Solicitor-Client Privilege

From Criminal Law Notebook

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 to a legal advisor for the purpose of obtaining legal advice.[1]

Constitutional Protection
Solicitor-client rivilege is not simply a rule of evidence but is also constitutionally protected as a "principle of fundamental justice".[2]

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".[3] Violation of this privilege can "erode the public's confidence in fairness of the criminal justice system."[4] 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.[5]

Privileged records are not to be disclosed and are "inadmissible in court”. [6]

Burden of Proof
The claimant bears the burden to prove on a balance of probabilities that each document asserted to be privileged is in fact privileged.[7]

Failure to meet the standard of proof will result in a finding that privilege has not been established.[8]

Who Can Claim Privilege
On the client who owns the privilege can raise the issue in court.[9]

  1. ↑ R v Campbell, 1999 CanLII 676, [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), per Bennett J
  2. ↑ Canada (National Revenue) v Thompson, 2016 SCC 21 (CanLII), per Wagner and Gascon J, at para 17
    R v McClure, [2001] 1 SCR 445, 2001 SCC 14 (CanLII), per Major J (9:0), at p. 453 to 460
    See also Principles of Fundamental Justice
  3. ↑ Smith v Jones, 1999 CanLII 674 (SCC), [1999] 1 SCR 455, per Cory J, at paras 44 and 50
  4. ↑ Lavallee, Rackel & Heintz v Canada (AG) 2002 SCC 61 (CanLII), [2002] 3 SCR 209, per Arbour J (6:3) at para 49
  5. ↑ R v McClure, 2001 SCC 14 (CanLII), [2001] 1 SCR 445, per Major J (9:0), at para 27
    R v Gruenke, 1991 CanLII 40 (SCC), [1991] 3 SCR 263, per Lamer CJ at p. 286
  6. ↑ Lavallee, supra, at para 24
  7. ↑ 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
  8. ↑ Huang, supra, at para 94
    Bank of Montreal v Tortora, supra, at para 30
    Raj, supra at para. 9
  9. ↑ R v Jack, 1992 CanLII 2764 (MB CA), per Scott CJ

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]

Where there is any ambiguity or uncertainty as to the application of privilege favour should go to the protections of confidentiality.[2]

The privilege exists where a written or oral communication is:[3]

  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.[4]

Statements taken by an investigator on behalf of the defence is privileged and cannot be subject of disclosure to the crown.[5]

A document received by a lawyer and put the lawyer's file is not automatically privileged.[6]

Handwritten notes made by a lawyer on a document will become privileged along with the document upon which the notes were written.[7]

Communications through an intermediary will not generally affect its privileged status.[8]

Communications with Court-house duty counsel can be included in solicitor-client protections.[9]

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.".[10]

Duration of Existence
Privilege will outlast the life of the client.[11] However, Privilege held by a deceased person can be deemed waived by the court where it is in the interests of justice.[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]

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[15]
  • conversations between counsel and client in the courtroom even if caught on recording device.[16]
  • phone wiretap between counsel and client [17]
  • identity of person paying legal fees[18]
  • lawyer bills and statement of accounts regarding clients[19]
  • timing of when advice was given is not privileged[20]

The following has been considered not to be privileged information:

  • client instructions to make a settlement offer[21]

Presumptions
There is a presumption of confidentiality on all communications and information shared between client and lawyer.[22]

There is a presumption of privilege on lawyer's accounts relating to fees paid or lawyer billing.[23]

Does Not Include Physical Objects or Pre-Existing Documents
Privilege will never attach to physical items or any documents that exists independent of the relationship.[24]

  1. ↑ R v McClure, [2001] 1 SCR 445, 2001 SCC 14 (CanLII), per Major J, at para 36
  2. ↑ 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
  3. ↑ R v Campbell, 1999 CanLII 676, [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), per Bennett J
  4. ↑ R v Caines, 2011 ABQB 660 (CanLII), per Greckol J
  5. ↑ R v Peruta; R v Brouillette (1992) 78 CCC (3d) 350 1992 CanLII 3597 (QCCA), per Tyndale JA
  6. ↑ Mitsui & Co. (Point Aconi) Ltd. v Jones Power Co, 2000 NSCA 96 (CanLII); [2000] NSJ No. 258, per Roscoe JA at para 36
  7. ↑ Mitsui & Co. (Point Aconi) Ltd. v Jones Power Co., ibid. at para 36
  8. ↑ R v Littlechild, 1979 ABCA 321 (CanLII), per Laycraft JA at para 15
    Re Alcan-Colony Contracting Ltd. and The Minister of National Revenue (1971) 1971 CanLII 405 (ON SC), 2 O.R. 365, per Grant J
  9. ↑ R v Pea, 2008 CanLII 89824 (ON CA), per Gillese JA
  10. ↑ 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.), per McEachern CJ
  11. ↑ Geffen v. Goodman Estate, [1991] 2 SCR 353, 1991 CanLII 69 (SCC), per Wilson J
  12. ↑ Jack, supra
  13. ↑ General Accident Assurance Co. v. Chrusz (1999), 1999 CanLII 7320 (ON CA), 180 DLR (4th) 241 (Ont. C.A.),, per Doherty JA at paras 124 to 126
    Hoy v Medtronic, 2001 BCSC 944 (CanLII), per Kirkpatrick J
  14. ↑ Hoy, ibid. at paras 42 to 43
  15. ↑ R v 1496956 Ontario Inc. (Stoneridge Inc.), 2009 CanLII 12328 (ON SC), per Gunsolus J at para 12
  16. ↑ R v Higham, 2007 CanLII 20103 (ON SC), per MF Brown J at para 21 to 22
  17. ↑ R v Martin, 2010 NBCA 41 (CanLII), per Richard JA at para 64-65
  18. ↑ Kaiser (Re), 2012 ONCA 838 (CanLII), per Blair JA at para 44 to 45
  19. ↑ Maranda v Richer, 2003 SCC 67 (CanLII), [2003] 3 SCR 193, per LeBel J (9:0), at paras 21-34
  20. ↑ Blue Line Hockey Acquisition Co., Inc. v. Orca Bay Hockey Limited Partnership, 2007 BCSC 143 (CanLII), per Wedge J
  21. ↑ Albanese v Albanese, 1996 CanLII 2674 (BC SC), per Coultas J
  22. ↑ Foster Wheeler v Societe intermunicipale de gestion et d'elmination des dechets, 2004 SCC 18 (CanLII), per LeBel J (7:0) at para 42
  23. ↑ Gault Estate v Gault Estate, 2016 ABCA 208 (CanLII), per curiam (3:0), at para 21
    Maranda v Richer, 2003 SCC 67 (CanLII), per LeBel J (9:0)
  24. ↑ R v National Post, [2010] 1 SCR 477, 2010 SCC 16 (CanLII), 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")

