Single regulator concerns raised in B.C. legislature

  • March 12, 2024

BC United MLA Michael Lee highlighted CBABC concerns about the proposed move to a single regulator for lawyers, notaries and paralegals in the legislature last week.

Lee asked Attorney General Niki Sharma, KC to confirm that elected lawyers will form the majority of any proposed regulatory board and noted that she did not provide a clear answer to this important question.

Read their exchange:

Hon. N. Sharma: The member asked a very specific question about the bail policy that we have in this province, particularly in relation to repeat sexual offenders for children. It's obviously a very serious crime in this province. An accused that's going through this…. The bail policy reflects how seriously that's taken.

If you look at page three there…. I'm not going to be able to talk about all the complexities and details of the policy, but I will refer the member to the fact it is not only contained in this, but it's contained in great detail with specific policies related to child victims and witnesses, intimate partner violence, sexual offences of adult victims and vulnerable victims and witnesses, all focused on the understanding that safety of the public is a matter of concern with respect to repeat offenders. So I would just refer the member to the detailed perspective in these policies.

With respect to the particular case I spoke about earlier in question period, it makes me angry. I'm sure it makes everybody angry, the outcomes of that particular case. I think it's right that the Solicitor General has asked for a review to understand what happened in that particular case to make sure that it never happens again.

M. Lee: I appreciate the response from the Attorney General in the sense that there was recognition of this never to happen again.

I would encourage the Attorney General…. I know she recognizes what I've said here relating to this specific CHI 1 policy in the Crown Counsel Policy Manual relating to child victims and witnesses and that these particular provisions seem to be quite applicable to the very unfortunate situation that was described by my colleague the member for Kelowna-Mission and what families and community members are dealing with in Kelowna.

I would hope that, in the context of whatever follow-on there is with the Minister of Public Safety and Solicitor General within the integrated justice system that we have in this province, there is a specific review of this policy and whether there was a gap in how the policy was being applied. That's not just…. That's within the system that I say that. Of course, clearly, the communication of risk factors is to be communicated to the court to ensure protection of the public. So somewhere along the way, there seems to have been a gap, very regrettably.

I also, with regret, need to turn to another section of my estimates process with the Attorney General in the time that I have. I appreciate the patience of the Attorney General as we get through the balance of my time here, short as it is.

I would like to now turn to an area that is of significant consideration and concern within the legal community in our province for the last two years, since the time of the release of the intentions paper by the Ministry of Attorney General in September 2022. Of course, I'm referring to the legal professions regulatory modernization.

We know that there was a response to this. One of the responses was set out in the Canadian Bar Association's B.C. branch's paper on November 18, 2022. Of course, there's been a process of some level of consultation, and the ministry did issue a what-we-heard report in May 2023.

Given the scale of what's being considered here, I think it's important that, as we have this opportunity to talk about the state of our justice system and as we've touched on here in a few ways, clearly we recognize the main framework within the legal profession, the 14,000 lawyers in this province and the notaries and the paralegals, as we talk about the importance of access to justice.

But there has been a concern expressed that I've heard, certainly over the last number of years, about the overreach and the intrusion by the government in a continued way into the lives of British Columbians and of the continued path, under this current government, for government control over formerly independent professions.

We saw that with the engineers. We saw that certainly under Bill 36, with the time that we had before closure was brought, on the first third of the bill when we still had two-thirds of the bill to go through, as the member for Prince George–Valemount and the members of the official opposition know very well. We didn't even have the opportunity to review the rest of that bill.

In the context of this discussion — recognizing that the government, as far as we can determine within the official opposition, recognizing that there are many organizations under NDAs, stakeholder groups in this province — that from what we can tell, what we sense, is that the legal profession is one of the last professions in British Columbia to have independence from the provincial government.

And it's for good reason, because of course, the legal profession is that constitutional check and balance against government and arguably the only thing that protects citizens, British Columbians, from government overreach.

In the context of the modernization process that the Attorney General and her ministry is still involved with, I'm asking the Attorney General to confirm and indicate whether this government sees the danger in government interference in the legal profession as a danger to one of the central foundations of a free democracy?

Hon. N. Sharma: I'm a lawyer, and I know the member opposite asking the questions is a lawyer, and one of the things that we hold as lawyers is that our independence is key to our ability to operate in our profession and that the regulator is, of course, tasked to make sure that that independence stands.

I can assure the member that this project is not about the attack on the independence of the legal profession. It's about modernizing the regulator and the legal professions and increasing access to justice for the public of this province.

I am engaged with meetings with anybody who asks about this topic in order to hear their perspectives and their ideas. We're getting a lot of really interesting ideas when it comes to this. The end result will be better access to justice, a modern regulator and the independence of the legal profession.

M. Lee: I would expect that the Attorney General and the Premier and members of the Legislative Assembly, including those who are members of the Law Society and have practised within the legal profession in our province, like myself…. There is great recognition of the importance of a free and independent, self-regulated legal profession.

The Attorney General also indicated, in terms of the level of consultation that has occurred since September 2022 — we're coming on now to a year and a half at least for this project — that many of the organizations that are critical to this discussion, such as the Law Society itself, the B.C. Paralegal Association and the Notaries Association in British Columbia, have been required to sign non-disclosure agreements, which effectively, as you know, silences those organizations from engaging in any public discussion about this issue.

