On April 29, 2026, Chief Justice Skolrood of the BC Supreme Court released his decision in the constitutional challenges brought by the Law Society of British Columbia and the Trial Lawyers Association of BC against the changes to the Legal Professions Act.
The Law Society lost. The TLABC lost.
And, in my view, so did everyone in this province who might one day need a lawyer to stand between them and the state.
The ruling is long, careful, and in places quite generous to the losing side. But the bottom line is simple: the BC legislature can dismantle 150 years of lawyer self-regulation, replace it with a board the profession does not control, and the Constitution has nothing to say about it. The independence of the bar, Skolrood holds, is an unwritten constitutional principle. And yet, somehow, it is one that does not actually constrain the government’s power to take that independence apart.
What Bill 21 Does
A bit of background, because none of this makes sense without it. Since 1874, lawyers in BC have been regulated by the Law Society, a body governed by benchers, the substantial majority of whom are elected by lawyers. The Law Society makes its own rules, runs admissions, runs discipline, and answers to no government for any of it. The whole point of that arrangement is that the people who represent clients against the state cannot have their licences pulled by the state when the state does not like how they are doing it.
Bill 21, which received Royal Assent in May 2024, replaces the Law Society with a new body called Legal Professions British Columbia. Under the new model the 17-person board has only 5 directors elected by lawyers. Three are appointed by Cabinet. Five more are appointed by a majority of the other directors after a “merit-based” process. Two are notaries, two are paralegals.
The board can have an executive committee of up to five members, of whom only two need to be elected lawyer directors. Cabinet gets regulation-making power over things like designating new “legal professions,” exempting classes of people from the prohibition on the unauthorized practice of law, and prescribing the scope of practice for notaries and paralegals.
A new Indigenous Council and Transitional Indigenous Council have advisory and, in some areas, approval roles in rule-making.
The CEO of the new regulator can enter law offices without a warrant during business hours, examine records, and order production of documents. Lawyers found to be practising “incompetently,” which includes practising under a health condition that prevents reasonable skill and competence, can be required to undergo counselling or medical treatment.
The Law Society’s argument was straightforward: the cumulative effect of all this is to end self-regulation, hand the levers of lawyer governance to the state, and erode an independent bar in a way the Constitution does not permit. The TLABC piled on with Charter arguments under sections 2(d), 7, 8, 10(b), and 11(d).
Skolrood rejected all of it.
What the Court Decided
Skolrood’s reasoning has several distinct moves, and it is worth keeping them separate.
An independent bar is an unwritten constitutional principle. This is the part the Law Society won, on the way to losing the war. After surveying the case law from Jabour through Andrews and Neil, the Chief Justice concludes that an independent bar is a foundational principle of the Canadian constitutional order, implicit in the judicature provisions of the Constitution Act, 1867 and in the Charter’s fair trial rights. He calls the recurring judicial paeans to bar independence not “eloquent but meaningless platitudes,” but acknowledgements of constitutional substance. Good.
But unwritten principles cannot, on their own, invalidate legislation. This is where things get tight. Drawing heavily on the Supreme Court of Canada’s 2021 decision in Toronto (City) v. Ontario, Skolrood holds that unwritten constitutional principles can be used to interpret the written text but they cannot serve as a free-standing basis for striking down a statute. So the question becomes whether sections 92(13) and 92(14) of the Constitution Act, 1867, read in light of the principle of bar independence, allow the province to do what Bill 21 does.
The content of “bar independence” does not include self-governance. This is the doctrinal heart of the decision. Skolrood accepts that an independent bar means lawyers must be able to provide impartial advice and zealous advocacy free from state influence, and that this requires institutional protections, not just individual ones. But he refuses to take the next step in finding that institutional independence requires a regulator controlled by lawyers elected by lawyers. He cites Jabour itself, where Justice Estey said the choice of regulatory model is “for the province to make”; Pearlman, where the Supreme Court called self-regulation a matter of legislative choice; and Trinity Western, which described self-regulation as a “privilege” granted by the legislature. He notes that Manitoba does not have a majority of elected lawyer benchers and yet nobody seriously says its bar is not independent.
Therefore, the specific provisions of Bill 21 are fine. Working through the impugned sections one by one, Skolrood finds that the new board’s composition, with only five elected lawyers out of seventeen, does not undermine independence, because Cabinet only directly appoints three members, the appointed-lawyer directors will (he assumes) act independently, and “self-regulation and self-governance are not steadfast requirements for ensuring an independent Bar.”
Skolrood also held that the new regulator’s “public interest” mandate under s. 6 is not meaningfully weaker than the current Law Society’s mandate under s. 3 of the Legal Profession Act.
In addition, he ruled that the mandatory guiding principles, which include supporting reconciliation and implementing UNDRIP, do not compromise independence, because they apply to the institution, not to individual lawyer-client relationships, and because UNDRIP is already provincial law through the Declaration on the Rights of Indigenous Peoples Act. The Indigenous Council and Transitional Indigenous Council have only narrow approval powers and otherwise advisory roles, so they do not create co-governance.
The Justice determined that Cabinet’s regulation-making power under s. 211 is not, properly read, a roving authority to override the regulator. Where Cabinet does have regulation-making power over things like designating new legal professions, exempting classes of persons, and prescribing notary and paralegal scope, these are policy levers about who provides legal services, not direct regulation of how lawyers practise. If Cabinet ever used these powers to undermine independence, the regulation could be struck on judicial review.
