The context for this Discussion Paper is the need to take stock of the state of Solicitor-Client Privilege in Canada in light of developments internationally and at home. There is no single
court decision, government action or event that has precipitated the need for reflection but that
should not be an invitation for complacency. The Supreme Court of Canada’s jurisprudence is
consistent and predictable in strongly protecting Solicitor-Client Privilege (the Privilege). It
generally aligns with the positions taken by the Canadian Bar Association (CBA) before the high
court. However, the court’s jurisprudence does not provide an adequate framework for addressing
the multitude of issues that currently exist and that are likely to arise regarding the Privilege.
Moreover, the Canadian approach to the Privilege is in many ways at odds with how the Privilege is
treated in other common law jurisdictions. In an increasingly globalized legal world, the time is
ripe to identify issues for the Privilege in Canada and begin to start to think about how they should
be addressed. This is the raison d’être of this Discussion Paper.
Over the past three decades, Solicitor-Client Privilege has been elevated from a limited
evidentiary privilege into a quasi-constitutional right. Wigmore’s classic definition of the Privilege
continues to prevail: “Where legal advice of any kind is sought from a professional legal adviser, in
his capacity as such, the communications relating to that purpose, made in confidence by the client,
are at his instance permanently protected from disclosure by himself or by the legal adviser, except
the privilege be waived.” In a series of cases between 1999 and 2002, the Supreme Court greatly
strengthened the Privilege. It is now best understood as a quasi-constitutional right to
communicate in confidence with one’s lawyer which can be invoked in any circumstances.
Solicitor-Client Privilege is associated with and at times confused with other concepts. It is
therefore necessary to distinguish it from the ethical duty of confidentiality, Litigation Privilege, Joint Client Privilege, Common Interest Privilege and the Implied Undertaking Rule (also referred to as the deemed undertaking rule or discovery privilege). The Supreme Court has only recognized two exceptions to the Privilege: public safety and innocence at stake. In practice, there exist a group of other exceptions often referred to as “Lawyers’ exceptions” or “self-defence exceptions”. These allow lawyers to reveal privileged
information to defend themselves or their associates from charges of malpractice or misconduct or
to collect a fee. The Supreme Court has also left open the possibility of other exceptions, e.g. for
national security. By far, the area most in flux is the rule that communications in aid of a crime or
fraud are not privileged. Recent cases have shown a willingness to expand the exception to include
communications in furtherance of a tort or breach of contract. There are significant consequences
to expanding the crime-fraud exception into these areas.
Solicitor-Client Privilege in law and in practice looks very different in other jurisdictions.
In a globalized legal world, international pressures will impact on the Privilege in Canada and
Canadian clients and lawyers will engage in transnational transactions or litigation where the
Privilege will apply differently. Moreover, Canadian courts are likely to consider the law in other
jurisdictions either because foreign law will be directly engaged or because of the need to consider
persuasive authority in other common law countries to deal with new Privilege issues for which
there is a dearth of Canadian authority.
In the United States, strong pressures have been exerted on the Privilege over the past decade. The War on Terror and the response to corporate scandals have seriously weakened the Privilege. The aggressive prosecution of corporate fraud by the federal Department of Justice has created a “culture of waiver” for the corporate Attorney-Client Privilege. The Department of Justice has eroded the Privilege for corporations without changing a single law; it has all been done through the executive’s policy-making powers.
In the United Kingdom, Australia, New Zealand and South Africa, Solicitor-Client Privilege
falls under the doctrine of Legal Professional Privilege which contains two branches: legal advice
privilege (what we would call Solicitor-Client Privilege) and litigation privilege. This structure is significant because a dominant purpose test generally applies to both branches of Legal
Professional Privilege whereas in Canada it only applies to Litigation Privilege. In the United Kingdom, the Privilege remains a common law doctrine which the courts have been vigilant in protecting. However, under parliamentary supremacy, Parliament can and has expressly abrogated the Privilege. In setting up the Iraq Inquiry, the government of former
Prime Minister Gordon Brown broadly waived the Privilege and as a result senior government legal
advisers have testified as to the legal advice that they provided regarding the legality of the war.
In Australia, the Privilege is both a common law and a statutory doctrine. Legislation in Australia sets out a complete code for the Privilege: its parameters, exclusions, exceptions and circumstances of waiver. New Zealand law has generally followed the English and there are some notable differences with Canadian law, especially regarding waiver. South Africa is interesting in that the Privilege is not protected under that country’s Constitution but it can be used as a reasonable limit to justify the infringement of a right under that country’s limitations clause which was modeled after our own section 1 of the Charter.
In Europe, the Privilege is considered a fundamental human right under the European Convention on Human Rights. However, it may also be overridden on various grounds and has been in the name of national security and protection against money laundering. The biggest Privilege issue in Europe has attracted interest around the world and will likely come as a surprise to many Canadian lawyers: under European Union law, the Privilege generally does not apply to
communications with in-house counsel.
The Privilege applies differently in various contexts. This section of the Discussion Paper
addresses some of the issues that arise in three areas: corporate; public sector; and administrative
law and open government. In the corporate context, one current issue is the operation of the Privilege within the corporate family. The U.S. Court of Appeals for the Third Circuit addressed a number of issues in the 2007 Teleglobe decision. The decision is a likely starting point for consideration of issues that will eventually come before Canadian courts such as: When in-house counsel communicates with the parent company and one or more corporate affiliates, who is the client? Is there only one client, or are there several joint clients? Is advice that is given to the parent company privileged as against the subsidiaries? Can one member of the corporate family waive privilege for all? Does in-house counsel’s advice remain privileged when the interests of corporate affiliates are divergent? What happens to the Privilege when the affiliates sue one another? What practices should companies and their in-house counsel follow to protect privilege on
a day-to-day basis?
When it comes to the Privilege in the public sector, the first question to grapple with is determining who the client is in a given situation. This is especially important when it comes to issues of waiver and court decisions reach different conclusions. Perhaps the greatest future challenge for the application of the Privilege to the public sector lies in the increasing tendency to articulate the Privilege as a quasi- or full constitutional right because generally governments do not have Charter rights. A further challenge comes from the Open Government movement where access to information and government watchdogs frequently clash with the Privilege. Court decisions have protected the Privilege in various administrative settings, limiting the powers of administrative officials and adjudicators to access or adjudicate Privilege claims. There is growing concern about the negative impact that this could have on administrative proceedings.
The last section of the discussion paper addresses current challenges and opportunities for the CBA regarding the Privilege. Other professionals have and will continue to seek a class privilege
like Solicitor-Client Privilege. The CBA will have to consider what its position should be on whether
Solicitor-Client Privilege should extend to paralegals or to other professionals providing legal
advice such as immigration consultants. There are also patent agents and tax accountants who seek
analogous privilege. The common law in Canada has been reticent to recognize privilege for these
other professionals. This approach contrasts with a more inclusive approach under the doctrine of
professional secrecy in Quebec and under legislation in other countries.
Technological changes are likely to challenge how we think about the Privilege more over the next decade than they have over the last several. The touchstone of the Privilege is confidentiality and technological changes have brought unparalleled access and connectivity at the cost of confidentiality. Communications over the internet may provide a false sense of confidentiality where none exists. A fundamental question that we as a profession have to face is whether the doctrine of the Privilege will adapt to new circumstances or whether lawyers’ behaviours will have to adapt to deal with the strict rules of the Privilege.
Finally, as the practice of law changes, it will bring new challenges for the Privilege. It is
not clear how outsourcing and many of the changes predicted by legal futurist and CBA Special
Advisor Richard Susskind will impact the Privilege. But we need to start thinking about them.