Michael Kleisinger,
CC: TWIMC BC Ombudsman : BY MAIL
Law Society of British Columbia
Unauthorized Practice Counsel
[email protected]
Hello and good day. I am Robert Menard, responding as per your request for written communication. If you recall you stated in our phone conversation that I had provided a nuanced perspective of the Legal Profession Act and you asked I put it in writing for your further examination and consideration. I am seeking clarification concerning the Law Society’s position on the applicability of the Legal Profession Act. As you are the one in charge of the Unauthorized Practice Division it seems proper to seek this information from you.
The first issue I see is that within the Act there is a section titled ‘Applicability’ which then does not speak about the application of the Act, but shows in part only, where it is not applicable. There is nothing stating that is the only time it is not applicable, and mentioning it does not automatically create applicability on anyone not mentioned specifically. An unsupported assumption is required to believe that it is generally applicable to all not mentioned.
The Section I refer to states as follows:
Applicability
1.1 This Act does not apply to a person who is both a lawyer and a part time judicial justice, as that term is defined in section 1 of the Provincial Court Act, in the person's capacity as a part time judicial justice under that Act.
Interpreting it to mean that anything not mentioned is included, would be akin to reading a recipe for ‘Sweet Apple Pie’ which states to ‘not use sour apples’ and then assuming that anything which is not sour apples (such as rotten peaches and moldy bananas) may be used. Simply put, there is nothing in that Section which would cause a reasonable person to justify assuming it is generally applicable to all members of the public.
Furthermore, I believe that the meaning of that Section is revealed by looking at the corollary of the statement, found by shifting the position of the adverb ‘not’ in the sentence until the parties it does apply to are revealed. This provides us with this statement:
1.1 This Act does apply to a person who is [both] a lawyer and not a part time judicial justice, as that term is defined in section 1 of the Provincial Court Act, in the person's capacity as a part time judicial justice under that Act.
According to The Supreme Court of Canada, in R. v. Eldorado Nuclear Ltd.; R. v. Uranium Canada Ltd., [1983] 2 SCR 551, 1983 CanLII 34 (SCC)(4th) 193 where Dickson J. (as he then was) wrote for the majority:
Where the only source of the unlawfulness is a statute, however, the analysis is entirely different. If a person commits an act prohibited by statute, and the Attorney General seeks to prosecute for violation of that statute, the preliminary question that must be asked is whether that person is bound by the statute. If not, the person simply does not commit a violation of the statute. The situation is not that the person is immune from prosecution even though there has been an unlawful act; rather, that there has been no unlawful act under the statute. http://www.canlii.org/.../1983canlii34/1983canlii34.html… CanLII - 1983 CanLII 34 (SCC)
This tells us that statutes are not automatically generally applicable and that before charging someone with a contravention of one, that preliminary question must be asked and answered.
I have read many times how the Law Society has secured court orders barring people from engaging in certain actions which are not contraventions of the common law nor the Criminal Code, by pointing to the Legal Profession Act, however, I could not find even one time where the Law Society included that Section in their submissions to the court. I do not believe that it has ever been properly judicially determined.
There is a large problem that arises if one argues that it is generally applicable, and anyone not specifically mentioned is subject to that Act. That is due to the fact that full-time Judicial Justices of the Peace, or those not drawn from the Law Society membership, are not mentioned, and thus would be bound by this Act like any other member of the public. Their duties require them to engage in certain actions mentioned in the Act. If this Act is applicable to them, they simply cannot fulfill their function nor complete their duties.
This creates an insurmountable obstacle to any claim that all JJP’s regardless of where they are drawn, enjoy the same authority, immunity, and independence. This undermines the public's faith and confidence in the justice system and fails some of your Society’s stated duties and objectives.
The only thing that makes sense to me is that the JJP’s drawn from the public are not mentioned, because as members of the public, they were never subject to that Act, to begin with, thus there is no need to specifically exclude them. This is supported by the logical corollary of the aforementioned Section; the title of the Act itself; standards of statutory interpretation; the need for judicial independence and equality among all JJP’s; and as we will see, our basic human rights.
The orders routinely sought by the Law Society under the Legal Profession Act, are generally similar to the following.
THIS COURT ORDERS THAT the Respondent, John Q. Public, until such
time as he becomes a member in good standing of the Law Society of British Columbia,
be permanently prohibited and enjoined from:
(a) appearing as counsel or advocate;
(b) drawing, revising or settling a document for use in a proceeding,
judicial or extra-judicial;
(c) drawing, revising or settling a will, deed of settlement, trust deed,
power of attorney or a document relating to a probate or letters of
administration or the estate of a deceased person;
(d) drawing, revising or settling a document relating in any way to
proceedings under a statute of Canada or British Columbia;
2
(e) doing any act or negotiating in any way for the settlement of, or
settling, a claim or demand for damages;
(f) agreeing to place at the disposal of another person the services of a
lawyer;
(g) giving legal advice;
(h) offering to or holding himself out in any way as being qualified or
entitled to provide to a person the legal services set out in (a)
through (g) above;
There are many cases on the Law Society’s website where orders such as this one secured in the Supreme Court. The problem is that the applicability of the Act has never been judicially determined, and all these orders were under that Act and granted upon the assumption that the Act is generally applicable. Additionally, when one looks at the list of prohibited activities, one finds they all fall under one of four basic human rights. These are:
The right to associate or not, as we see fit.
