Solicitor-Client

Privilege

This page was last substantively updated or reviewed January 2020. (Rev. # 95936)

< Evidence < Privilege

General Principles
Solicitor-client privilege is a legal doctrine that protects written and oral communications that
were made in confidence between a legal advisor and client for the purpose of obtaining legal
advice.[1]

Purpose
The protections are based on the premise that the relationship and communications between
client and lawyer are "essential to the effective operation of the legal system."[2] The client must
be able to speak openly with the lawyer, free from the fear that they may be required to divulge
anything.[3]

It is said that confidentiality between lawyer and client "is essential to the maintenance of a just
and effective justice system."[4]
It is an expression of the law's need for client autonomy and to ensure access to justice.[5]

It is necessary to ensure that clients are able to have candor with their counsel.[6]

Constitutional Protection
Solicitor-client privilege is not simply a rule of evidence but is also constitutionally protected as a
"principle of fundamental justice."[7]

This privilege is the "highest privilege recognized by the courts" which is "fundamental to the
administration of justice" and "essential to the effective operation of the legal system."[8]
Violation of this privilege can "erode the public's confidence in fairness of the criminal justice
system."[9] As accused persons must have confidential access to advice to made properly
informed decisions.

Duty to Protect Privilege

It is the duty of counsel to protect the confidentiality of their clients.[10]

It is also the duty of the court to not permit intrusion upon privilege where it might exist.[11]

Consequences of Privilege
Solicitor-client privilege is a "class privilege" and presumptively rendered records
inadmissible.[12]

Privileged records are not to be disclosed and are "inadmissible in court.”[13]

The protection afforded to solicitor-client records is permanent.[14]

Burden of Proof
The privilege claimant bears the burden to prove on a balance of probabilities that each
document asserted to be privileged is in fact privileged.[15] Failure to meet the standard of proof
will result in a finding that privilege has not been established.[16]
However, it must be remembered that privilege does not "come into being" by the assertion of
the right. It exists independently of any claim to it.[17] Consequently, a failure to assert privilege
does not equate to a waiver of privilege or an admission of the non-existence of privilege.

Similarly, there are recognized presumptions in favour of privilege in certain types of records,
including lawyer client communciations.[18]

Who Can Claim Privilege

Only the client who owns the privilege can raise the issue in court.[19] It is then only the client or
their agent or successor that can waive privilege.[20]

Privilege vs Confidentiality
The principles of privilege and confidentiality are separate but overlapping. A lawyer's obligation
for confidentiality expands beyond privilege. It is a rule of ethics that protects all
communications between the lawyer and client, irrespective of it's relationship to legal advice.
This role does not protect against commission evidence or judicial authorizations. The contours
of the rule are usually covered by the rules of ethics for barrister's of the particular province or
territory.

Standard of Appellate Review

The issue of whether a document is protected by privilege is a question of “mixed fact and law”
and so deference is required on review. Absent “extricable error in principle” the review is on the
standard of palpable and overriding error. [21]

History
Historically, it was a right that was generally held by the barrister was premised on the protection
of the "oath and honour" of the counsel.[22]

The more modern Canadian history of privilege began with privilege as rule of evidence that
prohibited the admission of legal advice or proceedings.[23]
In Solosky v Canada[24] , the evidentiary rule was modified to a substantive rule of law.[25] Later, it
was raised to a "fundamental civil and legal right."[26]

