Solicitor-Client Privilege

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 90683)

General Principles

See also: Principles of Fundamental Justice

Solicitor-client privilege is a legal doctrine that protects written and oral communications that were made in confidence between a legal advisor and client for the purpose of obtaining legal advice.[1]

Purpose

The protections are based on the premise that the relationship and communications between client and lawyer are "essential to the effective operation of the legal system."[2] The client must be able to speak openly with the lawyer, free from the fear that they may be required to divulge anything.[3]

It is said that confidentiality between lawyer and client "is essential to the maintenance of a just and effective justice system."[4]

It is an expression of the law's need for client autonomy and to ensure access to justice.[5]

It is necessary to ensure that clients are able to have candor with their counsel.[6]

Constitutional Protection

Solicitor-client privilege is not simply a rule of evidence but is also constitutionally protected as a "principle of fundamental justice."[7]

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."[8] Violation of this privilege can "erode the public's confidence in fairness of the criminal justice system."[9] As accused persons must have confidential access to advice to made properly informed decisions.

Duty to Protect Privilege

It is the duty of counsel to protect the confidentiality of their clients.[10]

It is also the duty of the court to not permit intrusion upon privilege where it might exist.[11]

Consequences of Privilege

Solicitor-client privilege is a "class privilege" and presumptively rendered records inadmissible.[12]

Privileged records are not to be disclosed and are "inadmissible in court.”[13]

The protection afforded to solicitor-client records is permanent.[14]

Burden of Proof

The privilege claimant bears the burden to prove on a balance of probabilities that each document asserted to be privileged is in fact privileged.[15] Failure to meet the standard of proof will result in a finding that privilege has not been established.[16]

However, it must be remembered that privilege does not "come into being" by the assertion of the right. It exists independently of any claim to it.[17] Consequently, a failure to assert privilege does not equate to a waiver of privilege or an admission of the non-existence of privilege.

Similarly, there are recognized presumptions in favour of privilege in certain types of records, including lawyer client communciations.[18]

Who Can Claim Privilege

Only the client who owns the privilege can raise the issue in court.[19] It is then only the client or their agent or successor that can waive privilege.[20]

Privilege vs Confidentiality

The principles of privilege and confidentiality are separate but overlapping. A lawyer's obligation for confidentiality expands beyond privilege. It is a rule of ethics that protects all communications between the lawyer and client, irrespective of it's relationship to legal advice. This role does not protect against commission evidence or judicial authorizations. The contours of the rule are usually covered by the rules of ethics for barrister's of the particular province or territory.

Standard of Appellate Review

The issue of whether a document is protected by privilege is a question of “mixed fact and law” and so deference is required on review. Absent “extricable error in principle” the review is on the standard of palpable and overriding error. [21]

History

Historically, it was a right that was generally held by the barrister was premised on the protection of the "oath and honour" of the counsel.[22]

The more modern Canadian history of privilege began with privilege as rule of evidence that prohibited the admission of legal advice or proceedings.[23]

In Solosky v Canada[24] , the evidentiary rule was modified to a substantive rule of law.[25] Later, it was raised to a "fundamental civil and legal right."[26]

