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SCC upholds solicitor-client privilege

|Written By Helen Burnett

The importance of solicitor-client privilege has been reinforced by a recent appeal judgment by the Supreme Court of Canada, which ruled that records subject to this privilege can only be disclosed when it is absolutely necessary.

James Morton
The case involved a journalist who, pursuant to the Access Act, requested all records relating to allegations of sexual abuse of offenders by probation officers employed by the Ontario Ministry of Correctional Services in Cornwall, Ont.

In 2002, the Ontario Information and Privacy Commissioner granted the journalist disclosure of 19 of 459 pages identified by the ministry as relevant but which it refused to hand over — an order that was later quashed, and the records sealed. The Ontario Divisional Court then granted the journalist's counsel access to the records for the purpose of arguing a judicial review, to determine whether the records should be disclosed under the Freedom of Information and Protection of Privacy Act.

Access to the documents was subject to a confidentiality undertaking, and was given despite the ministry's claim of solicitor-client privilege. The ministry went before a panel of the Divisional Court to set aside the ruling, but the motion was dismissed. The Ontario Court of Appeal later dismissed the ministry's appeal of the Divisional Court order.

However, in the July 7 judgment, Goodis vs. Ontario (Ministry of Correctional Services), the Supreme Court unanimously held that the appeal was allowed.

According to the judgment, which was Justice Marshall Rothstein's first with the court, documents that are subject to solicitor-client privilege can only be disclosed when they meet the absolute necessity test. In a past case, for example, this included documents being disclosed where there was "a genuine danger of wrongful conviction," says the judgment.

"Records subject to a claim of solicitor-client privilege may be ordered disclosed only where absolutely necessary — a test just short of absolute prohibition. A different test is not justified for access to information cases. Here, the evidence revealed no such absolute necessity, and any records claimed to be subject to solicitor-client privilege should not be disclosed.

"I am of the respectful opinion that the Ontario courts were in error in permitting disclosure of all the documents in this case. The appropriate test for any document claimed to be subject to solicitor-client privilege is 'absolute necessity.' That test was not applied. Had it been, disclosure of all the records would not have been ordered," said the judgment.

According to Eugene Meehan, chairman of the Supreme Court Practice Group at Lang Michener LLP in Ottawa, the decision was one of top court's shortest decisions at only 14 pages. However, he adds, it is also one of the most important to the legal profession.

"Solicitor-client privilege, it's important it really mean something, stand for something, be something, and the SCC confirms what it means, what it stands for, what it is. And what that is, is absolute necessity," says Meehan.

"The Supreme Court demonstrated it really is supreme by overturning three prior Ontario Court decisions in this case: a Divisional Court judge, the Divisional Court, and the province's Court of Appeal," he adds.

James Morton, vice-president of the Ontario Bar Association, says, "They have to balance the freedom of information requirements, which are very important. But in terms of a hierarchy of importance, the freedom of information requirements don't trump solicitor-client privilege and when the two come into conflict, solicitor-client privilege wins."

Morton adds, "The decision of the Supreme Court is a strong reaffirmation of the centrality of solicitor-client privilege to our legal system."

He says the ruling is consistent with the court's earlier decision that solicitor-client privilege is a constitutionally protected right.

"It's an affirmation of every single lawyer in every single part of Canada — an affirmation of who we are, what we do — and an affirmation that the most precious thing that clients give us is trust. The SCC is telling us that that trust is well placed, and will be protected and secured by the courts," says Meehan. "If law were a religion, solicitor-client privilege would be its cathedral, and the SCC has re-affirmed that."

Morton says this is a precedent-setting case, particularly in the civil context.

"It doesn't, to my mind, dramatically change the law, but it re-emphasizes how important solicitor-client privilege is," he says.

In the ruling, Rothstein suggested that the matter be remitted to the Divisional Court for redetermination of disclosure of any records not subject to a claim of solicitor-client privilege for judicial review.

Morton adds that the July 7 Supreme Court judgment is also important in relation to the issue of Internet providers monitoring their customers' online usage and the potential impact of this on solicitor-client privilege.

Earlier this month, the Canadian Bar Association expressed concern that monitoring by Internet service providers could "erode lawyer-client confidentiality."

"This case is probably helpful there as well, in emphasizing just how important solicitor-client privilege is," he says.

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