Descôteaux et al. v. Mierzwinski

Descôteaux et al. v. Mierzwinski
Collection
Supreme Court Judgments
Date
1982-06-23
Report
[1982] 1 SCR 860
Case number
16113
Judges
Martland, Ronald; Ritchie, Roland Almon; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Chouinard, Julien; Lamer, Antonio
On appeal from
Quebec
Subjects
Criminal law
Evidence
Decision Content
SUPREME COURT OF CANADA
Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860
Date: 1982-06-23
Simon Descôteaux and Centre communautaire juridique de Montréal Appellants;
and
Alexandre Mierzwinski Respondent;
and
The Attorney General of the Province of Quebec and the Commission des services juridiques Interveners;
and
André Landry, Normand Huneault, the Quebec Bar and the Commission des droits de la personne Mis en cause.
File No.: 16113.
1981: October 27, 28; 1982: June 23.
Present: Martland, Ritchie, Dickson, Beetz, Estey, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Criminal law — Search and seizure — False statement by legal aid applicant regarding his income — Warrant issued to search legal aid offices — Legal aid application form seized — Solicitor-client privilege — Right to have communications with lawyer kept confidential — Right reflected in substantive rule and rule of evidence (privilege) — Extent of the power of a justice to authorize a search warrant with terms of execution — Scope of this power with regard to law firms — Criminal Code, s. 443.
Evidence — Solicitor-client privilege False statement by legal aid applicant regarding his income — Legal aid application form seized — Whether information supplied by applicant is privileged — Point in time when solicitor-client relationship arises.
In order to obtain proof that an applicant for legal aid committed an indictable offence by incorrectly reporting a lower income in order to be eligible for such services, two peace officers presented themselves at a legal aid bureau with a search warrant. This warrant related to certain documents, including an «Application for Legal Aid» form which contained, inter alia, information on applicant's financial situation. The search was made in the presence of the syndic of the Bar and the police
[page 861]
officers agreed to receive the documents in a sealed envelope without examining them. Appellants' application for certiorari to quash the seizure on the ground that the documents seized were protected by solicitor-client privilege was dismissed both in the Superior Court and in the Court of Appeal.
Held: The appeal should be dismissed.
All information which a person must provide in order to obtain legal advice and which is given in confidence for that purpose enjoys the privileges attached to confidentiality. This confidentiality attaches to all communications made within the framework of the solicitor-client relationship, to the lawyer as well as to his employees. It arises even before the retainer is established, as soon as the client takes the first steps in approaching a law firm. It may be invoked in any circumstances where such communications are likely to be disclosed without the client's consent. However, communications which are criminal in themselves or that are made with a view to obtaining legal advice to facilitate the commission of a crime will not be privileged.
A justice of the peace has no jurisdiction to order the seizure of documents that would not be admissible in evidence in court on the ground that they are privileged. Before authorizing a search of a lawyer's office, he should even refuse to issue the warrant unless he is satisfied that there is no reasonable alternative to the search. If he issues it, he should attach terms of execution to the warrant designed to protect the right to confidentiality of the lawyer's clients as much as possible.
In the case at bar, the communications made by the applicant with respect to his financial means are criminal in themselves since they constitute the material element of the crime charged. These communications are accordingly not protected by the privilege and the justice had jurisdiction to order the seizure. However, all other information contained in the "Application for Legal Aid" form remains protected. The search was the only reasonable alternative and the procedure followed during the seizure was proper and valid.