1. R v Campbell, 835
1999 CanLII R v Basi, 2008
676 (SCC) , BCSC 1858
[1999] 1 SCR (CanLII) , BCJ
565, per Binnie No 2725, per
J (9:0), at para Bennett J
49 [also
referred to as R
v Shirose]
R v Solosky,
1979 CanLII 9
(SCC) , [1980]
1 SCR 821, per
Dickson J, at p.
2. R v Gruenke, s between
1991 CanLII 40 solicitor and
(SCC) , [1991] client are
3 SCR 263, per essential to the
Lamer CJ, at p. effective
289 (SCR) operation of
("The prima the legal
facie system. Such
protection for communication
solicitor-client s are
communication inextricably
s is based on linked with the
the fact that very system
the relationship which desires
and the the disclosure
communication of the
communication 3. Smith v Jones,
.") 1999 CanLII
674 (SCC) ,
[1999] 1 SCR
455, per Cory J,
at para 45 ("...
by reason of
the complexity
and difficulty of
our law,
litigation can
only be
properly
conducted by
professional
men, it is
absolutely and unbounded
necessary that confidence in
a man, in order the
to prosecute professional
his rights or to agent, and that
defend himself the
from an communication
improper claim, s he so makes
should have to him should
recourse to the be kept secret,
assistance of unless with his
professional consent (for it
lawyers, ... he is his privilege,
should be able and not the
to place privilege of the
unrestricted confidential
agent), that he 4. General
should be Accident
enabled Assurance
properly to Company v
conduct his Chrusz, 1999
litigation.") CanLII 7320
(ON CA) , 180
DLR (4th) 241,
per Doherty JA
(dissenting in
part on a
different issue)
("the right of a
party to
maintain the
confidentiality
of client- the
solicitor maintenance of
communication a just and
s, and effective
sometimes justice
communication system.")
s involving
third parties,
rests on the
equally
fundamental
tenet that the
confidentiality
of those
communication
s is essential to
5. Chrusz, supra 6. Chrusz, supra
("The privilege ("...rationale
is an goes beyond
expression of the promotion
our of absolute
commitment to candor in
both personal discussions
autonomy and between a
access to client and her
justice.") lawyer...")
7. Canada J (9:0), at pp.
(National 453 to 460
Revenue) v See also
Thompson, Principles of
2016 SCC 21 Fundamental
(CanLII) , Justice
[2016] 1 SCR
381, per
Wagner and
Gascon J, at
para 17
R v McClure,
2001 SCC 14
(CanLII) ,
[2001] 1 SCR
445, per Major
8. Smith v Jones, of privileges
supra, at para and duties of
44 (" It is the confidentiality."
highest ) and 50
privilege ("...solicitor‑clie
recognized by nt privilege is
the courts. By the privilege
necessary “which the law
implication, if a has been most
public safety zealous to
exception protect and
applies to most reluctant
solicitor‑client to water down
privilege, it by exceptions”.
applies to all Quite simply it
classifications is a principle of
 fundamental 10. Solosky v The
importance to Queen, 1979
the CanLII 9
administration (SCC) , [1980]
of justice.") 1 SCR 821, per
9. Lavallee, Dickson J
Rackel & Heintz See also Codes
v Canada (AG), of Conduct for
2002 SCC 61 members of
(CanLII) , the bar of each
[2002] 3 SCR province
209, per Arbour
J (6:3), at para
49
11. R v AB, 2014 13. Lavallee, supra,
NLCA 8 at para 24
(CanLII) , 346
Nfld & PEIR
218, per
Harrington JA
12. R v McClure,
2001 SCC 14
(CanLII) ,
[2001] 1 SCR
445, per Major
J (9:0), at para
27
Gruenke, supra,
at p. 286
14. AARC Society v 15. Huang v
Sparks, 2018 Silvercorp
ABCA 177 Metals Inc,
(CanLII) , per 2017 BCSC 795
curiam, at para (CanLII) , per
2 Warren J, at
Blank v Canada para 94
(Minister of Bank of
Justice), 2006 Montreal v
SCC 39 Tortora, 2009
(CanLII) , BCSC 1224
[2006] 2 SCR (CanLII) , per
319, per Fish J, Butler J, at
at para 37 para 30
Raj v Khosravi,
2015 BCCA 49
 (CanLII) , per 17. Lavallee,
Smith JA, at Rackel & Heintz
para 9 v Canada (AG),
16. Huang, supra, 2002 SCC 61
at para 94 (CanLII) ,
Bank of [2002] 3 SCR
Montreal v 209, per Arbour
Tortora, supra, J (6:3), at para
at para 30 49
Raj, supra, at 18. see
para 9 "Presumption
of Privilege"
below for
details
19. R v Jack, 1992 20. Metcalfe at
CanLII 2764 para 13
(MB CA) , 70 Geffen at p..
CCC (3d) 67, 383 to 384
per Scott CJ (SCR)
Smith v Jones
at para 46
Geffen v
Goodman
Estate at 383
(SCR)
Metcalfe v
Metcalfe,
20021 MBCQA
35 (CanLII) at
para 13
21. Girouard v per Ottenbreit
Canadian JA, at #par21
Judicial para 21
Council, 2019 R v Ragnanan,
FCA 252 2014 MBCA 1
(CanLII) per (CanLII) , per
De Montigny Hamilton JA, at
JA , at para 15 para 37
Redhead Goodswimmer
Equipment v v Canada
Canada (Attorney
(Attorney General), 2015
General), 2016 ABCA 253
SKCA 115 (CanLII) , 606
(CanLII) , 402 AR 291, per
DLR (4th) 649, curiam(2:1) , at
para 8 Revenue), 2017
Sable Offshore FCA 22
Energy Project (CanLII) per
v Ameron Stratas JA, at
International para 2
Corporation,
2015 NSCA 8
(CanLII) , 38
CLR (4th) 1, per
Bourgeois JA,
at para 43
Revcon Oilfield
Constructors
Incorporated v
Canada
(National
22. Solosky v The 23. Canada
Queen, 1979 (National
CanLII 9 Revenue) v
(SCC) , [1980] Thompson,
1 SCR 821 It 2016 SCC 21
was ultimately (CanLII) ,
rejected in R v [2016] 1 SCR
McClure, 2001 381, at para
SCC 14 17 ("Solicitor-
(CanLII) , client privilege
[2001] 1 SCR has evolved
445 from being
treated as a
mere
evidentiary rule
to being
considered a it today, the
rule of right to
substance and, confidentiality
now, a principle did not first
of fundamental appear until the
justice ") 16th century,
Descôteaux et and then did so
al. v as a rule of
Mierzwinski, evidence")
1982 CanLII 22 Berd v
(SCC) , [1982] Lovelace
1 SCR 860 (1577), 21 E.R.
("Although we 33 (UK)
recognize Dennis v
numerous Codrington
applications of (1580), 21 E.R.
 53 (UK) 25. Solosky, supra,
see also NJ at p. 1mjtq
Williams, ("Recent case
"Discovery of law has taken
Civil Litigation the traditional
Trial doctrine of
Preparation in solicitor-client
Canada" Can. privilege and
B. Rev., (1980): placed it on a
https://cbr.cba. new plane.
org/index.php/ Privilege is no
cbr/article/vie longer
w/3071/3064 regarded
24. Solosky, supra merely as a
rule of
evidence which
 acts as a shield 26. Geffen v
to prevent Goodman
privileged Estate,
materials from Smith v Jones,
being tendered McClure, supra
in evidence in a
court room.")

