The Plastic Ban Unreasonable and Unconstitutional and Government Intrusion in the Legal Profession

We start the episode by discussing the federal government's attempt to ban various plastic items. The ban was met with constitutional challenges from the Responsible Plastic Use Coalition and two provinces, Alberta and Saskatchewan. The federal government tried to classify plastic as 'toxic', a categorization that was deemed unreasonable by the judge due to lack of evidence. Furthermore, the government's jurisdiction to regulate garbage and related matters was questioned, as it falls under provincial jurisdiction. This situation offers an insightful glimpse into the power struggle between federal and provincial governments and the limitations of criminal law power.

The episode then moves on to the government's mounting attempts to gain more control over the legal profession. We spotlight a recent case where the federal government tried to compel lawyers to report their clients' transactions to the tax department. This move raises alarming questions about the independence of the legal profession and the sanctity of client-lawyer confidentiality. The episode highlights the efforts of law societies across the country to push back against such government intrusions.

This attempt to force lawyers to turn information over to the government about their clients is an example of why the BC government's proposal to take further control over their regulation of lawyers as part of a "Single Regulator" system is so problematic. 

The last segment of the episode dives into the intricacies of wills and estates, spotlighting a case where a woman passed away without completing her will. The case underlines the importance of having a will in place and the legal repercussions that follow when one isn't. A related case, where a judge validated a woman's wishes for her estate as expressed in a letter, underscores the importance of intent and reasonable action in such scenarios.

Overall, this episode provides a fascinating journey through the legal world's crossroads with societal issues. With expert insights from Michael Mulligan, it serves as an invaluable guide to understanding some of the most complex and contemporary legal challenges of our time.

From understanding the legal and constitutional implications of a plastic ban to the complexities of estate planning and government intrusion into the legal profession, this episode offers an enlightening deep dive into the labyrinth of the law. Whether you are a law enthusiast, a practicing lawyer, or a curious listener, this episode is sure to broaden your understanding of the intricate dynamics of the legal world.

Follow this link for a transcript of the show and links to the cases discussed.  

Transcript

Adam Stirling: 0:00

time for a regularly scheduled segment with Michael Mulligan, barrister and Solicitor, with Mulligan Defense Lawyers. It's, legally speaking, on CFAQ's 1070. Morning, michael, how we doing. Hey, good morning. I'm doing great. Some fascinating stories on the agenda. In fact, we have an interview coming up next hour about polling data on our next topic. But the courts are not swayed by public opinion, they are swayed by principles of law. This next story fascinates me.

Michael Mulligan: 0:24

So this is the story of the federal government's effort to ban various plastic things, and so they had passed a regulation which purported to implement a ban that would have come into effect just this December for various things like checkout bags, plastic cutlery, stir sticks, straws and the paper straws and so forth. And that was challenged. And it was challenged, interestingly, by two groups. So the first group probably shouldn't surprise anyone, it's the Responsible Plastic Use Coalition, which would be the companies that would manufacture things like stir sticks and straws and so on. But it was also challenged by two provinces, alberta and Saskatchewan, and they challenged that effort on constitutional grounds and the piece that decided that the issue. But whether that was permissible. And, to cut to the chase, it's not analyzed how the Canadian Environmental Protection Act works, and so that act, like many modern statutes, will settle the framework of what's to be done and then will delegate power to somebody else, in this case the federal government, to implement regulations. And so one of the first questions that has to be asked when you have a regulation passed is was this allowed by that statute? Right? Because that's where the authority to create the regulation comes from and the way the Canadian Environmental Protection Act works is it permits the federal government to designate things as being toxic, and then, if they designate something as toxic, they are then permitted to implement further regulations to control the toxic thing. Okay, so, for example, under the Environmental Protection Act, you could categorize, let's say, nuclear waste as toxic, right, and then you might have regulations surrounding what you do to. You know, make sure we safely handle nuclear waste, right. Fair enough, yeah.

Michael Mulligan: 2:36

The first issue here was that the federal government decided to essentially categorize plastic there was a long term for it, but plastic as being toxic, and that had a couple of problems. First of all, the judge found that plastics are ubiquitous. They've been around for a long time. Furthermore, they are comprised of thousands of different things. It's not like plastic is one thing right, You'll see that on your recycling symbols, right? Plastic is all kinds of forms, right, yeah? And the other issue is that there wasn't any evidence that plastic in some general way was toxic, and on that point, the judge has an interesting analysis that, of course, anything you know, some sufficient quantity, depending what you do with it, could be quote toxic. And it caused me to think of, you know, I think you remember the radio station promotion that was back in 2007 in Sacramento, where radio station had a very unfortunate publicity contest where they were challenging people to drink as much water as possible.

