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Adam M. Dodek
Lexis Nexis, 2014
Excerpt pp. XXVI – XXX
Solicitor-client privilege is the strongest privilege protected by law. It is also the privilege that clients and lawyers are most likely to encounter. Every time a client speaks privately with a lawyer, solicitor-client privilege is likely to be engaged. Conversely, most lawyers will never encounter informer privilege which is the only other privilege to rival solicitor-client privilege in terms of the zealousness with which courts protect it. Neither are lawyers likely to give spousal privilege much thought nor the much maligned priest-penitent privilege, unless they are going to a religious advisor to confess their sins or seek spiritual guidance. Even litigation privilege is likely to be avoided by most lawyers over the course of their careers. The same cannot be said of solicitor-client privilege. It implicates the work of all lawyers, even those who might have difficulty identifying warm human bodies as “clients”.
As discussed in Chapter 1, solicitor-client privilege dates back to the 16th century. Yet it seems to be constantly challenged by changes in society and in the legal profession. Solicitor-client privilege is so much a part of our legal system that we do not reflect much on it. We take its lofty status for granted. We should not. Developments in other jurisdictions show that solicitor-client privilege is treated differently elsewhere. Indeed, somehow Canada has become the last major common law jurisdiction to refer to the legal protection afforded the confidential communications between lawyer and client as “Solicitor-Client Privilege”. In the United Kingdom, Australia, New Zealand and South Africa, what to us is solicitor-client privilege is but one part of what is known as “Legal Professional Privilege” (the “legal advice privilege” part). Of course, Americans have attorney-client privilege as all keen television viewers know. Thus, in considering the title of this book, I realized that it would have been redundant to call it “Solicitor-Client Privilege in Canada” because solicitor-client privilege now only exists in Canada.
My goal in writing this book was to produce a distinctly Canadian text because solicitor-client privilege has developed differently in Canada. It has a unique constitutional status that emanates beyond any obvious moorings and impacts the privilege’s interpretation. For these reasons, foreign precedents must be drawn upon with caution. We cannot assume that a case involving legal professional privilege or attorney-client privilege would be decided the same way in Canada. Foreign cases are helpful in that they raise issues that we are likely to face in this country. But they must be analyzed through the distinctly Canadian lens of solicitor-client privilege. I attempt to do that in this book.
In endeavouring to write a book that is distinctly Canadian, I have also attempted to take stock of the reality that we operate in a dynamic globalized legal world. It seems that the practice of law is changing at a much faster pace that it has in previous decades. Technological changes hurl new challenges at the old doctrine of solicitor-client privilege. It did not make sense for me to have a separate section on technology for fear that by the time the book was published my section on sending faxes to clients would have become obsolete. Instead, I have attempted to use current technological issues as case studies under the more general components of solicitor-client privilege. Today we are concerned about the security of cloud computing. Perhaps in a later decade we will be analyzing the application of solicitor-client privilege to transporter technology. Stranger things have happened.
This book finds its origins in Ronald Manes and Michael Silver’s 1993 book Solicitor-Client Privilege in Canadian Law. As Manes’ and Silver’s careers took new turns, so too did solicitor-client privilege. In the two decades since their book was published, solicitor-client privilege has been quasi-constitutionalized and it also means something different than it did in 1993. At that time, we still often referred to two “branches” of solicitor-client privilege: the legal advice privilege and litigation privilege. This is still the case for the doctrine of Legal Professional Privilege in the United Kingdom, Australia, New Zealand and South Africa. However, in 2006 in Blank v. Canada, Fish J. clearly stated that solicitor-client privilege and litigation privilege were not two branches of the same tree. Much of Manes & Silver’s text deals with litigation privilege. This book does not. However, despite the passage of time and the significant doctrinal changes, much of that text continues to stand the test of time and I have greatly relied upon it in writing this book. Thus, the reader will see frequent references to Manes & Silver’s text in forthcoming chapters.
What is Solicitor-Client Privilege?
