0:00

It means it's time for Legally Speaking , our regular segment

0:02

with Michael Mulligan , barrister and solicitor

0:04

. With Mulligan Defense Lawyers , Morning Michael .

0:06

How are we doing ? Hey , good morning

0:08

, I'm doing great . Always good to be here .

0:10

Always interesting developments , especially

0:12

in the legal field under the David Eby

0:14

government . You and I have talked about the online

0:17

forms that one can fill out with the Civil

0:19

Resolution Tribunal for matters

0:22

involving smaller sums of money

0:24

and the complications that can arise on that

0:26

, and you often mention the idea

0:28

that the legal profession is one that

0:31

is self-regulating and intended to be

0:33

independent from government . I noticed

0:35

that topic is on the agenda for this week .

0:38

Sadly , yes , and

0:41

we've spoken before about sort of government

0:43

proposals to try to exercise

0:46

more control over the legal profession

0:48

. And there was an unfortunate

0:50

piece of legislation introduced by

0:53

Ms Sharma , who's the Attorney General

0:55

currently yesterday

0:57

, in the form of what's referred to as Bill 21

1:00

. And this particular

1:02

bill , it's entitled the Legal Profession Act . And

1:04

this particular bill it's entitled the Legal Profession Act and if it's passed

1:06

and brought into force , it would have a very

1:08

significant impact on the

1:11

independence of the legal profession vis-a-vis

1:13

government . And

1:22

the real loser in that scenario is going to be anyone who winds

1:24

up in a dispute with the government at some point . And the reason that's

1:26

such a problematic thing it goes to sort of

1:28

the heart of how our society

1:30

functions and

1:32

the idea that people can get independent

1:35

help really

1:38

is rooted in , first of all , how the legal

1:40

profession operates at the moment , how it's regulated

1:42

in relation to government and

1:45

what the provincial NDP wants

1:47

to do here . So at the moment

1:49

, the legal profession is exactly that it's a profession

1:51

and it is independent of government

1:53

. It's ultimately

1:55

the structure

1:58

of the law society which regulates . Lawyers

2:00

there's what amounts to a board

2:02

of directors . Lawyers

2:06

there's what amounts to a board of directors , and the overwhelming number of people

2:08

who sit on that board are elected by lawyers from different

2:11

regions of the province . The

2:13

government does appoint a small minority

2:15

of people that sit on the board , but

2:18

the effect of that structure is that

2:20

the law society and lawyers are not

2:22

beholden to the government , and

2:25

that matters very much

2:27

if you're somebody who winds up having

2:29

a dispute with the government , like

2:31

, for example , every day in my practice

2:33

. I practice criminal law Day

2:35

in and day out . My task is

2:37

to oppose things that the government might

2:39

want to do to somebody , like put them in prison

2:42

, and that arises in other contexts

2:44

as well . Let's say the government wants to I don't know

2:46

expropriate your home or the government

2:49

wants to . You're having a dispute over all

2:52

sorts of things . The government is often on the

2:54

other side of them suing the government . There can

2:57

be Indigenous claims to land

2:59

. There can be individuals who own property

3:01

the government wants to do something with . That

3:03

is not uncommon and

3:11

, as currently structured , you can be confident that the lawyer that you're hiring is not in any