  1. ↑ R v Campbell, 1999 CanLII 676 (SCC), [1999] 1 SCR 565, per Binnie J (9:0), at para 49 [also referred to as R v Shirose]
    R v Solosky, 1979 CanLII 9 (SCC), [1980] 1 SCR 821, per Dickson J, at p. 835
    R v Basi, 2008 BCSC 1858 (CanLII), BCJ No 2725, per Bennett J
  2. ↑ R v Gruenke, 1991 CanLII 40 (SCC), [1991] 3 SCR 263, per Lamer CJ, at p. 289 (SCR) ("The prima facie protection for solicitor-client communications is based on the fact that the relationship and the communications between solicitor and client are essential to the effective operation of the legal system. Such communications are inextricably linked with the very system which desires the disclosure of the communication.")
  3. ↑ Smith v Jones, 1999 CanLII 674 (SCC), [1999] 1 SCR 455, per Cory J, at para 45 ("... by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, ... he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation.")
  4. ↑ General Accident Assurance Company v Chrusz, 1999 CanLII 7320 (ON CA), 180 DLR (4th) 241, per Doherty JA (dissenting in part on a different issue) ("the right of a party to maintain the confidentiality of client-solicitor communications, and sometimes communications involving third parties, rests on the equally fundamental tenet that the confidentiality of those communications is essential to the maintenance of a just and effective justice system.")
  5. ↑ Chrusz, supra ("The privilege is an expression of our commitment to both personal autonomy and access to justice.")
  6. ↑ Chrusz, supra ("...rationale goes beyond the promotion of absolute candor in discussions between a client and her lawyer...")
  7. ↑ Canada (National Revenue) v Thompson, 2016 SCC 21 (CanLII), [2016] 1 SCR 381, per Wagner and Gascon J, at para 17
    R v McClure, 2001 SCC 14 (CanLII), [2001] 1 SCR 445, per Major J (9:0), at pp. 453 to 460
    See also Principles of Fundamental Justice
  8. ↑ Smith v Jones, supra, at para 44 (" It is the highest privilege recognized by the courts. By necessary implication, if a public safety exception applies to solicitor‑client privilege, it applies to all classifications of privileges and duties of confidentiality.") and 50 ("...solicitor‑client privilege is the privilege “which the law has been most zealous to protect and most reluctant to water down by exceptions”. Quite simply it is a principle of fundamental importance to the administration of justice.")
  9. ↑ Lavallee, Rackel & Heintz v Canada (AG), 2002 SCC 61 (CanLII), [2002] 3 SCR 209, per Arbour J (6:3), at para 49
  10. ↑ Solosky v The Queen, 1979 CanLII 9 (SCC), [1980] 1 SCR 821, per Dickson J
    See also Codes of Conduct for members of the bar of each province
  11. ↑ R v AB, 2014 NLCA 8 (CanLII), 346 Nfld & PEIR 218, per Harrington JA
  12. ↑ R v McClure, 2001 SCC 14 (CanLII), [2001] 1 SCR 445, per Major J (9:0), at para 27
    Gruenke, supra, at p. 286
  13. ↑ Lavallee, supra, at para 24
  14. ↑ AARC Society v Sparks, 2018 ABCA 177 (CanLII), per curiam, at para 2
    Blank v Canada (Minister of Justice), 2006 SCC 39 (CanLII), [2006] 2 SCR 319, per Fish J, at para 37
  15. ↑ Huang v Silvercorp Metals Inc, 2017 BCSC 795 (CanLII), per Warren J, at para 94
    Bank of Montreal v Tortora, 2009 BCSC 1224 (CanLII), per Butler J, at para 30
    Raj v Khosravi, 2015 BCCA 49 (CanLII), per Smith JA, at para 9
  16. ↑ Huang, supra, at para 94
    Bank of Montreal v Tortora, supra, at para 30
    Raj, supra, at para 9
  17. ↑ Lavallee, Rackel & Heintz v Canada (AG), 2002 SCC 61 (CanLII), [2002] 3 SCR 209, per Arbour J (6:3), at para 49
  18. ↑ see "Presumption of Privilege" below for details
  19. ↑ R v Jack, 1992 CanLII 2764 (MB CA), 70 CCC (3d) 67, per Scott CJ
    Smith v Jones at para 46
    Geffen v Goodman Estate at 383 (SCR)
    Metcalfe v Metcalfe, 20021 MBCQA 35 (CanLII) at para 13
  20. ↑ Metcalfe at para 13
    Geffen at p.. 383 to 384 (SCR)
  21. ↑ Girouard v Canadian Judicial Council, 2019 FCA 252 (CanLII) per De Montigny JA , at para 15
    Redhead Equipment v Canada (Attorney General), 2016 SKCA 115 (CanLII), 402 DLR (4th) 649, per Ottenbreit JA, at #par21 para 21
    R v Ragnanan, 2014 MBCA 1 (CanLII), per Hamilton JA, at para 37
    Goodswimmer v Canada (Attorney General), 2015 ABCA 253 (CanLII), 606 AR 291, per curiam(2:1) , at para 8
    Sable Offshore Energy Project v Ameron International Corporation, 2015 NSCA 8 (CanLII), 38 CLR (4th) 1, per Bourgeois JA, at para 43
    Revcon Oilfield Constructors Incorporated v Canada (National Revenue), 2017 FCA 22 (CanLII) per Stratas JA, at para 2
  22. ↑ Solosky v The Queen, 1979 CanLII 9 (SCC), [1980] 1 SCR 821 It was ultimately rejected in R v McClure, 2001 SCC 14 (CanLII), [2001] 1 SCR 445
  23. ↑ Canada (National Revenue) v Thompson, 2016 SCC 21 (CanLII), [2016] 1 SCR 381, at para 17 ("Solicitor-client privilege has evolved from being treated as a mere evidentiary rule to being considered a rule of substance and, now, a principle of fundamental justice ")
    Descôteaux et al. v Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 SCR 860 ("Although we recognize numerous applications of it today, the right to confidentiality did not first appear until the 16th century, and then did so as a rule of evidence")
    Berd v Lovelace (1577), 21 E.R. 33 (UK)
    Dennis v Codrington (1580), 21 E.R. 53 (UK)
    see also NJ Williams, "Discovery of Civil Litigation Trial Preparation in Canada" Can. B. Rev., (1980): https://cbr.cba.org/index.php/cbr/article/view/3071/3064
  24. ↑ Solosky, supra
  25. ↑ Solosky, supra, at p. 1mjtq ("Recent case law has taken the traditional doctrine of solicitor-client privilege and placed it on a new plane. Privilege is no longer regarded merely as a rule of evidence which acts as a shield to prevent privileged materials from being tendered in evidence in a court room.")
  26. ↑ Geffen v Goodman Estate,
    Smith v Jones, McClure, supra

