Why Is Privilege So Important Anyway?

The concept of solicitor-client privilege goes back at least 400 years in the common law, and is one of the most well established concepts of privilege in our legal system.

The Canadian Security Intelligence Service (CSIS) was recently caught listening and recording conversations with Mohamed Zeki Mahjoub and his lawyer since the Egyptian refugee and terrorism suspect was released on bail over a year and a half ago.

When challenged by Justice Carolyn Layden-Stevenson, CSIS lawyer Jim Mathieson agreed that any such recordings would stop, and records would be erased.

But other defence lawyers have now raised some very serious concerns. Dennis Edney, who represents one of the Toronto18 and Omar Khadr said in response,

How can we trust that the system is working appropriately? Every lawyer in this country who’s involved in issues of national security has no way of knowing whether (the Canadian Security Intelligence Service) is monitoring their calls.

The Fundamental Importance of Privilege

The reasons for solicitor-client privilege Anderson v. Bank of British Columbia (1876), 2 Ch. D. 644 (C.A.),

The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, . . . to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating of his defence . . . that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation.

Cory J. adopted the rationale in Anderson in Smith v. Jones, [1999] 1 S.C.R. 455 and said,

Clients seeking advice must be able to speak freely to their lawyers secure in the knowledge that what they say will not be divulged without their consent. It cannot be forgotten that the privilege is that of the client, not the lawyer. The privilege is essential if sound legal advice is to be given in every field. It has a deep significance in almost every situation where legal advice is sought whether it be with regard to corporate and commercial transactions, to family relationships, to civil litigation or to criminal charges. Family secrets, company secrets, personal foibles and indiscretions all must on occasion be revealed to the lawyer by the client. Without this privilege clients could never be candid and furnish all the relevant information that must be provided to lawyers if they are to properly advise their clients. It is an element that is both integral and extremely important to the functioning of the legal system. It is because of the fundamental importance of the privilege that the onus properly rests upon those seeking to set aside the privilege to justify taking such a significant step.

Test for Overriding Privilege

However, there are some limits to solicitor-client privilege. The court also stated,

The solicitor‑client privilege permits a client to talk freely to his or her lawyer secure in the knowledge that the words and documents which fall within the scope of the privilege will not be disclosed. It has long been recognized that this principle is of fundamental importance to the administration of justice and to the extent it is feasible, it should be maintained. Yet when public safety is involved and death or serious bodily harm is imminent, the privilege should be set aside. This appeal must determine what circumstances and factors should be considered and weighed in determining whether solicitor-client privilege should be set aside in the interest of protecting the safety of the public.
[emphasis added]

The test for determining when public safety outweighs this privilege is:

1. A clear risk to an identifiable person or group
2. A risk of serious bodily harm or death
3. An imminent danger, which in turn signals the seriousness

A clear risk specifically looks at factors surrounding history of violence. In almost all cases of terrorism suspects there are absolutely no violent incidents prior to arrest, and the specifics of any alleged charges are almost always vague.

Terrorist acts are serious enough risks to bodily harm, but with the incarceration and detention of any individuals over several months and years, any intelligence of imminent dangers are well obsolete.

It is only under the guise of public safety that such breaches in privilege could ever be justified by CSIS. The bail conditions in the Mahjoub case of having all of their communications monitored would not meet this test for solicitor-client privilege either.

No threat of imminent harm has been demonstrated, and such disclosures are to be made by counsel to whom the information was relayed to, not an intelligence agency snooping in on calls to their lawyers.

Cory J. pointed to Ch. 5, s. 12 of the B.C. Professional Conduct Handbook, and Rule 4.11 of the Law Society of Upper Canada’s Professional Conduct Handbook (now covered under a broader duty of confidentiality by 2.03(3)).

A Positive Duty to Protect

The key rationale behind solicitor-client privilege is that people cannot be candid with their lawyer if they knew that intelligence agencies would listen in anyways. This would undermine the lawyer’s ability to provide counsel because they would not be armed with the full facts.

Privilege also serves to foster loyalty between the client and the lawyer, and strengthens faith and trust that counsel will be able to actively advocate on their behalf.

Bell v. Smith, [1968] S.C.R. 664 and R v. Jack (1992), 70 CCC (3d) (Man. C.A.) may indicate that lawyers have a positive duty to protect their clients’ information.

For this reason, Canadian lawyers are taking the Mahjoub breach quite seriously. Frank Addario of Sack Goldblatt Mitchell LLP, president of the Criminal Lawyers Association and a director with Canadian Civil Liberties Association, said,

There isn’t any legal proceeding in Canada, which I’m aware, to which solicitor-client privilege does not apply. It’s one of the bedrock principles of Canadian law.

Welcome to Guantanamo North

In 2003, Canadian lawyer Rocco Galati disclosed he had received a death threat for defending Abdurahman Khadr (Omar Khadr’s brother). The message on his machine said,

Well, Mr. Galati. What’s this I hear about you working with the terrorist now, helping to get that (expletive) punk terrorist Khadr off. You a dead wop.

He took the threat very seriously, recognizing the voice and believing it to originate from the intelligence community. He subsequently dropped the case, and all terrorism related clients.

The stigma of terrorism is not a light one. These individuals already have a difficult time receiving adequate representation, even if the charges are exaggerated, as they often are.

There are also significant legal issues surrounding the detention of persons without any charges.

And when we add to this a lack of guarantee for solicitor-client privilege, it’s no wonder some people are starting to call the Canadian legal system “Guantanamo North.”