Outgoing CBA president Brian Tabor, Supreme Court Chief Justice Beverley McLachlin, keynote speaker U.S. Attorney for the Northern District of Illinois Patrick Fitzgerald and other dignitaries on the dais at the opening ceremony of the CBA's annual meeting in St. John's Aug. 13. Click here to see full sized version.

The fault-lines dividing the organized Bar and the Conservative federal government on key justice issues appeared almost instantly during Justice Minister Vic Toews’s inaugural speech to the Canadian Bar Association’s annual conference.

The day before, in a hard-hitting swansong address, outgoing association head Brian Tabor of Halifax deplored several of the new regime’s flagship policies. He warned of “teeming prisons” from the planned creation of more mandatory minimum prison sentences, and described as a “new low” for judicial independence the Tories’ revolutionary move to televise Parliamentary questioning of Supreme Court of Canada nominees.

“It wouldn’t be the first time a lawyer was wrong,” an unruffled Toews remarked as he exited a polite 35-minute question-and-answer session with Canadian Bar Association members after his speech Aug. 14.

In his impassioned remarks, Tabor praised the venerable 34,000-member association for standing up for the rule of law. He cited CBA fights against such encroachments on civil liberties and threats to privacy in the wake of 9-11 as security certificates, and the recent decision of the country’s largest Internet provider to turn over its users’ data to the government, upon request. He said the association is also spearheading challenges to the chronic underfunding of legal aid and the growing numbers of no-fault insurance schemes that rob injured plaintiffs of fair compensation and their day in court.

The blame for such developments can’t be laid at the door of any particular political party or ideology, Tabor noted.  “Are we prepared to live in a country of secret trials, indefinite detentions, electronic eavesdropping, politicized judges, compromised lawyers, teeming prisons, and courtroom barriers to the poor and critically injured?” he asked. “Because I can promise you, if the CBA and other like-minded organizations do not speak out now, that will be our generation’s legacy. This association has stood up and said ... we have a different vision of Canada and we will fight for it.”

Toews comments to the CBA seemed to do little to quell the fears of many in the audience that the government plans to axe the federal Court Challenges program, and to emulate the predecessor Liberals in trying to force lawyers to report confidential client information to FINTRAC — a fear sparked by Finance Minister Jim Flaherty’s public vow last month to step up Canada’s anti-money laundering and anti-terrorism financing measures.

Toews, a one-time attorney general of Manitoba who as the Conservatives’ outspoken justice critic regularly turned his guns on judges and lawyers, was unapologetic about his differences with his profession.

The bar association’s views about Parliamentary vetting of Supreme Court nominees are at odds with positive public feedback about the historic hearing that culminated in Supreme Court Justice Marshall Rothstein’s widely-praised appointment earlier this year, he said. 

Toews told The Lawyers Weekly, “What it has done is exactly what we wanted that process to do – to give ordinary people – not just lawyers and judges ... an insight into the workings of the court, and how best to do that than actually having one of the nominees there? Without exception people have come up to me and said ‘that is a wonderful process’.”

Toews pointed out that even Supreme Chief Justice Beverley McLachlin acknowledged in this year’s annual address to the CBA that the Rothstein hearing gave “Canadians an opportunity to get to know more about the respective roles and obligations of government and the judiciary, and maintained the public’s confidence in the appointment process.”

“So it appears that even among the members of the legal society, there seem to be some differences of opinion on that,” Toews observed.

Additional differences between the CBA and Toews came to light when audience members tried to pin him down about whether the new government will use federal judgeships to reward its supporters.

Toews was clear. The Tories have no more inclination than did the predecessor Liberals of implementing the Bar’s proposal for a “cooling-off” period that would bar politicians and partisan employees from the federal Bench for two years after they leave the political arena.

“I wouldn’t want to make a blanket rule that someone involved in politics yesterday couldn’t be a judge tomorrow,” the new justice minister explained. Political association should not be a “disqualifying factor,” he said.

Toews said “pressing concerns” to fill 43 current federal judicial vacancies, some dating back to early 2005, make “wholesale changes” to the appointment process impracticable. He also said he accepts that the present process can be improved. “Are we committed to making changes?  Yes,” he said. “Exactly what those changes will be will be a matter of further consultation, including with members of the CBA.”

To the chagrin of many, Toews appeared to confirm a suggestion by Edmonton’s Scott A. Watson, president of the CBA’s Alberta branch, that the government plans to bring forward new measures – in the name of combating money laundering and terrorism financing – that would require lawyers to “rat out” (Watson’s words) their clients by disclosing confidential information to federal authorities. This despite a successful legal attack on previous regulations by the Federation of Law Societies and the CBA.

“The legislative response that will come will attempt to balance both the obligations that lawyers have to society and to their clients,” Toews informed the audience.

“I understand the obligation you have to clients. I also understand the broader obligation that lawyers have to society,” he stressed. He alluded to disturbing allegations” in a new book on organized crime in Canada that lawyers were involved in providing a smokescreen for the secret meetings of a crime family.

“Now I think that all of us would agree if that assertion is true, that would be going beyond what lawyers in fact should be doing on behalf of their clients,” Toews said. “So I think that there is a middle ground that we can take to ensure that you can respect your professional obligations and still fulfill your obligations to the justice system.”

Watson told The Lawyers Weekly the CBA wanted his question from the floor to remind Toews that the Bar remains “terribly concerned” about, and determined to fight, any incursions on solicitor-client confidentiality. The justice minister’s reply was worry, he said. Solicitor-client confidentiality is “an awkward thing, to try to strike a ‘balance’ with. It’s sort of an on-off switch. You either have confidentiality for the client or you don’t. Confidentiality has to be absolute.”

On the issue of financing for the Court Challenges program (which comes under the jurisdiction of the Heritage Minister because the Attorney General of Canada is the main defendant in Charter challenges) Toews said, “I don’t have any knowledge about what the government’s intentions are in respect of that program.”

But he hastened to add that he sees the program as it exists presently as insufficiently accountable to Parliament because solicitor-client privilege has been used to shield from public disclosure what the criteria are for funding, who is being funded, and for what purpose. “At this point I certainly don’t have the ability to say whether the program has been meeting its objectives or not, because quite frankly that information isn’t accessible.”

He added: “simply because a program is being reviewed doesn’t mean that it’s on the chopping block.”

Toews also indicated his government is considering: how children under age 14 who engage in lawbreaking  might be brought within the purview of youth courts, perhaps via a “treatment-focused” mandate, even though those children are too young to be prosecuted under the current law.