3:13

way beholden to the wishes or desires or whims of the province . Now

3:16

, if you're a government , you can appreciate

3:18

how that might be a little uncomfortable , right

3:20

? You've got a profession here that's independent

3:22

and is routinely tasked with opposing

3:25

things that you're doing . And

3:27

so this bill this Charma introduced this

3:29

Bill 21 , would purport

3:32

to change how lawyers are regulated

3:34

, and the change

3:37

would mean that , rather than having

3:39

elected and frankly

3:41

they're volunteers , they don't get paid elected

3:43

people who are running this

3:45

board of directors , the government wants

3:47

to have more control over it , so there would be

3:49

a reduction in the number of directors to 17,

3:52

. Only five of them would be elected lawyers

3:54

, and then , by various other mechanisms

3:57

, the government would appoint people , or they'd be selected

3:59

based on quote , merit or various other

4:01

criteria , and

4:03

the effect of that would be to allow

4:05

the government greater control . And

4:07

so you can see , some people might have

4:09

positive or negative views of the government , but you can

4:12

easily see how that is very undesirable

4:14

if you're somebody who ever winds up in conflict with

4:16

the government . Now , that's not just

4:18

abstract and it's apparent from

4:20

just looking at what is in this bill

4:22

. Currently

4:24

. We have currently a Legal Profession

4:27

Act , and it sets out what

4:29

the objects and duties of the law society

4:31

are , and the number

4:34

one is this preserving

4:36

and protecting the rights and freedoms of all persons

4:39

. That's a pretty good policy and

4:42

that has real-life implications , like

4:45

in terms of what the law society is

4:47

doing . And this

4:51

piece of legislation Bill 21 , would

4:54

change what the law society's objectives

4:56

would be , and it sets out a variety

4:58

of things . Now some people might think

5:00

the things they're listed are good . Some people might

5:03

disagree with them . But think

5:05

about whether it's a good idea to have a

5:07

regulator which has various

5:09

government goals built into

5:12

the legislation regulating lawyers . So

5:14

, for example , the list of things which this

5:16

legislation includes would be that the regulator

5:19

must have regard to the following principles

5:21

B supporting reconciliation

5:23

with Indigenous people and the implementation

5:26

of the United Nations Declaration on the Rights

5:28

of Indigenous People . Now , some

5:30

people might think that's a great idea , might think

5:32

that's really good government policy , but should

5:34

lawyers be regulated and directed to

5:36

do that ?

5:37

Yeah , so you can't argue against it . Should there be a lawyer who

5:39

disagrees ? Yeah , like what if you have a

5:41

client who wants to afford a position .

5:43

Yeah , so

5:46

they're told to make rules with that objective . Now

5:48

, that might be the objective today , and

5:50

some people might think , oh , that's great , that's the current government

5:52

policy . It's always going to be benevolent yeah

5:54

but , for example , the

5:57

bc conservatist party's policy

5:59

is they wish to immediately repeal the

6:01

united nation's declaration on the rights

6:03

of Indigenous people , and so

6:05

if there's a change of government , would it be okay

6:07

? We're just going to insert some other goal for

6:09

the law society here to try

6:11

to get the regulator of lawyers to

6:13

cause lawyers to do things , to implement some

6:15

other government policy . Might

6:18

that be changed , either

6:20

a few months from now or four years from

6:22

now . Might it no longer say that . Might it say that the

6:25

goal of the regulator of lawyers

6:27

is to , for example , ensure a balanced budget

6:30

or some other

6:32

government goal . And so

6:34

this is real . It's not

6:36

some sort of theoretical what might

6:38

happen and might the government try to cause

6:40

this organization to do something . It

6:43

is real and right there . And

6:46

again , that's not to say that that's not a good goal

6:48

, but it's just

6:50

to say it's not the government's business

6:52

. And the attorney

6:54

general and the premier , they're both lawyers

6:57

. They should know better . They

6:59

should just know better . And it's

7:01

very easy , I think , when you're in

7:03

that role , to think well , I'm benevolent

7:05

, my goals that I'm writing into this

7:07

thing must be good goals . Everyone must agree with

7:09

my goals , right ? What's wrong with

7:11

ordering this or that to happen . Well

7:14

, that may well be your view . Few people

7:16

go around and think they're just doing harm . Right

7:19

, there aren't many people like that . I'm sure they don't think

7:21

that right , but just

7:23

a little bit of reflection would

7:25

cause you to think is that a good idea

7:28

? Do we wish to have a society organized

7:30

whereby , when the government

7:33

is doing something to you and

7:35

you're going to get help from a lawyer , the lawyer

7:37

has to be looking over their shoulder about whether they're conforming

7:39

with this objective ? That's

7:43

not wise . Other things

7:45

become just creepy . That's

7:49

not wise . Other things become just creepy when you think about the idea that the government