Adam Stirling: 3:43

Oh yeah, and the guy died or something.

Michael Mulligan: 3:45

Yeah, so as a woman, she actually drank one and a half gallons of water over three hours without peeing I'm not sure they're not peeing it, any impact on it, but she died. And the problem with you doing too much water is, I guess, it leaches the salt out of your body and you'd die. Yeah, and so virtually anything in some sufficient quantity could be harmful. Right, water is harmful. You could die of too much water, but that's not really what's intended to you. Otherwise the government could do anything, could be in some form, if you did the wrong thing with it, be somehow harmful. The idea of the Environmental Protection Act is not, but the government could say well, if you ate enough paper, it could kill you. Therefore, paper is toxic. Therefore we can ban you from using paper. Right, that doesn't follow. It's got to be toxic in some meaningful way.

Michael Mulligan: 4:37

And the judge concluded that there just wasn't evidence that plastic is in all forms of plastic, which is what they were trying to regulate are somehow toxic. It might be an issue if there is pollution or if they're thrown away and not properly recycled, this kind of thing, but that's not to say that the substance itself is toxic, allowing the government to regulate it right More than that's required. So the first problem that this plastic ban effort had was that there wasn't evidence that all plastic which is what they were trying to regulate was toxic and therefore the regulation declaring it all to be toxic was unreasonable. There's just no evidence of that. And then the next problem that the federal government had is that in order to have the authority to regulate something, there's got to be some constitutional power to do that, and in Canada we divide authority between the provinces and the federal government and generally things like garbage, and there's no doubt that if somebody's throwing plastic garbage on the side of the road, that could be a problem. You know, birds can eat it or whatever. It could pollute the river.

Michael Mulligan: 5:53

But garbage and related things would presentably be a provincial matter, right? The federal government doesn't come in and collect garbage or deal with things of that sort. That would be within provincial jurisdiction. And so the jurisdiction the federal government relies upon for the Environmental Protection Act at all is the criminal law power, which is really kind of on the edges of what the criminal law would generally be dealing with. Right and the concept there. And there is a case, a Supreme Court of Canada case that finds that the criminal law power, which is designated to the federal government, can empower the federal government to regulate things which are actually dangerous. Right, like the nuclear waste example. Right, you know, we don't want nuclear waste left around on the side of the road, that can be very dangerous, and so the criminal law power can be stretched enough to allow the federal government to regulate that. There's also a general catch-all in the Constitution dealing with peace, order and good government.

Adam Stirling: 7:01

Oh, we have the Pog Power yeah.

Michael Mulligan: 7:03

The Pog Power. But boy, you're really on the edge of your constitutional jurisdiction if you're trying to hang your head on Pog. So the conclusion in this case was both because the classification of all plastic as toxic was without evidentiary foundation and just unreasonable, so it didn't meet the requirements of the Environmental Protection Act. So the federal government lost on that front, and furthermore, the challenge brought by Alberta and Saskatchewan was also successful and found that there just isn't authority to do this. Even if the legislation allowed, you know, to the government to regulate things that aren't toxic, because they could be littered or they could, some of the bad things could happen with them. That's beyond the federal government's authority, and so on both grounds the federal government lost, and so that is why the purported ban on all those various things is not going to come into effect.

Michael Mulligan: 8:05

The federal government may appeal, or we can see what comes of that. But I suppose the good news is, if you're, you know, on the BC ferry trying to cut your bagel as I've had this experience with a balsa wood knife that's a sausage in the bagel itself Hopefully you'll find a bit of a reprieve and we won't have things. I think that's rid of that as a knife shaped object doesn't really accomplish the purpose of the knife. But we've got a bit of a reprieve and happily we have a judicial system that analyzes whether things like this are not just popular. People might like them or might make you feel good. We're doing it at actual analysis as to whether it's both rational, right and lawful, and on both grounds here the federal government struck out. So enjoy your, enjoy your plastic knives and enjoy your straws that don't dissolve in your drink. You've got a little bit of a every pre, thanks to the federal court of Canada.

