Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869
David Morley Pearlman Appellant
v.
The Manitoba Law Society Judicial Committee Respondent
and
The Attorney General for Ontario, the Attorney
General of Quebec, the Attorney General of
Manitoba, the Attorney General of British
Columbia and the Attorney General for
Saskatchewan Interveners
Indexed as: Pearlman v. Manitoba Law Society Judicial Committee
File No.: 21671.
1991: May 7; 1991: September 26.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.
Barristers and solicitors ‑‑ Discipline ‑‑ Costs ‑‑ Law Society Act providing for awarding of costs against lawyer found guilty of professional misconduct ‑‑ Whether provision creates built‑in apprehension of bias since those judging the hearings will be perceived to have a pecuniary interest in the outcome ‑‑ Whether provision infringes s. 7 of Canadian Charter of Rights and Freedoms ‑‑ Law Society Act, R.S.M. 1987, c. L100, s. 52(4).
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Law Society Act providing for awarding of costs against lawyer found guilty of professional misconduct ‑‑ Whether provision creates built‑in apprehension of bias since those judging the hearings will be perceived to have a pecuniary interest in the outcome ‑‑ Whether provision infringes s. 7 of Canadian Charter of Rights and Freedoms ‑‑ Law Society Act, R.S.M. 1987, c. L100, s. 52(4).
Constitutional law ‑‑ Charter of Rights ‑‑ Trial within a reasonable time ‑‑ Disciplinary proceedings against lawyer ‑‑ Whether s. 11(b) of Canadian Charter of Rights and Freedoms applies.
The provincial law society took disciplinary proceedings against appellant, a lawyer, on three counts of conduct unbecoming a barrister and solicitor. Under s. 52(4) of the provincial Law Society Act, the costs of an investigation into professional misconduct can be awarded against a lawyer if he or she is found guilty by respondent judicial committee. The Court of Queen's Bench dismissed appellant's application for prohibition. It found that there was no laches or unreasonable delay since the society had proceeded with the charges with reasonable dispatch. Section 11(b) of the Canadian Charter of Rights and Freedoms, which guarantees the right to be tried within a reasonable time, did not apply. Appellant's submission that the proceedings against him were contrary to natural justice and the Charter in that the law society had a pecuniary interest in finding him guilty was also rejected. The Court of Appeal, in a majority decision, affirmed the judgment. The constitutional questions before this Court queried whether s. 52(4) of the Law Society Act infringes s. 7 of the Charter.
Held: The appeal should be dismissed.
Even assuming without deciding a deprivation of a s. 7 interest in this case, s. 52(4) of the Law Society Act does not contravene the principles of fundamental justice.
In the administrative law context, principles of fundamental justice include the rules of natural justice, which in turn require that the members of the tribunal be impartial and disinterested. Situations where the decision‑makers have or are perceived to have a pecuniary interest in the outcome of the hearing before them could place their impartiality in question. The appropriate test is the reasonable apprehension of bias test as formulated in Old St. Boniface Residents Assn. Inc. v. Winnipeg (City).
The self‑governing status of the professions, and of the legal profession in particular, was created in the public interest. A large part of effective self‑governance depends upon the concept of peer review. If an autonomous law society is to enforce a code of conduct among its members, a power to discipline its members is essential.
The impugned costs provision does not create an apprehension of bias in a reasonably well‑informed person that would taint the law society's disciplinary proceedings. The costs which stand to be recouped are in no sense "profits" or "gains", but are a direct reimbursement for expenses previously incurred in an investigation. Any pecuniary interest the members of the judicial committee might have is far too attenuated and remote to give rise to a reasonable apprehension of bias. There is no personal and distinct interest on their part since costs recouped pursuant to s. 52(4) become the property of the law society as a whole, and in no way accrue to the individual committee members. Finally, even if all the recouped costs were systematically and directly applied so as to reduce bar fees, it would be unreasonable to conclude that this would lead to a likelihood of bias in committee members, since the reduction would amount to a minuscule fraction of the practising fees.
The allegations of unreasonable delay and laches should be dismissed; once aware of appellant's conduct, the society acted with reasonable dispatch. Section 11(b) of the Charter does not apply to this case, which involves a disciplinary matter of a regulatory nature that does not have true penal consequences.
Cases Cited
Applied: Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170; referred to: Bateman v. Association of Professional Engineers of Manitoba (1984), 28 Man. R. (2d) 264; R. v. Wigglesworth, [1987] 2 S.C.R. 541; R. v. Kalanj, [1989] 1 S.C.R. 1594; Re Law Society of Manitoba and Savino (1983), 1 D.L.R. (4th) 285; R. v. Beare, [1988] 2 S.C.R. 387; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Valente v. The Queen, [1985] 2 S.C.R. 673; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; R. v. Lyons, [1987] 2 S.C.R. 309; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; McAllister v. New Brunswick Veterinary Medical Association (1986), 71 N.B.R. (2d) 109.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7, 11(b).