From this point forward, I will refer to solicitor-client privilege simply as “the privilege” unless there is a need to distinguish it from other privileges. The privilege as it currently exists in Canada is best understood as a right to communicate in confidence with one’s lawyer. This right comprises the protection against the voluntary or compelled disclosure by one’s lawyer absent the client’s consent or court order. It also includes a protection against the client being compelled to disclose information covered by the privilege. It can be invoked by the client or the lawyer on the client’s behalf in the midst of or in the absence of court proceedings. The privilege has thus become much more than an evidentiary privilege; it is a substantive right with constitutional implications, if not constitutional proportions.
Whose Privilege is It? Maintaining Sight of the Client
This book analyzes the state of the law of privilege in Canada. It is not an attempt at law reform or academic critique. However, as I hope will become clear throughout this book, I have two general criticisms that animate my analysis. The first is quite obvious, which is that all too often there is little reflection about the privilege and assertions are made about it without much consideration. Thus, lawyers and courts often confuse and conflate the ethical duty of confidentiality and privilege, litigation privilege and solicitor-client privilege, etc. This is my general motivation for writing this book.
My second criticism is that not infrequently, the law appears to focus more on the lawyer than on the client. I like to say that it is not for nothing that the Solicitor comes first in “Solicitor-Client Privilege”. In 1999, Doherty J.A. of the Ontario Court of Appeal tried to rebrand “Solicitor-Client Privilege” as “Client-Solicitor Privilege”. It didn’t take; we still put the Solicitor first despite the client’s interests being the raison d’être for the privilege. We must not lose sight of that. All too often the law does not distinguish between the application of the privilege vis-à-vis the lawyer or the client. I think it should. For example, we have a single standard for inadvertent disclosure of privileged information whether it is disclosed by the lawyer or the client. I question this standard for reasons that I explain in Chapter 7 on waiver. Similarly, in my view, the doctrine has not fully adjusted to the development of the privilege as a substantive right of quasi-constitutional proportions. For reasons that I explain, there are places where courts are underprotective or overprotective of the privilege. I attempt to be as transparent as I can in setting out my views or criticisms as opposed to what I think is a fair reading of the case law.
I have given much thought to the structure of this book. In the end, I returned to where all discussions of solicitor-client privilege begin in Canada: Wigmore. John Henry Wigmore’s classic formulation of the privilege was adopted by the Supreme Court of Canada in 1927. It continues to remain the touchstone or the framework for privilege analysis in Canada. Wigmore’s classic definition of the privilege is that:
[w]here 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.
The only thing that has become dated in Wigmore’s explication of the privilege is the gender-specific nature of the language. Wigmore’s privilege, like all privileges, was restricted in its application to a protection from disclosure during the course of legal proceedings. However, as the courts have broadened the reach of the privilege, this implicit aspect of Wigmore’s articulation is no longer valid. It is perhaps ironic that Wigmore has had far more staying power in Canada than in his home country, the United States. In any event, Wigmore’s formulation still provides the working definition of the privilege in Canada.
Thus, Part II of this book closely track’s Wigmore framework. I will return to that in a moment. Part I of the book provides a historical and contextual overview of the privilege. Chapter 1 describes the origins and rationale of solicitor-client privilege in Canada. Specifically, it explains the core case for the privilege as necessary to ensure the full and frank communication between client and lawyer as well as more recent attempts to justify the privilege on grounds of access to justice. Chapter 2 explains the evolution of the privilege in Canada and distinguishes it from related doctrines such as the ethical duty of confidentiality, litigation privilege, settlement privilege and mediation privilege. These chapters may be of interest to those who wish to delve deeper into consideration of various aspects of the privilege.
