On July 17, 2023, the principals of CAL and other Canadians, including lawyers, professors, and citizens, wrote to the Premier, the Minister of Justice, and to the Law Society, complaining that the Law Society of Alberta’s political objectives were a threat to the rule of law. We requested that the Law Society abandon its political objective and that the Provincial government reign the Law Society in. See:
Dear:
Mr. Hendsbee
Ms. Osler
Honourable Premier Danielle Smith
Honourable Minister Mickey Amery
Honourable Members of Provincial Caucus
The Law Society of Alberta (the “LSA“) has assumed a political objective which is a threat to the rule of law.
At a Special Meeting of the members of the LSA, recently convened, 864 Alberta lawyers supported a resolution to repeal the LSA’s Rule 67.4 which purported to give the LSA power to mandate specific “continuing professional development” (“CPD”) including
cultural “education.” (FN1)
As lawyers who have or had the privilege to practice law and serve the ends of truth and justice in the province of Alberta, we believe that it is our responsibility to write this letter to defend the rule of law in Canada and what it preserves: democracy, freedom, peace, health, and wealth.
A silent constitutional crisis is upon us. Fundamental cornerstones of our Western legal system, developed over centuries, are collapsing. We say this crisis is “silent” because it seems that few people are aware, fewer are speaking-out, and fewer still comprehend the existential danger this
poses to our Canadian way of life.
While this crisis is nation-wide and exists across institutions including many or all professions (FN2), the particular focus of this letter is local, relating to Alberta law and lawyers.
Knowingly or unknowingly, the LSA has been captured by a political movement. The politicization of the LSA, as the regulator of lawyers whose collective responsibility it is to neutrally guard the rule of law, represents an attack on the rule of law where it is most vulnerable and the threat is most grave.
Why the Rule of Law Matters
Canada is a democracy. In a democracy, legislatures make laws including even the supreme (earthly) law, the Constitution.
Our Canadian Charter of Rights and Freedoms, which forms part of the Constitution begins:
“Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:” (FN3)
Our constitutional democracy depends on the rule of law. Democratically enacted laws must be followed by everyone and must be enforced against everyone, objectively and equally – the rich and powerful, the poor and marginalized, people of all walks of life. Good intentions are no substitute.
The rule of law is a constitutional glue that holds together all of Canada’s social, political and economic progress. It has been the fundamental aspect of our constitutional order since the Magna Carta of 1215. The principle of rule of law was perhaps first formally enunciated by Bracton (1250), a judge and early writer on English law, who declared:
“The King himself however ought not to be under man, but under God and under the law, for the law makes him king.”
The rule of law sustains democracy. When the laws passed by the legislature are ignored or perverted, democracy is degraded or destroyed. When this happens, the power given by citizens to a democratically elected legislature is usurped by those who ignore and pervert.
The rule of law sustains minority rights. When laws are ignored, perverted or applied unequally, minority rights are invariably eroded or eliminated. Many laws expressly protect minority rights, like human rights codes and the Canadian Charter of Rights and Freedoms. If those laws aren’t humbly respected and enforced, they become meaningless “paper barriers.”
The equal application of law in itself supports minority rights. Without the equal application of law the only “minority” with effective and meaningful rights is the minority holding raw power: the ruling elite and their allies. As Peru’s General Óscar Benavides is reported to have said:
“For my friends, everything; for my enemies, the law.” (FN4)
The rule of law also cultivates and sustains economic, technological and social progress because it provides predictability and limits exploitation. An investor in a company can reasonably predict their money will be used to generate returns. A company signing a contract is reasonably assured it will be paid. Its customer can reasonably predict the company will deliver its product. Employees accepting jobs are reasonably assured they will be paid and treated fairly. Inventors licensing technology have reasonable assurance their property will not be stolen. If these reasonable expectations are disappointed, the rule of law provides remedies.
The LSA agrees with much of the above. It says, for example:
“The existence of an independent legal profession, free from government (FN5) influence, supports a rule of law culture which in turn supports the proper administration of justice. These are crucial elements of a free and democratic society. The rule of law requires that both government officials and citizens be bound by the law and act consistently with the law. … It is in the public interest to have an effective legal and court system, that supports
the concept of equal justice for all within an open, ordered and impartial system.” (FN6)
Lawyers and the Rule of Law
In a liberal, constitutional democracy it is a lawyer’s sacred constitutional duty to preserve and protect the rule of law, whether in private practice, in government, in organizations, or as a judge.