Where it Exists
Not all work product of a lawyer is solicitor-client privileged and not every communication with a
client is privileged either.[1] Privilege applies only to communications that are made for a
"legitimate purpose of obtaining lawful legal advice."[2]

Where there is any ambiguity or uncertainty as to the application of privilege favour should go to
the protections of confidentiality.[3]

The privilege exists where a written or oral communication is:[4]

1. made by a client to a professional

legal advisor;
 2. made in confidence or be of a
confidential in nature;
3. for the purpose of giving and
receiving legal advice.
Privilege does not apply to those communications:[5]

1. where legal advice is not sought or

offered;
2. where it is not intended to be
confidential; or
3. that have the purpose of furthering
unlawful conduct
Privilege will extend beyond the contents of the communication and will include any materials
"directly related" to the "seeking, formulating or giving of legal advice or legal assistance."[6]

Fact vs Communications
Traditional analysis makes a distinction between protected communications and mere facts
including acts of counsel or statements of facts that are not protected.[7] However, this
distinction has been rejected as a rule separating privileged documents from those that are not
protected.[8]
 Lawyer
The lawyer-side of the communication must be a lawyer who is authorized to practice law in the
jurisdiction where the communication is taking place.[9]

Expectation of Confidentiality
Various forms of communications have been found not to be privileged on account of the lack of
expectation of confidentiality:

notes prepared by accused to refresh

memory found outside a law office but
were used in a conversation with
counsel.[10]
communications that are intended to be
communicated publicly such as the
communications of the contents of an
agreed statement of fact later admitted
in court.[11]
 communications that are made to or
from the Crown.[12]

Communications with Third Parties

Communications between a third party and counsel or a client and third party will be privileged
only where the communication is "integral to the client-solicitor function."[13] Protection will not
be extended to those who perform service which are "incidental to the seeking and obtaining of
legal advice."[14]

Communications shared between members of the same firm remain privileged.[15]

Examples of Application of Privilege

The following have been considered privileged information:

Emails between counsel and clients[16]

conversations between counsel and
client in the courtroom even if caught on
recording device.[17]
phone wiretap between counsel and
client [18]
identity of person paying legal fees[19]
 lawyer bills and statement of accounts
regarding clients[20]
The following has been considered not to be privileged information:

client instructions to make a settlement

offer[21]
the timing of when the advice was
given.[22]

