Ministry Attempts to Interfere with Solicitor Client Privilege

Letter to Mario Marchese MPP regarding today's Legislative Assembly debate on Bill 103

For Mario Marchese,
My name is John Dunn and I am the Executive Director of the Foster Care Council of Canada, an organization made up primarily of people who have lived in foster care which advocates for improved quality of service and accountability in child-welfare services across the country.

I am deeply concerned about the proposed sub-section 8 (4)(c) of Bill 103 which if left as-is would be the first step in eroding Canada's well-established Solicitor-Client Privilege which exists in the legal community across the country by allowing communications between Solicitors and their youth clients to be opened at the whim of a service provider or a member of the service provider's staff in the young person's presence and may be inspected for articles prohibited by the service provider.

As this is worded it is extremely dangerous in that first it allows for the violation of Solicitor-Client Privilege and secondly it allows the persons authorized to determine by their own policy what is to be deemed "prohibited" including, quite possibly, legal advice.

If a youth in custody were to be reporting abuse, this communication could be intercepted including any response from the youth's solicitors.

I hope that Ontario does not become the first province to allow such a violation which would begin to erode any democratic society's cornerstone of freedom.

(END OF LETTER)





Deb Matthews, in her position as Minister of Children and Youth Services has introduced a Bill (Bill 103) which proposes to allow child-welfare and youth justice staff and officials to intercept, open and withhold mail between a youth's lawyer and the youth.

The Bill also proposes to allow these people to read and withhold mail sent by children and youth in care and in custody from being mailed out.

Here is a quote from Hansard (discussions at the Legislature) by MPP Andrea Horwath with respect to this issue:

We have found out that not only was he not consulted-this is Mr. Elman, our new child advocate-but in fact the staff of the advocacy office have no recollection of having been contacted or approached at all in regard to putting this bill together

and

But one of the things that the bill allows authorities to do which is new is to open up e-mail and mail from children. Children are sending an e-mail or writing a letter, and this act now allows authorities to open that mail or read that e-mail before it gets sent.

and

There's no mechanism at all to ensure that the child is aware that mail is being held. Not only is this broadening the opportunity to intercept mail and keep it, but also there's no obligation or no recognition or acknowledgment that needs to be provided to the young person that says that their mail has been intercepted and kept from them. So the child's right to send and receive mail is being replaced by the facility's right to intercept their mail. Previously, the law said mail "shall not be examined or read by the service provider or a member of the service provider's staff if it is to or from the child's solicitor." But the proposed law states that mail "shall not be examined or read under clause (b) if it is to or from the young person's solicitor, unless there are reasonable and probable grounds to believe that it contains material that is not privileged as a solicitor-client communication."

You can't tell by the outside of a letter whether what's inside it is going to be covered by solicitor-client privilege. I mean, how do you tell by the outside of a letter what's on the inside; right? So who determines whether or not correspondence or communication is privileged? What rationale exists to interfere with mail between a young person and their legal counsel? I don't know. I don't know what that rationale is, and that's another reason why we need to get to committee, to try to explore where the government's mind was-collective mind, I guess-when they came up with this, because I really don't understand it at all.


Please call her office and express your opinion on this matter contained within Bill 103.

I have contacted Clayton Ruby as well to inform him of this matter and he called me back to let me know he is aware of it and will be watching it.

Constituency Office
242 Piccadilly St.
London ON N6A 1S4
Tel 519-432-7339
Fax 519-432-0613
dmatthews.mpp.co@liberal.ola.org


Ministry Office
Ministry of Children and Youth Services
14th Flr, 56 Wellesley St W
Toronto ON M5S 2S3
Tel 416-212-2278
Fax 416-212-7431
dmatthews.mpp@liberal.ola.org