What is Solicitor-Client Privilege?

In Skogstad v Law Society of BC 2007 BCCA 310 the Bc Court of Appeal held:

“6. Solicitor-client privilege is a substantive rule of law, a core legal value. The protection of the confidentiality of communications between a lawyer and his or her client is fundamental to our legal system and the privilege of such communications is a fundamental right (Solosky v. The Queen, [1980] 1 S.C.R. 821; R. v. Gruenke, [1991] 3 S.C.R. 263; Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860; R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14; Ontario (Ministry of Correctional Services) v. Goodis, [2006] 2 S.C.R. 32, 2006 SCC 31).

[7] The purpose of solicitor-client privilege is to ensure that a client may communicate openly and frankly with his or her lawyer, without risking disclosure to others, whether voluntary or compelled, of information imparted to the lawyer in order to obtain legal advice (Anderson v. Bank of British Columbia (1876), 2 Ch. D. 644 (Eng. C.A.), cited in Smith v. Jones, [1999] 1 S.C.R. 455 at para. 45).

[8] The Law Society draws the connection between the protection of solicitor-client privilege and the fundamental importance to our legal system of the independence of the legal profession from state interference (Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 187-88, per McIntyre J. dissenting in part; Canada (Attorney General) v. Law Society of British Columbia, [1982] 2 S.C.R. 307 at 335-36). It makes the point that if lawyers were subject to regulation by the state and the state had access to privileged information during an investigation of a lawyer, solicitor-client privilege would be a hollow right. The independence of the legal profession is in turn protected by self-regulation. (Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, 2004 SCC 36). Proper regulation by the Law Society of the competence and integrity of lawyers requires access to confidential, and occasionally, privileged information, such as client instructions.

[9] Over the years courts have examined the need to balance the competing values of protecting solicitor-client privilege, to enable clients to communicate freely with legal advisors and the need to ensure the integrity of the legal profession, which is a self-regulated body requiring public confidence.

[10] The Supreme Court in British Columbia and courts in other provinces have considered these competing values in the context of interpreting relevant legislation (Law Society (Saskatchewan) v. Robertson Stromberg, [1995] 3 W.W.R. 601 (Sask. C.A.);Greene v. Law Society (British Columbia) (2005), 40 B.C.L.R. (4th) 125, 2005 BCSC 390;Stewart McKelvey Stirling Scales v. Barristers’ Society (Nova Scotia) (2005), 236 N.S.R. (2d) 327, 2005 NSSC 258; and Law Society (Saskatchewan) v. E.M. & M Law Firm (2006), 287 Sask. R. 140, 2006 SKQB 369). The differences in outcome reflect the differences in the underlying legislation.

[11] E.M. & M. is an illustrative example. The legislation in Saskatchewan provided that the court had discretion to order the production of documents and records demanded by the Law Society. In para. 6, the Court stated:

…The issue is whether this Court should exercise its discretion in favour of the Law Society and grant the discretionary order requested even though the documents and records are subject to solicitor-client privilege.

[12] After discussing the leading cases involving privilege the court referred to and quoted from Greene, noting in para. 17; “[i]n the British Columbia legislation, it is deemed that the disclosure by the lawyer is not a breach of solicitor-client privilege”. The Court then discussed the decision of the Nova Scotia Supreme Court in Stewart McKelvey.

[13] The issue in Stewart McKelvey was whether the production of privileged documents could be compelled. Unlike other provincial acts, the Nova Scotia legislation did not provide specifically for production. Based on the common law and the court’s construction of the legislation the court concluded that production could be ordered. A factor in reaching that conclusion was a provision in the legislation that essentially was the same as s. 88(1) of the British Columbia Act.

[14] The Court in E.M. & M. stated in paras. 21 and 22:

. . . in British Columbia disclosure of the information is prohibited by those who of necessity must acquire the information. In the Nova Scotia legislation the clients’ privilege is maintained.

The question then is what legislative protection of solicitor-client privilege exists in Saskatchewan?

The Court concluded in para. 38 “. . . the Saskatchewan Act and Rules in their current form allow too much discretion to adequately address the protection of the solicitor-client privilege”.

[15] The member asserts that s. 88(1) protects the lawyer, but not the client and the privilege is the client’s privilege. He says that the section absolves, but does not authorize and relies on Bell v. Smith, [1968] S.C.R. 664 for the proposition that in the absence of waiver, a lawyer has a duty to maintain privilege. It is asserted that s. 88 should be construed in light of that truism to apply only where a client is the complainant.

[16] As was stated by Gerow J. in Greene at para. 52, a client who complains does not waive privilege. The fact that a lawyer may be able to give information to protect him or herself does not waive the client’s privilege as against the world. This being the case, I see no distinction in the application of s. 88 to the complaints however initiated: client, non-client, the Law

Solicitor/client privilege is an exception to the general rule that the court requires all relevant information to be received as evidence to determine trials on their merits. It is part of the “constant conflict between two countervailing policies” (The Law of Evidence in Canada (Toronto:
Butterworth’s, 1999, at 713 (“Evidence”)).

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