Reinforcing The Primacy Of Privilege

"...privilege has thus become much more than an evidentiary privilege; it is a substantive right with constitutional implications, if not constitutional proportions." 1


At the end of 2016, the Supreme Court of Canada released two companion decisions affirming the fundamental importance of solicitor-client privilege and litigation privilege to the proper functioning of the Canadian legal system. In Alberta (Information and Privacy Commissioner) v. University of Calgary2 (Alberta IPC), the Court considered the implications of the elevation of solicitor-client privilege beyond a rule of evidence to a rule of substance and a fundamental policy of the law, while in Lizotte v. Aviva Insurance Company of Canada3 (Lizotte), the Court recognized litigation privilege as a distinct and fundamental principle of the administration of justice.4 These decisions both considered what legislative language would be sufficient to abrogate, set aside, or infringe solicitor-client privilege or litigation privilege, confirming that nothing less than clear, explicit, and unequivocal language will suffice.

This comment discusses Alberta IPC and Lizotte in some detail, as well as some of the implications of trending toward the triumph of privilege. Before moving into the discussion of these cases, the following section provides a brief background on the nature of privilege, with particular reference to solicitor-client privilege and litigation privilege.


Simply put, privilege is the right of a party not to disclose evidence which may be relevant to the adjudication of a dispute. This right, in effect, denies the adjudicator - judge, jury, or otherwise - information in the form of documents or communications that might assist the adjudicator to ascertain the truth - the foundational goal of the Canadian justice system. Because privilege has the potential effect of obstructing this search for truth, the law demands that a given privilege be justified by an overriding societal interest, or, as stated by the Supreme Court of the United States and adopted by Chief Justice McLachlin, a "public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth".5

There are numerous different types of privileged communications, including, among others: solicitor-client privilege, afforded to communications between a client and a lawyer to obtain legal advice; litigation privilege, afforded to communications made for the dominant purpose of anticipated or pending litigation; settlement privilege, afforded to without prejudice communications to settle disputes; discovery privilege, afforded to information disclosed during the discovery process (also known as the deemed or implied undertaking rule); spousal privilege, afforded to communications between spouses; privilege for state secrets; privilege protecting the identify of police informants; and case-by-case privileges afforded to protect the confidentiality of a relationship where it is in the public interest to do so. The justifications or rationales for these various forms of privilege differ depending on their object and the protections they provide.6 Staying within the realm the Alberta IPC and Lizotte decisions, this comment will focus on the rationales for and the protections given by solicitor-client privilege and litigation privilege.

Solicitor-Client Privilege

Solicitor-client privilege, which is the strongest privilege protected by law and regarded as a cornerstone of the legal system,7 is justified by the nature of the confidential relationship between the lawyer and the client and the necessity of protecting the confidences of that relationship from compelled disclosure in judicial proceedings for both the relationship itself and the overall functioning of the legal system.8 The concern is that without assurances of confidentiality provided by privilege, people will not speak honestly and candidly with their lawyers, which in turn compromises the quality of the legal advice they receive.9 Thus, solicitor-client privilege emerges from the unique role of lawyers to provide advice to clients within a complex legal system, the confidential nature of the relationship, and the need for privacy in obtaining and acting on legal advice.10 Professor Adam Dodek refers to this rationale for the privilege as the "full and frank disclosure" argument.11 Professor Dodek also cites the subsidiary rationale of ensuring "a well-functioning adversary system"12 and the less widely-accepted rationale of "facilitating access to justice".13 Professor Dodek goes so far as to contemplate and propose a "rights-based justification for the privilege" based on the three pillars of dignity, privacy, and autonomy.14 Recognizing this rationale for solicitor-client privilege might require revisiting the scope of the privilege to reinforce the primacy of privilege for individuals but not necessarily for organizations; at this point, though, this theory of privilege has not been adopted by the courts.

It is important to briefly note that solicitor-client privilege attaches only to communications (although, as discussed below the Supreme Court of Canada is signalling a relaxation of this traditional restriction). Such communications may be verbal or written, in whatever form, but can also be made through visual depictions or gestures.15 While there is some uncertainty about whether silence can be privileged,16 or whether the identity and location of a client is privileged and in what situations,17 it is clear that neither the facts18 which underlie communications between a client and a lawyer19 nor the actions of a lawyer or a client20 are privileged. Physical objects, evidence, and non-privileged documents are not protected by solicitor-client privilege even if they are shared with a lawyer.21 More could be said on each of these points and others, indeed, much more has been said by the courts and by academics. For the purposes of this comment though, as a general principle, to qualify for solicitor-client privilege, a communication must be: (1) between a client and his or her lawyer who must be acting in a professional capacity as a lawyer; (2) given in the context of obtaining legal advice; and (3) intended to be confidential.22

The privilege that exists for communications between a lawyer and a client has been deemed a fundamental right and a substantive rule of law.23 To ensure public confidence in the legal system and the effectiveness of the privilege, solicitor-client privilege is categorical and approaches an absolute right, rather than one that is decided on a case-by-case basis.24 In Alberta IPC, the Court cautioned: "The importance of solicitor-client privilege to our justice system cannot be overstated. It is a legal privilege concerned with the protection of a relationship that has a central importance to the legal system as a whole.25

Litigation Privilege

Litigation privilege was once regarded as a branch of solicitor-client privilege and the two have frequently been confused or referred to synonymously. In Blank v. Canada (Minister of Justice), the Supreme Court of Canada clarified that litigation privilege is related to solicitor-client privilege, but conceptually distinct: "They often co-exist and one is sometimes mistakenly called by the other's name, but they are not coterminous in space, time or meaning."26 Justice Fish explained the distinction on the basis that litigation privilege is not directed at or restricted to communications between a lawyer and a client:

It contemplates, as well, communications between a solicitor and third parties or, in the case of an unrepresented litigant, between the litigant and third parties. Its object is to ensure the efficacy of the adversarial process and not to promote the solicitor-client relationship. And to achieve this purpose, parties to litigation, represented or not, must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.27

Thus, pursuant to litigation privilege, documents prepared for the dominant purpose (but a "substantial purpose" is not enough28) of preparation for litigation, either obtaining legal advice in anticipation of or pending litigation or for gathering evidence for that litigation, are privileged.29 Litigation privilege, unlike solicitor-client privilege applies to all communications, even those of a non-confidential nature, between the solicitor or the client and third parties and includes material of a non-communicative nature.30 Examples include the lawyer's file and any oral or written communications between a lawyer and third parties, such as witnesses, investigators, or experts.31 Litigation privilege is "neither absolute in scope nor permanent in duration": it applies only in the context of litigation and only for so long as that litigation continues, ceasing upon the termination of the dispute.32 However, the Supreme Court commented in Blank that "related litigation" concerning proceedings brought after the original litigation that gave rise to the privilege could extend its effect.33

As noted in Blank, the modern rationale is that the exclusion of the evidence on the basis of litigation privilege is necessary to facilitate the adversarial system of dispute resolution.34 Since the fact-finding process is adversarial, the combatants need a "zone of privacy" to prepare for the hearing and resolution of their dispute.35 Litigation privilege creates and maintains a "protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate."36 The Supreme Court in Blank also noted that solicitor-client privilege and litigation privilege "serve a common cause: The secure and effective administration of justice according to law."37


As the brief foregoing background demonstrates, the privileges...

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