7:51

would have such control over this entity if it comes into

7:53

being . Let's look at this , for example

7:55

Section 78 . This

7:57

section of this bill would permit

7:59

the executive

8:02

officer of this proposed

8:04

regulator and

8:06

remember , the directors are not

8:08

just independent lawyers , they're a bunch of people who

8:10

are appointed or selected based on whatever criteria

8:13

might be picked out there Without

8:15

a warrant or any judicial authorization . They

8:18

could come in and start examining the records

8:20

of a lawyer . Wow , they could

8:22

go in and observe the person practicing . Just

8:25

think about that . I mean legal confidentiality

8:27

is huge yeah

8:29

, and it's one thing if the regulator

8:32

is independent of government right

8:34

. It is a very different thing when

8:36

the regulator is now sort of an organ

8:39

of government and has government goals

8:41

written into its legislation . And

8:43

so just think about that . Let's imagine you've got

8:45

a property dispute involving the government

8:47

. They want to expropriate your farm or house or

8:49

put in a highway , or you're having some dispute

8:52

over whatever right

8:54

Whether your children should be apprehended . You're charged

8:56

with a crime . Government's prosecuting

8:58

you , they want you to go to jail . And this entity

9:00

, which is not really at

9:02

arm's length of the government it has a bunch of government

9:04

goals built into its legislation that

9:07

entity is now going and rifling through your lawyer's

9:09

files without a warrant . That

9:14

is very dangerous , and

9:16

once again , nobody does

9:19

these things , thinking oh yes , I'm setting out

9:21

to do evil , I'm setting out to sort of undermine

9:23

fundamental values of society . Everyone

9:26

, of course , not everyone , almost everyone

9:28

and I'm sure Ms Sharma and Mr

9:30

Eby both have benevolent

9:33

intentions , right , and everyone likes to think

9:35

they're benevolent . All these things must

9:37

be good . You know , when I

9:39

set out these goals , this is what I want this organization

9:42

to be , and you know the people that we think we

9:44

would appoint to be on the board

9:46

or who we might select , right , everyone

9:48

would have in mind some positive

9:51

outcome and some well-meaning person

9:53

who's acting in the public interest , whatever . That might

9:55

be right , but

9:58

that's not always so , and this

10:01

is one of those things that goes right to the

10:03

heart right of living

10:05

in a free and democratic society

10:08

. Yes , and you know , we appreciate

10:11

things that are easy to understand , like why , for example

10:13

, judges need to be independent of government . Judges

10:16

can't do a thing without

10:18

lawyers involved in it

10:20

. No , you're right . They don't go out and collect

10:22

cases or walk down the road and say , hey

10:24

, I judged that to be unfair . No , right

10:26

, yeah , it's .

10:32

They are biotic .

10:33

You know courts and judges need to be independent

10:36

, but they can only act independently and do things

10:38

if you've got lawyers who are there representing

10:40

people and bringing cases and making arguments

10:42

. And this

10:44

is just completely unwise , really

10:47

shallow thinking in

10:49

terms of this , the policies that underlie this in terms of this

10:52

, the policies that underlie this and

10:54

the responses to it from the Law

10:57

Society reflect that . I mean

10:59

, their response to this bill being introduced yesterday

11:02

was the

11:09

legislation tabled today fails to protect the public interest in having access to independent

11:11

legal profession , governed by an independent regulator , that are not constrained by unnecessary

