of self regulation? - The Law Society of Upper Canada

mechanism for maintaining and defending the rule of law ...” 134 Monahan, for example,
argues that the independence at stake is independence from the executive branch of
government and that this can be achieved by means other than self-regulation. 135 He
claims that self-regulation is simply a policy choice in pursuit of the public interest and
that other regulatory instruments in pursuit of that interest might be constitutionally
legitimate. To butress this claim Monahan also invokes Jabour to highlight various dicta
of Justice Estey that are not usually mentioned by the defenders of self-regulation:
The general public is not in a position to appraise unassisted the need for
legal services or the effectiveness of the services provided in the client’s
cause by the practitioner, and therefore stands in need of protection. It is
the establishment of this protection that is the primary purpose of the
Legal Profession Act. Different views may be held as to the effectiveness
of the mode selected by the Legislature, but none of the parties here
challenged the right of the province to enact the legislation. It is up to the
Legislature to determine the administrative technique to be employed in
the execution of the policy of its statutes. I see nothing in law pathological
about the selection by the provincial Legislature here of an administrative
agency drawn from the sector of the community to be regulated. Such a
system offers some immediate advantages such as familiarity of the
regulator with the field, expertise in the subject of the services in question,
low cost to the taxpayer as the administrative agency must, by the statute,
recover its own expenses without access to the tax revenues of the
Province. One the other hand, to set out something of the other side of the
coin, there is the problem of conflict of interest, an orientation favourable
to the regulated, and the closed shop atmosphere. In some provinces some
lay Benchers are appointed by the provincial governments; in other
provinces the Attorney General is seized with the duty as an ex officio
Bencher of safeguarding the public interest; a right of appeal from
decision affecting members is given to the Court; and the confirmation by
the Provincial Executive, the Lieutenant Governor in Council, of all
regulations adopted by the Society as a prerequisite to their validity. It is
for the Legislature to weigh and determine all these matters and I see no
constitutional consequences necessarily flowing from the regulatory mode
adopted by the province in Legislation validly enacted within its sovereign
sphere as is the case here. (at page 335) (emphasis added).
134 LSUC Task Force, ibid. at 37.
135 Monahan, supra note 139 at 133-141.
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