Maurice v. Priel, [1989] 1 S.C.R. 1023

L. Ted Priel, David McKeague and Harvey Walker Appellants

v.

Gene Arthur Francis Maurice Respondent

indexed as: maurice v. priel

File No.: 20707.

1989: February 3; 1989: April 27.

Present: Lamer, Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.

on appeal from the court of appeal for saskatchewan

Jurisdiction -- Law Society -- Discipline -- Law Society committee to hear complaint against judge -- Complaint arising from circumstances while judge practising law -- Law Society's disciplinary jurisdiction restricted to members -- Whether or not judge member of Law Society and subject to its discipline -- Legal Profession Act, R.S.S. 1978, c. L‑10, ss. 3, 7, 56, 57 -- Judges Act, R.S.C. 1970, c. J‑1, s. 36.

Barristers and solicitors -- Discipline -- Law Society committee to hear complaint against judge -- Complaint arising from circumstances while judge practising law -- Law Society's disciplinary jurisdiction restricted to members -- Whether or not judge member of Law Society and subject to its discipline.

Courts -- Judges -- Discipline -- Law Society committee to hear complaint against judge -- Complaint arising from circumstances while judge practising law -- Law Society's disciplinary jurisdiction restricted to members -- Whether or not judge member of Law Society and subject to its discipline.

Some years after respondent's appointment to the Bench, the Law Society of Saskatchewan received a complaint concerning his conduct while he was a practicing lawyer. Appellants were appointed as a committee to hear the complaint against the respondent after an investigation committee had reported and respondent was served with a formal complaint alleging conduct unbecoming a barrister and solicitor. Respondent applied directly to the Court of Appeal for, and was granted, an order prohibiting the appellants from proceeding with the hearing. At issue is whether or not the Law Society has jurisdiction to proceed with discipline proceedings against a judge for breaches of its Code of Professional Conduct which allegedly occurred while he was a practising lawyer.

Held: The appeal should be dismissed.

Per Lamer, Wilson, L'Heureux-Dubé, Sopinka, Gonthier and Cory JJ.: The Law Society did not have jurisdiction to conduct the discipline hearings pertaining to respondent because its jurisdiction extended only to those who were members. The wording of the Legal Profession Act and the Judges Act precluded respondent's being a member. The word "member" was not specifically defined in the Legal Profession Act but s. 3 provided that "barristers and solicitors of Saskatchewan and persons admitted to the Society as students at law shall be members". The provisions of the Judges Act prohibited a judge from acting as a barrister and solicitor. Upon appointment a judge, in so far as the Law Society was concerned, became relegated to a state of suspended animation.

Being a member at the time of the alleged misconduct was not sufficient to give the discipline committee jurisdiction to proceed with the hearing. A person's membership in the Law Society does not continue forever once that person becomes a member.

The need to avoid the public perception of judges' being immune from the consequences of their misconduct did not give rise to any public policy requiring that the Law Society retain disciplinary jurisdiction over judges for breaches of professional conduct committed as lawyers prior to their appointment. A judge may be sued in a civil action, subject to any statutory time limitations. Similarly, a judge may remain answerable in court for criminal acts committed before appointment to judicial office.

Per La Forest J.: Respondent, on the wording of the Legal Profession Act, was not a member of the Law Society of Saskatchewan.

Cases Cited

By Cory J.

Approved: Re Law Society of Upper Canada and Robinette, 1954 133 (ON SC), [1954] 2 D.L.R. 692.

Statutes and Regulations Cited

Judges Act, R.S.C. 1970, c. J‑1, s. 36.

Legal Profession Act, R.S.S. 1978, c. L‑10, ss. 3, 7, 54, 55, 56, 57.

Rules of the Law Society of Saskatchewan, s. 84.

APPEAL from a judgment of the Saskatchewan Court of Appeal (1987), 1987 207 (SK CA), 60 Sask. R. 241, [1988] 1 W.W.R. 491, prohibiting, on a direct application, a professional disciplinary hearing. Appeal dismissed.

