Evidence of meeting #48 for Finance in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was lawyers.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Warren Law  Senior Vice-President, Corporate Operations, and General Counsel, Canadian Bankers Association
Douglas Timmins  Assistant Auditor General, Office of the Auditor General of Canada
Elizabeth Tromp  Director General, Charities Directorate, Legislative Policy and Regulatory Affairs Branch, Canada Revenue Agency
Brian Fox  Regional Vice-President Canada, Western Union
Jean-Pierre Bernier  General Counsel, Canadian Life and Health Insurance Association Inc.
Denis Meunier  Director General, Enforcement and Disclosures Directorate, Compliance Programs Branch, Canada Revenue Agency
King  
Nicolas Burbidge  Senior Director, Compliance Division, Office of the Superintendent of Financial Institutions Canada
James Varro  Policy Counsel, Anti-Money Laundering Committee, Federation of Law Societies of Canada
Ron Skolrood  Chair, National Constitutional and Human Rights Law Section, Canadian Bar Association
Tamra Thomson  Director, Legislation and Law Reform, Canadian Bar Association
Lawrence Boyce  Vice-President, Sales Compliance and Registration, Investment Dealers Association of Canada
Jerahmiel Grafstein  Chairman, Standing Committee on Banking, Trade and Commerce, Senate

1:20 p.m.

NDP

Judy Wasylycia-Leis NDP Winnipeg North, MB

Thank you, Mr. Chairperson, and thanks to all of you on the panel.

I'll start with Senator Grafstein. I've been asking some of the previous witnesses about whether all the recommendations of your report are in the bill. I gather there are some significant differences.

One issue is the question of including dealers in precious metals and stones and jewellery within the law. I think the minister feels satisfied that this is in regulations. Someone this morning--I forget who it was--said the reason is that it's such an undeveloped area for the government to get a handle on that they're not ready to put it in the bill. Do you buy that, or do you think we could have done it?

1:25 p.m.

Chairman, Standing Committee on Banking, Trade and Commerce, Senate

Jerahmiel Grafstein

I don't want to prejudge that. We felt this should be legislated. If the government has very good reasons to show it shouldn't be at this time, we'd be open-minded about that. Quite frankly, I think you have to be satisfied about the substance of what they're saying, as opposed to it being just a comment. If in fact you decide not to legislate, but rely on regulation, I would assume you have to be satisfied that what the government is saying does have some merit. I don't have the answer to that. We haven't taken any testimony to understand the difference.

Why isn't it important to wrap your mind around this and send a message to the industry to say--and I'm sure they would welcome this--here are the guidelines? In my view, the guidelines are best at this stage, as a measure in legislation, or at least as an indication that the regulations will be stiff.

We're open-minded about that. We want to know more about it; we don't know much about it. We're bringing a whole scope of activity into a regulatory or legislative net. I'm not suggesting that what the government is saying is right or wrong; we just haven't had any evidence to suggest which way to go.

We concluded that there should be some legislation, but we're open-minded about that. We'll wait to see what you do when it comes to our place.

1:25 p.m.

NDP

Judy Wasylycia-Leis NDP Winnipeg North, MB

Thank you.

Let me go to one other area that you touch on, and I would also like the comments from the law societies and the Bar Association, and that's the question of some sort of reporting by lawyers.

I know the Auditor General felt strongly about having something in this whole legislative framework, notwithstanding the court decision and the lawyers' exemption, that there might be some way to have some sort of reporting through this legislation. Do you think that's possible? Do you see that contrary to everything you fought for? Or is there some way to accommodate that concern that we cover ourselves off, some balancing of it?

Let me start with James, Ron, or Tamra.

1:25 p.m.

Policy Counsel, Anti-Money Laundering Committee, Federation of Law Societies of Canada

James Varro

As you know, lawyers are exempt in this bill from the suspicious and prescribed transaction reporting requirements. What I mentioned in my presentation was that there is a regime in place, however, to deal with the issues that those reports were intended to address, in the federation's view, and that is the no-cash rule, as we call it, which was adopted by the federation and implemented by all the law societies in Canada.

I would like to clarify one thing Mr. Skolrood said. These rules are actually in bylaws and regulations pursuant to the various law society acts in each province in the country. So they're executive legislation, they're not simply rules of conduct, although the concepts are reflected in the rules of conduct of the law societies.

Under these rules, lawyers are prohibited from receiving the cash amount of $7,500 or more from a client or a third party. In this way, the law societies are effectively regulating the flow of cash through lawyers. They are not permitted to take it. So as I said, there is a higher standard actually applicable to the legal profession than simply having them report a large cash transaction of $10,000 or report a suspicious transaction. They cannot take the money.

In our view, there is no need for a reporting regime, certainly with respect to suspicious transactions, for all the reasons that were argued in the constitutional challenge.