Law Society Act, R.S.M. 1987, c. L100, ss. 6-13, 36(a), (n), (o)(xi), (t), 52(1), (4).
Rules of the Law Society of Manitoba, Rules 11(1), (3), (5)(b), 19(13), 22(13)(e).
Authors Cited
de Smith, S. A. de Smith's Judicial Review of Administrative Action, 4th ed. By J. M. Evans. London: Stevens & Sons, 1980.
Evans, J. M. "The Principles of Fundamental Justice: The Constitution and the Common Law" (1991), 29 Osgoode Hall L.J. 51.
Ontario. Professional Organizations Committee. The Report of the Professional Organizations Committee. Toronto: Ministry of the Attorney General, 1980.
APPEAL from a judgment of the Manitoba Court of Appeal (1989), 59 Man. R. (2d) 255, [1990] 1 W.W.R. 178, 62 D.L.R. (4th) 681, 48 C.R.R. 342, affirming a judgment of the Court of Queen's Bench (1988), 51 Man. R. (2d) 151, [1988] 3 W.W.R. 277, 49 D.L.R. (4th) 42, dismissing appellant's application for prohibition. Appeal dismissed.
Sidney Green, Q.C., for the appellant.
Jannine LeMere, for the respondent.
Lori R. Sterling, for the intervener the Attorney General for Ontario.
Monique Rousseau, for the intervener the Attorney General of Quebec.
Donna J. Miller, for the intervener the Attorney General of Manitoba.
George H. Copley, for the intervener the Attorney General of British Columbia.
Graeme G. Mitchell, for the intervener the Attorney General for Saskatchewan.
//Iacobucci J.//
The judgment of the Court was delivered by
Iacobucci J. -- This appeal primarily concerns the internal disciplinary proceedings of the Law Society of Manitoba, the professional body to which all lawyers in that province belong. More specifically, the appellant, Mr. D. M. Pearlman ("Pearlman"), attacks, in his principal argument, a feature of those proceedings whereby the costs of an investigation into professional misconduct can be awarded against a lawyer if he or she is found guilty by the respondent Judicial Committee of the Law Society. He argues that this provision of the Law Society Act, R.S.M. 1987, c. L100, creates a "built-in" apprehension of bias, since those judging the disciplinary hearings will have, or will at least be perceived to have, a pecuniary interest in the outcome and therefore his rights under s. 7 of the Canadian Charter of Rights and Freedoms will be violated. Pearlman also raises a number of other issues in support of his position.
Facts
Pearlman, a lawyer, was the owner of several properties which were the subject of orders made by the City of Winnipeg requiring that certain repairs and improvements be made to the houses located thereon. Pearlman objected to the manner in which various inspectors employed by the City were dealing with his property. In a series of letters, Pearlman stated his position and indicated the remedies which he intended to pursue, including resort to the remedies available under the Criminal Code and taking the matter up with the Attorney General with a view to having a charge laid against a Mr. Lloyd Kirkham, a building inspector with the City of Winnipeg.
Pearlman commenced a civil action and undertook himself to serve the statement of claim upon Kirkham. An altercation ensued between Pearlman and Kirkham. When the Crown declined to prosecute Kirkham for assault, Pearlman initiated a private prosecution. Kirkham was convicted of the assault but granted an absolute discharge by the trial judge. Pearlman's appeal against sentence and Kirkham's appeal against conviction were dismissed by the County Court. In dismissing Pearlman's application for leave to appeal, the Court of Appeal for Manitoba directed, on October 26, 1979, Pearlman to pay costs in the amount of $1,500.
Although several proceedings have been launched by Kirkham in an attempt to collect the outstanding $1,500, Pearlman has continually resisted payment as it is Pearlman's position that the Court of Appeal order was made without jurisdiction and cannot be enforced against him.
In October 1986, counsel for Kirkham wrote to the Law Society of Manitoba, enclosing a copy of the Court of Appeal decision and advising that the costs had not been paid. The Law Society took disciplinary proceedings against Pearlman, citing him on three counts of "conduct unbecoming a barrister and solicitor" for (i) his failure to pay the costs in question, (ii) writing letters which were "menacing in tone and provocative in nature", and (iii) threatening to bring a criminal or quasi-criminal prosecution in order to seek a civil advantage on his own behalf.
The matter went before the Judicial Committee of the Law Society on the preliminary point of the Society's jurisdiction to proceed with the charges. The Committee having concluded that it did have jurisdiction, Pearlman filed a motion in the Court of Queen's Bench for an order prohibiting the disciplinary proceedings from being brought against him. The motion was dismissed, as was his subsequent appeal to the Court of Appeal for Manitoba.
Judgments Below
Court of Queen's Bench of Manitoba ((1988), 51 Man. R. (2d) 151)
The first issue before Jewers J. was that of delay. He rejected Pearlman's submission that, as the charges dealt with conduct alleged to have occurred in 1977, 1978 and 1979, the respondent Committee was guilty of laches and unreasonable delay in asserting that such conduct was subject to disciplinary measures. He found no evidence that the conduct in question had been drawn to the Law Society's attention until it received the letter from Kirkham's solicitor, and in his view, the record indicated that the Society proceeded with the charges "with reasonable dispatch from the time they learned the facts until the date of the hearing" (p. 155).