S. Halyk, Q.C., and G. Blue, for the appellants.

G. L. Gerrand, Q.C., for the respondent.

//Cory J.//

The judgment of Lamer, Wilson, L'Heureux-Dubé, Sopinka, Gonthier and Cory JJ. was delivered by

CORY J. -- At issue in this appeal is whether or not the Law Society of Saskatchewan has jurisdiction to proceed with discipline proceedings against the respondent, a judge of the Court of Queen's Bench for Saskatchewan, for breaches of the Code of Professional Conduct of the Law Society of Saskatchewan, which are alleged to have occurred while he was a practising lawyer.

The Factual Background

On August 3, 1967 the respondent was admitted as a barrister and solicitor by the Law Society of Saskatchewan. He practised law in Saskatchewan from that date until October 13, 1981 when he was appointed a judge of the Court of Queen's Bench for Saskatchewan, a position which he holds at the present time.

Some years after his appointment the Law Society of Saskatchewan received a complaint concerning his conduct while he was a practising lawyer. An investigation committee was appointed pursuant to the provisions of s. 56 of The Legal Profession Act, R.S.S. 1978, c. L-10, as amended. As a result of that committee's report the first vice-chairman of the Law Society's discipline committee appointed the appellants as a committee to hear the complaint against the respondent. On August 11 the respondent was served with the following formal complaint:

I, IAIN ALEXANDER MENTIPLAY, of the City of Regina, in the Province of Saskatchewan, Secretary of the Law Society of Saskatchewan, do hereby certify that the 1st Vice-Chairman of the Discipline Committee of the Benchers of the Law Society of Saskatchewan has appointed a Hearing Committee pursuant to Section 57(1) of The Legal Profession Act, composed of L. Ted Priel, Chairman, David McKeague and Harvey Walker as members to hear and determine the following formal complaint set out by an Investigation Committee pursuant to Section 56(1) of The Legal Profession Act consisting of Morris Bodnar, Daniel Ish and Lawrence Zatlyn against GENE A. F. MAURICE, of the City of Regina, in the Province of Saskatchewan.

THAT GENE A. F. MAURICE, then of the City of Swift Current, in the Province of Saskatchewan, who at all material times was a barrister and solicitor, of the Province of Saskatchewan, duly enrolled as such under The Legal Profession Act is guilty of conduct unbecoming a barrister and solicitor in that he:

1. In or about the year 1974, at or near Cabri, in the Province of Saskatchewan, did approach and solicit Mr. Gerald L. Morris of the Cabri Credit Union Limited to direct business to his law firm and did thereby participate in soliciting, touting and/or canvassing and did thereby engage in conduct contrary to and in breach of The Code of Professional Conduct of the Law Society of Saskatchewan.

2. Between the years 1974 and 1981 did engage in conduct unbecoming a barrister and solicitor when he encouraged and participated in a scheme of fee division and fee splitting with one Gerald L. Morris by giving the said Gerald L. Morris a percentage of the fees collected on legal transactions referred to his law firm by the said Gerald L. Morris, contrary to and in breach of The Code of Professional Conduct of the Law Society of Saskatchewan.

3. Between the years 1974 and 1981 inclusive, at Swift Current, in the Province of Saskatchewan, did knowingly and wilfully fail to account to clients respecting disbursement made on behalf of the said client contrary to and in breach of The Code of Professional Conduct of the Law Society of Saskatchewan.

4. Between the years 1974 and 1981 inclusive, at Swift Current, in the Province of Saskatchewan, did knowingly and wilfully encourage one Gerald L. Morris of the Cabri Credit Union Limited to act as his law firm's agent in the legal transactions between the law firm and clients, and did therefore encourage and permit and allow an unauthorized individual to practice [sic] law contrary to and in breach of The Code of Professional Conduct of the Law Society of Saskatchewan.

The Law Society proceeded with similar charges against a former partner of the respondent who, on two counts, was found to have contravened the Code of Professional Conduct. An appeal from that decision was taken to the Court of Appeal and dismissed. Gerald L. Morris was convicted on a charge of corruptly accepting fees from the law firm. The conviction was appealed but it too was dismissed by the Court of Appeal.

