Wednesday, July 23, 2008

Supreme Court of Canada decision on solicitor-client privilege may impact Basi-Virk case on same issue

A precedent-setting decision on solicitor-client privilege by the Supreme Court of Canada last week may have a major impact on the BC Legislature Raid case, where similar issues are being debated.

In a unanimous decision the Supreme Court of Canada dismissed an appeal by the federal privacy commissioner to gain access to documents where solicitor-client privilege was claimed.

In the BC Legislature Raid case the BC Liberal government has claimed solicitor-client privilege over about 90 documents related to the $1 billion privatization of BC Rail - documents which lawyers for three ex-government aides facing corruption charges want in order to defend their clients.

Last week an agreement was reached between BC government lawyer George Copley and lawyers for David Basi, Bob Virk and Aneal Basi that would give the defence access to the documents without waiving solicitor-client privilege.

BC Supreme Court Justice Elizabeth Bennett is to make a ruling on Friday July 25 at 9 a.m. on an application by media lawyers to not impose a publication ban on possible reporting about the documents if they are brought forward in court as part of the defence.

In its decision, the Supreme Court of Canada said: "Solicitor‑client privilege is fundamental to the proper functioning of our legal system. The complex of rules and procedures is such that, realistically speaking, it cannot be navigated without a lawyer’s expert advice.":

"However, experience shows that people who have a legal problem will often not make a clean breast of the facts to a lawyer without an assurance of confidentiality 'as close to absolute as possible'. Without that assurance, access to justice and the quality of justice in this country would be severely compromised. It is in the public interest that the free flow of legal advice be encouraged," the court decision reads.

Copley in fact cited the case when appearing last week before Justice Bennett.

But the decision may also open the door for exceptions to solicitor-client privilege.

The Supreme Court of Canada also said: "The Commissioner has not made out a case that routine access to solicitor client confidences is necessary to achieve the ends sought by PIPEDA. There are other less intrusive remedies."

"Firstly, she may, at any point in her investigation, refer a question of solicitor‑client privilege to the Federal Court under s. 18.3(1) of the Federal Courts Act. Secondly, within the framework of PIPEDA itself, the Commissioner has the right to report an impasse over privilege in her s. 13 report and, with the agreement of the complainant, bring an application to the Federal Court for relief under s. 15."

"The court is empowered, if it thinks it necessary, to review the contested material and determine whether the solicitor‑client privilege has been properly claimed. This procedure permits verification while preserving the privilege as much as possible," the court said.


Anonymous said...


This case is moot as the defence and government have reached an agreement over documents regarding solicitor client privilege.

I wonder if the government may wish to break this deal as they have with other deals.

North Van's Grumps said...

Something just doesn't add up here.

If former cabinet MLAs like Graham Bruce can't use insider information to earn a living that only he and the few other most powerful people in British Columbia knows about ...... for two long years, why oh why are 90 cabinet documents from the sale of BC Rail to CN Rail being dragged into the Basi/Virk trial? Why is there a double standard of time being declared to protect the documents? What is the typical time limit, and if you tell me its for more than two years then someone better start rewriting the Conflict of Interest Act when it comes to former MLAs using their acquired knowledge to benefit them, and them alone.

I thought that this trial was supposed to be about the rail deal that went sour, in other words, the "Consolation prize" of Roberts Bank.

New Highways Minister Kevin Falcon had to tell the BC Rail directors that the spur line was off the tracks because the RCMP were investigating a leak from within their own government/staff.

Anonymous said...

The entire Basigate Scandal has evolved into a massive political conspiracy involving the government, the courts and mainstream media.

On 23/Feb./1933 an arson attack on the German Parliament (Reichstag) created an opportune "situation" for Adolf Hitler to legally subvert the constitution of Germany and make himself a dictator.

By 23/Mar./33 a butt-kissing German parliament passed Hitler's Enabling Act and created a dictatorship of one man.

British Columbia now effectively has one-man-rule.


DPL said...

Some Supreme Court decisions seem one sided but I seem to recall an earlier decision by them that allowed Cabinet Documents to be used in court. I guess it depends how involved they are in the case.
The special Council guy seems to be spending an awful lot of time trying to stall things. Wonder if he really is representing the public or the government. The accused continue, like all of us, wait.If the trial stalls who benefits? Keep the reports coming Bill and thanks for your work.

kootcoot said...

It is obvious to me that the whole concept of "privilege" is very susceptable to abuse. The word "privilege" itself should trigger alarms about the possibility of this abuse. Perhaps we should go back to the days of royal perogative, which is an extreme example of "privilege."

Very little about the actions of government should really be privileged or SECRET, since government is supposedly acting in OUR interests and in a sense is just ourselves acting through elected representatives of OURSELVES. A government that is acting in the best interests of those it represents should have little (OR NO) reason to not want to divulge its actions.

The lengths to which the Campbell government goes to restrict transparency and openess only makes this observer suspicious of their motives and actions, so go ahead and call me a conspiracy theorist. I guess I do believe there is an ongoing conspiracy to separate the citizens of BC from what used to be their shared common assets.

Anonymous said...

kootcoot it is obvious to me you don't understand the concepts discussed here.
The downside of democracy is that everyone is entitled to an opinion - even those who don't have a clue but they think they do.

Privilege is a substantive right each and everyone of us has to have your communications with your lawyer kept confidential. It is not a 'prerogative' of the Crown, it has nothing to do with the BC government, and it is not some insidious creation of Mr. Campbell. No one is required to divulge what they told their lawyer in the context of seeking legal advice, government or individual, period.

The rest of your comments are just dumb and undeserving of a response. Too bad being stupid isn't a crime; I'd love to hear what you tell your lawyer.