Now, there's a second part to this, of course, and that's the client identification verification requirements. We are continuing in our discussions with the Department of Finance on an appropriate regime for lawyers, because we understand that lawyers will be included, or are supposed to be included, as reporting entities under the regulations that are coming forward. So this is the nature of our discussion. We have not yet seen the regulations, but we'll look at them with interest.

1:25 p.m.

NDP

Judy Wasylycia-Leis NDP Winnipeg North, MB

Senator Grafstein, do you have anything to add on that?

1:25 p.m.

Chairman, Standing Committee on Banking, Trade and Commerce, Senate

Jerahmiel Grafstein

Well, I agree with everything the last witness said. As a QC and a lawyer, I'm subject to those same rules and regulations as well.

I guess my concern--and I can't wrap my mind around how to come up with an accommodation that would be appropriate--is suspicious transactions that lawyers deal with. I think client identification is a very important part of it. Let me give you the example.

A real estate transaction of a large size, which we now understand anecdotally may be the subject matter of a money laundering or terrorist laundering mechanism, takes place. Cash appears, from who knows where, in certified cheques and so on. What responsibility does the lawyer have to go beyond just receiving inordinate amounts of money from sources or places that are unusual? That's a very difficult question. It's super difficult. As a practising lawyer, I'd find that difficult as well, because we tend to just do the transactions and so on.

I don't know the answer to that, I really don't, but I am confident that the lawyers association, when they're pressed to look at these issues....

And I'll give you another one: suspicious life insurance packages. These are all big gaps in the oversight. The question is that some of them flow through lawyers and some of them flow through insurance companies directly.

How do you get at this? I don't know. We know anecdotally that this could be a large gap. And the question is this: how do we do that without interfering with assisting the client? I don't have the magical answer to that, but I would hope the lawyers would look at those questions and see if they can come to grips with it.

1:30 p.m.

Conservative

The Chair Conservative Brian Pallister

Thank you very much, Senator.

We'll continue now with four-minute rounds. Mr. Pacetti.

1:30 p.m.

Liberal

Massimo Pacetti Liberal Saint-Léonard—Saint-Michel, QC

Thank you, Mr. Chairman.

Thank you to the witnesses. It was very interesting, of course.

You're here to give us a hand in trying to deal with this. I agree with you, Mr. Grafstein, that we haven't spent enough time on this. We've a little pressure in terms of time delays. So if any types of amendments you would like to provide to us could be done as soon as possible--

1:30 p.m.

Chairman, Standing Committee on Banking, Trade and Commerce, Senate

Jerahmiel Grafstein

We won't do that. The Senate will not do that.

1:30 p.m.

Liberal

Massimo Pacetti Liberal Saint-Léonard—Saint-Michel, QC

Not the Senate, but there are other witnesses at the table.

I have a quick question. In terms of what you were discussing, Mr. Varro, you said that the restrictions regarding cash and other restrictions that lawyers have in the legislation are more severe than if we actually included the legal profession in the legislation. But that seems to be contradictory. How does that work? Either you're in or you're not.

1:30 p.m.

Policy Counsel, Anti-Money Laundering Committee, Federation of Law Societies of Canada

James Varro

Well, the profession is exempt from the reporting requirements by virtue of this bill. What I said was that the lawyers are subject to their own regulatory regime by virtue of their membership in the law societies, which have been granted self-regulatory authority pursuant to provincial law. Under those regulations, they cannot accept cash in the amount of $7,500.

1:30 p.m.

Liberal

Massimo Pacetti Liberal Saint-Léonard—Saint-Michel, QC

But how do you substantiate that? Do you say you're not subject to this piece of legislation, and it's self-governance, and you'll decide at what point you will audit yourself and at what point you'll put in sanctions? How do those self-regulatory conditions that you impose upon yourself help with this type of legislation? We haven't even imposed the legislation, or the amended legislation, and we're already asking for exceptions.

1:30 p.m.

Policy Counsel, Anti-Money Laundering Committee, Federation of Law Societies of Canada

James Varro

I should remind you, though, that in the constitutional challenge there was a successful injunction relieving lawyers from the obligation to report, for a number of very important constitutional reasons. That is still pending. Against that, the federation, separately from that, promulgated this rule. It's not a case of lawyers not being subject to the legislation per se. They aren't, but the point is that they are subject to a regulatory regime that is in aid of preventing money laundering, and that is the no-cash rule.

1:30 p.m.

Liberal

Massimo Pacetti Liberal Saint-Léonard—Saint-Michel, QC

I'm simply scared that it's going to present a magnet to your profession that will increase the type of abuse that will go on. It's mainly a beware type of concern that I have. I think it will attract more attention than solve.

