The Supreme Court of Canada has struck down a law that would have threatened solicitor-client privilege.
Money laundering law found unconstitutional by high court in recent ruling
The Supreme Court of Canada has ruled that a federal law that could have exposed lawyers’ offices to warrantless searches is unconstitutional, according to the Globe and Mail. The law, part of anti-terrorism legislation passed in 2001, was designed to combat money laundering by criminal groups. However, legal professionals and civil rights activists have long complained about the constitutionality of the law, saying that it significantly undermined the right to confidentiality between lawyers and their clients.
Money laundering law
The law was first introduced in 2001 following the September 11 attacks and then expanded in 2006. The legislation mandates that professionals, such as lawyers, insurance brokers, and accountants, who move money for clients must maintain records of such transactions and make sure that the client is not laundering money. Non-compliance could result in a five-year prison sentence and $500,000 fine, according to the Financial Post.
The law also allowed the government to search lawyers’ offices and examine and copy documents up to the point that the lawyer actually asserted that such documents were protected by solicitor-client privilege. Such broad state power was a fundamental threat to confidentiality between lawyers and clients, critics argued, especially given that to assert privilege the lawyer would have to reveal the client’s name and address, information that could also be considered confidential in some cases.
The court ruled that applying the law to lawyers was unconstitutional since the charter protects solicitor-client privilege. Critics of the law complained that it left lawyers acting as "agents of the state" who could no longer guarantee that clients’ information would be kept confidential. The court also ruled that lawyers have a "duty of commitment to their clients’ cause," a ruling that will make it especially difficult for the state to interfere with solicitor-client privilege in the future. The ruling does not do away with the law outright, but it does make lawyers exempt from it.
Two lower courts in British Columbia had already ruled that the law was unconstitutional and the government had agreed to delay enforcing it until the Supreme Court finally settled the issue. In addition to concerns about its constitutionality, law societies said the law was unnecessary since current ethical rules and the criminal code already prevent lawyers from engaging in criminal activities for clients.
This recent ruling upholds a fundamental pillar of the criminal justice system and helps ensure that lawyers can offer their clients the best possible representation. For anybody currently facing a criminal charge, this ruling should serve as a reminder of why a criminal defence lawyer is so important. An experienced lawyer can help to uphold his or her clients’ rights and fight with their best interests in mind when dealing with a criminal charge.
Keywords: Supreme Court , reinforces solicitor, client privilege, Money laundering , Confidentiality upheld, Criminal defence, agents of the state