R. v. Littlechild (1979), 51 C.C.C. (2d) 406; Re Borden & Elliott and The Queen (1975), 30 C.C.C. (2d) 337 (Ont. S.C.), approved; Solosky v. The Queen, [1980] 1 S.C.R. 821; Re Pacific Press Ltd. and The Queen et al. (1977), 37 C.C.C. (2d) 487, considered; Berd v. Lovelace (1577), 21 E.R. 33; Dennis v. Codrington (1580), 21 E.R. 53; Minter v. Priest, [1930] A.C. 558; R. v. Cox and Railton (1884), 14 Q.B.D. 153; R. v.Colvin, Ex parte Merrick et al. (1970), 1 C.C.C. (2d) 8;
[page 862]
Re B.X. Development Ltd. and The Queen (1976), 36 C.R.N.S. 313 (B.C. S.C.); Re Alder et al. and The Queen (1977), 37 C.C.C. (2d) 234; Attorney General of Quebec v. T., G., W., R. and C. (1977), 2 C.R. (3d) 30; Re Director of Investigation and Research and Canada Safeway Ltd. (1972), 26 D.L.R. (3d) 745; Re Director of Investigation and Research and Shell Canada Ltd. (1975), 22 C.C.C. (2d) 70; Re Presswood and Delzotto (1975), 36 C.R.N.S. 322; Re B.X. Development Ltd. and The Queen (1976), 31 C.C.C. (2d) 14 (B.C. C.A.); Re Steel and The Queen (1974), 21 C.C.C. (2d) 278; Re B and The Queen (1977), 36 C.C.C. (2d) 235; Re Borden & Elliott and The Queen (1975), 30 C.C.C. (2d) 337 (Ont. C.A.), referred to.
APPEAL from a judgment of the Court of Appeal of Quebec affirming a judgment of the Superior Court, [1978] C.S. 792, dismissing appellants' application for certiorari. Appeal dismissed.
Jean-Marie Larivière and Jean-Pierre Lussier, for the appellants,
Pierre Robert and Sarto Blouin, for the respondent and the intervener the Attorney General of the Province of Quebec.
François Aquin and Jocelyne Jarry, for the intervener the Commission des services juridiques.
English version of the judgment of the Court was delivered by
LAMER J.—A citizen who lies about his financial means in order to obtain legal aid is committing a crime. This appeal concerns the right of the police to be authorized by a search warrant to search a legal aid bureau and seize the form filled out by the citizen at his interview, for purposes of proving that this crime was committed. This issue raises several others, including, in particular, the scope of and procedures for exercising the authority to search lawyers' offices, in view of the confidential nature of their clients' files. This appeal will also give everyone an opportunity to note the deficiencies in the law in this area and the limited ability of the courts to compensate for them since their role is not primarily legislative.
[page 863]
FACTS
Two peace officers presented themselves at the premises of a legal aid bureau in the judicial district of Montreal with the following search warrant:
ATTENDU qu'il appert de la dénonciation assermentée de:
WHEREAS, it appears on the oath of
[TRANSLATION]
1848 Gilles Bertrand
M.U.C. Peace Officer
10 St. Antoine Est, Mtl
[TRANSLATION] File No.
02-78-05-03-005
Q.P. file No. on behalf of
police force/complainant organization
Que dans la ville de St Laurent district Montreal
That in the City of District
Le 19 ,
on the [TRANSLATION] May 4, 1978, 19 ,
[TRANSLATION] Between January 1, 1975 and January 1, 1978 an indictable offence was committed, to wit a false pretence; Mr. Marcellein [sic] Ledoux reported a lower income in order to be eligible for legal aid services, contrary to section 324 of the Criminal Code, and that documents to wit: a legal aid application form, lawyer's retainer and other documents concerning this case.
These documents are allegedly in these premises and will provide evidence concerning the commission of the said offence.
