Legal Aid Alberta (LAA) signed a new five-year governance agreement with the province on Wednesday, but one of the organization’s newest programs is creating confidentiality, privilege and privacy concerns.
LAA announced a new monitoring program in mid-July that would allow its managers to listen in on lawyer-client interviews for “quality assurance” purposes.
It was first implemented in August, but has quickly received criticism.
Wayne Webster, a Calgary criminal defence lawyer who works for LAA, has since filed a judicial review application against his employer.
In his affidavit, he calls the monitoring program “an arbitrary, unreasonable and unnecessary intrusion into the solicitor-client relationship” that “jeopardizes the liberty of legal aid clients.”
Webster asked the Court of King’s Bench of Alberta last week to put a stop to the recently introduced program or issue an order stating the organization’s lawyers do not need to comply with it.
He additionally asked court to stay the implementation of the program until the court proceeding has been resolved.
The judicial filing states LAA has advised lawyers they must request informed consent from their clients to participate in the monitoring program.
At the same time, the filing also argues the “client cannot realistically provide voluntary and informed consent to participate in the monitoring program, as they cannot predict what will arise during the discussions.”
Additional concerns were sparked in the filing, which notes a “serious conflict” for legal aid lawyers is created, since “council’s advice may be sought as to whether the client should consent and the best advice would be to refuse.”
A hearing for the judicial review application in the Court of King’s Bench in Calgary is now set for Sept. 9.
‘Confident it will be resolved appropriately’
In a statement, LAA says it is aware of the application regarding its quality assurance program.
“We do not comment on active court proceedings, but we remain fully engaged in the legal process and are confident it will be resolved appropriately,” read a statement provided to CTV News.
CTV News also reached out to Alberta Justice, but was told via email, “As this matter is before the courts, it will be inappropriate to comment.”
A ‘major breach’ of rights and freedoms
Trevor McDonald, Webster’s lawyer and a partner at Burnet Duckworth and Palmer LLP, calls the new program a major breach of rights and freedoms guaranteed under the Canadian Charter.
“The main concern is that having a third party listening in on or monitoring an interview between a lawyer and his or her client could potentially result in the confidentiality of that discussion being waived,” McDonald said.
“This means that any statements made by the lawyer, made by the accused person to their lawyer, could potentially be producible to the Crown attorney’s office and used against the accused person to prosecute them.”
McDonald says to his knowledge, no other legal aid group across Canada has implemented such a program and the monitoring of interviews that are otherwise supposed to be private could set a bad precedent.
“The policy has been implemented by LAA and they have control over their administrative procedures, but we believe this goes far and beyond any kind of quality assurance policy that they might want to implement,” McDonald said.
“We’re very concerned about the precedential impact of this kind of program and potentially, it could impact other legal aid programs right throughout Canada.”
‘I would never want somebody listening in’
A client who recently required legal aid spoke outside the Calgary Courts Centre on Wednesday after learning about the new program.
The woman, Tracy, says she was shocked when she heard about the program and hopes it goes away.
“I just couldn’t even see this happening, but there it is, black and white, so I would never want somebody listening in to a conversation I’m having with my lawyer,” she said.
“You wouldn’t want your doctor exposing your illnesses or your medical background to somebody else, so even with legal representation, you don’t want somebody going around talking about your business or using it against you behind your back.”
Tracy was recently charged with assaulting a police officer, but had her charge repealed thanks to the help of a legal aid lawyer.
“It was a complete misunderstanding where a police officer showed up to my door, I moved my hands backwards and accidentally knocked off his glasses,” she said.
“So of course I’m fighting it and it’s important to make sure you get a fair trial, make sure that people understand you. This policy is very judgmental to people, especially those who don’t want to share their feelings.”