Legal Professional Privilege - in Canada

In Canada

Solicitor–client privilege was initially a common law evidentiary principle similar to hearsay, but has since become recognized as a substantive rule that is constitutionally protected. This recognition began with R. v. Solosky (1979) where Justice Dickson, in tracing its history, regarded it as a "fundamental civil and legal right" that guaranteed clients a right to privacy in their communications with their lawyers even outside a courtroom.

In R. v. McClure 1 S.C.R. 445, the Court found that solicitor–client privilege was a principle of fundamental justice, hinting that it may be protected under section 7 of the Charter.

In its general sense, Canada has adopted John Wigmore's definition of solicitor client privilege:

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 by himself or by the legal adviser, except the protection be waived.

Justice Lamer set out the test for solicitor–client privilege in Decoteaux v. Mierzwinski:

1. The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client's consent.

2. Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person's right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.

3. When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.

4. Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively.