Solicitor-Client Privilege, Wiretaps, and the BC Government’s Efforts to Control Lawyers
Ever wondered how far the boundaries of solicitor-client privilege extend? Join us in a riveting conversation with Michael Mulligan from Mulligan Defence Lawyers as we explore the critical nuances of wiretaps and lawyer-client communications. Starting with a fascinating case from Saskatchewan, we uncover the story of a lawyer acquitted of obstruction of justice for allegedly tipping off a client about a search warrant. This episode promises an in-depth understanding of the stringent requirements for intercepting private communications in Canada, especially those involving lawyers, and emphasizes the pivotal role of legal provisions designed to protect privileged conversations.
We’ll also dissect the British Columbia NDP government’s contentious efforts to regulate lawyers through the Legal Professions Act, juxtaposed against the long-standing independence of the Law Society of British Columbia.
Finally, you’ll gain insights into a judicial ruling about the enforceability of illegal contracts, with expert commentary from Michael Mulligan on why invoices tied to illegal schemes are not upheld in court. This episode is packed with critical legal insights and serves as a compelling reminder of the importance of adhering to legal and ethical standards in professional dealings.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 a.m. It’s also available on Apple Podcasts or wherever you get your podcasts.
Transcript of show:
Legally Speaking Aug 8, 2024
Adam Stirling [00:00:00] It’s time for a regular segment. Legally Speaking, joined as always by Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Morning, Michael. How are we doing?
Michael T. Mulligan [00:00:09] Hey. Good morning. I’m doing good, always good to be here.
Adam Stirling [00:00:11] So interesting stories right off the top today. Criminal law search and seizure. What’s happening?
Michael T. Mulligan [00:00:17] So this is an interesting case that was just released, or at least a leave application, just decided by the Supreme Court of Canada that just came out today. And it’s an interesting case involving the interception of private communications between a lawyer and a client.
Adam Stirling [00:00:38] hmm.
Michael T. Mulligan [00:00:38] Pursuant to a wiretap. And the case was actually out of Saskatchewan, but the Supreme Court, there was a leave application by the Crown. The crown, the lawyer was acquitted, also on appeal, acquitted. And the Crown applied to appeal to the Supreme Court of Canada. And the decision that just came out refused the Crown’s leave application. But the case was really interesting, and it involves a number of issues involving search warrants and how that works with a lawyer and privilege and how that all fits together. And so the first thing to know is that search warrants in Canada are not routine. It’s unlike getting a search or not a search warrant, an authorization to intercept private communications is not routine. They are treated differently than, for example, the police applying for a search warrant to search a place for evidence. That’s a good thing. We probably don’t want to live in a society where the police are regularly listening to your phone calls. And so in order to get a search warrant, the police or crown would need to satisfy a judge that, first of all, it’s in the best interests of justice that there be an authorization for the interception of phone calls. And then as well, with some exceptions, like, for example, when investigating a criminal organisation or terrorism offences, a judge also has to be satisfied, in addition, that the interception would be in the best interest of the administration of justice. The judge would also have to be satisfied that other investigative procedures have been tried and failed, or other investigative procedures are unlikely to succeed. Or there’s some urgency which would justify, an authorisation to intercept and have the police listen to your phone calls. There are also specific provisions, which prohibit authorization to intercept telephone calls with a lawyer or that are targeting, lawyer’s office or place of residence or other place the lawyer would ordinarily operate. Unless the judge would be satisfied that the lawyer is going to be engaged in criminal activity. And the reason for that should be obvious. But you could just imagine what a corrosive impact that would have on, solicitor client privilege if the police could obtain authorisation and listen to every telephone call made to a lawyer to get legal advice.
Adam Stirling [00:03:04] Yeah.
Michael T. Mulligan [00:03:04] And so that’s not on. And there’s also a specific provision in the Criminal Code that says that where there is an interception of a telephone call with a lawyer, it reveals a privileged conversation. Like, for example, let’s say there’s no authorisation to wiretap a suspect’s phone or the suspect phones a lawyer to get legal advice on some point, that conversation is inadmissible. If the person is agreeing to it, going in. And so there’s some specific provisions intended to prevent all of that. Now, that brings us to this case out of Saskatchewan and what was going on there? And this I should first of all, say is a good example of what a lawyer’s duty is, defence counsel’s duty is and what it is not. And the fact pattern involves the police had a proper judicial authorisation to wiretap a suspect in a case. And there was a phone call made by a person who had been arrested following a search of their property for drugs. And what happened then is that the lawyer who took that phone call phoned another client. And when speaking to that other client, who was the person subject to the authorisation to intercept their telephone calls.
