Page 36 - CCCA64_2011

CCCA_V5No4_FightClub-FIN_CCCA_V5No3_Metrics-V1.qxd 11/20/11 10:55 PM Page 36 Feature Mahmud Jamal Partner Osler, Hoskin & Harcourt LLP Adam Dodek Associate professor Faculty of Law University of Ottawa world it is legal professional privilege. I think we would be better privilege because the privilege should be about the client, not off talking about legal professional privilege because the privilege about the lawyer. should certainly be expanded to paralegals. It should not matter if [a person] goes to a paralegal or a Wigmore has always been our touchstone defining privilege lawyer; they should be entitled to the same protection of their in Canada.Here is how he defined privilege in the passage famil- communications, yet that is not the approach that our courts iar to most of you and adopted and reiterated by the Supreme have taken.The truth is that we have already extended the pro- Court of Canada time after time: tection of the privilege to non-legal professionals,but only when “Where legal advice of any kind is sought from a professional legal advis- those non-legal professionals are involved in multimillion-dollar er in his capacity as such,the communications relating to that purpose made deals. I am speaking of the recent cases out of Ontario and B.C. in confidence by the client are at his instance permanently protected from dis- over the so-called “deal privilege” which extends the protection closure by himself or by the legal adviser except the privilege be waived.” of solicitor-client privilege to financial and other advisers who Wigmore wrote those words over 100 years ago and I submit are part of the corporate deal.Yet,if an individual is charged with that the only thing dated about that passage is its gender-specific an offence and decides to have an agent represent them in crim- nature.The touchstone of the privilege should be communications inal court and may end up with a criminal conviction that would with a professional legal adviser,whether that adviser is a lawyer or follow them the rest of their life, that individual’s communica- a paralegal.If we do not extend that privilege to paralegals,we risk tions are not protected by privilege if represented by a paralegal. further marginalizing those most in need of protection of the Is this really the solicitor-client privilege that we want? Can we 36 CCCA Canadian Corporate Counsel Association WINTER 2011