Et que les dites choses ou quelques parties d'entre elles se trouvent dans
And that the said things or some part of them are in
de/of
au no./at no. 790 de la rue/of boul. Laurentien Street
à/at Ville St Laurent district/district of Montreal
ci-après appelé les lieux;
hereinafter called the premises;
A CES CAUSES, les présentes ont pour objet de vous autoriser à entrer (indiquer à
THIS IS, THEREFORE, to authorize and require you to enter
Jour & nuit
(quelles heures) dans les dits lieux et à
rechercher les dites choses (indicate time) the said premises, and to
search for the said things
et les rapporter devant moi ou tout autre juge pour le district
[page 864]
and to bring them before me, or some other Judge of the Peace for the district
Donné sous mon seing à Montreal District Montreal
Given under my seal at District of
le
on the [TRANSLATION] May 4, 1978
J.S.P./Juge de Paix
[TRANSLATION] acting in and for the province of Quebec
RETURNABLE
We do not know the wording of the information that led respondent justice of the peace to authorize the search and seizure of the documents described in the warrant; however, at the hearing counsel agreed to admit for purposes of this appeal that the contents of the information were as set out in the warrant.
The syndic of the Bar* intervened when the warrant was being executed and, as a result, the two mis en cause police officers did not search the premises, but agreed to receive, without even examining them, since they were in a sealed envelope, documents they were told were those they were looking for. No one has yet seen what the envelope contains, not even the judges of this Court, and everyone agreed not to open the envelope before being authorized to do so by a judgment of this Court. All are agreed, moreover, that it contains two forms completed by Marcellin Ledoux and by a lawyer employed by the Centre communautaire juridique de Montréal [Montreal Community Legal Centre], together with a notice of refusal, and that the information contained in this application for legal aid concerns the matters found in the following printed form:
[page 865]
[page 866]
[1]
It should be noted that at the bottom of the form the lawyer is asked to enter his "professional notes" on the back of the document.
This form must be completed by those applying for legal aid. This is a requirement of the Act (Legal Aid Act, R.S.Q. 1977, c. A-14).
64. An application for legal aid must set forth the financial condition of the applicant and the basis of his claim, all the information determined in the regulations and any additional relevant information required by the corporation.
This requirement is aimed at allowing the bureau director to determine whether an applicant is eligible having regard to s. 63 of the same Act, the pertinent part of which reads as follows:
63. The general manager shall, within the scope of the regulations, grant legal aid to any economically under-privileged person establishing the probable existence of a right.
Those who do not comply with the requirement will be deprived of the services of a lawyer paid by the bureau, in the same way as those who do not meet the eligibility criteria.
[page 867]
It should also be noted that the information on the first page of the form deals principally with the financial situation of the applicant for purposes of determining whether he is eligible for aid as an economically underprivileged person, and that the professional notes on the reverse concern the probable existence of the basis of his claim. These professional notes could very well record the applicant's account of the facts which lead him to apply for aid and on which the bureau will decide the probable existence of the basis of his right.
IN THE SUPERIOR COURT
After the documents had been seized and sealed, Mr. Descôteaux and the legal aid bureau (le Centre communautaire juridique de Montréal) presented to a judge of the Superior Court, district of Montreal, a motion for the issuance of a writ of certiorari requesting that the seizure be quashed on the grounds of nullity and requesting the Superior Court judge to order the justice of the peace to return the sealed envelope and its contents to them.
The motion was dismissed, but the judge amended the wording of the warrant, stating that [TRANSLATION] "the words 'other documents concerning this case' should be struck out and no longer regarded as forming part of the said search warrant".
The Superior Court judge stated that he was of the view that solicitor-client privilege could be invoked as soon as confidentiality was threatened, "without waiting until the person or persons disregarding the privilege attempted to tender the information thus obtained as evidence". He found, however, that the documents seized were not privileged since they had been prepared before the solicitor-client relationship came into existence ([1978] C.S. 792, at p. 799):
[TRANSLATION] Returning now to the problem raised by applicants, I have come to the conclusion that the documents seized, namely two legal aid application forms and one refusal form, are not privileged. The application for legal aid is nothing more or less than a descriptive form filled out by a person wishing to obtain legal aid to let the organization know that he meets the eligibility requirements. There is no relationship at all
[page 868]
between the information contained in this form, which deals with the applicant's civil status, matrimonial status and financial situation, and the information he may provide to his counsel in order to obtain legal advice or representation in litigation. Moreover, there is not even a solicitor-client relationship at the time this form is completed, and the retainer does not come into existence until the applicant has been accepted by the appropriate authority, which, in so doing, will have decided that he meets the eligibility requirements. It is only after this administrative decision has been made that there will be created between the applicant citizen and the legal aid lawyer this type of privileged relationship that is scrupulously protected by the common law.