A lawyer must be the client’s zealous advocate, but that advocacy must be conducted within the law. For this reason, when an Alberta lawyer is sworn-in as a member of the bar, the lawyer swears or affirms:
“I will not pervert the law.”
A citizen with no one to advocate for and uphold his or her rights is a citizen without rights. It is, therefore, the lawyer’s constitutional duty to pursue a client’s rights, without risk of losing their licence to practice. Otherwise, the client’s rights are effectively eliminated. It is every other
lawyer’s constitutional duty to likewise observe the law and ensure their fellow lawyers have that freedom and ability, or the citizen’s rights are equally eliminated.
For this reason, the Honourable Justice W. Estey wrote:
“The public interest in a free society knows no area more sensitive than the independence, impartiality and availability to the general public of the members of the Bar and through those members, legal advice and services generally.” (FN7)
The Law Society and the Rule of Law
If, contrary to this constitutional model, a lawyer is free to subordinate the client’s interests and instructions to the pursuit of political objectives, the client effectively loses any rights not consistent with those politics. If all lawyers are compelled by their regulator to pursue the same political
interest, no citizen has rights except those which are convenient to that political interest. Rights become rights in name only.
Given this constitutional order, it is imperative that law societies, which regulate lawyers including by granting and suspending the right to practice, ensure lawyers are competent, ethical and free to give independent advice and representation.
The Law Society is Violating the Rule of Law
When the LSA’s authority was created by the Legislature, it was not given unlimited power to do whatever it would like. It was granted limited power to pursue only the purpose for which that power was granted, namely, professional competence and ethics. (FN8)
The pursuit of any purpose outside of the Legal Profession Act or to exercise any power not granted by the Legal Profession Act is a violation of the rule of law and an abuse of the power granted. No one, professionals or otherwise, is subject to ad hoc rule by those who wield power.
As the Honourable Justice Rand of the Supreme Court of Canada wrote in Roncarelli v. Duplessis:
“[A]ction dictated by and according to the arbitrary likes, dislikes and irrelevant purposes of public officers acting beyond their duty, would signalize the beginning of disintegration of the rule of law as a fundamental postulate of our constitutional structure.” (FN9)
That a public body exceeding its legislative power represents a threat to freedom and our democratic ideals is beyond doubt:
“I know of no duty of the Court which is more important to observe, and no powers of the Court which is more important to enforce, than its power of keeping public bodies within their rights. The moment public bodies exceed their rights, they do so to the injury and oppression of private individuals.” (FN10)
In gross violation of our constitutional order, the LSA, as the regulator of Alberta lawyers with the power to sanction and suspend, has itself adopted a political ideology of its own choosing: social justice. (FN11) As an immediate and inevitable consequence of adopting this political ideology, the LSA is now using its regulatory power to compel all lawyers to salute and pursue the same political ideology. (FN12)
By way of example, at the LSA’s February 24, 2022, board meeting, the rule of law and, in particular, the legal restrictions placed on the LSA’s powers (and therefore purposes) were discussed. The board raised the LSA’s desire to advance its agenda regardless of perceived limitations in the Legal Profession Act. The LSA’s CEO and Director:
“… outlined the challenges associated with getting the government to prioritize legislative amendments to the Act. In the meantime, the Law Society continues to utilize the Rules to advance its work where the legislation is outdated.” (FN13) [emphasis added]
The LSA has no inherent jurisdiction. Its “work” is to pursue the purposes assigned to it, with only the powers given to it, by the Legislature. The LSA was not created to pursue purposes of its choosing.
This “work” outside of its legislative mandate is undertaken even as the LSA correctly acknowledges the vital importance of professional independence:
“There can be no functional judiciary without an independent arm of lawyers who act free of political pressure and motivations.” (FN14)
The need to uphold the rule of law is no more or less important if the LSA’s politics are substantial or trivial, provocative or popular, bad or good. Whatever its politics, democracy and the rule of law demand that all laws are made and changed transparently, in accordance with democratically
derived jurisdiction, and in accordance with our constitutional order.
