Criminal Procedure for Fiduciary or Confidential Relationship

Question: Discuss about theCriminal Procedure for Fiduciary or Confidential Relationship. Answer: Generally, a lawyer and client maintain a fiduciary or confidential relationship between each other as stated in decision of Descteaux v. Mierzwinski [1982] 1 SCR 860 where the Court recognise the communication of client and solicitor as confidential and fundamental right. However the response to the problem deals with an exception of the privilege of solicitor client that is (1) Where nature of lawful guidance is not pursued; (2) Where no intentions to make any confidential communication; (3) Communication is in nature of fostering any illegitimate conduct of client (Lefstein, 2007). The primary object of the privilege communication is to build a privacy area in order to preserve confidentiality without accusatorial meddling in litigation and without distress of early discovery of privileged communication. In support of response to the problem, the court is not bound to maintain the privileged communication in any circumstances (Griffiths, 2014). The general rule of section 4(3) of the Canada Evidence Act state that that no spouse communication can be obliged to testify in any criminal matter as ruled under R. v. Schell (2004), 188 C.C.C. (3d) 254, 20 C.R. (6th) 1 (Alta. C.A.)., where the Court held that spousal privileged communication deals with a vital principle of the protection of marital harmony. It is a fundamental principle that no spousal privileged communication is protected by the court unless it is declared or asserted. Such spousal privileged communication completely depends on the assertion of the spouse. In order to establish the principle of the spousal privileged, the counselor of spouse has to declare a right of spousal immunity and must distinguish between the scope of spousal testimonial privileged and spousal privilege. (Posner, 2008) The following conversation are protected in spousal privileged are The communication either in the form of oralorwritten. Thecommunicationmustbein nature ofaconfidentialcharacter. Any communication discloses any criminal liability over a spouse. Thecommunicationmustcreateina permanentassurancethatitneverbedisclosed to any other (Martin, 2001). Informer privileged has been originated by the leading case of 19th century Marks v Beyfus (1890), 25 QBD 494. The case deals with a significant factor to protect the informer because informer plays a vital role in the protection of material evidences during investigation. The verdicts were that informer is classified under special criteria of class privilege where absolute protection is provided to the informer. Even the court cannot exercise its discretionary power to waive the protection to informer privilege (Haig, Raikes MacMillan, 2014). The specific category of privilege is provided to police informer. The police informer plays a vital role in concealing the important sources or information or networks of the police and also provides aid to police in any investigation process of the case. The court examines the legal application in the case of R. v. Named Person B, 2013 SCC 9 to protect the police informer in order to assure the confidentiality in any official matters. The court considers the view that police informer deemed to be a hidden agent of the police who ultimately work in interest of public. The two ways by which Crown Prosecutor can invoke informer privilege are The crown prosecutor can invoke the application of section 37 of theCanada Evidence Act. The case R v Meuckon (1990), 57 CCC (3d) 193 (BCCA) states that assertion can be personally claimed by the prosecutor. The appeal of acquittal can be requested by the crown prosecutor by asserting the court that opposite counsel does not support the verdicts and it does not provide any material evidences to the case. If the disclosure is not feasible then in such condition the crown is available with an option to stay the court proceedings under section579of theCriminal Codeon a ground of an unexceptional circumstance made out in a case where the justice can be preserved and maintained in favour of informer privileges. Such option availed the opportunity to re commence the litigation in future. The only exception to informer privilege is that Innocence at Stake. The exception permits the breach of privileged on a factor raise on reasonable doubt. Under this exception, the informer privilege and solicitor and client privileged are not offended by any breach in a privileged communication. The exception to innocence at stake specified in case of R v. Leipert (Gillers, 2014). References Gillers, S. (2014).Regulation of Lawyers: Problems of Law and Ethics. Wolters Kluwer Law Business. Lefstein, N. (2007). The Criminal Defendant Who Proposes Perjury: Rethinking the Defense Lawyer's Dilemma.Hofstra L. Rev.,6, 665. Griffiths, C. (2014).Canadian Criminal Justice: A Primer, 5e(Vol. 5). Nelson Education. Posner, R. A. (2008). Privacy, surveillance, and law.The University of Chicago Law Review,75(1), 245-260. Haig, J., Raikes, G., MacMillan, V. (2014).Cites sources: An APA documentation guide. Nelson Education. Martin, D. L. (2001). Lessons about justice from the laboratory of wrongful convictions: Tunnel vision, the construction of guilt and informer evidence.UMKC L. Rev.,70, 847.