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Protecting Privilege in Docket Court

  • February 2, 2016
  • Clayton Rice, K.C.

The docket court in Canada functions as the initial case intake court that deals with a range of things including bail applications, the taking of elections and pleas, adjournment applications, disclosure issues, the initiation of state funded counsel applications, the scheduling of trial dates and the conduct of some sentence hearings. It is frequently conjested and may sometimes appear chaotic. It can be an environment that stretches the patience of judges, Crown Attorneys and defence lawyers. And it frustrates defendants, particularly those in custody, who are waiting to have their cases called. I have often thought that the docket court is as much an art form as it is a judicial proceeding.

I will discuss four things in the conduct of docket court practice in Alberta that may be of interest to junior lawyers. These four things engage the obligation of all lawyers to protect the confidentiality of information they acquire from their clients in the course of the professional relationship. So let’s start there. What is the duty of the lawyer to protect the client’s privilege? In Lavallee, Rackel & Heintz v Canada, [2002] 3 SCR 209 Justice Louise Arbour, writing for a 6-3 majority, put it this way at paras. 23-4:

“In the context of a criminal investigation, the privilege acquires an additional dimension. The individual privilege holder is facing the state as a ‘singular antagonist’ and for that reason requires an arsenal of constitutionally guaranteed rights. It is particularly when a person is the target of a criminal investigation that the need for the full protection of the privilege is activated. It is then not an abstract proposition but a live issue of ensuring that the privilege delivers on the promise of confidentiality that it holds.

It is crucial to emphasize here that all information protected by solicitor-client privilege is out of reach for the state. It cannot be forcibly discovered or disclosed and it is inadmissible in court. It is the privilege of the client and the lawyer acts as a gatekeeper, ethically bound to protect the privileged information that belongs to his or her client. Therefore, any privileged information acquired by the state without the consent of the privilege holder is information that the state is not entitled to as a rule of fundamental justice.” [Emphasis mine]

Not only is the privilege a rule of fundamental justice but, as Justice Arbour went on to state, at para. 36, “…solicitor-client privilege must remain as close to absolute as possible if it is to retain relevance.” This core principle was recently affirmed in Canada v Federation of Law Societies of Canada, [2015] 1 SCR 401 where, at para. 84, Justice Thomas Cromwell held that, “…the state cannot impose duties on lawyers that undermine their duty of commitment to their clients’ causes.”

With the privilege in hand – a near absolute rule of fundamental justice under s. 7 of the Charter of Rights – let’s turn to those four things I want to discuss in the context of docket court practice.

1. The Retainer

Historically in Alberta, when a lawyer appeared for a prospective client who had not yet retained him or her, the lawyer would advise the court that (s)he was expecting to be retained and would request an adjournment. The adjournment would usually be accompanied by an application that plea or election for mode of trial be reserved to the next date. Nothing else would be said.

In the current practice, it is rare for lawyers to request adjournments for this reason or apply to reserve plea or election. The defence lawyer will now often say: “I just want to put it over.” And sometimes that is followed with disclosure of the status of the client’s retainer: “I’m waiting to be appointed by Legal Aid.”

In the absence of an express waiver, this practice is a breach of solicitor-client privilege. Clients’ retainers are as much protected by the privilege as the words they speak and the documents they make. In R v Littlechild, 1979 ABCA 321, 51 CCC (3d) 406 the Alberta Court of Appeal had occasion to consider a subpoena issued by a Wetaskiwin Crown Attorney to a legal aid worker to testify about admissions purportedly made to him by the defendant during the legal aid application process. Relying on principles of agency, Justice Herbert Laycraft held, at paras. 16-20, that communications between a defendant and a legal aid officer for the purpose of obtaining counsel are protected by the privilege – a privilege that is, “…as fundamental as the right to counsel itself since the right can exist only imperfectly without the privilege.”

My advice, then, may be put in one sentence. Whether you are waiting for a legal aid certificate or a transfer from your client’s bank account – the retainer is privileged and you are the gatekeeper.

2. In-Court Interviews

I do not know when or why this practice developed. But I have seen an escalation of in-court interviewing between lawyers and their clients that sometimes happens like this.

Defence counsel is making submissions on the circumstances of the alleged offence that are relevant to the secondary or tertiary grounds on a bail application. The presiding judge asks a question. The lawyer walks to the dock to discuss it with the defendant. In the presence of the sheriff, and loud enough for the public in the front row of the gallery to hear, the defendant tells his lawyer what “he did” and what “he didn’t” do. The day is overdue when a diligent investigator, sitting in the gallery to observe the bail proceedings, obtains a copy of the recording made by the sensitive courtroom equipment.

So my advice, again, may be said simply. Interview your clients before docket court starts. Carrying on a privileged conversation with a client in a public courtroom is sloppy practice and there is no excuse for it. If something unexpected arises, adjourn and see your client in the holding cells or interview room adjacent to the courtroom. You do not want to be on the receiving end of the sheriff’s eavesdropping, or that investigator’s diligence, irrespective of whether the conversation would be admissible in court.

