, particularly in fields of public and criminal law.” 

“Regulation of these members of the law profession… [must] be free from state interference.”

Willard Estey

That is why it is so important to maintain an elected majority of the board seats of the Law Society of BC, and not shift the majority of seats to non-lawyers or B.C. government-appointees. 

Many experts would argue that any government appointments on the board are a problem, and that there should only be elected, accountable board seats. 

Regardless, the underlying concern is the same – the power that the Law Society of B.C. has to regulate, discipline, and disbar lawyers is too great to be left in the hands of B.C. government-controlled or influenced appointees, who could abuse that power to further political or ideological interests. 

BC NDP have track record of politicizing the courts 

Both the Attorney General and the Premier have come under fire already for exactly that when Sharma criticized a judge’s decision on social media and in a television interview, suggesting he wasn’t properly trained. And Eby backed her up.

In response, in the fall of 2023, the Law Society of B.C. issued a statement saying “in a recent media interview, B.C.’s Attorney General Niki Sharma, KC made comments suggesting judicial training may not be sufficient following the sentencing of a B.C. man… The Law Society of B.C. is concerned that Sharma’s implied criticism of the judge’s decision interferes with the independence of the judiciary and the Rule of Law and may undermine public confidence in the judicial system and the courts.” 

The Law Society statement also addressed the Premier directly, bluntly stating that “in recent months that government officials, including Premier David Eby, KC, have made comments on justice system matters that tread on interference with the administration of justice by politicizing justice issues.” 

For a regulator as esteemed and reserved as the Law Society of B.C., the statement is a fierce shot across the B.C. government’s bow. 

The Canadian Bar Association, British Columbia Branch also weighed in, writing in an open letter to the B.C. Attorney General that it felt “deep concern about comments made and reported on Global News on November 23, 2023 regarding sentencing on a criminal matter from October 2023… These comments, made with the weight of your office, risk undermining the public’s confidence in the criminal justice system… We are concerned that commenting on a specific case in this manner harms the administration of justice in the province.” 

Given the B.C. government’s pattern of behaviour politicizing the courts and the judiciary, B.C.’s legal community is on edge about Bill 21 and the Single Legal Regulator reform file. 

BC government grants itself ‘astonishing extent of powers’

The B.C. government’s March 2024 public update – posted on a government webpage during Spring Break with no accompanying news release – provided few details for plans that were only partly shared in public prior to the bill’s introduction.

Bill 21’s introduction into the legislature this week followed a limited stakeholder engagement process, where government required the few organizations it engaged with to sign non-disclosure agreements until the bill was introduced.

Shielded from public view, and limited in scope, the secretive engagement with a handful of legal organizations has fuelled concerns among lawyers about the astonishing extent of the powers government is granting itself in Bill 21.

Attorney General has included extreme provisions in Bill 21 that confer significant control and discretion to the minister over the application of regulations affecting the legal professions.  

The Attorney General will have the power to create entirely new legal professions – essentially by diktat.

Section 4 outlines the addition of a power to create entirely new categories of legal professionals through government regulation – meaning that on the mere recommendation of the Attorney General, an entirely new legal profession beyond the existing grouping of lawyers, paralegals, and notaries can be created by the Lieutenant Governor in Council at any time – essentially by diktat.  

The Act includes other particularly troubling sections as well.

Increase in government appointees out-of-step with other jurisdictions

Section 8 ends the elected-lawyer majority that currently exists on the Law Society of B.C.’s board.

Just five of seventeen board seats will be elected lawyers under the new regulatory structure. The remaining twelve board seats will be either non-lawyers or direct or indirect government-appointments.

Under the new BC NDP legislation, 70 per cent of the Law Society’s board be government-appointees.

In comparison, in Ontario’s single legal regulator model, the board has forty elected lawyers, eight government appointments, and five paralegal representatives. Bill 21 is an enormous departure from the norms governing legal regulation in liberal, democratic societies. 

In Ontario, government appointees make up 20 per cent of the Law Society board.