The respondent's hearing was scheduled for September 22, 1987. On August 25 the respondent applied directly to the Court of Appeal for an order prohibiting the appellants from proceeding with the hearing therein. On November 4, 1987 the Court of Appeal rendered its decision prohibiting the hearing from proceeding.

The Decisions of the Court of Appeal

Bayda C.J., speaking for the majority of the Court, found that the Law Society did not have jurisdiction to conduct the hearing as the respondent was not a member of the Law Society. Tallis J.A. was of the view that the application was premature and that the question of jurisdiction should initially be determined by the hearing committee. However, he went on to consider the merits of the appeal. He concluded that the hearing committee did have jurisdiction to conduct the enquiry. It was his view that s. 54 of The Legal Profession Act required only that the person against whom the complaint was lodged be a member at the time of the alleged misconduct. This in his opinion was sufficient to give the committee jurisdiction over the matter.

The Applicable Legislation

In order to determine the question of jurisdiction of the discipline committee it is necessary to set out certain provisions of The Legal Profession Act and the Judges Act. Membership in the Law Society is set forth in s. 3 of The Legal Profession Act:

3 Barristers and solicitors of Saskatchewan and persons admitted to the society as students at law shall be members of the society.

The only reference to judges is found in s. 7 of that Act which reads:

7 The judges of the Court of Appeal, Her Majesty's Court of Queen's Bench for Saskatchewan and the Provincial Court of Saskatchewan shall be visitors of the society.

The disciplinary proceedings are set out in ss. 54 to 57. They read as follows:

54 The chairman or a vice-chairman of the discipline committee shall review any complaint or allegation that comes to his attention which raises the suggestion that any member of the society has been guilty of conduct unbecoming a barrister and solicitor, and shall:

(a) where he is of the opinion that the subject matter of the complaint or allegation is not conduct unbecoming a barrister and solicitor, direct that no further action be taken; or

(b) appoint an investigation committee pursuant to subsection 56(1) to inquire into the allegation or complaint or any part of the allegation or complaint.

55 Where a member of the society who is also called to the bar or enrolled as a barrister or solicitor in another jurisdiction is disbarred, struck off the roll or suspended from practising as a barrister and solicitor in that jurisdiction for a reason that, in the opinion of the chairman or the first or second vice-chairman of the discipline committee, appears to constitute conduct unbecoming a barrister and solicitor:

(a) the member shall be struck off the roll or suspended from practice, as the case may be, in Saskatchewan until the next convocation of the benchers; and

(b) an investigation committee may be appointed to inquire into the matter.

56(1) The chairman or a vice-chairman of the discipline committee may appoint an investigation committee consisting of any number of benchers that the chairman or a vice-chairman considers advisable, one of whom shall be designated as the chairman, to inquire into any matter referred to it pursuant to clause 54(b) or 55(b).

(2) An investigation committee shall inquire into any matter referred to it pursuant to clause 54(b) or 55(b) and may investigate any other matter that arises during the course of an inquiry pursuant to this subsection and that appears to constitute conduct unbecoming a barrister and solicitor.

(3) Subject to the approval of the chairman or a vice-chairman of the discipline committee or the benchers, an investigation committee may suspend a member of the society from practice pending the completion of its investigation and report or the report of a hearing committee appointed to determine the matter.

(4) A suspension imposed pursuant to subsection (3) expires on the last day of the next convocation of the benchers, unless the benchers:

(a) revoke the suspension prior to that day; or

(b) extend the suspension beyond that day.

(5) An investigation committee or any two of:

(a) the president of the society;

(b) the vice-president of the society;

(c) the chairman of the discipline committee; or

(d) a vice-chairman of the discipline committee;

may apply for the appointment of a trustee pursuant to section 73.