However, the LSA’s political objectives are not trivial. According to the LSA’s materials, Canadian law, policy, and legal structures are deeply corrupt. (FN15)
Nor are the LSA’s political objectives peripheral. The LSA expressly states that, depending upon the circumstances, its political objectives may be of equal, if not higher, priority than even its objective to promote the rule of law. (FN16)
Nor are the LSA’s political objectives necessarily congruent with generally accepted Canadian values. In one of the LSA’s political resources (FN17) referenced on its website (FN18) (the “Resource”) there are attacks on liberalism (“full of paradoxes and contradictions”), the concept of equality before the law (“used to perpetuate discriminatory practices”), and the Canadian model of multicultural racial integration.
The LSA’s “regulatory objectives” (FN19) implicitly include facilitating the voluntary racial segregation of lawyers and clients (FN20) and promoting the racial segregation of Canada’s indigenous population within independent systems of indigenous law and indigenous legal systems. (FN21) Regardless of arguments for or against such goals, this is not the business of the LSA. The place to change these laws is the legislature.
The Resource even attacks what are, perhaps, the most beautiful words ever uttered on the subject of race:
“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” (FN22)
Premised in Critical Race Theory, the Resource defames Martin Luther King Jr.’s dream as simple-minded white supremacy:
“Colour-Blindness: Colour-blindness (or colour evasion) is the insistence that one does not notice or see skin colour or race. … colour-blindness conflates lack of eyesight with lack of knowing. Said differently, the inherent ableism in this term equates blindness with ignorance” … “[n]onrecognition [of the significance of race] fosters the systematic denial of racial subordination and the psychological repression of an individual’s recognition of that subordination, thereby allowing such subordination to continue.”
One of the LSA’s prescribed core purposes is to ensure an incompetent lawyer is either not admitted, receives remedial education, or is disbarred.
The LSA has described its adopted politics (FN23) and the obligations it has imposed on lawyers to promote the same (FN24) to be a matters of “professional competence”.(FN25) In this way, the LSA is attempting to expand its jurisdiction given what it believes to be an “outdated” legislative mandate. As Professor of Law at Queen’s University, Bruce Pardy, observes:
“… competence is being reimagined through an ideological lens.” (FN26)
The LSA is well on course to making the entire Alberta legal profession of over 10,000 lawyers share and pursue its political vision. If this is allowed to continue, the LSA will have used its regulatory power to, essentially, convert Alberta lawyers into a political action group incapable or unwilling to apply the law as written by the legislature.
This is a threat to democracy and civil rights, including minority rights. As Professor Bruce Pardy further observes:
“Patients and clients should not assume that their doctors, lawyers, accountants or psychologists are independent actors at liberty to provide informed, educated, professional opinions, rather than spokespersons for the official views of their professional overlords.” (FN27)
Our Plea
To LSA Benchers
We respectfully request and require that you abandon this dangerous, unconstitutional adventure immediately and reject any and all politics – no matter how well-intended – from every aspect of your mandate, principles, regulatory oversight, operations, and organization. What is required is
a complete shift in your organization’s culture. Remember your vital role in Canada’s constitutional order, and proudly return to it.
To The Honourable Premier, Danielle Smith and Members of Provincial Caucus, including the Minister of Justice, Honourable Minister Mickey Amery
Please consider immediate and decisive legislation to rein in the LSA’s foray into inherently dangerous politicization.
As referenced above, we understand the LSA is seeking amendments to the Legal Profession Act. (FN28) We expect it has requested the insertion of a broad “public interest” mandate like that found in Manitoba’s Legal Profession Act (FN29). The LSA currently pursues its political objectives in reliance on such a claimed duty although absent from Alberta’s Legal Profession Act. We believe it is clearly in the public interest that the LSA pursue its legislative mandate, namely the regulation of the competence and ethics of lawyers. However, a broad mandate to use regulatory powers to pursue the “public interest” writ large is an invitation for mischief, as evidenced by the LSA’s politicization even in the absence of such a mandate. Therefore, the Legal Profession Act should not be amended to include a broad “public interest” mandate of any sort.
At a minimum, the Legal Profession Act should be legislatively amended to:
- Prohibit the LSA from adopting, aligning itself with, or pursuing any political, ideological or religious movement or objective or imposing any political, ideological, or religious test, obligation or standard on lawyers;
- Prohibit the LSA from imposing any specific continuing CPD or in any way monitoring the content of lawyers’ continuing professional development. Remember, the LSA’s first foray into mandatory education was political; (FN30)
- Prohibit LSA Rules 67.2, 67.3 and 67.4; (FN31)
- Expressly eliminate any aspect of “culture” or “cultural competence” from its mandate; and
- Permit the Minister of Justice from time to time to audit any aspect of the LSA’s operations including providing for the power of subpoena.
