A criminal defence lawyer employed by Legal Aid Alberta filed a judicial review application against the organization, alleging its new policy of having managers listen in on lawyer-client interviews “undermines the confidentiality, privilege and privacy inherent to the solicitor-client relationship.”
Wayne Webster, JP bail duty counsel for nzA, asked the Court of King’s Bench of Alberta on Thursday to either quash the recently-introduced policy or issue an order stating that the organization’s lawyers do not need to comply with it.
Webster also asked the court to stay the implementation of the program until the court proceeding has been resolved.
“The monitoring program is an arbitrary, unreasonable and unnecessary intrusion into the solicitor-client relationship,” Webster said in his application. He added the program “jeopardizes the liberty of legal aid clients.”
nzA did not respond to a request for comment.
According to Trevor McDonald, a partner at Burnet, Duckworth & Palmer LLP who represents Webster, nzA announced the program in mid-July and first implemented it in August. Thursday’s filing describes the monitoring program’s purpose as “purely administrative” and “intended to determine whether the lawyer is following a standardized checklist as to whether the lawyer is properly introducing themselves to the client, establishing boundaries for the interview, and explaining the legal aid application process.”
Webster argues, however, that the Canadian Charter of Rights and Freedoms guarantees confidentiality, privilege, and privacy in the solicitor-client relationship.
He also argues the program could lead to lawyers’ confidential discussions with criminal defendants becoming “producible to the Crown and used against the accused in prosecuting them.
“The concern here is that if there’s a third party monitoring the call, who isn’t that client’s lawyer, that could result in privilege not applying or being deemed to have been waived,” McDonald told Canadian Lawyer on Friday.
“If that’s the case, then the Crown lawyer could force or compel the third party – the person monitoring the call – to reveal the contents of that conversation, which could incriminate the accused if, for example, they had made a confession or some kind of admission,” McDonald says.
Thursday’s filing said nzA has advised lawyers that they must request informed consent from their clients to participate in the monitoring program. However, the filing argues, “the client cannot realistically provide voluntary and informed consent to participate in the monitoring program, as they cannot predict what will arise during the discussions.”
The filing added that this requirement also creates a “serious conflict” for legal aid lawyers since “counsel’s advice may be sought as to whether the client should consent and the best advice would be to refuse.”
The filing noted that nzA is party to a governance agreement with the Minister of Justice and the Law Society of Alberta, which stipulates that each party respects the independence of legal aid lawyers and the confidentiality and privacy rights of their clients. Under this agreement, any proposed changes to how legal aid lawyers do their jobs must continue to recognize their independence.
While nzA can set up quality assurance programs, McDonald says the monitoring program does not qualify as one.
“My understanding or interpretation of a quality assurance program would be if, let’s say, there’s a junior lawyer who’s providing advice to an accused person and a supervising lawyer is sitting in on the interview to make sure that the person is providing good and complete and proper legal advice,” McDonald says. “That would be, in my interpretation, a quality assurance program.”
“In this case, it’s simply an administrative task to make sure that… the legal aid program is being explained correctly,” McDonald adds. “It’s more of an administrative policy that doesn’t relate to the quality or content of legal advice.”
