Chapter 5: The Lawyer-Client Relationship

HOW DEFENCE COUNSEL IS ASSIGNED

An accused to be tried by court martial is entitled to legal representation appointed by DDCS.¹ When an application is forwarded to a referral authority² for disposal of a charge by court martial, the accused's commanding officer (CO) must ascertain the accused's desires and intentions respecting legal counsel.³ Should the accused request legal counsel appointed by DDCS, the CO must advise DDCS accordingly,⁴ including whether the accused wants a particular legal officer as legal counsel.⁵ Should the accused request a particular legal officer, DDCS must endeavour to satisfy the request.⁶ In determining which lawyer to appoint as defence counsel, DDCS considers the language in which the court martial will be conducted as well as the overall complexity of the case.

Upon receiving a request for representation by DDCS counsel, the Director, as soon as the nature of the charge(s) and the language of trial have been ascertained, will appoint counsel. This is done by written notification to the accused's CO. The notification sets out the details of the appointment and requests that the accused contact the appointed defence counsel. The CO, in turn, furnishes the accused with a copy of the DDCS notification letter. Once appointed as defence counsel for the case, the DDCS lawyer becomes "solicitor of record" and takes whatever measures he or she sees fit to protect the interests of his or her client, including requesting disclosure of evidence, scheduling and preparing the trial, and conducting the trial.⁷ In rare and special circumstances, normally involving very serious and complex matters, DDCS may appoint counsel earlier in the process – even before the laying of charges.

SOLICITOR-CLIENT PRIVILEGE

A lawyer cannot provide complete, proper and effective professional service to the client unless there is full and unreserved communication between them.

Consequently, for the solicitor-client relationship to function properly, the client must feel completely secure and entitled to proceed with the lawyer on the basis that, without any express request or stipulation on the client's part, matters disclosed to or discussed with the lawyer will be held secret and confidential. This is summed up in the lawyers' Code of Professional Conduct, which states that

The law relating to the relationship between the solicitor and the client has developed to achieve four aims:¹⁰

• to preserve the integrity and confidentiality of the solicitor-client relationship;
• to encourage the seeking of legal advice;
• to ensure fairness to all parties; and
• to stabilize the administration of justice.

The Supreme Court of Canada has recognized the following four conditions¹¹ necessary to establish the existence of solicitor-client privilege:

• the communications must originate in confidence that they will not be disclosed;
• this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
• the relation must be one that in the opinion of the community ought to be sedulously fostered; and
• the injury that would inure to the relation by disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

Solicitor-client privilege “originated as a respect for the oath and honour of a lawyer who was duty-bound to guard the client's secrets.”¹² It has developed from confidentiality in communications between the solicitor and the client to include, in certain circumstances, communications involving third parties and documents prepared in contemplation of litigation.¹³

Historically, solicitor-client privilege was a rule of evidence and could be invoked only in the context of litigation.¹⁴ The Supreme Court of Canada elevated solicitor-client privilege to the dimension of a fundamental civil and legal right.¹⁵ Thus, today the doctrine of solicitor-client privilege has two rules: the first is an evidentiary rule,¹⁶ and the second, a substantive rule. The evidentiary rule precludes the use of privileged communications in evidence at litigation. The substantive rule defines a right to confidentiality in circumstances where a communication between solicitor and client otherwise meets the criteria to invoke privilege but an evidentiary context is lacking. In such instances, the privilege cannot be claimed. The Court formulated the substantive rule as follows:¹⁷

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 communications with the 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 that, 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 that confidentiality except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation; and
4. acts providing otherwise in situations under (b) above and enabling legislation referred to in (c) above must be interpreted restrictively.

The general rule is that a solicitor-client relationship exists, and the solicitor-client privilege is established when the communication is made¹⁸

• for the purpose of seeking legal advice; and
• to the lawyer as a professionally qualified practising lawyer and not in some other capacity that the lawyer may enjoy.

