Court Interventions

The Supreme Court of Canada is the ultimate arbiter of key issues of national importance which relate to the legal profession and core democratic values. On behalf of Canada’s law societies, the Federation of Law Societies of Canada regularly intervenes in selected cases to defend these values. Some recent examples include the following :

Gilles Doré v. Pierre Bernard, in his capacity as Assistant Syndic of the Barreau du Québec, et al

This case, arising from the discipline by the Barreau du Québec of one of its members, involves the rules of professional conduct of a law society, and the intersection of these rules with both the administration of justice and the Canadian Charter of Rights and Freedoms (the “Charter”).  Heard by the Supreme Court of Canada in late January 2011, the case raised issues of significance for all law societies including whether limits imposed by a code of professional conduct on a lawyer’s right to freedom of expression under s. 2(b) of the Charter are justified, and whether a lawyer is bound at all times, and in all circumstances, by the lawyer’s code of ethics. The Federation’s submission is available here.

Ontario (Public Safety and Security) v. Criminal Lawyers Association, 2010 SCC 23 (CanLII)

In a case involving the application of the Ontario Freedom of Information and Protection of Privacy Act, the Supreme Court of Canada confirmed statements in earlier decisions describing solicitor-client privilege as being of a “near-absolute” nature. In a unanimous decision, the Court accepted Federation arguments that a claim that documents should be exempt from disclosure because they are protected by solicitor-client privilege should not be subject to a public interest override provision . In reaching this conclusion the Court rejected an argument that the failure to subject documents over which solicitor-client privilege is claimed to the public interest override provision was a breach of section 2(b) of the Charter. The Federation’s submission is available here.

Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44 (CanLII)

In a unanimous decision released on July 17th, 2008 the Supreme Court of Canada rejected the claim by the Privacy Commissioner that it has the right to review documents over which solicitor-client privilege is claimed to determine whether the claim is justified. In dismissing the appeal the Court accepted the principal arguments made by the Federation about the need to protect solicitor-client privilege from encroachment. Stating that the determination of the validity of a claim of privilege is a role reserved to the courts, the Supreme Court reiterated its view that solicitor-client privilege must be as close to absolute as possible and may be abrogated by Parliament in legislation only where done so explicitly. The Federation’s submission is available here.