Jewers J. was also of the opinion that, at this stage of the proceedings, it could not be argued that Pearlman's rights under s. 11(b) of the Charter had been violated or that such rights might in the future be violated. In his view, s. 11(b) does not apply to disciplinary proceedings before professional bodies unless they involve the imposition of true penal consequences and, in the case at bar, no penalty has yet been imposed.
Jewers J. rejected Pearlman's submission that the proceedings against him were contrary to natural justice and the Charter in that the respondent, which claimed the right to levy costs against him if he were found guilty, had a pecuniary interest in finding him guilty. Jewers J. was of the view that the decision in Bateman v. Association of Professional Engineers of Manitoba (1984), 28 Man. R. (2d) 264 (Q.B.), was distinguishable on the basis that, in that case, the by-law enabling that Association to levy costs was not specifically authorized by statute while the Law Society Act expressly empowers the governing body to order a barrister found guilty of misconduct to pay the costs incurred by the Society in the proceedings. As a result, he found the reasoning in Bateman to be inapplicable to the case at bar.
On the question of whether the charges against Pearlman disclosed unprofessional conduct, or misconduct or conduct unbecoming a barrister and solicitor, Jewers J. was of the view that what constitutes professional misconduct is a matter for the Benchers to determine "as their decision is based on a professional standard which only they, being members of the profession, can properly apply" (p. 156). Therefore, there was only the threshold question before him of whether the allegations, if proved, could reasonably be regarded as professional misconduct. He concluded that the alleged facts, if true, might indeed support such a finding.
Finally, Jewers J. rejected Pearlman's submission that the Society's Discipline Committee, which directed that Pearlman be charged with conduct unbecoming a barrister and solicitor, had "evidenced a demonstrable disposition" against him. The only incident cited by Pearlman in support of this submission involved a complaint lodged by Pearlman against another lawyer which was considered not to be a disciplinary matter. This incident merely demonstrated, in the opinion of Jewers J., that the Law Society had carefully considered the complaint and had reached the conclusion that it was unfounded.
Accordingly, he dismissed the application for prohibition.
Court of Appeal for Manitoba ((1989), 59 Man. R. (2d) 255)
The majority of the Court of Appeal (per Philp J.A., Lyon J.A. concurring) found no error in the reasons or conclusions of the motions judge.
On the issue of delay, Philp J.A. dismissed Pearlman's argument that his rights under s. 11 of the Charter had been violated. The right guaranteed by s. 11(b) to be tried within a reasonable time has no application to "private, domestic or disciplinary matters which are regulatory, protective or corrective and which are primarily intended to maintain discipline, professional integrity and professional standards or to regulate conduct within a limited private sphere of activity": R. v. Wigglesworth, [1987] 2 S.C.R. 541, per Wilson J. at p. 560. He noted, as well, that s. 11 protects a person after being charged with an offence and is "not concerned with pre-charge delay": R. v. Kalanj, [1989] 1 S.C.R. 1594. Finally, evidence in the record supported the finding of Jewers J. that there had been no laches or unreasonable delay on the part of the respondent.
The majority of the Court of Appeal observed that there was statutory authority for the respondent to order costs and, in its view, where proceedings are conducted in accordance with statutory authority, there is no denial of natural justice. Furthermore, Philp J.A. held that Pearlman did not demonstrate the connection between a potential liability to pay costs in a disciplinary proceeding and a deprivation of "life, liberty and security of the person" under s. 7 of the Charter. Nor had he succeeded in establishing that the respondent's exercise of its statutory authority to make such an award would not accord with the principles of fundamental justice under s. 7.
Before the Court of Appeal, Pearlman had again raised the argument that the respondent had indicated a "demonstrable disposition" against him. The majority of the Court agreed with the conclusion of Jewers J. that this argument was unfounded.
Philp J.A. agreed, as well, with the refusal of the motions judge to look to the merits of the charges against Pearlman of unprofessional conduct, or misconduct or conduct unbecoming a barrister and solicitor. The conclusion of the motions judge that the circumstances alleged, if true, could reasonably be regarded as professional misconduct was amply supported by the record.
O'Sullivan J.A. dissented. In his view, the question of the validity of the disciplinary proceedings with respect to the unpaid judgment for costs was required to be considered in the light of s. 36(o)(xi) of the Law Society Act, which explicitly confers a discretion on the Judicial Committee to apply a specific sanction for such non-payment, namely, it may refuse to issue a practice certificate. He found it "untenable ... that the judicial committee may discipline for nonpayment of a judgment when there is specific provision for dealing with nonpayment by the governing body" (p. 259).
In so far as the alleged threatening letters were concerned, O'Sullivan J.A. found no suggestion that Pearlman sought to obtain any advantage from them. He informed Kirkham that, if he did not cease his illegal activities, he would be charged. There was "no suggestion of threat in the charge in order to seek a civil advantage".
