Lawyers’ office files and fee information protected

In the latest in a series of important Supreme Court of Canada cases in which the CBA has intervened, solicitor-client privilege has again been upheld as a protection for the public.

LeBel, J., writing for the majority in Maranda v. Richer said:

“This Court has shown itself to be mindful of the protection that must be afforded to solicitor-client privilege, which plays a fundamental role in the functioning of the criminal justice system. The confidentiality of the solicitor-client relationship is essential to the functioning of the criminal justice system and to the protection of the constitutional rights of accused persons. It is important that lawyers, who are bound by stringent ethical rules, not have their offices turned into archives for the use of the prosecution.”

The Maranda decision is important in at least three respects: first, in providing such a strong statement of support from the Court for the principle of solicitor-client privilege and its importance within the criminal justice system; second, in its re-affirmation of the stringent review and factors that must be taken into account before a warrant can be issued to search a lawyers’ office; and third, in its determination that information relative to billings for fees and disbursements between a lawyer and client is considered privileged.

This latter point is consistent with the May 2003 B.C. Court of Appeal decision, Legal Services Society v. British Columbia (Information and Privacy Commissioner), which dealt with a journalist’s request for details from the Legal Services Society with respect to legal aid lawyers’ billings; the Court ruled that this information is protected by solicitor-client privilege.

Limitation on the search of lawyers’ offices was previously affirmed in the October 2002 SCC trilogy of Lavalee, White Ottenheimer & Baker, and Fink and although the case was decided subsequent to the preparation of arguments for the Maranda case, the Court did reference Lavalee in support of its decision. A third related case, Ville de Montreal c. La Societé d’energie Foster Wheeler Ltée, argued November 12 with the CBA as intervenor, will seek further confirmation of the requirements to protect solicitor-client privilege (see page 14).

Denis Jacques, of Grondin Poudrier Bernier, Quebec, appeared on behalf of the CBA as intervenor in both Maranda and Foster Wheeler.

“I am very pleased that the Court received our Association’s arguments in Maranda on the importance of solicitor-client privilege, and the obligation to minimize impairment of solicitor-client privilege in any case where a seizure is approved,” said Mr. Jacques. “In both the Maranda and Foster Wheeler cases, we argued strongly that the relationship between a lawyer and client, and information provided within that relationship, cannot be taken by the authorities and used against the client.”

Other intervenors in the Maranda case were: the Federation of Law Societies; the Barreau du Quebec; and the Attorney General of Quebec. The full text of the Maranda decision may be found at: www.lexum.umontreal.ca.

This article was published in the December 2003 issue of BarTalk. © 2003 The Canadian Bar Association. All rights reserved.