(6) Upon the completion of its inquiry, an investigation committee shall make a written report to the chairman or a vice-chairman of the discipline committee recommending that:

(a) a hearing committee be appointed to hear and determine the formal complaint set out in the written report; or

(b) no further action be taken with respect to the matter under investigation;

and a report signed by a majority of an investigation committee is the decision of the investigation committee.

(7) An investigation committee that makes a report pursuant to clause (6)(a) shall prosecute the formal complaint set out in the report before the hearing committee, discipline committee and the Court of Appeal, as the case may be, but its members shall not participate in any other manner in the handling of that complaint by a hearing committee, the discipline committee or the benchers, except as witnesses when required.

57(1) Upon receipt of a report from an investigation committee pursuant to clause 56(6)(a), the chairman or a vice-chairman of the discipline committee shall appoint a hearing committee to hear and determine the formal complaint.

(2) Upon receipt of a report from an investigation committee pursuant to clause 56(6)(b) or upon the application of any person, the discipline committee may appoint a hearing committee to hear and determine a formal complaint set out by the discipline committee.

(3) Subject to subsection (3.1), a hearing committee appointed pursuant to subsection (1) or (2) is to consist of at least three and not more than five members of the discipline committee.

(3.1) No member of the discipline committee who was a member of the investigation committee that inquired into the matter that is the subject of the formal complaint is eligible to be a member of a hearing committee appointed pursuant to subsection (1) or (2).

(3.2) Three members of the hearing committee constitute a quorum.

(4) Immediately upon the appointment of a hearing committee, the secretary shall send a copy of the formal complaint to the member whose conduct is the subject of the hearing.

(5) At least two weeks prior to the date that the hearing committee is to sit, the secretary shall notify the member whose conduct is the subject of the hearing of the date, time and place of the hearing.

It can be seen that discipline hearings can only be undertaken against members of the Law Society.

The Judges Act prohibits a judge from engaging in any occupation other than his judicial duties. He thus cannot carry on as a barrister or solicitor. Section 36 of the Judges Act, R.S.C. 1970, c. J-1, is as follows:

36. No judge shall, either directly or indirectly, as director or manager of any corporation, company or firm, or in any other manner whatever, for himself or others, engage in any occupation or business other than his judicial duties, but every judge shall devote himself exclusively to his judicial duties, except that a district judge in Admiralty may continue to perform the duties of a public office under Her Majesty in right of Canada or of a province held by him at the time of his appointment as district judge in Admiralty.

Is the Respondent a Member of the Law Society of Saskatchewan?

Application of The Legal Profession Act and the Judges Act

It becomes apparent that the jurisdiction of the Law Society of Saskatchewan to conduct the discipline hearings pertaining to the respondent will be dependent upon whether or not he is a member of the Law Society. In my view the respondent is not a member of the Law Society. I base this conclusion upon a consideration of the specific sections set out above and The Legal Profession Act as a whole.

It will be recalled that although the word "member" is not specifically defined in the Act, s. 3 provides that "Barristers and solicitors of Saskatchewan and persons admitted to the society as students at law shall be members of the society." The provisions of the Judges Act prohibit a judge from acting as a barrister and solicitor. Upon appointment a judge, in so far as the Law Society is concerned, becomes relegated to a state of suspended animation. A judge cannot act as a barrister or solicitor, be a bencher, nominate a bencher, vote for a bencher, or indeed take part in any of the proceedings of the Law Society. Pursuant to the Rules of the Law Society of Saskatchewan (Rule 84), it is only upon retirement that a judge is entitled to resume practice as a barrister and solicitor subject to such conditions as the benchers may impose and upon payment of a fee and taking out an annual certificate.

The unique position of a judge is reflected by s. 7 of The Legal Profession Act which designates judges as visitors of the Society. The title is a hollow and anachronistic one: there is no role or function assigned to a visitor. Nor does a visitor hold any office, or derive any rights from or owe any responsibilities to the Law Society. Whatever it may be, a visitor is not a barrister or solicitor.

