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Black v. Law Society of Alberta, [1989] 1 S.C.R. 591

 

The Law Society of AlbertaAppellant

 

v.

 

Robert G. Black, G. Patrick H. Vernon,

Basil R. Cheeseman, L. Thomas Forbes,

James C. McCartney, Douglas S. Ewens,

D. Murray Paton, Richard A. Shaw,

Edward P. Kerwin, G. Blair Cowper-Smith and

Peter D. Quinn carrying on the practice of law

under the firm name of Black & Company                                                                     Respondents

 

and

 

The Attorney General of Quebec                                                                                    Intervener

 

indexed as:  black v. law society of alberta

 

File No.:  19889.

 

1988:  March 22, 23; 1989:  April 20.

 

Present:  Dickson C.J. and Estey*, McIntyre, Wilson, Le Dain*, La Forest and L'Heureux‑Dubé JJ.

 

on appeal from the court of appeal for alberta

 

    Constitutional law -- Charter of Rights  -- Mobility rights ‑‑ Employment -- Interprovincial law firm -- Lawyers members of both a law firm located in province and one located outside province -- In-province firm including non-resident lawyers -- Law Society rules prohibiting its members from entering into partnership with non-resident lawyers and from being members of dual or multiple firms -- Whether or not rules infringing Charter  mobility rights -- If so, whether or not rules saved under s. 1  of the Charter  ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 6 .

 

    Constitutional law -- Charter of Rights  -- Freedom of association ‑‑ Employment -- Interprovincial law firm -- Lawyers members of both a law firm located in province and one located outside province -- In‑province firm including non‑resident lawyers -- Law Society rules prohibiting its members from entering into partnership with non‑resident lawyers and from being members of dual or multiple firms -- Whether or not rules infringing Charter  right to freedom of association -- If so, whether or not rules saved under s. 1  of the Charter  -- Canadian Charter of Rights and Freedoms, ss. 1 , 2 (d).

 

    Respondents proposed to establish an interprovincial law firm.  A Calgary firm was established and was to be made up of persons exclusively members of the Law Society of Alberta.  Some members lived in Calgary, others in Toronto.  As members, they would be required to meet all the qualifications for membership in the Law Society and be subject to its rules of ethics.  All partners of the Calgary firm were also members of a Toronto firm.

 

    The Law Society of Alberta enacted two rules in response to this situation.  Rule 154 prohibited members of the Law Society who ordinarily reside and practise in Alberta from entering into partnership with anyone who was not an active member ordinarily resident in Alberta.  Rule 75B prohibited the members of the Law Society from being partners in more than one firm.  The validity of these rules is at issue.

 

    Respondents brought an action against the Law Society challenging the validity of the two rules on administrative law and Charter  grounds.  Pending trial of the action, the respondents applied for and were granted an interlocutory injunction restraining the Law Society from enforcing these rules against them.  The Law Society did not attack the injunction respecting Rule 154 , but was successful in overturning the order restraining the enforcement of Rule 75B .

 

    The trial judge upheld the rules but the Court of Appeal found that they violated the Canadian Charter of Rights and Freedoms  and were not saved by s. 1 .  The constitutional questions stated in this Court queried: (1) whether these rules infringed or denied mobility rights guaranteed by s. 6(2) (b) of the Charter ; (2) if so, whether they were justified under s. 1 ; (3) whether these rules infringed or denied freedom of association guaranteed by s. 2 (d) of the Charter ; and (4), if so, whether they were justified under s. 1 .

 

    Held (McIntyre and L'Heureux‑Dubé JJ. dissenting in part):  The appeal should be dismissed.  The first constitutional question should be answered in the affirmative, the second in the negative.

 

    Per Dickson C.J. and Wilson and La Forest JJ.:  Before the advent of the Charter , mobility rights received some protection arising out of the structural elements of federalism.  Section 6 , however, is expressed in terms of the rights of the citizen.  Inherent in citizenship is the right to reside wherever on wishes in the country and to pursue the gaining of a livelihood without regard to provincial boundaries.  Like other Charter  rights, the rights guaranteed in s. 6  must be interpreted generously and in a purposive manner.

 

    A purposive approach to the Charter  dictates a broad approach to mobility.  Section 6(2)  protects the right of a citizen (and of a permanent resident) to move about the country, to reside where he or she wishes and to pursue his or her livelihood without regard to provincial boundaries.  The provinces may regulate these rights but, subject to ss. 1  and 6  of the Charter , cannot do so in terms of provincial boundaries.  That would derogate from the inherent rights of the citizen to be treated equally in his or her capacity as a citizen throughout Canada.  This approach is consistent with the rights traditionally attributed to the citizen and with the language of the Charter .

 

    The section 6(2)  right "to pursue the gaining of a livelihood in any province" does not require the physical movement of the individual to a  province.  A person can pursue a living in a province without being there personally.  This approach is consistent with the heading "Mobility Rights" preceding s. 6 .  The wording of s. 6(3)(a), too, suggests that s. 6(2) (b) should have this meaning.

 

    Both Rule 154 and Rule 75B violate s. 6(2) (b) of the Charter .   The combined effect of the rules seriously impaired respondents' ability to gain a livelihood through the practice of law in Alberta.

 

    Section 6(2)  is subject to both s. 6(3) and to limitations under s. 1 Sections 1  and 6(3)  are significantly different.  Section 6(3) merely qualifies s. 6(2) ; it does not usurp the function of s. 1 . and is not a legislative translation of how s. 1  is to be interpreted in the context of s. 6(2) .

 

    Section 6(3)  of the Charter  validates laws of general application but only if such laws do not discriminate primarily on the basis of province of residence.  Rule 154  does not fall within s. 6(3) (a) of the Charter  since it clearly discriminates on the basis of a lawyer's province of residence.  Rule 75B  and Rule 154  are intertwined.  They are aimed at prohibiting residents and non-residents from associating for the practice of law.  The effect of Rule 75B , is to discriminate on the basis of residence for it most severely affects those who would want to maintain an interprovincial law firm.  Very few resident lawyers would have occasion to enter more than one partnership.

 

    Nor are Rules 154 and 75B justified under s. 1 .  While regulating the competence and ethical standards of the legal profession constitutes a legitimate legislative objective, the limitations on s. 6(2)  rights resulting from Rule 154 were completely disproportionate to the objective sought.  Problems such as the assumption of responsibility for the work of a non‑member, or the competence of a non‑resident member in local matters, or discipline, were not so significantly greater in the case of interprovincial firms as to warrant prohibiting resident and non‑resident members from associating for the practice of law.  Many reasonable alternatives exist which would not so drastically affect mobility rights.  Rule 75B, too, is much more sweeping than was necessary to control the problems, such as breaches of confidentiality and conflict of interest, at which the Rule is said to be directed.

 

    Per McIntyre and L'Heureux-Dubé JJ. (dissenting in part):  The right to freedom of association guaranteed in s. 2 (d) of the Charter  was infringed by Rules 154  and 75B Rule 154  prevented resident members from forming associations or partnerships with non-resident members.  Rule 75B  prevented the forming of more than one association in the practice of law.  Neither, however, infringed any mobility right under s. 6  of the Charter .  No one was forbidden to enter Alberta or to practise law or to form a partnership there.

 

    Both rules were aimed at a legitimate legislative objective -- the regulation and control of the legal profession.  Rule 154, nevertheless, could not be justified under s. 1  of the Charter  for it defeated, rather than supported, many Law Society's legitimate objects.  Concerns relating to local customs and knowledge, discipline, and the insurance fund would be set to rest more effectively if residents and non-residents were to create partnerships and associations.  Rule 75B, however, was justified under s. 1  for it was designed to maintain the ethical practice of law by preventing conflicts of interest and it impaired the right to free association as little as possible.

 

Cases Cited

 

By La Forest J.

 

    Considered:  Cunningham v. Homma, [1903] A.C. 151; Winner v. S.M.T. (Eastern) Ltd., [1951] S.C.R. 887; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, reversing (1983), 145 D.L.R. (3d), 502; Malartic Hygrade Gold Mines Ltd. v. The Queen in Right of Quebec (1982), 142 D.L.R. (3d) 512, [1982] C.S. 1146; Basile v. Attorney-General of Nova Scotia (1984), 11 D.L.R. (4th) 219; Re Mia and Medical Services Commission of British Columbia (1985), 17 D.L.R. (4th) 385; Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985); referred to:  Reference Re Compulsory Arbitration (1984), 57 A.R. 268; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Lawson v. Interior Tree Fruit and Vegetable Committee of Direction, [1931] S.C.R. 357; Murphy v. Canadian Pacific Railway Co., [1958] S.C.R. 626; Attorney-General for Manitoba v. Manitoba Egg and Poultry Association, [1971] S.C.R. 689; Union Colliery Company of British Columbia v. Bryden, [1899] A.C. 580; Toomer v. Witsell, 334 U.S. 385 (1948); Wilson v. Medical Services Commission of British Columbia (1987), 9 B.C.L.R. (2d) 350; Kerr v. Superintendent of Income Tax, [1942] S.C.R. 435; Supreme Court of Virginia v. Friedman, 56 U.S.L.W. 4669 (1988); Ordre des Avocats au Barreau de Paris v. Klopp, [1985] 1 C.M.L.R. 99 (E.C.J. 1984); R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Frazier v. Heebe, 96 L.Ed. 2d 557 (1987).

 

By McIntyre J. (dissenting in part)

 

    Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; R. v. Oakes, [1986] 1 S.C.R. 103.

 

Statutes and Regulations Cited

 

Act Respecting the Barreau du Québec, R.S.Q. 1977, c. B‑1, s. 59.

 

Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a), (b), (c), (d), 6(2) (b), 6(3) (a), 7 .

 

Constitution Act, 1867, ss. 91(25) , 121 .

 

Constitution Act, 1982, s. 52(1) .

 

Constitution of the United States of America, Art. IV, s. 2(1).

 

Law Society Act, R.S.O. 1980, c. 233, s. 28(c).

 

Legal Profession Act, R.S.A. 1980, c. L‑9, ss. 93, 96.

 

Rules of the Law Society of Alberta, ss. 75B, 129, 154.

 

Rules of the Supreme Court of New Hampshire, s. 42.