1:30 p.m.

Chair, National Constitutional and Human Rights Law Section, Canadian Bar Association

Ron Skolrood

Perhaps I can add to this, if I may, Mr. Varro.

I think what Mr. Varro was saying earlier is this. You led with the question, why is this regime stricter than the legislation? As I understand it, and please correct me if I'm wrong. I think the point was that if lawyers were brought under the legislation, they would be permitted to accept large cash transactions but they would have to report it. The lawyers have said they will go one step further and say you simply can't accept the cash. In some sense, it's taking a proactive stance in that way by preventing this--

1:35 p.m.

Liberal

Massimo Pacetti Liberal Saint-Léonard—Saint-Michel, QC

Fine. Our time is limited, so I want to have this discussion.

Let's say you were to find a lawyer who would accept cash. What would happen? How long would it take for you to discover that? I know there are internal mechanisms that the Bar Association has, but that's done every four or five years and certain things are audited or subject to inspection. How is this going to be self-regulated?

1:35 p.m.

Policy Counsel, Anti-Money Laundering Committee, Federation of Law Societies of Canada

James Varro

Part of the law societies' regulatory regime includes an audit function within every law society, and I can use the Law Society of Upper Canada as an example. We have a department that audits law firms on a rotational basis, so every three or four years every law firm in the province is audited. We have very strict record-keeping requirements. We have an annual report that members are required to file every year, and to attest that they have complied with the no cash rule.

1:35 p.m.

Liberal

Massimo Pacetti Liberal Saint-Léonard—Saint-Michel, QC

That's what I was looking for. Thank you.

1:35 p.m.

Conservative

The Chair Conservative Brian Pallister

Thank you very much.

We'll continue on with Mr. St-Cyr.

1:35 p.m.

Bloc

Thierry St-Cyr Bloc Jeanne-Le Ber, QC

Thank you, Mr. Chairman. This gives me the opportunity to continue with my questions for Mr. Skolrood.

We were discussing earlier the rules that law societies have for governing the conduct of lawyers. I suppose that they must vary from one province to another, unless they are the same everywhere.

Could you provide some more detail about existing provisions? Earlier, you talked of the cash amounts that a lawyer can accept. I would like you to repeat what you said, because I didn’t note all the details. Are there other provisions or is there only one governing cash amounts?

1:35 p.m.

Chair, National Constitutional and Human Rights Law Section, Canadian Bar Association

Ron Skolrood

I wonder if I can defer to Mr. Varro on that who is more familiar with the provincial regulations.

1:35 p.m.

Bloc

Thierry St-Cyr Bloc Jeanne-Le Ber, QC

If I get my answer, I…

1:35 p.m.

Policy Counsel, Anti-Money Laundering Committee, Federation of Law Societies of Canada

James Varro

In addition to the rules prohibiting lawyers from receiving large cash amounts, meaning $7,500 or more, we have a requirement that they keep a cash transactions record. As I mentioned, we have an audit regime that will review the books and records of lawyers. Lawyers are subject to extensive bookkeeping and record-keeping requirements. They must file an annual report every year with every law society. They are required to report the misconduct of another lawyer, which could include, for example, notice of criminal activity or other such conduct.

The rules of professional conduct or codes of professional conduct of each law society will govern the ethical behaviour of lawyers. If lawyers breach those codes, they may be subject to disciplinary action, which includes sanctions from a fine up to disbarment. Also, lawyers are prohibited from engaging in advice to clients that would further a criminal act. And they are guarded against becoming the dupes or tools of unscrupulous clients. These are things that are basically verbatim in our rules of conduct, in every law society.

1:35 p.m.

Bloc

Thierry St-Cyr Bloc Jeanne-Le Ber, QC

You touched on an interesting aspect. I would like to continue on this topic, without meaning to be prejudicial or negative towards lawyers. You do understand, however, that there are members of the public out there who like to think that lawyers might possibly help criminals get around the law or launder money.

I believe that the current legislation prohibits a lawyer from explaining to possible clients how to get around the law, how to not get caught. Are there sanctions in place, if a lawyer should do that, that is, advise someone on how to launder his money? Have lawyers been found guilty of this kind of behaviour?

1:35 p.m.

Policy Counsel, Anti-Money Laundering Committee, Federation of Law Societies of Canada

James Varro

Yes, there are rules. The rule I mentioned is the rule that says lawyers cannot aid in a criminal act by a client. I'm paraphrasing now, but that's the gist of it, and every law society has that. I can safely say that lawyers who are found in breach of that would be subject to an investigation, likely a discipline hearing, and sanctions. As I said, the sanctions can go up to disbarment, which means they would no longer be a lawyer.

I'm aware of one recent case in Ontario, in which a lawyer was convicted of money laundering.