Concerning the constitutional question before this Court, O'Sullivan J.A. was of the view that s. 52(4) of the Law Society Act violated s. 7 of the Charter. In his opinion, it is now settled that "deprivation of the right to practise law is an interference with liberty" and that such interference can be justified under the Charter only in accordance with the principles of fundamental justice, including substantial as well as procedural justice. He took note of the maxim that "no one shall be a judge of his own cause" and stated that the Law Society is no exception to that rule. Accordingly, it lacks jurisdiction to proceed against a barrister where it is possible that s. 52(4) would be invoked.
Relevant Statutory and Charter Provisions
Law Society Act, R.S.M. 1987, c. L100
36 ...
(o) [the Law Society may] in its discretion, issue or refuse to issue a practising certificate to a member or issue a practising certificate to a member subject to such terms and conditions as it may deem proper, where the member
...
(xi) has a judgment given against him involving the payment of money and being other than a judgment limited to the payment of costs, or in respect of the whole of which he is entitled to indemnity or relief from some other person, or evidence of the satisfaction of which has been produced to the society ...
52(4) A barrister, solicitor, or student, who is found guilty of professional misconduct, or of conduct unbecoming a barrister, solicitor, or student, or is found incompetent may be ordered by the governing body to pay, all or any part of, the costs and expenses incurred by the society in and about the investigation into, proceedings upon, and hearing of any subject matter of inquiry or any complaint or charge in respect of which he has been so found guilty or incompetent.
Canadian Charter of Rights and Freedoms
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
11. Any person charged with an offence has the right
. . .
(b) to be tried within a reasonable time;
Points in Issue
Subsidiary Issues
In addition to the constitutional questions stated in this appeal, Pearlman has raised a number of what might be called "subsidiary issues". For the most part, none of these issues are the subject of any major disagreement in the decisions below, and I am of the view that they should be dealt with quite quickly.
First of all, the allegations of undue or unreasonable delay and laches should be dismissed. I would adopt the reasons of the courts below in this regard which found that, once aware of Pearlman's conduct, the Society had acted with reasonable dispatch. Pearlman also advances his rights to a timely trial under s. 11(b) of the Charter, although counsel for Pearlman conceded in oral argument that the post-charge delay is not at issue in this appeal. I find persuasive and agree with the reasoning of the majority in the Court of Appeal below, where two decisions of this Court were cited (R. v. Wigglesworth and R. v. Kalanj, supra) in support of the conclusion that s. 11(b) does not apply to the facts of the instant appeal, which, as already noted, involve disciplinary matters of a regulatory nature designed to maintain professional integrity, discipline, and standards and do not have true penal consequences.
As for the jurisdiction of the Benchers to hear the disciplinary proceedings, I note that courts have recognized that Benchers are in the best position to determine issues of misconduct and incompetence. For example, in Re Law Society of Manitoba and Savino (1983), 1 D.L.R. (4th) 285 (Man. C.A.) the Court of Appeal said (at pp. 292-93):
No one is better qualified to say what constitutes professional misconduct than a group of practicing barristers who are themselves subject to the rules established by their governing body.
As noted above, Jewers J. turned his mind to the jurisdictional question, identified the threshold test to be applied (viz. whether the allegations, if proved, could reasonably be regarded as professional misconduct), and held that the Benchers were properly seized with the disciplinary hearings. In doing so, Jewers J. acted correctly in my view and the Court of Appeal agreed with his findings on this issue. Nothing new in this regard was presented before this Court, and accordingly, I can see no merit in this ground of appeal.
I now turn to a consideration of the main issues presented by this appeal which are found in the constitutional questions stated by the Chief Justice on January 29, 1991 as follows:
1.Does s. 52(4) of the Law Society Act of Manitoba, R.S.M. 1987, c. L100, contravene s. 7 of the Canadian Charter of Rights and Freedoms?
2.If the answer to question 1 is affirmative, is s. 52(4) of the Law Society Act of Manitoba, R.S.M. 1987, c. L100, justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?
Analysis
It is helpful at the outset to remember the appropriate approach for an analysis of legislation that is said to violate s. 7 of the Charter. La Forest J. noted in R. v. Beare, [1988] 2 S.C.R. 387, at p. 401, that:
The analysis of s. 7 of the Charter involves two steps. To trigger its operation there must first be a finding that there has been a deprivation of the right to "life, liberty and security of the person" and, secondly, that that deprivation is contrary to the principles of fundamental justice.
In other words, if no interest in Pearlman's life, liberty or security of the person is implicated, then the analysis stops there and there is no need to continue on to a consideration of the principles of fundamental justice. Correspondingly, if no principle of fundamental justice is contravened, s. 7 is not violated and there is no need to consider whether there has been a deprivation of life, liberty or security of the person.