The right to express ourselves, verbally and in writing and other means of expression.
The right to secure justice for ourselves directly or indirectly, for our communities, and for others.
The right to operate and act under lawful contract.
According to orders in the form above, our right to do the first three is suddenly rendered a contravention of the Act if we do them under contract or fail to secure an association with your private organization. I know of no function in law, save agreement or contract, that would render one human right no longer a right because of the exercise of another human right, especially when that last right is the right to contract. But that is the foundation upon which all these orders operate. I would like to remind you that when the foundation fails, so does the house.
It is my belief that all persons have an equal right to seek justice in the courts of British Columbia and Canada and that the present interpretation of the Legal Profession Act as relied upon by the Law Society of British Columbia hinders, obstructs and frustrates those rights. It seems that the Law Society believes that the courts of British Columbia are theirs and theirs alone, and only members of the Law Society can enjoy full, complete and open access thereof. The demand that an association is accepted prior to exercising all of the other rights is a contravention of our human rights.
From my perspective, what the Act has done is taken a set of rights, grouped them together, and due to the Applicability Section of the Legal Profession Act, created a new definition (to which only their members agree), of what is and is not practicing law, and then claimed that only their members can engage in all those rights simultaneously. When members of your Society or those subject to the Act engage in these actions, they are ‘practising law’. This is a result not so much of their actions, but of their association. When members of the public not subject to the Act engage in the exact same actions, they are merely exercising their rights under the law. The Law Society creating a definition to describe the simultaneous exercise of certain human rights does not grant that Society the power to restrict the exercise of those rights to its members alone.
This brings me to Section 3 of the Legal Profession Act, which states:
Object and duty of society
3 It is the object and duty of the society to uphold and protect the public interest in the administration of justice by
(a) preserving and protecting the rights and freedoms of all persons,
(b) ensuring the independence, integrity, honour and competence of lawyers,
(c) establishing standards and programs for the education, professional responsibility and competence of lawyers and of applicants for call and admission,
(d) regulating the practice of law, and
(e) supporting and assisting lawyers, articled students and lawyers of other jurisdictions who are permitted to practice law in British Columbia in fulfilling their duties in the practice of law.
I do not believe that because you have been given the duty to preserve and maintain the rights of all persons, that said duty is yours exclusively. I believe that all persons have a duty to preserve and protect their rights, if not for themselves, then at least for future generations.
Furthermore I hold that the position taken by the Law Society in having the Act used as generally applicable is a breach of the stated object and duty of the Act, and does not uphold and protect the public interest in the administration of justice, but instead seeks to monopolize it for the benefit of the Law Society and its members, and at the expense of the public’s interest in the administration of justice. Regulating lawyers can serve the public; regulating the public as if they were all lawyers does not.
I hold that among the rights you have a duty to preserve and protect includes the right to associate, express our beliefs, to contract, and to seek justice in the existing courts for ourselves or others. I believe that we have the right to engage in these actions without license or permission, and to exercise those rights simultaneously. According to the Law Society however, we can have the right to some, but not all simultaneously. Unless we join their Society.
I also hold that every time the Law Society seeks to use the Legal Profession Act against members of the public who are not lawyers, they are contravening our human rights and committing a fraud upon the courts. I believe that any and all orders restricting our rights rely upon a mistaken assumption, and are void ab initio, and will be seeking to have them ruled unconstitutional, contrary to our human rights, and quashed.
The way I see it, if the actions themselves are criminal, then people should be charged under the Criminal Code, but what we have here is the Law Society fraudulently securing court orders, and then if someone contravenes those orders, facing charges of contempt of court for breaching those arguably improper and unlawful orders.
This offends the very purpose of the justice system, as it bypasses examination of the applicability of the Act, and replaces it with court orders, and thus will naturally erode and eventually destroy public faith and confidence in the justice system.
Let us discuss the Human Rights Code and the Human Rights Tribunal.
According to that Code, I find two very salient points. The first is that the public is perfectly free to engage in all the actions which are apparently forbidden under the Legal Profession Act, (if Section 1.1 is ignored) and which are subject to the court orders secured by The Law Society. It is almost like they realize these are all basic human rights, and they could not do their jobs properly if they started by denying such fundamental rights.
The second is that The Human Rights Code clearly, specifically and unequivocally prevails over any and all other Statutes. Including the Legal Profession Act. This is found in Section 4.
