Monitoring by ISPs Could Erode Solicitor-Client Privilege
The CBA has sounded alarm bells about Internet Service Providers (ISPs) monitoring or investigating customers’ online communications, as these actions could have a serious impact on solicitor-client privilege.

The CBA also notes that these measures could have a major impact on the privacy of the public. “These new steps must conform to legal protections and guarantees that safeguard Canadians’ rights and freedoms, and they must be closely monitored to ensure that conformity,” says CBA President Brian A. Tabor, QC.

In a letter to Justice Minister Vic Toews, Public Safety Minister Stockwell Day and Industry Minister Maxime Bernier, the CBA says that ISPs appear to be introducing a content monitoring scheme without the necessary prior authorization or oversight.

The move by ISPs goes beyond proposals contained in Bill C-74, the Modernization of Investigative Techniques Act, introduced by the former government. “The current initiative by ISPs appears significantly more intrusive than the previous legislative proposal,” says Brian Tabor. “When it comes to lawyer-client confidentiality, a heightened level of care and scrutiny are imperative.”

The letter to the three federal Ministers can be seen at: www.cba.org/CBA/submissions/pdf/06-31-eng.pdf


CBA Intervenes on Security Certificates
The CBA intervened at the Supreme Court of Canada on the constitutionality of immigration security certificates in June. At issue were the rights of detainees in a process that allows closed court hearings, secret evidence, and lengthy imprisonment without being charged.

The CBA’s intervention focused on three key points:

• The right to effective representation by a lawyer because a hearing on the security certificate may take place in secret, without participation of the detainees or their lawyer;
• An individual’s right to liberty;
• Judicial independence and impartiality.

Toronto immigration lawyer Lorne Waldman is acting for CBA on a pro bono basis.

News release: www.cba.org/CBA/News/2006_Releases/2006-06-12_security.aspx


Police Above the Law?
The CBA continues to strongly oppose portions of the Criminal Code that place police officers and their agents above the law. “These provisions fly in the face of the central premise of the rule of law – that there is one law that applies equally to all,” says Greg DelBigio of Vancouver, chair of the National Criminal Justice Section. “Neither police nor their agents are justified in committing crimes in the name of law enforcement.” If the law is retained, more safeguards should be put in place.

Greg DelBigio presented the CBA views to the Standing Committee on Justice and Human Rights in June.

CBA letter: www.cba.org/CBA/submissions/pdf/06-26-eng.pdf


CBA Granted Leave to Appeal on Duty of Loyalty
CBA has been granted leave to intervene at the Supreme Court of Canada in the case of Davis & Co. et al v. 3464920 Canada Inc. on the question of duty of loyalty. The issue before the Supreme Court of Canada involves the circumstances in which lawyers can act for commercial competitors, and the limits on the duty of loyalty.

The CBA will argue that the application of the rule in Neil must take into account the circumstances of each individual case, to avoid the risk of “an unnecessary expansion of the duty [which] may be as inimical to the proper functioning of the legal system as its attenuation.”

Legal counsels, acting pro bono for the CBA, are Terrence O’Sullivan and Paul Michell, of Lax O’Sullivan Scott LLP. The appeal is scheduled to be heard in October.


Accountability Act Needs Amendments
While many aspects of the Federal Accountability Act – Bill C-2 – are commendable, the CBA says that some parts of the legislation may hinder the administration of justice and the rule of law, and thwart the very goals the Act was meant to promote.

In a 21-page submission delivered to the Special Legislative Committee on Bill C-2, the CBA comments on the following aspects:

• The Access to Information Act would restrict accountability and transparency in government;
• Is there a need for a Director of Public Prosecutions outside the Department of Justice?
• Whistleblower legislation does not go far enough;
• The Lobbying Act unduly restricts the practice of law and increases administrative burden for not-for-profit organizations. It requires further study.

These articles were published in the August 2006 issue of BarTalk. © 2006 The Canadian Bar Association. All rights reserved.