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Privileged Communications

Exceptions and Exclusions

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A large portion of the Tuum Est site is focused on the legal rights of the physically disabled, a vulnerable segment of society. Our Privacy Policy is designed to facilitate communication, to make it easier for people shattered by new diagnoses to correspond in a private way instead of through a Forum, a Blog comment, or a public Tweet.

In certain fields, practitioners advise members of the public during times of high stress or high stakes, when decisions have lifelong import. These fields have formal rules to protect confidential communication. Within those fields, the law of privilege is closely guarded, but not absolute: there are rational exceptions and exclusions. Websites, a modern invention, are not bound by formal rules of privilege; their Privacy Policy enactment is voluntary.

Law Offers solicitor-client privilege and other variants (sidebar, right)
Medicine Offers doctor-patient confidentiality
Church Offers clergyman confidentiality
Academia The majority of academic fields, including the research sciences, are not governed by formal confidentiality principles

Tuum Est / First Illustration

From webmaster Georgena Sil: The Tuum Est Privacy Policy is elective, offered entirely at my discretion. If the police, FBI, or other agency subpoenaed my correspondence (such as my emails) I would have no legal basis to refuse. In that regard, I am like an ordinary citizen.

On our About page, you will read that I am a Physicist, trained in Canada at the University of British Columbia. My profession of Physics is not bound by formal confidentiality principles. Such would apply only if, for example, a specific scientist hired by government or industry was required to sign a Non-Disclosure Agreement as a condition of employment.

As to the Tuum Est website: For readers who contact me to discuss medical issues or rights issues, I pledge to keep their emails confidential. But just supposing someone did express a threat – either to me personally, to my site, or to society at large. What would be my attitude; what would be my obligation?

Illustration: Suppose someone contacted Tuum Est about a struggle with an uncommon disease. Call this person Pat (this can be a male or female name, standing for patient). Consider two levels of communication:

Level One (Normal):  Pat is wracked with pain; or unable to work due to fatigue and other symptoms; or is grieving because a spouse or child died due to medical negligence. Pat's emails show an emotional state that is frustrated, desperate, angry. But the desperation is for solutions, not revenge. The righteous anger is analytic, probing for ways to cope, to find ways to do things differently – there is no plan to take the anger out on anyone. I offer support, and I guide this person to resources so they can help themselves (the Latin phrase Tuum Est means It is up to you).

Level Two (Threat):  Suppose one day I receive an email from someone with an infectious disease that will eventually be fatal. Suppose this Pat lacks a moral compass, and wants to deliberately pass the infection to others. Pat's mindset goes beyond a temporary wish I could do this! to an actual plan, with specific victims named. Note this has never happened, but if it did I must ask: whose interests are paramount? How do I weigh competing interests – the comfort of individual privacy, versus the safety of future victims?

Position of the Canadian Justice System

The highest level of confidentiality is solicitor-client privilege, perhaps because its nuances are honed constantly in court.. This privilege extends to all tributaries: civil law, real-estate law, patent law, and so on. Criminal law has special status: privilege gained constitutional protection when certain rights were enshrined: the right to full answer and defence, the right to counsel, the right against self-incrimination, and the presumption of innocence.

The Federation of Law Societies of Canada has drafted a Model Code to guide this nation's attorneys on questions of privilege. Their view:

Model Code of Professional Conduct

Confidentiality and loyalty are fundamental to the relationship between a lawyer and a client. Clients need a large measure of freedom to discuss their affairs with their attorneys. However, in exceptional situations, disclosure without the client's permission might be warranted

A lawyer may disclose confidential information (but no more than is required) when the lawyer believes on reasonable grounds that there is an imminent risk of serious bodily harm, and disclosure is necessary to prevent the harm.

To inform such decisions by lawyers, the Supreme Court of Canada dealt with the meaning of serious bodily harm. It goes beyond plain physical injury to encompass psychological injury if it interferes with health or well-being.

Listed below are the classic precedents which define and set boundaries for solicitor-client privilege in Canada. When these cases are listed in logical order (rather than date order) the excerpts combine into a cohesive explanation:

Blank v. Canada (Minister of Justice) (2006) SCC
The purpose of solicitor-client privilege is to create a zone of privacy so that litigants may prepare their contending positions in private, without fear of premature disclosure or adversarial interference.

R. v. McClure (2001) SCC
Solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance.

Lavallee, Rackel & Heintz v. Canada (2002) SCC
This privilege is a civil right of supreme importance in Canadian law. The privilege belongs to the client and normally can be waived only by the client, who must give his or her informed consent.

S. & K. Processors Ltd v. Campbell (1983) BCSC
However, loss of the privilege can occur in the absence of any intention to waive, where fairness and consistency so require.

R. v. Campbell (1999) SCC
No privilege attaches to communications that are criminal or made with a view to obtaining legal advice to facilitate the commission of a crime.

Smith v. Jones (1999) SCC
Serious injury, or serious bodily harm may include serious psychological harm if the act in question substantially interferes with the health or well-being of the individual.

Privilege is Not Absolute

Privileged communication is strongly guarded, but it is not absolute, whether invoked by lawyers, doctors, or religious counselors. There are recognized exemptions and exclusions. An exemption means that just one topic may be disclosed to accomplish a specific purpose, but everything else the person said or wrote is still privileged. An exclusion means privilege is revoked entirely, due to the nature of the contact.