Will the Attorney General confirm that all these organizations, including the Law Society and the Society of Notaries Public of British Columbia, have been asked to sign NDAs or are under NDAs? Is she not concerned that this constrains the level of public discourse, review and engagement on such a significant modernization, in the words that this government uses, of the legal profession?

Hon. N. Sharma: As the member knows, as somebody who has served in government, this is a regular practice not related to this bill.

I will just reiterate some things I mentioned before: that this has been a public process, in terms of an open call for the public to give their input, the release of an intentions paper and a what-we-heard document. There will be further…. Obviously, as I mentioned, I take meetings with anybody who asks that they want to meet about this.

It's a very common practice, when we're drafting legislation, to sign NDAs with the most knowledgable and interested parties. Actually, in my view, that helps the process, because it helps us be able to dig into the draft legislation with these parties, in a confidential way, to get their input, their feedback and their expertise, to make it a better piece of legislation.

M. Lee: I made reference earlier to the fact that we're in the third week of a ten-week, compressed legislative session. I appreciate the opportunity, at the beginning of estimates, to have this discussion with the Attorney General, recognizing as well, in terms of what she said, and also to highlight….

I know the Attorney General is aware of the letter that she would have received on January 12 of this year, 2024, addressed from Scott Morashita, the president of the Canadian Bar Association, British Columbia branch. Mr. Morashita, on behalf of the 7,800 members of the CBA of British Columbia, expressed concern about needing the opportunity to have a proper, fulsome discussion and consultation with lawyers, in the broadest way.

There was a specific, particular urging, by the Canadian Bar Association, a request that the proposed draft legislation be shared with the entire legal profession and the public, with sufficient time for meaningful and open consultation prior to its consideration by the Legislature. Will the Attorney General agree to that request, to ensure that there's a broader level of consultation and engagement with members of the legal profession and the broader public?

Hon. N. Sharma: Just to reiterate what I said before, it's not special about this piece of legislation that we're working on. This is a confidential process. Parliamentary privilege is one of the fundamentals of our democracy.

We are closely engaged with the regulators, under an NDA to look at that legislation. I think it will make it better. Of course, as always, I'm committed to meeting with the CBA. I have met with them in the past to talk about this and to make sure that everybody understands what our goals are.

M. Lee: Really, I appreciate the Attorney General's confirmation, at least, to the ongoing dialogue and the availability of the Attorney General to meet with members of the CBA — Mr. Morishita, his executive members and executive director as well.

The context is the actual details of the proposed legislation. What we have, as I referred to, is the government's what-we-heard paper, released in May of 2023 — which is coming on ten months ago — in the absence of further clarity, about what the government is considering or proposing coming forward — other than to that closed group of individuals, as the Attorney General described, who are under non-disclosure agreements.

This is where this government has been so much challenged by public process and consultation. When we don't bring along members of the public, we have a lot of concerns expressed. We saw that, certainly, with the Land Act amendments — a breakdown and a failure in public process.

In this case, we don't even have a slide deck on that describes the framework for the legislation, which we did have in the Land Act amendments. At least this time, we have an intentions paper that was publicly announced in some way. For Land Act amendments, we didn't even have a public announcement, but we had a government that changed the slide deck.

Here, in the absence of any details, we have this what-we-heard report, and that's the reason why. Why would the Canadian Bar Association, B.C. branch, representing 7,800 lawyers of the 14,000 in our province, be concerned about seeing the proposed legislation in advance of when it's tabled in this House? It's because there are just no details.

Let me just ask one fundamental aspect. The minister confirmed earlier, in response to my first question, that she recognizes and supports the need to maintain the independence of the legal profession in our province. Does that mean that the Attorney General will confirm that elected lawyers will form the majority on any proposed regulatory board?

Hon. N. Sharma: I'll just note that talking about the details of legislation that's yet to be introduced in this context is, in my view, out of bounds of the conversation that we should be having. What I can say is that very key to the discussions about maintaining the independence of the legal profession is understanding that governance has an important role in that. This is one of the factors and principles that we are taking into account when it comes to this legislation.

M. Lee: I do appreciate the context in which we're having this discussion. I appreciate there has been some latitude for that. I would suggest that reasons for that are the compressed nature of our legislative session and the lack of understanding and transparency from this government as to where it's at with the modernization of the legal profession, other than in the what-we-heard report.

Even with respect to the Attorney General's last response…. I appreciate that the Attorney General has indicated that independence is a factor for consideration, but that's not a clear answer to the membership that the composition of the regulatory board is going to have a majority of elected lawyers.

I know that this remains of grave concern. I can only hope that the Attorney General will stay clear in her perspective to recognize the independence of the legal profession and the reason for that, both as recognized under our constitution and in case law. It's recognition that she, herself, in her roles as a member of this government and as Attorney General of this province, is tasked with ensuring that the public administration of justice is conducted according to the law.

It is something I've talked about at length — when the Premier, the former Attorney General of our province, had the role to be the chief legal officer of our province, and what it meant in the context of the significant reform to ICBC legislation that he'd brought forward while being the minister responsible for ICBC. I have argued at length about that with this government: that, in my view, and the view of some others in the legal profession, the Premier was in clear conflict with his duties.