19783
COMMENTS – COMMENTAIRES
Recent Developments in the Canadian Law
of Solicitor-Client Privilege
A recent British Columbia case has again raised the issue of the
solicitor-client privilege. In stating that a “warrant can be quashed
when it seizes documents which are plainly subject to the solicitor-
client privilege”‘ Bull J.A. has provided judicial approval for a
natural extension of the boundaries of the privilege, thus continuing
a tradition which began 200 years ago. As well, Mr Justice Bull has
rendered obsolete a statement in the most recent text book on
Canadian criminal evidence to the effect that the solicitor-client
privilege “must be raised at trial; it cannot be dealt with, for
example, on a motion to quash a search warrant”.2 To understand
the importance of Re B.X. Development Inc. and the Queen2a in
Canadian law and the degree to which it represents a logical exten-
sion of the law requires an appreciation of the history of the
solicitor-client privilege.
The Anglo-Canadian approach to the solicitor-client privilege
The solicitor-client privilege is the oldest privilege governing
confidential communications in English law. It was initially invoked
during the reign of Elizabeth I, when the courts first began to
compel reluctant witnesses to testify3 At that time the privilege
was based on a philosophy of honour; the English solicitor was
subject to an oath of professional secrecy and his honour precluded
him from testifying. During the eighteenth century the privilege
remained but its foundation in honour was gradually replaced by
a philosophy which stressed the need to provide the client with
freedom from apprehension when consulting his lawyer. The two
philosophies, the honour-based and the client-based, were often in
(B.C.C.A.).
‘Re B.X. Development Inc. and the Queen (1977) 31 C.C.C. (2d) 14, 17
2 McWilliams, Canadian Criminal Evidence (1974), 579.
2a Supra, note 1.
sWigmore, Evidence in Trials at Common Law (1961), vol.8, McNaughton
(ed.), 542, s.2290. According to Wigmore the privilege was judicially re-
cognized as early as Berd v. Lovelace [1577] Cary 62, (1577) 21 E.R. 33 (Ch.)
and Dennis v. Codrington [1580]’Cary 100, (1580) 21 E.R. 53 (Ch.).
McGILL LAW JOURNAL
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conflict and the inconsistencies produced contradictory jurispru-
dence, thus hindering the development of the rules. 4
Over the years, the English and Canadian courts have worked
out a definition of the solicitor-client privilege:
Communications by a person to his solicitor or counsel in his profes-
sional capacity … [are] privileged and … neither the solicitor nor the
client can be compelled to disclose the content of such communications
where they were intended to be confidential.5
This definition is both accurate and stable. It has been many years
since a Canadian court has attempted to add a new type of solicitor-
client communication to the list. Four hundred years of jurispru-
dence have culminated in a workable and satisfactory definition
of privilege.
However, in contrast to the privilege itself, the timing of the
privilege has undergone a gradual but perceptible change. Originally,
under the honour-based theory of privilege, solicitors were exempt-
ed from testifying about communications received from clients
only from the beginning of the litigation in connection with which
the communication was made and for its purposes only.” When the
philosophical basis of the privilege changed, the temporal scope
of the privilege began to expand. First, communications made
during previous litigation were protected under the privilege. Next,
a communication was exempted from disclosure if it was made in
contemplation of future litigation; this exemption was later ex-
tended to any controversy whether with litigious potential or not.8
Next, communications made during any consultation for legal
advice, irrespective of its litigious or controversial nature were
considered privileged.9 Finally, the solicitor-client privilege was
applied to information obtained upon discovery.’
Inevitably, the
4 Wigmore, ibid., is relied upon for the early history of the privilege. He
states at p.544: “Probably in no rule of evidence having so early an origin
were so many points still unsettled until the middle of the 1800’s.”
5 McWilliams, supra, note 2, 575-76.
0 See Wigmore, supra, note 3, 544: “The point of honour would protect him
thus far.”
note 3, 545, n.11.
7 Du Barrd v. Livette [1791] Peake 108, 170 E.R. 96; cited in Wigmore, supra,
8 An earlier edition of Wigmore (3d ed. (1940), vol.8, s.2319) cites Woolley v.
North Londdn Ry (1869) L.R. 4 C.P. 602, as authority. This reference was
deleted in the 1961 edition, supra, note 3, and the statement is made without
judicial authority.