We would also invite the Honourable Minister of Justice, Mickey Amery to exercise the existing right under section 5(3) of the Legal Profession Act to require the LSA to provide, in its annual report, detailed information to address the matters raised in this letter.
Some are likely to object to any such legislative intervention as interference with the LSA’s independence. Quite the opposite. It is the LSA’s current political adventure which is the threat to the independence of individual lawyers to provide advice and assistance to clients. The legislature
must intervene to restore this vital independence.
The people of Alberta granted the LSA its power. The people of Alberta have every right to ensure that that power is exercised for the purpose it was granted.
Of immediate concern is the LSA’s new CPD program (FN32). The LSA has imposed an October 1, 2023, deadline for lawyers to comply with the new
CDP program requirements.
We request a meeting with the government to discuss our concerns and the way forward. Our primary contact is Roger Song of Song & Howard Law Office (office: 403 205 2545; email: roger.song@songhowardlaw.com). Mr. Song is the lawyer who initiated the above- mentioned Petition. Mr. Song is a former citizen of a totalitarian regime, China. Living in a totalitarian regime, Mr. Song experienced state mandated political re-education of legal professionals. He immigrated to Canada to live and practice in freedom. Mr. Song sees striking similarities between his experiences in China and the “continuing professional development” requirements now being implemented by the LSA. What the LSA now calls “cultural competence” looks very much like the cultural indoctrination to which Roger was subjected by the Chinese Communist Party.
Thank you all for your attention to this most important and urgent matter.
Earnestly and respectfully,
Alberta Lawyers | LSA member since | Location
Alan Warnock 1990 Airdrie
Andy Crooks (retired) 1979 Calgary
Benjamin J. Ferland 2018 St. Albert
Chad Williamson 2017 Calgary
Clive Llewellyn 1983 Calgary
Dan Harder (retired) 1994 Didsbury
David Cavilla 1992 Lethbridge
Doris Reimer 2001 Calgary
George Craven 2021 Calgary
Glenn Blackett 2003 Calgary
Gordon Auck 1971 Calgary
James Kitchen 2017 Airdrie
Jody Wells 2022 Kamloops
Katherine Kowalchuk 2003 Calgary
Kathryn Carter 1986 Calgary
Kendall W. Waiting 2004 Calgary
Lani L. Rouillard 2006 Sylvan Lake
Leighton Grey K.C. 1993 Cold Lake
Louis M H Belzil 1989 Edmonton
Maksym Kyrychenko 2021 Calgary
Martin Kaup 2018 St. Albert
Marty Romonow 1986 Edmonton
Matthew Kaup 1991 St. Albert
Richard Harding (retired) 1983 Calgary
Rickard H. Hemmingson 1989 Lacombe
Robert A. Feta 1997 Edmonton
Robert M. Simpson 1980 Edmonton
Spencer P. Morrison 2018 Edmonton
Terry Prockiw 2006 Two Hills
Yue (Roger) Song 2014 Calgary
Other Canadian Lawyers | Bar member since | Location
Brian L. Prill 2002 Mississauga
Bruce Pardy 1990 London, ON
Charles H McKee 1966 Vancouver
Chi-Kun Shi 1991 Toronto
Christopher Taucar 1996 Vancouver
Eward Choi 2017 Markham
Grace Pang 1994 St. Catharines
Hatim Kheir 2020 Hamilton
Henna Parmar 2020 Brampton, ON
Joseph P Hamon 1991 Combermere
Lisa Bildy 1995 London, ON
Robert Z. Donick 1995 BC
Ryan McConaghy 2009 Toronto
Samuel Bachand Saint-Eustache, QC
Sayeh Hassan 2007 Toronto
Tyler Koverko 2014 Toronto
Other Canadians | Occupation | Location
Allan Gray Investment Advisor Calgary
Anneke Pingo Assistant Litigation Director Cochrane
Bonnie Dyek IT Professional Calgary
Dennis L. Modry, MD Surgeon Edmonton
Dou Cameron Consultant Regina
Dr. F.L. (Ted) Morton Executive Fellow Calgary
Frances Widdowson Professor Calgary
Gordon Eshpeter BSc Geology Calgary
Jason Caldwell Business Owner Calgary
Jeremy Graf Law Student Didsbury
John Zheng Pastor Calgary
Jonathan Goosen Professor Langdon, AB
Joy Humphrey Retired Calgary
Koshy Thomas High School Teacher Calgary
Martin Halvorson Development Consultant Calgary
Mary Kaechele Retired Calgary
Merril J Humphrey Retired Calgary
Monica Rose Evangeline City of Calgary Parks Volunteer Calgary
Percy Herring Petroleum Landman Calgary
S Mark Francis Finance Consultant Calgary
Shafer Parker Jr. Minister Calgary
Shawna Caldwell Controller Calgary
Tessa Littlejohn B.A. University of Calgary Calgary
Tom Flanagan Political scientist Calgary
Victor Martinez Banker Calgary
Wilfred Biederstadt Quality Inspector Airdrie
Footnotes
- February 2, 2023, email from the Law Society of Alberta confirming outcome.