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] Privilege applies only to communications that are made for a "legitimate purpose of obtaining lawful legal advice."[2]

Where there is any ambiguity or uncertainty as to the application of privilege favour should go to the protections of confidentiality.[3]

The privilege exists where a written or oral communication is:[4]

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

Privilege does not apply to those communications:[5]

  1. where legal advice is not sought or offered;
  2. where it is not intended to be confidential; or
  3. that have the purpose of furthering unlawful conduct

Privilege will extend beyond the contents of the communication and will include any materials "directly related" to the "seeking, formulating or giving of legal advice or legal assistance."[6]

Fact vs Communications

Traditional analysis makes a distinction between protected communications and mere facts including acts of counsel or statements of facts that are not protected.[7] However, this distinction has been rejected as a rule separating privileged documents from those that are not protected.[8]

Lawyer

The lawyer-side of the communication must be a lawyer who is authorized to practice law in the jurisdiction where the communication is taking place.[9]

Expectation of Confidentiality

Various forms of communications have been found not to be privileged on account of the lack of expectation of confidentiality:

  • notes prepared by accused to refresh memory found outside a law office but were used in a conversation with counsel.[10]
  • communications that are intended to be communicated publicly such as the communications of the contents of an agreed statement of fact later admitted in court.[11]
  • communications that are made to or from the Crown.[12]
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."[13] Protection will not be extended to those who perform service which are "incidental to the seeking and obtaining of legal advice."[14]

Communications shared between members of the same firm remain privileged.[15]

Examples of Application of Privilege

The following have been considered privileged information:

  • Emails between counsel and clients[16]
  • conversations between counsel and client in the courtroom even if caught on recording device.[17]
  • phone wiretap between counsel and client [18]
  • identity of person paying legal fees[19]
  • lawyer bills and statement of accounts regarding clients[20]

