Madam Speaker, to justify these requirements, the Supreme Court of Canada relied on the unique and foundational importance of solicitor-client privilege, which is “fundamental to the proper functioning of our legal system.”
The Supreme Court cited a significant body of case law to the effect that the privilege is a “fundamental policy of the law” that must be as close to absolute as possible to ensure public confidence and retain relevance. In that case, the court also noted that solicitor-client privilege is of paramount importance because it promotes access to justice, the quality of justice and the free flow of legal advice.
There is of course no question that litigation privilege does not have the same status as solicitor-client privilege and that the former is less absolute than the latter. It is also clear that these two privileges, even though they may sometimes apply to the same documents, are conceptually distinct. Nonetheless, like solicitor-client privilege, litigation privilege is “fundamental to the proper functioning of our legal system”. It is central to Canada's adversarial system.
As a number of courts have already pointed out, the Canadian justice system promotes the search for truth by allowing the parties to put their best cases before the court, thereby enabling the court to reach a decision with the best information possible. The parties’ ability to confidently develop strategies knowing that they cannot be compelled to disclose them is essential to the effectiveness of this process.
In Canada, litigation privilege is therefore inextricably linked to certain founding values and is of fundamental importance. The Supreme Court of Canada has concluded that litigation privilege, like solicitor-client privilege, cannot be abrogated by inference and that clear, explicit and unequivocal language is required in order to lift it.
I would like to conclude on that note by thanking you, Madam Speaker, for allowing me the opportunity to canvass these important issues of solicitor-client privilege and the privilege concept more generally. It is a concept well known in law and well known to the lawyers who participate in this House. It is a fundamental aspect of our legal system, founded upon hundreds of years of jurisprudence that dates back to our commonwealth heritage.