Any information that DDCS counsel may acquire in the course of the professional relationship with their clients cannot be divulged to any person or agency outside DDCS. This includes other elements of the Office of the JAG, the CF and DND. In this respect, counsel should be aware that the ethical rule¹⁹ concerning confidentiality is much wider than the evidentiary rule prohibiting the use of privileged information in litigation. The ethical rule “applies without regard to the nature or source of the information or to the fact that others may share the knowledge.” ²⁰

Thus, the obligation to protect confidential information applies not only to information received directly from the client but also to all other information acquired in the course of representing the client.

Finally, the following features of solicitor-client privilege are noteworthy:

• solicitor-client privilege is established with the client's “first dealings with the 's office in order to obtain legal advice”;²¹
• the requirement to protect privileged information applies equally to non-legal staff becoming apprised of that information in the course of their duties;²² and
• solicitor-client privilege does not apply when
  • advice is sought for a criminal purpose, regardless of whether the lawyer is aware of the purpose for which the advice is sought;²³
  • the privilege is waived by the client;²⁴ and/or
  • when a third party intercepts a privileged communication.²⁵

Accordingly, persons utilizing the services of DDCS lawyers for the advisory or representational purposes set out in QR&O article 101.19(2) and (3) can be confident that the legal and ethical umbrella of solicitor-client privilege applies to their communications with DDCS lawyers and that all such communications will be confidential.

DDCS Directive 3

In order to foster a trusting relationship with their clients, DDCS counsel shall ensure that their clients understand the nature, extent and limitations of the solicitor-client privilege.

CONFLICT OF INTEREST

Essentially there are three types of conflict of interest in which a lawyer may become embroiled:

• conflicts between the lawyer and the institution;
• conflicts between the lawyer and the client; and
• conflicts between "clients of the office".

The first type of conflict – and the most evident – arises when the lawyer places personal or institutional needs or desires ahead of the client's (i.e., when the lawyer's primary loyalty, beyond the requirements of law and ethics, is either to himself or herself or to the institution of the CF, rather than to the client). This is the primary reason for the measure of statutory independence afforded to DDCS. As discussed above, DDCS counsel have the duty, within the boundaries of law and ethics, to provide the best possible representation to the client. DDCS lawyers must therefore, at all times, be cautious not to be or to appear to be sublimating the client's case and cause to personal or institutional desires or needs.

The second type of conflict arises when the lawyer becomes involved with the client in either a personal or business sense. In either instance, at the very least, there exists the risk that the lawyer's detached professional judgment respecting the best interests of the client will be clouded by that involvement.

The third type of conflict of interest – and probably the most subtle – is a conflict of interest between the requirements of different "clients of the office" (i.e., a conflict between the interests of one DDCS client and those of another DDCS client, whether the same or a different DDCS lawyer represents the other client). Such conflicts of interest can arise in three ways:

• a DDCS lawyer having been involved with a particular case as an advisor to the Military Police or to the chain of command before being posted to DDCS;
• a former DDCS client being called as a witness for the prosecution in the current case; and
• two or more accused in a single case being represented by DDCS lawyers.

DDCS lawyers must therefore remain extremely vigilant regarding the existence, potential existence and the perception of the existence or potential existence of conflicts of interest. Notwithstanding that the facts of a particular situation may be such that at law the lawyer or lawyers in question may be allowed to continue to advise or represent the client or clients in question, DDCS policy is to avoid all situations in which there may be a conflict of interest or a perception of conflict of interest.

DDCS Directive 4

DDCS counsel shall remain alert to

• the existence and danger of, and shall avoid, compromising or potentially compromising situations and influences that could give rise to the threat of either actual or perceived conflict of interest; and
• conflicts of interest or perceptions of a conflict of interest respecting two or more clients advised or represented presently or previously by DDCS counsel.

DDCS Directive 5

DDCS counsel are to report to the Director all instances of actual or perceived conflict of interest.

DDCS Directive 6

DDCS counsel who may be uncertain about the existence of or the perception of the existence of an actual or potentially compromising situation shall inform and consult with the Director and with the appropriate member of their law society as necessary.