3. The Conflict Application

Let’s take a hypothetical. You are counsel on a case that is scheduled for trial and an unforeseen conflict of interest emerges. What steps do you take? What application do you bring before the court?

You should advise the client and the assigned Crown Attorney as soon as reasonably possible. All you have to say to Crown counsel is that you have a conflict and must cease to act. Make arrangements to have the case brought forward in docket court. So far so good. But there appears to be some uncertainty about the nature of the application. I have seen some lawyers bring an application for leave to be removed as counsel of record. That is the wrong application. The correct application is to advise the court that you have a conflict and must cease to act. You do not have to obtain the court’s permission. You have an ethical obligation to your client and a duty to the integrity of the justice system to remove yourself as counsel. That is not an application for leave to withdraw. (See: The Law Society of Alberta, Code of Conduct, s. 2.03ff; and, R v Caines, 2011 ABQB 82 per Greckol J., at paras. 295, 349, 356-60)

The response of the court ought to be to acknowledge your duty to cease to act and then give consideration to whether this may necessitate an adjournment of the trial. That will, of course, depend upon other factors such as whether new counsel has been retained and his or her availability. You should assist your client and the court to facilitate the transition. But some judges misapprehend this obligation and begin asking invasive questions about the conflict and the circumstances. And some can be persistent. How do you respond? The answer is: you cannot answer those questions without breaching the privilege. Stand your ground. The Supreme Court of Canada stands with you. Here is what Justice Louis LeBel said in Lavallee, dissenting in part, at para. 63: “For a long time, I have thought that lawyers belong to a vibrant, active, perhaps at times aggressive profession. I retain the hope that, when faced with a challenge to the interests of a client, past or present, they will rise to the occasion and do what needs to be done in a timely, diligent and competent manner.”

4. The Media

The day will come when some junior lawyers will leave docket court and walk into their first presser on the sidewalk – a circle of faces, microphones, cameras and a barrage of questions about your client’s “side of the story”. I have always enjoyed the scrum and I have a deep, deep respect for journalists. The free press is among my most cherished of rights. This is how I handle it.

I rarely have enough information at the docket court stage to say anything about the case. I am usually waiting for disclosure and the risk of blundering into something, including a breach of confidentiality, is high. My general practice is therefore not to engage with the media at this stage of a case. And I generally do not discuss cases with the media prior to trial. My experience over the years has been that the volleys of questions will subside when it becomes clear that I have nothing to say: “Ladies and gentlemen, not today. Maybe down the road. But not today.” That’s a quote.

I do not, however, hide behind the sub judice rule and I have never asserted it before the media. I leave that for the politicians. I base my decision on this question: Is it in the best interests of my client to engage with the media? But I should say something about the sub judice rule.

In R v Keegstra, [1992] AJ No 295 (Alta QB) Justice Arthur Lutz described the rule, at p. 3, as designed to, “…prevent publications or public statements which may take a stand about a trial presently being heard or take a stand on one which is about to begin – thereby affecting the climate of fairness and impartiality or indirectly influencing court officials or public opinion one way or the other.” And in R v Edmonton Sun, 2000 ABQB 283 Justice Melvyn Binder, at para. 17, said that the sub judice rule serves the purpose of avoiding prejudice to fair trial interests and the impartiality of the judicial system. It seems to me that it would be the rare public comment by a defence lawyer that could rise to that level. And, in some instances, public statements by defence counsel can act as a counter-weight to adverse publicity in highly charged and notorious cases. There again, the question remains: Is it in the best interests of my client to engage with the media?

There have been only two occasions where I participated in formal press conferences with my clients. Both involved public interest litigation; one was quasi-criminal and the other was civil. The first was done in connection with the dispute that arose in the late 1980s over the building of the Old Man River Dam in southern Alberta. The other involved the disposition of the dominion land grants following the demolition of the Calgary General Hospital. In both cases, my clients conducted press conferences, after legal proceedings were initiated, for the purpose of educating the public about their causes. And they were very successful. The ensuing media coverage was certainly beneficial in raising public consciousness. (See: Kostuch v W.A. Stephenson Construction (Western) Ltd (1990), 57 CCC (3d) 168 (Alta Prov Ct); and, Ratepayers of Calgary v Canada, 2000 ABQB 43, 76 Alta LR (3d) 111)

I will leave you with a story.

Now that we have the new Calgary Courts Centre, defence lawyers will sometimes reminisce about the old Provincial Court Building and the days “back in 101”. It was a small courtroom for a docket court. I remember a Monday morning when it seemed that every defence lawyer in town was there. And it was a rambunctious crowd. No one noticed when Judge Gary Cioni entered. Then, one shoulder tap followed another, and everyone took their seats in quiet embarrassment. After a pin dropped on the carpet by the door, Judge Cioni slowly looked over the courtroom and said: “What we do here is important. Madam Clerk, please call the docket.”

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