Canadian Privileges

Foundational Principles

 Class vs. Case-by-Case

 Class privileges
1. Solicitor-Client Privilege
2. Marital Privilege

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Foundational Principles
 Privileged information is relevant, probative and
trustworthy, but it is excluded because of
overriding societal interests. Privilege operates
“to restrict the search for truth”.
 Historically, societal interests outside of the trial
process were favoured over other values, and so
privileged communications were closely
guarded.
 The trend today is to accord privilege only where
necessary, on a case-by-case basis, in order to
avoid the risk of even “occasional injustice”.
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 Privilege (or non-disclosure) has been accorded
to many kinds of confidential communications
within special relationships including:
 Solicitor-client
 Marital
 Litigation
 Doctor-patient
 Spiritual advisor (pastor-penitent)
 Settlement

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 Class privilege:
 Recognized at common law
 There is a prima facie presumption of
inadmissibility once it has been shown that the
relationship fits within the class
 The onus is on the person wanting to lift privilege
to satisfy court that communications should be
admitted as exception to rule
 Solicitor-Client Privilege and Spousal Privileges

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 Case-by-Case:
 Refers to communications for which there is a
prima facie assumption that they are not
privileged (therefore admissible)
 Onus on person seeking to protect confidentiality
to establish the privilege
 Privilege may be accorded if Wigmore criteria
satisfied

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 In R. v. Gruenke, [1991] 3 S.C.R. 263, the
Court finds there is no justification for a prima
facia (class) privilege because religious
communications are not “inextricably linked
with the justice system” in the same manner
as solicitor-client communications are.
 Facts: Defendant is charged with murder.
The communications between the defendant
and her pastor and lay counselor two days
after the murder in which she admitted to the
murder 7
 Wigmore criteria- applied on a case by case
basis:
 Communications originate in confidence that they
will not be disclosed
 Confidentiality is essential to the full and
satisfactory maintenance of the relationship
 Relationship is one which society sedulously
fosters
 Injury that would inure to the relationship by the
disclosure is greater than the benefit that could be
gained from the correct disposal of the litigation
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 application of criteria in R. v. Gruenke, [1991]
3 S.C.R. 263 itself led to finding that the
communications between a pastor and
accused were not privileged
 The issue before the Court was “whether a
common law prima facie privilege for
religious communications should be
recognized or whether claims of privilege for
such communications should be dealt with on
a case-by-case basis.”
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 First Wigmore criteria not met
 Accused had no expectation of confidentiality
when she confessed to killing
 SCC agrees with C.A.’s conclusion that
communications were made more to relieve
accused’s emotional stress than for religious or
spiritual purpose. Court notes that it might reach
a different conclusion if the statements were
made in a formal ”confession.”

 Note: Quebec and Newfoundland have legislated

a class privilege for communications with clergy 10
Psychiatrist Patient Privilege

Case by case basis

M.(A.) v. Ryan, (1997), 143 D.L.R. (4th) 1 S.C.C.
 Plaintiff brought suit against a prior
psychiatrist for having sexual relations with
her when she was 17. She brought a civil case
against him after he was convicted of
indecent assault.
 Plaintiff met with a second psychiatrist. The
defendant requested copies of the
therapist’s records during discovery in the 11
 Justice McLachlin, found that the possibility
that the records might have to be disclosed
did not change the fact that they were made
in confidence.
 The Court also found:
 Confidentiality was essential to the relationship in
general. “The mental health of the citizenry, no
less than its physical health, is a public good of
great importance.”

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 Balancing:
 Interests “served by non-disclosure must extend to any
effect on society of the failure of individuals to obtain
treatment restoring them to healthy and contributing
members of society. . . [also] the privacy of the person
claiming privilege.”
 The need for truth: The Court distinguished between civil
and criminal cases. “The result is that a privilege is less
likely to be protected in a criminal case, and that in the
vast majority of criminal cases the public interest in the
correct disposal of charges will prevail.”

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2. Solicitor-Client Privilege

a. Confidential Nature of Communications

 “Without the solicitor and client privilege the
whole structure of our adversary system of
administering justice would collapse, for the object
of that system is that the rights of all persons shall
be submitted with equal force to the courts. ... If a
lawyer is to give useful service to his client, he
must be free to learn the whole of his client’s case."
[McRuer Report]

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 Privilege is a rule of evidence; confidentiality is
broader than the evidentiary doctrine –
confidentiality is both a substantive legal and ethical
right/obligation
 The ethical/legal obligation exists without regard to
the nature of the source of the information or the
fact that others may share the knowledge: see
Rules of Professional Conduct, r.2.03(6)

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Scope of Privilege
 Privilege belongs to the client, not the lawyer
 Protects client from disclosure of any confidential
communication made by him or his agent to the
lawyer, or communications by the lawyer in
response, while the client is engaged in seeking
legal advice

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 legal vs. business/strategic advice:

R. v. Campbell, [1999] 1 S.C.R. 565: “In private practice

some lawyers are valued as much (or more) for raw
business sense as for legal acumen. No solicitor-client
privilege attaches to advice on purely business
matters even where it is provided by a lawyer.”

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Descoteaux v. Mierzwinski, [1982] 1
S.C.R. 860
 Privilege attaches to communication even before retainer
signed: Descoteaux v. Mierzwinski, [1982] 1 S.C.R. 860. The
issue in this case was whether false financial statements
made by a citizen who in order to obtain legal aid were
privileged.
 The Court noted solicitor-client relationship “arises as soon
as the potential client has his first dealings with the lawyer’s
office in order to obtain legal advice.”
 This applies even if lawyer does not agree to advise/act for
the person.