I am unable to arrive at any other conclusion, since it seems clear to me that these documents are records of an administrative nature that are necessary precisely because of the nature of the services sought by the applicant. Finally, I think that the "declaration" which the applicant must sign in the presence of a witness and which appears at the bottom of the "application for legal aid" confirms my opinion that this document is not privileged:
I declare that this information is true and I undertake to inform your bureau or corporation of any change in my economic situation.
I have been informed of my right to be represented by a lawyer of my choice and I have chosen to be represented by:
A lawyer employed full-time by the corporation/a lawyer in private practice.
There is not yet any solicitor-client relationship; at the very most the applicant has expressed his desire to have a lawyer who is employed by the legal aid bureau or a private practitioner, without any further information concerning his identity. Moreover, the undertaking by the applicant to inform the "bureau" or the "corporation" of any change in his economic situation indicates most clearly, in my view, that this type of information is not regarded by the applicant himself as confidential or as forming part of the consultation or legal advice sought from a lawyer whose identity he does not yet know. This seems to me sufficient to dispose of the case of the legal aid application forms, and the same comments apply, it goes without saying, to the notice of refusal. These documents, owing to their very nature and to the position the citizen is in when they are filled out, do not fall within the category of privileged communications . . .
(Emphasis added.)
[page 869]
Finally, I repeat, the Superior Court judge amended the warrant by striking out the words "other documents concerning this case" on the ground that the authorization to search and seize conferred by those words was too general and imprecise.
IN THE COURT OF APPEAL
The Court of Appeal adopted the conclusions of the Superior Court judge, together with his reasons. To these Bélanger J.A. added on behalf of the Court that in any event solicitor-client privilege could not have operated to protect the communication, since the latter was precisely what had been resorted to in order to mislead a representative of the legal aid bureau. On that matter, he stated the following:
[TRANSLATION] In the case at bar the communications or documents that are alleged to be confidential are those referred to in the charge as having been used in the commission of the offence in question. Apart from common law principles, they are no more privileged than if the same information and documents had been used to mislead the lawyer himself in order to fraudulently obtain his services on special terms. In either case I do not think that false communications made to the eventual victim who will have to bear the cost of the services are confidential in any way. In short, a communication made to a representative of the Commission des services juridiques [Legal Services Commission] is in no way confidential if it is an element of an offence committed to the latter's prejudice, since in such circumstances there is no confidentiality between solicitor and client.
I think that at this point I should state my findings in the case at bar; I shall give reasons for them later.
In my view it was correctly decided that it is not necessary to wait for the trial or preliminary inquiry at which the communication is to be adduced or sought in evidence before raising its confidentiality. With all due respect for the opposite view, I am of the opinion, however, that in principle information concerning one's financial means the basis of the claim, and any other information required by the corporation or the regulations (Legal Aid Act, s. 64) which a person applying for legal aid must provide in order to obtain the services of a
[page 870]
lawyer is, except in the exceptional cases I shall deal with later, privileged. I share the opinion of the Quebec Court of Appeal, however, that, in the case at bar, the information concerning Marcellin Ledoux's financial means had lost the benefit of being privileged since, as alleged in the search warrant, it was communicated with a view to criminally obtaining a benefit and, consequently, fell within one of the common law exceptions to the principle of privilege. But since it is alleged that the crime was committed by means of false pretences only with respect to the applicant's financial means, the professional notes, which concern the basis of his claim, remain privileged.
I do not intend to repeat here everything that others have said, on numerous occasions and very clearly and completely, about solicitor-client privilege, or about the issuance and execution of search warrants.