As was proper, the parties and interveners made submissions on both branches of s. 7. Whether the facts and legislation involved here, or more specifically, whether the right to practise law is embraced by the "right to life, liberty and security of the person" in s. 7 is an extremely important question with equally important ramifications. However, because of the result which I have arrived at, it is not necessary for me to deal with that question. I say this because, in my view, even assuming without deciding a deprivation of a s. 7 interest in the case at bar, s. 52(4) of the Law Society Act does not contravene the principles of fundamental justice.
Principles of Fundamental Justice
(i)Introduction: Fundamental Justice Requires Impartial Decision-Makers
By way of general comment, there are some basic notions which are absolutely central to the principles of fundamental justice. However, it is neither desirable nor necessary for the purposes of this appeal to attempt an exhaustive enumeration of these. Nor is it clear that that would even be possible without reference to any given judicial or administrative context. As has been often said by this Court, the principles of fundamental justice reflect the fundamental tenets on which our legal system is based. Those tenets include, but are not limited to, the rules of natural justice and the duty to act fairly that have been developed over the years in the administrative law context. See J. M. Evans, "The Principles of Fundamental Justice: The Constitution and the Common Law" (1991), 29 Osgoode Hall L.J. 51, at p. 55. It seems to me then that when deciding whether a law contravenes s. 7, one must examine the impugned legislation to ascertain whether it, viewed in a purposive manner, meets the fundamental precepts reflected in our system of justice.
More specifically, it is well accepted that included in these fundamental principles is the concept of a procedurally fair hearing before an impartial decision-maker. Indeed, Wilson J. said in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 (at pp. 212-13) that:
... at a minimum the concept of "fundamental justice" as it appears in s. 7 of the Charter includes the notion of procedural fairness articulated by Fauteux C.J. in Duke v. The Queen, [1972] S.C.R. 917. At page 923 he said:
Under s. 2(e) of the Bill of Rights no law of Canada shall be construed or applied so as to deprive him of "a fair hearing in accordance with the principles of fundamental justice". Without attempting to formulate any final definition of those words, I would take them to mean, generally, that the tribunal which adjudicates upon his rights must act fairly, in good faith, without bias and in a judicial temper, and must give to him the opportunity adequately to state his case. [Emphasis added.]
Thus, in the administrative law context, principles of fundamental justice include natural justice rules which in turn require that the members of the tribunal be impartial and disinterested: see de Smith's Judicial Review of Administrative Action (4th ed. 1980), at p. 248. Impartiality of the decision-making body is a critical feature of natural justice which is captured by the Latin maxim, nemo judex in causa sua debet esse -- no one should be the judge in his own cause. There are many different factual settings which could place the impartiality of a decision-making body in question. Among such contexts are situations where the decision-makers have or are perceived to have a pecuniary interest, either direct or indirect, in the outcome of the hearing before them. Another such context is where the relationship of the decision-maker to one of the parties or counsel is sufficiently close to give rise to a reasonable apprehension of bias.
In this appeal, the principal argument of Pearlman is that s. 52(4) throws doubt on the impartiality of the Benchers who hear and decide the matter at the disciplinary proceedings. It is argued that the statutory authority to recoup the costs of an investigation of a lawyer who is eventually found guilty of professional misconduct creates at least the perception that the Benchers might have a pecuniary interest in a finding of guilt. In Pearlman's submissions, the possibility of such a perception violates the longstanding policy of administrative impartiality according to which justice must not only be done, but must manifestly be seen to be done. As Le Dain J. noted in Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 685, "The word "impartial" ... connotes absence of bias, actual or perceived." [Emphasis added.]
(ii)"Reasonable Apprehension of Bias"
This Court has recently had occasion to examine the issue of what test is appropriate for assessing the impartiality of the decision-making process. In Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, Sopinka J., who wrote for the majority, distinguished between cases where decision-makers are disqualified for reasons of pre-judgment and those where they are disqualified for reasons of personal interest in the outcome. For the latter type of case he suggested (at p. 1198) that:
[The reasonable apprehension of bias] test would have been appropriate if it had been found that the Councillor had a personal interest in the development, either pecuniary or by reason of a relationship with the developer. In such circumstances, the test is that which applies to all public officials: Would a reasonably well-informed person consider that the interest might have an influence on the exercise of the official's public duty? If that duty is to hear and decide, the test is expressed in terms of a reasonable apprehension of bias. [Emphasis added.]
I am of the view that the "reasonable apprehension of bias" test as formulated by Sopinka J. in Old St. Boniface is the appropriate one to apply to the allegation in the appeal at bar, viz. that the Benchers on the Judicial Committee of the Law Society are perceived to have an indirect pecuniary interest in the outcome of the disciplinary proceedings.
(iii)Principles of Fundamental Justice Are Context-Dependent
This Court has often noted how the principles of fundamental justice should be interpreted within the specific context in which s. 7 is being asserted. For example, in R. v. Lyons, [1987] 2 S.C.R. 309, La Forest J. held (at p. 361) that "It is ... clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked." Similarly, L'Heureux-Dubé J. noted in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682, that:
Like the principles of natural justice, the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case.
