Exceptions to Solicitor-Client Privilege

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General Principles

See also: 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]

Any piercing of privilege should be considered an "extraordinary measure".[2]

  1. ↑ Smith v Jones, 1999 CanLII 674 (SCC), [1999] 1 SCR 45, per Cory J
  2. ↑ R v Brown, [2002] 2 SCR 185, 2002 SCC 32 (CanLII), per Major J

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 would 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]

Effect of the Exception

Where the exception has been made out the communication remains privileged except for the limited purpose of disclosure.[4]

  1. ↑ R v McClure 2001 SCC 445 (CanLII), per Major J - this is the first case to recognize an innocence-at-stake exception to privilege
    R v Brown, 2002 SCC 32 (CanLII), [2002] 2 SCR 185, per Major J
  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
  4. ↑ Dodek, Adam M., Solicitor-Client Privilege in Canada: Challenges for the 21st Century (February 14, 2011). Canadian Bar Association, 2011. Available at SSRN: https://ssrn.com/abstract=1761668 or http://dx.doi.org/10.2139/ssrn.1761668 at p.12 to 13 ("Under the exceptions recognized by the Supreme Court to date (public safety and innocence of the accused), the communications remain privileged except for the limited basis of their disclosure; they cannot be used against the client."

Crime/Fraud 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]

This exception only applies in a limited fashion, or else it risks preventing any person charged with fraud from safely seeking legal advice.[2]

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".[3]

The future crimes exception requires the following elements:[4]

  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".[5]

It is considered "immaterial whether the lawyer was an unwitting dupe or knowing participant in providing the advice underlying the wrongful conduct"[6] The focus is upon whether the client "had an illegal purpose in mind" not whether the lawyer was aware.[7]

Standard of Proof

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.[8]

Procedure

Before a judge will review an alleged SCP communication there must be an evidentiary foundation to show "prima facie evidence that the communication" is captured by one of the exceptions.[9]

Hearsay evidence in the form of an affidavit can be sufficient to prove a prima facie case.[10]

Effect of the Exception

Where the criminality exception has been made out the communication becomes disclosable for all purposes..[11]

Non-Criminal Breaches of Law

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".[12]

  1. ↑ Smith v Jones, [1999] 1 SCR 455, 1999 CanLII 674 (SCC), per Cory J, at para 55
    Descôteaux v Mierzwinski, [1982] 1 SCR 860, 1982 CanLII 22 (SCC), per Lamer J - re fraudulent legal aid application
    R v Campbell, 1999 CanLII 676 (SCC), [1999] 1 SCR 565, per Binnie J
  2. ↑ Canbook Distribution Corp. v Borins, 1999 CanLII 14842 (ON SC), per Ground J, at para 21
  3. ↑ Smith v Jones, supra
    McDermott v McDermott, supra at paras, 71, 74
  4. ↑ McDermott, ibid., at para 75
  5. ↑ McDermott v McDermott, 2013 BCSC 534 (CanLII), per Walker J, at para 75
  6. ↑ R v Solosky, 1979 CanLII 9 (SCC), [1980] 1 SCR 821, per Dickson J at 835-836
  7. ↑ Markson v. MBNA Canada Bank, 2011 ONSC 871 (CanLII), per C Horkins J, at para 59
  8. ↑ Canbook Distribution Corp v Borins, supra, at para 19
    McDermott, supra
  9. ↑ AARC Society v Sparks, 2018 ABCA 177 (CanLII), per curiam, at para 5
  10. ↑ R v Leibel (1993), 1993 CanLII 8780 (SK QB), 111 Sask. R. 107, per McLellan J at para. 23
    Westra Law Office (Re), 2009 ABQB 391 (CanLII), per Greckol J, at paras 49 to 50
  11. ↑ Dodek, Adam M., Solicitor-Client Privilege in Canada: Challenges for the 21st Century (February 14, 2011). Canadian Bar Association, 2011. Available at SSRN: https://ssrn.com/abstract=1761668 or http://dx.doi.org/10.2139/ssrn.1761668 at p.12 to 13 ("The difference between an exclusion and exception is a distinction with an important consequence. Under the exceptions recognized by the Supreme Court to date (public safety and innocence of the accused), the communications remain privileged except for the limited basis of their disclosure; they cannot be used against the client. However, crime-fraud is no limited exception; it is a complete negation of the Privilege. The communications may be disclosed and used for any purpose, including against the client. Indeed, this is the basis for seeking to apply crime-fraud.")
  12. ↑ McDermott, ibid., at paras 72 to 73

Public Safety

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

Public safety can trump privilege where a lawyer reasonably believes that a clear, serious and imminent threat to public safety exists.[2]

Effect of the Exception

Where the exception has been made out the communication remains privileged except for the limited purpose of disclosure.[3]

  1. ↑ Smith v Jones, [1999] 1 SCR 455, 1999 CanLII 674 (SCC), per Cory J, at para 74
    Smith v Jones was the first case to recognize the existence of public safety privilege
  2. ↑ Jones, ibid., at para 26
  3. ↑ Dodek, Adam M., Solicitor-Client Privilege in Canada: Challenges for the 21st Century (February 14, 2011). Canadian Bar Association, 2011. Available at SSRN: https://ssrn.com/abstract=1761668 or http://dx.doi.org/10.2139/ssrn.1761668 at p.12 to 13 ("Under the exceptions recognized by the Supreme Court to date (public safety and innocence of the accused), the communications remain privileged except for the limited basis of their disclosure; they cannot be used against the client."
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