Solicitor-Client Privilege In Canada: Exceptions And Wigmore Test

The Canadian Criminal Code protects communication between client-solicitors. However, they are subject to certain exceptions. The Canadian Supreme Court recognizes public safety as an exception for disclosure of information shared via communication between client and solicitor. The Supreme Court in Smith v. Jones held that on the ground of public safety client-solicitor privileges can be set aside if the solicitor has a reason to believe that there is an imminent and serious threat to the public safety. Additionally, the Code requires the lawyer not to disclose more than the required information (CBA, 2022).

The exception is the innocence of the accused. The Supreme Court in R v. McClure held that solicitors can disclose information when the innocence of the accused is at stake. However, this exception has strict application and has been used in rare cases.

The criminality exemption can wave off privileged communication between clients and solicitors. When the legal communication made is criminal in itself (Nowlin, 2018).

In short, the solicitors can disclose private and confidential information shared between them and their clients if there are public safety concerns, if the innocence of the accused is at risk, or the nature of communication is criminal. Thus, a solicitor can disclose the client’s possession of a gun/ or shirt covered in blood.

The Supreme Court in a landmark case R v Gruenke [1991] on privilege laid down the Wigmore test for determining whether the communication is privileged or not (SCC, 2022). The test follows a principled approach on a case-by-case basis in determining the admissibility in the court law. Prior to this, only a narrow set of communications were protected.

The Wigmore test determines whether a communication is privileged or not. There are four criteria where disclosure of communication between journalists and confidential sources is inadmissible in court. First, communication is made with the understanding of not being disclosed. Second, communication confidentiality is significant for maintaining the relationship, Third, to protect the relationship, and fourth, disclosure would harm more than benefit the society (Nowlin, 2018). The disclosure of confidential communication between Journalists and their sources cannot be compelled by the Crown since it will be inadmissible in court. Journalist and confidential sources pass the Wigmore test, and therefore it is protected from disclosure.

1. Mrs. Jane Smith can be compelled to testify against her husband because he was charged with criminal neglect of their 2-year-old son. There are certain exceptions to the general rule of spousal privilege and one of them is the offenses such as cruelty or threats against the spouse’s child.
2. After the 2015 amendment of the Evidence Act, now spouses can testify against their spouse under certain circumstances. Section 4(2) of the Act provides that No person is uncompellable or incompetent to testify against a person to whom they are married. Spouse incompetence to testify has been eliminated. Furthermore, Mrs. Smith may not assert the spousal privilege because only communications are protected under the privilege, and not observation, conduct, or actions of other spouses(Parliament of Canada, 2022).
3. According to Section 4(3) of the Evidence Act, “No husband shall be compelled to disclose any communication made by his wife to him during their marriage, and similarly, no wife shall be compelled to disclose communication made by her husband to her during their marriage.”

Thus, spousal privilege covers communications between spouses and not observation, conduct, and actions of each other. Furthermore, the spouse who received the communication has the privilege and not the one who made the communication (Parliament of Canada, 2022).

1. Informer privilege owes its origin to the Marks v Beyfus, an English case. Furthermore, the Canadian Supreme court in R v Leipert emphasized the importance of informer privilege.  The privilege is considered essential for law enforcement since it protects the informers who assist the authorities, and also encourages other citizens to do the same. It is of such importance that its alteration cannot be justified against any other interest. Further, neither the court nor the police can abridge it upon their discretion(PPSC, 2020).
2. Informer privilege is a class privilege. The Supreme Court of Canada in the case R v National Post classified the informer privilege into two categories under the common law, i.e., Class privilege, and case-by-case privilege.
3. Informer privilege may be invoked by the crown prosecutor under the common law or by section 37 of the Evidence Act.
4. The options available with the crown are, First, the Crown informs the court that the counsel shall not comply with the court’s ruling and offer no evidence, citing the R v Leipert case. Second, to request for the judicial stay of proceedings by citing the R v Creswell decision.
5. The Supreme Court in R v. Leipert, laid down the only exception to informer privilege which is innocence at stake(PPSC, 2020).

 References

CBA. (2022, April 2). Privilege and confidentiality for lawyers in private practice. Retrieved from The Canadian Bar Association: https://www.cba.org/Publications-Resources/Practice-Tools/Ethics-and-Professional-Responsibility-(1)/Solicitor-Client-Privilege/

Nowlin, C. &. (2018). An Introduction to Canadian Criminal Procedure and Evidence - 6th Ed.Nelson. Nelson College Indigenous.

Parliament of Canada. (2022, April). Canada Evidence Act. Justice Laws: https://laws-lois.justice.gc.ca/eng/acts/c-5/page-1.html

PPSC. (2020). Public Prosecution Service of Canada. Retrieved from Public Prosecution: https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/d-g-eng.pdf

SCC. (2022, 04 13). R. v. Gruenke. Supreme Court of Canada: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/802/index.do