She went on to cite with approval the following passage from the decision of Sopinka J. in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at pp. 895-96:
Both the rules of natural justice and the duty of fairness are variable standards. Their content will depend on the circumstances of the case, the statutory provisions and the nature of the matter to be decided. The distinction between them therefore becomes blurred as one approaches the lower end of the scale of judicial or quasi-judicial tribunals and the high end of the scale with respect to administrative or executive tribunals. ... the court decides the content of these rules by reference to all the circumstances under which the tribunal operates. [Emphasis added.]
In Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, de Grandpré J. explicitly allowed for a flexible application of the "reasonable apprehension of bias" test to take into account different administrative contexts. He said (at p. 395):
This is the proper approach which, of course, must be adjusted to the facts of the case. The question of bias in a member of a court of justice cannot be examined in the same light as that in a member of an administrative tribunal entrusted by statute with an administrative discretion exercised in the light of its experience and of that of its technical advisers.
The basic principle is of course the same, namely that natural justice be rendered. But its application must take into consideration the special circumstances of the tribunal. As stated by Reid, Administrative Law and Practice, 1971, at p. 220:
... `tribunals' is a basket word embracing many kinds and sorts. It is quickly obvious that a standard appropriate to one may be inappropriate to another. Hence, facts which may constitute bias in one, may not amount to bias in another.
....
In the case at bar, the test must take into consideration the broad functions entrusted by law to the Board. [Emphasis added.]
Accordingly, Pearlman's allegation that the Benchers are perceived to have a pecuniary interest in the outcome of the disciplinary proceedings should be examined within the wider context provided by the Law Society Act and the experience of self-governing professions generally. It is to that wider context that I now wish to turn, albeit briefly.
(iv)Functions of the Law Society of Manitoba: Self-Government and Professional Discipline
Section 36 of the Act sets forth the powers, authorities and privileges of the Law Society of Manitoba. The conditions for the practice of law in the province are administered and governed by the Society (s. 36(a)), and admission to the bar of Manitoba is entirely regulated by the Society (s. 36(n)). Section 36(t) explicitly gives the Society the power to "exercise disciplinary jurisdiction over barristers, solicitors and students". Sanctions that can be levied against lawyers and law students in disciplinary matters range from reprimands to outright disbarment (s. 52(1)). As such, the Law Society has total control over who can practise law in the province, over the conditions or requirements placed upon those who practise and, perhaps most importantly, over the means of enforcing respect for those conditions or requirements. Thus, the Manitoba legal profession is self-governing in virtually every aspect.
It is appropriate at this juncture to mention the legislative rationale behind making a profession self-governing. The Ministry of the Attorney General of Ontario produced a study paper entitled The Report of the Professional Organizations Committee (1980) which, I believe, provides a helpful analysis of this rationale. The following extract from p. 25 is apposite:
In the government of the professions, both public and professional authorities have important roles to play. When the legislature decrees, by statute, that only licensed practitioners may carry on certain functions, it creates valuable rights. As the ultimate source of those rights, the legislature must remain ultimately responsible for the way in which they are conferred and exercised. Furthermore, the very decision to restrict the right to practise in a professional area implies that such a restriction is necessary to protect affected clients or third parties. The regulation of professional practice through the creation and the operation of a licensing system, then, is a matter of public policy: it emanates from the legislature; it involves the creation of valuable rights; and it is directed towards the protection of vulnerable interests.
On the other hand, where the legislature sees fit to delegate some of its authority in these matters of public policy to professional bodies themselves, it must respect the self-governing status of those bodies. Government ought not to prescribe in detail the structures, processes, and policies of professional bodies. The initiative in such matters must rest with the professions themselves, recognizing their particular expertise and sensitivity to the conditions of practice. In brief, professional self-governing bodies must be ultimately accountable to the legislature; but they must have the authority to make, in the first place, the decisions for which they are to be accountable. [Emphasis added.]
The authors noted the particular importance of an autonomous legal profession to a free and democratic society. They said at p. 26:
Stress was rightly laid on the high value that free societies have placed historically on an independent judiciary, free of political interference and influence on its decisions, and an independent bar, free to represent citizens without fear or favour in the protection of individual rights and civil liberties against incursions from any source, including the state.
On this view, the self-governing status of the professions, and of the legal profession in particular, was created in the public interest.
This position has gained considerable judicial support. For example, in Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307, Estey J., who wrote for the Court, dealt directly with the self-regulating nature of the legal profession. He said (at pp. 335-36):
I see nothing in law pathological about the selection by the provincial Legislature here of an administrative agency drawn from the sector of the community to be regulated.... It is for the Legislature to weigh and determine all these matters and I see no constitutional consequences necessarily flowing from the regulatory mode adopted by the province....