I think, however, that I should make a few remarks about the existence and effects of a person's right to have his communications with his lawyer kept confidential; I shall then deal more particularly with the search power provided for in the Criminal Code.
THE RIGHT TO CONFIDENTIALITY
It is not necessary to demonstrate the existence of a person's right to have communications with his lawyer kept confidential. Its existence has been affirmed numerous times and was recently reconfirmed by this Court in Solosky v. The Queen, [1980] 1 S.C.R. 821, where Dickson J. stated (at p. 839):
One may depart from the current concept of privilege and approach the case on the broader basis that (i) the right to communicate in confidence with one's legal adviser is a fundamental civil and legal right, founded upon the unique relationship of solicitor and client, and (ii) a person confined to prison retains all of his civil rights, other than those expressly or impliedly taken from him by law.
[page 871]
There is no denying that a person has a right to communicate with a legal adviser in all confidence, a right that is "founded upon the unique relationship of solicitor and client" (Solosky, supra). It is a personal and extra-patrimonial right which follows a citizen throughout his dealings with others. Like other personal, extra-patrimonial rights, it gives rise to preventive or curative remedies provided for by law, depending on the nature of the aggression threatening it or of which it was the object. Thus a lawyer who communicates a confidential communication to others without his client's authorization could be sued by his client for damages; or a third party who had accidentally seen the contents of a lawyer's file could be prohibited by injunction from disclosing them[2].
Owing to its importance, in addition to these general remedies available to the holder, various statutes, both federal and provincial, recognize this right by giving it additional, specific protection.
These include, for example, statutes governing the practice of the profession of barrister or advocate (in Quebec, the Act respecting the Barreau du Québec, R.S.Q. 1977, c. B-1, s. 131)[3] and certain provincial charters of rights (in Quebec, the Charter of human rights and freedoms, R.S.Q. 1977, c. C-12, s. 9)[4].
[page 872]
It is again owing to the importance of this right that certain statutes contain special provisions applicable in situations where, were it not for those special provisions, there would be undue interference with the right to confidentiality. An example of such concern for that right can be found in the safeguards set out in s. 232 of the Income Tax Act, 1970-71-72 (Can.), c. 63.
There is no doubt that this right belonging to a person in his dealings with others, including the State, is part of our Quebec public law as well as of the common law.
Although we recognize numerous applications of it today, the right to confidentiality did not first appear until the 16th century, and then did so as a rule of evidence (see, inter alia, Berd v. Lovelace (1577), 21 E.R. 33; Dennis v. Codrington (1580), 21 E.R. 53).
The rule of evidence is well known; it has often been stated, This Court referred to it again recently in Solosky. That decision sets out the conditions precedent to the existence of the privilege, as well as its limits and exceptions. It should be pointed out that the substantive conditions precedent to the existence of the privilege, which the judges have gradually established and defined, are in fact the substantive conditions precedent to the existence of the right to confidentiality, the former being merely the earliest manifestation of the latter. There is no need to list those conditions exhaustively here or to review all the nuances that have been developed by the courts over the years. It will be sufficient to review them in broad outline and to emphasize certain aspects of particular relevance to this appeal.
The following statement by Wigmore (8 Wigmore, Evidence, para. 2292 (McNaughton rev, 1961)) of the rule of evidence is a good summary, in my view, of the substantive conditions precedent to the existence of the right of the lawyer's client to confidentiality:
Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence
[page 873]
by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived.
Seeking advice from a legal adviser includes consulting those who assist him professionally (for example, his secretary or articling student) and who have as such had access to the communications made by the client for the purpose of obtaining legal advice.
There are exceptions. It is not sufficient to speak to a lawyer or one of his associates for everything to become confidential from that point on. The communication must be made to the lawyer or his assistants in their professional capacity; the relationship must be a professional one at the exact moment of the communication. Communications made in order to facilitate the commission of a crime or fraud will not be confidential either, regardless of whether or not the lawyer is acting in good faith.