Adam Stirling [00:04:23] hmm.
Michael T. Mulligan [00:04:23] The lawyer, at least in the first part of the conversation, was apparently warning the person that there might be a search of their property.
Adam Stirling [00:04:34] hmm.
Michael T. Mulligan [00:04:34] Now, a few things are interesting about that. First of all, the authorisation specifically prohibited the police from listening to telephone calls to lawyers.
Adam Stirling [00:04:43] yeah.
Michael T. Mulligan [00:04:44] plus their client. The police, there were two police listening to the call and a civilian employee. The police hung up. The civilian employee kept listening.
Adam Stirling [00:04:54] hmm.
Michael T. Mulligan [00:04:54] The authorisation allowed them to record calls to a lawyer. But they could not. They were not. Supposed to listen to them without a judge authorising it.
Adam Stirling [00:05:03] hmm.
Michael T. Mulligan [00:05:03] And what happened then as a result of a civilian breaching the order and continuing to list of the civilian police employee, they applied to a judge to allow them to use this conversation to charge the lawyer with obstruction of justice.
Adam Stirling [00:05:19] Wow.
Michael T. Mulligan [00:05:19] On the basis that the lawyer was obstructing justice by warning somebody that there might be a search warrant obtained to search their property, therefore interfering with a police investigation. The judge who was tasked with doing that authorised a part of the phone call to be released to the crown. And so that’s what they were trying to use to prosecute the lawyer for obstruction of justice. Now, I should pause there to see this. And this is an important thing to bear in mind. A criminal lawyer’s job is not to be your partner in crime.
Adam Stirling [00:05:51] No.
Michael T. Mulligan [00:05:51] Right. A lawyer’s task does not involve doing things like trying to warn off a client when the police are rushing over to, you know, get a search warrant or something. That’s not on, some people, I don’t know that they understand the subtle lead up, nottoo subtle, But the real difference there is a lawyer is not engaged to do that.
Adam Stirling [00:06:10] No.
Michael T. Mulligan [00:06:11] And for example, I must say, I smile when I, you know, I do criminal law for a living.
Adam Stirling [00:06:15] Yeah.
Michael T. Mulligan [00:06:16] Sometimes you get phone calls from people in the, you know, for example, you know, escaped the whatever bank robbery or whatever it might be. And they seem to think calling me up would somehow or somehow expecting that I’m going to get them a fake passport and tell them where to get their car painted, that is not how it works.
Adam Stirling [00:06:32] No… no.
Michael T. Mulligan [00:06:33] You know, a sort of, you know, you know, I’m here to provide legal advice, ensure somebody has a fair trial, but a lawyer’s duty does not extend to doing things like this.
Adam Stirling [00:06:42] no.
Michael T. Mulligan [00:06:42] But nonetheless, there’s this lawyer that goes to trial. And at her trial, the first issue becomes the fairness of the Crown being able to use only part of this conversation. The second part of the conversation is solicitor client privileged, and pursuant to that section I referred to earlier, can’t be used. And it’s not provided. Only the first part is. And so at trial, the first argument made is, well, this isn’t fair, this is only half the conversation. And so when the Crown is alleging, well, this first part of the conversation suggests what the lawyer is doing is warning the person that there might be a police application for a search warrant with respect to their property. The first argument made was well, hold on, this was just like half the story. You need the whole conversation to really get the context of what’s going on. And the argument was, well, that would show that wasn’t what the person was doing, the lawyer was doing. And that argument succeeded at trial. But the judge at trial did not find that the lawyer’s right to be free from unreasonable search and seizure had been breached by the fact that the civilian employee just kept listening to the call, despite the order not to do that exact thing. And so when there was an acquittal, the Crown appealed that to the Saskatchewan Court of Appeal and the Saskatchewan Court of Appeal on a 2 to 1 split, found that both the trial judge was correct in terms of the, you know, unfairness implication only allowing the Crown to proceed with half the phone call, but also found that there had been a breach of the reasonable expectation of privacy because the civilian employee had breached the specific order not to listen to phone calls to lawyers. And so that was a decision from the Court of Appeal. But there was dissent by one of the judges. And so that was the basis upon which the Crown then tried to appeal again to the Supreme Court of Canada. Now, unlike a circumstance where an accused person is appealing and you have a split decision from the Court of Appeal on a criminal case where you’ve got, you know, one of the judges saying, you know, I think this person was innocent or the evidence was improperly admitted or something, where that allows you, in an unusual circumstance, to go straight to the Supreme Court of Canada, whether the Supreme Court of Canada likes it or not. And generally they don’t like it because they want to control what they’re hearing.
