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Privilege - Solicitor-Client

Evidence - Solicitor-Client Privilege

Alberta (Information and Privacy Commissioner) v. University of Calgary (SCC, 2016)

In this freedom of information case the Supreme Court of Canada canvasses the nature of solicitor-client privilege, and in particular that it is more than just a principle of the law of evidence:
[38] First, it is well established that solicitor-client privilege has evolved from a rule of evidence to a rule of substance (Blood Tribe, at para. 10; Thompson, at para. 17; Chambre des notaires, at para. 28). Further, as indicated above, some even suggest that the Court has granted it a quasi-constitutional status.

[39] Formerly, solicitor-client privilege as a rule of evidence meant that a client and his or her lawyer were not required to tender confidential communications into evidence in a judicial proceeding (Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, at p. 876, citing R. Cross, Cross on Evidence (5th ed., 1979), at p. 282). As R. D. Manes and M. P. Silver state in Solicitor-Client Privilege in Canadian Law (1993), at p. 2:
The origin of the law of privilege goes back to Tudor times in England, and originated as a respect for the oath and honour of a lawyer who was duty-bound to guard the client’s secrets. At first, the duty was restricted to an exemption only from testimonial compulsion, that is, the right of the lawyer or client to refuse to testify in court regarding confidential communications. [Emphasis added; footnote omitted.]
In its early days, solicitor-client privilege was restricted in operation to an exemption from testimonial compulsion (Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, at p. 834).

[40] As early as Solosky, however, this Court recognized that solicitor-client privilege had been placed “on a new plane”, and extended beyond the courtroom context (p. 836). Two years later, in Descôteaux, this Court elaborated on solicitor-client privilege as a substantive rule and formulated it as follows:
1. The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client’s consent.

2. Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person’s right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.

3. When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.

4. Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively. [p. 875]
Thus, the substantive rule expanded the circumstances in which solicitor-client privilege applies, and also introduced protections governing when the privilege can be abrogated, set aside or infringed.

[41] Following Descôteaux, this Court has found solicitor-client privilege to apply in circumstances outside the courtroom, including search and seizure of documents in a lawyer’s office (Lavallee; Maranda v. Richer, 2003 SCC 67 (CanLII), [2003] 3 S.C.R. 193; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7 (CanLII), [2015] 1 S.C.R. 401) and disclosure of documents in the context of access to information legislation (Blood Tribe; Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31 (CanLII), [2006] 2 S.C.R. 32; Criminal Lawyers’ Association). In its modern form, solicitor-client privilege is not merely a rule of evidence; it is “a rule of evidence, an important civil and legal right and a principle of fundamental justice in Canadian law” (Lavallee, at para. 49).

[42] I find that the present case engages solicitor-client privilege in its substantive, rather than evidentiary, context. This case is not occupied with the tendering of privileged materials as evidence in a judicial proceeding. Rather, it deals with disclosure of documents pursuant to a statutorily established access to information regime, separate from a legal proceeding. While it is true that the person who applied for the information was initially seeking the information for use as evidence in separate litigation against the University, her lawsuit has since ended. In addition, the Privacy Commissioner is not seeking to review the solicitor-client privileged information as evidence in order to decide a legal dispute. The disclosure of the information in this context is therefore not related to the “evidentiary privilege”. Rather, disclosure in this case is more akin to the review of mail being delivered to prison inmates, which this Court addressed in Solosky. In that case, as it was described in Descôteaux, the Court “applied a standard that has nothing to do with the rule of evidence . . . since there was never any question of testimony before a tribunal or court” (p. 875). Equally, the absence of such a question here highlights the engagement of solicitor-client privilege in its substantive, rather than evidentiary, role.

[43] This Court has repeatedly affirmed that, as a substantive rule, solicitor-client privilege must remain as close to absolute as possible and should not be interfered with unless absolutely necessary (Chambre des notaires, at para. 28, citing Lavallee, at paras. 36-37, McClure, at para. 35, R. v. Brown, 2002 SCC 32 (CanLII), [2002] 2 S.C.R. 185, at para. 27, and Goodis, at para. 15). Within the evidentiary context of criminal proceedings, for example, the substantive nature of solicitor-client privilege has been interpreted as meaning the privilege only yields in “certain clearly defined circumstances, and does not involve a balance of interests on a case-by-case basis” (McClure, at para. 35). These limited categories, which will only be satisfied in rare circumstances, include the accused’s right to make full answer and defence (McClure; Brown) and where public safety is at stake (Smith).

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