11:13

government direction and intrusion . Now

11:15

, I appreciate that may not be the sexiest thing

11:18

in the world . Right , it's a long sentence , but

11:20

that should give

11:22

you great pause . This

11:25

, if passed , is not just some other

11:27

passing piece of legislation on

11:29

some policy that might be here today . It might be

11:31

gone down the road . This

11:34

goes to the heart of how the system

11:36

operates . You're right in the gears of

11:38

it all and when

11:40

you have a government that's trying to exercise

11:43

this kind of control and write

11:45

in the legislation , they're writing in things

11:47

that are their policy priorities , telling

11:49

this organization to do this and

11:51

that . That is really

11:54

, really worrisome , and even

11:56

if you think Mr Eby or Ms Sharma

11:58

aren't evil and aren't doing

12:00

things that are bad , and even if you like the policies

12:02

that are written in there , think very , very

12:05

long and hard about this

12:07

, because it is clear that

12:09

some of this would be if there's a change of government

12:12

, as there may well be gone

12:14

and it may be replaced by something else

12:16

and you may not like what it's replaced with . And

12:18

the point is that none of that should

12:21

be in legislation which regulates

12:23

lawyers . If you wish to live in a

12:25

place where you want independent legal advice

12:27

, the government can't come in and look at your legal file

12:30

and if you wind up in a dispute

12:32

with the government , the person that you're hiring

12:34

you can have confidence is not looking

12:36

over their shoulder , wondering whether they're

12:39

going to have some regulatory problem with

12:41

some entity that has a bunch of government

12:43

priorities set out in its legislation . So

12:46

this bill Bill 21 , if

12:48

this is passed and implemented , just

12:50

has really long-term negative implications

12:53

. It is terribly thought out and

12:56

I really hope that

12:58

there is some sober second thought going

13:00

on about the wisdom of doing this and

13:02

some reflection when you have

13:04

the law society telling you that this

13:06

will undermine the independence

13:09

of the legal profession . That's not , by

13:11

the way . It's just like the independence of judges . Sometimes

13:14

people wrongly think oh gee , those judges , they

13:16

just want you know this independence

13:18

for themselves . It's not a

13:20

benefit . It's like the independence of the judiciary

13:22

is not a benefit intended

13:24

to sort of protect or help out a judge

13:27

. Right , it's not like the dental

13:29

plan you provide to judges ? Yeah , yeah

13:31

, it is intended to protect

13:33

people that are winding up in front of

13:36

the judge and people that are going

13:38

to hire a lawyer . It's you

13:40

, ladies and gentlemen , who , at the end of

13:42

the day , are disadvantaged

13:45

if you're unable to get

13:47

independent legal advice from somebody who's

13:49

not beholden to a bunch of government policies

13:51

. So this piece of legislation is

13:53

seriously problematic , should be rethought

13:55

, and it's , I must say , disappointing

13:58

that people like Ms Sharma

14:00

and Mr Eby , both of whom have law degrees

14:02

, don't recognize how dangerous

14:05

and unwise

14:07

this piece of legislation is . So hopefully

14:09

that gets rethought , because

14:11

otherwise , even if they think it's great

14:14

now , they are not going to like what this turns

14:16

into when they are out of office , because

14:18

nobody's there forever . So

14:20

that's the Bill 21 and the very

14:22

disappointing proposal for the Legal

14:24

Prevention Act .

14:25

Thank you for the analysis , michael . We're going to take a quick

14:27

break . Legally Speaking with Michael Mulligan . Right

14:30

after this , legally Speaking continues

14:32

Michael

14:38

Mulligan with Mullulligan defense lawyers . Michael , I was just thinking about what you told us before

14:40

the break about this , uh , these troubling proposed changes to the regulation of the legal profession

14:42

, and I'm reflecting on all the times the government of

14:44

british columbia has found itself taking legal

14:46

positions that ultimately , the courts

14:48

found against kinder morgan transion

14:51

Project , of course , being one of the more

14:53

noteworthy examples earlier

14:55

in the mandate that was secured

14:58

in 2017 . But even

15:00

since then , in terms of ICBC reforms

15:02

and other reforms , all the times that the courts

15:05

have not found in the government's favor . So

15:07

the government has found a way to alter the courts themselves

15:09

by way of regulation of the legal

15:11

profession . Like you mentioned , a judge cannot

15:13

, on their own volition , go out and make findings

15:16

on issues . A judge can only decide upon

15:19

the materials that are brought to him or her

15:21

by counsel by a lawyer , and if a

15:23

lawyer is prohibited from doing certain

15:25

things , then it never gets to the judge .

