Solicitor Client Privilege

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General Principles

Constitutional Protection
Solicitor-client rivilege is not simply a rule of evidence but is also constitutionally protected as a "principle of fundamental justice".[1]

This privilege is the "highest privilege recognized by the courts" which is "fundamental to the administration of justice" and "essential to the effective operation of the legal system".[2] Violation of this privilege can "erode the public's confidence in fairness of the criminal justice system."[3] As accused persons must have confidential access to advice to made properly informed decisions.

Consequences of Privilege
Solicitor-client privilege is a "class privilege" and presumptively rendered records inadmissible.[4]

  1. Canada (National Revenue) v Thompson, 2016 SCC 21 (CAnLII) at para 17
    R v McClure, [2001] 1 S.C.R. 445, 2001 SCC 14 (CanLII), per Major J, at p. 453 to 460
    See also Principles of Fundamental Justice
  2. Smith v Jones 1999 CanLII 674 (SCC), [1999] 1 SCR 455, at para 44 and 50
  3. Lavallee, Rackel & Heintz v Canada (AG) 2002 SCC 61 (CanLII), [2002] 3 SCR 209 at para 49
  4. R v McClure, 2001 SCC 14 (CanLII), [2001] 1 SCR 445 at para 27 per Major J
    R v Gruenke, 1991 CanLII 40 (SCC), [1991] 3 SCR 263 per Lamer CJ at p. 286

Where it Exists

Not all work product of a lawyer is solicitor-client privileged and not every communication with a client is privileged either.[1]

The privilege exists where a written or oral communication is:[2]

  1. made in confidence or be of a confidential in nature;
  2. made to a professional legal advisor;
  3. for the purpose of giving and receiving legal advice.

This privilege applies not only between a lawyer and their retained client, but can also apply between a Crown attorney and a police officer seeking legal advice.[3]

Statements taken by an investigator on behalf of the defence is privileged and cannot be subject of disclosure to the crown.[4]

A document received by a lawyer and put the lawyer's file is not automatically privileged.[5]

Handwritten notes made by a lawyer on a document will become privileged along with the document upon which the notes were written.[6]

Communications through an intermediary will not generally affect its privileged status.[7]

Communications with Court-house duty counsel can be included in solicitor-client protections.[8]

Presumptions
As a general rule, "any information received by a lawyer in his professional capacity concerning his client's affairs is prima facie confidential unless it is already notorious or was received for the purpose of being used publicly or otherwise disclosed in the conduct of the client's affairs.".[9]

Communications with Third Parties
Communications between a third party and counsel or a client and third party will be privileged only where the communication is "integral to the client-solicitor function".[10] Protection will not be extended to those who perform service which are "incidental to the seeking and obtaining of legal advice."[11]

Where the third party is used as an intermediary between counsel and client

Examples of Application of Privilege
The following have been considered privileged information:

  • Emails between counsel and clients[12]
  • conversations between counsel and client in the courtroom even if caught on recording device.[13]
  • phone wiretap between counsel and client [14]
  • identity of person paying legal fees[15]
  • lawyer bills and statement of accounts regarding clients[16]
  • timing of when advice was given is not privileged[17]

Presumptions
There is a presumption of privilege on all communications and information shared between client and lawyer.[18]

  1. McClure, supra at para 36
  2. R v Campbell, 1999 CanLII 676, [1999] 1 SCR 565 at para 49 [also referred to as R v Shirose]
    R v Solosky, 1979 CanLII 9 (SCC), [1980] 1 SCR 821 at p. 835
    R v Basi, 2008 BCSC 1858 (CanLII)
  3. R v Caines, 2011 ABQB 660 (CanLII)
  4. R v Peruta; R v Brouillette (1992) 78 CCC (3d) 350 1992 CanLII 3597 (QCCA)
  5. Mitsui & Co. (Point Aconi) Ltd. v Jones Power Co., 2000 NSCA 96 (CanLII); [2000] NSJ No. 258 at para 36
  6. Mitsui & Co. (Point Aconi) Ltd. v Jones Power Co., ibid. at para 36
  7. R v Littlechild, 1979 ABCA 321 (CanLII) at para 15
    Re Alcan-Colony Contracting Ltd. and The Minister of National Revenue (1971) 1971 CanLII 405 (ON SC), 2 O.R. 365
  8. R v Pea, 2008 CanLII 89824 (ON CA)
  9. Ott v. Fleishman, 1983 CanLII 489 (BC SC), [1983] 5 W.W.R. 721, 46 B.C.L.R. 321, 22 B.L.R. 57 (S.C.), McEachern C.J.B.C.
  10. General Accident Assurance Co. v. Chrusz (1999), 1999 CanLII 7320 (ON CA), 180 D.L.R. (4th) 241 (Ont. C.A.), per Doherty JA at paras 124 to 126
    Hoy v Medtronic, 2001 BCSC 944 (CanLII)
  11. Hoy, ibid. at paras 42 to 43
  12. R v 1496956 Ontario Inc. (Stoneridge Inc.), 2009 CanLII 12328 (ON SC) at para 12
  13. R v Higham, 2007 CanLII 20103 (ON SC) at para 21 to 22
  14. R v Martin, 2010 NBCA 41 (CanLII) at para 64-65
  15. Kaiser (Re), 2012 ONCA 838 (CanLII) at para 44 to 45
  16. Maranda v Richer, 2003 SCC 67 (CanLII), [2003] 3 SCR 193 at paras 21-34
  17. Blue Line Hockey Acquisition Co., Inc. v. Orca Bay Hockey Limited Partnership, 2007 BCSC 143 (CanLII)
  18. Foster Wheeler v Societe intermunicipale de gestion et d'elmination des dechets, 2004 SCC 18 (CanLII) at para 42