To argue that you need to protect the public from people who are not lawyers exercising their rights, due apparently to them not being able to ‘understand the law’ or properly interpret statutes, is destroyed by the realization that the Law Society has been either purposely and willfully ignoring Section 1.1 of the Legal Profession Act which establishes the applicability of the Act itself, or has incorrectly interpreted it. The fact that they have never presented that Section to the Court for determination, suggests that they desire to have it ignored.
The other thing I found interesting was this statement made by Dan Abrahams, Manager, Compensation Fund, Law Society of Upper Canada during a conference.
“Canada’s lawyers belong to a truly self-regulating profession. That is, they are regulated neither by the government nor by the courts. They are creatures of statute, which of course is open to amendment, but for the most part, they operate independently of lawmakers. Each of Canada’s 10 provinces and three territories has its own regulator (Quebec, in fact, has two). The various provincial and territorial regulators strive for harmonization and consistency, as well as more fluid mobility, through their membership in a national organization (which is not a creature of a statute), the Federation of Law Societies of Canada.”
I find it ironic that if the public were to form a Society for the Protection Human Rights, and claimed that they were not regulated by either to government or the courts, they would be labelled by members of the Law Societies and the government as extremists, Organized Pseudo Commercial Argument adherents, Freemen, or ‘anti-government’. But here the Law Societies are doing the exact same thing. Do you see the irony with that position?
The way I see it, we have two choices, we can come to an agreement, and I can seek to have it enforced, or I can bring The Law Society before the Human Rights Tribunal, for a determination concerning the Applicability of the Legal Profession Act, and if it is found to not be generally applicable, the lawfulness of any orders secured upon the false assumption of it being generally applicable must be ruled unlawful, at least according to the Human Rights Code.
Justice must not only be done, but be seen to be done, and what is seen now, are members of the Law Society seeking orders from judges who are past members of the same society, which hinder, obstruct and destroy our basic human rights under the common law, for the benefit of the Law Society. The monopoly thus created negatively affects the public’s faith and confidence in the administration of justice and perverts its course.
If you have to get a court order barring someone from engaging in actions and then charge them with contravention of that order to stop them from doing so, that suggests the actions themselves are not fundamentally unlawful, otherwise, you could simply charge them under the Act under which you secured the orders. No court order would be required. So why does the Law Society take this path?
It certainly isn’t due to the compassion of the Law Society. I believe the reason is that any charges otherwise brought directly under the Act, would be easily defeated by any responsible defence attorney, as they would have a fundamental duty to raise the issue of the applicability of the Act. So the Law Society apparently cheats, ignores the Section dealing with Applicability, and failing to even mention it in court, gets the court to operate upon a false assumption. The kicker is they have a duty to bring this Section to the attention of the Courts, and by not doing so, fail in their duty to preserve the rights of all persons, and in their duty to uphold and protect the public interest in the administration of justice, and they allow the court to operate upon a false assumption, protecting the Judges from liability.
In the end, our human rights are being infringed by the Law Society and the Superior Court, and the Human Rights Tribunal must be the place to find the remedy, as justice will not be seen to be done if we have to go back to the Superior Court.
As I said I see two choices for your organization. These are:
We agree that The Legal Profession Act is not nor has it ever been generally applicable, and all orders secured while operating upon that assumption we improperly secured, and then, go to the Supreme Court with this new found perspective, and have all previous improper orders based upon this incorrect assumption quashed. You inform all those against whom you have secured said orders that they are no longer bound by them, and finally make proper restitution for the damages you caused by failing to fulfill your duties. Or…
We meet before the Human Rights Tribunal, where we seek their guidance on these matters, or you can publicly claim that you are not bound by that Tribunal, nor governed or regulated by the Government, the Courts, or common law. I think that would be rather challenging for you, as there is nothing in the Human Rights Code exempting the Law Society or its members from action under it, and such a position would likely be deeply reprehensible to members of the public.
I hope you see this letter as an opportunity to better fulfill your fundamental duties to preserve and protect the rights of all persons, and to uphold and protect the public interest in the administration of justice. I believe the best course of action for achieving these goals in this situation, is to realize that the Section dealing with the Applicability of the Act must be interpreted as not being generally applicable. The other interpretation denies our rights and does not protect the public’s interest in the administration of justice so much as it does the Law Society’s.
Upon reviewing this argument, and speaking with your superiors, please respond in writing via [email protected] or if you prefer you can phone me at the number on file. I reserve the right to record all calls however. I do not think it should take more than a few days to examine these arguments and decide if you wish to agree with the interpretation presented herein, or if you prefer to seek the determination of a judicial or quasi-judicial tribunal. If I do not hear from you within 30 days however, I must assume that you do not wish to formally agree to this interpretation, nor argue against it, for you will have chosen to do neither.
Sincerely,
Robert Menard