The government’s inclusion of warrantless information demand powers in Bill C-2 has attracted mounting concern, particularly the stunning decision to target everyone who provides services in Canada which creates near limitless targets for warrantless disclosure demands. Department of Justice officials have confirmed that Bill C-2 extends far beyond just telecom companies to services such as financial institutions, car rental companies, and hotels. The inclusion of professional services that frequently face strict confidentiality obligations deserves greater scrutiny as the approach virtually guarantees a constitutional challenge alongside the challenge on privacy grounds in light of the previous Supreme Court of Canada rulings in Spencer and Bykovets.

The implications for the legal community, who face strict solicitor-client confidentiality requirements, are particularly notable. Under Bill C-2, lawyers could be compelled to confirm whether they have provided services to client, whether they have information about the client, and when they provided the service, including when a person became a client. If they are aware of other service providers, they must provide that information as well. These disclosure demands come without a warrant or court oversight and lawyers could be barred from advising their clients about the demand for a year. Lawyers would undoubtedly seek to challenge the demand, but would only have five days to do so.

The legislated requirement to disclose any information about a client is sure to attract a legal challenge. My colleague Adam Dodek has helpfully provided guidance on the myriad of Supreme Court of Canada decisions on point. For example, the 2015 ruling of Canada (Attorney General) v. Federation of Law Societies of Canada, examined money laundering legislation that required record keeping and potential disclosures of client information. The court ruled that law violated the Charter with respect to lawyers, noting:

Lawyers must keep their clients’ confidences and act with commitment to serving and protecting their clients’ legitimate interests. Both of these duties are essential to the due administration of justice.  However, some provisions of Canada’s anti-money laundering and anti-terrorist financing legislation are repugnant to these duties. They require lawyers, on pain of imprisonment, to obtain and retain information that is not necessary for ethical legal representation and provide inadequate protection for the client’s confidences subject to solicitor-client privilege. 

Further, the court’s headnote from the decision hits at many of the potential concerns with Bill C-2:

Solicitor-client privilege must remain as close to absolute as possible. There must be a stringent norm to ensure protection and legislative provisions must interfere with the privilege no more than absolutely necessary. These provisions wrongly transfer the burden of protecting solicitor-client privilege to lawyers. Nothing requires notice to clients and a client may not be aware that his or her privilege is threatened.

This is precisely what Bill C-2 establishes as it transfers the burden to lawyers to protect solicitor-client privilege and may keep those clients in the dark for months about the disclosure.

The Federation of Law Societies decision builds on the 2002 decision of Lavallee, Rackel & Heintz v. Canada (Attorney General). Lavallee involved police seizure of documents from a legal office. The court ruled:

Where the interest at stake is solicitor-client privilege, which is a principle of fundamental justice and a civil right of supreme importance in Canadian law, the usual exercise of balancing privacy interests and the exigencies of law enforcement is not particularly helpful because the privilege is a positive feature of law enforcement, not an impediment to it.  Given that solicitor-client privilege must remain as close to absolute as possible to retain its relevance, the Court must adopt stringent norms to ensure its protection.  The procedure set out in s. 488.1 must minimally impair solicitor-client privilege to pass Charter scrutiny.

Several years later, the Court ruled in Canada (Privacy Commissioner) v. Blood Tribe Department of Health, a case involving the Privacy Commissioner’s demand for privileged documents that:

Client confidence is the underlying basis for the privilege, and infringement must be assessed through the eyes of the client. To a client, compelled disclosure to an administrative officer, even if not disclosed further, would constitute an infringement of the confidentiality. 

In short, the courts have long identified the importance of safeguarding solicitor-client privilege. Lawyers always safeguard client confidences, including whether there is a client relationship. Bill C-2 would undermine client confidence and create an enormous burden on the legal profession. Its cavalier approach to warrantless information demands is certain to be challenged and should face a backlash from a wide range of professions where confidential information and privacy safeguards are sacrosanct.