There are many reasons why a province might well turn its legislative action towards the regulation of members of the law profession. These members are officers of the provincially-organized courts; they are the object of public trust daily; the nature of the services they bring to the public makes the valuation of those services by the unskilled public difficult; the quality of service is the most sensitive area of service regulation and the quality of legal services is a matter difficult of judgment. The independence of the Bar from the state in all its pervasive manifestations is one of the hallmarks of a free society. Consequently, regulation of these members of the law profession by the state must, so far as by human ingenuity it can be so designed, be free from state interference, in the political sense, with the delivery of services to the individual citizens in the state, particularly in fields of public and criminal law. 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. The uniqueness of position of the barrister and solicitor in the community may well have led the province to select self-administration as the mode for administrative control over the supply of legal services throughout the community. [Emphasis added.]
In the case at bar, the Manitoba Legislature has spoken, and spoken clearly. The Law Society Act manifestly intends to leave the governance of the legal profession to lawyers and, unless judicial intervention is clearly warranted, this expression of the legislative will ought to be respected.
With respect to the disciplinary structure of the legal profession in Manitoba, one must begin with the governing body, the Law Society of Manitoba. The Society comprises elected and appointed "Benchers" who represent members of the profession and other groups of the public at large: see ss. 6 to 13 of the Act. There are several categories of Benchers who are not members of the legal profession. The ongoing business of the Society is conducted by means of eight standing committees: see Rule 11(1) of the Rules of the Law Society of Manitoba. The workings of two of these, the Discipline and Judicial committees, are implicated in this appeal. Each of these is composed of "not fewer than 10 benchers" (Rule 11(3)). In both cases, at least five of the Benchers must be "appointed members" (i.e. non-lawyers), except under special circumstances with respect to the Judicial Committee, when the committee quorum for it can be reduced to fewer appointed members (Rule 11(5)(b)).
The first stage of the Law Society's disciplinary proceedings involves an investigation of an allegation (of misconduct, incompetence, conduct unbecoming, etc.) by the Discipline Committee. In cases where it is thereby determined that a charge against a member of the Society is warranted, that charge is formulated by the Discipline Committee and referred to the Judicial Committee (Rule 19(13)). No one may sit on the Judicial Committee for a matter which he or she has previously dealt with as a member of the Discipline Committee (Rule 22(13)(e)). Both the member who is the subject of the inquiry and the Discipline Committee that formulated the charge are entitled to be represented by counsel before the Judicial Committee. After hearing representations and considering the evidence, the Judicial Committee decides whether the charge of misconduct was merited. If the member is found guilty of misconduct, one or several of the sanctions contemplated by s. 52 of the Act is imposed by the Judicial Committee.
The general public has a vested interest in the ethical integrity of the legal profession: see, for example, the remarks of Estey J. in Attorney General of Canada v. Law Society of British Columbia, supra. As already mentioned, the provincial Legislature has entrusted the protection of this interest to the considered judgment of the members of the legal profession itself.
To my mind, a large part of effective self-governance depends upon the concept of peer review. If an autonomous Law Society is to enforce a code of conduct among its members, as indeed is required by the public interest, a power to discipline its members is essential. It is entirely appropriate that an individual whose conduct is to be judged should be assessed by a group of his or her peers who are themselves subject to the rules and standards that are being enforced. As Monnin C.J.M. recognized in Re Law Society of Manitoba and Savino, supra (at pp. 292-93):
Our Legislature has given the benchers the right to pass rules and regulations as well as the right to enforce them. It would be ridiculous and lacking in common sense to call upon another body of men and women to hear and dispose of complaints of professional misconduct. Professional misconduct is a wide and general term. It is conduct which would be reasonably regarded as disgraceful, dishonorable, or unbecoming of a member of the profession by his well respected brethren in the group -- persons of integrity and good reputation amongst the membership.
No one is better qualified to say what constitutes professional misconduct than a group of practicing barristers who are themselves subject to the rules established by their governing body. [Emphasis added.]
Consequently, it is in this wider context, i.e. a self-regulating profession which has set up formal structures for maintaining the discipline and standards of conduct appropriate to the legal profession, that the reasonable apprehension of bias test should be applied in the instant appeal. To apply the formulation put forward by Sopinka J. in Old St. Boniface, supra, the question becomes "Would the perceived pecuniary interest that the members of the Judicial Committee are alleged to have in a finding of guilt (by virtue of s. 52(4) of the Act) create an apprehension in a reasonably well-informed person that the Judicial Committee might not decide fairly?"
Application of the Reasonable Apprehension of Bias Test to the Judicial Committee Members in Light of s. 52(4) of the Act
It is by virtue of s. 52(4) of the Act that the Benchers on the Judicial Committee are alleged to have a perceived pecuniary interest in a finding of guilt. For ease of reference, I repeat that provision below.
52(4) A barrister, solicitor, or student, who is found guilty of professional misconduct, or of conduct unbecoming a barrister, solicitor, or student, or is found incompetent may be ordered by the governing body to pay, all or any part of, the costs and expenses incurred by the society in and about the investigation into, proceedings upon, and hearing of any subject matter of inquiry or any complaint or charge in respect of which he has been so found guilty or incompetent.
