Madam Speaker, I am pleased to have the opportunity to speak to the principles of solicitor-client privilege in a government context.
According to the authors, Manes and Silver, the origin of the law of solicitor-client privilege goes back to Tudor times in England and originated as respect for the oath and honour of a lawyer who is duty bound to guard communications with clients. At first, that duty was restricted to an exemption only from testimonial compulsion, that it was the right of the lawyer or client to refuse to testify in court regarding confidential communications. Later, as the law of privilege evolved over time, confidentiality expanded from communications in the context of litigation to any communication for legal advice.
Confidentiality in the communication between the solicitor and the client became a benchmark. It was supposed that if the consultation between the client and the solicitor could not be kept confidential, then clients might be less inclined to be forthcoming with their lawyers, thus reducing the quality of advice that a lawyer could give.
In Canada, over the last few decades, solicitor-client privilege has evolved from not simply a mere rule of evidence to a substantive rule of law, as well as a principle of fundamental justice that is captured within the meaning of section 7 of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada has described it as “a principle of fundamental justice and a civil right of supreme importance in Canadian law”.
Today, the Supreme Court of Canada recognizes the great importance of solicitor-client privilege and the unique role that it plays in our legal system. Solicitor-client privilege is nothing short of a cornerstone of our legal system, regardless of the nature or context of the legal opinion sought.
What is the raison d'être of solicitor-client privilege? Our legal system is very complex. The complexity of rules and procedures is such that in the Supreme Court's view, realistically speaking, it cannot be navigated without a lawyer's expert advice. It is in the public interest that this free flow of legal advice be encouraged. Let me repeat that because it is so tellingly important: It is in the public interest that this free flow of legal advice be encouraged between lawyers and their clients.
The integrity of the administration of justice depends on the unique role of the solicitor who provides legal advice to these clients. Because of that importance, the Supreme Court has often stated that solicitor-client privilege, this cornerstone of our legal system, should not be interfered with unless absolutely necessary. It must remain as close to absolute as possible, with very few exceptions. As such, the Supreme Court of Canada has adopted stringent norms to ensure its protection.
The gatekeepers of the solicitor-client privilege are the lawyers themselves. They act and are ethically bound to protect the privileged information that belongs to their clients. What is it exactly that is subject to this stringently protected category of solicitor-client privilege? It is privilege that will attach to every communication between a lawyer and a client that is for the purposes of giving and receiving legal advice and that is intended to be confidential.
The privileged nature of a document or the information it contains does not depend on the category of the document but on its content and what it can reveal about the relationship and communication between a client and his or her notary or lawyer. All communications between a solicitor and a client directly related to the seeking, formulating or giving of legal advice are privileged, along with communications within the continuum in which the solicitor tenders advice.
According to the Federal Court, the continuum protected by privilege includes “matters great and small at various stages…includ[ing] advice as to what should prudently and sensibly be done in the relevant legal context” and other matters “directly related to the performance by the solicitor of his professional duty as legal advisor to the client.”
In determining where the protected continuum ends, one good question is whether a communication forms “part of that necessary exchange of information of which the object is the giving of legal advice”.
If so, it is within the protected continuum. Put another way, does the disclosure of the communication have the potential to undercut the purpose behind the privilege, namely, the need for solicitors and their clients to freely and candidly exchange information and advice so that clients can know their true rights and obligations and act upon them?
For example, where a director of a government department receives legal advice on how certain proceedings should be conducted and the director so instructs those conducting proceedings, the instructions, essentially cribbed from the legal advice, form part of the continuum and are protected. Disclosing such a communication would undercut the ability of the director to freely and candidly seek legal advice.
Public sector counsel is in the same position as private sector in-house counsel with regard to solicitor-client privilege. The client of government lawyers is the Crown, that is the executive. The Supreme Court of Canada has recognized that solicitor-client privilege attaches to communications between government employees and government lawyers, many of whom belong to the Department of Justice.
As stated by the Federal Court, “The Attorney General and those working for him [or her] as legal advisors are solicitors for the purposes of advising the executive branch of the government of Canada.”
In the public sector as well, solicitor-client privilege has permanence. The privilege belongs to the client not to the lawyer. Courts will not permit a lawyer to disclose a client's confidence. Solicitor-client privilege enjoys a status more elevated than that enjoyed by almost any other recognized privilege, given the central role that this doctrine plays in the effective operation of our legal system, and has for centuries. It is in the public interest that the free flow of legal advice between a lawyer and a client be encouraged and protected. As noted by the Supreme Court of Canada in the 2008 Blood Tribe decision, “Without it, access to justice and the quality of justice in this country would be severely compromised.”
