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.

Follow this link for a transcript of the show and links to the cases discussed. 

Transcript

Search Warrants & Lawyer Privilege

Adam Stirling 0:00

It's time for our regular segment , legally Speaking , joined as always by Michael Mulligan , barrister and solicitor , with Mulligan Defene Lawyers . Morning , michael , how are we doing ? Hey , good morning , I'm doing . Good to be here . So interesting stories right off the top today Criminal law , search and seizure what's happening ?

Michael Mulligan 0:17

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 pursuant to a wiretap , and the case is actually out of Saskatchewan , but there was a leave application by 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 is 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 sorry , not a search warrant .

Michael Mulligan 1:20

An authorization to intercept private communications are not routine . They are treated differently than , for example , the police applying for a search warrant to search a place for evidence . Well , 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 interest 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 organization or terrorism offenses , 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 authorization to intercept if the police listen to your phone calls . Authorization to intercept if the police listen to your phone calls . There are also specific provisions that prohibit an authorization to intercept telephone calls with a lawyer or that are targeting a 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 it should be obvious . But you could just imagine what a corrosive impact that would have on solicitor-client privilege if the police could obtain authorization and listen to every telephone call made to a lawyer to get legal advice and listen to every telephone call made to a lawyer to get legal advice , 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 and it reveals a privileged conversation like , for example , let's say , there's an authorization to wiretap a suspect's phone and the suspect phones a lawyer to get legal advice on some point that conversation is inadmissible if the person isn't agreeing to it going in , and so there's some specific provisions intended to prevent all of that .

Michael Mulligan 3:37

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 , defense counsel's duty is and what it is not . And the fact pattern involved the police had a proper judicial authorization 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 authorization to intercept their telephone calls , 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 . Now , a few things are interesting about that . First of all , the authorization specifically prohibited the police from listening to telephone calls to lawyers or police or clients . Listening to telephone calls to lawyers or police or clients , the police there were two police listening to the call and a civilian employee . The police hung up . The civilian employee kept listening . The authorization allowed them to record calls to a lawyer , but they could not . They were not supposed to listen to them without a judge authorizing it . And what happened then ? As a result of the civilian breaching the order and continuing to listen the civilian police employee , they applied to a judge to allow them to use this conversation to charge the lawyer with obstruction of justice 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 authorized 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 .

Michael Mulligan 5:42

Now I should pause there to say this , and this is an important thing to bear in mind . A criminal . Lawyer's job is not to be your partner in crime , right ? A lawyer's task does not involve doing things like trying to warn off a client when the police are rushing over to get a search warrant or something that's not on . Some people I don't know that they understand the subtle not too subtle , but the real difference there . A lawyer is not engaged to do that and , for example , I must say , I smile when I do criminal law for a living Sometimes you get phone calls from people and they , for example , escaped the whatever bank robbery or whatever it might be , and they seem to think calling me up would somehow . They're somehow expecting that I'm going to get them a fake passport and tell them where to get their car painted . But it's not how it works . You know . It's sort of a , you know . You know I'm here to provide legal advice and ensure somebody has a fair trial . The lawyer's duty does not extend to doing things like this , but nonetheless there's this lawyer that goes to trial and you At her trial .

Michael Mulligan 6:50

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 presented . 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 is 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 .

Legal Profession Act Challenge

Michael Mulligan 7:44

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 two-to-one split , found that both the trial judge was correct in terms of the you know unfairness implication of 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 a 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 .

Michael Mulligan 8:40

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 .

Michael Mulligan 9:05

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 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 .

Michael Mulligan 9:17

And then the other thing to bear in mind and this was argued there at the Court of Appeal level is the Crown can appeal on a legal error , not on factual findings or saying , hey , the judge shouldn't have believed that witness or should have disbelieved this other person , that kind of thing witness , or should have disbelieved this other person , that kind of thing .

Michael Mulligan 9:36

And so 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 .

Michael Mulligan 9:58

It was also a breach of the reasonable expectation of privacy as a result of the failure to comply with the wiretap authorization that specifically prohibited the police from continuing to listen to phone calls once it became clear that 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 recognized that and hung up . But the civilian employee just kept listening , I think for three and a half minutes , and so that's how the whole thing wound up getting going . So that's a really interesting case and that's the background of authorizations to obtain wiretaps , how that was dealt with in this case , and then some of those 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 of canada michael mulligan with mulligan defense lawyers .

Adam Stirling 10:55

Legally speaking will continue right after this legally speaking continues on cfax 1070 with michael mulligan , barrister and solicitor . With mulligan defense 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 Mulligan 11:20

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 . And again , the background of that is that in BC , as in 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 . It's sort of the beginnings of British Columbia , beginnings of British Columbia . And way back then the Queen of England dispatched a fellow named Begbie who was an experienced lawyer and 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 . She also concluded that there should be an organization and regulation of barristers and solicitors in the province , and the very first of those that was determined to be a barrister of the court was a fellow by last name of Crease . Interestingly , there's a law firm in Victoria still a busy going concern called Crease . Harmon 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 . 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 .

Michael Mulligan 13:05

It's not a government . It doesn't have its origin in the government deciding to go and regulate something , which is a really important distinction . Yeah , and there is legislation , and has been legislation of various forms over the years dealing with things like the society , and eventually it was a law society . Right , it's not the law corporation or something . 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 , and one of the reasons we live in a free and democratic society is that you can 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, .

Michael Mulligan 14:13

And what was the Legal Profession Act , which is the sort of the modern statutory framework for the Law Society , which again did not start as some government entity . And I should say that the Legal Profession Act , the one that we 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 has 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 , aren't engaged in unethical behaviour , this kind of thing . But that's their goal , that's what their object of the law society is .

Michael Mulligan 14:58

The thing which the provincial government has passed this 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 . 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 , if they delete the uphold and protect the rights and freedoms 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 .

Michael Mulligan 16:02

And so you know many people might think that's a fine priority , but that may not be everyone's priority , and it 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 . It may be completely contrary to their interests , and so that is just completely short-sighted 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 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 . 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 ?

Michael Mulligan 18:07

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 . The provincial government used closure to force it through without debate and the application for the interim injunction was to just stop this thing from being implemented while this thing gets 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 are only a very few quote transitional provisions which would do things like create an Indigenous Council comprised of five or six 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 on 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 just sort of 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 .

Michael Mulligan 19:34

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 , that may have an impact on all of this is the upcoming provincial election . Both the BC Conservative Party and the BC 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 if this thing comes into effect it would just severely undermine people's legal rights in 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 short-sighted . So that's the latest on that piece of legislation .

Adam Stirling 20:38

All right , we've got just under two minutes remaining .

Michael Mulligan 20:41

Yeah , so I think the final case just to mention in that time period , is a good cautionary tale for people . It's a BC Provincial Court decision and it was a claim brought by a company that supplies lumber to a company that builds fences and does landscaping . So 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 a separate , maybe even handwritten , accounting system where they were . When they were provided cash payments and they received something like $60,000 plus from this company , they were suing . They would sort of reduce the amount owed and not pay the PST and GST on it . It was pay cash and no PST and GST . And then , on rare occasions where there was a payment made by check , 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 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 pursuant to these invoices , given

Enforcing Illegal Contracts in Court

Michael Mulligan 22:21

how they operated .

Michael Mulligan 22:21

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 judgment . Where you're engaged in any legal 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 judgment 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 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 23:09

Michael Mulligan from Mulligan Defense Lawyers , legally speaking during the second half of our second hour every Thursday . Michael , pleasure as always . Thank you . Thank you so much .