Adam Stirling: 9:05

Michael Molligan with Molligan Defense Lawyers. Legally speaking will continue right after this. Legally speaking continues here on CFAQ 1070 with Michael Molligan from Molligan Defense Lawyers. Michael, what's next on our agenda today?

Michael Mulligan: 9:18

Next on the agenda is a case that deals with the confidentiality of the information provided to your lawyer, and it's a timely thing. We spoke recently about some of the misguided proposals that provincial government has to try to get additional control over the operation of the legal profession, and this is an example of the kind of thing that is so tempting for government to do, and it's an example of how law societies across the country push back against the efforts for the government to intrude in, for example, the core principle of there being privilege and confidentiality when you're getting legal advice. And this was the challenge came out of changes made to the income tax legislation, and what happened in 2023 is the federal government amended the legislation to require people including lawyers, accountants, anyone to report various things to the tax department, and they created these categories of they referred to as reportable transactions and notifiable transactions, and there are transactions which are not. There's nothing inherently wrong with either of them than reportable transactions, where things including contingency fee, contingent fee arrangement, confidentiality protection or contractual protection agreements, and where there could be a tax benefit arising from those, there would be an obligation under these amendments to report them to the government.

Michael Mulligan: 11:05

And this concept of a notifiable transaction isn't even yet defined.

Michael Mulligan: 11:10

Basically, it's the federal tax department wanting to find out if people taxpayers might be using some kind of a transaction that could have a tax implication so that they could investigate them. Fair enough, I understand, I suppose, why the federal government would want the Canada Customs Revenue people to be able to examine these things, but the way they're trying to find out about them is to compel people who are providing legal or other advice with respect to tax matters to report their own clients to the government, and if they fail to do so, the lawyer or accountant or whoever it might be is subject to a fine of up to $25,000 or 12 months in prison. So a pretty powerful incentive to do that right, and the implication of it is that you might go to your tax lawyer and be asking for advice about some transaction and, if this legislation is permissible, the tax lawyer might be compelled to report you to the government so they could go and look into it. Not exactly what you'd expect when you go to get legal advice.

Adam Stirling: 12:15

No, I would discourage people.

Michael Mulligan: 12:17

Very much so right, and so this application was brought for a temporary injunction to prevent that from coming into force with respect to lawyers. And I should say there's precedent for it, because the government tried to do that with respect to money laundering and they tried to require lawyers and others to report financial transactions to the government, which of course has all kinds of implications in terms of, again, confidentiality when you go to talk to a lawyer about something, the fact that a lawyer in that case would have to have reported you secretly to the government Pretty disturbing. That was challenged successfully, and then the legislation was amended to remove those provisions with respect to lawyers and instead law societies have implemented strict provisions to prevent lawyers from being used to launder money Like they've restricted when lawyers could accept cash to low amounts only for particular things, and there are special professional obligations lawyers have in terms of identifying clients and ensuring that they're not being used for some improper purpose. So the profession is dealing with it, has dealt with it in a strict way itself, which is as it should be and a much better solution than requiring lawyers to secretly report on their clients to the government, and so this effort, from the tax perspective, is akin to that, and so the court hearing this application found that it applies the test we talked about before in terms of injunctions. Is there a serious issue to be tried? Yes, would there be irreparable harm if there wasn't an injunction? Again, the court concluded yes, there would be, because you would just undermine the core idea that your lawyer is keeping information confidential. Having the lawyer rat you out sort of undermines the whole purpose of getting independent, confidential legal advice, and then, on a balance of convenience, is the final test, and so the conclusion here on an interim basis, is that lawyers will not be required to secretly report you to the income tax department, and we'll have to wait and see what the outcome of that is. Eventually, people should be aware that your accountant may be required to report you, and if they don't do so could be subject to very large penalties, and they could be required to report you for things which we don't even know what they are going to be adding to the list. So that's kind of disturbing.

Michael Mulligan: 14:51

And the overarching thing to bear in mind is just an example of how it is so important that the legal profession be independent of government, and not for the benefit of the legal profession, but for the benefit of anyone who might be out there trying to get advice, knowing that you're not going to be turned in to the government for doing so.

Michael Mulligan: 15:12

And it's an example, a real example, of how having lost society is independent of the government to push back on those kinds of efforts which are, of course, so tempting for government right? Say, hey, we can just find out what's going on if we just make all these lawyers and accountants turn their clients over to us. It is very tempting and very real, and so it's a contemporary example of why that independence is so important and why the efforts in British Columbia to try to by the government to try to get more control over the legal profession they call it single regulator is so concerning. So that's the current state of affairs. Be warned about what your accountant might be doing, and at least for the moment, if you're getting tax advice from a lawyer, they are going. They are now have a temporary injunction in place whereby they're not going to have to turn you into the tax department for doing so.