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 The privilege only protects communications –
not physical objects (R. v. Murray (2000), 48
O.R. (3d) 544):
 Videotapes were evidence of the commission of a
crime and pre-existed the solicitor-client
relationship.
 Discussions with the attorney about the tapes
were privileged, but not tapes themselves.

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Communications in furtherance of a
crime or fraud
 Privilege does not attach to discussions about a future crime
involving
 fraud
 physical harm
 The Supreme Court of Canada, in a case addressing the
litigation privilege, noted that abuse of process or “other
blameworthy conduct” would not be protected by privilege.
Privilege “ is not a black hole from which evidence of one’s
own misconduct can never be exposed to the light of day.”
 Dublin v. Montessori Jewish Day School (2007), 85 O.R. (3d)
511 finding the exception was recognized for claims involving
intentional infliction of emotional distress.
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Inadvertent Disclosure = Loss of Privilege?
 Traditional common law approach was that it did not
matter whether a confidential matter was disclosed
accidentally or intentionally; either way, the privilege
would be lost and the communication admissible.
[Descoteaux]
 Where the document comes into the possession of a
third party through non-innocent means, however,
courts have:
 Enjoined its production on equitable principles
 Denied admissibility

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Airst v. Airst (1998), 37 O.R. (3d) 654

 During pre-trial proceedings in a divorce case, the husband was ordered to

submit a number of documents related to his assets. In responding to the order,
he mistakenly included two letters from his lawyer which were privileged.
 The court noted the traditional approach, which would hold that the privilege
was lost.
 Ont. Gen. Div. strayed from traditional common law approach and denied the
admissibility of these documents.
 Court found that privilege is not automatically lost
 A matter of judicial discretion whether to admit based on factors Consistent with
American approach - FRE 502

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 The way in which the document came to be
released
 Was there prompt attempt to retrieve
 Timing of discovery of disclosure
 Timing of application
 Number and nature of third parties who have
become aware of it
 Whether unfairness to opposing party will result if
privilege maintained
 Impact on fairness of court processes
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Exceptions
 The SCC has acknowledged that despite its almost
sacrosanct nature, solicitor-client privilege is not
completely absolute. But any impediment to open,
candid and confidential discussion between lawyers
and clients will be rare and reluctantly imposed.
 right to make full answer and defence
 public safety

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Innocence at Stake

 The appropriate test for determining whether to set

aside the solicitor client privilege to permit the accused
to make full answer and defence is the “innocence at
stake” test
 In R. v. Brown [2002] 2 S.C.R. defendant was charged
with murder. He sought to introduce evidence of
communications between a third person (Benson) and
his attorney which involved Benson’s confession to the
crime.

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 McClure Test:
 Threshold test: Before innocence at stake test is even applied,
accused must establish that the information he is seeking in the
solicitor-client file is not available from any other source and he
is otherwise unable to raise a reasonable doubt as to his guilt in
any other way.
 Two stages to innocence at stake test: Focus is on raising a
“reasonable doubt about the accused’s guilt.”
 Accused must provide some evidentiary basis upon which to conclude
that there exists a communication that COULD raise a reasonable
doubt as to his guilt
 If judge satisfied that such an evidentiary basis exists, then she must
examine the file to determine whether, in fact, there is a
communication that is LIKELY to raise a reasonable doubt 26
Public Safety – Future Harm

 In Smith v. Jones, [1999] 1 S.C.R. 455 [p. 251], SCC held that there was a
public safety exception to the solicitor-client privilege.
 The case involved statements made by an individual to his therapist in
which he described his plans to kidnap, rape and kill prostitutes. The
therapist was acting as the lawyer’s agent at the time by interviewing
and assessing the client.
 The Court held that where it can be demonstrated that there is a clear
imminent risk of serious bodily harm or death to an identifiable
person or group, the privilege will be set aside.

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 Application of test:
 Clear risk: how detailed is the threat/planning?
 Imminent: threat made in such a manner that a
sense of urgency is created
 Serious harm: intended victim is in danger of
being killed or of suffering serious bodily harm
 Identifiable group or person: violence must be
directed to an ascertainable, identifiable person or
group.

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Spousal - Compellability

Canadian Evidence Act

Accused and spouse
 4 (1) Every person charged with an offence, and, except as
otherwise provided in this section, the wife or husband, as
the case may be, of the person so charged, is a competent
witness for the defence, whether the person so charged is
charged solely or jointly with any other person.
 Spouse of accused
 (2) No person is incompetent, or uncompellable, to testify
for the prosecution by reason only that they are married to
the accused.

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Other Privileges

 Litigation Privilege (Work Product Doctrine)

 Settlement Negotiations Privilege (similar to
FRE 408)
 Public Interest Immunity ( U.S. - Executive
Privilege)

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4. Marital Privilege
 S. 4(3) Canada Evidence Act
“No husband is compellable to disclose any communication
made to him by his wife during their marriage, and no wife is
compellable to disclose any communication made to her by
her husband during their marriage.”
Same privilege in Ontario Evidence Act, s. 11
 Privilege is testimonial in nature and belongs to the spouse
receiving the communication (the witness). Rumpling v.
D.P.P. (1962)

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