INTRODUCTION AND BRIEF DESCRIPTION
This section allows a justice or judge to include terms and conditions in an order to protect privileged communication between a lawyer/notary and their client.
SECTION WORDING
487.012(4) The order may contain any terms and conditions that the justice or judge considers advisable in the circumstances, including terms and conditions to protect a privileged communication between a lawyer and their client or, in the province of Quebec, between a lawyer or a notary and their client.
EXPLANATION
Section 487.012(4) of the Criminal Code of Canada is a provision enumerated under the law allowing judges or justices to issue an order containing terms and conditions that they consider necessary in the circumstances. Such terms and conditions aim at protecting individuals and their rights, including privileged communications between lawyers and their clients or, in the province of Quebec, between a notary and their client. Privileged communication involves confidential exchanges between lawyers (or notaries) and their clients, which are protected under the law. This protection aims to ensure that individuals can seek legal counsel and advice without fear of their communications being disclosed to third parties, including the government, law enforcement, or other parties. The terms and conditions contained in the order issued by a justice or a judge may include measures to protect privileged communications from being accessed or seized during the course of a criminal investigation. For instance, they may restrict the use of any material obtained through such communications in court proceedings. These measures may be necessary to preserve the integrity of the justice system and prevent any abuse of power or violation of individual rights. Thus, Section 487.012(4) recognizes the importance of protecting privileged communication between lawyers and their clients (or notaries and their clients in Quebec) and empowers judges and justices to take necessary measures to safeguard such communications in the context of a criminal investigation.
COMMENTARY
Section 487.012(4) of the Criminal Code of Canada is a vital legal provision that protects privileged communication between a client and their lawyer or notary. This section of the Criminal Code is particularly important in safeguarding the legal rights of all individuals, regardless of the crime they may have committed. The section grants a justice or judge the power to impose conditions on an order that would effectively protect privileged communication between a client and their lawyer or notary. This means that even in the course of an investigation, law enforcement authorities are not at liberty to intercept a confidential conversation between a client and their legal representative. If such an interception were to occur without a court order containing suitable protective measures, then the evidence obtained would be considered inadmissible in court. The provision also solidifies the importance of the lawyer-client relationship and the need for confidentiality in this professional setting. This privilege is essential as it allows a person to have access to quality legal representation without the fear that their legal communications could be used against them. It preserves the dignity of the practice of law and underscores the establishment of the rule of law in a democratic society. In addition to the above, the privilege given in this provision ensures that the public respect and trust the legal profession as a whole. Clients who consult with a lawyer are not just looking for legal advice, but also for a safe space to disclose all the facts surrounding their case. They expect that anything discussed will be kept confidential and that the lawyer will act in their best interests, respecting their right to be heard. However, while the privilege is sacrosanct, it is not absolute. There are still specific situations where the courts may allow privileged communication between a client and their lawyer or notary to be used as evidence. For instance, if there is evidence that the communication was made to further a criminal enterprise, the person's right to exercise privileged communication could be waived. Moreover, if there is a threat of bodily harm, such as in cases of domestic violence, and a lawyer or notary receives communications expressing intention to cause physical harm to an individual, they have an ethical obligation to report the person's intent to the relevant authorities. This exception is geared towards protecting the victim and preventing further harm. In conclusion, Section 487.012(4) of the Criminal Code of Canada is a crucial provision in the administration of justice. It strikes a balance between the need for privileged communication between clients and their lawyers or notaries and the necessity for law enforcement officials to investigate crimes and ensure public safety. Lawyers have a significant role to play in upholding the privilege and ensuring that their clients are aware of the importance of their communications remaining confidential. With this provision in place, Canadians can trust the legal system to protect their fundamental right to accessible legal representation and the preservation of the rule of law.
STRATEGY
Section 487.012(4) of the Criminal Code of Canada provides for the protection of privileged communications between a lawyer and their client or between a notary and their client in the province of Quebec. When dealing with this section, there are certain strategic considerations that one should keep in mind. Firstly, it is important to note that the protection of privileged communications is fundamental to ensuring that the client can fully and freely disclose all relevant information to their lawyer or notary. This is important not only for ethical reasons but also for strategic reasons, as the information revealed during privileged communications can be crucial in building a strong defense or presenting a convincing case. One strategy that could be employed to ensure the utmost protection of privileged communications is to request that the order specifically state that the police are not allowed to access any privileged communications between the lawyer/notary and their client. This would provide additional protection against any attempts to obtain such communications during an investigation. Another strategy that could be employed is to have a lawyer/notary present during any interviews with the police. This would serve as a reminder to the police that any attempts to breach privileged communications would not be tolerated and would also provide an opportunity for the lawyer/notary to assert the client's rights if necessary. In addition, it may be advisable to seek a court order to quash any subpoenas or production orders that seek access to privileged communications. This would demonstrate a commitment to protecting the client's rights and would also provide a strong legal basis for resisting any attempts to breach privileged communications. Overall, when dealing with Section 487.012(4) of the Criminal Code of Canada, it is important to be proactive in protecting privileged communications between a lawyer/notary and their client. This can be achieved through a variety of strategies, including requesting specific language in the order, having a lawyer/notary present during interviews, and seeking court orders to quash subpoenas or production orders. By taking these steps, lawyers and notaries can ensure that their clients' rights are fully protected and that they can present the strongest possible case in court.