9 Minet v. Morgan (1873) L.R. 8 Ch.361 (C.A.).
‘o Wheeler v. Le Marchant (1881) 17 Ch.D. 675. Although no distinction was
originally made between discovery and trial in invoking the privilege, the
later cases have differentiated between the two, and while some cases, notably
19781
COMMENTS – COMMENTAIRES
next step in the extension of the privilege would seem to be the
protection from seizure of all documents of a privileged nature.
However, until recently this seemed impermissible. The state of the
law was summed up by Osler J. in R. v. Colvin:
[T]he rule is a rule of evidence, not a rule of property …. The only
way, as I see it, in which the privilege can be asserted is by way of
objection to the introduction of any allegedly privileged material
in
evidence at the appropriate time.”
This restrictive application of the privilege is accepted by McWil-
liams but not without criticism. “[O]bviously, this is a serious
defect”, he lamented. 2
By 1975, the idea of the solicitor-client privilege taking pre-
cedence over legislative seizure provisions had begun to receive
qualified judicial support. In Re Director of Investigation and
Research and Shell,13 the Director, under the Combines Investiga-
tion Act,’ 4 had the power to enter premises and to examine and
copy documents when he believed that evidence could be found.
Relying on a previously disregarded British Columbia Supreme
Court decision,15 a unanimous Federal Court of Appeal found that
this statutory power did not override the common law solicitor-
client privilege.
However, with regard to search warrants under the Criminal
Code,”” the general rule has been that since the solicitor-client pri-
vilege is a rule of evidence, rather than one of property, the con-
fiscated property can be prevented from being entered into eviden-
ce, but cannot be exempted from seizure. In this light, Re Borden
and Elliot and the Queen,17 Delzotto v. International Chemalloy
Corporation,8 and Re B.X. Development Inc. and the Queen19 have
had a significant impact upon the solicitor-client privilege in Canada.
Strass v. Goldsack (1976) 58 D.L.R. (3d) 397 (Alta C.A.), have rejected the
inclusion of pre-trial discovery information as confidential it is doubted
whether this case can stand as strong authority. On this point see the
comment by Lederman in (1976) 54 Can.Bar Rev. 422.
11 [1970] 3 O.R. 612, 617 (H.C.).
12Supra, note 2.
‘3 (1975) 22 C.C.C. (2d) 70 (F.C.C.A.).
14R.S.C. 1970, c.C-23, s.10(1).
15 Re Director of Investigation and Research and Canada Safeway (1972)
26 D.L.R. (3d) 745, [1972] 3 W.W.R. 547.
16R.S.C. 1970, c.C-34.
17 (1977) 30 C.C.C. (2d) 345 (Ont.C.A.), sub nom Regina v. Froats (1977)
36 C.R.N.S. 334.
18 (1977) 36 C.R.N.S. 322 (Ont.H.C.).
1’Supra, note 1.
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Re Borden and Elliot and the Queen
In this case, one Mr Froats was charged with defrauding Life
Investors Ltd of more than two million dollars. Based on inform-
ation collected by the Ontario Securities Commission, a warrant
was issued to search the offices of Froats’ solicitors, the Toronto
law firm of Borden and Elliot. Pleading the solicitor-client privilege,
the firm applied to the court to have the search warrant quashed.
Southey J. of the Ontario High Court 0 granted the application
and quashed the warrant. His extensive analysis of the privilege
focused on two aspects: its scope and its timing. As to the scope
of the privilege, the Crown contended that the documents were not
privileged because they related to communications having for their
purposes the facilitation of a crime. Southey J., citing Re Director of
Investigation and Research and Shell,2′ recognized this as a legiti-
mate restriction on any claim of solicitor-client privilege:
Any conspiracy between a solicitor and some other person to commit a
crime and any use of a solicitor-and-client relationship to cloak relevant
evidence or facts from discovery falls completely outside the principle
of confidentiality protected by the law.22
To Southey J., however, the onus was on the Crown to show
reasonable grounds for believing that a fraud had been committed.