Adam Stirling [00:09:08] Yeah.
Michael T. Mulligan [00:09:09] When the Crown wants to appeal, even where there’s a dissent, they need to get permission from the Supreme Court of Canada like everyone else. And then the other thing to bear in mind, and this was argued there is at the Court of Appeal level, is the Crown can appeal on a legal error, not on like factual findings or saying, hey the judge shouldn’t have believed that witness or should have disbelieved this other person, that kind of thing. And so the that’s what went to the Supreme Court of Canada and the decision that came out today, from the Supreme Court of Canada was no Crown you cannot appeal this. And so the two judges from the Saskatchewan Court of Appeal ruled the day and the result is that not only should this was it proper to exclude the crown from using half of the conversation to argue that the lawyer was engaged in the obstruction of justice. It was also a breach of the reasonable expectation of privacy as a result of the failure to comply with the wiretap authorisation that specifically prohibited the police from continuing to listen to phone calls once it became clear the who the person was calling was their lawyer. And that’s exactly what was going on here. And the two police that were listening to it immediately recognised that and hung up. But the civilian employee just kept listening, I think, for 3.5 minutes. And so that sort of whole thing, wound up getting going. So that’s a really interesting case. And that’s a background of, authorisations to obtain wiretaps. How that was dealt with in this case and then some of the special provisions that apply to lawyers so that when you’re calling your lawyer to get legal advice, you don’t have the police department listening in to what you have to say and then going out and acting on that. So that’s the latest from the Supreme Court Canada.
Adam Stirling [00:10:53] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking. We’ll continue right after this.
[00:10:58] COMMERCIAL.
Adam Stirling [00:10:59] Legally Speaking continues on CFAX 1070 with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Up next, Michael, Interim injunctions and how they interact with the province’s effort to control the regulation of lawyers. Set this up for us.
Michael T. Mulligan [00:11:13] So this is the, litigation involving the, British Columbia NDP government’s effort to try to take control over the legal profession by enacting legislation called the legal professions with an ‘s’ on the end of it act, previously known as Bill 21.
Adam Stirling [00:11:33] mm hmm.
Michael T. Mulligan [00:11:33] And the background of that is that, in B.C., as and elsewhere in Canada, we have a law society that regulates the. Legal profession. The origin of the Law Society is an interesting one. It doesn’t actually have its origin in the form of statute in British Columbia. It dates all the way back to prior sort of the beginnings of British Columbia and, way back then, the Queen of England dispatched a fellow by the name of Begbie, an experienced lawyer, became a judge in British Columbia when he showed up, dispatched by the Queen to protect her lands in British Columbia. And when Begbie showed up, became a judge, he also concluded that there should be an organisation and regulation of barristers and solicitors in the province.
Adam Stirling [00:12:21] hmm.
Michael T. Mulligan [00:12:22] And, the very first of those, two was, determined to be, barrister of the court was a fellow by last name of Crease. And interestingly, there’s a law firm in Victoria still, busy going, Crease Harman, the Crease from that is the very first lawyer. And that lawyer in Victoria, was, responsible for establishing what became the Law Society. And that occurred in 1869.
Adam Stirling [00:12:50] hmm.
Michael T. Mulligan [00:12:50] And it was, members of the legal profession came together and eventually became a society and dealt with things like, regulating calls to the bar and providing, you know, legal research and publication of legal decisions. And that is the origin of the Law Society in British Columbia. It’s not a government. It doesn’t have its origin in the government deciding to go and regulate something.
