Executive Summary: Key legal and evidentiary issues

• Bill 21 (Legal Professions Act, S.B.C. 2024, c. 26) replaces British Columbia's long-standing self-governing legal regulatory model with a new amalgamated regulator, "Legal Professions British Columbia," governed by a 17-member board no longer controlled by a majority of elected lawyers.

• Plaintiffs argued that independence of the Bar is an unwritten constitutional principle and that Bill 21 is ultra vires the provincial legislature under ss. 92(13) and 92(14) of the Constitution Act, 1867.

• The Court confirmed that independence of the Bar is indeed an unwritten constitutional principle but held that the specific model of self-governance by elected lawyers is not constitutionally mandated.

• Charter challenges under ss. 2(d), 7, 8, 10(b), and 11(d) were raised by the Trial Lawyers Association, alleging violations of association rights, forced medical treatment provisions, and unreasonable search powers.

• Cabinet's regulation-making authority under Bill 21 was found to be narrowly scoped and not equivalent to direct government control over the practice of law.

• All constitutional and Charter challenges were dismissed, with the Court finding Bill 21 does not improperly undermine the independence of the Bar.

The facts of the case

For over 150 years, since its creation in 1874, the Law Society of British Columbia (LSBC) had been an independent, self-governing society charged with regulating lawyers in the public interest. The LSBC was governed by "benchers," a majority of whom were elected lawyers, and since 1884 it had held the exclusive right to make rules and regulations in respect of the discipline of lawyers and admission to the bar with no requirement for consultation with, or approval by, any government or other external body.

In 2024, the Legislature of British Columbia enacted Bill 21, the Legal Professions Act, S.B.C. 2024, c. 26 (transition provisions assented to 16 May 2024), which provided for the amalgamation of the LSBC with the Society of Notaries Public of British Columbia (SNPBC) to create a new regulator called "Legal Professions British Columbia." The new regulator would have regulatory jurisdiction over lawyers, notaries public and paralegals as well as, potentially, new legal professions. A central element of Bill 21 was the elimination of self-governance and self-regulation of lawyers by a board comprised of a majority of elected lawyers.

The new regulatory structure under Bill 21

Under Bill 21, the new regulator's board would consist of 17 directors: five elected by and from among lawyers; two elected by and from among notaries public who are not also lawyers; two directors who are regulated paralegals; three appointed by the Lieutenant Governor in Council (LGinC), of whom at least one must be an individual of a First Nation; and five appointed by a majority of the other directors holding office, after a merit-based process, of whom four must be lawyers, one must be a notary public who is not a lawyer, and at least one must be an Indigenous person. The legislation also established an Indigenous Council with advisory and limited approval powers, a Transitional Indigenous Council required to collaborate with the transitional board to develop the first rules of the new regulator with approval authority over those first rules, and mandatory guiding principles requiring the regulator to have regard to, among other things, "supporting reconciliation with Indigenous peoples and the implementation of the United Nations Declaration on the Rights of Indigenous Peoples." The LGinC was granted regulation-making authority in specific areas, including the power to designate new legal professions, prescribe classes of persons exempt from the prohibition on unauthorized practice, and prescribe the scope of practice for notaries and regulated paralegals. Section 214 provided that in the event of an inconsistency between a regulation made by the LGinC and a rule made under Bill 21, the regulation prevails.

The plaintiffs' challenges

The LSBC (Action No. S243258) and the Trial Lawyers Association of British Columbia and Kevin Westell (together, TLABC) (Action No. S243325) brought two parallel actions challenging Bill 21. The LSBC argued that an independent Bar was a fundamental, underlying principle of the Canadian Constitution, reflected in the judicature provisions of the Constitution Act, 1867 (ss. 96–101) and in ss. 7, 10 and 11(d) of the Canadian Charter of Rights and Freedoms. It contended that Bill 21 overturned over 150 years of self-governance and self-regulation, eroding the essential conditions of an independent Bar, and was therefore ultra vires the provincial legislature and its powers under ss. 92(13) and 92(14) of the Constitution Act, 1867. While the principal focus of the LSBC's challenge was the composition of the governing board of the new regulator, the LSBC described it as the "waterfall effect" of numerous measures contained in Bill 21 that, taken together, significantly eroded the independence of the Bar.