Methods of Revoking Privilege
Exemption
or Exception
Privilege for a client is revoked just for one topic, to accomplish a specific purpose. When discussing privilege, the words Exemption and Exception are used interchangeably.
Exclusion Privilege for a client is revoked entirely, across the board for all topics. Applies when a client plans a crime or fraud (which may include civil torts and contract breaches).

Recognized Exemptions and Exclusions

Each field has its own list of permitted exemptions and exclusions. Below are examples from law regarding solicitor-client privilege. One exemption – called the Public Safety Exception – is common to all fields (law, medicine, the church).

1 Public Safety Exception

The Public Safety Exception allows or requires disclosure in cases where there is impending harm to a person or group. In Smith v Jones 1999 SCC the Supreme Court of Canada held that public safety concerns set aside solicitor-client privilege when a lawyer reasonably believes there is a clear, serious and imminent threat to public safety. The court held also that doctor-patient confidentiality can be set aside when public harm is imminent.

Look to your provincial Law Society for the specific terms of the Public Safety Exception as it applies to the duty of confidentiality, particularly the types of future harm covered – criminal activity, violence, serious physical harm, cyber threat, fraud – and the nature of the lawyer's responsibility, whether voluntary and mandatory.

Public safety will outweigh solicitor-client privilege when three factors are present – clarity, seriousness, and imminence. These factors are assigned different weights according to the situation. The factors interact: For example, when a threat has high clarity and seriousness, a time limit might not be imposed. Pivotal adjunct factors: Evidence of planning; evidence of similar prior attacks; absence of other feasible ways to prevent the harm.

Public Safety Exception: Factors
Clarity factor The target must be ascertainable: it must be an identifiable person or group, even if the group is large.
Seriousness factor The intended victim must be in danger of serious bodily harm which can include psychological harm (to health or well-being).
Imminence factor The nature of the threat must create a sense of urgency. This urgency may be applicable to some time in the future.

2 Fees and Allegations Against a Lawyer Exception

Each Canadian province has its own independent Law Society, which publishes its own Code of Professional Conduct. Despite regional variations, one precept is common to all: A lawyer may disclose confidential information in order to establish or collect a fee, or to defend against disciplinary action for wrongdoing in a client's case (such as embezzling funds from a trust account). The lawyer must not disclose more information than circumstances require.

This exception is not without controversy. American lawyer Gavin MacKenzie calls this the lawyer self-interest exception. Canadian lawyer Adam Dodek observes: Courts implicitly accept the Fees and Allegations Exception without much pause, but it does not match up very well with the doctrine and the rhetoric on the sanctity of the Privilege.

3 Innocence at Stake Exception

When the innocence of an accused person is at stake, an exception is made to solicitor-client privilege. The exception is interpreted strictly and applied rarely. It is for unique cases.

4 Exclusion, or Negating Privilege

If a client seeks legal advice to facilitate the commission of a crime or a fraud, the information provided by the client is not covered by solicitor-client privilege. This is characterized as an exclusion, not an exception, as the nature of these communications completely negates the privilege that would ordinarily attach to them. Some courts have moved to expand the exclusion for criminal wrongs to apply the same reasoning to some torts (civil wrongs) and contract breaches.

A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. This situation may yield to lesser remedial measures such as the lawyer correcting statements found to be false, and the lawyer withdrawing from representation.

Practical Application to Websites

Privilege was established eons ago for law, medicine, and the church. The concept fared well under court review. Canadian courts strengthened and reaffirmed privilege, while refining common-sense limits. This body of law has been adapted to the modern world, to websites where policy pages, typically titled Terms and Conditions supplemented by a Privacy Policy, show the same constraint motifs, no matter where in the spectrum they fall, from the strict to the generous.

There is a well-known hierarchy: criminal statutes supersede civil statutes, which supersede any terms written by an ordinary citizen. And consider: An attorney strongly prefers to keep, not flout, lawyer-client confidentiality. In circumstances where even an attorney is exempt from confidentiality, then an ordinary citizen has no better privilege.

Tuum Est / Final Illustration

Cyber-criminals have begun to branch out into other tactics as a substitute for DDoS. Typical scenario: A miscreant, on a mission to purge his legal rulings from the web, contacts a website to have a page removed. He first tries brute-force DDoS, repeatedly, but his botnet blitz fails. A bright idea dawns – he then calls upon the website's Privacy Policy to get his page deleted. Emails arrive saying:

Email: My Right Under TuumEst Policy
I see that your Privacy Policy has been revised. It now allows people like me to contact TuumEst, be heard, and yet receive the same protection as other visitors. Am I correct?
[Name of cyber-criminal]

In 2016 our site did experience that approach. Our enduring answer: The Tuum Est Privacy Policy does not shield cyber-criminals. Even an attorney could not give this man safe harbor: Privileged communication is outweighed by an exception and exclusion both:

Public Safety Exception
Threats of future cyber-crime and grooming for financial fraud are risks to Public Safety, which even a lawyer ethically could not hide.

Exclusion from Privilege
Even more basic, the solicitor-client privilege would be negated entirely, in full and across the board, when communication occurs for the ongoing purpose of facilitating crime.

FURTHER READING

Georgena S. Sil
Saskatoon, Canada
Physicist & Technical Writer
Alumnus: University of British Columbia
TuumEstContact@protonmail.com

Copyright © 2008-2018 Georgena Sil. All Rights Reserved.