Second

Session, 50th General Assembly

Charles III, 2023

BILL 53

AN ACT RESPECTING

KING'S COUNSEL AND ORDER OF PRECEDENCE IN THE COURTS

Received

and Read the First Time ................................................................

Second

Reading ............................................................................................

Committee .....................................................................................................

Third

Reading ...............................................................................................

Royal

Assent .................................................................................................

HONOURABLE JOHN

HOGAN, KC

Minister of Justice

and Public Safety and Attorney General

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTES

A BILL

AN ACT RESPECTING KING'S COUNSEL AND ORDER

OF PRECEDENCE IN THE COURTS

Analysis

Short title

Definitions

Board continued

Composition and duties of board

Appointment of King's Counsel

Eligibility for appointment

Order of precedence

Licence not required

RSNL1990 cP-43 Amdt.

RSNL1990 cQ-2 Rep.

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

Short title

1. This

Act may be cited as the King's Counsel

Act.

Definitions

2. In

this Act

(a) "board" means the Legal Appointments

Board continued under

section 3;

(b) "King's Counsel" means "His

Majesty's Counsel learned in the law";

(c) "Law Society" means the Law Society of Newfoundland and Labrador; and

(d) "minister" means the minister appointed under the Executive Council Act

to administer this Act.

Board continued

3. The Legal Appointments Board is continued.

Composition and duties

of board

(1) The board shall consist of 5 members appointed by the minister.

(2) Two of the members appointed under subsection

(1) shall be chosen from a list of 7 members of the Law Society submitted by

the benchers of the Law Society at the request of the minister.

(3) The minister shall, w here

practicable, ensure that among the persons appointed to the board

(

a) one person is a

practising member of the Law Society and resident outside the metropolitan area

of St. John's;

(

b) one person is a

bencher of the Law Society; and

(

c) one person is a

practising member of the Law Society who has been practising law for less than

10 years.

(4) The minister shall

designate one of the members of the board as chairperson.

(5) A vacancy in the

membership of the board does not invalidate the constitution of the board or

impair the right of the remaining members to act provided that there are at

least 3 members.

(6) The duties of the board are

(

a) to consult with the

minister regarding appointments to be made under

section 5;

(

b) to recommend at the

request of the minister the names of suitable persons for consideration for

appointment under

section 5; and

(

c) to make

recommendations respecting other appointments to legal offices in the province

that may be referred to the board by the Lieutenant-Governor in Council.

Appointment of

King's Counsel

(1) On the recommendation of the minister, after

consultation with the board, the Lieutenant-Governor in Council may, by letters

patent under the Great Seal, appoint during pleasure from among the members of

the Law Society, persons that the minister considers right to be provincial

officers under the style of "His Majesty's Counsel learned in the

law".

(2) The

Lieutenant-Governor in Council may only appoint 10 persons as King's Counsel in

a calendar year, however, where 10 persons were not appointed in a

preceding year, the appointments for a calendar year

may be increased by the number of appointments that were not filled in a

preceding year.

(3) Appointments may be

made at one or more times in a calendar year but the number of persons

appointed in a calendar year shall not exceed the number prescribed in

subsection (2).

Eligibility for

appointment

(1) A person is eligible to be appointed as King's Counsel under subsection 5(1)

where the person has been a member of the Law Society for at least 10 years.

(2) Notwithstanding subsection (1), a person who

has been a member of the Law Society for less than 10 years may be appointed as

Kings Counsel under subsection 5(1) where the person has been a member of the

Law Society and a member of a law society of another province or territory of

Canada for an accumulated period of at least 10 years.

Order of

precedence

(1) The following persons have precedence in the courts of the

province in the following order:

(

a) the Attorney General

of Canada;

(

b) the Attorney General

of the province;

(

c) t he Solicitor

General of Canada;

(

d) the members of the Law

Society who have filled the office of Attorney General for Canada or of Attorney General for the province, according to

seniority of appointment as attorney general;

(

e) the members of the Law

Society who have filled the office of Solicitor General for Canada according to seniority of appointment as Solicitor General;

(

f) King's Counsel of

the province according to seniority of appointment; and

(

g) other members of the

Law Society in order of their admission.

(2) The

Lieutenant-Governor in Council may, by letters patent under the Great Seal,

grant to a member of the Law Society a patent of precedence in the courts of the

province.

(3) Nothing in this Act

affects or alters rights of precedence that belong to a member of the Law

Society when acting as counsel for the Crown, or for an Attorney General of the

Crown, in a matter depending in the name of the Crown or of the Attorney

General before the courts, but those rights and precedence remain as if this

Act had not been passed.

Licence not

required

8. A King's Counsel does not require a licence from the Crown

to act as counsel

(

a) for a party

litigating with the Crown; or

(

b) for an accused in a

prosecution for an offence against

an act of the Parliament of Canada or a

statute of the province.

RSNL1990 cP-43

Amdt.

Schedule C to the Public Service Commission Act is amended by

(

a) deleting the statutory appointment reference

" Queen's Counsel Act , subsection 7(2) with respect to appointments not

recommended by benchers"; and

(

b) adding immediately after the statutory appointment

reference " Income and Employment Support Act ,

section 42" the statutory appointment reference

" King's Counsel Act , subsection

4(1) with respect to those persons not recommended by the benchers of the Law Society".

RSNL1990 cQ-2 Rep.

10. The Queen's

Counsel Act is repealed .

King's Printer