The following has been considered not to be privileged information:

  • client instructions to make a settlement offer[21]
  • the timing of when the advice was given.[22]
Name of Clients

Names of clients are presumptively privileged.[23]

In "some cases," the names of clients can be privileged. The protections will exist where the name "may reveal other confidential information about the person’s personal life or legal problems."[24]

Situations where names can be privileged include when consulting with a divorce lawyer, criminal defence lawyer, or lawyer relating to specialized fields.[25]

The presumption of privilege can be rebutted by:[26]

  1. "that there is no reasonable possibility that disclosure of the requested information will lead, directly or indirectly, to the revelation of confidential solicitor-client communications"; or
  2. "that the requested information is not linked to the merits of the case and its disclosure would not prejudice the client"
Does Not Include Physical Objects or Pre-Existing Documents

Privilege will never attach to physical items or any documents that exist independent of the relationship.[27]

Does Not Require Any Suggested Litigation

There is no requirement that the materials subject to privilege have to in any way relate to possible litigation. Even commercial contracts can be protected.[28]

Who Decides

It is not for the client or any counsel to determine whether privilege exists. Only a judge may make a determination after an assertion is made.[29]

Method of Review

The presumption is that the judge must examine the documents themselves, but where the volume of records is significant such that "manual review" is "unworkable", "impractical" and "unduly resource intensive" the court should look to collaboration between counsel for efficiencies.[30]