15:28

You're exactly right . And even if there isn't

15:31

some express prohibition , even if

15:33

it's , you shall not sue the government . That's

15:35

not likely right . But if

15:37

you have a circumstance where there's a bunch of

15:39

rules and regulations in place , for example

15:41

directing the people or

15:43

lawyers try to achieve

15:46

various objectives of the government

15:48

, just think about what

15:50

the implications are of that right

15:52

. You're going to have this regulatory body that

15:55

is directed to make

15:57

rules to achieve various government

16:00

objectives , for example the

16:02

one we've talked about . And so if

16:04

you're somebody who is opposed to one of those

16:06

government objectives and now you're out trying to get

16:08

a lawyer and the lawyer is subject to

16:10

discipline if they don't

16:13

comply with rules made by this government

16:15

entity , that's just

16:18

where are you yeah where

16:20

right , and so it's just very

16:22

, very troubling and very short-sighted

16:25

. You know , it's almost

16:27

hard to believe you've got these people who are obviously well

16:29

educated , like uh , eb and charmer

16:31

they're both lawyers . You would just

16:33

hope that people

16:36

would have just a little bit more foresight

16:39

than you . Know . What

16:41

might we do to achieve my current goal

16:44

? It's just very

16:46

, very disappointing . This thing is , you

16:49

know , just a disastrous piece of legislation

16:51

. It is extremely short-sighted , and

16:54

anyone just giving it a little bit of reflection

16:56

in terms of , well , what's fair , what kind of a society

16:59

do we want to live in , would

17:01

realize that this is not a good

17:03

idea . Even again

17:06

, as I said , if you think the current government

17:08

or the current objectives or the people they might

17:10

pick to make these decisions , or the current

17:13

principles that they've written into this , even

17:15

if you think those are lovely and you

17:17

think , well , of course , everyone should be trying

17:20

to achieve that outcome , again

17:23

, that could be different

17:25

and is likely to be different in

17:27

pretty short order . And now

17:29

where are you ? And so this

17:32

just shouldn't be done . It's just wrong

17:34

, it is a terrible idea , it

17:36

is a terrible piece of legislation and

17:39

it will have a

17:41

real impact on real people

17:44

all over the place with

17:46

all kinds of disputes . You mentioned some of them . You have

17:48

a dispute over ICBC , you have a dispute

17:50

over land , you have a criminal

17:52

dispute , you have your children being apprehended

17:54

. You want to sue the government . You're arguing

17:56

about the constitutionality of something . You've

17:59

got some , as you pointed out environmental

18:01

litigation over things . The

18:03

whole host of issues involve

18:06

the government as a party , and the government

18:08

just needs to keep their hands off . They

18:11

just need to restrain themselves . Right

18:13

? The test is not always , and the law

18:16

society has also said it's

18:18

retaining counsel and there's going to be a constitutional

18:20

challenge and other law societies across

18:22

the country are likely to intervene

18:24

in that it's going to be a legal argument

18:26

about all of this and it's unclear what

18:29

the outcome of that's going to be . The Supreme Court

18:31

of Canada has made clear that , in

18:33

very strong language about sort

18:35

of as far as human ingenuity permits

18:38

, we need to have a system that ensures

18:40

that the legal profession is independent of government

18:42

, and so there may be

18:45

a legal decision

18:47

about whether this is possible or

18:49

constitutional , because it goes right to the heart

18:51

of the independence of the

18:53

bar and the independence of the judiciary

18:55

and what they can do . It's

18:58

just really fundamental , and so there will

19:00

be some legal argument about that . But

19:02

the test is not whether

19:04

something is legally possible , like whether

19:06

you can do something . That's not

19:08

the test as to whether something is right or good

19:10

or should be done . You know language

19:13

I use before describing that is . You know it's

19:16

like we don't figure out the recommended

19:19

or desirable dose of medication

19:21

by figuring out the amount of medication that will

19:23

kill the patient and then recommending the doctors

19:25

back it off just a little bit .

19:26

Yeah .

19:27

The test is not can

19:34

you do something , or is it legally possible to do something ? The test really should be

19:36

with all of these sort of things is this wise ? Is this a good idea ? Not

19:39

. Will this get me what I want , or will this

19:41

advance my current agenda ? Or can we get

19:43

away with it or can we force this through

19:45

? Do we have a majority at the moment to force this

19:47

through ? That's

19:56

not well , sorry , but that is often the analysis provided . It should not be the analysis engaged

19:58

in . There should be some reflection about whether this is a

20:00

good idea or not , and this is not

20:02

, and you would

20:04

hope but obviously not

20:06

that there would be . Not

20:08

only would you have people like Ms Sharma and Mr Eby

20:11

both are lawyers would reflect upon this

20:13

and realize , with not much consideration

20:15

, this is not a good idea . You would

20:17

hope that they would be getting that sort of professional advice

20:20

as well . You know there are

20:22

hundreds of lawyers who work for the government . You

20:24

would just hope that somebody

20:26

would think carefully about this and

20:29

, if they haven't realized it , give them that advice . This

20:31

is a bad idea , and just

20:33

think about the implications of this going

20:35

forward when you're not here anymore and

20:38

your view of whether the people doing this , or

20:40

the rules or the goals or the objectives are

20:42

good or bad are going to be radically

20:45

different when you're on the other side of some of these things

20:47

and suddenly the goal or objective is completely

20:49

contrary to what you think is obviously the right

20:51

thing to do , and then you're going to go

20:53

and look for some help and you may find none available

20:55

. So this is really

20:58

problematic and I hope the public sees

21:00

that and thinks about this and realizes

21:03

that the people who will lose

21:05

under this sort of a regime are

21:08

anyone who might find

21:10

themselves at some point in conflict with the government

21:12

. That's really what this would result in a loss

21:15

of .

21:15

Michael Mulligan from Mulligan Defense Lawyers . A lot of time

21:18

, but a very important topic and very important remarks

21:20

and analysis , michael , thank you . Thank

21:23

you so much . Always a pleasure to be here , all right

21:25

, legally speaking , during the second half of our second

21:27

hour every Thursday here on CFax 1070,

21:30

. I'm going to think very carefully about what Michael has

21:32

told us there . I

21:34

am very concerned about this legislation

21:36

and I hope that anybody who can do anything about it

21:39

that is listening to me right now does everything

21:41

that they can in terms of urging the government

21:43

to reconsider this matter , because I just don't

21:45

think it would be helpful , regardless of what happens

21:48

.