Holder of Privilege

The privilege belongs to the client and not the lawyer. It can only be waived by their informed consent.[1]

The identity of the "client" is a question of fact.[2]

The "client" of any lawyers in the Attorney General's office is the "executive branch of government".[3] However, the authority to waive privilege is not exclusively held by the Executive Council, such as government Cabinet.[4]

It is the police service, as a whole, and not the specific officer, who holds the privilege on police advice.[5]

  1. R v McClure, 2001 SCC 14 (CanLII), [2001] 1 SCR 445 at para 37
    Lavallee, Rackel and Heintz v Canada (Attorney General), 2002 SCC 61 (CanLII), [2002] 3 SCR 209, at para 39
  2. R v Campbell, 1999 CanLII 676, [1999] 1 SCR 565 at Para. 67
  3. Nova Scotia v Peach, 2011 NSCA 27 (CanLII) at para 12
  4. Peach, ibid. at para 27
  5. R v Campbell, supra, at para 67

Waiver of Solicitor-Client Privilege

Only the client can waive solicitor-client privilege.[1] It must be waived intentionally.

There can be implicit wavier depending on the circumstances.[2]

Inadvertently disclosing privileged information does not automatically result in a waiver of privilege. Implied waiver could be established by knowledge of disclosure of the information and silence in response to disclosing the documents. The court must look at all the circumstances.[3]

The client cannot be compelled to waive privilege by answering questions in the course of litigation. [4]

A waiver of privilege can arise from an accused making allegations attacking competency of counsel using what would otherwise be privileged information.[5] The waiver of privilege only covers evidence concerning the issue alleged.[6]

The existence of waiver does not necessarily mean that all communications become waived. Waiver can be limited to specific subjects.[7]

  1. R v McClure, 2001 SCC 14 (CanLII), [2001] 1 SCR 445 at para 37
  2. R v Creswell, 2000 BCCA 583 (CanLII), (2000), 149 CCC (3d) 286 (BCCA) at paras 41-3
    Chapelstone Developments Inc. v Canada, 2004 NBCA 96 (CanLII), (2004), 191 CCC (3d) 152 (N.B.C.A.), at paras 45-6, 49-51, 55, 59
  3. R v Chapelstone Developments Inc. 2004 NBCA 96 (CanLII)
  4. R v Creswell, 2000 BCCA 583 (CanLII), 149 CCC (3d) 268
  5. R v Hobbs 2009 NSCA 90 (CanLII) at para 21
    R v West 2009 NSCA 94 (CanLII) at para 16
  6. R v Dunbar [1982] OJ No 581 (ONCA)(*no link) at 67
  7. e.g. R v Marriott, 2013 NSCA 12 (CanLII) at para 42

Crown Advice to Police

The advice of Crown Attorney's to police is solicitor-client privileged.[1]

The Crown has the burden to establish an evidentiary foundation that privilege exists.[2] This would include evidence establishing that the communication was made for the purpose of seeking legal advice.[3]

There does not seem to be any diminished standard for Crown/Police privilege over regular solicitor/client privilege.[4]

Legal advice by an "in-house" lawyer will be privileged the same way as any other lawyer.[5]

crown legal advice provided to assist in developing policy will be protected as privileged.[6]

An officer compelled to answer questions in cross-examination that results in evidence about legal advice he received does not amount to a waiver of privilege between Crown and police.[7]

  1. R v Caines, 2011 ABQB 660 (CanLII)
  2. R v Chan 2002 ABQB 753 (CanLII), (2002), 168 CCC (3d) 396 at para 41
    R v Welsh, 2007 CanLII 17641 (ON SC) at para 12
  3. see Welsh at para 11 to 13
    Mitsui & Co. (Point Aconi) Ltd. v Jones Power Co., 2000 NSCA 96 (CanLII) at para 30
  4. R v Trang, 2002 ABQB 390 (CanLII) at para 18
  5. Pritchard v Ontario (Human Rights Commission), [2004] 1 SCR 809, 2004 SCC 31 (CanLII)
  6. R v Newborn, 2015 ABQB 393 (CanLII)
  7. see R v Rutigliano, 2015 ONCA 452 (CanLII) at para 40