  1. ↑ R v McClure, 2001 SCC 14 (CanLII), [2001] 1 SCR 445, per Major J, at para 36 ("Not all communications between a lawyer and her client are privileged. In order for the communication to be privileged, it must arise from communication between a lawyer and the client where the latter seeks lawful legal advice.")
  2. ↑ R v Durham Regional Crime Stoppers Inc, 2017 SCC 45 (CanLII), [2017] 2 SCR 157, per Moldaver J, at para 25
  3. ↑ Descoteaux v Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 SCR 860, per Lamer J, at p. 875
    Drake Holdings Ltd v Chubb Insurance Company of Canada, 2018 ONSC 4494 (CanLII), per Schreck J, at para 17
  4. ↑ R v Campbell, 1999 CanLII 676 (SCC), [1999] 1 SCR 565, per Binnie J (9:0), at para 49 [also referred to as R v Shirose]
    R v Solosky, 1979 CanLII 9 (SCC), [1980] 1 SCR 821, per Dickson J, at p. 835
    R v Basi, 2008 BCSC 1858 (CanLII), BCJ No 2725, per Bennett J
    See Law of Privilege at 11-4.2 (sub-divides the first element into two)
  5. ↑ Pritchard v Ontario (Human Rights Commission), 2004 SCC 31 (CanLII), [2004] 1 SCR 809, per Major J Solosky, supra, at p. 835
  6. ↑ Susan Hosiery Ltd v Canada , [1969] 2 Ex. CR 27 (UK)
  7. ↑ Donell v. GJB Enterprises Inc, 2012 BCCA 135 (CanLII), 7 WWR 660, per Chiasson JA, at para 57
  8. ↑ Maranda v Richer, 2003 SCC 67 (CanLII), [2003] 3 SCR 193, per LeBel J (9:0), at para 30
  9. ↑ Canada (National Revenue) v Newport Pacific Financial Group SA, 2010 ABQB 568 (CanLII), 503 AR 156, per Graesser J
  10. ↑ R v Abeyewardene, 2008 CanLII 78103 (ON SC), per Trafford J - notes were left in the accused apartment on top of dufflebag suggesting an intention not to keep them confidential.
  11. ↑ R v Youvarajah, 2011 ONCA 654 (CanLII), 278 CCC (3d) 102, per Simmons JA
  12. ↑ Youvarajah, ibid.
  13. ↑ General Accident Assurance Co. v Chrusz, 1999 CanLII 7320 (ON CA), 180 DLR (4th) 241, per Doherty JA, at paras 124 to 126
    Hoy v Medtronic, 2001 BCSC 944 (CanLII), 91 BCLR (3d) 352, per Kirkpatrick J
  14. ↑ Hoy, ibid., at paras 42 to 43
  15. ↑ Shuttleworth v Eberts, 2011 ONSC 6106 (CanLII), OJ No 4550, per Quigley J
  16. ↑ R v 1496956 Ontario Inc (Stoneridge Inc), 2009 CanLII 12328 (ON SC), per Gunsolus J, at para 12
  17. ↑ R v Higham, 2007 CanLII 20103 (ON SC), per MF Brown J, at paras 21 to 22
  18. ↑ R v Martin, 2010 NBCA 41 (CanLII), 257 CCC (3d) 433, per Richard JA, at paras 64 to 65
  19. ↑ Kaiser (Re), 2012 ONCA 838 (CanLII), 113 OR (3d) 308, per Blair JA, at paras 44 to 45
  20. ↑ Maranda, supra, at paras 21 to 34
  21. ↑ Albanese v Albanese, 1996 CanLII 2674 (BC SC), 23 BCLR (3d) 381, per Coultas J
  22. ↑ Blue Line Hockey Acquisition Co, Inc v Orca Bay Hockey Limited Partnership, 2007 BCSC 143 (CanLII), per Wedge J
  23. ↑ Kaiser (Re), 2012 ONCA 838 (CanLII), per Blair JA, at para 30
  24. ↑ Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20 (CanLII), [2016] 1 SCR 336, per Wagner and Gascon JJ, at para 74
    [1]
    Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, 2002 SCC 61 (CanLII), [2002] 3 SCR 209, per Arbour J, at para 28
  25. ↑ Saskin v City of Toronto, 2022 ONSC 7378 (CanLII), per Ilchenko J, at para 218
  26. ↑ Kaiser, supra, at para 30 ("[30] From these developments in the jurisprudence, I take the law to be that administrative information relating to the solicitor-client relationship -- including the identity of the person paying the lawyer's bills -- is presumptively privileged. The presumption may be rebutted by evidence showing (a) that there is no reasonable possibility that disclosure of the requested information will [page317] lead, directly or indirectly, to the revelation of confidential solicitor-client communications (Maranda, at para. 34; and Ontario (Assistant Information and Privacy Commissioner), at para. 9); or (b) that the requested information is not linked to the merits of the case and its disclosure would not prejudice the client (Cunningham, at paras. 30-31).")
  27. ↑ R v National Post, 2010 SCC 16 (CanLII), [2010] 1 SCR 477, per Binnie J, at para 65 (" ...there is a significant difference between testimonial immunity against compelled disclosure of secret sources and the suppression by the media of relevant physical evidence. If a client walks into a lawyer’s office and leaves a murder weapon covered with fingerprints and DNA evidence on the lawyer’s desk the law would not allow the lawyer to withhold production of the gun on the basis of solicitor-client confidentiality, notwithstanding the thoroughgoing protection that the law affords that relationship")
    R v Murray, 2000 CanLII 22631 (ON SC), 185 DLR (4th) 746, per Gravely J
  28. ↑ Fraser Milner Casgrain LLP v Canada (Minister of National Revenue), 2002 BCSC 1344 (CanLII), 6 BCLR (4th) 135, per Lowry J, at para 14("the economic and social values inherent in fostering commercial transactions merit the recognition of a privilege that is not waived when documents prepared by professional advisers, for the purpose of giving legal advice, are exchanged in the course of negotiations. Those engaged in commercial transactions must be free to exchange privileged information without fear of jeopardizing the confidence that is critical to obtaining legal advice.")
  29. ↑ R v Herritt, 2019 NSCA 92 (CanLII), 384 CCC (3d) 25, per Beveridge JA, at para 122 ("Of course, it is not up to Mr. Herritt, with or without input from counsel, or counsel on their own to decide or determine what is privileged. The court decides or determines if the material is protected by privilege after the assertion is made.")
  30. ↑ L'Abbe v Allen-Vanguard Corp, 2011 ONSC 7575 (CanLII), [2011] OJ No 5982, per MacLeod J