 

Authors Cited

 

Canada. Office of the Prime Minister. [P. E. Trudeau.]  A Time for Action -‑ Toward the Renewal of the Canadian Federation.  Ottawa:  Minister of Supply and Services, 1978.

 

Canada.  Task Force on Canadian Unity.  A Future Together ‑ Observations and Recommendations.  Ottawa:  Minister of Supply and Services, 1970.

 

Canadian Bar Association.  Committee on the Constitution.  Towards a New Canada.  Montreal:  Canadian Bar Foundation, 1978.

 

Chrétien, Jean.  Powers Over the Economy: Securing the Canadian Economic Union in the Constitution.  Ottawa:  Minister of Supply and Services, 1980.

 

Creighton, D.  British North America Act at Confederation:  A Study Prepared for the Royal Commission on Dominion‑Provincial Relations.   In Report of the Royal Commission on Dominion-Provincial Relations, Appendix 2.  Ottawa:  King's Printer, 1939.

 

Hogg, Peter W.  Canada Act 1982 Annotated.  Toronto:  Carswells, 1982.

 

Lee, Tanya and Michael J. Trebilcock.  "Economic Mobility and Constitutional Reform" (1987), 37 U. of T. L.J. 268.

 

Quebec Liberal Party.  Constitutional Committee.  A New Canadian Federation. Montreal:  Constitutional Committee of the Quebec Liberal Party, 1980.

 

Safarian, A. E.  Canadian Federalism and Economic Integration.  Ottawa:  Privy Council Office, 1974.

 

Trebilcock, Michael J., et al., eds. Federalism and the Canadian Economic Union.  Toronto:  University of Toronto Press for the Ontario Economic Council, 1983.

 

    APPEAL from a judgment of the Alberta Court of Appeal (1986), 44 Alta. L.R. 1, 68 A.R. 259, 27 D.L.R. (4th) 527, [1963] 3 W.W.R. 590, allowing an appeal from a judgment of Dea J. (1984), 33 Alta. L.R. (2d) 214, 57 A.R. 1, 13 D.L.R. (4th) 436, [1984] 6 W.W.R. 385.  Appeal dismissed, McIntyre and L'Heureux‑Dubé JJ. dissenting in part.  The first constitutional question should be answered in the affirmative, the second in the negative.

 

    R. A. McLennan, Q.C., B. R. Burrows and J. P. Rossall, for the appellant.

 

    J. E. Redmond, Q.C., and T. W. Wakeling, for the respondents.

 

    Yves deMontigny and Julien Frenette, for the intervener.

 

//La Forest J.//

 

    The judgment of Dickson C.J. and Wilson and La Forest JJ. was delivered by

 

    LA FOREST J. -- This case concerns the validity of two rules enacted by the appellant, The Law Society of Alberta.  The first rule (Rule 154) prohibits members of the Law Society who ordinarily reside and practise in Alberta from entering into partnership with anyone who is not an active member ordinarily resident in Alberta.  The second rule (Rule 75B) prohibits the members of the Law Society from participating in dual or multiple partnerships.  The question at issue is whether these rules violate the right to pursue the gaining of a livelihood in any province or to freedom of association as guaranteed, respectively, by s. 6(2) (b) and s. 2 (d) of the Canadian Charter of Rights and Freedoms .  The Law Society contends that the rules do not violate these provisions or, alternatively, if there is a prima facie violation, the rules are saved either as laws or practices of general application under s. 6(3) (a) or as reasonable limits under s. 1  of the Charter .

 

Facts

 

    In February 1981, the Toronto based firm of McCarthy & McCarthy submitted a proposal to the appellant Law Society, disclosing its intention to open an office in Calgary, Alberta, as part of its broader objective of becoming a national law firm with offices across Canada.  Under the original proposal, the Calgary office was to be a branch of McCarthy & McCarthy and would operate under the firm name, McCarthy & McCarthy.  The Calgary office was to consist solely of partners and associates qualified to practise law in Alberta although some would reside in Alberta and some in Ontario.  It was made clear that only those partners who were qualified to practise in Alberta would be held out as being part of the Calgary firm.

 

    The matter was referred to the Ethics Committee of the Law Society and was discussed by the Benchers of the Law Society at several meetings.  While the original McCarthy proposal was under consideration, the proposal was amended.  One of the major concerns that seemed to be troubling the Law Society was the use of the firm name, McCarthy & McCarthy, in Alberta.  The amended proposal thus provided for the formation of a separate firm in Calgary operating under the name "Black and Associates".  On April 9, 1981, before the Law Society was approached with the new proposal, the Benchers passed a motion providing that a committee consider the principle that resident members of the Law Society not be permitted to form partnerships or associations with persons who are not members of the Law Society.  A committee was created to consider the motion.

 

    Mr. Black, in a letter dated April 23, 1981, wrote to the Law Society requesting authorization of a firm being named "Black & Partners", comprised solely of lawyers authorized to practise in Alberta.  The Ethics Committee referred this request to the Benchers and the matter was considered at various meetings.  In June 1981, the Benchers approved in principle the predecessor of Rule 154, which provided that resident members not be permitted to practise law with non-members.  The rule initially did not prohibit resident members from associating for the practice of law with non-resident members.

 

    On September 1, 1981, Black & Co. was formed and commenced operations in Calgary.  The partnership was made up exclusively of members of the Law Society of Alberta, some of whom resided in Calgary and some in Toronto.  As members, they would be required to meet all the qualifications for membership in the Law Society and be subject to its rules of ethics.

 

    All of the partners of Black & Co. were also partners of McCarthy & McCarthy.  Shortly after Black & Co. began operations, W. Code, a Bencher of the Law Society, lodged a complaint against Mr. Black, one of the respondents, claiming that it was improper for him to be a member of more than one firm.  The complaint was dismissed, however, since there was then no rule barring a person from belonging to more than one firm.

 

    In October 1981, the Legislation Committee of the Law Society introduced a draft of Rule 154, which was aimed at prohibiting firms composed of resident and non-resident members, in lieu of its predecessor which prohibited the association of members with non-members.  Rule 154 was adopted by the Benchers at a meeting in February 1982.  It provides:

 

154.  An active member who ordinarily resides in and carries on the practice of law within Alberta shall not enter into or continue any partnership, association or other arrangement for the joint practice of law in Alberta with anyone who is not an active member ordinarily resident in Alberta.

 

    Rule 154 was scheduled to come into effect on May 1, 1982.  At a Benchers' meeting in November 1982, after considering a legal opinion given regarding Rule 154 (the contents of that opinion were not in evidence because privilege was claimed), it was agreed that the implementation of Rule 154 would be postponed until January 1, 1983.  At the same meeting a motion that Rule 75B be added to the rules was carried and came into effect on March 31, 1983.  That rule reads as follows:

 

75B.  No member shall be a partner in or associated for the practice of law with more than one law firm.

 

At this meeting the Benchers agreed to invite counsel representing Black & Co. to present submissions to the Benchers regarding both Rule 154 and Rule 75B.  The Law Society had sent out a notice to all its active members regarding the passage of Rule 154, but only counsel for Black & Co. was officially informed of the adoption of Rule 75B.

 

    The respondents brought an action against the Law Society claiming that the two rules were ultra vires, invalid, and of no force and effect.  Pending trial of the action, the respondents applied for an interlocutory injunction restraining the Law Society from enforcing these rules against them.  McDonald J. of the Alberta Court of Queen's Bench granted the injunction (reported at (1983), 144 D.L.R. (3d) 439).  The Law Society did not attack the injunction respecting Rule 154, but was successful in overturning the order restraining the enforcement of Rule 75B (reported at (1983), 8 D.L.R. (4th) 346).

 

The Courts Below

 

Alberta Court of Queen's Bench (1984), 33 Alta. L.R. 214

 

    In the courts below, the two rules were challenged on both administrative law and Charter  grounds.  Dea J., who heard the case at first instance, upheld Rules 154  and 75B .  He first rejected the challenges based on the principles of administrative law.  He held that the rules were within the jurisdiction of the Law Society, as being within the scope of the regulatory powers delegated to it by the Legal Profession Act, R.S.A. 1980, c. L-9.  He further held that the enactment of the rules was not an improper or unreasonable use of the Law Society's authority.

 

    As to the administrative law issues, Dea J. held that the rules were not arbitrary, discriminatory or cast in overly broad terms.  Their purpose, in his view, was to ensure the protection of the public.  He suggested that it was illogical to apply the doctrine of restraint of trade to delegated legislation, especially when the primary legislation itself clearly restrains trade.  In the event that the doctrine did apply to such delegated legislation, Dea J. was of the view that the rules, although clearly constituting a restraint of trade, were a reasonable and thus permissible restraint.

 

    Dea J. went on to discuss the constitutionality of the two rules.  He first dealt with the question of whether Rules 75B and 154 infringed the plaintiffs' (now respondents') "mobility rights" as guaranteed by s. 6(2)  of the Canadian Charter of Rights and Freedoms .  He found the rules did infringe their right to pursue the gaining of a livelihood in Alberta, since they restricted their ability to form partnerships and thus practise law in the traditional manner utilized by the legal profession.  Rule 75B , however, was in his view saved by s. 6(3) (a) of the Charter  because it was a law of general application which did not discriminate primarily on the basis of residence.  Rule 154 , on the other hand, was not an appropriate limitation on the gaining of a livelihood as permitted by s. 6(3) (a), since it discriminated primarily on the basis of province of residence.  Consequently, if Rule 154  was to be upheld, it had to withstand scrutiny under s. 1  of the Charter .

 

    Dea J. then considered whether the rules violated the freedom of association guaranteed by s. 2 (d) of the Charter .  Since the Law Society, although not conceding that there was an infringement, did not vigorously contest the proposition but focussed rather on its argument that the rules constituted a reasonable limit within the meaning of s. 1  of the Charter , Dea J. dealt with the rules on the basis that they did infringe s. 2 (d).  He commented, however, that freedom of association is intended to further the freedoms enumerated in ss. 2 (a), (b) and (c) of the Charter .  It was not, in his view, intended "to extend to situations restraining the ability of people to enter into commercial contracts with one another unless such a restraint can be said to bear on the person's freedom of religion, speech or assembly".

