How Terrorism Has Eroded Privilege

October 3 — This month in Lexpert magazine, Last Word columnist Paul Paton takes a look at the decade-long battle on client-solicitor privilege in Canada, and how the threat of terrorism is slowly eroding public support for rules that many believe help terrorists fund their attacks (“Privileges Can Be Taken Away,” October).

Last Word

As public attitudes shift toward fighting terrorism at all costs, solicitor-client privilege has come under attack

As Paton writes:

“Elected officials are no longer willing to accept lawyer-client confidentiality as an article of faith, and instead seem prepared to effectively deputize lawyers as agents in the fight against terrorism — and to fight for that in court as well as in the court of public opinion. As a profession, we can pontificate all we want about the sanctity of privilege, but in an age where innocent spectators at the Boston Marathon can be maimed and murdered by terrorist acts, it’s getting pretty difficult to convince the public that keeping client secrets is in everyone’s best interest.”

The battle over privilege — in the context of terrorism, at least — goes all the way back to November 2001, when the federal government first proposed regulations (under the Proceeds of Crime and Terrorist Financing Act) that would force lawyers to report on clients engaged in “suspicious” financial dealings (such as any cash transactions over $10,000).

The legal community, of course, has not taken this assault on privilege lying down. Law societies and bar associations have railed against this application of the law, and have consistently won injunctive relief in ongoing court battles.

Ottawa has managed to wring concessions from law societies in the form of self-regulated “no cash” rules that restrict lawyers from handling cash transactions over $7,500, but Paton doubts that will be enough to satisfy a fearful public. Despite an April decision by the B.C. Supreme Court striking down portions of the law that would have applied to lawyers, Paton figures the issue, ultimately, can only be settled at the Supreme Court level.

“The bigger question, though, is whether government should be able to override lawyer independence when it sees a broader public interest at stake.”

Paul Paton’s Last Word column can be read in its entirely right here.

-David Dias

One comment on “How Terrorism Has Eroded Privilege

  1. Rexdale Community Legal Clinic
    October 7, 2013 at 1:43 pm #

    Reblogged this on Rexdale Community Legal Clinic.

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