THE SUBSTANTIVE RULE
Although the right to confidentiality first took the form of a rule of evidence, it is now recognized as having a much broader scope, as can be seen from the manner in which this Court dealt with the issues raised in Solosky.
Solosky was an inmate at Millhaven penitentiary. He was seeking a declaration that henceforth all properly identified items of solicitor-client correspondence would be forwarded to their respective destinations unopened.
The inmates' right to confidentiality conflicted with the Penitentiary Act, R.S.C. 1970, c. P-6, and more particularly with Regulation 2.18 of the Penitentiary Service Regulations, allowing the director of the institution to order censorship of correspondence to the extent considered necessary
[page 874]
or desirable for the security of the institution. On behalf of this Court Dickson J., stated the following (at p. 841):
Counsel for the Crown submits there are three alternative interpretations of the scope of Regulations 2.17 and 2.18 which may govern the extent of the authority of the institutional head in dealing with an envelope which appears to have originated from a solicitor, or to be addressed to a solicitor, in circumstances where the institutional head has reason to believe that the unrestricted and unexamined passage of mail to or from the particular inmate in question represents a danger to the safety and security of the institution:
(a) he may nonetheless permit the letter to be delivered unopened and unexamined to the inmate;
(b) he may suspend the inmate's privilege to receive mail, in respect of that letter, pursuant to sections 2.17 and 2.18 of the Penitentiary Service Regulations.
(c) he may order that the envelope be subject to opening and examination to the minimum extent necessary to establish whether it is properly the subject of solicitor-client privilege.
Counsel contends that to interpret the Regulations as requiring the first of these alternatives is to leave the institutional head without the authority he requires to control the potential passage of contraband, or of correspondence which may endanger the safety of the institution, under the guise of confidential communications passing between inmate and solicitor. I agree. I would also reject the second as providing no solution. I agree that the third alternative represents that interpretation of the scope of the Regulations which permits to an inmate the maximum opportunity to communicate with his solicitor through the mails that is consistent with the requirement to maintain the safety and security of the institution.
In my view, the "minimum extent necessary to establish whether it is properly the subject of solicitor-client privilege" should be interpreted in such manner that (i) the contents of an envelope may be inspected for contraband; (ii) in limited circumstances, the communication may be read to ensure that it, in fact, contains a confidential communication between solicitor and client written for the purpose of seeking or giving legal advice; (iii) the letter should only be read if there are reasonable and probable grounds for believing the contrary, and then only to the extent necessary to determine the bona fides of the communication; (iv) the authorized penitentiary official who examines the envelope, upon ascertaining that the envelope contains nothing in breach of
[page 875]
security, is under a duty at law to maintain the confidentiality of the communication. Paragraph 7c. of Directive 219 underlines this point.
It is quite apparent that the Court in that case applied a standard that has nothing to do with the rule of evidence, the privilege, since there was never any question of testimony before a tribunal or court. The Court in fact, in my view, applied a substantive rule, without actually formulating it, and, consequently, recognized implicitly that the right to confidentiality, which had long ago given rise to a rule of evidence, had also since given rise to a substantive rule.
It would, I think, be useful for us to formulate this substantive rule, as the judges formerly did with the rule of evidence; it could, in my view, be stated as follows:
1. The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client's consent.
2. Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person's right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.
3. When the law gives someone the authority to do something which, in the circumstances of the case, 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.
4. Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively.
[page 876]
THE RULE OF EVIDENCE
The rule of evidence is formulated by Cross (Cross on Evidence, 5th ed., 1979) as follows (at p. 282):
In civil and criminal cases, confidential communications passing between a client and his legal adviser need not be given in evidence by the client and, without the client's consent, may not be given in evidence by the legal adviser in a judicial proceeding ...