Exemptions from Solicitor-Client Privilege

There are three primary occasions when solicitor‑client privilege may be overruled, namely when innocence at stake is engaged, the client's communications are themselves criminal, or it is necessary to protect public safety.[1]

  1. Smith v Jones, 1999 CanLII 674 (SCC), [1999] 1 SCR 45

Innocence at Stake

The threshold test for innocence at stake exemption from privilege has a two-step process. The accused must establish that:[1]

  • the information he seeks from the solicitor-client communication is not available from any other source; and
  • he is otherwise unable to raise a reasonable doubt.
  • If the threshold has been satisfied, the judge should proceed to the innocence at stake test, which has two stages.
    • Stage #1: The accused seeking production of the solicitor-client communication has to demonstrate an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his guilt.
    • Stage #2: If such an evidentiary basis exists, the trial judge should examine the communication to determine whether, in fact, it is likely to raise a reasonable doubt as to the guilt of the accused.
  • It is important to distinguish that the burden in the second stage of the innocence at stake test (likely to raise a reasonable doubt) is stricter than that in the first stage (could raise a reasonable doubt).
  • If the innocence at stake test is satisfied, the judge should order disclosure of the communications that are likely to raise a reasonable doubt, in accordance with the guiding principles discussed.

Privilege will not be permitted in criminal cases where the "the person claiming privilege no longer has any interest to protect, and when maintaining the privilege might screen from the jury information which woudl assist an accused".[2]

Burden
The onus is upon the party claiming the existence of privilege. Once established, the burden switches to the party seeking to rely on the exception.[3]

  1. R v McClure 2001 SCC 445 (CanLII)
    R v Brown, 2002 SCC 32 (CanLII), [2002] 2 SCR 185
  2. R v Dunbar, 1982 CanLII 3324 (ON CA), per Martin JA, at para 80
  3. Hubbard and Magotiaux, and Duncan, "The Law of Privilege in Canada " (Canada Law Book, 2016) at 11.190.30

Criminal Communications Exception

Any legal "communications that are criminal in themselves" (such as a fraudulent legal aid application) or are "intended to obtain legal advice to facilitate criminal activities are not privileged".[1]

However, before the privilege will be removed the party seeking to remove privilege must establish a "prima facie case of fraud". A mere allegation is not enough.[2]

This exception only applies in limited fashion, or else it risks preventing any person charged with fraud from safely seeking legal advice.[3]

Future Crimes Exception
The second branch of the criminal prohibition to privilege that relates to lawyers "facilitating criminal activities" is also referred to as the "future crimes exception".[4]

This exception applies not just to communications that are "necessarily criminal in nature", it may also apply to communications in relation to any "unlawful conduct" that "causes injury to the legal rights of other citizens", which includes "breaches of regulatory statutes, breaches of contract, and torts and other breaches of duty".[5]

The future crimes exception requires the following elements:[6]

  1. the challenged communications must pertain to proposed future conduct;
  2. the client must be seeking to advance conduct which it knows or should know is unlawful; and
  3. the wrongful conduct being contemplated must be clearly wrong.

Each of these elements are to be applied "stringently".[7]

It is considered "immaterial whether the lawyer was an unwitting dupe or knowing participant in providing the advice underlying the wrongful conduct"[8] The focus is upon whether the client "had an illegal purpose in mind" not whether the lawyer was aware.[9]

  1. Smith v Jones, [1999] 1 SCR 455, 1999 CanLII 674 (SCC) at para 55
    Descôteaux v Mierzwinski, [1982] 1 SCR 860 - re fraudulent legal aid application
    R v Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565
  2. Canbook Distribution Corp. v. Borins, 1999 CanLII 14842 (ON SC), at para 19
  3. Canbook Distribution Corp. v. Borins,, ibid. at para 21
  4. Smith v Jones, supra
    McDermott v. McDermott, 2013 BCSC 534 (CanLII) at paras, 71, 74
  5. McDermott, ibid. at paras 72 to 73
  6. McDermott, ibid. at para 75
  7. McDermott, ibid. at para 75
  8. R v Solosky, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821 at 835-836
  9. Markson v. MBNA Canada Bank, 2011 ONSC 871 (CanLII) at para 59

Public Safety

Public safety will outweigh the interests of privilege in only "rare circumstances".[1]

  1. Smith v Jones, [1999] 1 SCR 455, 1999 CanLII 674 (SCC), at para 74

Other Exemptions

Statutory Exemption

Legislation can exempt documents from solicitor-client privilege protections only where it is "absolutely necessary".[1]

Law Society Regulation
A Law Society has a right to access the privileged records of a member for the purpose of investigating complaints against a member.[2]

  1. Canada (National Revenue) v Thompson, 2016 SCC 21 (CanLII)
    Canada (Attorney General) v Chambres Notaires du Quebec, 2016 SCC 20 (CanLII)
  2. Law Society of Saskatchewan v. Merchant, 2008 SKCA 128 (CanLII), leave to SCC denied

See Also