A-828-76
William (Billy) Solosky (Appellant)
v.
The Queen (Respondent)
Court of Appeal, Heald and Urie JJ. and MacKay
D.J.—Toronto, July 27; Ottawa, August 23, 1977.
Practice — Parties — Standing — Application for order
granting standing to lawyers' association as intervenant or
amicus curiae — Case involving solicitor-client privilege —
Applicant's members affected by decision — Whether associa
tion has standing to intervene — Whether guarantees under
Canadian Bill of Rights.
The Criminal Lawyers' Association of Ontario applies for an
order granting it standing as an intervenant or as amicus curiae
in this appeal dealing with the question of a prisoner's right to
send mail to his solicitor without inspection despite regulations
permitting the opening of prisoners' mail. The issues of the
appeal, appellant argues, go to the root of the solicitor-and-cli
ent privilege, and so affect its members' law practices. As
intervenant, the applicant wishes to file a factum and present
oral argument.
Held, the application is dismissed. The applicant, to establish
a status entitling it to intervene would have to show that it is an
aggrieved party and that it has a proprietary interest in the
subject appeal.
Per Heald J.: The result of this appeal cannot adversely
affect the legal rights of the association's members, nor impose
any additional legal obligation on them, nor prejudicially affect
their interests in any direct sense. To name the applicant
amicus curiae without the Court's seeing a need, and so giving
it status to intervene, would serve no useful purpose. Appel
lant's counsel as an association member is conversant with its
views and could adequately represent them. Alternatively, since
appellant's counsel fully consented to applicant's application,
no conflict of interest would arise if the former were to engage
the latter.
Per Urie J.: The appellant does not seek a declaration that
the inspection of incoming and outgoing mail is ultra vires, but
rather that the regulation should not apply to him in so far as it
purports to apply to any correspondence between his solicitor
and himself. The applicant, therefore, can have no interest,
direct or indirect, in appellant's claim.
Rothmans of Pall Mall Ltd. v. M.N.R. [1976] 2 F.C. 500,
applied; R. v. Bolton [1976] 1 F.C. 252, applied.
APPLICATION.
COUNSEL:
David P. Cole for appellant.
K. F. Braid for respondent.
Clayton C. Ruby for Criminal Lawyers' Asso
ciation of Ontario.
SOLICITORS:
David P. Cole, Toronto, for appellant.
Deputy Attorney General of Canada for
respondent.
Ruby & Edwardh, Toronto, for Criminal
Lawyers' Association of Ontario.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is an application for an order
granting the Criminal Lawyers' Association of
Ontario (hereinafter referred to as the applicant)
standing as an intervenant in this appeal from a
judgment of the Trial Division [[19771 1 F.C. 663]
of this Court, for the purpose of filing a factum
and presenting oral argument on the hearing of the
appeal.
The applicant association was incorporated
without share capital on November 1, 1971 and
has a membership of about four hundred practis
ing criminal lawyers. Although the association is
incorporated in Ontario and its members are
mainly drawn from practising criminal lawyers in
Ontario, its domain of interest is the criminal law
which is a federal jurisdiction. Thus, the associa
tion communicates frequently with other lawyers
throughout Canada. The reason given by the asso
ciation for wishing to intervene in this appeal is
that, in its view, the issues in this case go to the
root of the solicitor-and-client privilege upon
which the association's members rely every day in
their practices. They feel, as stated by Mr. Whealy
in paragraph 6 of his affidavit:
... that if this privilege is eroded and lawyer-client confiden
tiality is threatened we will not be able to fully exercise our
duty as legal counsel to all accused persons since that duty
depends on confidentiality. We feel that the fundamental rights
of all persons in Canada, to be represented by counsel and to
make full answer and defence to any charges against them, are
put in issue by this judgment because those rights depend on
lawyer-client confidentiality. We are moved to intervene in this
case because it is these rights on which our very existence as
legal counsel depends.
The association also expresses concern that this
case involves an interpretation of the guarantee in
the Canadian Bill of Rights of the right to retain
and instruct counsel and raises particularly the
issue of unequal access to counsel of those in
custody as opposed to those not in custody and the
further issue as to whether the right to counsel
imports a requirement of confidentiality. It is the
association's belief that if the right to instruct
counsel privately is not maintained, then the entire
right to counsel becomes illusory. The association
submits that it has a particular knowledge and
experience in these matters which would assist the
Court in this case.
In my view, the applicant has failed to establish
a status entitling it to intervene in this action. In
order to acquire such a status, it would be neces
sary for the applicant to show that it is an
aggrieved party and that it has a proprietary inter
est in subject appeal'.
