How to choose the right lawyer (Part 4)
Most people have little direct contact with the criminal justice system. If you are being investigated or charged with a crime, you should seek experienced legal counsel to guide you through our judicial system. This is the fourth in a five-part series where I offer advice to people about lawyers and the clients they serve.
What is solicitor/client privilege?
When you come to speak to me about legal matters, anything you tell me is privileged, which means confidential. I cannot talk to anyone about what you disclosed without your explicit permission. This privilege – which rests with the client, not the lawyer – is a fundamental principle of the Canadian justice system, which allows clients to communicate candidly and in confidence with their legal counsel.
In various decisions, courts have ruled that the protection of solicitor/client confidentiality and privilege ought to be as close as possible to being absolute. The court has also stated that solicitor/client privilege applies to all interactions between a client and the lawyer.
How does it work when you come to see me?
Let’s say that you are charged with a domestic assault and you tell me you were being abused by the complainant and fought back. Or maybe there was an excess of alcohol consumed before the incident. However, since then you have enrolled in a rehabilitation program.
This is important background information that I need to prepare your defence. It is also information I will want to share with the Crown attorney prosecuting the case, as it may allow me to get the charges against you reduced or dropped. But before I can do that, I will need your permission to divulge what you told me.
What if you want the information to remain confidential?
Sometimes clients will tell me they don't want me to tell the Crown attorney what they have disclosed. For example, I had a client facing drug charges. The co-accused was her significant other. She told me in confidence that he was abusing her and she did not have a choice about partaking in the drugs because she was scared of the repercussions.
She was also scared that if the co-accused found out that she had been talking about him in a negative way, that would upset him and she might get hurt. I therefore could not tell the Crown what I knew. I told her this information would not leave my office unless, down the road, she decided she is comfortable in divulging it.
If I were to meet with colleagues and I sought advice about her case, I could not reveal her name or any detail that may identify her. All I could say is something like: “I have this type of case with this type of facts. What would you do?”
What does solicitor-client privilege protect?
Privilege attaches to any form of communication. That means that conversations in person, over the phone, over voicemail, email or text message are all confidential. Even if you talk with another member of a law firm who is not your assigned lawyer, the communication is still privileged. At my office, I will be the only person you talk to.
Be assured that if a family member or someone else calls me to discuss your case, I will not disclose any information without getting your explicit permission first.
Even after the case ends, solicitor-client privilege is permanently protected, with rare exceptions granted by the court.
What are the exceptions to solicitor-client privilege?
Everything a client tells me is privileged information except in limited circumstances. These include if my non-disclosure of the information may lead to harm to someone or if there's evidence about a matter that is being hidden from police. As officers of the court, lawyers are not allowed to conceal information or evidence.
There are public safety exceptions to the duty of confidentiality. The Law Society of Ontario notes that: “When required by law or by order of a tribunal of competent jurisdiction, a lawyer shall disclose confidential information, but the lawyer shall not disclose more information than is required.”
Lawyers across Canada are advised to look to their applicable law society for the specific terms of the public safety exception as it applies to the duty of confidentiality, particularly as it relates to criminal activity or serious physical harm.
What have the courts said about this issue?
In a 2010 case, the Supreme Court of Canada stated in a case concerning the Charter of Rights and Freedoms and access to information, that “the only exceptions recognized to the [solicitor-client] privilege are the narrowly guarded public safety and right to make full answer and defence exceptions.”
Six years later, the court returned with a judgment that noted that “solicitor-client privilege is no longer merely a privilege of the law of evidence, but a substantive right that is fundamental to the proper functioning of our legal system … legislative language purporting to abrogate it, set it aside or infringe it must be interpreted restrictively … when the law gives someone the authority to do something which … might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.”
Whatever you say in my office stays in my office
Whatever you say in my office stays in my office. I want to hear about what led to your charge and I will tell you if I think it is beneficial to share that with the Crown, but that is your call. Contact me for more information so we can start building your defence.