Similarly, Section 78’s warrantless inspection power is a permissible regulatory search, consistent with cases like A Lawyer v. Law Society of BC upholding similar powers under the existing Act. By that same token, the “health condition” provisions and the power to order treatment do not engage section 7 of the Charter, because no one is actually compelled to accept treatment. They can decline and lose their licence instead. The court relies on Hoogerbrug, the BC vaccine-mandate case, for the proposition that loss of the right to practise a profession does not engage section 7 liberty.
Section 2(d) does not apply, according to the Court, because the Law Society is not an association lawyers belong to for the pursuit of common interests; it is a regulator. Lawyers can still associate through the CBA and the TLABC, as they have done in that very litigation.
There is one passage in the decision that should not be lost. Skolrood writes that “the inability, or failure, to justify overturning 150 years of self-regulation, in the face of widespread opposition from the Bar, is notable.” Earlier in the trial he had told Crown counsel that the absence of a clear rationale for the change was “glaringly absent.” None of this changed the result, though, because constitutionality is not a vibes test. But the judge clearly thought the government had not shown its work, and said so.
Why I Think This Is the Wrong Outcome
I want to be honest about what kind of disagreement this is. Skolrood is not making things up. The cases he relies on like Toronto (City), Jabour, Pearlman, Trinity Western, and Mercer really do say what he says they say. The Supreme Court of Canada has been moving for years toward a view of unwritten constitutional principles that constrains them tightly to interpretive work, and a view of self-regulation that frames it as legislative grace rather than constitutional necessity. On the existing law, this decision is defensible.
The problem is the existing law.
“The province can if it wants to” is not a satisfying answer when the question is who watches the watchers. The whole point of an independent bar is that there are days when the lawyer’s job is to make the government’s life difficult, like fighting an unconstitutional statute, defending an accused person against a Crown prosecution, suing a ministry for negligence, or challenging an expropriation.
The structural answer to “what stops the state from punishing lawyers who do that effectively?” has historically been: the state does not get to decide who keeps their licence. Bill 21 changes that. It does not change it in a way that immediately threatens any particular lawyer, and Skolrood is right that the appointed lawyer directors are not robots. But the structural protection, the bright-line institutional rule that the regulator answers to lawyers, not to government, is gone. What replaces it is a board on which a determined provincial government, over a few appointment cycles, could come to exercise meaningful influence, with judicial review available in theory and difficult to mount in practice.
The “Manitoba functions fine” argument cuts the wrong way. The court leans heavily on the fact that Manitoba’s law society does not have a majority of elected lawyer benchers and yet nobody alleges it has been captured. But Manitoba’s appointed benchers are appointed through a process the law society itself controls and not by Cabinet. Bill 21 puts three direct Cabinet appointees on a 17-person board and reduces the elected lawyer share to five. That is a structurally different thing, and the comparison flatters the legislation.
The “judicial review will catch any problems” answer is exactly what Skolrood elsewhere says it cannot be. Earlier in his reasons, Skolrood quotes the Supreme Court in Reference re Impact Assessment Act for the proposition that a court cannot circumvent its duty to meaningfully review the constitutionality of legislation by suggesting that, insofar as an administrative decision maker applies a law unconstitutionally, the application of that law may be judicially reviewed.
But then, when the LSBC raises the worry that Cabinet’s regulation-making power could be used to hollow out the regulator, the answer becomes well, if that ever happens, the regulation could be challenged on judicial review.
You cannot have it both ways. Either the constitutionality of a regulatory structure depends on whether the structure itself is sound, or it depends on the assumption that abuses can be caught downstream. The decision picks whichever answer disposes of the argument in front of it.
The court accepts that the government failed to make a case for the change, and then finds the change constitutional anyway. The judge’s own observation that the defendants offered no clear rationale for upending 150 years of practice and did not consult the profession before tabling Bill 21 is striking. Constitutional review is not a referendum on legislative wisdom, fair enough. But when a province changes a foundational structure of the legal system without articulating why, in the face of opposition from essentially every major legal organization in the country, that ought to weigh somewhere in the analysis. Here it weighs nowhere.
The mental health provisions deserve more skepticism than they got. The TLABC’s section 7 challenge to the incompetently practising due to a health condition framework is dismissed largely because lawyers can refuse treatment and lose their licence instead. That framing that no one is forced, they just face career destruction if they decline is a familiar move, and it is not a generous one. Coupled with the warrantless inspection power and the regulator’s authority to order counselling, this gives a state-influenced body real leverage over lawyers’ personal medical decisions, with the state itself standing somewhere in the appointment chain. Skolrood is comfortable that the safeguards are sufficient. I am less comfortable.
What Happens Next
The Law Society can appeal, and almost certainly will. The questions Skolrood worked through, particularly how Toronto (City) applies to bar independence and whether self-governance is part of the content of independence or merely one means of achieving it, are exactly the kind of issues the Court of Appeal and ultimately the Supreme Court of Canada will want to sort out. The Attorney General has previously committed not to bring the substantive provisions of Bill 21 into force without 30 days’ notice to the Law Society and the Society of Notaries Public, so there is breathing room.
In the meantime, British Columbians should understand what has happened. A court has ruled that the legislature can replace a self-governing legal profession with a co-governance model in which the government appoints directly, appoints indirectly through downstream selection, and holds regulation-making powers that prevail over the regulator’s own rules — and that none of this offends the Constitution because the principle of an independent bar, while real, does not require what we have always understood it to require.
The case for self-regulation has never been that lawyers are uniquely virtuous, or that their guild is sacred, or that the public has no business overseeing how its legal services are delivered. It has been that there are some institutions a free society does not let the government touch, because the cost of being wrong is paid by the people who most need a lawyer to stand between them and that government. Today, in this province, that line just got moved.
I hope the Court of Appeal moves it back.