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
    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, [1999] 1 SCR 565, per Binnie J (9:0) at para 67
  3. ↑ Nova Scotia v Peach, 2011 NSCA 27 (CanLII), per Oland JA (3:0) at para 12
  4. ↑ Peach, ibid. at para 27
  5. ↑ Campbell, supra, at para 67

Waiver of Solicitor-Client Privilege

Generally, solicitor-client privilege should only be interfered with to the extent necessary to achieve a just result.[1]

Waiver is established where the possessor of privilege:[2]

  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.[3]

  1. ↑ Fraser v Houston, 2002 BCSC 1378 (CanLII), per McLachlin J, at para 22
  2. ↑ S. & K. Processors Ltd. (1983), 1983 CanLII 407 (BC SC), 45 B.C.L.R. 218 (S.C.), per McLachlin J
  3. ↑ R v McClure, 2001 SCC 14 (CanLII), [2001] 1 SCR 445, per Major J (9:0) at para 37

Implied Waiver

There can be implicit wavier depending on the circumstances.[1]

Privilege will be waived without explicit intention where "fairness and consistency" require.[2]

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.[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]

Reliance on legal advice as a defence to a litigation results in the loss of privilege.[7]

Waiver by Conduct
Privilege can be waived by conduct of the client.[8]

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.[9]
  • where instructions given by client are at issue.[10]
  1. ↑ R v Creswell, 2000 BCCA 583 (CanLII), (2000), 149 CCC (3d) 286 (BCCA), per Ryan JA at paras 41-3
    Chapelstone Developments Inc. v Canada, 2004 NBCA 96 (CanLII), (2004), 191 CCC (3d) 152 (N.B.C.A.), per Robertson JA (3:0), at paras 45-6, 49-51, 55, 59
  2. ↑ Fraser v Houston, supra at para 22
  3. ↑ R v Chapelstone Developments Inc, supra
  4. ↑ R v Creswell, 2000 BCCA 583 (CanLII), 149 CCC (3d) 268, per Ryan JA (3:0)
  5. ↑ R v Hobbs, 2009 NSCA 90 (CanLII), per Saunders JA (3:0) at para 21
    R v West, 2009 NSCA 94 (CanLII), per Saunders JA (3:0) at para 16
  6. ↑ R v Dunbar [1982] OJ No 581 (ONCA)(*no CanLII links) at 67
  7. ↑ Fraser v Houston, supra at para 22
  8. ↑ Transportaction Lease Systems Inc. v. Virdi et al, 2007 BCSC 132 (CanLII), per Burnyeat J at para 17
  9. ↑ Transportaction, ibid., at para 17
  10. ↑ 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), per Fichaud JA (3:0) at para 42
  2. ↑ Fraser v Houston, 2002 BCSC 1378 (CanLII), per McLachlin J at para 22

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), per Greckol J
  2. ↑ R v Chan, 2002 ABQB 753 (CanLII), (2002), 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 at para 11 to 13
    Mitsui & Co. (Point Aconi) Ltd. v Jones Power Co., 2000 NSCA 96 (CanLII), per Roscoe JA (3:0) at para 30
  4. ↑ R v Trang, 2002 ABQB 390 (CanLII), per Binder J at para 18
  5. ↑ Pritchard v Ontario (Human Rights Commission), [2004] 1 SCR 809, 2004 SCC 31 (CanLII), 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), per Pardu JA (3:0) at para 40

Exemptions from Solicitor-Client Privilege

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), per Wagner and Gascon J(6:0)
    Canada (Attorney General) v Chambres Notaires du Quebec, 2016 SCC 20 (CanLII), per Wagner and Gascon J(7:0)
  2. ↑ Law Society of Saskatchewan v. Merchant, 2008 SKCA 128 (CanLII), per Richards JA (3:0), leave to SCC denied

Consequences for Breach of Privilege

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; (iv) the contents of the solicitor-client communications and the degree to which they are prejudicial;
  4. the stage of the litigation;
  5. 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

See Also
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