Crown-Police Privilege

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.[1]

Statements taken by an investigator on behalf of the defence is privileged and cannot be subject of disclosure to the crown.[2]

Communications through an intermediary will not generally affect its privileged status.[3]

Communications with Court-house duty counsel can be included in solicitor-client protections.[4]

  1. ↑ R v Caines, 2011 ABQB 660 (CanLII), 517 AR 269, per Greckol J
  2. ↑ R v Peruta; R v Brouillette, 1992 CanLII 3597 (QCCA), 78 CCC (3d) 350, per Tyndale JA
  3. ↑ R v Littlechild, 1979 ABCA 321 (CanLII), 51 CCC (2d) 406, per Laycraft JA, at para 15 (recent cases state "solicitor-client privilege extends to communications through the intermediary of an agent...")
    Re Alcan-Colony Contracting Ltd. and The Minister of National Revenue, 1971 CanLII 405 (ONSC), 2 OR 365, per Grant J
  4. ↑ R v Pea, 2008 CanLII 89824 (ON CA), 79 WCB (2d) 262, per Gillese JA

Presumption of Privilege

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."[1]

There is a presumption of confidentiality and privilege on all communications and information shared between client and lawyer.[2]

In contexts many contexts, there is a presumption of privilege on lawyer's accounts relating to fees paid or lawyer billing.[3] This will likely capture any transactions where the nature of the private communication can be inferred from the transaction.[4] However, this will not necessarily apply to all retainers or bills.[5]

It is said that it will apply to retainers where the retainer itself reveals anything about the privileged communication, then it will be privileged.[6]

The electronic communication metadata associated with contact with counsel will be presumed privileged.[7]

Rebutting the Presumption

The presumption of privilege can be rebutted if it can be established that:

  • "there is no reasonable possibility that disclosure will directly or indirectly reveal any communications protected by privilege."[8]; or,
  • "that the requested information is not linked to the merits of the case and its disclosure would not prejudice the client"[9]
  1. ↑ Ott v Fleishman, 1983 CanLII 489 (BC SC), 5 WWR 721, 46 BCLR 321, 22 BLR 57 (S.C.), per McEachern CJ
  2. ↑ Foster Wheeler v Societe intermunicipale de gestion et d'elmination des dechets, 2004 SCC 18 (CanLII), [2004] 1 SCR 456, per LeBel J (7:0), at para 42 ("It would be enough to have the party invoking professional secrecy establish that a general mandate had been given to a lawyer for the purpose of obtaining a range of services generally expected of a lawyer in his or her professional capacity. At this stage, there would be a presumption of fact, albeit a rebuttable one, to the effect that all communications between client and lawyer and the information they shared would be considered prima facie confidential in nature")
    Minister of National Revenue v Thompson, 2016 SCC 21 (CanLII), [2016] 1 SCR 381, per Wagner and Gascon JJ, at para 19 ("While it is true that not everything that happens in a solicitor-client relationship will be a privileged communication, facts connected with that relationship (such as the bills of account at issue in Maranda) must be presumed to be privileged absent evidence to the contrary ... . This rule applies regardless of the context in which it is invoked")
  3. ↑ Maranda v Richer, 2003 SCC 67 (CanLII), [2003] 3 SCR 193, per LeBel J (9:0)
    British Columbia (Attorney General) v. Canadian Constitution Foundation, 2020 BCCA 238 (CanLII), {{{3}}}, {{{4}}}, per Harris JA, at para 50
  4. ↑ Donell v GJB Enterprises Inc, 2012 BCCA 135 (CanLII), {{{4}}}, at para 56
  5. ↑ Gault Estate v Gault Estate, 2016 ABCA 208 (CanLII), per curiam (3:0), at para 21 ("If the fact that the lawyer has been retained, sent bills, or been paid is not prima facie confidential, then the fact of the retainer and the flow of funds should not be protected under this head of privilege. The gross amount of legal fees paid by the Leslie Estate will be disclosed in the estate's accounts.")
  6. ↑ Re A Solicitor (1962), 1962 CanLII 460 (BC SC), 36 D.L.R. (2d) 594 at 598 (B.C. S.C.)
    Scott Hutchison, "Search and Seizure Law in Canada" (Toronto: Thomson Reuters, 2022) (Loose-leaf, Release No. 4 - April 2022) (online), at §10:7
    R v Colegrove, 2022 NSSC 132 (CanLII), per Brothers J, at para 263
  7. ↑ R v AB, 2014 NLCA 8 (CanLII), per Harrington JA, at para 43
  8. ↑ Donell, supra, at para 59
    Kaiser (Re), 2012 ONCA 838 (CanLII), per Blair JA, at para 30
  9. ↑ Kaiser, ibid., at para 30

