Guess decision gives guidance for future trials

When information sought by a lawyer can't be shared with the client

The recent B.C. Court of Appeal decision in R. v. Guess offers insights on how a court might proceed when allowing counsel to receive information that cannot be shared with his or her client: R. v. Guess 2000 BCCA 547.

Ms. Guess appealed her conviction for obstruction of justice on a number of grounds, including that a court order excluding her from a proceeding respecting the admissibility of wiretap evidence and preventing her counsel from discussing those proceedings with her was in violation of her constitutional rights. The appeal was dismissed, with the Court concluding there was no risk to any vital interests of the appellant and no breach of her rights under the Charter.

The Law Society intervened in Guess, not on the merits of the appeal, but to suggest an alternative process that would only minimally interefere with the relationship between counsel and client and would allow the client to decide whether or not to consent to exclusion from the proceeding without disclosure.

Mr. Justice Hall, with whom Mr. Justice Esson agreed, quoted from the Law Society's factum as follows:

The Intervener submits that there are sound policy reasons to commend the practice of requiring the client's consent to any restriction on communications with his or her lawyer. Ultimately, it is only the client's interests that are potentially compromised by the procedure; it is possible, for example, that an accused may not wish to have her lawyer privy to information that cannot be shared with her, and may not wish to have her confidence in her lawyer undermined in such a manner. On the other hand, it is only for the advancement of the client's case that the practice would be followed in the first place (the alternative, if the judge is unwilling to release the information to the client without restriction, is simply that no disclosure be made to either the accused or counsel. The balancing of these considerations should therefore be left exclusively to the client, in the Intervener's submission.

In the Intervener's submission, the client's consent should be obtained in such circumstances by requiring that the information be made available to counsel only upon his undertaking that he not disclose to anyone else, including his client, rather than by making an order directly, as the Learned Trial Judge did. An undertaking will be enforceable in the breach (just as would a court order) through contempt and/or disciplinary proceedings. Before granting the undertaking, however, the lawyer should obtain instructions to do so, thus involving the client in the decision. [emphasis in original]

Hall, J. found that the Society's suggestion was "meritorious" and that it "may be in most cases an ideal sort of solution," but concluded that the court retains the power to make an order such as the one in this case "in cases where a judge perceives a real risk that an undertaking would not suffice to protect sensitive information."

Madam Justice Prowse agreed with the majority in dismissing the appeal, but issued minority reasons in which she stated that the procedure suggested by the Law Society is "the only appropriate method."