Le Damn J. articulated succinctly what I believe
to be the proper test in the Rothmans case referred
to supra when he stated at page 506 of the
judgment:
The appellants do not have a genuine grievance entitling them
to challenge by legal proceedings the interpretation .... Such
interpretation does not adversely affect the legal rights of the
appellants nor impose any additional legal obligation upon
them. Nor can it really be said to affect their interests prejudi-
cially in any direct sense.
Applying that test to the circumstances of this
case, it is my view that the result of this appeal
cannot adversely affect, in any way, the legal
rights of the members of the applicant association
' See for example: Rothmans of Pall Mall Limited v.
M.N.R. [1976] 2 F.C. 500; R. v. Ipswich Justices, ex parte
Robson [1971] 2 All E.R. 1395; Buxton v. Minister of Housing
and Local Government [1960] 3 All E.R. 408; Orpen v. Roberts
[1925] S.C.R. 364; Smith v. Attorney General of Ontario
[1924] S.C.R. 331 at p. 337; R. v. The Guardians of the
Lewisham Union [1897] 1 Q.B. 498 at p. 501; Re Provincial
Board of Health for Ontario and City of Toronto (1920) 51
D.L.R. 444 at p. 451 and Cowan v. Canadian Broadcasting
Corporation [1966] 2 O.R. 309.
nor can it possibly impose any additional legal
obligation upon those members, nor can it really
be said to affect their interests prejudicially in any
direct sense.
Their interest in the solicitor-client relationship
between a prisoner legally confined under the laws
of Canada to a penal institution and his lawyer is
no more direct than that of any other member of
the general public. Since the solicitor-client privi
lege so clearly enshrined in our jurisprudence is
the privilege of the client and not that of the
solicitor, it might well be argued that the members
of the general public have a more direct interest in
an action in Court where one of the issues is the
parameters of the solicitor-client privilege. Thus, if
the applicant is correct in its submissions, any
member of the general public or any association or
associations purporting to represent the general
public or a segment thereof would have the right
to intervene in this action or any other action
where this issue arises.
I would not wish the above comments to be
taken in any way as a criticism of the motives of
the applicant in making this application. I believe
the association to be sincere in its concern over the
issues implicit in this action. However, a well
motivated concern and interest in the outcome of a
particular proceeding before the Court is not, per
se, a legal reason for permitting intervention and
participation in that proceeding.
Applicant's counsel, at the hearing before us,
sought to distinguish the Rothmans case (supra)
from the case at bar on the basis that the appli
cants in that case were seeking to initiate action by
way of one of the prerogative writs whereas in the
instant case, the applicant simply wishes to inter
vene for the purpose of filing a factum and pre
senting oral argument.
In my view, this distinction is not a valid one. In
its notice of motion the applicant asks for an order
granting it "standing as intervenants". To me, this
means that the applicant must, of necessity, estab
lish status or locus standi and in my opinion, the
ratio of the Rothmans case (supra) applies with
equal force to the circumstances here present.
The only factual difference is that in the Roth-
mans case (supra) the applicants were themselves
asking the Court for relief whereas in the instant
case, the applicant is asking to intervene to support
the appellant in his request for a declaration from
the Court. In each case, the result of according
status to the applicant would be to allow full and
complete participation in the proceedings before
the Court.
The question of status or standing before the
Court was also considered in this Court in the case
of R. v. Bolton [1976] 1 F.C. 252. That case was a
section 28 application to set aside a decision refus
ing a warrant of possession in respect of land
expropriated from the respondent under the feder
al Expropriation Act. The Court was hearing an
application on behalf of sixteen other persons from
whom other land had been expropriated, to be
heard on the argument of the subject section 28
application. In dealing with the matter the Chief
Justice stated as follows:
... counsel has not made any submission ... that, in our view,
can be construed as persuasive that any of the applicants is
affected by, or interested in, an order refusing or granting a
warrant of possession against the respondent in respect of the
land expropriated from him.
In our view, no matter how widely one interprets the Court's
power to permit persons to be heard, it does not extend to
permitting a person to be heard merely because he has an
interest in another controversy where the same question of law
will or may arise as that which will or may arise in the
controversy that is before the Court.
In my opinion, the ratio of the Bolton case, as
stated supra, applies with equal force to the case
at bar. Accordingly, on the particular facts in this
case, the applicant has failed to establish any right
to a status or standing entitling it to intervene in
this appeal.
Applicant's counsel, Mr. Ruby, submitted alter
natively that he be named as amicus curiae and as
such be given status to intervene in this appeal.
Leaving aside the question as to whether a
member of the bar has a status to apply to be
appointed as amicus curiae in a case where the
Court does not itself see the need for an amicus
curiae, I am not convinced, that on the facts and
circumstances here present, any useful purpose
would be served by acceding to this request. The
appellant's counsel, Mr. Cole, acknowledged that
he was a member of the applicant association.