Name of Clients
Names of clients are presumptively privileged.[23]

In "some cases," the names of clients can be privileged. The protections will exist where the
name "may reveal other confidential information about the person’s personal life or legal
problems."[24]

Situations where names can be privileged include when consulting with a divorce lawyer,
criminal defence lawyer, or lawyer relating to specialized fields.[25]

The presumption of privilege can be rebutted by:[26]

1. "that there is no reasonable

possibility that disclosure of the
requested information will lead,
 directly or indirectly, to the revelation
of confidential solicitor-client
communications"; or
2. "that the requested information is not
linked to the merits of the case and
its disclosure would not prejudice the
client"

Does Not Include Physical Objects or

Pre-Existing Documents
Privilege will never attach to physical items or any documents that exist independent of the
relationship.[27]

Does Not Require Any Suggested

Litigation
There is no requirement that the materials subject to privilege have to in any way relate to
possible litigation. Even commercial contracts can be protected.[28]

Who Decides
It is not for the client or any counsel to determine whether privilege exists. Only a judge may
make a determination after an assertion is made.[29]

Method of Review
The presumption is that the judge must examine the documents themselves, but where the
volume of records is significant such that "manual review" is "unworkable", "impractical" and
"unduly resource intensive" the court should look to collaboration between counsel for
efficiencies.[30]