The new board, dominated by the government, may also make rules under Section 28(2)(b)  “establishing a process for the screening of candidates in the election of directors.”

Even the few elected seats that remain will be subject to a screening process within the reach of government influence.

Regional representation will dwindle

There are currently 25 elected lawyers across nine regions, but only five elected lawyers remain on the board, so the regions will have to be changed, merged, or diminish only an appointed Bencher.

That too is left up to the rules determined by the board. It is a certainty, however, that there will be fewer regions represented by fewer elected lawyers – further concentrating power in Victoria and Vancouver at the expense of the rest of B.C.

That the Attorney General hasn’t engaged with stakeholders and communities in any manner commensurate with the gravity of this bill is indicative of the B.C. NDP government’s dismissive view of the importance those elections hold for lawyer independence in our province. 

That the Attorney General hasn’t engaged extensively is indicative of the government’s dismissive view of lawyer independence.

The disinterest in public consultation on this file is reminiscent of another recent piece of legislation from this government that intended significant change – the temporarily stalled Land Act Amendments

Proposed legal reform shows repeating pattern of government overreach

On the Land Act Amendments saga earlier this year, Vaughn Palmer wrote in the Vancouver Sun that “The New Democrats issued the call directly to stakeholders and insiders earlier this month. They made a low-key posting on the government website at engage.gov.bc.ca. But they neglected to advise the broader public of the opportunity, by either news release or any other announcement.” 

Palmer might as well copy and paste his work on that article to describe the B.C. government’s approach to public consultations for the single legal regulator reform. 

For a bill ostensibly justified by a focus on the ‘public interest,’ the government behind the bill sure doesn’t seem to be very interested in what the public has to say about it – or whether they even know it’s happening. Tellingly, they weren’t included in the ministry’s ‘what we heard’ report. 

For a bill ostensibly justified by a focus on the ‘public interest,’ the government…l sure doesn’t seem to be very interested in what the public has to say about it.

Centralization and reckless politicization is health professions act all over again

The single legal regulator reform also fits another behavioural pattern from the BC NDP government – that of dangerous government overreach and reckless politicization of professional regulation. 

In 2022, the B.C. government centralized healthcare professions’ self-regulation into six government-appointed colleges and eliminated the elected positions that had existed under the old system and had ensured professional independence from government control. 

The legislation underpinning that reform, the Health Professions and Occupations Act, was highly controversial at the time it was passed, and remains so today. 

Now, the B.C. government is proposing to centralize regulators of lawyers, paralegals, and notaries. So the decision of whether to disbar a lawyer will be made by not only unelected lawyers, but by government appointed directors and members of other professions.

The Legal Professions Act will increase the proportion and influence of government-appointments and dramatically reduce the number and authority of elected lawyer members by removing their existing absolute majority on the Law Society of B.C. board.

More Government-appointed insiders. Fewer elected members. More political control. Sound familiar? 

Over time, government will gain greater influence over judges and courts

This sort of government overreach into the regulation of the legal profession, with so little in the way of public consultation or transparency, giving inordinate power to government appointees, is extremely dangerous. 

Giving inordinate power to government appointees, is extremely dangerous. 

The Law Society of B.C. has the power to regulate, discipline, and disbar lawyers. It is independent from government and political control because most board seats are elected and a majority of it’s board is not appointed by the government of the day. 

It needs to stay that way. 

Bill 21 is dangerous precisely because it dismantles that independence from government.

Remember too that B.C.’s judges are selected from the Bar, meaning lawyers become judges. Bill 21 Legal Profession Act enables the politicization of the regulation and disciplining of lawyers. Over time, that means the government can exert enormous influence over the types of lawyers and judges we have in B.C. and the decisions courts make. 

Independent courts can only exist with an independent bar. If lawyers are politically regulated, over time the courts will become more political as well.  

Drafted behind closed doors with only a handful of stakeholders under non-disclosure agreements, the Legal Professions Act (2024) ends lawyer independence and institutes government control over the legal professions and legal system in B.C. 

This time, the BC NDP Government has gone a bill too far for British Columbians to accept.