In Re Law Society of Upper Canada and Robinette, 1954 133 (ON SC), [1954] 2 D.L.R. 692, the issue for determination was whether or not Mr. Robinette continued as a member of the Law Society of Upper Canada and a bencher upon his nomination as a judge but before he could be sworn in and commence his judicial duties. The legislation then in force in Ontario (which has subsequently been substantially amended) contained membership provisions very similar to those of the present Legal Profession Act of Saskatchewan. McRuer C.J.H.C. concluded that upon his appointment to the Court of Appeal of Ontario Mr. Robinette ceased to be a member of the Bar. He determined that to hold otherwise would require him to say as a matter of law that "one who has been appointed to be a Judge may still practise before the Courts as a member of the Bar". I think the conclusion was a correct one and that it is apposite to the case at bar.

I conclude that on the wording of The Legal Profession Act and the Judges Act the respondent is not a member of the Law Society of Saskatchewan.

The appellant argued that if it should be found that a judge, while occupying a judicial position, was not a member of the Law Society then, in the alternative, provisions of The Legal Profession Act set out above indicated that once a person became a member of the Law Society that person's membership continued in effect forever. Tallis J.A. gave effect to an essentially similar submission. He determined that even if a person was no longer a member of the Law Society, the fact that he or she was a member at the time of the alleged misconduct is sufficient to give jurisdiction to the discipline committee to proceed with the hearing. That argument cannot be accepted. If it were, it would mean that discipline proceedings could be instituted against deceased members or those who had been retired for many years. It was contended that if the Court did not agree with the submission "once a member always a member" it could lead to abuses as members could resign from the Law Society just before discipline hearings were commenced. In light of the determination that a judge is not a member of the Law Society of Saskatchewan, it is not necessary to deal with this somewhat in terrorem argument. In any event, it should be noted that the Act has now been amended to provide that a member cannot resign from the Law Society without the approval of the Benchers.

It is not appropriate in the circumstances of this case to deal with the arguments raised as to the rights, duties and jurisdiction of self-governing professional societies in professional discipline proceedings or the independence of the judiciary. These important matters should be left to be dealt with in an appropriate case, as should the conclusion of the Chief Justice that the Judicial Council would have jurisdiction over a judge for breaches of professional misconduct committed while he was a practising lawyer. Once again it is simply not an appropriate case to deal with that issue.

The case at bar is not concerned either with the bounds of judicial immunity or with what may constitute interference with judicial independence. Rather it is concerned with the narrow issue as to whether pursuant to the provisions of The Legal Profession Act of Saskatchewan the Law Society of that province can institute discipline proceedings against a judge for alleged misconduct committed while still a lawyer. The resolution of the issue turns solely upon the wording of The Legal Profession Act and the Judges Act.

At the outset the appellant argued that as a matter of public policy the Law Society should retain disciplinary jurisdiction over members of the judiciary for breaches of professional conduct committed by them as lawyers before their appointment to the bench. It was contended that if the Society were denied such jurisdiction the public would perceive judges to be immune from the consequences of their misconduct. That submission cannot be correct. Judicial robes do not act as a cloak of immunity. A judge may, subject to the effect of any statutory time limitations, be sued in a civil action for doing those things he ought not to have done or for failing to have done those things he ought to have done as a lawyer. For example, a judge may be subject to suits for negligent acts committed while practising as a lawyer or for breach of trust or breach of contract. Similarly a judge may remain answerable in court for criminal acts committed before appointment to judicial office. This argument based on the difficult and slippery ground of public policy must, as well, be rejected.

Disposition

In the result, I would dismiss the appeal with costs.

//La Forest J.//

The following are the reasons delivered by

LA FOREST J. -- I agree with my colleague Cory J. for the reasons given by him that on the wording of The Legal Profession Act, R.S.S. 1978, c. L-10, as amended, the respondent is not a member of the Law Society of Saskatchewan, and I would on that ground dispose of this appeal as proposed by him.

Appeal dismissed with costs.

Solicitors for the appellants: Halyk Brent Dovell, Saskatoon.

Solicitors for the respondent: Gerrand & Company, Regina.