CBA Urges Protection for Confidential Information
The national Competition Law Section says that while Bill C-23, Competition Act Amendments, is a step in the right direction, the legislation contains a number of significant deficiencies, particularly with the confidentiality provisions of the international cooperation regime and the prohibition of contest scams. Visit www.cba.org for brief copies.

“Our society has become increasingly global, with business transactions being carried out in the international arena every day. While we strongly support international cooperation in civil competition law matters, unfortunately the Bill does not address the key issue of confidentiality of information held by the Competition Bureau,” said Tim Kennish, of Toronto, Chair of the national Competition Law Section. The Section notes that the Bill establishes a framework for international assistance between competition authorities.

The Section is also critical of the amendment prohibiting contest scams. “As drafted, the proposals would prohibit virtually all standard promotional contests,” says the brief, which was presented to the House of Commons Standing Committee on Industry, Science and Technology Oct. 23, 2001.

“The specific prohibition of particular types of marketing and certain types of communications is inconsistent with the approach of the Act as a statute of general application. Such specific provisions ought only to be introduced, if at all, where there is an obvious and significant demonstrated need, and the need is not evident.”

A supplementary submission was issued Nov. 9, 2001 addressing, among other items, a treaty on international cooperation, and guidelines on contest scams.


CBA Granted Leave to Intervene in R v Fink
In September, the CBA was granted leave to intervene in R v Fink, one of three cases before the Supreme Court dealing with lawyer-client confidentiality and the constitutionality of law office searches under s. 488.1 of the Criminal Code.

In its factum to the Supreme Court, the CBA will insist that the court must be vigilant in protecting this fundamental right. Any exceptions to lawyer-client client confidentiality must be clearly defined so lawyers understand the scope of lawyer-client privilege and their ethical obligations. The appropriate remedy is to strike down the offending provision.

CBA President Eric Rice, QC describes the lawyer-client relationship as one of the cornerstones of our democracy and adds, “Without that ironclad certainty, the relationship between lawyer and client is fundamentally damaged and the client’s constitutional rights are violated.”

Adopted by Council in 1996, the CBA’s intervention policy permits it to intervene where the position to be advanced is consistent with CBA policy, a matter of compelling public interest, or a matter of special significance to the legal profession. CBA intervention also must constitute a significant contribution to the court’s consideration of the issue and not merely restate the arguments advanced by the parties.

The appeal is scheduled for December 2001.

This article was published in the December 2001 issue of BarTalk. © 2001 The Canadian Bar Association. All rights reserved.