Protection of Solicitor-Client Privilege

  • August 11, 2001

WHEREAS members of the public cannot disclose information necessary to obtain adequate legal advice and representation without the protection of solicitor-client privilege, which is a foundation of Canada's legal system;

WHEREAS the recently enacted Proceeds of Crime (Money Laundering) Act requires legal counsel to disclose certain of their clients' financial transactions, as well as their identities and the fact that they are represented by counsel, to a government agency;

WHEREAS the Customs Act currently permits customs officers to seize and open certain mail coming into Canada even if it is addressed to or mailed by a lawyer and even though it may contain confidential information which lawyers are ethically bound not to disclose, or which may be subject to solicitor-client privilege;

WHEREAS Bill S-23 proposes amendments to the Customs Act that would expand this power to include certain mail leaving Canada; 

WHEREAS the Supreme Court of Canada will hear appeals of three decisions which considered the constitutionality of section 488.1 of the Criminal Code, which permits police to search a law office and seize documents containing solicitor-client confidences;

WHEREAS these developments and others indicate that the principle of solicitor-client confidentiality is under legislative attack; 

BE IT RESOLVED THAT the Canadian Bar Association: 

  • strongly condemn legislated incursions into solicitor-client confidentiality;
  • continue to urge the federal government to amend the Proceeds of Crime (Money Laundering) Act and the Customs Act to protect solicitor-client confidentiality;
  • urge federal, provincial and territorial governments to protect and preserve the principle of solicitor-client confidentiality in all of their legislation; and
  • urge the federal, provincial and territorial Ministers of Justice and Attorneys General to defend the principle of solicitor-client confidentiality in any proposed legislation.

Certified true copy of a resolution carried by the Council of the Canadian Bar Association at the Annual Meeting held in Saskatoon, SK, August 11-12, 2001.

John D.V. Hoyles

Executive Director/Directeur exécutif