Part II traces the parameters of the privilege and its exceptions. It closely tracks Wigmore’s definition of the privilege. This definition consists of at least eight conditions or requirements: (1) the client must seek legal as opposed to business, personal or other non-legal advice; (2) from a professional legal adviser; (3) the legal adviser must be acting in a professional capacity; (4) the communications must relate to the seeking of legal assistance or advice; (5) the communications must be made in confidence; (6) by “the client”; (7) the client maintains control over the disclosure of the communications by herself or her lawyer; and (8) there has been no waiver. By saying “at least eight”, I mean to recognize both the eight main constituent elements of the privilege and the reality that some of these elements in and of themselves contain various components.
Part III analyzes the privilege in four specific contexts. The practice of law being so broad and varied, I could not possibly hope to analyze the interaction of the privilege in all its permutations in all areas of the law. I have selected common subject areas as well as controversial ones. This part includes chapters on the Privilege and Civil Litigation, Administrative Proceedings, the Corporation and Government. I attempt to analyze the unique issues that arise in each of these areas.
An important note on Terminology
Despite the Supreme Court’s clear annunciation of the separate nature of solicitor-client privilege and litigation privilege in Blank v. Canada, confusion still reigns. In writing this book, I came across numerous post-Blank judgments that still referred to “the legal advice” branch of solicitor-client privilege. Pre-Blank judgments that use the term “Solicitor-Client Privilege” must be read with caution to determine whether they mean what we now call solicitor-client privilege or whether they refer to litigation privilege. Apparently, some post-Blank decisions must also be so read. Similarly, courts often interpret legislation which includes the term “Solicitor-Client Privilege” drafted pre-Blank to also encompass litigation privilege. Thus, all privilege cases must be read carefully. I have attempted to do that in preparing this book.
I hope that you will find this book useful and perhaps even interesting. The case law is current as of January 2014.
 See generally R. v. Barros, S.C.J. No. 51, 3 S.C.R. 368, 2011 SCC 51 (S.C.C.);
R. v. Leipert,  S.C.J. No. 14,  1 S.C.R. 281 (S.C.C.). On informer privilege generally, see David M. Paciocco & Lee Stuesser, The Law of Evidence, 6th ed. (Toronto: Irwin Law, 2011) at 279-82; Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuerst, Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 3d ed. (Markham, ON: LexisNexis Canada, 2009) §15.70 et seq.; R.W. Hubbard, S. Magotiaux & S.M. Duncan, The Law of Privilege in Canada (Aurora, ON: Canada Law Book, 2006).
 See e.g., Edna Selan Epstein, The Attorney-Client Privilege and Work-Product Doctrine,5th ed. (Chicago: American Bar Association, 2007) and Vincent S. Walkowiak, Stephen K. McNabb & Oscar Rey Rodriguez, eds., The Attorney-Client Privilege in Civil Litigation: Protecting and Defending Confidentiality,5th ed. (Chicago: American Bar Association, 2012).
 Ronald D. Manes & Michael P. Silver, Solicitor-Client Privilege in Canadian Law (Toronto: Butterworths, 1993). This was complemented several years later by a general book on The Law of Confidential Communications in Canada (Toronto: Butterworths, 1996).
 See Adam M. Dodek, “Constitutional Hierarchy: Solicitor-Client Privilege as Super-Constitutional Right” (Paper delivered at the Ontario Bar Association, Toronto, 2003), online: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1548078>.
 John H. Wigmore, Wigmore on Evidence,McNaughton rev. ed. (Boston: Little Brown, 1961) vol. 8 at s. 2292. This definition has been adopted by the Supreme Court of Canada in R. v. Campbell, S.C.J. No. 16 at para. 49,  1 S.C.R. 565 (S.C.C.); R. v. McClure,  S.C.J. No. 13 at para. 29,  1 S.C.R. 445 (S.C.C.); Descôteaux v. Mierzwinski,  S.C.J. No. 43,  1 S.C.R. 860 at 872-73 (S.C.C.); Canada v. Solosky,  S.C.J. No. 130,  1 S.C.R. 821 at 835 (S.C.C.); and R. v. Howley, S.C.J. No. 49 at para. 11,  S.C.R. 529 (S.C.C.).