 

    Turning to s. 1  of the Charter , Dea J. considered three factors:  (a) the objective or rational basis of the limitation (rationality); (b) the extent of the limitation which is to be balanced against its rationality (proportional­ity);  (c) the laws and practices in other jurisdictions generally regarded as free and democratic societies (comparison).  He accepted that the objective of the rules was the control by the Law Society of the professional conduct of its members in response to its public mandate to assure to the public competent, ethical and financially responsible lawyers, and he also accepted that this objective was rational.  With respect to the question of proportionality, Dea J. was of the view that the rules provided a reasonable solution to reasonably perceived risks.  Finally, he found that a comparative analysis was not helpful because of the lack of Canadian experience with national law firms and the scarcity of evidence from other jurisdictions.  From this analysis, he concluded that the rules were demonstrably justified in a free and democratic society, and thus valid.

 

Alberta Court of Appeal (1986), 44 Alta. L.R. 1

 

    In the Court of Appeal, Kerans and Stevenson JJ.A. wrote separate opinions,  Lieberman J.A. concurring with Stevenson J.A.  All agreed that the appeal should be allowed on the ground that the two rules violated the Charter  and were not salvaged by s. 1 .

 

    Kerans J.A. agreed with Dea J. that the rules were within the regulatory powers of the Law Society and were not an unreasonable exercise of that power.  Although he accepted the trial judge's finding that the rules were enacted to regulate the conduct of members with respect to certain perceived ethical and administrative issues, Kerans J.A. expressed serious reservations about the true purpose of the rules.  He was troubled by the Law Society's attempt to justify them on the basis of protecting an indigenous bar and by the apparent view of the trial judge that all non-resident practice should be discouraged.

 

    With respect to the question of whether the rules infringed s. 6(2)  of the Charter , Kerans J.A. agreed with the trial judge that Rule 154  violated s. 6(2)  of the Charter , but that Rule 75B  was a law of general application which on its face was not directed towards non-residents and, therefore, was an appropriate limitation on the gaining of a livelihood as permitted by s. 6(3) .

 

    He, however, found that both rules violated s. 2 (d), freedom of association, since they limited the very formation of an association between two individuals.  He distinguished Reference Re Compulsory Arbitration (1984), 57 A.R. 268 (C.A.), on the basis that the concerted actions of an association rather than its formation were at issue in that case.  He noted that the pursuit of a livelihood through a trade or calling is a vital, fundamental human activity.  He went on to suggest that the right to work as a lawyer, in particular, may be fundamental since access to lawyers and thus the maintenance of a legal profession is essential to the rule of law.  He concluded that lawyers have the right to associate among themselves and with others inside and outside Alberta.

 

    Kerans J.A. went on to determine whether the rules could be upheld by virtue of s. 1  of the Charter .  He rejected the three-stage test employed by Dea J.  Before adopting his own framework, Kerans, J.A. discussed at length the nature and purpose of s. 1  and the role of the judiciary.  In his view, s. 1  defies the notion that there should be judicial deference to the legislatures and Parliamentary supremacy over the Charter .

 

    Kerans J.A., at p. 38, adopted the following four-stage analysis which, he argued, would "complement and fulfill" the test set out by Chief Justice Dickson in R. v. Oakes, [1986] 1 S.C.R. 103:

 

    (1)  The limitation must be reasonably clear or ascertainable and made by recognized authority.

 

    (2) It must bear a rational relationship to a valid governmental objective.  This involves (a) the identification of the object of the violating law; (b) a decision whether that object is valid; (c) a decision whether that object bears a rational relationship to the proposed limitation.

 

    (3)  The limitation must, in the circumstances of the case, maintain and enhance a free and democratic society more than would affirmation of the right.  Sometimes the question may have to be framed negatively:  would the limitation less adversely affect a free and democratic society than the harm to be done by affirmation of the Charter -protected right?  In either event, this involves (a)  a categorization of the importance to a free society of the right sought to be limited, (b)  consideration of the importance of the actual violation to the holder of the right in the case under review, (c)  consideration of the importance to a free society of the object of the limit, and finally (d)  a balancing to determine whether affirmation or limitation more effectively maintains a free society.

 

    (4)  No less intrusive means would equally serve the same object as the limitation proposed.

 

    Applying this test, Kerans J.A. found that the rules were prescribed by law and sufficiently precise.  With respect to the second branch of his test, he again accepted the trial judge's finding that the object of the rules was to control members of the Law Society and thus "assure `competent, ethical, and financially responsible' lawyers".  This was found to be a valid objective since a more competent, accessible and trustworthy legal profession was characterized as being "essential to the rule of law".  Kerans J.A. expressed some reservations as to whether the object of the legislation was rationally related to the limitation.  He nevertheless accepted the findings of the trial judge and confirmed that such a rational relationship existed.

 

    The rules also passed the third stage of Kerans J.A.'s test.  Although he considered that the rights involved were "of prime importance in our society" and that their violation, especially by virtue of Rule 154, was significant, he accepted the object of the limit as being sufficient to warrant some restriction.  Balancing the right against the limitation, he found that regulation of non-residents may be permissible, in order to avoid conflicts of interest, to require continuing competence and proper management of trust funds where special problems arise.

 

    It was only at the fourth and final stage that Kerans J.A. held that the rules failed his test.  He advocated a measure of judicial deference at the fourth stage of the test and remarked emphatically that "legislation should not be struck down as `intrusive' or `disproportionate' unless there is a clear and convincing alternative".

 

    Kerans J.A. found that Dea J. erred in not inquiring whether the Law Society had satisfied him that no equally effective but less intrusive means was available.  In his view, there were equally effective but less severe means available to the Law Society to achieve its goals.  He examined a number of possible alternatives in the following passage at pp. 59-60:

 

First, a critical requirement might be that the non-resident also be a member in good standing in a sister society.  Second, the Law Society might oblige a non-resident to attend continuing education programs.  Ironically, it might also oblige that person to have a local association!  I fail to comprehend why, if there are problems of this sort, the solution is to cut the non-resident adrift from association with resident members ‑ an association which should be beneficial to the non-resident in terms of his keeping abreast of things, and to the law society in terms of keeping control of things.  How these concerns can lead to the opposite rule utterly escapes me.

 

    Third, the law society might indeed require that all Alberta clients' materials and monies be kept in Alberta.  Fourth, it might send its officials out of the province to perform their tasks, and charge non-residents accordingly.  In any event, it should be able to exercise its enforcement powers in other provinces ....

 

    It is then said that "any inter-provincial practice arrangement could generate confusion as to which assurance fund would be legitimately called upon to remedy the defalcation", a problem which exists, of course, for all non-resident members.  The law society has successfully argued that it has a discretionary power to award or reject claims made upon that fund.  See Petrashuyk v. Law Soc. of Alta. 35 Alta. L.R. (2d) 259, [1985] 2 W.W.R. 549, 10 Admin. L.R. 117, 8 C.C.L.J. 27, 16 D.L.R. (4th) 22, 58 A.R. 94 (C.A.).  In the exercise of that power, it can make regulations to deal with this issue.

 

    Turning next to the problem of conflicts of interest which was cited as a justification for the rules, Kerans J.A. found that, with respect to Rule 75B, the risks present in dual partnerships are equivalent to those encountered by any large firm with branch offices.  Since there was no evidence of any significant conflicts in large firms, the Law Society's concern regarding conflicts of interest was considered to be unsupported.  He also relied on the fact that the plaintiffs had employed techniques specifically aimed at managing conflict problems.  He was of the view that it was imperative for the Law Society to show the inadequacy of these techniques, and this they had not done.  He concluded that the breaches of ss. 2 (d) and 6  of the Charter  were not saved by s. 1 .  Both rules, therefore, were held to be invalid.

 

    Stevenson J.A. agreed with the conclusion reached by Kerans J.A. but gave separate reasons.  He agreed that Rule 154 violated s. 6(2) (b) of the Charter  and that both rules violated s. 2 (d).  He firmly rejected the proposition put forward by Dea J. that the purpose of s. 2 (d) is limited to advancing the freedoms recognized by s. 2 (a) and (b).  The rules struck at the very formation of associations and they, therefore, violated s. 2 (d).  Neither rule was saved by s. 1 .  Stevenson J.A. noted that the concerns raised by the Law Society in defence of Rule 154  related specifically to non-resident practitioners.  Prohibiting resident lawyers from associating with non-resident lawyers was considered to be an irrational response to the perceived problems.  With respect to Rule 75B  and conflicts of interest, Stevenson J.A. expressed sentiments similar to those of Kerans J.A.  He was not convinced that the problem of conflicts of interest in the present case would be any different from those regarding large firms operating at different locations in the province.  Yet the rule did not focus on the size or location of the firms, but was rather an outright and unjustifiable prohibition.  The rules did not interfere with the plaintiffs' Charter  rights "as little as possible" as required by Dickson C.J. in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, and R. v. Oakes, supra.

 

Issues

 

    On July 3, 1986, Dickson C.J. stated the following constitutional questions:

 

1.Does Rule 154 or Rule 75B of the Law Society of Alberta infringe or deny mobility rights guaranteed by s. 6(2) (b) of the Canadian Charter of Rights and Freedoms ?

 

2.If Rule 154 or Rule 75B of the Law Society of Alberta infringes or denies mobility rights guaranteed by s. 6(2) (b) of the Canadian Charter of Rights and Freedoms , are Rule 154  and Rule 75B  justified by s. 1  of the Canadian Charter of Rights and Freedoms  and therefore not inconsistent with the Constitution Act, 1982 ?

 

3.Does Rule 154 or Rule 75B of the Law Society of Alberta infringe or deny freedom of association guaranteed by s. 2 (d) of the Canadian Charter of Rights and Freedoms ?

 

4.If Rule 154 or Rule 75B of the Law Society of Alberta infringes or denies freedom of association guaranteed by s. 2 (d) of the Canadian Charter of Rights and Freedoms , are Rule 154  and Rule 75B  justified by s. 1  of the Canadian Charter of Rights and Freedoms  and therefore not inconsistent with the Constitution Act, 1982 ?

 

    The Attorney General of Quebec intervened to support the appellant Law Society.  The Attorneys General of Canada and Alberta had originally intervened but both withdrew their intervention before the hearing of this appeal.

 

    The respondents also raised the issue of whether Rules 154 and 75B are unreasonable or an unreasonable restraint of trade and beyond the jurisdiction of the Law Society.  They did not, however, present any argument on this point.