Adam Stirling: 16:08

All right Up next. This has to do with wills and estates, does it not?

Michael Mulligan: 16:14

It does, and I think it's a good and important case for people to know about. These sort of things happen in real life, and so this is a case of a woman who passed away at age 76, and she passed away without having completed a will. She was in the process of trying to create a will, she was in a assisted living facility and she consulted with the lawyer and gave them instructions about what she wanted to do. She was somebody who didn't have a spouse or children or surviving parents. She did have a brother, but her wish that she expressed to the lawyer was that she wanted to leave her estate not to her brother but to someone else and their children, and the lawyer took her instructions, having spoken to her and received a letter from a doctor confirming her capacity to make a will, and sent her a letter confirming what she had said she wanted to do. Right, I confirm, you told me this is what your testimony wishes are, but unfortunately, covid intervened and the woman, who was in a care facility, was not allowed to have visitors for an extended periods in 2020 and 2021. She suffered from various medical conditions, she didn't use technology like iPads and so on to communicate and, sadly, she passed away before she had completed a will in the ordinary way. Her estate was substantial, it was a million and a half dollars and after she had passed away a copy of the letter was found in her effects and it was confirmed with a lawyer that the lawyer did write that letter confirming what her wishes were.

Michael Mulligan: 18:00

And the way it works is if you pass away without a valid will, the will's estates and the will estates and secession act specifies what is to happen to your property, right, if you die in test state. And in this case the effect of there not being a will was that her surviving brother would have inherited all of her estate and that was something which she had expressly said to the lawyer was not her wish. And so the issue for the judge was in the judge rely upon this letter written by the lawyer confirming what the woman's wishes were. And indeed there's a section of that will's estates and secession act 58, sub two that deals with the issue of when a judge could recognize and implement something which allows you to determine what the wishes of the person was, even when the document doesn't meet all the requirements of a will Interesting. And that would often come up with things like let's say somebody drafts up a will and let's say they sign it but don't get it witnessed properly. Well, that doesn't really meet the requirements, right, as long as you're satisfied that they wrote it and that was their intention, and so on. That's the sort of circumstance you might say clearly fits within that.

Michael Mulligan: 19:27

This was a bit different because this wasn't a document written by the woman at all. Right, she had spoken to her lawyer, told the lawyer what she wanted to do. The lawyer had confirmed what she said and sent it back to her. She put the letter, so we know she got it into a file entitled Lawyers Info Re-Estate, right, yeah, but it wasn't something that she wrote herself at all, and so that's why this was an interesting case, with the judge struggling with that issue of is that something that should be used to determine what her wishes were?

Michael Mulligan: 20:05

And the court in this case actually looked at a New Zealand decision which, in that case, under different legislation, a court found that the notes written by a lawyer about what deceased had told the lawyer they wanted to do should be recognized, and so that's one of the things that the judge looked to as a precedent. They also looked to a case another interesting fact pattern in BC, which was a circumstance where, after somebody had passed away without a will, there was a discovery on the person's computer that they had sort of typed out what they wanted to do. They had typed out a document saying get a will made at some point, five-way asset split for remaining brothers and sisters, and that was implemented. Right, yeah. And so the broad takeaway is that, right, we want to, or the legislation contemplates trying to do what somebody wanted to have happened.

Michael Mulligan: 21:03

Right Was this the person's intent and the objective is to make that happen. And in this case it was helped along by and this isn't always so but other relatives, including the brother, who would have been the person entitled to the entire estate if this wasn't a valid will, was advised of the application and didn't contest it. Right, and so it's an example of something you don't see in every case where people act sort of reasonably right. So look, you know I could get all of this money potentially, but I'm not going to fight about it the objective being it seems like everyone concerned here to do what the person wanted with her estate. And that was the outcome. The notes of the letter from the lawyer was recognized as representing her wishes, and so the money will be distributed as she had told her lawyer she wanted to, even though she wasn't able to ultimately get the will finalized and sign it.

Adam Stirling: 22:03

Michael Mulligan with Mulligan Defense Lawyers. Legally speaking, all out of time for this week, but a pleasure as always. Thanks so much. Have a great day. All right, Take care. Bye now.