Jamaican Bar Association v Attorney General and General Legal Council

• Jurisdiction: Jamaica
• Judge: P. Williams J,D. Fraser,S. George JJ,Williams J
• Judgment Date: 04 May 2017
• Neutral Citation: [2017] JMFC Full 02
• Docket Number: CLAIM NO. 2014 HCV 0772
• Court: Supreme Court (Jamaica)
• Date: 04 May 2017

[2017] JMFC Full 02

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE FULL COURT

Before:

THE HONOURABLE Miss Justice Paulette Williams

THE HONOURABLE Mr Justice David Fraser

THE HONOURABLE Mrs Justice Sharon George

CLAIM NO. 2014 HCV 0772

In The Matter of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011 (the Charter)

and

In The Matter of the Proceeds of Crime Act and Regulations and consequential amendments to the Legal Professional Act and Canons and the General Legal Council of Jamaica, Anti-Money Laundering Guidance for the Legal Profession.

Between

The Jamaican Bar Association

Claimant

and

The Attorney General

1 ^st Defendant

The General Legal Council

2 ^nd Defendant

Richard Mahfood Q.C., R.N.A. Henriques Q.C., Georgia Gibson Henlin, M. Maurice Manning, Shawn Wilkinson, Catherine Minto and Akuna Noble instructed by Wilkinson Law for the Claimants

Nicole Foster-Pusey Q.C., Carlene Larmond, Carla Thomas and Andre Molton instructed by the Director of State Proceedings for the 1 ^st Defendant

Allan Wood Q.C., Dr. Lloyd Barnett, Caroline Hay, Symone Mayhew and Sundiata Gibbs instructed by Symone Mayhew for the 2 ^nd Defendant

The Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011 — Whether the Regime infringes sections 13(3)(a),(c), (j) and (r), 14(2)(d), 16(1), (2) and (6)(c) of the Charter — The Proceeds of Crime Act, 2007, as Amended — Whether the reporting obligations imposed on attorneys by sections 94 and 95 breaches attorney/client privilege, legal professional privilege, the principle of confidentiality between attorney and client and creates a conflict of interest without any safeguards that may be justified in a free and democratic society-whether the provisions are unclear, uncertain and unambiguous and therefore incapable of application — Whether the reporting obligations creates a situation of divided loyalty and loses sight of the fiduciary role and capacity of attorneys in regards to their clients — Whether the tipping off provisions as contained in section 97 mandates attorneys to engage in an act of disloyalty and has thereby transformed them into agents against their clients — Whether the Regime engages the liberty interests of attorneys and clients in a manner that infringes section 13(3)(a) — Whether the application of POCA, as amended, to attorneys is inconsistent with the integral and essential role of attorneys in the proper administration of justice and the maintenance of the rule and infringes on the independence of the bar — Whether the powers of the second defendant to examine and take copies of information or documents in the possession of attorneys infringes s. 13(3)(j) — Whether the entry of the second defendant onto attorneys premises is warrantless and without lawful authority — Whether the entry of the second defendant onto attorneys' premises and the mandatory compliance of the attorney, who is faced with the threat of imprisonment, constitutes prima facie infringements of sections 13(3)(a) and (j) of the Charter — Whether the obligation to keep records pursuant to the regulations breaches the duty of confidentiality, creates a conflict of interest and fundamentally breaches the attorney's duty of fidelity owed to the client — Whether any infringement is demonstrably justified in a free and democratic society

