Privilege is a fundamental part of the Canadian criminal justice system. Anything that a client tells their lawyer stays between both parties. Nothing said is admissible in a courtroom and does not have to be disclosed to the Crown. More importantly, the police cannot force a lawyer to disclose anything a client or potential client tells them. The idea behind solicitor client privilege is to facilitate a full and frank discussion between a client and their legal representation. A client has to feel free to be able to discuss all issues they have with their lawyer. If a person cannot discuss all issues that they have then a lawyer won’t be able to give proper advice and the client would suffer.
What Creates Privilege?
There is a test that is used to determine whether what is said is protected by privilege. That test is that it must be:
⦁ communication between a solicitor and client;
⦁ which entails seeking or giving of legal advice;
⦁ which is intended to be confidential between the parties.
The nature or content of the communication must be for legal advice. A lawyer must be acting as a lawyer giving legal advice as opposed to in some other capacity. The privilege is not confined to just telling the law, but also includes advice regarding what should be done in the relevant legal context (Redhead Equipment v Canada (Attorney General), 2016, SKCA 115). It is important to keep in mind that privilege does not end when the relationship between the client and solicitor is over. Privilege is still attached to anything that was said. However, privilege is negated for communications that are made with a view to obtaining legal advice to facilitate the commission of a crime or fraud. So if someone goes to a lawyer to ask them how to commit a crime that conversation will not be protected.
Privilege Belongs to the Client
It is important to note that privilege belongs to the client. A solicitor cannot decide to waive privilege, only the client can. In fact, most trial judges will make sure that the solicitor has the express consent from their client before they waive privilege (Geffen v Goodman Estate, 1991, 211 SCC).
While solicitor client privilege is held in the highest regard, it is not absolute. There are some situations where a lawyer can break privilege. These exceptions are very strict and only apply in very rare circumstances.
⦁ Public Safety Exception: The Supreme Court in Smith v Jones (1999, 1 SCR 455) held public safety concerns set aside solicitor client privilege when a lawyer reasonably believes there is a clear, serious, and imminent threat to the public.
⦁ Innocence of the Accused Exception: The exception applies when the innocence of the accused is at stake. Courts have interpreted this exception very strictly and the exception is likely to apply only in the rarest of circumstances. When the information is disclosed it cannot be used against the client of the lawyer who disclosed the information (R v McClure, 2001 SCR 445).
⦁ Disclosure of Information – Fees and Allegations Against a Lawyer Exception: Law Societies across Canada allow a lawyer to break privilege to defend themselves or their colleagues from allegations involving a client or to establish or collect a fee. The lawyer must not disclose more information than the circumstances require. While codes of conduct may permit this kind of disclosure, the lawyer may still be prohibited from disclosing privileged information from the court.
At Capulli law we hold privilege in the highest regard. Our clients can be sure that anything said to us either over the phone or in our office will never be disclosed to any authority for any reason. We believe that our clients need to be completely frank and open in order for us to be able to serve them properly.