Confidentiality

• Author: David Layton; Michel Proulx
• Pages: 157-207

157

CHA PTER 4

CONFIDENTIALIT Y

A. INTRODUCTION

The lawyer’s duty to keep conf‌idential all in formation received as a

result of representing a client is a core obligation of the professional

relationship. The scope of this duty is exceptional ly broad, demand-

ing that counsel ta ke great care in handling all information pert aining

to or affecting a client. At the same time, there are exceptions to the

duty of conf‌identiality that permit, and sometimes even demand, di s-

closure of such information by the law yer. Determining the instances

where exceptions should apply raises some of the most controversial

and daunting ethical problems facing the criminal bar today.

This chapter exami nes the lawyer’s duty of conf‌identiality to the

client with an eye to some of the problems and concerns that can arise

in a crimin al practice. It also reviews inst ances where a lawyer owes

a duty of conf‌identiality to non-clients, t he most important of which

concerns the proper handli ng of disclosure materials received from

the Crown. Possible justif‌ications for breaching conf‌identiality are dis-

cussed in other chapters, including Chapter 5 (conf‌identiality excep-

tions), Chapter 7 (client perjury), and Chapter 10 (physical evidence

relevant to a crime).

ETHICS AND CR IMINAL LAW158

B. R ATIONALE

The standard justif‌ication for imposing a duty of conf‌identiality on law-

yers is that the client who is assured of complete secrecy is more likely

to reveal to his counsel al l information pertaining to the case.1 The

lawyer who is in possession of all relevant information is better able

to advise the client and hence provide competent service,2 further ing

both the client’s legal rights and the t ruth-f‌inding function of the ad-

versarial system.3 The obligation to maintai n conf‌identiality also pro-

tects the client’s privacy,4 as well as promoting autonomy and dignity

by facilitating her control over persona l information and the conduct

of the defence.5 And the duty of conf‌identiality is closely connected

to the overarching duty of loyalty owed by a law yer to the client. The

obligation to be loyal would be compromised if a lawyer could use in-

formation so as to adversely impact the client. A complete bar on the

unauthorized use of conf‌identi al information by counsel, even where

no adverse impact is possible, accordingly ser ves a prophylactic func-

tion that helps to ensure undiv ided loyalty.

What is more, solicitor-client privilege and thus by implication the

ethical duty of conf‌identialit y acquires “an added dimension” where

1 See Smith v Jones (1999), 132 CCC (3d) 225 at para 46 (SCC) [Smith]; R v Mc-

Clure, 2001 SCC 14 at paras 31–33 [McClure]; R v Brown, 2002 SCC 32 at para 27

[Brown]; Foster W heeler Power Co v SIGED Inc, 2004 SCC 18 at para 34 [Foster

Wheeler Power]; Pritchard v Ontar io (Human Rights Commission), 2004 SCC 31

at para 14 [Pritch ard]; Can ada (Privacy Commissioner) v Blood Tribe Depart ment

of Health, 2008 SCC 44 at pa ra 9 [Bloo d Tr ibe ]; R v Cunningham, 2010 SCC 10 at

paras 26 –27 [Cunni ngham].

2 See Alta, Sa sk r 2.03(1) (commentary); BC, Man, Ont, NS, NL r 3.3 -1, commen-

tary 1; NB ch 5, comment ary 1; CBA Code ch IV, commentary 1.

3 See Maranda v Richer, 2003 SCC 67 at para 37 [Maran da]; R v Joanisse (1995 ),

102 CCC (3d) 35 at 57 [para 64] (Ont CA) [Joanisse], leave to appeal to SCC

refused (1996), 111 CCC (3d) vi (SCC). For a rights-ba sed justif‌ication of

solicitor-client priv ilege and so by extension conf‌id entiality, see Adam Dodek,

“Reconceiving S olicitor-Client Privilege” (2010) 35 Queen’s LJ 493 at 519–20,

522, and 52 3–25.

4 See Lavallee, Rackel & Heint z v Canada (AG), 2002 SCC 61 at paras 35 and 4 9

[Lavallee]; CBA Code ch IV, commentary 3.

5 The importance of autonomy and d ignity in terms of control ling a criminal de-

fence is recogni zed in R v Swain (1991), 63 CCC (3d) 481 at 505– 6 [paras 35–36]

(SCC). The autonomy-ba sed rationale for protecting solic itor-cl ient privilege is

recognize d in General Accident Assurance Co v Chr usz (1999), 180 DLR (4th) 241

at para 92 (Ont CA); College of Physicians of British Columbia v Br itish Columbia

(Information and P rivacy Commissioner), 2002 BCCA 665 at para 30. See also

Alan Str udler, “Belief and Betrayal: Con f‌identiality in Cri minal Defense Prac-

tice” (2000) 69 U Cin L Rev 245.

Conf‌identi ality 159

the client is the subject of a criminal investigation. The “promise of

conf‌identiality” engaged by the pr ivilege is particula rly vital because

the client is facing the state as a “singular antagonist.”6 More specif‌ic-

ally, maintaining client conf‌idences i s especially important in the cr im-

inal context because doing so substantially furthers the client’s ability

to exercise constitutional r ights against the state.7

In promoting effective legal advice, the duty of conf‌identiality not

only benef‌its the individua l client but also serves a broader societal in-

terest. As already noted, a client who is able to rely on the assurance of

conf‌identiality is more likely to receive sound legal counsel. As a result,

he is more likely to obey the law and if charged with a crime is better

able to mount a defence. It is in the public interest that these ends be

encouraged, and the duty of conf‌identiality t hus advances fundamental

system ic goals.

C. THE RULES OF PROFESSIONAL CONDUCT

All Canadian rules of professional conduct strongly assert the lawyer’s

duty of conf‌identiality. The basic rule promulgated by most law societies

states:

The lawyer at all ti mes must hold in strict conf‌idence all inform ation

concerning the bu siness and affairs of a client acq uired in the course

of the professional relat ionship and must not divulge any such i nfor-

mation unle ss:

(a) ex pressly or impliedly authorized by the cl ient;

(b) required by law or a cour t to do so;

(c) requ ired to deliver the inform ation to the S ociety; or

(d) otherwi se permitted or requi red by this rule.8

The breadth of the duty of conf‌identiality imposed by the ethical

rules is discussed in detail below. It is nonetheless worth stres sing that

the Canadian rules do not merely import a description of conf‌idential-

ity that has independently been delineated elsewhere, for instance, by

6 Lavallee, above note 4 at para 23.

7 A largely right s-based justif‌icat ion of defence counsel’s role is provided in

Chapter 1, Section D. See al so Section F, below in this chapter.

8 Alta, Sask r 2.03(1); BC, Man, NS, NL r 3-3.1. Ont r 3-3.1 uses alm ost the same

wording. See al so Que s 3.06; Professional Code, CQLR c C-26, s 60.4; An act

respecting the Barreau du Q uebec, CQLR c B-1, s 131; NB ch 5, rule; C BA Code ch

IV, r 1.