INDEX

HEADING	PARAGRAPH(S)
Concurring comments of P. Williams J	1
Background to the Claim	2 – 23
The Claim	24
Affidavit evidence concerning establishment of the Regime	25 – 36
The Issues	37
Access to Constitutional Relief	38
The Applicable Test to Determine Constitutionality	39 – 56
Presumption of Constitutionality	39 – 43
Demonstrably Justified in a Free and Democratic Society	44 – 56
Issue 1 – Whether the Regime undermines the principles of Legal Professional Privilege (Constitutionally or otherwise)?	57 – 172
Submissions made by each party	57 – 65
Observations on the nature of Legal Professional Privilege	66 – 68
Overview of Legal Profession Privilege	69 – 101
Classes of Documents /Communications to which LPP is attached	69 – 77
Is Privilege Absolute?	78 – 81
The Perpetual Nature of Privilege	82 – 87
Communications exempted from the Principle of LPP (Crime, Fraud and Iniquity)	88 – 99
Concluding comments on Overview	100 – 101
The Relevant Legal Context	102 – 132
Suspicious Transaction Reports and Legal Professional Privilege	133 – 148
Submissions made by each party	133 – 137
Guidance, Relevant Law and Analysis	138 – 148
The Mens Rea Safeguard	149 – 166
Analysis	166 – 172
Issue 2 – Whether the Regime subjects Attorneys-at-Law to Unconstitutional Searches and Seizures?	173 – 214
Relevant Law/Guidance	173 – 176
Submissions made by each party	177 – 181
Affidavit Evidence	182 – 183
Observations	184 – 185
The Powers of the 2 nd defendant in respect of Examinations/Inspections	186 – 193
The Position outlined in FLSC v Canada (AG) in respect of Search and Seizure	194 – 195
Comparison of and Contrast between the Canadian and Jamaican Positions	196 – 213
The Sharing of Information with other Competent Authorities	214 – 215
Issue 3 – Whether the Regime Breaches the Constitutional Right to Privacy or Breaches Attorney – Client confidentiality?	216 – 254
Observations	216
Submissions made by each party	217 – 218
Analysis	219 – 232
Further submissions made by the Claimant	233
Analysis	234 – 240
Relevant Law/Rules	241 – 242
Affidavit Evidence on behalf of the Claimant	243 – 244
Analysis	245
Tipping Off and Privacy Rights	246 – 247
Annual Declaration of Activities	248 – 254
The Claimant's Submissions	248
Analysis	249 – 251
The 1 st Defendant's Submissions	252
Analysis	253 – 254
Issue 4 – Whether the Regime Infringes on Attorneys-at-Law (and clients) Constitutional Rights to Liberty?	255 – 308
The Claimant's Submissions	255 – 259
The Submissions of the 1 st Defendant	260 – 263
The Submissions of the Claimant in Reply	264 – 265
The Liberty Interests of Attorneys-at-Law	266 – 300
The Relevant Law/Authorities	266 – 275
The Jamaican Provisions	273 – 275
Analysis	276 – 279
The Claimant's Further Submissions	280
Analysis of the Canadian Position and Application to Jamaica	281 – 300
Liberty Interests of Clients	301 – 308
The Findings of the Canadian Courts	301 – 307
Analysis	308
Issue 5 – Whether the Regime Infringes the Independence of the Bar?	309 – 358
The Affidavit Evidence	309 – 314
Submissions made by each party	315 – 326
Discussion and Analysis	327 – 358
The Scope and effect of the principle of the Independence of the Bar	327 – 358
Issue 6 – Whether any infringement of the Regime is Demonstrably Justified In a Free and Democratic Society?	359 – 365
Analysis	359 – 365
The Nature of the Declarations Sought	366 – 370
Submissions	366 – 368
Observations	369 – 370
Conclusion and Disposition	371 – 377
Order	378 – 379

P. Williams J

1 I have had the pleasure of reading in draft the joint judgment of my colleagues D. Fraser J and George J which comprehensively deals with all the issues raised in this matter. I have nothing useful to add. I agree with their conclusion that we cannot grant the declarations, stay and injunction sought by the claimant.

D. Fraser and S. George JJ

BACKGROUND TO THE CLAIM

2 The scourge of organized crime and money laundering has become increasingly prevalent in the Jamaican society. It represents a significant security challenge for the State. The response to this has included what Sykes J at the interlocutory stage in this matter aptly referred to as “a crusade against ‘dirty money’” (See The Jamaican Bar Association v The Attorney General and The General Legal Council [2014] JMSC Civ. 179 – Paragraph 1).

3 This campaign against dirty money has been ongoing in the international context for some time. The dangers of corruption, transnational crimes and money laundering have been universally recognized and a high percentage of democratic states have established statutory regimes to deal with these threats, in compliance with their national responsibilities and international obligations.

4 There are several international instruments that have been promulgated relating to measures to combat money laundering and the financing of terrorism. In accordance with these instruments, international standards have been developed to ensure global compliance with anti-money laundering and countering the financing of terrorism (AML/CFT). The primary international standards are contained in the Financial Action Task Force's (FATF) International Standards on Combating Money Laundering and Financing Terrorism and Proliferation (FATF Recommendations).

5 The FATF is a global standard setting body for AML/CFT, whose members have agreed to subscribe to the international standards geared towards combating these crimes.

6 The Caribbean Financial Action Task Force (CFATF), of which Jamaica is a member, is an inter-governmental FATF-Style organization comprising countries of the Caribbean Basin who have agreed to comply with the FATF Recommendations. Its objective is to achieve effective implementation of and compliance with the FATF Recommendations. Hence, this fight is occurring in an international and regional context whereby Jamaica as part of the world community has undertaken obligations to combat money laundering, terrorist financing and other serious transnational crimes.

7 In Jamaica, this crusade began in earnest in 1994 with the passage of the Drug Offences (Forfeiture of Proceeds) Act,...