 

Section 6  of the Charter 

 

    Section 6  of the Charter  provides:

 

    Mobility Rights

 

    6.  (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

 

    (2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right

 

                                   (a) to move to and take up residence in any province; and

 

                                   (b) to pursue the gaining of a livelihood in any province.

 

    (3) The rights specified in subsection (2) are subject to

 

                                   (a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and

 

                                   (b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

 

    (4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

 

    The appellant Law Society contends that s. 6(2) (b) does not protect the right to gain a livelihood, but rather protects only the right to move to another province (and, I presume, take up residence) for the purpose of gaining a livelihood.  Both rules, it argued, affect the mobility of legal services, not the mobility of persons.  Only the latter is protected by s. 6 , it maintained.

 

    It must first be determined whether Rule 154 or Rule 75B violate s. 6(2) (b) of the Charter  and if so, whether the violation is justified by s. 6(3)  or s. 1 .

 

Background

 

    A discussion of the scope and effect of s. 6(2) (b) in the context of this case is enhanced by a brief review of the history of the protection of interprovincial mobility in Canada.

 

    A dominant intention of the drafters of the British North America Act (now the Constitution Act, 1867 ) was to establish "a new political nationality" and, as the counterpart to national unity, the creation of a national economy:  D. Creighton, British North America Act at Confederation: A Study Prepared for the Royal Commission on Dominion-Provincial Relations (1939), at p. 40.  The attainment of economic integration occupied a place of central importance in the scheme.  "It was an enterprise which was consciously adopted and deliberately put into execution.":  Creighton, supra; see also Lawson v. Interior Tree Fruit and Vegetable Committee of Direction, [1931] S.C.R. 357, at p. 373.  The creation of a central government, the trade and commerce power, s. 121  and the building of an transcontinental railway were expected to help forge this economic union.  The concept of Canada as a single country comprising what one would now call a common market was basic to the Confederation arrangements and the drafters of the British North America Act attempted to pull down the existing internal barriers that restricted movement within the country.

 

    Section 121  of the Constitution Act, 1867 , was one of the pillars of the Confederation scheme for achieving the economic union sought by the Fathers of Confederation.  It provides:

 

    121.  All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other provinces.

 

    Rand J. in Murphy v. Canadian Pacific Railway Co., [1958] S.C.R. 626, at p. 638, commented on the scope of s. 121 :

 

Apart from matters of purely local and private concern, this country is one economic unit; in freedom of movement its business interests are in an extra-provincial dimension, and, among other things, are deeply involved in trade and commerce between and beyond provinces.

 

The word "free" in the context of s. 121  was held to mean "without impediment related to the traversing of a provincial boundary."

 

    Echoes of these sentiments can be found in Laskin J.'s (as he then was) decision in Attorney-General for Manitoba v. Manitoba Egg and Poultry Association, [1971] S.C.R. 689.  Laskin J. asserted at p. 717 that,

 

... to permit each province to seek its own advantage, so to speak, through a figurative sealing of its borders to entry of goods from others would be to deny one of the objects of Confederation, evidenced by the catalogue of federal powers and by s. 121 , namely, to form an economic unit of the whole of Canada:  see the Lawson case.

 

    Before the enactment of the Charter , however, there was no specific constitutional provision guaranteeing personal mobility, but it is fundamental to nationhood, and even in the early years of Confederation there is some, if limited, evidence that the courts would, in a proper case, be prepared to characterize certain rights as being fundamental to, and flowing naturally from a person's status as a Canadian citizen.  In Union Colliery Company of British Columbia v. Bryden, [1899] A.C. 580, the Privy Council dealt with the validity of a British Columbia enactment that prohibited people of Chinese origin or descent from being employed in mines.  The Privy Council found the provision to be ultra vires the provincial legislature and thus illegal.  Lord Watson based his reasons on s. 91(25) of the British North America Act, which gives exclusive legislative authority over "naturalization and aliens" to the Parliament of Canada.  "Naturalization", it was held at p. 586, includes "the power of enacting ... what shall be the rights and privileges pertaining to residents in Canada after they have been naturalized."  Provincial interference with a resident's right to live and work in the province was thus not permitted; see also Cunningham v. Homma, [1903] A.C. 151, at p. 157.

 

    It was left to Rand J. in Winner v. S.M.T. (Eastern) Ltd., [1951] S.C.R. 887, to spell out the full implications of the Bryden case for Canadian citizenship.  Rand J. makes it clear that Canadian citizenship carries with it certain inherent rights, including some form of mobility right.  The essential attributes of citizenship including the right to enter and the right to work in a province, he asserted, cannot be denied by the provincial legislatures.  And he extended this right for practical purposes to other residents of Canada.  He thus put it at pp. 919-20:

 

    What this implies is that a province cannot, by depriving a Canadian of the means of working, force him to leave it:  it cannot divest him of his right or capacity to remain and to engage in work there:  that capacity inhering as a constituent element of his citizenship status is beyond nullification by provincial action.  The contrary view would involve the anomaly that although British Columbia could not by mere prohibition deprive a naturalized foreigner of his means of livelihood, it could do so to a native-born Canadian.  He may, of course, disable himself from exercising his capacity or he may be regulated in it by valid provincial law in other aspects.  But that attribute of citizenship lies outside of those civil rights committed to the province, and is analogous to the capacity of a Dominion corporation which the province cannot sterilize.

 

    It follows, a fortiori, that a province cannot prevent a Canadian from entering it except, conceivably, in temporary circumstances, for some local reason as, for example, health.  With such a prohibitory power, the country could be converted into a number of enclaves and the "union" which the original provinces sought and obtained disrupted.  In a like position is a subject of a friendly foreign country; for practical purposes he enjoys all the rights of the citizen.

 

    Such, then, is the national status embodying certain inherent or constitutive characteristics, of members of the Canadian public, and it can be modified, defeated or destroyed, as for instance by outlawry, only by Parliament.

 

    During the constitutional exercise culminating in the enactment of the Charter , there was a wave of political and academic concern regarding the construction of numerous barriers to interprovincial economic activity.  There was also a strong feeling that the integration of the Canadian economy, which had been only partially successful under the British North America Act, should be completed.  The federal government in particular was concerned about the growing fragmentation of the Canadian economic union; see Safarian, Canadian Federalism and Economic Integration (1974); Trebilcock, Federalism and the Canadian Economic Union (1983); Trudeau, A Time for Action -‑ Toward the Renewal of the Canadian Federation (1978); Canadian Bar Association Committee on the Constitution, Towards a New Canada (1978); the Constitutional Committee of the Quebec Liberal Party, A New Canadian Federation (1980); The Task Force on Canadian Unity, A Future Together ‑ Observations and Recommendations (1970); Chrétien, Powers Over the Economy:  Securing the Canadian Economic Union in the Constitution (1980).

 

    These economic concerns undoubtedly played a part in the constitutional entrenchment of interprovincial mobility rights, under s. 6(2)  of the Charter .  But citizenship, and the rights and duties that inhere in it are relevant not only to state concerns for the proper structuring of the economy.  It defines the relationship of citizens to their country and the rights that accrue to the citizen in that regard, a factor not lost on Rand J., as is evident from the passage already quoted.  This approach is reflected in the language of s. 6  of the Charter , which is not expressed in terms of the structural elements of federalism, but in terms of the rights of the citizen and permanent residents of Canada.  Citizenship and nationhood are correlatives.  Inhering in citizenship is the right to reside wherever one wishes in the country and to pursue the gaining of a livelihood without regard for provincial boundaries.  Under Charter disposition, that right is expressly made applicable to citizens and permanent residents alike.  Like other individual rights guaranteed by the Charter , it must be interpreted generously to achieve its purpose to secure to all Canadians and permanent residents the rights that flow from membership or permanent residency in a united country.

 

    This approach, it seems to me, is wholly consistent with the "purposive" interpretation to the Charter  set forth by Dickson C.J. in R. v. Big M Drug Mart Ltd., supra, in the following passage at p. 344:

 

    In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter  itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter .  The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter 's protection.  At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter  was not enacted in a vacuum, and must therefore, as this Court's decision in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts.

 

    It is not without interest, given the broad similarities in the federal structure of the two countries that mobility rights have also been found to exist under the United States Constitution.  The United States position, it is true, results from a different constitutional foundation from s. 6  of the Charter  but, in my view, it can still help to illuminate some of the points that arise under s. 6 .

 

    The American constitution does not have a specific clause dealing with "mobility rights" but some of its provisions have been judicially interpreted as protecting these rights.  This has been done primarily by Art. IV, s. 2(1) of the United States Constitution, which provides that "The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."  The United States Supreme Court in Toomer v. Witsell, 334 U.S. 385 (1948), stated that the aim of the privileges and immunities clause was "to help fuse into one Nation a collection of independent, sovereign States."  But it is noteworthy that this aim, as in the case of the Charter , was achieved by according rights to the citizen.  The aims of Art. IV are similar to those of s. 6  of the Charter  and the United States courts have imported rights similar to s. 6(2)  into Art. IV.  The same state economic concerns and the right of the citizen are intertwined.

 

Section 6(2) (b) -‑ The Existing Cases

 

    The foregoing considerations were reflected in the few cases that have thus far been decided under s. 6(2) , and were repeated in the only judgment to reach this Court on the provision, Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357.

 

    At issue in Skapinker was the validity of s. 28(c) of the Law Society Act, R.S.O. 1980, c. 233, which required all members of the Ontario bar to be Canadian citizens.  Mr. Skapinker, a South African citizen and a resident of Canada, met all the preconditions to membership to the bar except that of citizenship required by s. 28(c).  He argued that pursuant to s. 6(2) (b) he had as a permanent resident a "free-standing" right to work and, therefore, s. 28(c) was inconsistent with s. 6(2) (b) of the Charter  and was thus rendered inoperative by s. 52(1)  of the Constitution Act, 1982 .  The argument, it should be noted, was not based on residency; Mr. Skapinker was already a resident of Ontario.

 

    Estey J., speaking for a unanimous Court, upheld s. 28(c).  He discussed the inter-relationship between s. 6(2) (a) and (b) and concluded that although s. 6(2) (a) (the right to move and take up residency) and (b) (the right to pursue the gaining of a livelihood) are not to be read as being strictly conjunctive, s. 6(2) (b) could not be completely divorced from the rights granted in s. 6(1)  and 6(2) (a).  Section 6(2) (b) contained a mobility element.  It did not, therefore, support a "free-standing" right to work for which Skapinker argued.