The rule of evidence does not in any way prevent a third party witness (I am referring here to someone other than an agent of the client or the lawyer) from introducing in evidence confidential communications made by a client to his lawyer. It is important to note, however, that before allowing such evidence to be introduced and in determining to what extent to allow it, the judge must satisfy himself, through the application of the substantive rule (No. 3), that what is being sought to be proved by the communications is important to the outcome of the case and that there is no reasonable alternative form of evidence that could be used for that purpose.
CONFIDENTIALITY IN THE CASE AT BAR
In the case at bar the principal issue is to determine when the solicitor-client relationship, which confers the confidentiality protected by the substantive rule and the rule of evidence, arises.
The Superior Court judge, as we have seen, was of the view that this relationship, and consequently the right to confidentiality, did not arise until the legal aid applicant had been accepted, that is, until the retainer was established.
When dealing with the right to confidentiality it is necessary, in my view, to distinguish between the moment when the retainer is established and the moment when the solicitor-client relationship arises. The latter arises as soon as the potential client has his first dealings with the lawyer's office in order to obtain legal advice.
The items of information that a lawyer requires from a person in order to decide if he will agree to
[page 877]
advise or represent him are just as much communications made in order to obtain legal advice as any information communicated to him subsequently. It has long been recognized that even if the lawyer does not agree to advise the person seeking his services, communications made by the person to the lawyer or his staff for that purpose are nonetheless privileged (Minter v. Priest, [1930] A.C. 558; Phipson on Evidence, 12th ed., 1976, p. 244, No. 589; 8 Wigmore, Evidence (McNaughton rev. 1961), p. 587, para. 2304).
Moreover, the same applies not only to information given before the retainer is perfected concerning the legal problem itself, but also to information concerning the client's ability to pay the lawyer and any other information which a lawyer is reasonably entitled to require before accepting the retainer. First, this information of an administrative nature is just as related to the establishment of the professional relationship as any other information; this is especially clear when, as in the case at bar, the legal aid applicant "must set forth [his] financial means . . . and the basis of his claim". In addition, information of this nature that a person gives his lawyer for that purpose may also be highly confidential and would have been kept secret by that person were it not for that person's need of the assistance of a legal adviser.
For example, the legal aid form requires the applicant to provide information concerning his dependants. A person could thus be forced to disclose to the legal aid bureau a paternity that had until then been kept secret, in order to establish his onerous financial obligations and consequently his limited means. One can imagine, given the form the applicant must complete, numerous other situations where the information given would be highly personal.
I therefore do not think that a distinction should be made between information that must be given in order to establish the probable existence of a valid claim and that given to establish eligibility from the point of view of financial means, since, on
[page 878]
the one hand, information concerning the person's financial situation may be just as highly confidential as any other information and since, on the other hand, the fact of being unable to meet the eligibility requirements respecting financial means is no less fatal to the ability to obtain the services sought.
The issue we are concerned with was recently raised in Alberta in R. v. Littlechild (1979), 51 C.C.C. (2d) 406.
An individual was charged with having defrauded a store by using an N.S.F. cheque. In order to prove that the accused knew that his bank had ordered a suspension of all operations concerning his bank accounts and that consequently he knew that his cheque would not be honoured, the Crown wished to introduce in evidence communications that the accused had made previously to a legal aid bureau employee.
During an interview and on a form similar to the one involved in the case at bar, the accused had provided certain information concerning his financial means to this employee, who was not a lawyer, in order to establish his eligibility for the legal aid bureau's services. According to the Crown, part of this information dealt in particular with the fact that the accused knew that he no longer had access to the funds in his bank accounts.
The trial judge refused on his own motion to allow the Crown to introduce these communications in evidence.
The Attorney General appealed.