The TLABC supported the LSBC's vires arguments and additionally alleged that Bill 21 violated the Charter: s. 2(d) freedom of association by ending self-regulation; s. 7 right to life, liberty, and security of the person through provisions that, in the TLABC's view, equated health conditions, including mental health conditions, with incompetence and permitted the chief executive officer of the new regulator to compel lawyers to undergo treatment; s. 8 right against unreasonable search and seizure through warrantless investigatory powers under s. 78; and ss. 7, 10(b), and 11(d) by undermining the independence of the Bar and thereby impeding access to effective assistance by independent counsel and to a fair hearing before an independent judge.

The defendants' position and intervenors

The Attorney General of British Columbia acknowledged that independent lawyers play a crucial role in the administration of justice but argued that lawyers are not constitutionally guaranteed the right to be free from any and all forms of democratic regulation. The defendants submitted that the regulatory powers of lawyers' governing bodies are delegated to them by provincial legislatures and that the regulatory model chosen is a matter of legislative policy. They maintained that Bill 21 preserved the independence of lawyers when independence is understood as the fundamental duty to provide clients with independent advice and advocacy, a principle of fundamental justice protected under s. 7 of the Charter, and that the plaintiffs' claims went well beyond the protection of this duty by asserting that a model of self-governance by a board comprised of a majority of elected lawyers is constitutionally mandated.

Several intervenors participated. The Canadian Bar Association (CBA) submitted that Bill 21 unconstitutionally impaired the independence of the Bar, both in fact and appearance, by eliminating self-regulation and giving the state control over the regulation of lawyers. The Law Society of Manitoba (LSM) submitted that self-regulation and self-governance are hallmarks of an independent Bar and that Bill 21 established a regulator that is not, or will not be seen to be, independent of government. The Society of Notaries Public of British Columbia (SNPBC) submitted that co-regulation and co-governance is constitutionally sound, arguing that the Constitution's protection of independent legal professionals should focus on function rather than title. The Indigenous Bar Association (IBA) argued that neither the Indigenous Council nor the s. 7(b) guiding principles undermined the independence of the Bar as properly understood and construed, and that the principles of independence of the Bar and reconciliation should be considered together when interpreting the Constitution. The Law Foundation of British Columbia intervened for the limited purpose of opposing the plaintiffs' proposed alternative remedy that only some parts of Bill 21 be declared ultra vires, warning that the alternative remedies could destabilize the Foundation's ability to carry out its mandate.

The Court's analysis on unwritten constitutional principles

Chief Justice Skolrood found that the independence of the Bar is an unwritten constitutional principle, citing extensive jurisprudence including the Supreme Court of Canada's statement in Attorney General of Canada v. Law Society of British Columbia (Jabour) that "[t]he independence of the Bar from the state in all its pervasive manifestations is one of the hallmarks of a free society." The Court held that while the independence of the Bar is an unwritten constitutional principle, it is a principle that is implicit in certain parts of the written constitutional text, specifically in the judicature provisions of the Constitution Act, 1867 (ss. 96–101) and in the fundamental rights and freedoms guaranteed under ss. 7, 10(b) and 11(d) of the Charter. The Court defined the content of this principle as requiring that lawyers be free of influence by public authorities to ensure that members of the public receive independent and impartial legal advice and services.

On the critical question of how unwritten constitutional principles interact with written provisions, the Court applied the framework from Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, finding that the LSBC was properly applying the unwritten constitutional principle of an independent Bar as an interpretive aid in determining the scope of ss. 92(13) and (14), one of the two permissible uses of unwritten principles recognized by the Supreme Court. The Court distinguished the case from Mercer v. Yukon (Government of), 2025 YKCA 5, where the appellant's arguments were "wholly untethered from basic constitutional structure," whereas the LSBC's position was that the independence of the Bar is an essential structural element of the Constitution.