Litigation Privilege

See also: Litigation Privilege

Traditionally, records held in the lawyer's file were protected by litigation privilege under a rule known as the "lawyer's brief rule."[1] That being said, the rule has been closely tied with solicitor-client privilege protections.

A document received by a lawyer and put the lawyer's file is not automatically privileged.[2] However, anything given to the lawyer that is in furtherance to advice will generally be protected by privilege.[3]

Handwritten notes made by a lawyer on a document will become privileged along with the document upon which the notes were written.[4]

  1. ↑ Chatham-Kent (Municipality) (Re), 2014 CanLII 63626 (ON IPC), at para 34
  2. ↑ Mitsui & Co. (Point Aconi) Ltd. v Jones Power Co, 2000 NSCA 96 (CanLII), [2000] NSJ No 258, per Roscoe JA, at para 36
  3. ↑ Warren et al. v Insurance Exchange Ltd. et al., 1982 CanLII 1837 (ONSC), 37 OR (2d) 717, 28 CPC 275 per Peppiatt J ("That principle has been jealously guarded and has been extended to what is known as the "lawyer's brief" rule whereby information that the solicitor has obtained in confidence for the purpose of advising his client is also protected.")
    Lizotte v Aviva Insurance Company of Canada, 2016 SCC 52 (CanLII), [2016] 2 SCR 521, per Gascon J, at para 20
  4. ↑ Mitsui & Co. (Point Aconi) Ltd v Jones Power Co., ibid., at para 36

Duration of Existence

Privilege will outlast the life of the client.[1] However, privilege held by a deceased person can be deemed waived by the court where it is in the interests of justice.[2]

Privilege-holder After Death of Client

Privilege can be waived by the client or their successor or next of kin.[3]

  1. ↑ Geffen v Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 SCR 353, per Wilson J
    See also US: Swidler & Berlin v United States 118 S. Ct. 2081 (1998)
    R v Berby Magistrates' Court [1996] 1 AC 487 (HL) (UK)
  2. ↑ R v Jack, 1992 CanLII 2764 (MB CA), 70 CCC (3d) 67, per Scott CJ
    Geffen, supra ("The interests of the now deceased client are furthered in the sense that the purpose of allowing the evidence to be admitted is precisely to ascertain what her true intentions were. And the principle of extending the privilege to the heirs or successors in title of the deceased is promoted by focusing the inquiry on who those heirs or successors properly are.")
  3. ↑ Metcalfe v Metcalfe, 2001 MBCA 35 (CanLII), 198 DLR (4th) 318, per Helper JA, at para 13 ("it is only the client or the client’s agent or successor who can waive the solicitor-client privilege: ... It has been said that waiver of privilege will only occur where the holder of the privilege knows of the existence of the privilege and demonstrates a clear intention of waiving the privilege")
    Western Canada Investment Company Ltd v McDairmid, 1922 CanLII 171 (SK CA), 66 DLR 457
    Langworthy v McVicar (1913), 5 OWN 345, 25 OWR 297 (ONSC)

