Mar 4, 2015

When I graduate, I want to be a lawyer like Sheldon Blank (who, incidentally, is not a lawyer and has no legal training.) He has represented himself as defendant, petitioner and plaintiff, and has done so in the criminal, civil and appellate courts. His ten year legal saga began when environmental and then criminal charges were filed against him, and failed. Since then, he has been pursuing the federal Crown for malicious prosecution.

Most recently, he represented himself before the Supreme Court of Canada (“SCC”), and won a favourable judgment from the SCC that was unanimous in the result (see Blank v Canada, 2006 SCC 39). He has accumulated more varied experience than most lawyers do in their lifetime. My post last week focused on the difficulty of appearing before the SCC. Mr. Blank did so successfully, without any training, and most likely in spite of offers of pro bono representation.

The appeal did not deal with the substance of his tort suit, but rather his access to documents under s. 23 of the Access to Information Act, RSC 1985, c A-1 [Access Act]. The Crown refused to disclose many of those documents on the basis of litigation privilege. The Crown argued that litigation privilege is simply a type of solicitor-client privilege, and, as such, it is similarly indefinite in duration. The SCC clarified the precise distinction between solicitor-client privilege and litigation privilege, and how both apply to the exemption the government has created in the Access Act.

The first clarification is the nature of litigation privilege. The majority ruled that, though for the purposes of statutory interpretation the words “solicitor-client privilege” can be interpreted as meaning both types of privilege, the two types are in fact legally distinct. They are not, as the concurring minority suggested, two branches of the same tree, and therefore entitled to some measure of equality.

The majority then went on to clarify the practical distinctions between the two types of privilege. They cited three:

  1. “Solicitor-client privilege applies only to confidential communications between the client and his solicitor. Litigation privilege, on the other hand, applies to communications of a non-confidential nature between the solicitor and third parties and even includes material of a non-communicative nature.”
  2. “Solicitor-client privilege exists any time a client seeks legal advice from his solicitor whether or not litigation is involved. Litigation privilege, on the other hand, applies only in the context of litigation itself.”
  3. Most importantly, the two types of privilege serve distinct purposes: solicitor-client privilege is a necessary element in any democracy because it engenders a trust between lawyer and client. Justice Fish wrote “It recognizes that the justice system depends for its vitality on full, free and frank communication between those who need legal advice and those who are best able to provide it.” Litigation privilege is much more mundane. It merely serves to create a “zone of confidentiality,” so as to facilitate the fair and efficient operation of our peculiar adversarial litigation process.
It was because of the final distinction that the Crown’s argument failed. Solicitor-client privilege must be indefinite because only then can the communication be guaranteed to be fully confidential. That confidentiality is an end in itself. Litigation privilege merely aids in the litigation process, and it therefore stands to reason that it comes to an end when the litigation does.

Notably, the SCC adopted a broad reading of “litigation” in this sense. It can encompass future, related proceedings. But the majority made clear that the tort proceedings between the parties were not related enough to merit litigation privilege. Because the original documents stemmed from a criminal prosecution, and the current case is civil litigation they stem from separate “juridical source[s],” and are therefore sufficiently distinct. Further, Justice Fish writes that even if some documents were to be otherwise subject to litigation privilege, they may be disclosed upon a prima facie demonstration of actionable conduct.

I really enjoyed reading this decision. It was interesting, short, and had a mix of history, policy, and law. Plus it was highly ironic. I agreed with Justice Fish when I read:

“Society has entrusted to lawyers the task of advancing their clients’ cases with the skill and expertise available only to those who are trained in the law. They alone can discharge these duties effectively, but only if those who depend on them for counsel may consult with them in confidence.”

But I can’t help but be amused at the thought that he wrote it at the urging of a self-represented litigant.