The Need for a Broader Public Safety Exception: Ethical Duties to Survivors of Intimate Partner Violence

The ethical duty of defence counsel to evaluate information under the public safety exception to solicitor-client privilege should be broadened to require disclosure when an offender is being released back into an environment where intimate partner violence will likely reoccur.

Consider a situation of domestic violence.[1] A woman calls the police to report an assault by her husband. It was not the first time he assaulted her, but she did not previously report the abuse. Charges are laid. A psychological assessment is conducted, an expert stating that the defendant has violent tendencies and is likely to reoffend. The defendant tells his lawyer that he “will get back at” his wife. With no previous record he is able to voluntarily enter a guilty plea with the Crown, to participate in “rehabilitative” programming for abusive individuals.

After his release from custody he returns home to his wife, who has not received any legal advice through the criminal process. He continues to abuse her, threatening her to dissuade her from calling the police. The psychological assessment and plans of retaliation against his wife did not meet the clear, serious, and imminent requirements of the public safety exception to solicitor-client privilege, so his lawyer did not disclose to the Crown when negotiating the plea. If the defendant were to be charged with domestic violence offences again, he would undoubtedly return to this lawyer who negotiated a lenient plea. His lawyer now has a “rounder” client to support his business, perhaps a factor in deciding that, objectively, the public safety exception need not apply.

Criminal law proceedings are adversarial in nature, with lawyers playing a partisan role. Crown counsel owe a duty to the court, as “quasi-judicial minister[s] of justice,” to execute their adversarial role of obtaining convictions based on truth with fairness and objectivity to the defendant.[2] Prosecutorial discretion allows Crowns to: determine the cases they try after charges are laid by police, stay proceedings, accept a guilty plea, withdraw proceedings, or proceed to trial.[3]

Defence lawyers must be resolute advocates of their client’s case, without forming opinions on guilt. Defence lawyers are responsible for negotiating a guilty plea bargain for clients where conviction is inevitable, or where a client acknowledges guilt.[4] This duty to negotiate sentences or plea deals applies equally to clients who are violent offenders and are likely to re-offend. Defence counsel for these clients may have expert evidence regarding their client’s dangerousness, but are bound by a competing duty not to reveal information protected by solicitor-client privilege to authorities.

An exception to this duty exists where public safety is at issue. The Law Society of Upper Canada’s Rules of Professional Conduct, set out that the public safety exception only applies in specific circumstances: a lawyer may disclose limited information where he or she has grounds to believe that there is an “imminent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm.” The commentary that follows the Rule suggests that lawyers should consider three factors in determining whether to disclose information under this exception: the imminence and likelihood of injury occurring, an absence of any other way to prevent the injury, and the circumstances under which the information was obtained from the client. It suggests that a lawyer considering disclosure under this exception should seek their own independent legal advice.

In Smith v Jones, the majority of the Supreme Court of Canada found the public safety exception applied on the specific facts where the defendant had a clear plan to carry out a sexually sadistic murder, and had breached conditions of his bail that were relevant to carrying out such a plan.

Defence lawyers therefore face an ethical conundrum of objectively deciding when a public safety concern exists. These lawyers owe a duty of confidentiality to their client. The defence lawyer is uninterested in the subjective fears of victims when faced with the task of zealously advocating for the alleged wrongdoer. The Crown, as a representative of the state, on the other hand, has no duty to the victim. The victim is not generally represented by her own counsel.

The two parties may thus negotiate a plea for the release of an offender that contains bail terms that allow the admittedly guilty offender to re-enter the life of the victim, even where an expert has shown that the defendant is violent and likely to reoffend. Smith v Jones seems to tell us that unless there is a precisely clear plan of attack, criminal lawyers can ignore risks of violence. Is solicitor-client privilege thus lining the pockets of defence lawyers looking for “rounders”? Arguably, it is.

A general exclusion of victims from representation in the criminal process and the current public safety exception fail to acknowledge the realized threats of violence that exist in situations of domestic and intimate partner violence. No-contact orders are frequently breached, highlighting the imminence of violence upon release from custody.[5] The introduction of the Independent Legal Advice for Sexual Assault Survivors Pilot Project by the Government of Ontario acknowledges that survivors of sexual violence may benefit from legal advice that the Crown cannot provide. Similar programs should be made available to domestic violence survivors, and we must recognize that the business of criminal defence contributes to recidivism in violent crimes.

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Jessica Moldaver is a third-year law student at the University of Ottawa Faculty of Law in the English Common Law Program. She is looking forward starting her articling at Fasken Martineau’s Toronto office in July 2017, and continuing to pursue her interests in Labour & Employment Law. Throughout law school she has worked as a caseworker in the Women’s Division of the University of Ottawa Community Legal Clinic, and is a passionate advocate on issues of gender based violence.

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[1] Genders in this example are used to acknowledge the gendered nature of the crime, but should not discount the disproportionate occurrence domestic violence against LGBTQ persons.

[2] Alice Woolley, Richard Devlin, Brent Cotter and John Law, Lawyers’ Ethics and Professional Regulation, 2nd ed, Toronto: LexisNexis (2012) at 435-6.

[3] Ibid at 444.

[4] Ibid at 462-3, 475.

[5] Reported recidivism occurs in 1/5-1/3 of domestic violence offenders, the majority within 6 months of the initial report.