Maintaining the Independence of the Legal Profession


Maintaining the Independence of the Legal Profession

As many of you are aware, the BC government released an Intentions Paper on September 14, 2022, entitled “Legal Professions Regulatory Modernization” that provided notice of its intention to develop legislation that would regulate all legal service providers under a single statute and by a single regulator. 

In response, CBABC held a series of roundtables this past fall gathering the feedback of our members and, working with our relevant Sections and Committees, provided a written submission to the BC government on November 18, 2022. One of our key points in response to the Intentions Paper was the critical importance of maintaining the independence of the legal profession as the government moves forward with its initiative.

“Independence of the profession,” just like “rule of law,” has various definitions, some broader and more wide-ranging than others, but, at its core, it entails adequately safeguarding the profession from political state interference. The oft quoted passage in support of this essential principle, fundamental to a free and democratic society governed by the rule of law, is from Justice Estey in AG Can v Law Society of BC, [1982] 2 SCR 307 at 335-336, 1982 CanLII 29, which we cited in our submission.

As we further pointed out in our submission, this core principle seems to be under attack, to varying degrees, around the world, and B.C. is, by no means, immune. Very recently, we felt compelled to put out two public statements regarding what appears to be an encroachment upon or, at the very least, a misunderstanding of, the independence and special nature of our profession, as well as that of the judiciary, the independence of both of which are intertwined.

One of the recent statements we released expressed concern about the current public debate about bail decisions that, in our view, unfairly blamed judges and prosecutors for releasing repeat offenders back in the community. We are by no means arguing that judges or prosecutors are infallible, but there appeared to be a lack of appreciation, in the public discourse, about what judges’ and prosecutors’ critical roles truly entail.

We also sensed some degree of political opportunism in trying to shift blame and reduce a complex societal problem to a simple solution — just create some more rules or policies telling judges and prosecutors how to do a better job of keeping repeat offenders behind bars and things will be better.

There didn’t appear to be an understanding, in these public discussions, about the requirement of judges to apply the law as it is written and as it has been interpreted by our highest court. There didn’t appear to be consideration of how critical it is that judges and prosecutors remain independent of political influence and the reasons for that being so essential in a free and democratic society. Neither did many public commentators seem to realize or at least mention that public safety is already an important factor to be considered by judges and prosecutors.

In the subsequent media interest and few appearances that followed our public statement, we received some feedback that, as an organization, we lacked sufficient sympathy regarding the public’s valid concerns. We, in turn, are concerned that much of that public worry has been unfairly whipped up by politicians and media without a proper explanation of what the critical roles at play are and what is at stake when you unduly interfere with the independence of them.

Again, we are not saying that our judiciary and prosecutorial services must always be beyond criticism in whatever decisions they make, but to maintain trust in our judicial system, all must have confidence that their decisions are made fairly and impartially, and their independence is fundamental to that trust, something about which the CBABC will never hesitate to speak out.