Confidentiality

• Author: Michel Proulx/David Layton
• Pages: 170-212

CHAPTER

4

CONFIDENTIALITY

A.

INTRODUCTION

The

lawyer's duty

to

keep confidential

all

information received

as a

result

of

representing

a

client

is a

linchpin

of the

professional relation-

ship.

The

scope

of

this

duty

is

exceptionally broad, demanding that

counsel take great care

in

handling

all

information pertaining

to or

affecting

a

client.

At the

same time, there

are

exceptions

to the

duty

of

confidentiality

that permit,

and

sometimes even demand, disclosure

of

such information

by the

lawyer. Determining

the

instances where

exceptions should apply raises some

of the

most controversial

and

daunting ethical problems

facing

the

criminal

bar

today.

This chapter examines

the

lawyer's duty

of

confidentiality with

an

eye

to

some

of the

problems

and

concerns that

can

arise

in a

criminal

practice.

Possible justifications

for

breaching confidentiality

are

dis-

cussed

in

other chapters, including chapter

5

(Possible Confidentiality

Exceptions),

chapter

7

(Client

Perjury),

and

chapter

9

(Incriminating

Physical

Evidence).

B.

RATIONALE

The

standard

justification

for

imposing

a

duty

of

confidentiality

upon

lawyers

is

that

the

client

who is

assured

of

complete secrecy

is

more

likely

to

reveal

to his or her

counsel

all

information pertaining

to the

170

a

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

The

client's legal rights

are

furthered,

as is the

truth-finding function

of

the

adversarial

system.3

Additionally,

the

obligation

to

maintain

con-

fidentiality fosters

the

autonomy

and

dignity

of the

client

by

protecting

his or her

privacy.4

Finally,

the

duty

of

confidentiality

is

closely

con-

nected

to the

overarching duty

of

loyalty owed

by a

lawyer

to the

client.

The

obligation

to be

loyal would

be

compromised

if a

lawyer

could

use

information

so as to

cause adverse impact

to the

client.

A

complete

bar on the

unauthorized

use of

confidential information

by

counsel, even where

no

adverse impact

is

possible, accordingly serves

a

prophylactic function that helps

to

ensure undivided loyalty.

In

promoting

effective

legal advice,

the

duty

of

confidentiality

not

only benefits

the

individual client

but

also serves

a

broader societal

interest.

As

already noted,

a

client

who is

able

to

rely upon

the

assur-

ance

of

confidentiality

is

more likely

to

receive sound legal counsel.

As

a

result,

he or she 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

both

ends

be

encouraged,

and the

duty

of

confidentiality

thus

advances

fundamental

systemic goals.

C. THE

RULES

OF

PROFESSIONAL

CONDUCT

All

Canadian rules

of

professional conduct strongly assert

the

lawyer's

duty

of

confidentiality.

The CBA

Code's applicable rule states:

1

See,

for

example,

R. v.

McClure

(2001),

151

C.C.C.

(3d)

321 at

331-32

(S.C.C.)

[McClure];

and

Wilder

v.

Ontario

(Securities

Commission) (2001),

197

D.L.R.

(4th)

193 at

208-09 (Ont.

C.A.).

2 CBA

Code

ch. IV,

comm.

1.

3

See,

for

example,

R. v.

Joanisse

(1995),

102

C.C.C.

(3d)

35 at 57

(Ont.

C.A.)

[/oanisse],

leave

to

appeal

to

S.C.C.

refused

(1997),

111

C.C.C.

(3d)

vi

(S.C.C.).

4 The

importance

of

autonomy

and

dignity

in the

context

of the

right

to

counsel

of

choice

has

been recognized

in R. v.

McCallen

(1999),

131

C.C.C.

(3d)

518

(Ont. C.A.). More generally,

see

also

the

discussion

in R. v.

Swain

(1991),

63

C.C.C.

(3d)

481 at

505-06

(S.C.C.).

Privacy arguments have been given consti-

tutional import

in the

context

of

confidential communications between client

and

counsellor/psychiatrist

in R. v.

O'Connor

(1995),

103

C.C.C.

(3d)

1

(S.C.C.);

and R. v.