1. R v McClure, privileged. In
2001 SCC 14 order for the
(CanLII) , communication
[2001] 1 SCR to be
445, per Major privileged, it
J, at para 36 must arise
("Not all from
communication communication
s between a between a
lawyer and her lawyer and the
client are client where
 the latter seeks 3. Descoteaux v
lawful legal Mierzwinski,
advice.") 1982 CanLII 22
2. R v Durham (SCC) , [1982]
Regional Crime 1 SCR 860, per
Stoppers Inc, Lamer J, at p.
2017 SCC 45 875
(CanLII) , Drake Holdings
[2017] 2 SCR Ltd v Chubb
157, per Insurance
Moldaver J, at Company of
para 25 Canada, 2018
ONSC 4494
(CanLII) , per
Schreck J, at
para 17
4. R v Campbell, BCSC 1858
1999 CanLII (CanLII) , BCJ
676 (SCC) , No 2725, per
[1999] 1 SCR Bennett J
565, per Binnie See Law of
J (9:0), at para Privilege at 11-
49 [also 4.2 (sub-
referred to as R divides the first
v Shirose] element into
R v Solosky, two)
1979 CanLII 9
(SCC) , [1980]
1 SCR 821, per
Dickson J, at p.
835
R v Basi, 2008
5. Pritchard v 7. Donell v. GJB
Ontario Enterprises Inc,
(Human Rights 2012 BCCA
Commission), 135 (CanLII) , 7
2004 SCC 31 WWR 660, per
(CanLII) , Chiasson JA, at
[2004] 1 SCR para 57
809, per Major 8. Maranda v
J Solosky, Richer, 2003
supra, at p. 835 SCC 67
6. Susan Hosiery (CanLII) ,
Ltd v Canada , [2003] 3 SCR
[1969] 2 Ex. CR 193, per LeBel
27 (UK) J (9:0), at para
30
9. Canada 10. R v
(National Abeyewardene,
Revenue) v 2008 CanLII
Newport 78103 (ON
Pacific SC) , per
Financial Group Trafford J -
SA, 2010 ABQB notes were left
568 (CanLII) , in the accused
503 AR 156, apartment on
per Graesser J top of
dufflebag
suggesting an
intention not to
keep them
confidential.
11. R v Youvarajah, 13. General
2011 ONCA Accident
654 (CanLII) , Assurance Co.
278 CCC (3d) v Chrusz, 1999
102, per CanLII 7320
Simmons JA (ON CA) , 180
12. Youvarajah, DLR (4th) 241,
ibid. per Doherty JA,
at paras 124 to
126
Hoy v
Medtronic,
2001 BCSC 944
(CanLII) , 91
BCLR (3d) 352,
 per Kirkpatrick 16. R v 1496956
J Ontario Inc
14. Hoy, ibid., at (Stoneridge
paras 42 to 43 Inc), 2009
CanLII 12328
15. Shuttleworth v
(ON SC) , per
Eberts, 2011
Gunsolus J, at
ONSC 6106
para 12
(CanLII) , OJ
No 4550, per 17. R v Higham,
Quigley J 2007 CanLII
20103 (ON
SC) , per MF
Brown J, at
paras 21 to 22
18. R v Martin, 20. Maranda,
2010 NBCA 41 supra, at paras
(CanLII) , 257 21 to 34
CCC (3d) 433, 21. Albanese v
per Richard JA, Albanese, 1996
at paras 64 to CanLII 2674
65 (BC SC) , 23
19. Kaiser (Re), BCLR (3d) 381,
2012 ONCA per Coultas J
838 (CanLII) ,
113 OR (3d)
308, per Blair
JA, at paras 44
to 45
22. Blue Line 24. Canada
Hockey (Attorney
Acquisition Co, General) v.
Inc v Orca Bay Chambre des
Hockey Limited notaires du
Partnership, Québec, 2016
2007 BCSC 143 SCC 20
(CanLII) , per (CanLII) ,
Wedge J [2016] 1 SCR
23. Kaiser (Re), 336, per
2012 ONCA Wagner and
838 (CanLII) , Gascon JJ, at
per Blair JA, at para 74
para 30 [1]
Lavallee,
Rackel & Heintz
v. Canada 25. Saskin v City of
(Attorney Toronto, 2022
General); White, ONSC 7378
Ottenheimer & (CanLII) , per
Baker v. Ilchenko J, at
Canada para 218
(Attorney
General); R. v.
Fink, 2002 SCC
61 (CanLII) ,
[2002] 3 SCR
209, per Arbour
J, at para 28
26. Kaiser, supra, the lawyer's
at para 30 (" bills -- is
[30] From these presumptively
developments privileged. The
in the presumption
jurisprudence, I may be
take the law to rebutted by
be that evidence
administrative showing (a)
information that there is no
relating to the reasonable
solicitor-client possibility that
relationship -- disclosure of
including the the requested
identity of the information will
person paying [page317] lead,
directly or information is
indirectly, to not linked to
the revelation the merits of
of confidential the case and
solicitor-client its disclosure
communication would not
s (Maranda, at prejudice the
para. 34; and client
Ontario (Cunningham,
(Assistant at paras. 30-
Information 31).")
and Privacy
Commissioner)
, at para. 9); or
(b) that the
requested
27. R v National and the
Post, 2010 SCC suppression by
16 (CanLII) , the media of
[2010] 1 SCR relevant
477, per Binnie physical
J, at para 65 (" evidence. If a
...there is a client walks
significant into a lawyer’s
difference office and
between leaves a
testimonial murder weapon
immunity covered with
against fingerprints
compelled and DNA
disclosure of evidence on
secret sources the lawyer’s
desk the law relationship")
would not R v Murray,
allow the 2000 CanLII
lawyer to 22631 (ON
withhold SC) , 185 DLR
production of (4th) 746, per
the gun on the Gravely J
basis of
solicitor-client
confidentiality,
notwithstandin
g the
thoroughgoing
protection that
the law affords
that
28. Fraser Milner transactions
Casgrain LLP v merit the
Canada recognition of
(Minister of a privilege that
National is not waived
Revenue), 2002 when
BCSC 1344 documents
(CanLII) , 6 prepared by
BCLR (4th) 135, professional
per Lowry J, at advisers, for
para 14 ("the the purpose of
economic and giving legal
social values advice, are
inherent in exchanged in
fostering the course of
commercial negotiations.
Those engaged 29. R v Herritt,
in commercial 2019 NSCA 92
transactions (CanLII) , 384
must be free to CCC (3d) 25,
exchange per Beveridge
privileged JA, at para
information 122 ("Of
without fear of course, it is not
jeopardizing up to Mr.
the confidence Herritt, with or
that is critical without input
to obtaining from counsel,
legal advice.") or counsel on
their own to
decide or
determine what
 is privileged. 30. L'Abbe v Allen-
The court Vanguard Corp,
decides or 2011 ONSC
determines if 7575 (CanLII) ,
the material is [2011] OJ No
protected by 5982, per
privilege after MacLeod J
the assertion is
made.")

