Merci. I wish first to thank you for allowing me to do this from a distance. You can see that the weather would not allow me to be physically present, although I would love to be there.
I would also like to say that I'm assuming that our formal brief of February 21, 2013, forms part of your record. My notes are in addition to that brief.
The federation is a national organization which coordinates professional bodies of jurists from the provinces and territories of Canada. It regulates 100,000 of the country's lawyers, and 4,000 notaries in Quebec.
I want to say this very clearly: the federation supports the basic objectives of the bill, but it is concerned by the proposed bill as it relates to the legal profession.
The requirement that lawyers and Quebec notaries report to the government on the affairs of their clients and on tax transactions on which the legal counsel has provided advice is antithetical to the independence of the legal profession. That is a core principle of Canada's legal system. It is also contrary to the duty of loyalty all legal counsel owe to their clients.
These principles are essential to the effective functioning of our legal system. The Supreme Court of Canada has pointed out in several of its decisions that clients must absolutely be able to speak freely and openly to their legal counsel without fear that he or she will divulge the content of these discussions to the state. This free and open relationship is only possible if the clients can depend on the unconditional loyalty of their legal counsel.
I'm going to quote a very short passage of a judgment by the Supreme Court in Canada v. Law Society of British Columbia 1982. At page 335, it states:
The independence of the Bar from the State in all its pervasive manifestations is one of the hallmarks of a free society.
Later on, it states:
The public interest in a free society knows no area more sensitive than the independence, impartiality and availability to the general public of the members of the Bar and through those members, legal advice and services generally.
If we were to require that the lawyers and notaries of Quebec use the confidential information they have on their clients' affairs to help the government detect tax operations that could be abusive, these lawyers and notaries would become agents of the state.
These very issues are currently before the courts in British Columbia in a case involving the regulations under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. The B.C. Superior Court found the government's attempt to extend those regulations, which includes reporting requirements similar to those contained in the bill before you, unconstitutional. This case is now before the British Columbia Court of Appeal awaiting decision. The case has been pleaded.
There is a simple and direct way of settling the concerns of these organizations which regulate the legal profession, with regard to the bill: amend the bill so as to expressly exempt lawyers and notaries of Quebec from the reporting requirements that apply to them in their capacity as legal counsellors, contained in subsection 237(3) of the Income Tax Act . That is very easy to do. You simply have to amend the definition of the word “counsellor”.