On September 8 the Supreme Court of Canada settled a long-standing dispute as to whether litigation privilege is merely a subset of solicitor-client privilege. In Blank v. Canada (Minister of Justice), the Court answered this question in the negative. What exactly is this issue, and why should it matter to criminal lawyers?
Blank explains the distinction between the two privileges in straightforward terms. Solicitor-client privilege protects a client from having to disclose confidential communications passing with counsel in the course of obtaining legal advice. Solicitor-client privilege is protected because citizens must have "full and ready access to legal advice" if they are to know and exercise their legal rights and obligations. If a client knows that communications with counsel will be strictly confidential, he or she is more likely to be candid in discussing legal matters, and the advice is more likely to be accurate and helpful. It is for this reason that the privilege is jealously guarded by the courts, and will only be overcome in exceptional circumstances.
As for litigation privilege, Blank affirms that it encompasses materials or communications created for the dominant purpose of litigation. Unlike solicitor-client privilege, it need not involve confidential communications and only exists in the context of litigation. Its rationale is also different: the underlying policy is to ensure that a party to litigation can investigate and prepare without having the fruits of these labours revealed to the other side. As Ontario Court of Appeal Justice Robert Sharpe aptly stated in an article written before his appointment to the bench, "litigation privilege aims to facilitate a process (namely, the adversary process), while solicitor-client privilege aims to protect a relationship (namely, the confidential relationship between a lawyer and client)."
An example of a document covered by solicitor-client privilege is a letter from a client to his or her lawyer, or vice versa. An example of a document covered by litigation privilege, but not solicitor-client privilege, is a letter written by a potential witness to a lawyer, sent at the latter's request, outlining events touching on matters in issue in the case.
Blank's recognition that solicitor-client and litigation privileges are not the same, and are derived from distinct policy concerns, represents a change in the law in B.C. (though not in most other Canadian provinces). Previously, the decision in Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129 (C.A.), had held that litigation privilege was merely a type of solicitor-client privilege, and was therefore subject to the same protection at law. Hodgkinson v. Simms is no longer good law on this point (although in other respects it may still carry weight as a precedent).
The change in the law is important because a defendant sometimes attempts to obtain privileged materials from the Crown or third parties in order to make full answer and defence. The test for obtaining materials that are covered by solicitor-client privilege is extremely stringent. The defendant must show that he or she has no viable defence without the documents and that the documents are likely to result in an acquittal. The Hodgkinson v. Simms approach gave support to the argument that materials covered by litigation privilege came under the solicitor-client privilege rubric and thus were subject to the same test. The Blank approach suggests that a less demanding test for the disclosure or production of litigation privileged materials may be in order, given that soliticor-client privilege is not engaged.
This sort of result has already been reached in B.C., by Mr. Justice Bauman in a case called R. v. Soomel. He simply balanced the interests at stake in the particular circumstances of the case, and concluded that materials covered by litigation privilege had to be produced to the defendant because the defendant's right to make full answer and defence outweighed the document-holder's interest in maintaining the privilege. But Justice Bauman had to employ some fancy footwork to distinguish Hodgkinson v. Simms and justify employing a less stringent standard in determining whether litigation privilege had to yield in response to a defendant's right to make full answer and defence. In the wake of Blake, the path to this same result is more direct and less controversial. This area of the law is finally subject to a principled approach, to the benefit of the administration of justice and the rights of defendants.