DDCS Directive 7

In the event of the existence of a conflict of interest or of a perception of a conflict of interest respecting two or more clients advised or represented by DDCS counsel, either presently or in the past, the DDCS counsel shall cease to advise or to represent the persons involved.

DDCS will, in relation to clients involved in conflicts or perceived conflicts of interest addressed in DDCS Directive 7, seek alternate legal counsel from the private sector. In such an instance, DDCS shall, pursuant to the provisions of NDA section 249.21, pay²⁶ for the legal services rendered because of the conflict. When a counsel from the private sector is so retained by DDCS, such a counsel is deemed to be a DDCS counsel and DDCS directives regarding the representation of clients apply to that counsel, except to the extent that such directives are incompatible with the full and independent representation of the client.

THE DDCS LAWYER'S FILE

As in any law office, a file is opened on every matter that comes into the DDCS offices. Two separate files are maintained for both advisory and representational matters: a "system file" and a "working file".

The advisory "system file" on a particular matter comprises a statistical data sheet on which is recorded the date and time of the request for legal advice, the language of communication, the status of the person seeking advice and the area of legal concern. It does not include the identity or any personal particulars of the person seeking advice. The court martial "system file" includes the charge sheet and administrative correspondence and documents such as the request for appointment of DDCS counsel and the court martial administrative message.

The "working file" is the lawyer's own file for an advisory matter or case. It contains all of the information from the system file as well as counsel's own notes, memoranda, records of conversations, legal research, etc. The "working file" is particular to and maintained solely by the lawyer who prepares it. No one outside of DDCS has access to the "working file".²⁷

SOLICITOR-CLIENT PRIVILEGE AND PRIVACY²⁸ AND ACCESS TO INFORMATION²⁹

The Privacy Act was enacted to

The Access to Information Act provides that every Canadian citizen and permanent resident

Notably, neither Act prohibits government disclosure of solicitor-client privileged information. Indeed, both Acts leave the matter of disclosure of solicitor-client privileged information to the discretion of the head of the government institution controlling the information.³² However, with three stated exceptions,³³ the Access to Information Act prohibits government disclosure of "personal information", as that term is defined in section 3 of the Privacy Act.³⁴ This will protect much solicitor-client privileged information from being disclosed to members of the public.

Both the Access to Information Act and the Privacy Act were enacted when the only lawyers in government service were lawyers for the government (i.e., when the "clients" in question were either government departments or employees). At that time, Parliament did not foresee the possibility of government lawyers acting for accused persons at criminal trials. Accordingly, the judicial experience to date with governmentcontrolled solicitor-client privileged information is from the former perspective and, therefore, of limited assistance.

In Wells v. Canada (Minister of Transport),³⁵ the court held that the party claiming the privilege had to meet the test in Solosky v. R.³⁶ The government records in issue were protected from disclosure under the umbrella of solicitor-client privilege. The court held that the information was³⁷

• communicated by or to a government lawyer in order to provide senior government officials with advice on the legal consequences of proposed governmental activities; and
• confidential, and was treated as such both during the initial communication and since that time.

In usan Hosiery v. Minister of National Revenue,³⁸ the court held, with respect to government records, that

The court stated that there is a "continuum of communications" between the solicitor and the client, and emphasized that

Both the Privacy Act and the Access to Information Act apply only to that "information" that is under the control of a government institution.⁴¹ While DDCS working files are under the physical control of the DDCS lawyer, and while the DDCS lawyer incontestably is a government employee, the law is quite clear that the solicitor-client privilege is subject to the instruction of the client and may be waived only by the client.

Accordingly

• the DDCS working files, insofar as they contain solicitor-client privileged information, are under the control not of a government institution but, rather, of the client; and
• for the purposes of release of information, the DDCS lawyer is, at the most, merely an agent of the client and, absent the client's express consent, lacks any legal authority to disclose the privileged information.

Footnotes

¹ QR&O art. 101.20(2)(f).

² QR&O art. 109.02 prescribes that the officers authorized to refer a charge to the Director of Military Prosecutions are the Chief of the Defence Staff (CDS) and any officer having the powers of an officer commanding a command.