Adam Stirling [00:13:11] intersting.
Michael T. Mulligan [00:13:11] Which was a really important distinction.
Adam Stirling [00:13:13] Yeah.
Michael T. Mulligan [00:13:13] And there is legislation and has been legislation of various forms over the years dealing with things like the society and eventually, you know, it’s the law society, right, it’s not the law corporation or something.
Adam Stirling [00:13:25] Yeah.
Michael T. Mulligan [00:13:26] So there has been legislation surrounding it, but the origin of it is not some kind of a government institution. And that’s really, really important that lawyers be independent of the government in every real sense, both individually and as a collective, because often what lawyers are engaged in is in absolute direct conflict with what the government wants to do.
Adam Stirling [00:13:47] Yes.
Michael T. Mulligan [00:13:47] And one of the reasons we live in a free and democratic society, is that you could be confident that your lawyer is not secretly working for the government or being subject and ordered to do various things for the government that might be contrary to your interests. And so the, provincial government has decided that they really don’t like that. And they have passed this piece of legislation. It was Bill 21, and they were the Legal Profession Act, which is the sort of the modern, statutory framework for the Law Society, which again, did not start this, government entity. And I should say that the the Legal Profession Act, the one that we currently currently have, which involves the Law Society, has as the object of the Law Society, its key objective is to preserve and protect the legal rights and freedoms of all persons. And then it says there’s an objective to ensure the independence, integrity, honour, and competence of lawyers. So that’s why it would regulate lawyers, make sure that they’re competent, have proper educational background arent’ engaged in unethical behaviour, this kind of thing. But that’s their goal. That’s what their object of The Law Society is.
Adam Stirling [00:14:58] Yes.
Michael T. Mulligan [00:14:58] The thing which the provincial government has passed its Legal Professions with an s on the end of an Act. Would eliminate the Law Society and instead replace it with, a government entity, which would both permit the government more control over who’s governing that they want to be able to appoint more people to the board to exercise control of it in that fashion. But they also wish to if this is ever brought into force, and they also want to and this legislation would delete the obligation of the Law Society to, for example, preserve and protect the legal rights and freedoms of all persons and instead, replace that with various things which are, objectives of the current NDP government. And so, for example, having delete having if they delete the uphold to protect the rights and freedoms of all of all persons that would be replaced with things including, an object of the Law Society being to, enact the UN declaration on the Rights of Indigenous People. That’s a government priority.
Adam Stirling [00:16:00] Yes.
Michael T. Mulligan [00:16:01] And so, you know, many people might think that’s a fine priority. But that may not be everyone’s priority and may not be the priority of somebody who’s, for example, having their land expropriated as part of some treaty process or is engaged in some negotiation over something maybe completely contrary to their interests. And so that is just completely shortsighted and poorly thought out. It’s a terrible piece of legislation. And then the other thing about that is if it’s permitted to come into force, even if you think the idea of, no longer upholding the rights and freedoms of all persons is an appropriate thing. And even if you think the objective of doing things like implementing the UN declaration on the Rights of Indigenous People should instead be the object of the Law Society, you may really, really not like what the next government chooses to do with that, because if that’s not their objective, that might get crossed out and replaced with some other thing, that you might just hate. And then also you would have a circumstance where the lawyers of the province are now all obliged to go off in some other, direction that the government of whatever government of the day in the future thinks would be a wise idea. It is just a terrible piece of legislation. And so it’s being challenged in court. And there was an application for an interim injunction to try to prevent this piece of legislation from coming into force. And there’s a very interesting decision on that point. And there’s a well-known test for when you can get an injunction. Like the first part of it is you have to determine there’s a serious, issue to be tried.
Adam Stirling [00:17:43] Yes.
Michael T. Mulligan [00:17:43] Judge hearing this concluded yes, absolutely, there’s no problem concluding that there’s a very serious issue to be tried. But the other parts of the test that include an assessment of, whether there would be, a sort of harm that couldn’t be remedied in the future, irreparable harm, and then an assessment of the balance of convenience and what’s happened with this piece of legislation. The government passed it in its sort of dying days of the last session, and they did so with closure. They only debated a very few sections of it. Most of it was passed without any debate at all.
Adam Stirling [00:18:18] Yeah.