Crown-Police Privilege
This privilege applies not only between a lawyer and their retained client, but can also apply
between a Crown attorney and a police officer seeking legal advice.[1]

Statements taken by an investigator on behalf of the defence is privileged and cannot be subject
of disclosure to the crown.[2]

Communications through an intermediary will not generally affect its privileged status.[3]

Communications with Court-house duty counsel can be included in solicitor-client protections.[4]

1. R v Caines, 51 CCC (2d)
2011 ABQB 406, per
660 (CanLII) , Laycraft JA, at
517 AR 269, para 15
per Greckol J (recent cases
2. R v Peruta; R v state "solicitor-
Brouillette, client privilege
1992 CanLII extends to
3597 (QCCA) , communication
78 CCC (3d) s through the
350, per intermediary of
Tyndale JA an agent...")
Re Alcan-
3. R v Littlechild,
Colony
1979 ABCA
Contracting
321 (CanLII) ,
Ltd. and The
 Minister of 4. R v Pea, 2008
National CanLII 89824
Revenue, 1971 (ON CA) , 79
CanLII 405 WCB (2d) 262,
(ONSC) , 2 OR per Gillese JA
365, per Grant
J

Presumption of Privilege
As a general rule, "any information received by a lawyer in his professional capacity concerning
his client's affairs is prima facie confidential unless it is already notorious or was received for
the purpose of being used publicly or otherwise disclosed in the conduct of the client's affairs."[1]

There is a presumption of confidentiality and privilege on all communications and information

shared between client and lawyer.[2]

In contexts many contexts, there is a presumption of privilege on lawyer's accounts relating to

fees paid or lawyer billing.[3] This will likely capture any transactions where the nature of the
private communication can be inferred from the transaction.[4] However, this will not necessarily
apply to all retainers or bills.[5]

It is said that it will apply to retainers where the retainer itself reveals anything about the
privileged communication, then it will be privileged.[6]

The electronic communication metadata associated with contact with counsel will be presumed
privileged.[7]
 Rebutting the Presumption
The presumption of privilege can be rebutted if it can be established that:

"there is no reasonable possibility that

disclosure will directly or indirectly
reveal any communications protected by
privilege."[8]; or,
"that the requested information is not
linked to the merits of the case and its
disclosure would not prejudice the
client"[9]

1. Ott v BCLR 321, 22

Fleishman, BLR 57 (S.C.),
1983 CanLII per McEachern
489 (BC SC) , 5 CJ
WWR 721, 46
2. Foster Wheeler secrecy
v Societe establish that a
intermunicipale general
de gestion et mandate had
d'elmination been given to a
des dechets, lawyer for the
2004 SCC 18 purpose of
(CanLII) , obtaining a
[2004] 1 SCR range of
456, per LeBel services
J (7:0), at para generally
42 ("It would expected of a
be enough to lawyer in his or
have the party her
invoking professional
professional capacity. At
this stage, confidential in
there would be nature")
a presumption Minister of
of fact, albeit a National
rebuttable one, Revenue v
to the effect Thompson,
that all 2016 SCC 21
communication (CanLII) ,
s between [2016] 1 SCR
client and 381, per
lawyer and the Wagner and
information Gascon JJ, at
they shared para 19
would be ("While it is true
considered that not
prima facie everything that
happens in a evidence to the
solicitor-client contrary ... .
relationship will This rule
be a privileged applies
communication regardless of
, facts the context in
connected with which it is
that invoked")
relationship 3. Maranda v
(such as the Richer, 2003
bills of account SCC 67
at issue in (CanLII) ,
Maranda) must [2003] 3 SCR
be presumed to 193, per LeBel
be privileged J (9:0)
absent
 British 135 (CanLII) ,
Columbia {{{4}}}, at para
(Attorney 56
General) v. 5. Gault Estate v
Canadian Gault Estate,
Constitution 2016 ABCA
Foundation, 208 (CanLII) ,
2020 BCCA per curiam
238 (CanLII), (3:0), at para
{{{3}}} , {{{4}}}, 21 ("If the fact
per Harris JA, that the lawyer
at para 50 has been
4. Donell v GJB retained, sent
Enterprises Inc, bills, or been
2012 BCCA paid is not
prima facie the estate's
confidential, accounts.")
then the fact of 6. Re A Solicitor
the retainer (1962), 1962
and the flow of CanLII 460 (BC
funds should SC), 36 D.L.R.
not be (2d) 594 at 598
protected (B.C. S.C.)
under this head Scott
of privilege. Hutchison,
The gross "Search and
amount of Seizure Law in
legal fees paid Canada"
by the Leslie (Toronto:
Estate will be Thomson
disclosed in
 Reuters, 2022) (CanLII) , per
(Loose-leaf, Harrington JA,
Release No. 4 - at para 43
April 2022) 8. Donell, supra,
(online), at at para 59
§10:7 Kaiser (Re),
R v Colegrove, 2012 ONCA
2022 NSSC 838 (CanLII) ,
132 (CanLII) , per Blair JA, at
per Brothers J, para 30
at para 263
9. Kaiser, ibid., at
7. R v AB, 2014 para 30
NLCA 8