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, per Major J (9:0), at para 37 ("...only communications made for the legitimate purpose of obtaining lawful professional advice or assistance are privileged. The privilege may only be waived by the client.")
    Lavallee, Rackel and Heintz v Canada (Attorney General), 2002 SCC 61 (CanLII), [2002] 3 SCR 209, per Arbour J (6:3), at para 39
  2. ↑ R v Campbell, 1999 CanLII 676 (SCC), [1999] 1 SCR 565, per Binnie J (9:0), at para 67 ("The identification of “the client” is a question of fact.")
  3. ↑ Nova Scotia v Peach, 2011 NSCA 27 (CanLII), 953 APR 19, per Oland JA (3:0) , at para 12
  4. ↑ Peach, ibid., at para 27
  5. ↑ Campbell, supra, at para 67

Crown Advice to Police

The advice from Crown Attorney 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), 517 AR 269, per Greckol J
  2. ↑ R v Chan, 2002 ABQB 753 (CanLII), 168 CCC (3d) 396, per Sulyma J, at para 41
    R v Welsh, 2007 CanLII 17641 (ON SC), per O’Connor J, at para 12
  3. ↑ see Welsh, ibid., at paras 11 to 13
    Mitsui & Co. (Point Aconi) Ltd. v Jones Power Co., 2000 NSCA 96 (CanLII), 587 APR 173, per Roscoe JA (3:0), at para 30
  4. ↑ R v Trang, 2002 ABQB 390 (CanLII), 315 AR 306, per Binder J, at para 18
  5. ↑ Pritchard v Ontario (Human Rights Commission), 2004 SCC 31 (CanLII), [2004] 1 SCR 809, per Major J (7:0)
  6. ↑ R v Newborn, 2015 ABQB 393 (CanLII), per Burrows J
  7. ↑ see R v Rutigliano, 2015 ONCA 452 (CanLII), 126 OR (3d) 161, per Pardu JA (3:0) , at para 40

Existence of Breaches and its Consequences

Any use of solicitor-client information to support a conviction, whether "determinative" or not, is a miscarriage of justice.[1]

Mere incidental discovery of potentially privileged information does not render the privilege breached.[2]

  1. ↑ R v Olusoga, 2019 ONCA 565 (CanLII), OJ No 3532, per curiam
  2. ↑ R v Herritt, 2019 NSCA 92 (CanLII), 384 CCC (3d) 25, at para 91, per Beveridge JA (the protection afforded to privileged information "does not mean potential solicitor-client privileged material need be handled as if it were nuclear waste, forever contaminating all who dare come near it.")

Removal of Counsel

An order removing counsel from a case may be appropriate where one party becomes privy to privileged information.[1]

The objective of removing counsel is not to punish but to ensure that no prejudice is suffered by the parties.[2]

Factors to consider include:[3]

  1. how the documents came into the possession of the party or its counsel;
  2. what the party and its counsel did upon recognition that the documents were potentially subject to solicitor-client privilege;
  3. the extent of review made of the privileged material;
  4. the contents of the solicitor-client communications and the degree to which they are prejudicial;
  5. the stage of the litigation;
  6. the potential effectiveness of a firewall or other precautionary steps to avoid mischief.
  1. ↑ Drake Holdings Ltd. v Chubb Insurance Company of Canada, 2018 ONSC 4494 (CanLII), per Schreck J, at para 32
    Celanese Canada Inc v Murray Demolition Corp, 2006 SCC 36 (CanLII), [2006] 2 SCR 189, per Binnie J, at paras 42 to 67
  2. ↑ Celanese, supra, at para 54
  3. ↑ Drake Holdings Ltd, supra, at para 33
    Celanese, supra, at para 59

Other Topics

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