- See Professor of Law at Queen’s University, Bruce Pardy’s article titled: Legal Canons and Social Fables: The Law in Canada Has Never Been Perfect but Now it is Losing its Way, C2C Journal, June 10, 2023.
- Canadian Charter of Rights and Freedoms.
- See footnote 2.
- We would say “political.”
- Regulatory Objectives of the Law Society of Alberta, December 5, 2019.
- A.G. Can. v. Law Society of B.C., [1982] 2 SCR 307
- Legal Profession Act, RSA 2000, c L-8
- Roncarelli v. Duplessis, [1959] S.C.R. 121, per Rand J. at page 142.
- Lindley, M.R. Robert v. Gwyrfai District Council, (1899), L R 2 C.D., 514.
- See, for example, the Regulatory Objectives of the Law Society of Alberta, December 5, 2019 at page 1 at (e) (“Promote equity, diversity and inclusion in the legal profession and in the delivery of legal services”) and page 4 at (e)18 (“The Law Society will promote cultural competence both within the organization and in the profession”). See also the references at footnotes 15, 17 and 18.
- Continuing-Professional-Development-Program-Guideline.pdf
- Minutes, Meeting of the Benchers of the Law Society of Alberta February 24, 2022.
- Minutes, Meeting of the Benchers of the Law Society of Alberta February 24, 2022.
- See, for example, Indigenous Cultural Competency Education and Acknowledgment of Systemic Discrimination and Key Resources: Cultural Competence Equity Diversity and Inclusion.
- Regulatory Objectives of the Law Society of Alberta, December 5, 2019, page 2, paragraph 6: “In fact, there may be times when two or more of the regulatory objectives conflict with one another. In these cases, the Law Society will weigh the costs and benefits of aligning with each objective.” See also the LSA’s Acknowledgment of Systemic Discrimination wherein the LSA says it is “… centering equity in [its] governance and decision-making roles …”
- Calgary Anti-Racism Education.
- Key Resources: Cultural Competence Equity Diversity and Inclusion.
- Regulatory Objectives of the Law Society of Alberta, December 5, 2019 – although titled “regulatory objectives” this document is not a statement from the government as to what the LSA’s regulatory objectives are but, rather, is what the LSA intends to do with the statutory power Albertans have granted to it.
- See page 4 at paragraph (e)17.
- See the Law Society’s recent mandatory re-education for lawyers called the Path.
- Martin Luther King Jr.’s “I Have a Dream” Speech delivered on August 28, 1963, on the steps of the Lincoln Memorial.
- Including the notion of “cultural competence” addressed at footnote 15 above.
- Including through the LSA’s new “Professional Development Profile for Alberta Lawyers” and its continuing professional development plan requirements.
- Law Society of Alberta, Professional Development Profile.
- Bruce Pardy, Legal Canons and Social Fables: The Law in Canada Has Never Been Perfect but Now it is Losing its Way, C2C Journal, June 10, 2023.
- Ibid.
- See footnote 13.
- Legal Profession Act, CCSM c L107, section 3(1) and 4(5).
- See footnote 21.
- The Rules of the Law Society of Alberta as of May 1, 2023.
- CPD Requirements
Council of Alberta Lawyers 