Litigation Privilege
Traditionally, records held in the lawyer's file were protected by litigation privilege under a rule
known as the "lawyer's brief rule."[1] That being said, the rule has been closely tied with solicitor-
client privilege protections.

A document received by a lawyer and put the lawyer's file is not automatically privileged.[2]
However, anything given to the lawyer that is in furtherance to advice will generally be protected
by privilege.[3]

Handwritten notes made by a lawyer on a document will become privileged along with the
document upon which the notes were written.[4]

1. Chatham-Kent [2000] NSJ No

(Municipality) 258, per
(Re), 2014 Roscoe JA, at
CanLII 63626 para 36
(ON IPC) , at 3. Warren et al. v
para 34 Insurance
2. Mitsui & Co. Exchange Ltd.
(Point Aconi) et al., 1982
Ltd. v Jones CanLII 1837
Power Co, (ONSC) , 37 OR
2000 NSCA 96 (2d) 717, 28
(CanLII) , CPC 275 per
Peppiatt J the purpose of
("That principle advising his
has been client is also
jealously protected.")
guarded and Lizotte v Aviva
has been Insurance
extended to Company of
what is known Canada, 2016
as the "lawyer's SCC 52
brief" rule (CanLII) ,
whereby [2016] 2 SCR
information 521, per
that the Gascon J, at
solicitor has para 20
obtained in
confidence for
 4. Mitsui & Co. Power Co.,
(Point Aconi) ibid., at para
Ltd v Jones 36

Duration of Existence
Privilege will outlast the life of the client.[1] However, privilege held by a deceased person can be
deemed waived by the court where it is in the interests of justice.[2]

Privilege-holder After Death of Client

Privilege can be waived by the client or their successor or next of kin.[3]

1. Geffen v See also US:

Goodman Swidler & Berlin
Estate, 1991 v United States
CanLII 69 118 S. Ct. 2081
(SCC) , [1991] (1998)
2 SCR 353, per R v Berby
Wilson J Magistrates'
 Court [1996] 1 purpose of
AC 487 (HL) allowing the
(UK) evidence to be
2. R v Jack, 1992 admitted is
CanLII 2764 precisely to
(MB CA) , 70 ascertain what
CCC (3d) 67, her true
per Scott CJ intentions
Geffen, supra were. And the
("The interests principle of
of the now extending the
deceased privilege to the
client are heirs or
furthered in the successors in
sense that the title of the
deceased is
 promoted by client’s agent
focusing the or successor
inquiry on who who can waive
those heirs or the solicitor-
successors client privilege:
properly are.") ... It has been
3. Metcalfe v said that
Metcalfe, 2001 waiver of
MBCA 35 privilege will
(CanLII) , 198 only occur
DLR (4th) 318, where the
per Helper JA, holder of the
at para 13 ("it privilege knows
is only the of the
client or the existence of
the privilege
 and McDairmid,
demonstrates 1922 CanLII
a clear 171 (SK CA) ,
intention of 66 DLR 457
waiving the Langworthy v
privilege") McVicar
Western (1913), 5 OWN
Canada 345, 25 OWR
Investment 297 (ONSC)
Company Ltd v

Holder of Privilege
The privilege belongs to the client and not the lawyer. It can only be waived by their informed
consent.[1]

The identity of the "client" is a question of fact.[2]

The "client" of any lawyers in the Attorney General's office is the "executive branch of
government."[3] However, the authority to waive privilege is not exclusively held by the Executive
Council, such as government Cabinet.[4]
It is the police service, as a whole, and not the specific officer, who holds the privilege on police
advice.[5]

1. R v McClure, assistance are

2001 SCC 14 privileged. The
(CanLII) , privilege may
[2001] 1 SCR only be waived
445, per Major by the client.")
J (9:0), at para Lavallee,
37 ("...only Rackel and
communication Heintz v
s made for the Canada
legitimate (Attorney
purpose of General), 2002
obtaining SCC 61
lawful (CanLII) ,
professional [2002] 3 SCR
advice or 209, per Arbour
 J (6:3), at para 3. Nova Scotia v
39 Peach, 2011
2. R v Campbell, NSCA 27
1999 CanLII (CanLII) , 953
676 (SCC) , APR 19, per
[1999] 1 SCR Oland JA (3:0) ,
565, per Binnie at para 12
J (9:0), at para 4. Peach, ibid., at
67 ("The para 27
identification of 5. Campbell,
“the client” is a supra, at para
question of 67
fact.")