It bears noting that there has been no allegation before this Court that the members of the Judicial Committee do, in fact, have an actual pecuniary interest in a finding of guilt. Rather, Pearlman's contention is that the mere perception that a pecuniary interest could possibly exist is enough to taint the Committee's eventual decision. For several reasons, I am unable to agree with Pearlman that the impugned "costs" provision creates a perception of pecuniary interest that is sufficient to substantiate a reasonable apprehension of bias.
First, it is important to remember that the costs which stand to be recouped under s. 52(4) are in no sense "profits" or "gains". These costs are a direct reimbursement for expenses previously incurred in an investigation which, ex hypothesi, has uncovered legitimate grounds for the imposition of sanctions. The Legislature considered it appropriate that, in addition to the sanctions that might be imposed, the lawyer found guilty of misconduct may also have to bear the costs of the investigation into his or her own questionable conduct.
Secondly, any pecuniary interest that the members of the Judicial Committee might be alleged to have is far too attenuated and remote to give rise to a reasonable apprehension of bias. Costs recouped pursuant to s. 52(4) become the property of the Law Society as a whole, and in no way do they accrue to the individual members of the committee who determined that the charge of misconduct was in fact well-founded. As such, there is no personal and distinct interest on the part of the Judicial Committee members. Just as it is speculation to suggest that a disciplinary committee deciding that a lawyer should be disbarred is tainted because it is thereby marginally reducing the competition for the committee's members, it is also speculation to suggest that the Law Society would apply these recouped costs in such a manner as to reduce the practising or non-practising fees of Law Society members by some small amount. These recouped costs, which are after all just reimbursements for expenses already incurred, might equally well be allocated by the Executive and Finance Committee to any other of the numerous educational or promotional endeavours of the Law Society.
Thirdly, even if one were to assume that all of the recouped costs were systematically and directly applied in such a manner as to reduce bar fees, it would in my view be unreasonable to conclude that this would lead to a likelihood of bias in members of the Judicial Committee. Given the uncontradicted statistical information presented to this Court regarding the relative size of costs recouped pursuant to s. 52(4) in the past several years, such a bias seems completely improbable. Annual reports indicated that these amounts averaged .04 percent of the Law Society's revenues from 1987 to 1990, ranging in dollar amounts from between $2,047 and $6,587. Thus, when spread among the more than 1,300 members of the Law Society, such an indirect benefit would amount at most to a few dollars per year -- a minuscule fraction of their practising fees. In the context of a peer review situation, which by its very nature is somewhat delicate and uncomfortable for all concerned, I find it unreasonable to suggest that this minuscule indirect benefit might predispose members of the Judicial Committee towards a finding of guilt.
This very issue was considered in the context of another self-governing organization, the New Brunswick Veterinary Medical Association. In McAllister v. New Brunswick Veterinary Medical Association (1986), 71 N.B.R. (2d) 109 (Q.B.), Stevenson J. was called upon to consider, inter alia, allegations of institutional bias that stemmed from the order of the Association's council that the appellant be reinstated "upon paying all costs of the hearing". Having considered the relevant jurisprudence, including the Bateman case that was found to be inapplicable by Jewers J. at first instance of the case at bar, Stevenson J. concluded (at p. 117):
I cannot accept that an apprehension of bias or interest is a corollary to any authority of a governing body to assess costs. If the governing body or a disciplinary tribunal is given such authority by the legislation creating it, it must surely be a rebuttable presumption that the authority will be exercised fairly and judiciously. [Emphasis added.]
Without endorsing the conclusion regarding the "rebuttable presumption of fairness", I am of the view, as was Stevenson J., that a costs provision like s. 52(4) in the instant appeal does not itself give rise to a reasonable apprehension of bias in the context of self-governing professional organizations. Section 52(4) of the Act, without more, does not create an apprehension of bias in a reasonably well-informed person that would taint the disciplinary proceedings of the Law Society.
It is worth mentioning that, if there were to be an unfair or otherwise abusive order of costs pursuant to s. 52(4), Pearlman would have the full panoply of administrative remedies open to him. All I am deciding is that the legislative provision authorizing the recoupment of costs involved in disciplinary proceedings does not, in and of itself, put into doubt the impartiality of those proceedings.
Conclusion
Accordingly, I am of the view that s. 52(4) of the Act does not violate the principles of fundamental justice. As such, there is no violation of s. 7 of the Charter and the answers to the constitutional questions are as follows:
1. No.
2. It is not necessary to answer the second constitutional question.
This appeal should be dismissed with costs.
Appeal dismissed with costs.
Solicitor for the appellant: Sidney Green, Winnipeg.
Solicitor for the respondent: The Law Society of Manitoba, Winnipeg.
Solicitor for the intervener the Attorney General for Ontario: Lori R. Sterling, Toronto.
Solicitor for the intervener the Attorney General of Quebec: Monique Rousseau, Ste-Foy.
Solicitor for the intervener the Attorney General of Manitoba: The Department of Justice, Winnipeg.
Solicitor for the intervener the Attorney General of British Columbia: The Ministry of the Attorney General, Victoria.
Solicitor for the intervener the Attorney General for Saskatchewan: The Deputy Attorney General, Regina.