 

    Section 6(2) (a) and (b) was treated as according separate but not isolated rights consistent with the fact that the section is prefaced by the heading ‑ "Mobility Rights".  "There is," said Estey J., "a separation of function and purpose" (p. 380) between the two clauses.  The mobility element inherent in para. (b) does not go so far as to require a person to move to another province and become a resident of that province before he or she has a right to gain a livelihood in that province.  At p. 382, Estey J. stated:  "The two rights (in para. (a) and in para. (b)) both relate to movement into another province, either for the taking up of residence, or to work without establishing residence."

 

    Estey J. specifically addressed the situation of the transprovincial border commuter.  Such a commuter, he held, need not establish residence in the province of employment in order to have a guaranteed right to work under para. (b).

 

    In Skapinker, this Court was not required to grapple with the specific nature of the "mobility" element.  What is clear, however, is that the issues must be informed by considerations regarding citizenship such as those I discussed earlier.  This is evident from Estey J.'s treatment of the decision of Deschênes C.J.S.C. in Malartic Hygrade Gold Mines Ltd. v. The Queen in Right of Quebec (1982), 142 D.L.R. (3d) 512, [1982] C.S. 1146, which he described as instructive.

 

    Malartic Hygrade was concerned with s. 59 of the Act Respecting the Barreau du Québec, R.S.Q. 1977, c. B-1, which allowed a member of the bar of another province to appear occasionally before the Quebec courts, but only with respect to matters involving federal jurisdiction and only if the other province extended reciprocal privileges to Quebec lawyers.  The provision was attacked both under s. 2  and s. 6(2) (b) of the Charter .  Dealing with the latter provision, the Chief Justice gave a broad meaning to s. 6(2) (b).  In a passage cited by Estey J. (at p. 381), he stated at pp. 520-21:

 

    The purpose of this provision is undoubtedly to give Canadian citizenship its true meaning and to prevent artificial barriers from being erected between the provinces.

 

                                                                           ...

 

    In principle the Charter  thus intends to ensure interprovincial mobility.

 

Deschênes C.J. also added, at p. 521, that s. 6(2) (b) should be construed as preventing provincial prohibitions on the basis of "extra-provinciality", i.e., making residence a criterion of exclusion.  Any limitation to interprovincial mobility must, in his view, satisfy the criteria in s. 6(3) (a) to be valid.  It is by way of s. 6(3) (a), he thought, that regional characteristics should be taken into account.  He then went on to find s. 28(c) valid by virtue of that provision.  It suffices here to say that I agree with the broad scope given to s. 6(2) (b) and need not deal with his conclusions regarding s. 6(3) (a).  I shall, however, deal with the issues that arise in the present case regarding that provision later.

 

    The nature of the requisite mobility element was raised in Basile v. Attorney-General of Nova Scotia (1984), 11 D.L.R. (4th) 219 (N.S.S.C.A.D.)  A Nova Scotia regulation prohibited non-residents from obtaining a direct seller's licence.  The plaintiff, who was employed as a direct seller for a Quebec publishing company, applied for a licence but the application was refused because he was not a permanent resident of Nova Scotia.  He then challenged the provision on the basis of s. 6(2) (b) of the Charter .   The court declared that the regulation violated s. 6(2) (b) and was not saved by s. 6(3)  or s. 1 .

 

    Jones J.A., who delivered the judgment of the court, took a broad approach to s. 6(2) (b).  He held at p. 224 that "... the Charter  confers the right to pursue the gaining of a livelihood in any province irrespective of residency."  While he accepted the view of the majority of the Ontario Court of Appeal in Re Skapinker and Law Society of Upper Canada (1983), 145 D.L.R. (3d) 502, later reversed by this Court, he based his reasons squarely on the fact that the prohibition in question discriminated against non-residents and that this violated the rights of the citizen, not simply the right to mere mobility.  He had this to say at p. 224:

 

With respect to the Ontario Court of Appeal, the emphasis should be on the rights of citizenship and not simply mobility.  Section 19 of the regulations prohibits any non-resident from carrying on business as a direct seller in Nova Scotia.  The clause clearly discriminates against non-residents and the trial judge so found.  It is impossible for a non-resident to obtain a licence on that ground alone.  Prima facie, therefore, the section violates s. 6(2) (b) of the Charter .

 

    I shall have more to say about this issue in discussing Rule 154.  In any event, assuming mobility of a non-resident is required to invoke the protection given by s. 6(2) (b), it seems to me to be in the spirit of the examples given in Skapinker, supra. A non-resident who desires a Nova Scotia direct seller's licence will necessarily have to have some contact with Nova Scotia in order to make any use of the licence, even though he returns regularly to his residence in Quebec.  Such contact seems sufficient to satisfy any requirement of personal mobility.  A generous interpretation of the Charter  would at least dictate that such a mobility element need not be a regular or prominent component, keeping in mind that s. 6(2) (a) merely aids in the interpretation of s. 6(2) (b) and neither subsection is wholly dependent on the other.

 

    The cases have raised a further issue, namely, whether a particular claim is protected by the phrase "to pursue the gaining of a livelihood."  Arnup J.A., dissenting in the Court of Appeal in Skapinker, supra, made passing reference to this at pp. 514-15.  "The permanent resident who goes to another province," he stated, "has a right to pursue the gaining of a livelihood there, whether that person is a lawyer or a Class "A" mechanic, but must comply with the local laws concerning the qualifications of all lawyers or all mechanics (except laws discriminating on the basis of past or present province of residence)."  I agree.  Section 6(2) (a), in my view, guarantees not simply the right to pursue a livelihood, but more specifically, the right to pursue the livelihood of choice to the extent and subject to the same conditions as residents.

 

    Denying non-residents access to some fields cannot be condoned, for the purposes of s. 6(2) (b), by the fact that some job positions are still left open to non-residents.  The right to pursue this livelihood of choice must remain a viable right and cannot be rendered practically ineffective and essentially illusory by the provinces.  This point may be illustrated by Re Mia and Medical Services Commission of British Columbia (1985), 17 D.L.R. (4th) 385 (B.C.S.C), a case in which the Medical Services Commission of British Columbia refused to issue a billing number to a qualified medical doctor to practise as a general practitioner in the place chosen by her.  It was held that the Commission had no jurisdiction to deny the petitioner a billing number.  Although a successful administrative law argument was sufficient to dispose of the petition, McEachern C.J.S.C. (now C.J.B.C.) went on to deal with the case in the context of ss. 6  and 7  of the Charter .  With respect to s. 6 , he suggested that one need not be completely cut off from a particular livelihood for a violation to exist.  It was sufficient if a person was disadvantaged in the pursuit of that livelihood.  Preference was given to other members for billing numbers based on residence and previous practice.  The petitioner was, therefore, disadvantaged.  The argument that the petitioner was not disadvantaged by the denial of a billing number because she could require her patients to pay her directly was quickly and, in my view, correctly rejected.  It is unrealistic to expect patients who have medical insurance to obtain the services of a doctor whose services are not covered by the medical plan.  The denial of a billing number realistically precluded the petitioner from pursuing her livelihood of choice in the place of her choice.  The phrase in s. 6(2) (b), "to pursue the gaining of a livelihood" was construed to mean "the right to practice [sic] on a viable economic basis" (p. 408):  see also Wilson v. Medical Services Commission of British Columbia (1987), 9 B.C.L.R. (2d) 350.

 

    It is important for the courts to look at the substance of provisions, which on their face do not appear to affect the pursuit of the gaining of a livelihood and ensure that these provisions are not for practical purposes rendered impotent.

 

The Application of s. 6(2) (b) of the Charter  to Rules 154  and 75B 

 

    I am of the view that both Rule 154 and Rule 75B violate s. 6(2) (b) of the Charter .  The combined effect of the rules seriously impairs the ability of the respondents to maintain a viable association for the purpose of obtaining a livelihood, and makes such a business arrangement completely unfeasible.

 

    Dealing first with Rule 154, all the judges in the courts below agreed that the rule prima facie violated s. 6(2) (b).  Rule 154 does not prohibit non-resident lawyers from practising law in Alberta.  Rather, it prohibits non-residents from associating with residents for the purpose of the practice of law.  Non-resident members of the Law Society are free to practise law in Alberta by themselves or with other non-resident members.  Non-residents, although not denied the right to practise law in Alberta, are severely restricted in the way in which they can engage in the practice.  Non-residents are prevented from forming partnerships with resident lawyers.  Partnerships are the most common mode of law office organization and Rule 154 prohibits non-residents from forming partnerships with the people who would be their most valuable link to the Alberta legal community, the resident lawyers.  Without any substantial links in Alberta, non-resident members would be seriously restricted in their ability to gain a livelihood in Alberta.

 

    Assuming personal mobility is required to trigger the protection of s. 6(2) (b), Rule 154 is so written as to restrict such mobility.  In Skapinker, supra, Estey J. stated that s. 6  protected one's right to work in another province without taking up residence in that province.  Rule 154 makes it for all practical purposes, impossible for any person to practise law effectively in Alberta without taking up residence there.  It must be remembered that although the particular facts of this case provide a valuable context in which to examine the rules, it is the legislation that is under scrutiny and it is that legislation that must be examined to see if its object or effect is to impair mobility.

 

    I accept the meaning attributed to the provision by Kerans J. in the court below, and I do not think it can be read down, as the Law Society and the Attorney General of Quebec suggest, so as not to include a person who resides outside Alberta but personally maintains a practice in the province.  Even if I were to so read the section, however, I would have thought any relevant mobility protected by s. 6(2) (b) would be sufficient to pursue one's livelihood.  The infrequent visits to Alberta of the Toronto partners of the respondents would, therefore, be enough.  This flows from what I had to say earlier with respect to Basile, supra.  Such movement, in my view gives a sufficient "taint of relevancy" to the element of mobility, to use Estey J.'s phrase in Skapinker, supra.  It would pose an impossible task on courts to expect them to superintend precisely how much interprovincial movement an individual should engage in in order to be protected by s. 6(2) (b).  That factor, indeed, suggests that s. 6(2) (b) should be approached on a broader basis.