The ruling on the specific provisions of Bill 21

Regarding the composition of the new board, the Court held that while the legislature has historically chosen a self-governance model, that model is not constitutionally mandated as a requirement for maintaining an independent Bar. The Court noted that Manitoba is a jurisdiction in which the governing law society does not have a majority of elected lawyer directors and yet its ability to function independently is not challenged, and that the LSBC has long had a number of benchers appointed by the provincial government, including non-lawyer benchers, with no evidence to suggest those benchers have failed to act independently and in the public interest. When fully constituted, the board of the new regulator will be comprised of an, albeit slim, majority of lawyers. As Professor Monahan noted, "it is the independence of the profession that is constitutionally protected, but not necessarily its 'self governing status.'"

The Court rejected the challenge to Bill 21's duties and guiding principles, finding no meaningful difference between a provision stipulating that the object and duty of the regulator is to uphold and protect the public interest and one that mandates that the regulator exercise its duties in the public interest. On the reconciliation guiding principles in s. 7(b), the Court held they did not compromise the duties that lie at the heart of an independent Bar to provide independent and objective advice and advocacy to clients, noting the LSBC has itself long been committed to reconciliation and that through the Declaration of the Rights of Indigenous Peoples Act (DRIPA) the province has affirmed the application of UNDRIP to the laws of BC.

The Indigenous Council's role was found to be carefully circumscribed: it has approval power in respect of only two sets of rules, while the other aspects of its role are purely advisory. The Court held the Indigenous Council does not undermine independence because it does not have independent rule-making authority. The Transitional Indigenous Council's approval powers over the first rules were similarly found not to undermine independence, as approval power does not equate to rule-making authority.

The LGinC's regulation-making powers were found to be narrowly scoped. The Court held that s. 211(1) does not extend the scope of regulations that Cabinet can make but simply empowers Cabinet to make regulations where regulations are already contemplated by Bill 21, specifically in a few areas: designating a profession as a legal profession (s. 4); prescribing classes of persons as exempt from the prohibition against unauthorized practice (s. 212); and prescribing the scope of practice for notaries and regulated paralegals (s. 213). The Court found these powers did not amount to direct government regulation of the practice of law.

On the Charter claims, the Court dismissed all arguments. The s. 2(d) challenge failed because the LSBC is not an association meant to represent lawyers; its purpose is to regulate lawyers in the public interest. The s. 7 challenge regarding health conditions and treatment failed because Bill 21's definition of "incompetently" does not turn on the existence of a health condition but on whether a health condition is affecting a licensee's ability to practice with reasonable skill and competence — the focus remains conduct, not condition — and the new regulator cannot compel lawyers to receive treatment they do not want, though declining may lead to consequences such as a suspension or cancellation of their license. The s. 8 challenge to warrantless search powers under s. 78 failed, as the Court of Appeal had upheld similar provisions under the current Legal Profession Act in A Lawyer v. The Law Society of British Columbia, 2021 BCCA 437, and the solicitor-client privilege protections in s. 88 of the Legal Profession Act are largely replicated in s. 209 of Bill 21. The public's fair trial rights claims under ss. 7, 10(b), and 11(d) failed as a consequence of the Court's conclusion that Bill 21 does not infringe the independence of the Bar.

The outcome

The Honourable Chief Justice Skolrood dismissed both actions in their entirety, finding that Bill 21 does not improperly undermine the independence of the Bar and is not ultra vires the provincial legislature, nor does it violate the Charter. The successful party was the defendants, the Attorney General of British Columbia and the Lieutenant Governor in Council. No specific monetary amount was ordered or awarded; the issue of costs was left to the parties to resolve by agreement, failing which they were directed to contact Supreme Court Scheduling within 60 days to schedule a conference at which the process and timing for dealing with costs will be addressed.