The Supreme Court of Canada heard an appeal last spring regarding the applicability of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act to lawyers and their clients. It is a case that is expected to address both the independence of the bar and solicitor-client privilege. Judgment has not yet been rendered, but we expect to see a decision very soon.

The Federation, together with law societies in Canada, has asserted that law society rules are sufficiently robust to guard against money laundering and illegal financial transactions, and that oversight by law societies, and not FINTRAC, is the appropriate means to preserve and protect solicitor-client privilege.

A series of decisions from the Supreme Court have all emphasized the importance of solicitor-client privilege, stating that it is a “principle of fundamental justice and a civil right of supreme importance in Canadian law” and that it is “a positive feature of law enforcement, not an impediment to it.” The court has explained that the right must remain as close to absolute as possible and that legislation purporting to limit it must be clear in its intent, must impair the privilege only minimally, and must be “absolutely necessary”, which the Court has said is a “test just short of absolute prohibition.”

Relevant cases of interest include Solosky v. the Queen [1980] 1 S.C.R. 821, Lavallee Rackell & Heintz v. Canada (Attorney General) [2002] 3 S.C.R. 209, Goodis v. Ontario (Minister of Correctional Services) [2006] 2 S.C.R. 32, Pritchard v. Ontario (Human Rights Commission), [2004] 1 S.C.R. 809, and Canada (Privacy Commissioner) v. Blood Tribe Department of Health [2008] 2 S.C.R. 574.

These cases establish the fundamental importance of solicitor-client privilege to an extent that will, we hope, make it difficult for any government to abrogate this privilege which is so important to our clients and to our system of justice.