 

    In truth, a purposive approach to the Charter  dictates a more comprehensive approach to mobility.  What section 6(2) was intended to do was to protect the right of a citizen (and by extension a permanent resident) to move about the country, to reside where he or she wishes and to pursue his or her  livelihood without regard to provincial boundaries.  The provinces may, of course, regulate these rights (as Skapinker holds).  But, subject to the exceptions in ss. 1  and 6  of the Charter , they cannot do so in terms of provincial boundaries.  That would derogate from the inherent rights of the citizen to be treated equally in his capacity as a citizen throughout Canada.  Those rights are extended now to those who have the status of a permanent resident of Canada.  This approach is consistent with the rights traditionally attributed to the citizen as expounded in Winner, supra, with the concerns expressed when the Charter  was being negotiated, and with the language of the Charter .  It is also consistent with the generous and purposive approach mandated by the Charter .

 

    The language of s. 6(2)(b) is surely clear enough.  It accords the citizen and permanent residents the right "to pursue the gaining of a livelihood in any province".  The latter term, it should be noted, does not connote the physical movement of the individual to the province.  The expression "to work in the province", which is used in some of the cases, might more easily be open to that interpretation.  But these are not the words used in the Charter .  There is, however, no doubt that a person can pursue a living in a province without being there personally.  That is consistent with the law in other areas.  A non-resident has been held to be liable to a personal tax on income earned in a province even though that person was there only through the instrument of an agent.  Such a tax was considered to have been imposed "within the province";  see, for example, Kerr v. Superintendent of Income Tax, [1942] S.C.R. 435.  As Estey J. notes in Skapinker, supra, at p. 379, the heading "Mobility Rights" preceding s. 6 , is not controlling but is perhaps limited to eliminate a meaning that is out of sympathy with that heading.  The heading seems to me to be a good general description of the provisions of s. 6 , and an interpretation that permits a person to pursue his living throughout Canada does not seem to me to be a meaning that is out of sympathy with mobility.  What is more, the wording of s. 6(3) (a) suggests that s. 6(2) (b) should have the meaning I have given it; see Re Mia, supra, at p. 404.  I repeat here the words of Estey J. in Skapinker, supra, at p. 380, where he says:

 

The concluding words of s. 6(3) (a), just cited, buttress the conclusion that s. 6(2)(b) is directed towards "mobility rights", and was not intended to establish a free standing right to work.  Reading s. 6(2)(b) in light of the exceptions set out in s. 6(3) (a) also explains why the words "in any province" are used:  citizens and permanent residents have the right, under s. 6(2)(b), to earn a living in any province subject to the laws and practices of "general application" in that province which do not discriminate primarily on the basis of provincial residency.

 

    It is true that many of the remarks in Skapinker are directed to the situation of individuals personally moving across the border.  It must be remembered, however, that what was sought to be distinguished in that case was a law not directed at non-residents at all.  Skapinker was already a resident of Ontario and the provision there did not constitute a provincial barrier that favoured residents.  The reference to commuters was, therefore, a convenient vehicle to do this, particularly having regard to the fact that this example was expressly prompted in argument; see p. 370.  The right of the citizen or permanent resident to pursue the gaining of a livelihood by offering his services anywhere in Canada has, in my view, a quite sufficient "taint of relevancy" to the heading "Mobility Rights" preceding s. 6 .

 

    It is persuasive that the privileges and immunities clause of the United States Constitution (which we saw has a purpose similar to s. 6(2)  of the Charter ) has been interpreted so as to give the citizens of that country rights similar to those explained in these reasons.  Recently, the United States Supreme Court struck down New Hampshire's residency requirement for admission to the bar on the basis that it violated the privileges and immunities clause of the Constitution:  Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985).  In Piper, a Vermont resident was permitted to take, and successfully passed, the New Hampshire bar examination.  However, she was not permitted to be sworn in because Rule 42 of the Rules of the Supreme Court of New Hampshire which restricts admission to state residents or persons intending to become residents.  Powell J., for the Court, stated that the privileges and immunities clause "was intended to create a national economic union" (p. 280).  The practice of law was considered to be important to the national economy.  Depriving a citizen of one state the right to do business in another state on terms essentially equal to those imposed for citizens of the second state was held to lead to a deprivation of a privilege guaranteed by Article IV.  Dealing with the particular facts of that case, Powell J. found that there was no substantial reason for discrimination against non-resident applicants, nor was it illustrated that the discriminatory practices bore a close relationship to the proffered objectives.  Similar reasoning was employed by the United States Supreme Court to strike down a provision under the Virginia Supreme Court Rules which imposed a residency requirement for admission to that State's bar:  Supreme Court of Virginia v. Friedman, 56 U.S.L.W. 4669 (1988).

 

    A similar development has prevailed even in the European Economic Community.  In Ordre des Avocats au Barreau de Paris v. Klopp, [1985] 1 C.M.L.R. 99 (E.C.J. 1984), the European Court of Justice held that the Paris Bar Council could not deny membership to a German national who wished to establish offices in Paris and Düsseldorf contrary to a Paris rule which limited an advocate to one office.

 

    I turn then briefly to Rule 75B.  It also violates s. 6(2) (b) for reasons similar to those set out with respect to Rule 154.  As I stated earlier, the two rules working in concert render interprovincial law firms unfeasible, and it is obvious from the facts that that is what they were designed to do.  The forming of multiple partnerships is one of the most viable ways of organizing an interprovincial firm.  It was added to strengthen Rule 504 and was not directed at any other problem.  I shall have more to say of this in discussing s. 6(3) (a).

 

Limitations on s. 6(2)  Right

 

    Since I have found that both Rules 154 and 75B violate s. 6(2) (b) of the Charter , it remains to determine whether they can be upheld under s. 6(3) (a) or s. 1 ,  both of which provisions circumscribe the rights guaranteed by s. 6(2) .  Some commentators, it is true, have suggested that s. 6(3)  and (4)  amount to a comprehensive legislative determination of the justifiable limits to s. 6(2)  and thus render s. 1  superfluous:  Hogg, Canada Act 1982 Annotated (1982), at pp. 25-26; Lee and Trebilcock, "Economic Mobility and Constitutional Reform" (1987), 37 U. of T. L.J. 268, at p. 301.  I disagree with this proposition.  Section 6(2)  is subject to both s. 6(3)  and s. 1 .  The two provisions are significantly different and s. 6(3)  is by no means a legislative translation of how s. 1  is to be interpreted in the context of s. 6(2) Section 6(3)  acts as more or less a footnote to s. 6(2) .  It merely qualifies s. 6(2) ; it does not usurp the function of s. 1 .  The important balancing of various interests which is achieved under s. 1  cannot be so easily displaced.

 

Section 6(3) (a)

 

    Section 6(3)  of the Charter  provides:

 

6.  . . .

 

    (3)  The rights specified in subsection (2) are subject to

 

(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and

 

(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

 

    Section 6(3) (a) validates laws of general application but only if such laws do not discriminate primarily on the basis of province of residence.

 

    I need not enter into an extensive discussion of the meaning of "a law of general application" because even if the rules can be said to fall within that rubric, they are not covered by s. 6(3) (a) because, in my view, they "discriminate among persons primarily on the basis of the province of present or previous residence."  That is surely obvious in the case of Rule 154.  That rule makes direct reference to a lawyer's province of residence.  The Law Society determined who could practise with whom by reference to residence.  I am hard pressed to think of a clearer example of a provision that discriminates primarily on the basis of residence.

 

    The status of Rule 75B, however, is not as clear.  Dea J. and Kerans J.A. both appear to accept that because the avowed purpose of the rule was to control conflicts of interest in general, it does not discriminate on the basis of province of residence.  I have serious difficulty with this.  Besides, they appear to have neglected to assess the effect of the legislation and not merely its object.  In R. v. Big M Drug Mart Ltd., supra, Dickson C.J. stated that if the purpose or effect of a law is unconstitutional, then the law is unconstitutional.  The same standard of scrutiny applies with respect to the second branch of s. 6(3) (a).

 

    The purpose of Rule 75B must first be examined.  I am strongly of the view that Rule 154 and Rule 75B are intertwined.  Immediately after a legal opinion concerning Rule 154 was considered by the Law Society, Rule 75B was added to the rules and counsel for the respondents was invited to present submissions on both of them.  According to the then vice-president of the Law Society, the meeting at which Rule 75B was passed was the only meeting where such a rule was discussed.  Mr. Virtue, a Bencher, stated that the considerations that prompted the passage of Rule 75B were "perhaps intermingled with the considerations of the 154 rule".  He went on to state that the object of Rule 75B was to avoid conflicts of interest, especially those that would result "if the two partnerships are widely separated geographically".  The same Bencher conceded that Rule 154 was designed to prohibit national law firms.  Like Rule 154, Rule 75B was aimed at prohibiting residents and non-resident members from associating for the practice of law.

 

    It is also apparent that the effect of Rule 75B would be to discriminate on the basis of residence.  Mr. Virtue acknowledged that at the time the Benchers were considering Rule 75B, "it was clear to everyone, at least it was clear to me, that 75B would have an effect on those who wanted to try to have national law firms ...."  He went on to state that it was desirable that Rule 75B affect the creation of national law firms because the appellant could better carry out its functions in the absence of such firms.  Kerans J.A., in his s. 1  analysis, acknowledged that the effect of Rule 75B was to inhibit the association of resident and non-resident members.  He stated that "very few resident lawyers would have any occasion to enter into more than one partnership ... the two-level firm renders an inter-provincial law firm more feasible."  It is not the members of local firms but rather those that want to develop and maintain interprovincial connections who will be most severely affected by Rule 75B.  Rule 75B is therefore not saved by s. 6(3) (a) of the Charter .  Whether the appellant was justified in discriminating on the basis of residence because of its concerns regarding conflicts of interest will be assessed under s. 1 .

 

Section 1 

 

    Having established that Rules 154 and 75B violate s. 6(2) (b) of the Charter  and are not justified under the terms of s. 6(3) (a), it is now necessary to assess whether these rules impose reasonable limits which are demonstrably justified in a free and democratic society within the meaning of s. 1  of the Charter .  The onus at this stage of the Charter  inquiry rests on the party seeking to uphold the limitation, in this case, the Law Society:  R. v. Oakes, supra, at pp. 136-37.