Crown Advice to Police

The advice from Crown Attorney to police is solicitor-client privileged.[1]
The Crown has the burden to establish an evidentiary foundation that privilege exists.[2] This
would include evidence establishing that the communication was made for the purpose of
seeking legal advice.[3]

There does not seem to be any diminished standard for Crown/Police privilege over regular
solicitor/client privilege.[4]

Legal advice by an "in-house" lawyer will be privileged the same way as any other lawyer.[5]

Crown legal advice provided to assist in developing policy will be protected as privileged.[6]

An officer compelled to answer questions in cross-examination that results in evidence about

legal advice he received does not amount to a waiver of privilege between Crown and police.[7]

1. R v Caines, at para 41
2011 ABQB R v Welsh,
660 (CanLII) , 2007 CanLII
517 AR 269, 17641 (ON
per Greckol J SC) , per
2. R v Chan, 2002 O’Connor J, at
ABQB 753 para 12
(CanLII) , 168 3. see Welsh,
CCC (3d) 396, ibid., at paras
per Sulyma J, 11 to 13
 Mitsui & Co. Binder J, at
(Point Aconi) para 18
Ltd. v Jones 5. Pritchard v
Power Co., Ontario
2000 NSCA 96 (Human Rights
(CanLII) , 587 Commission),
APR 173, per 2004 SCC 31
Roscoe JA (CanLII) ,
(3:0), at para [2004] 1 SCR
30 809, per Major
4. R v Trang, 2002 J (7:0)
ABQB 390 6. R v Newborn,
(CanLII) , 315 2015 ABQB
AR 306, per 393 (CanLII) ,
per Burrows J
 7. see R v 126 OR (3d)
Rutigliano, 161, per Pardu
2015 ONCA JA (3:0) , at
452 (CanLII) , para 40

Existence of Breaches and its

Consequences
Any use of solicitor-client information to support a conviction, whether "determinative" or not, is
a miscarriage of justice.[1]

Mere incidental discovery of potentially privileged information does not render the privilege
breached.[2]

1. R v Olusoga, 2. R v Herritt,
2019 ONCA 2019 NSCA 92
565 (CanLII) , (CanLII) , 384
OJ No 3532, CCC (3d) 25, at
per curiam para 91 , per
Beveridge JA
 (the protection material need
afforded to be handled as
privileged if it were
information nuclear waste,
"does not mean forever
potential contaminating
solicitor-client all who dare
privileged come near it.")

Removal of Counsel
An order removing counsel from a case may be appropriate where one party becomes privy to
privileged information.[1]

The objective of removing counsel is not to punish but to ensure that no prejudice is suffered by
the parties.[2]

Factors to consider include:[3]

1. how the documents came into the

possession of the party or its
counsel;
2. what the party and its counsel did
upon recognition that the documents
were potentially subject to solicitor-
client privilege;
3. the extent of review made of the
privileged material;
4. the contents of the solicitor-client
communications and the degree to
which they are prejudicial;
5. the stage of the litigation;
6. the potential effectiveness of a
firewall or other precautionary steps
to avoid mischief.

1. Drake Holdings Insurance

Ltd. v Chubb Company of
Canada, 2018 189, per Binnie
ONSC 4494 J, at paras 42
(CanLII) , per to 67
Schreck J, at 2. Celanese,
para 32 supra, at para
Celanese 54
Canada Inc v
3. Drake Holdings
Murray
Ltd, supra, at
Demolition
para 33
Corp, 2006
Celanese,
SCC 36
supra, at para
(CanLII) ,
59
[2006] 2 SCR
Other Topics

Exceptions to Solicitor-Client Privilege

Waiver of Solicitor-Client Privilege
Searches Intruding on Solicitor-Client
Privilege

Litigation Privilege

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