What is Lawyer-client Privilege?

“I’m your lawyer, gentlemen” – What is solicitor-client privilege?

I will maintain the confidence and preserve inviolate the secrets of my client.

Whether I like it or not, I can’t talk to the government about you even when I’m no longer your lawyer. That would be breaking my word, my oath.

Whatever I do, wherever I go, I am bound by the attorney-client privilege. I am very much like, I would say I am exactly like, a ship carrying a cargo that will never reach any port. As long as I’m alive, that ship will always be at sea, so to speak.

I’m your lawyer, gentlemen.

–Mitch McDeere in The Firm (1993), based on John Grisham’s 1991 novel

Few secrets go “to the grave,” especially in the digital age. Secrets shared with your lawyer, for the purpose of obtaining legal advice, however, with very limited exceptions, do exactly that: you can expect that they will be kept private and confidential, virtually always. While many professions ensure privacy and keep strict confidentiality rules, few have the strength of solicitor-client privilege: doctors’ notes can be subpoenaed under the right circumstances, as can notes and testimony by counselors and psychologists, for example. It is exceptionally rare for a lawyer to be asked to (or forced to) testify against his or her client – which typically happens when privilege does not attach to the communications (where the communications are criminal or seek advice to facilitate an offence, for example) or where there is a real public safety concern, which requires fulfilling a very specific three-part test).

What you tell your lawyer, and everything your lawyer learns in the course of your professional relationship, is confidential at common law. However, anything that is discussed in seeking or providing legal advice is subject to solicitor-client privilege, which has been recognized by the Supreme Court of Canada as a principle of fundamental justice and thus has gained constitutional protection (under s. 7 of the Charter of Rights and Freedoms). As the Supreme Court has quoted, with approval, on numerous occasions:

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.

–John Henry Wigmore, Evidence in Trials at Common Law (McNaughton rev. 1961), vol. 8, s. 2292, cited in Canada v. Chambre, infra, para. 73.

You, as the client, are the “owner” of any solicitor-client privilege that arises (again, with very limited exceptions – see above). Only you can consent to waive privilege. This, and solicitor-client privilege more generally, is meant to encourage individuals who seek legal advice to speak candidly with their counsel and to ensure that they obtain the most accurate advice possible, which, in turn, is seen to ensure that our legal system operates efficiently and effectively.

A general rule of thumb has been that when solicitor-client privilege is challenged, the person asserting that privilege exists (normally the client, often represented by his or her lawyer) bears the burden of proving that privilege exists and ought to be protected. Another hole has intruded on that old maxim this week following two decisions by the Supreme Court of Canada that, collectively, uphold and strengthen the supremacy of solicitor-client privilege.

Both cases consider obligations under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (“ITA” or “the Act”) but have the effect of illustrating the primacy and sacrosanct nature of solicitor-client privilege more generally.

The first case, Canada (Attorney General) v. Chambre des notaires du Quebec, 2016 SCC 20 (“Canada v. Chambre”), involved a constitutional challenge to a requirement in the ITA that persons, including lawyers, must provide requested information and/or documents to the tax authorities especially where, under the Act, “solicitor-client privilege” is specifically defined to exclude “accounting records” (see s. 232(1) of the Act). This means that, under the ITA, Canadian tax authorities can require lawyers to share accounting records that contain information about their clients.

The Supreme Court of Canada unanimously agreed that the ITA requirement constituted a violation of s. 8 of the Charter, the right to be free from unreasonable search and seizure, because the ITA failed to adequately protect solicitor-client privilege. This finding was made on the basis that (1) the Act did not include a requirement that lawyers’ clients, to whom the privilege belongs, be notified; (2) the full burden of protecting privilege unnecessarily fell to lawyers, which, the Court held, was an “unverifiable expectation;” and, (3) the Crown did not establish that it was absolutely necessary to impair solicitor-client privilege in this way. The lack of precision in the ITA’s exemption from solicitor-client privilege was problematic: it was overbroad and did not minimally impair one’s right to privilege.

That said, while the Court acknowledged the risks to privileged material in this case, the Court declined to set out a list of documents that would prima facie be protected by privilege, instead choosing to note that attracting privilege depends on the content of the communications in question and what could be revealed about the relationship (between the lawyer and the client) and the nature of the communications.

The second case, Canada (National Revenue) v. Thompson, 2016 SCC 21 (“Thompson”), which revolved around statutory interpretation, was decided by the constitutional finding in the first case. Nevertheless, the Court made some interesting observations about the nature of privilege in Thompson. First, the Court noted that “Solicitor-client privilege has evolved from being treated as a mere evidentiary rule to being considered a rule of substance and, now, a principle of fundamental justice” (see para. 17). Effective representation requires frank communications with counsel; solicitor-client privilege is a necessary part of upholding Canada’s legal system. In particular, the Court took a new turn writing about information that is presumptively subject to privilege:

While it is true that not everything that happens in a solicitor-client relationship will be a privileged communication, facts connected with that relationship (such as the bills of account issue in Maranda) must be presumed to be privileged absent evidence to the contrary. (See para. 19.)

This is true in any context. The Court went on to say that, “Absent proof to the contrary, all of this information is prima facie privileged, and therefore confidential” (at para. 20). Thus, the Supreme Court seems to have reversed the onus of who bears the responsibility of establishing that solicitor-client privilege is invoked, or, to be more accurate, should not be invoked, in yet another aspect of the lawyer-client relationship.

These cases illustrate that the Supreme Court is prepared to follow and, indeed is following, its own advice that solicitor-client privilege “must remain as close to absolute as possible, and the courts must adopt stringent standards to protect it” (see Canada v. Chambre at para. 5).

by Katrina Trask