³ QR&O arts. 101.22(2)(a) and 109.04(1)(a).

⁴ QR&O arts. 101.22(4) and 109.04(3).

⁵ QR&O arts. 101.22(3) and 109.04(2).

⁶ QR&O arts. 101.22(5) and 109.04(4).

⁷ Pursuant to QR&O arts. 101.26(2)(c) and 111.02(2)(b), the Court Martial Administrator, in consultation with the Chief Military Judge, the Director of Military Prosecutions and the Director of Defence Counsel Services or the appointed counsel, sets courts martial dates.

⁸ R. v. McCallen (1999), 43 OR (3^rd) 56 (Ont CA), per O'Connor JA 67.

⁹ The Canadian Bar Association, Code of Professional Conduct, Chapter 4, and the Law Society of Upper Canada, Professional Conduct Handbook, Rule 4.

¹⁰ Judith Bowers, Q.C., The Solicitor Client Relationship in the Public Service, a paper delivered to the 1996 Commonwealth Law Conference, Vancouver, BC, 1.

¹¹ Slavutych v. Baker, [1976] 1 SCR 254, at 260. The Court merely adopted the conditions set out at paragraph 2285 of Wigmore on Evidence, McNaughton Revised Edition, Volume 8.

¹² Manes and Silver, Solicitor-Client Privilege in Canada (Toronto: Butterworth's, 1993), 2.

¹³ Bowers, supra.

¹⁴ Wigmore, John Henry, Wigmore on Evidence, (McNaughten Revised Edition, 1961) paragraph 2292

¹⁵ Descoteaux et al v. Mierzwinski and the Attorney General of Quebec et al, [1982] 1 SCR 860 and Solosky v. The Queen, [1980] 1 SCR 821.

¹⁶ See Military Rule of Evidence s. 77.

¹⁷ Descoteaux, supra, 875.

¹⁸ R. v. Bencardino and De Carlo (1974), 15 CCC (2d) 342 (Ont CA).

¹⁹ See footnote 9, p. 5-3.

²⁰ The Canadian Bar Association, Code of Professional Conduct, Chapter 4, Commentary 2, and the Law Society of Upper Canada, Professional Conduct Handbook, Rule 4, Commentary 2.

²¹ Descoteaux, supra, 880.

²² Wigmore, supra, para. 2301.

²³ Solosky, supra.

²⁴ Re Director of Investigation and Research and Canada Safeway Ltd. (1972), 26 DLR (3d) 745 (BCSC).

²⁵ R. v. Kanesta, [1966] 4 CCC 231 (BCCA) rev'd [1967] 1 CCC 97 (SCC).

²⁶ While DDCS has the statutory authority to pay for such legal expenses, NDA subs. 249.21(3) prescribes that civilian counsel's terms and conditions of engagement, remuneration and expenses are subject to any applicable directives issued by the Treasury Board of Canada.

²⁷ Subs. 19(1) of the Access to Information Act prohibits disclosure of "personal information" as defined in s. 8 of the Privacy Act.

²⁸ RSC, c. P-21.

²⁹ RSC, c. A-1.

³⁰ Privacy Act, s. 2.

³¹ Access to Information Act, subs. 4(1).

³² Privacy Act, s. 27 and Access to Information Act, s. 23.

³³ Access to Information Act, subs. 19(2). The three exceptions are if the individual to whom personal information relates has given consent; if the information is already publicly available; and if disclosure is otherwise in accordance with s. 8 of the Privacy Act.

³⁴ Access to Information Act, subs. 19(1).

³⁵ (1995), 63 CPR (3d) 201 (FCTD).

³⁶ [1980] 1 SCR 821.

³⁷ Wells, supra, 205.

³⁸ [1969] 2 Ex. CR 27.

³⁹ Susan Hoisery, supra, 34.

⁴⁰ Ibid., 33.

⁴¹ Privacy Act, subss. 7 and 8; Access to Information Act, subs. 4(1).