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Les Mackoff Featured in New Book about Canadian Legal Ethics

Les Mackoff was featured in the opening chapter of a new book titled In Search of the Ethical Lawyer: Stories from the Canadian Legal Profession, released in January 2016. The chapter “Keeping Secrets or Saving Lives: What Is a Lawyer to Do?”, written by the book’s co-editor Adam Dodek, discusses ethical issues that arise in cases that challenge a lawyer’s duty of confidentiality and solicitor-client privilege.

The chapter touches upon the quandaries faced by lawyers whose clients may pose a threat to public safety. Mr. Mackoff was interviewed in October 2013 for the chapter, and was asked to comment on his involvement in the case of Smith v. Jones [1999] 1 SCR 455, a matter that dealt with the public safety exception to solicitor-client privilege (a warning: certain details in the book’s chapter and in the Smith v. Jones case may be disturbing to some readers).

The Smith v. Jones case dealt with an individual, referred to in the case as “Mr. Jones”, who had been charged with aggravated sexual assault. Mr. Jones had been sent to a psychiatrist for a referral at the request of Mr. Mackoff, and the psychiatrist came to the conclusion that Mr. Jones was dangerous and would more likely than not commit a future offence if he did not receive treatment. Mr. Jones eventually entered into a plea agreement with the Crown. After the plea agreement was reached, the psychiatrist who assessed Mr. Jones commenced the Smith v. Jones action with the B.C. Supreme Court for a declaration releasing him from his duty of confidentiality, thereby allowing him to disclose his opinion about Mr. Jones to the police and to the Crown.

The case was eventually heard by the Supreme Court of Canada in 1999. The chapter succinctly describes the interesting procedural history of the Smith case, and also sheds light on the case from a “behind the scenes” perspective, relying on an interview with Mr. Mackoff and with Mr. Paul Schabas, the lawyer who appeared on behalf of the intervenor Southam Inc. when the case was heard at the Supreme Court of Canada. The lawyer appearing for the respondent “Dr. Smith”, was Mr. Christopher Hinkson, who is now the Chief Justice of the Supreme Court of British Columbia; the Honourable Mr. Justice Hinkson was not interviewed for the chapter.

Ultimately, the Supreme Court of Canada in Smith v. Jones reiterated solicitor-client privilege as a cornerstone of the administration of justice. The court found, however, that solicitor-client privilege is not absolute and will be subject to limited exceptions, including the exception of public safety. The court rules that in appropriate circumstances, solicitor-client privilege may be set aside where the interests of public safety are outweighed. The author of the chapter, Mr. Dodek, notes that while the Supreme Court of Canada did not set out guidelines for what counsel ought to do when faced with a challenge relating to solicitor-client privilege, various law societies have enacted discretionary rules where a lawyer may disclose information to authorities when he or she feels that his or her client is a clear, serious, and imminent threat to public safety.

In Search of the Ethical Lawyer: Stories from the Canadian Legal Profession is a collection of real-life stories from Canadian lawyers and writings from leading Canadian jurists examining the conflicts that arise between the law and ethics. The book’s editors and contributing authors are all members of the Canadian Association for Legal Ethics .

In Search of the Ethical Lawyer: Stories from the Canadian Legal Profession was released in January 2016 by UBC Press and is available now in hardcover format through the UBC Press and other book retailers.


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