Mills

(1999),

139

C.C.C.

(3d)

321

(S.C.C).

See

also

M.(A.)

v.

Ryan

(1997),

143

D.L.R.

(4th)

1

(S.C.C.).

The

same reasoning likely pertains

to

client-lawyer communications.

See R. v.

Robillard

(2000),

151

C.C.C.

(3d)

296

at

307 & 309

(Que.

C.A.)

[Robillard}.

Confidentiality

171

172

ETHICS

AND

CANADIAN

CRIMINAL

LAW

The

lawyer

has a

duty

to

hold

in

strict confidence

all

information

concerning

the

business

and

affairs

of the

client acquired

in the

course

of the

professional relationship,

and

should

not

divulge

such

information

unless

disclosure

is

expressly

or

impliedly authorized

by

the

client, required

by law or

otherwise

permitted

or

required

by

this

Code.5

The

breadth

of the

duty

of

confidentiality imposed

by the

ethical rules

will

be

discussed

in

detail below.

It is

worth stressing

at

this point,

however, that

the

Canadian rules

do not

merely import

a

definition

of

confidentiality

that

has

independently been delineated elsewhere,

for

instance,

by the

common

law or

equity. Rather,

the

rules typically pur-

port

to

provide lawyers with

a

free-standing, self-contained definition

of

confidentiality.

D.

COMPARISON WITH

LEGAL-

PROFESSIONAL

PRIVILEGE

The

similarities

and

differences

between

the

ethical rule

of

confiden-

tiality

and

legal-professional privilege

are

important,

and are at

least

ostensibly recognized

in our

rules

of

professional

conduct.6

Legal-pro-

fessional

privilege

is a

class privilege that attaches

to

certain confiden-

tial

communications that either pass between lawyer

and

client

as

part

of

the

professional relationship

or

pass between

the

lawyer

or

client

and

third parties

for the

dominant purpose

of

litigation.7

The

concept

of

confidentiality

is

accordingly central

to the

privilege.

CBA

Code

ch. IV,

Rule.

See

also

B.C.

ch. 5, r. 1;

Alta.

ch. 7,

Statement

of

Principle;

Sask.

ch. IV,

Rule;

N.S.

ch. 5,

Rule;

Ont.

r.

2.03(1); Man.

ch. 4,

Rule;

N.B.

Part

C, r. 5;

Que.

s.

3.06;

and

Yukon

Part

1, r. 3.

See,

for

example,

CBA

Code

ch. IV,

comm.

2;

Alta.

ch. 8,

comm.

G.3;

N.S.

ch. 5,

comm.

5.1; Ont.

r.

2.03(1)

(commentary);

Man.

ch. IV,

comm.

2;

Sask.

ch. IV,

comm.

2. At

common

law,

the

leading

case

establishing

the

distinction

is

Descoteaux

v.

Mierzwinsfei

(1982),

70

C.C.C.

(2d)

385

(S.C.C.)

[Descdteaux].

See

also

the

earlier

case

of

Slavutych

v.

Baker

(1975),

55

D.L.R.

(3d)

224

(S.C.C.)

[Slavutych],

where

the

court

draws

the

same

sort

of

distinction

between

confi-

dentiality

and

privilege.

More

recently,

similar

sentiments

are

found

in

Stevens

v.

Canada

(Prime

Minister)

(1998),

161

D.L.R.

(4th)

85 at

94-95

(F.C.A.)

[Stevens];

and

Laval

lee

v.

Canada

(A.G.)

(1998),

126

C.C.C.

(3d)

129 at

147-148

(Alta.

Q.B.),

affd

(2000),

143

C.C.C.

(3d)

187

(Alta.

C.A.)

[Lavallee

(C.A.)].

The

term

"legal-professional

privilege"

is

used

here

to

encompass

both

client-

lawyer

privilege

and

litigation

privilege,

as is

done

in C.

Tapper,

Cross

and

Tapper

on

Evidence,

9th ed.

(London:

Butterworths,

1999)

at 438

(where

a

more

detailed

and

precise

definition

of the

term

is

provided).

For a

comprehensive

5

6

7