As previously mentioned, solicitor-client privilege attaches to communications between solicitors and their clients, communications concerning a consultation, or legal advice that the parties intend to be confidential.
In the government context, the client is the Crown. Who can waive the privilege within government can be a complicated question. Court decisions considering this question have often been inconsistent. However, consistent guidance has been provided on when privilege can be considered to have been waived, whether in the private or public sector context.
For a waiver to occur, the client must be aware of the existence of the privilege and voluntarily express the intent to waive it.
For waiver to occur, disclosure must be voluntary. Courts will only find waiver, whether express or implied waiver, when they are of the view that an objective consideration of the client's conduct demonstrates an intention to waive privilege. For example, this may occur where the privileged communication is shared with a third party, or where the privileged communication is relied on as an element of one's claim or defence. Disclosure compelled by statute is not voluntary and, therefore, cannot constitute waiver of solicitor-client privilege. This is sometimes called the limited waiver exception in legal parlance. It should not be confused with the doctrine of partial waiver, to which I will now turn.
It should not be assumed that if a client waives privilege over one communication that privilege over every other communication is also waived. Clients, the holders of the privilege, have the ability to waive privilege over none, some or all of the confidential communications they have with their lawyers. In considering whether a partial waiver, meaning a voluntary waiver over a particular piece of privileged advice, resulted in a broader waiver, courts will consider all of the factual and surrounding circumstances.
The answer is never easy. As in the case of a partial waiver, it is also the case that not every disclosure will result in a waiver of solicitor-client privilege. For example, common interest privilege allows parties with interests in common to share certain privileged information without waiving the privilege at all. The roots of common interest privilege as an exemption to the waiver are in the litigation context, where sharing in the contents of reasonably anticipated litigation does not result in a waiver of litigation privilege itself.
Some courts have also extended common law interest outside of litigation to the commercial transactions context. Parties that have a common interest in the successful completion of such a transaction may be able to share solicitor-client privileged materials without a waiver occurring. As with traditional solicitor-client privilege, the communication between the parties sharing the common interest must be made on a confidential basis.
I have just referred to what is known as litigation privilege. Litigation privilege protects against the compulsory disclosure of communications and documents with the dominant purpose of the preparation of litigation. Although litigation privilege differs from solicitor-client privilege in several respects, the two concepts overlap to some extent. The classic examples of items to which litigation privilege applies are the lawyer's file and oral or written communications between a lawyer and third parties, such as witnesses or experts, prepared in the context of reasonably anticipated litigation.
Litigation privilege is a common law rule of English origin. It was introduced in Canada in the 20th century as a privilege linked to solicitor-client privilege, which at the time was considered to be a rule of evidence necessary to ensure the proper conduct of trials and legal proceedings. Because of these origins, litigation privilege has sometimes been confused with solicitor-client privilege, but indeed the two are distinct even though they overlap at times.
However, since the Supreme Court of Canada rendered its decision in the case of Blank v. Canada in 2006, it has been settled law that solicitor-client privilege and litigation privilege are distinguishable. In Blank v. Canada, the Supreme Court of Canada stated, “They often co-exist and one is sometimes mistakenly called by the other’s name, but they are not coterminous in space, time or meaning.”
In that decision, the Supreme Court of Canada identified the following differences between the two concepts. The purpose of solicitor-client privilege is to protect a relationship, while that of litigation privilege is to ensure the efficacy of the adversarial process. On the one hand, solicitor-client privilege is permanent, whereas litigation privilege is temporary and lapses when the litigation ends. Unlike solicitor-client privilege, litigation privilege applies to non-confidential documents. Litigation privilege is not directed at communications between the solicitor and client as such.
The Supreme Court of Canada also stated, “Unlike the solicitor-client privilege, [litigation privilege] is neither absolute in scope nor permanent in duration.”
While it is true that in the decision of Blank v. Canada the Supreme Court of Canada identified clear differences between litigation privilege and solicitor-client privilege, it also recognized that they do have some characteristics in common. For example, the court noted that the two privileges “serve a common cause: The secure and effective administration of justice according to law.”
More specifically, litigation privilege serves that cause by ensuring “the efficacy of the adversarial process” and maintaining “a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate.”