Michael T. Mulligan [00:18:18] The provincial government used closure to force it through without debate.
Adam Stirling [00:18:22] Yeah.
Michael T. Mulligan [00:18:23] And the, application for the interim injunction was to just stop this thing from being implemented while this thing is litigated. The provincial government argued that well, well, we’re not actually going to implement this thing yet. It’s going to take 18 to 24 months. And instead, what we’re doing now, is there only a very few, “transitional provisions”, which would do things like create an Indigenous council, to comprised of 5 or 6 persons to engage in transitional things, such as determining who the CEO of the regulator might be and developing rules, to do things like implement that UN Declaration of the Rights of Indigenous People, and things of that sort. And so the judge hearing this found that the application for the interim injunction was premature, that there wouldn’t be irreparable harm by those who just for interim steps, but also made clear, that the Law Society was free to reapply if there’s a material change in circumstances, such as if it becomes clear that the Lieutenant Governor and Council might try to bring in substantive provisions, in the near future. And so this is just the start of that, litigation process. But I must say, once again, reading this thing, it’s clear just how troubling this piece of legislation is and how really short sighted it is. The other thing, of course, it may have an impact on all of this, is the upcoming provincial election, both the BC Conservative Party and the B.C. United Party have made clear that, if they form government, this piece of legislation will be repealed. And so that of course, would be the clearest remedy for all of this. But if that fails to occur, we will continue to have ongoing litigation probably all the way to the Supreme Court of Canada. Because of this thing comes into effect, it would, just severely undermin people’s legal rights of the Province of British Columbia and have just an enormous impact on how our society operates. You know, removing the idea that, the Law Society should ensure the legal rights and freedoms of all persons and instead replacing it with government priorities is just terribly shortsighted.
Adam Stirling [00:20:36] Yeah.
Michael T. Mulligan [00:20:36] So that’s the latest on that piece of legislation.
Adam Stirling [00:20:38] All right. We’ve got just under two minutes remaining.
Michael T. Mulligan [00:20:41] Yeah. So I think the final case just, I mentioned in those in that time period is a good cautionary tale for people. It’s a B.C. provincial court decision, and it was a claim brought by a company that supplies lumber to a company that builds fences and does landscaping. And so there is nothing unusual about that. But it was a contractual claim claiming that the lumber company wasn’t paid on some invoices for lumber. So that was the basics of it. But what became clear when the case got to court is that unlike most businesses, the lumber company was operating on a basis to take cash payments to avoid paying PST and GST. And so over the period of time, they would issue various invoices to people but then keep separate, even handwritten accounting system where they were when they were provided, cash payments, when they would receive something like $60,000 plus dollars from this company they were suing. They would reduce the amount owed and not pay the PST and GST on it. It was paid cash and no PST and GST. And then on rare occasions where there was a payment made by cheque, they would then prepare a whole different invoice, claiming that the products were for exactly that amount and nothing was due, and they would remit PST and GST only on those things. And so first of all, the judge found that the, the operating person for this company that was doing that was just not reliable and just didn’t accept what they were saying about this money being due pursuant to these invoices, given how they operated. But the other, big important takeaway there that people should know about is that the judge said that even if they were satisfied that these invoices were accurate, it is contrary to public policy to be able to go to court and get a judgement where you’re engaged in an illegal contract to, for example, avoid paying PST and GST. Those are not enforceable. And so the judge made clear that even if they established these invoices were accurate, they could not get a judgement for the money due because they were engaged in an illegal scheme to avoid paying tax. And so the takeaway there is, don’t do that. If you do, you’ll be unable to go to court because you can’t go to court to enforce an illegal contract, just like you couldn’t go to court to enforce a contract to import a bunch of fentanyl from China. That’s illegal. You can’t go to court to enforce it. And so the same applies if you do something like this. So just don’t do it.
Adam Stirling [00:23:09] Michael Mulligan for Mulligan Defence Lawyers, Legally Speaking, during the second half of our second hour every Thursday. Michael, pleasure as always. Thank you.
Michael T. Mulligan [00:23:16] Thank you so much. Have a great day.
Adam Stirling [00:23:18] All right. Quick break. Back in a moment.
Automatically Transcribed on August 9, 2024 – MULLIGAN DEFENCE LAWYERS