Joint Defense Agreement Canada

- April 10, 2021

In August 1940, when the late President Roosevelt and I, as Prime Minister of Canada (3), jointly announced the creation of the Board of Directors, it was said that the committee would “begin immediate studies on maritime, land and air issues, including personnel and equipment. It will look more broadly at the defence of the northern half of the Western Hemisphere. (4) In the exercise of this ongoing responsibility, the committee`s work has resulted in the establishment of a model of close cooperation in the field of defence. The principles announced today will continue in this cooperation. It was up to governments to ensure that the close security relationship between Canada and the United States in North America had no impact, but rather to strengthen cooperation between individual countries within the broader framework of the United Nations. Since an unspoken relationship between counsel and client is generally determined on the basis of the reasonable perspective of the potential client, a well-written common defence agreement can confirm that the parties accept that there was no solicitor-client relationship with co-parties for any purpose. To obtain the privilege of communicating with others, a party must generally show three things: that the communication ended in a common defence, that the communications were made to support the objectives of that common defence, and that the privilege was not nullified elsewhere (i.e. that the common defenders do not share communication beyond their small group). Canadian cases found that there was no need for a formal agreement on the parties` intention to rely on the privilege of the common interest. On the contrary, it is sufficient for the co-accused to speak to each other in the preparation of a common defence.20 On the other hand, cases in the United States indicate that it may be difficult, at least in some states, to invoke the privilege of the common interest in the absence of an explicit agreement.21 The need for separate legal assistance for different defendants in the same dispute demonstrates one of the risks of a common defence. Interests between parties with different lawyers are rarely completely the same.

When these competing interests develop into real differences in approach, strategy or solution, the common defence label is called into question. 21 See R G Morvillo, “Modernizing Joint Defence Agreements,” (1999) NYLJ 3. However, this issue is being debated. See United States v LeCrow, 348 F Supp (2d) 375 at 381 (2004): “While privileges must be interpreted in a restrictive manner and extensions are carefully expanded,” […] the courts have held that an oral common defence agreement may be valid. See also US v Gonzalez, 669 F (3d) 974 to 981 (2012). There is also some discussion about the value of JDAs written in states where the privilege of the common interest will clearly apply without written agreement. The traceability of a JDA can be bad for a jury. Many of the same practical concerns are shared across the border: that a lawyer`s ethical duty to a defendant should not be extended to all parties to the agreement; that there are clear remedies for breaches of prerogatives; The allocation of expenditures and resources; and that the parties retain the option of terminating the JDA if necessary.

Discussion