Disclosing documents to police does not necessarily entail a waiver of privilege, holds Quebec Appeal Court

A voluntary disclosure of a report protected by privilege to assist police in a criminal investigation does not quash the privileges attached to the document held the Quebec Court of Appeal in overturning a lower court decision, the latest indication that case law surrounding privilege continues to evolve, according to a legal expert.

In a decision that reviews and revisits Quebec case law surrounding privilege, the Quebec Appeal Court held that it would be contrary to public policy for the disclosure of privileged documents in criminal proceedings to “somehow” have the effect removing privileges attached to those documents. The waiver of lawyer-client privilege must be clear and unequivocal, added the Appeal Court in Centre universitaire de santé McGill c. Lemay, 2022 QCCA 1394.

Disclosure to a third party information protected by solicitor-client privilege in principle entails waiver of the privilege but the Quebec Court of Appeal emphasizes that context must be considered, which must take into account all the circumstances in the case, noted Montreal litigator with Lavery de Billy LLP, who recently published an article entitled “Professional secrecy and testimonial immunity” for the legal encyclopedia JurisClasseur Québec.

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Failure to protect solicitor-client privilege leads to acquittal of alleged Mafiosi

Two alleged Montreal Mafia leaders were acquitted of gangsterism and drug trafficking charges after Quebec Superior Court excluded wiretap evidence gathered by a joint police task force because they failed to put in place sufficient measures to prevent the interception of conversations between lawyers and clients.

In a ruling that will almost “certainly” be used by Quebec police forces as a wiretap procedural guideline, Quebec Superior Court Justice Éric Downs provides guidance on electronic surveillance, castigates police for failing to do enough to protect solicitor-client privilege, and warns that it would be imprudent to view his ruling as an inducement to consider law firm as safe havens to conspire and plan crimes, according to criminal lawyers.

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Total amount of legal fees not necessarily covered by solicitor-client privilege rules Quebec appeal court

The total amount of professional billings paid to lawyers working on a mandate for public bodies is not necessarily automatically protected by solicitor-client privilege ruled the Quebec Court of Appeal.

In what is described as a precedent-setting ruling, the Quebec appeal court decision provides much-needed guidance and strikes a delicate balance between professional secrecy and public access to documents, according to legal experts.

“The importance of this lies with the distinction the Quebec appeal court makes between professional secrecy and public access to documents regarding legal fees paid by public bodies to lawyers,” said Pierre Trudel, a former director of Université de Montréal’s Public Law Research Centre. “The decision provides helpful guidance over what should remain protected by professional secrecy and what should be accessible to ensure public access to documents.”

But Bernard Pageau, who successfully plead the case, is under no illusions. Even if a leave to appeal to the Supreme Court of Canada is not filed or if the decision is not overturned, Pageau expects the ruling to upend longstanding practices by Quebec public bodies and the provincial Access to Information Commission gradually and begrudgingly.

“If it is a final decision, it will take some time before public bodies react and implement the changes,” said Pageau, the senior director of legal affairs at Québecor Média inc. “There may be public bodies that erroneously interpret the ruling or who will refuse (to grant access to documents) and we will end up having to bring the matter before the Quebec Access to Information Commission. But having a hearing before the Commission takes up to a year. That is a denial of democracy which prevents a citizen from exercising his democratic rights.”

In a unanimous decision, the Quebec appeal court held that legal billings are prime facie protected by professional secrecy because it generally contains a description of accomplished tasks, services rendered and often advice given but the total amount of legal fees paid to a lawyer working on a mandate for public bodies, such as municipalities or school commissions, are not automatically covered by solicitor-client privilege.

In a bid to reconcile the fundamental importance of privilege attached to the solicitor-client relationship with the principle of public access to documents, Trudel points out that Quebec appeal court Justice Paul Vézina introduced a two-step test. The first part of the test involves determining the “scope of the secrecy, that is whether the information is covered by solicitor-client privilege,” said Justice Vézina in a 19-page ruling in Kalogerakis c. Commission scolaire des Patriotes, 2017 QCCA 1253. Justices Robert Mainville and Denis Jacques (ad hoc) concurred with the August 22nd decision.

If it is, then the second part of the test comes into play: “whether or not this is one of the rare cases where it is justified to dismiss and allow the disclosure of information that is otherwise inaccessible,” added Justice Vézina in a decision that overturned the judicial review by Quebec Superior Court Justice Suzanne Courchesne and restored a decision by Court of Quebec Justice Diane Quenneville in Kalogerakis c. Commission scolaire des Patriotes, 2014 QCCQ 4167.

“With this decision, citizens and taxpayers will have more access to the total amount of legal fees disbursed by public bodies,” said Pageau. “There will be exceptions. It will always depend on whether disclosing the total amount will disclose confidential information. But now the burden of proof rests with public bodies to prove that.”

The case dates back to 2010 when a journalist working for the tabloid Journal de Montréal sought to find out the amount that a Montreal suburb paid lawyers in a suit launched by a citizen. The newspaper also wanted to know how much four Quebec school commissions paid in legal fees in a class action suit that was filed against them. In both cases the Quebec Access to Information Commission refused to provide the information, holding that the amount of legal billings is information protected by solicitor-client privilege as per section 9 of the Canadian Charter of Rights and Freedoms. The Commission relied, as it has for more than a decade, on the decision Commission des services juridiques c. Gagnier, [2004] CAl 568 – a ruling that held that legal billings are automatically protected by professional secrecy. “Since 2004, we could obtain nothing,” said Pageau. “It was systematic. As soon as we made a request for an access to information document asking how much in legal fees was spent in a case, they would simply respond we cannot because it was covered by solicitor-client privilege.”

The City of Terrebonne, a Montreal bedroom community, and the four school commissions argued that disclosing legal billings would reveal the financial means it has to defend itself and could compromise its ability to reach an out-of-court settlements.

Justice Vézina dismissed the arguments as speculative and unconvincing. He said that disclosing the total amount of legal billings does not infringe solicitor-client privilege in these cases because it does not reveal the services or advice provided by lawyers.

Just as importantly, Justice Vézina held that the objective of the province’s Act respecting Access to documents held by public bodies and the Protection of personal information is to spur “informed debate” and that cities and elected officials are accountable to voters.

“Municipalities have public funds to manage, and it is in the public’s interest to know what kind of resources a municipality devotes to legal fees,” noted Trudel. “That can be an indicator of how a municipality is managed. That is of public interest.”

Legal counsel for both the City of Terrebonne and the school commissions did not return calls.

This article originally appeared in The Lawyer’s Daily, published by LexisNexis Canada Inc.

Amount of legal fees no longer necessarily protected by solicitor-client privilege

The amount of legal fees paid to lawyers is no longer automatically deemed to be protected by solicitor-client privilege following a recent ruling by the Court of Quebec that appears to be in conflict with guidance given earlier this year by the Quebec Court of Appeal, according to some legal observers.

In a ruling that will be the subject of a judicial review by Quebec Superior Court, Justice Diane Quenneville held that while billings are prime facie protected by professional secrecy because it generally contains a description of accomplished tasks, services rendered and often advice given, the amount of legal fees paid to a lawyer is not necessarily protected by professional secrecy.

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