Federation of Law Societies – B.C. Supreme Court prohibits the application of ss. 237.3 and 237.4, pending the determination of their constitutional scope, to legal advisors

In the underlying constitutional challenge, the Federation sought a declaration that ss. 237.3 and 237.4 were of no force or effect to the extent they applied to legal professionals, in their role as such, based on the reporting requirements in those sections contravening ss. 7 and 8 of the Charter. On this application for an interim injunction, the Federation sought to exempt legal professionals from the operation of ss. 237.3 and 237.4 until the constitutional challenge was determined on the merits.

Before agreeing to grant the injunction, Warren J found that she was:

satisfied that the Federation has established at least two types of irreparable harm that would result if the injunction sought is not granted:

• if confidential or privileged information is disclosed as a result of legislation that is ultimately found to be unconstitutional, individual clients will be irreparably harmed by the loss of professional secrecy, which cannot be undone, and the prospect of that occurring will have a chilling effect on the ability of individual clients to consult with their lawyers fully and freely pending a final determination of the constitutional challenge; and

• the potential for the unconstitutional reporting of confidential and privileged information, and the conflicts of interest between lawyers and their clients that will arise as a result of potentially unconstitutional legislation, would irrevocably damage the solicitor-client relationship and harm the public interest by undermining the public’s confidence in an independent bar.

Neal Armstrong. Summary of Federation of Law Societies of Canada v. Canada (Attorney General), 2023 BCSC 2068 under s. 237.3(2)(c).