A solicitor-client privilege arises when there are communications between a client and a solicitor. The privilege belongs to the client, not to the solicitor. A client cannot be compelled, and a solicitor will not be allowed, without the express consent of the client, to disclose oral or documentary communications passing between them in professional confidence. The privilege extends to many forms of communications, including client’s instructions given to a solicitor, notes made by the solicitor, and notes made by the client of the communications between the client and the solicitor. Thus, in a lawsuit, the privilege gives a person the right to refuse to disclose an oral or documentary communication on the ground that the communication is one passing between that person and his or her solicitor in professional confidence.
Many administrative agencies, tribunals, and commissions of inquiry have general statutory powers to compel the production of evidence and they may intrude on a person’s claim of solicitor-client privilege. An example is a tax investigator under the Income Tax Act. Recently, the Supreme Court of Canada addressed the issue and held that, where privilege is claimed to certain evidence, these investigators cannot examine the evidence, without a court order, unless the statutory power gives them a clear and explicit authority to intrude on the privilege. The court maintained that the assessment and verification of claims of solicitor-client privilege remain the almost absolute preserve of the courts and it re-affirmed the importance of the privilege, stating: “Solicitor-client privilege is fundamental to the proper functioning of our legal system. The complex of rules and procedures is such that, realistically speaking, it cannot be navigated without a lawyer’s expert advice. It is said that anyone who represents himself or herself has a fool for a client, yet a lawyer’s advice is only as good as the factual information the client provides. Experience shows that people who have a legal problem will often not make a clean breast of the facts to a lawyer without an assurance of confidentiality “as close to absolute as possible”. . . It is in the public interest that this free flow of legal advice be encouraged. Without it, access to justice and the quality of justice in this country would be severely compromised.”