 

    The section 1  inquiry involves two steps.  The first entails an assessment of the importance of the objectives underlying the impugned law.  The legislative purpose must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom":  R. v. Big M Drug Mart Ltd., supra, at p. 352.  The objective must relate to concerns "which are pressing and substantial in a free and democratic society ...":  R. v. Oakes, supra, at pp. 138-39.

 

    The Law Society Act and the rules enacted thereunder are obviously aimed at a legitimate legislative objective, the regulation and control of the legal profession.  The legal profession plays an important role in society and the government has, therefore, a valid interest in regulating the competence and ethical standards of its members.

 

    The second step in the s. 1  analysis involves an assessment of the proportionality of the means employed to achieve the objective pursued.  The nature of this proportionality test will, of course, necessarily vary with the circumstances.  We must keep in mind the words of Dickson C.J. in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at pp. 768-69:

 

Both in articulating the standard of proof and in describing the criteria comprising the proportionality requirement the Court has been careful to avoid rigid and inflexible standards.

 

    The legislature must be given sufficient scope to achieve its objective.  As I noted in R. v. Edwards Books and Art Ltd., at p. 795, in struggling with questions of social policy and attempting to deal with conflicting pressures, "a legislature must be given reasonable room to manoeuvre ..."  The term "reasonable limit" is used in s. 1  and must be given meaning.  Inherent in the word "reasonable" is the notion of flexibility.  Section 1  does not advocate perfection.  But, as I shall attempt to demonstrate, however flexible one may be, the present rules do not pass muster under s. 1 .

 

    Dealing first with Rule 154, the Law Society argued that prohibiting interprovincial law firms is justified on a number of grounds.  I will deal with each of these purported justifications in turn.

 

1.  Practice by Non-Members

 

    The Law Society claims that legal services delivered to the public of Alberta would be endangered by interprovincial law firms because these services would ultimately be delivered in Alberta by lawyers who are not members of the Law Society.  This concern is, in my view, unfounded.  It is quite possible that the partners of Black & Co. will utilize the expertise of partners of McCarthy & McCarthy who are not members of the appellant.  This is quite understandable since many legal problems transcend provincial boundaries and require cooperation for their resolution.  Lawyers often have to draw upon the resources of people who do not belong to the same law society and, indeed, often require the services of non-lawyers even for matters having a legal component, for example, the use of paralegals.

 

    This kind of conduct has never been seen as a threat to the quality of legal services.  A lawyer cannot be an expert in all fields, nor can he or she have sufficient knowledge of the laws of various jurisdictions.  It would be foolish and perhaps negligent for a lawyer to try to deal with all the complex problems that cross his or her desk without seeking guidance and assistance from one more knowledgeable in the area.  It must be remembered that the member lawyer takes full responsibility for the work of a non-member, whether that non-member be a student, a paralegal, or a lawyer from another jurisdiction, and to fulfill his or her obligations to the Law Society the member lawyer must adequately supervise all work done in his or her name.  If a person has engaged in the unauthorized practice of law, sanctions are available:  Legal Profession Act, R.S.A. 1980, c. L-9, ss. 93 and 96.

 

2.  Local Competence and Expertise

 

    The Law Society's concern that local competence and expertise will be diminished by the existence of interprovincial law firms is not persuasive.  This argument resembles a justification for the protection of an indigenous bar rather than a valid reason for the prohibition in Rule 154.  This "problem", if that is in fact what it is, exists in relation to all non-resident members, of which there are a good number, and is in no way exacerbated by the association of residents with non-residents.  In fact, by associating with resident members, non-resident members maintain a valuable link with Alberta and keep abreast of local rules and procedures.  The perceived problem is not remedied by segregating resident members from non-resident members.

 

    There is no evidence that non-resident members are less competent to deal with local matters and there is no reason to believe that this is in fact the case.  As the United States Supreme Court has noted in Supreme Court of New Hampshire v. Piper, supra, at p. 285, a non-resident lawyer is likely to have a substantial incentive, as a practical matter, to familiarize himself or herself with local rules if he or she intends to sustain any kind of local practice or reputation.

 

    In Frazier v. Heebe, 96 L.Ed. 2d 557 (1987), at p. 566, Brennan J. pointed out that non-residents who have passed the local bar exams have demonstrated their competence in local matters.  The examination process should be adequate to ensure that those who are not competent to deal with local matters are disqualified from becoming members of that bar.

 

3.  Assurance Fund and Liability Insurance

 

    The Law Society contends that the Alberta assurance fund will be exposed to increased risks due to the proliferation of national law firms.  It is argued that confusion would arise as to whether, in the event of a defalcation, a client would have a claim against the Alberta fund or the fund maintained in another province.  The non-resident members pay into the Alberta fund to the same extent as resident members and most of the other provinces maintain similar funds.  It is, therefore, unlikely that the Alberta fund will be exposed to added risks.  The potential for confusion is not so significant that it demands such a sweeping prohibition.  In order to claim from the Alberta assurance fund, the loss must be directly related to a member's practice within the province.  An investigation is routinely conducted to determine if the claim is valid.  Even where an interprovincial law firm is involved, material should be readily available to adequately establish if the defalcation was related to practice within the province.  I accept that the location of the practice may not be as obvious in the case of a non-resident member who is associated with resident members, and may require more thorough investigation, but it does not create insurmountable barriers in the maintenance and regulation of the assurance fund.

 

    Concerns about insurance coverage have also been raised.  It is in the public interest for lawyers to be covered by liability insurance.  The most obvious way for a law society to ensure that a member, whether a resident or not, is properly insured is to establish rules making insurance mandatory. This has in fact been done by the appellant Law Society.  Non-resident members are not covered by the group insurance plan it operates, but under Rule 129, a non-resident must prove that he or she is insured against claims for professional liability arising out of his or her practice in Alberta to an extent substantially equivalent to the indemnity afforded to resident members.  A member who is not properly insured is subject to suspension.  There is no reason to suspect that this rule would not be adequate to ensure that members are sufficiently insured.

 

4.  Discipline

 

    The Law Society's claim that the effectiveness of its disciplinary power would be diminished with respect to non-resident members who are part of an interprovincial law firm may, at first sight, seem persuasive.  Closer examination, however, reveals that this concern is unfounded.  Related to this concern is the contention that the non-resident associated with a resident would lose respect for the government of the profession by the Law Society.

 

    The Law Society can define the appropriate ethical requirements for its members and discipline them, wherever they may reside.  Sanctions can be effective even outside of provincial boundaries.  There is no greater problem created merely because a non-resident associates with a resident.  The same concerns arise with respect to any non-resident member.  An association with a resident member may in fact increase the Law Society's control over the non-resident, since the non-resident will maintain important connections with the local forum which would likely be severed completely if he or she did not respect the sanctions imposed by the Law Society.  For the same reasons, the relationship may in fact increase the respect that members have for the Law  Society's authority.  The resident members may also put pressure on a non-resident to submit to discipline in order to maintain the integrity of the other lawyers and the reputation of the firm in the community.

 

    A non-resident who makes the initial investments required to establish an interprovincial firm and who takes the time and trouble to become properly qualified in another province has a significant interest in submitting to the requirements of the Law Society.  Even a suspension, for example, would seriously affect such a member even though that member could still practise in another jurisdiction, because a link that he or she found important enough to invest in developing would be broken.  A suspension is likely to affect the non-resident who is associated with a resident more than a non-resident with no such affiliation.

 

5.  Competence Support Programs

 

    The appellant Law Society has a number of volunteer programs aimed at maintaining the competence of the profession such as loss prevention seminars, the assistance of a practice adviser and "mentors".  Non-resident members, it is argued, cannot avail themselves of these programs and it is implied that the non-residents are therefore less competent lawyers.  I discussed my view of the concerns with respect to competence earlier and I will not repeat my comments here.  I doubt that all or even most of the resident members take advantage of these programs.  If these programs are essential to continued competence, the Law Society should make them mandatory.

 

    Non-residents may be able to avail themselves of the benefits of the Law Society's programs or equivalent programs offered in their province of residence.  Lawyers often travel to attend conferences and seminars.  The guidance of a practice adviser or voluntary mentor can be obtained over the telephone.  The law society in the person's province of residence is also likely to offer similar programs.

 

6.  Ethics ‑ Fee-splitting

 

    The final justification advanced by the Law Society for prohibiting national law firms is that such arrangements may result in fee-splitting, which the Law Society considers to be unethical.  Despite this, however, the Law Society had previously rescinded the rule prohibiting such division of fees.  If fee-splitting is such unethical conduct and is to be avoided at all costs, it would be only logical to expect the appellant to enact a rule to deal with the matter.  This they have not viewed as necessary.

 

    Without commenting on whether fee-splitting is inherently unethical, I find that the creation of interprovincial firms will not necessarily result in fee-splitting.  The arrangement between Black & Co. and McCarthy & McCarthy is a useful illustration.  The profits of Black & Co. are shared only among the partners of Black & Co.  If fee-splitting did occur, contrary to a rule of the Law Society, the members involved could be appropriately sanctioned.

 

    In conclusion, I find that the limits on s. 6(2)  rights resulting from Rule 154 are completely disproportionate to the alleged legislative objectives sought.  The fact that the appellant did not even consider  anything less than a blanket prohibition is in my view revealing.  There are many reasonable alternatives for obtaining the legislative purpose aimed at without so drastically affecting these mobility rights.  The rule is not reasonably justified as required by s. 1 , and it is therefore of no force or effect.

 

    Turning to Rule 75B, the appellant argues that this rule is justified because (1) it aims at controlling breaches of confidentiality and conflict of interest, and (2) reduces the ethical problem of touting and steering.

 

    It is undoubtedly important for a lawyer to avoid conflicts of interest.  As a firm increases in size and establishes branch offices, more sophisticated means of detecting and avoiding conflicts must be implemented.  In this modern age of computers such detection systems are available.  The computer system used by Black & Co. in conjunction with McCarthy & McCarthy has proven to be very effective in avoiding conflicts of interest.  Similar systems have been successfully used in large national and international accounting firms.  In the United States, where inter-state firms have proliferated, there is no evidence that these firms have encountered significant problems with conflicts of interest.

 

    The problems of confidentiality and conflicts are largely a function of the size of a firm.  Once a firm has more than a handful of lawyers, communication becomes more difficult and a systematic means of avoiding conflicts must be put into place.  Rule 75B is a sweeping prohibition which prevents associations regardless of the size of the firms or the locations.  It is again a drastic measure to avoid a problem that could more easily be contained.  The Law Society already requires its members to avoid conflicts.  If a member violates this requirement, that person, resident or not, is subject to discipline by the Law Society.