Thus, it would seem to me that as such he is fully
conversant with the views of the association and is
in a position to present those views to the Court on
the hearing of the appeal. He also acknowledged
that he would welcome the assistance of Mr.,
Ruby. Thus, it would seem that Mr. Cole is in a
position to enlist the services of Mr. Ruby on
behalf of the appellant. Mr. Ruby argued, how
ever, that there could possibly be a conflict of
interest between the position of counsel for the
applicant association on the one hand and the
position of counsel for the appellant on the other
hand. In view of the fact that Mr. Cole advised us
that he would be "delighted to have Mr. Ruby
with me" and also in view of the fact that there is
on file an unconditional consent to the intervention
of the applicant association in subject appeal,
signed by Mr. Cole as solicitor for the appellant, it
is my view that this submission concerning a possi
ble conflict of interest is without merit.
For the foregoing reasons, I would dismiss the
application. Since costs were not asked for, I
would make no order as to costs.
* * *
The following are the reasons for judgment
rendered in English by
URIE J.: I have had the advantage of reading
the reasons for judgment of my brother Heald J.,
and, while I certainly agree with his conclusion, I
would prefer to base that conclusion on a rather
narrower ground than he does. I will briefly indi
cate why I think that the application should be
refused. I need not review the facts since they are
sufficiently stated in Mr. Justice Heald's reasons.
May I first state that I agree with him that, for
the applicant to succeed, it must show that it has
an interest in the proceedings and this it has failed
to do. In paragraphs 5 and 6 of his statement of
claim, the appellant (plaintiff) sets forth the basic
facts upon which he relies to support the claim
which he makes in paragraph 7. Those paragraphs
read as follows:
5. The Defendant John Dowsett or his lawful deputy or depu
ties derive authority to inspect all incoming and outgoing mail
from the Penitentiary Service Regulations and Commissioner's
Directives passed thereunder.
6. The Plaintiff claims that letters to and from his solicitor are
constantly being opened by the said John Dowsett or his deputy
or deputies.
7. The Plaintiff claims this practice denies to him the common
law right to privileged communications between himself and his
solicitor.
From these it is abundantly clear that the claim
is based upon grievances personal to the appellant.
It is not an action brought by a plaintiff on behalf
of the inmates of an institution as a class, as well
as on his own behalf. If any support is required for
that observation, it comes from the prayer for
relief where, in paragraph lettered (a), Solosky
requests:
(a) A declaration of this Honourable Court that properly
identified items of correspondence directed to and received
from his solicitor shall henceforth be regarded as privileged
correspondence and shall be forwarded to their respective desti
nations unopened;
It is Solosky's correspondence to and from his
solicitor and his alone which he seeks to have
regarded as privileged and thus not to have
opened. He does not seek a declaration that the
regulation, applying as it does to all inmates of
federal penal institutions, authorizing the inspec
tion of incoming and outgoing mail, is ultra vires.
Rather, the relief he claims indicates that the
regulation ought not to be applied to him in so far
as it purports to apply to any correspondence
between his solicitor and himself. It is clear
beyond doubt, therefore, that the applicant asso
ciation can have no interest, direct or indirect, in
Solosky's claim as framed, and thus it ought not to
be permitted to intervene and present argument in
the appeal.
In respect to the submission that, if the associa
tion is not permitted to intervene, its counsel, Mr.
Ruby, ought to be permitted to present argument
on the issues in the appeal as amicus curiae, I
make the following observations.
The appellant Solosky is represented in the
appeal by the same counsel who appeared for him
at trial. Counsel advised the Court that he devotes
his practice largely to criminal matters, that he is
a member of the association, with certain members
of which he had discussed this case and that he is
familiar with the concerns of the association in the
matters at issue in the appeal. When questioned as
to why then he could not present the views of the
association on the issues, both he and counsel for
the association said that there might be constraints
placed upon the extent of the appellant's argument
due to the particular interests or instructions of his
client, which constraints would not be inhibiting
factors in the presentation of the association since
it did not represent Solosky. In addition, both
stated that it was the point of view of the solicitor
in matters relating to privileged communications
rather than that of the barrister representing a
particular client which required the submissions of
counsel for the association.
While so stating, counsel said he welcomed the
intervention of the association and would be
pleased to have its support on the appeal. Most
importantly, he pointed out that, on behalf of his
client, he had filed an unqualified consent to the
intervention. In my view, such a consent has the
effect of obviating any constraints which might be
placed on counsel by his client since implicitly it
would enable appellant's counsel to present all
possible arguments on the issues irrespective of
their possible adverse effect on the appellant.
Alternatively, Mr. Ruby or some other counsel
could associate himself with appellant's counsel on
the appeal to present such further argument as he
might deem advisable. For these reasons, there is
no discernible necessity for permitting Mr. Ruby
to address the Court as amicus curiae.
For the above reasons, I would dismiss the
application.
* * *
MACKAY D.J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.