In February 2015 the Supreme Court of Canada released its decision in Canada (Attorney General) v. Federation of Law Societies of Canada. The case raised the issue of whether the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and regulations (“FINTRAC Regime”) was unconstitutional to the extent it impacted lawyers. The Supreme Court of Canada ultimately concluded that the regime was unconstitutional as it violated the Canadian Charter of Rights and Freedoms.
The decision is the culmination of litigation brought by the Federation of Law Societies of Canada against the FINTRAC Regime. Lower courts in British Columbia had earlier concluded, in 2011 and 2013 respectively, that the regime was unconstitutional as it applied to lawyers.
For its part, the Supreme Court concluded that the FINTRAC Regime’s search and seizure provisions interfered with solicitor-client privilege more than absolutely necessary. As a result, and following well-established precedent, the search and seizure provisions in the FINTRAC Regime violated Section 8 of the Charter (the right to be secure against unreasonable search or seizure).
The Supreme Court then went on to find that the FINTRAC Regime violated a lawyer’s duty of commitment to his/her clients, which is a principal of fundamental justice that may not be lightly interfered with. As a result, the FINTRAC Regime violated Section 7 of the Charter (the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice).
Canada (Attorney General) v. Federation of Law Societies of Canada is only applicable to lawyers. It does not apply to other sectors covered by the FINTRAC Regime. Real estate brokers and sales representatives continue to be covered by the FINTRAC Regime (along with banks, casinos, accountants, etc.).
The Supreme Court decision illustrates the playing field upon which the lawyers are able to challenge the FINTRAC Regime is fundamentally different than other sectors. That said, CREA continues to work to mitigate the impact of the FINTRAC Regime on REALTOR® members, building upon the success of ten changes and clarifications obtained by CREA’s lobbying with respect to regulations that came into force last year.
If Boards and Associations have any further questions regarding the decision they may contact Simon Parham, at
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