Laycraft J.A., rendering judgment on behalf of the Court of Appeal, stated the following (at pp. 411-12):
A number of cases establish the principle that solicitor-client privilege extends both to communications between the agents of a client and his solicitor and to communications between a client and agents of the solicitor. In Wheeler v. Le Marchant (1881), 17 Ch. D. 675 at p. 682, Jessel, M.R., said:
The actual communication to the solicitor by the client is of course protected, and it is equally protected whether it is made by the client in person or is
[page 879]
made by an agent on behalf of the client, and whether it is made to the solicitor in person or to a clerk or subordinate of the solicitor who acts in his place and under his direction.
In Lyell v. Kennedy (1884), 27 Ch. D. 1, Cotton, L.J., said at p. 19:
But then this privilege is confined to that which is communicated to or by that man [the client] by or to the solicitors or their agents, or any persons who can be treated properly as agents of the solicitors. We have therefore thought it right, in order to prevent an evasion of what is the proper view of the law by the use of that word 'agents,' to require that the Defendant shall put in a further affidavit stating whether the agents mentioned were his agents, or whether they were the agents of the solicitors and persons so employed by the solicitor as to be his agents, including such agents as every solicitor's clerk may be said to be, who would all be entitled to the protection given to solicitors. Subject, then, to that alteration, we think that the protection claimed is in law good.
In R. v. Chaney (1908), 13 C.C.C. 289, 17 Man. R. 467 (Man. C.A.), police had a person falsely pose as a representative of the accused's solicitor in order to obtain a statement from the accused. The Court held that the person obtaining the statement must be treated as though he was the solicitor's agent as he represented himself to be, and that the evidence was therefore inadmissible on the ground of privilege.
Recent Canadian cases also holding that solicitor-client privilege extends to communications through the intermediary of an agent are Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 27, [1969] C.T.C. 353, and Re Alcan-Colony Contracting Ltd. et al. and Minister of National Revenue (1971), 18 D.L.R. (3d) 32, [1971] 2 O.R. 365.
It is not a factor against the existence of privilege that the communication between the respondent and the Legal Aid officer which is sought to be introduced in evidence related to the respondent's effort to obtain counsel rather than to advice given for the purpose of the actual defence. In Wheeler v. Le Marchant, supra, Jessel, M.R., said at p. 682:
So again, a communication with a solicitor for the purpose of obtaining legal advice is protected though it relates to a dealing which is not the subject of litigation, provided it be a communication made to the
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solicitor in that character and for the purpose.[5]
This principle has been stated earlier in broader terms in Minet v. Morgan (1873), 8 Ch. App. 361, by Lord Selbourne, L.C., at p. 368:
But there is a later authority by that most accurate and learned Judge, Sir R. T. Kindersley-Lawrence v. Campbell, 4 Drew. 485, 490 [62 E.R. 186 at 188], which contains a statement of the Vice-Chancellor's view of the principle and also of the rule which in 1859 had come to be well settled and established in this Court on the foundation of that principle. He says: 'It is not now necessary, as it formerly was, for the purpose of obtaining production that the communications should be made either during or relating to an actual or even to an expected litigation. It is sufficient if they pass as professional communications in a professional capacity.' I can only say that I entirely agree with the views both of the principle and of its proper extension taken in these later authorities.
It is also clear that solicitor-client privilege can extend to conversations in which a person makes disclosures while seeking to retain a solicitor, though in fact the retainer is not perfected. In Minter v, Priest, [1930] A.C. 558 at p. 573, Viscount Dunedin said:
Now, if a man goes to a solicitor, as a solicitor, to consult and does consult him, though the end of the interview may lead to the conclusion that he does not engage him as his solicitor or expect that he should act as his solicitor, nevertheless the interview is held as a privileged occasion.
It follows from the authorities referred to above that conversations with a solicitor's agents held for the purpose of retaining him would also be privileged, even though the solicitor was not then, or ever, retained. In my view, the principle protects from disclosure a conversation between an applicant for legal aid and the non-lawyer official of the Legal Aid Society who interviews him to see if he is qualified.
The privilege protecting from disclosure communications between solicitor and client is a fundamental right—as fundamental as the right to counsel itself since the right can exist only imperfectl