Criminal Law Notebook

Waiver of Solicitor-Client Privilege

This page was last substantively updated or reviewed July 2021. (Rev. # 95571)

General Principles

See also: Solicitor-Client Privilege

Privilege can be waived expressly, inferentially or by conduct.[1]

Generally, solicitor-client privilege should only be interfered with to the extent necessary to achieve a just result.[2]

Waiver is established where the possessor of privilege:[3]

  1. knows of the existence of privilege;
  2. voluntarily evinces an intention to waive that privilege.
Party Entitled to Waive

Only the client can waive solicitor-client privilege.[4]

  1. ↑ Montemarano v Montemarano, 2020 ONSC 1393 (CanLII), per Akbarali J, at para 19 ("Privilege can be waived expressly, inferentially or by conduct: Biehl, at para. 42. A witness can implicitly waive privilege through their conduct including by putting the legal advice they received in issue, or by testifying about privileged communications. The guiding principles in an enquiry about whether privilege has been waived must be fairness and consistency")
    Biehl v Strang, 2011 BCSC 213 (CanLII), BCJ No 274, per Arnold-Bailey J, at para 42
  2. ↑ Fraser v Houston, 2002 BCSC 1378 (CanLII), BCJ No 2204, per McLachlin J, at para 22
  3. ↑ S. & K. Processors Ltd., 1983 CanLII 407 (BC SC), 45 BCLR 218, per McLachlin J
  4. ↑ R v McClure, 2001 SCC 14 (CanLII), [2001] 1 SCR 445, per Major J (9:0), at para 37

Implied Waiver

Privilege can be waived expressly, by inference or by conduct.[1] Whether there is implicit waiver depends on the circumstances.[2]

Privilege will be waived without explicit intention where "fairness and consistency" require.[3]

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

Allegations Relating to Former Counsel

A waiver of privilege can arise from an accused making allegations attacking competency of counsel using what would otherwise be privileged information.[5]

The implied waiver is not restricted only to instances where there are allegations of ineffective assistance of counsel.[6]

Reliance on legal advice as part of a claim or defence would constitute waiver and privilege would be lost.[7]

The waiver of privilege only covers evidence concerning the issue alleged.[8]

Extent of Waiver

Waiver of part of a communication will constitute waiver of the whole communication.[9]

Inadvertent Disclosure

Inadvertently disclosing privileged information does not automatically result in a waiver of privilege. An 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.[10]

  1. ↑ Biehl v Strang, 2011 BCSC 213 (CanLII), BCJ No 274, per Arnold-Bailey J, at para 42
  2. ↑ R v Creswell, 2000 BCCA 583 (CanLII), 149 CCC (3d) 286, per Ryan JA (3:0), at paras 41 to 43
    Chapelstone Developments Inc v Canada, 2004 NBCA 96 (CanLII), 191 CCC (3d) 152, per Robertson JA (3:0), at paras 45 to 46, 49 to 51, 55, 59
    Biehl, supra, at para 42
  3. ↑ Fraser v Houston, 2002 BCSC 1378 (CanLII), BCJ No 2204, per McLachlin J, at para 22
    S. & K. Processors Ltd. v Campbell Ave. Herring Producers Ltd., 1983 CanLII 407 (BC SC), , [1983] B.C.J. No. 1499 (S.C.), per McLachlin J
    Biehl, supra, at para 39
  4. ↑ Creswell, ibid.
  5. ↑ R v Hobbs, 2009 NSCA 90 (CanLII), 895 APR 14, per Saunders JA (3:0), at para 21
    R v West, 2009 NSCA 94 (CanLII), 905 APR 41, per Saunders JA (3:0), at para 16
  6. ↑ R v Marriott, 2013 NSCA 12 (CanLII) (working hyperlinks pending), per Fichaud JA, at para 32 ("Clearly there is no express waiver of solicitor client privilege. But Mr. Marriott seeks to repudiate a joint submission based on his allegations of what transpired between Mr. Marriott and Mr. Burke. The maintenance of solicitor client privilege would mean that Mr. Marriott’s own evidence would monopolize any fact-finding on these allegations. ")
  7. ↑ S. & K. Processors Ltd., supra
    Fraser v Houston, supra, at para 22
  8. ↑ R v Dunbar [1982] OJ No 581 (ONCA)(*no CanLII links) at 67
    Marriott, supra, at para 32 ("Mr. Marriott’s position on the appeal impliedly waives solicitor client privilege to the limited extent that is necessary to allow the Crown to explore and this Court, if Mr. Burke’s evidence is offered, to make reliable findings, respecting those pivotal facts that Mr. Marriott has placed in issue.")
  9. ↑ S. & K. Processors Ltd., supra ("Waiver of privilege as to part of a communication will be held to be waiver as to the entire communication.")
  10. ↑ R v Chapelstone Developments Inc, supra

Waiver by Conduct

Privilege can be waived by conduct of the client.[1]

This can occur with conduct such as:

  • where part but not all of the communication between a client and solicitor has been set out before the court.[2]
  • where instructions given by client are at issue.[3]
  1. ↑ Transportaction Lease Systems Inc v Virdi et al, 2007 BCSC 132 (CanLII), 36 CPC (6th) 341, per Burnyeat J, at para 17
  2. ↑ Transportation, ibid., at para 17
  3. ↑ Transportaction, ibid., at para 17

Effect of Waiver

The existence of waiver does not necessarily mean that all communications become waived. Waiver can be limited to specific subjects.[1] However, waiver of part of a communication will amount to waiver of the entire communication.[2]

  1. ↑ e.g. R v Marriott, 2013 NSCA 12 (CanLII), 326 NSR (2d) 232, per Fichaud JA (3:0) , at para 42
  2. ↑ Fraser v Houston, 2002 BCSC 1378 (CanLII), BCJ No 2204, per McLachlin J, at para 22

Police Interviews of Lawyers

A superior court justice may make determination whether waiver is valid and order that police are permitted to interview the lawyer concerning the communications with the waiving client.[1]

  1. ↑ R v AM, 2021 ONSC 2725 (CanLII), per Akhtar J
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