 

    Many of the comments I made with respect to fee-splitting also apply to the Law Society's concerns regarding touting and steering.  Touting and steering are not expressly prohibited by the rules of the Law Society.  If the conduct is particularly undesirable, it should be regulated by more direct means than Rule 75B.  Rule 75B is not saved by s. 1  of the Charter  and, thus, it too is of no force and effect.

 

    In light of the conclusion I have reached with respect to s. 6(2) (b) of the Charter , there is no need for me to discuss whether Rules 154  and 75B  violate s. 2 (d) of the Charter  or whether they amount to an unreasonable restraint of trade.  I leave these matters for another day.

 

Conclusion

 

    I would, therefore, dismiss the appeal with costs throughout and answer the constitutional questions as follows:

 

1.Does Rule 154 or Rule 75B of the Law Society of Alberta infringe or deny mobility rights guaranteed by s. 6(2) (b) of the Canadian Charter of Rights and Freedoms ?

 

Yes.

 

2.If Rule 154 or Rule 75B of the Law of Society of Alberta infringes or denies mobility rights guaranteed by s. 6(2) (b) of the Canadian Charter of Rights and Freedoms , are Rule 154  and Rule 75B  justified by s. 1  of the Canadian Charter of Rights and Freedoms  and therefore not inconsistent with the Constitution Act, 1982 ?

 

No.

 

    There is no need to answer questions 3 and 4.

 

//McIntyre J.//

 

    The reasons of McIntyre and L'Heureux-Dubé JJ. were delivered by

 

    MCINTYRE J. (dissenting in part) -- I have had the benefit of reading the judgment prepared by my colleague, Justice La Forest, in this appeal.   He has set out the essential facts and the history of these proceedings and it will not be necessary for me to repeat in detail what he has said.   With deference to the views expressed by my colleague, I am unable to accept his resolution of the matter, and I feel obliged to express my own opinion.

 

    The two rules enacted by the Law Society of Alberta and questioned in this appeal are:  Rule 154, which provides:

 

154. An active member who ordinarily resides in and carries on the practice of law within Alberta shall not enter into or continue any partnership, association or other arrangement for the joint practice of law in Alberta with anyone who is not an active member ordinarily resident in Alberta.

 

and Rule 75B, which provides:

 

75B.  No member shall be a partner in or associated for the practice of law with more than one law firm.

 

It is not suggested that these rules would be unconstitutional on the basis of the division of powers set out in the Constitution Act, 1867 , and, accordingly, if they are to be set aside it must be under the provisions of the Canadian Charter of Rights and Freedoms .   My colleague, La Forest J., has concluded that both rules offend the provisions of s. 6(2) (b) of the Charter , dealing with mobility rights and that neither of the rules may be justified under s. 1 .   Having found the rules to be unconstitutional, he has declined to answer the third and fourth constitutional questions formulated by the Chief Justice which raised the issue of whether the two rules infringed the Charter  guarantee of freedom of association in s. 2 (d).

 

     I am wholly unable to conclude that Rule 154 engages or infringes any mobility right under s. 6  of the Charter .   Section 6(2) (b) was considered by this Court in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357.  Estey J., speaking for the Court, concluded that s. 6(2) (b) of the Charter   -- while not establishing a separate and distinct right to work divorced from the concept of mobility underlying the section -- did guarantee the right to move from one province to another and to pursue the gaining of a livelihood therein, with or without establishing residence.   Under Rule 154 the forming of an association in the practice of law by an active resident member of the Law Society with anyone who is not an active member resident in Alberta is forbidden.    That is as far as the rule goes.   Nobody is forbidden entry into Alberta and nobody is prohibited from practising law or forming a partnership in Alberta.    The sole restriction imposed by the rule is upon the ability of resident members to form associations or partnerships with non-resident members.   While this restriction no doubt offends the provisions of s. 2 (d) of the Charter , which guarantee freedom of association, I cannot see where s. 6 or any of its subsections is in any way violated.   In my view, therefore the proper constitutional provision engaged is s. 2 (d) and not s. 6 .

 

    Turning to Rule 75B, it would seem clear that on its terms no possible conflict with the mobility rights in s. 6  arises.   Its only prohibition is against the forming of more than one association in the practice of law.  Nobody is denied entry into the province of Alberta, nor is anyone barred from the practice of law.   Again, however, the guarantee in s. 2 (d) is infringed.  The question in issue then, in my view, is limited to a consideration of whether under s. 1  of the Charter  the two rules, or either of them, can be considered as reasonable limits prescribed by law which can be demonstrably justified in a free and democratic society.

 

    I agree with my colleague, La Forest J., that the legislative purpose of an impugned law or -- in this case -- rule  "must be of sufficient importance to warrant overriding a constitutionally protected right".   I agree, as well, that the Legal Profession Act, R.S.A. 1980, c. L-9, amended by S.A. 1981, c. 53, s. 4, and the rules enacted thereunder are aimed at a legitimate legislative objective, that is, the regulation and control of the legal profession.  This leads me, then, to the second step in the consideration of s. 1  which involves an assessment of proportionality.    Rule 154 does not prevent, as I have earlier shown, the entry into Alberta of non-resident lawyers nor does it prevent the practice of law in Alberta by such lawyers.    The rule contemplates the presence in Alberta of non-residents practising law and partnerships composed of such persons.    It is difficult to see how any of the legitimate objects of the Law Society can be advanced by forbidding the participation of non-residents in partnerships or associations with residents.  In fact, it would seem that by hiving off, as it were, the non-residents into single practitioners and firms exclusively comprising non-residents, many of the proper objectives of the Law Society would be defeated.   Concerns with such matters as local customs and knowledge, discipline, control and administration of the insurance fund and liability insurance would be set at rest more effectively by enabling the creation of partnerships and associations comprised of both residents and non-residents.   This would tend to bring the two groups together and encourage in the non-residents familiarity with local law and practice and compliance with the regulation and control of the profession by the Law Society.     I am in general agreement with what my colleague, La Forest J., has said about the application of s. 1  to Rule 154  and, in my view, the rule is not justified under s. 1  of the Charter .

 

    I consider that the situation with respect to Rule 75B is different.  This rule merely relates to the regulation of the practice of law in Alberta, whether the practitioner be resident or non-resident.   It merely provides that no member of the Law Society may practice in association with more than one law firm at any given time.    The rule draws no distinction between residents and non-residents and in no way excludes the possibility of an interprovincial law firm, provided always that a practitioner is concerned with only one such firm.    The violation of the respondents' freedom of association is justifiable under s. 1  of the Charter  as a step in maintaining the ethical practice of law and, in particular, the avoidance or prevention of conflicts of interest.   This is undoubtedly a "sufficiently significant objective", to use the words of the Chief Justice in R. v. Oakes, [1986] 1 S.C.R. 103, at p. 139.   The legal profession more than most others must avoid conflicts of interest.   Under no circumstances may a lawyer be justified in advising or representing a client whose interests are opposed to those of another client.   Law societies governing the legal profession in the various provinces have a legitimate interest in attempting to insure that conflicts of interest do not arise.   The measure adopted by the Law Society in Rule 75B  is a rational attempt to achieve this objective.   By confining every member to one association or firm at one time, the range of possible conflicts is diminished, and only one set of books and records need be consulted in determining the existence or possibility of conflicts.   In addition, the means adopted by the Law Society impair the right of free association as little as possible.   The member remains free to practise alone or in association with others, provided he is associated with one firm at a time.   The rule does not prevent the members from leaving a firm at any time or joining another nor does it prevent the establishment of a wholly provincial firm having several offices, or an interprovincial or national firm.   The interference with the right is minimal in relation to its legislative purpose.

 

    It may be said that in this modern day of computers, it would be a simple matter to keep records always immediately available which would make it possible to avoid conflicts, even where membership in several firms is permitted.   However true that might be, the Legislature has delegated power to the Law Society to deal with this question.   Legislatures and law-making bodies, as La Forest J. has acknowledged, are entitled to sufficient room for manoeuvre.   In this case the legislative choice was Rule 75B.    In my view, while there is a restriction on freedom of association under s. 2 (d) of the Charter  it is not out of proportion to the object sought to be attained, and it is a reasonable step towards the accomplishment of an objective of significant importance.   It is, therefore, in my view, a reasonable limit prescribed by law which can be demonstrably justified in a free and democratic society.

 

    I would accordingly allow the appeal in part and answer the constitutional questions, as follows:

 

1.Does Rule 154 or Rule 75B of the Law Society of Alberta infringe or deny mobility rights guaranteed by s. 6(2) (b) of the Canadian Charter of Rights and Freedoms ?

 

No.

 

2.If Rule 154 or Rule 75B of the Law Society of Alberta infringes or denies mobility rights guaranteed by s. 6(2) (b) of the Canadian Charter of Rights and Freedoms , are Rule 154  and Rule 75B  justified by s. 1  of the Canadian Charter of Rights and Freedoms  and therefore not inconsistent with the Constitution Act, 1982 ?

 

Not applicable.

 

3.Does Rule 154 or Rule 75B of the Law Society of Alberta infringe or deny freedom of association guaranteed by s. 2 (d) of the Canadian Charter of Rights and Freedoms ?

 

Yes.

 

4.If Rule 154 or Rule 75B of the Law Society of Alberta infringes or denies freedom of association guaranteed by s. 2 (d) of the Canadian Charter of Rights and Freedoms , are Rule 154  and Rule 75B  justified by s. 1  of the Canadian Charter of Rights and Freedoms  and therefore not inconsistent with the Constitution Act, 1982 ?

 

Rule 154 is not justified by s. 1  of the Canadian Charter of Rights and Freedoms ; Rule 75B  is.

 

    Appeal dismissed, MCINTYRE and L'HEUREUX-DUBÉ JJ. dissenting in part.  The first constitutional question should be answered in the affirmative, the second in the negative.

 

    Solicitors for the appellant:  McLennan Ross, Edmonton.

 

    Solicitors for the respondents:  Milner & Steer, Edmonton.

 

    Solicitor for the intervener:  The Attorney General of Quebec, Ste‑Foy.

 



     * Estey and Le Dain JJ. took no part in the judgment.

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