BarTalk June 2004
Volume 16, Number 3

In support of the Canadian Bar Association

By John D McAlpine QC

The determination as to whether the Law Society should require all practising lawyers to pay an amount equivalent to the Canadian Bar Association membership fee, whether or not they are members of the CBA, should be answered affirmatively.

I respectfully suggest that there are five criteria by which your deliberations should be governed. I also strongly recommend that before casting your vote, you read the judgment of Mr. Justice Taylor in Gibbs v. The Law Society of B.C. handed down on December 17, 2003.

1. The core values of our profession
Dean Emeritus Roscoe Pound of the Harvard Law School defined the term “profession” as: “the conception of a group of men [and women] pursuing a common calling as a learned art and as a public service - no less a public service because it may incidentally be a means of livelihood...Historically, there are three ideas involved in a profession: organization, learning, and a spirit of public service. These are essential. The remaining idea, that of gaining a livelihood, is incidental.”

It is important to note that Justice Taylor made the significant finding in Gibbs, supra, that the CBA’s functions are “directed towards the public in the sense that they deal with reform of the law and its administration, (and) educate and update lawyers...” As to the national functions, he quoted from Justice Lamer, CJC, as he then was, from a preface to the CBA publication called A Century of Service. “A foundation stone to any democracy is an independent Bar – which the CBA is – and that foundation is necessary for another important aspect of any democracy, an independent judiciary... the Canadian public has benefited from the CBA’s commitment and contribution to the preservation of the laws that protect and promote public legal education, and fairness in people’s rights and uniformity of provincial legislation.”

In the end, surely this is the core justification for CBA’s existence, and the Law Society’s requirement that all practising lawyers contribute to its fees.

2. The principles of democracy and the balance of individual and collective rights.
Opposition to mandatory payment is often based upon an invocation of the rights of the individual. For example, Mr. Gibbs framed his position at the annual meeting of September 19, 2003 in this way: “It is true that taking my money when I don’t want to give it will make the CBA financially stronger, but it’s not entitled to that strength. It’s got to earn it by appealing to me and to others who are like-minded that they have merit and that they have value for money, and if we say no to that, our money stays in our pocket.”

I respectfully suggest that such a view does not adequately account for the principles of democracy and the rights of lawyers as a collective. In the Reference Re: Public Service Employee Relations Act (Alberta) 1987, Justice Dickson, as he then was, quoted the famous words of Alexis de Tocqueville in Democracy in America (1945), vol. 1 at p. 196: “The most natural privilege of man, next to the right of acting for himself, is that of combining his exertions with those of his fellow creatures and of acting in common with them. The right of association therefore appears...almost as inalienable in its nature as the right of personal liberty. No legislator can attack it without impairing the foundations of society.”

Justice Dickson went on to say: “What Freedom of Association seeks to protect is not associational activities qua particular activities, but the freedom of individuals to interact with, support, and be supported by, their fellow humans in the varied activities in which they choose to engage.”

In our daily lives, we exercise our collective right by meeting, engaging in vigorous debate and notwithstanding the diverse views expressed, the individual member governs himself by the vote of the majority. It is that underlying commitment of the individual to the process and to the result of democratic debate that governs our lives. It is in this way, that for 55 years, without interruption, the principle of universal membership of the CBA has been affirmed and reaffirmed at the annual meetings of the Law Society.

How best can the individual rights and the collective rights of members be balanced and reconciled consistent with the principles of democracy? I suggest that the CBA has already answered that question by adopting the formula devised by a great judge, Mr. Justice Rand, that fairly balances the rights of an individual with the collective rights of an organization.

3. CBA’s accountability to its members
Speaking in Montreal in 1972, the then President John L. Farris, QC, opined on the “value of discontent” saying: “The times in which we live are characterized by a challenge of old established standards, institutions, customs and canons of morality. Personally, I do not find this challenge disturbing. It seems to me quite legitimate that all institutions, all systems, all beliefs should be called upon to justify themselves and they are continually. To the extent that they fail, they should be abolished, changed or modified.”

The accountability of the CBA to its members must be full and effective. Effective accountability is a cornerstone of democracy. If there are failures, then the CBA’s feet should be put to the fire. But what changes or modifications should take place? The proper forum for criticism and advocating change is surely through debate and resolution. This is the democratic way to bring about change and greater accountability.

4. The vires issue
In the result, Justice Taylor in Gibbs v. Law Society of B.C. held that the universal contribution of lawyers practising in B.C. to the funding of the work of the CBA was “not inconsistent with the objects and duties of the Society.” The decision of the majority of the members at the annual meeting in favour of universal contribution was held to be intra vires. The issue before the annual meeting is the identical issue posed in the referendum question today.

5. Can we afford not to support the CBA?
In July, 1947, the members of the Law Society cast their votes for universal membership. Elmore Meredith, a former President of the Law Society, spoke of the aim of creating a fully organised bar comprising not simply the members of the B.C. bar, but the bar of Canada. He foresaw that if the Bar of Canada spoke with one voice, it might well have a determining effect on national issues. He also saw the benefit of this step as relieving the B.C. branch of CBA from its almost primary concern and the constant pressure to recruit new members. He viewed this step as a way of removing membership from the elite to include the rank and file of the profession.

The CBA has a measure of independence that the Law Society, given its major role of governance, does not have. On issues such as legal aid, solicitor-client privilege, money laundering and anti-terrorism legislation, Sarbanes-Oxley, WCB rates for lawyers, the PST on legal fees, and myriad other issues, the CBA has been the strong voice of our profession.

Concluding Remarks
I am conscious of the impact of fees upon the membership of our profession particularly in tough economic times. However, the justification for an affirmative answer to the referendum question rests upon the fulfilment of core professional values both consistent with democratic principles and necessarily subject to CBA’s full accountability to its members. It is my hope that once the referendum vote is taken and a decision made, the issue can be placed behind us.

Let us move on. There is much to be done.

John D McAlpine QC is a past president of Canadian Bar Association, BC Branch.

This article was published in the June 2004 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.