If the Crown could not satisfy this burden, the Court was not en-
titled to disregard the attorney-client privilege. Vague and ambi-
guous statements were not sufficient; there had to be an intelligible
and specific allegation of fraud.3 Thus the communications were
privileged. The Court recognized that if a non-privileged communi-
cation of the client could be separated from a privileged one, it would
be admissible. Again, however, the Crown ‘had failed to offer suffi-
cient proof.
Southey J. next undertook a thorough examination of the conflict
between the solicitor-client privilege and the search warrant. Pro-
ceeding with a textual analysis of section 443 of the Criminal Code,
he found that a search warrant can only be issued when the justice
has “reasonable grounds to believe [that the document sought] will
afford evidence’ 24 of the offence charged. Since any document pro-
tected by the solicitor-client privilege can not be admitted as evi-
dence at trial, there can be no “reasonable grounds to believe” that
(2d) 337.
20 (1977) 30 C.C.C.
21 Supra, note 13, 80.
22Supra, note 20, 343, quoting Jackett C.J., supra, note 13, 80.
23 Supra, note 20, 342.
24 R.S.C. 1970, c.C-34, s.443 (emphasis added).
19781
COMMENTS – COMMENTAIRES
the documents would be evidence. The justice would thus have no
grounds upon which to issue a warrant for such documents.
Southey J. cited Re Steel and the Queen25 to support this analysis
and distinguished R. v. Colvin 6 by dismissing the comments of
Osler J. as obiter dicta.
To strengthen his argument, SoutheyJ. noted that the courts
have held that search warrants issued under other federal statutes
do not override the solicitor- client privilege. In Re Director of Inves-
tigation and Research and Shell,27 Jackett C.J. stated that the solicitor-
client privilege is not restricted to preventing evidence from being
produced in court or upon discovery. In the opinion of the Chief
Justice of the Federal Court, the privilege exists as part of a more
fundamental principle –
the privilege of such documents from dis-
closure. Thurlow J., concurring, added that the “confidential cha-
racter of such communications … comes into existence at the time
when the communications are made [and] … the right to have
the communications protected must … be capable of being asserted
on any later occasion”. 28 Southey J. approved of this reasoning and
found it,
… even more compelling … in the case of a search warrant ….
If the
privilege could not be invoked to prevent the seizure and examination of
documents under a search warrant, the Crown would be free in any case
to seize and examine the files and brief of defense counsel in a criminal
prosecution … . Such a result, in my view, would be absurd.29
The Crown unsuccessfully appealed the decision. Arnup J.A., in
rendering the judgment of the Court of Appeal,30 upheld the lower
court’s decision to quash the search warrant. He found that the
information put before the Justice to obtain such a warrant did
not sufficiently link the alleged fraud with the documents of the
solicitors. 31
While Arnup J.A. disassociated himself from the views expressed
by SoutheyJ. he conceded, in obiter, that the question of which
is to prevail, the privilege or the warrant, is a difficult one, parti-
cularly when authorities are “required to investigate matters of
corporate fraud of ever-increasing complexity”32 However, Arnup
25 (1974) 21 C.C.C. (2d) 278 (Ont.Prov.Ct).
26Supra, note 11.
2 Supra, note 13.
28Ibid., 80.
29Supra, note 20, 342.
30 Supra, note 17.
31 Ibid., 347.
32 Ibid., 348.
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J.A. felt that the Criminal Code should provide the justice with
some direction concerning the limitations upon his power to grant
a warrant, especially where the warrant conflicts with claims of
solicitor-client privilege. Similarly, the solicitor whose privilege is
violated should have a more effective remedy to prevent the search.
It is not the court’s task to settle the dispute but rather the
legislator’s, since ” the Court’s function must be limited to dealing
with each individual case as it arises” 3 3
Delzotto v. International Chemalloy Corporation
Two weeks after the Ontario High Court decision in Re Borden
and Elliot but before the Court of Appeal had dealt with the case,
a similar dispute arose in the Ontario Supreme Court. The applicant,
Clarkson Co. Ltd, having been appointed inspector of the Inter-
national Chemalloy Corporation (I.C.C.) under section 186 of The
Business Corporations Act 34 of Ontario, demanded that I.C.C. pro-
duce “all accounts and records” for examination. I.C.C. protested
that some of the material was exempt from production under the
solicitor-client privilege.
Following Re Director of Investigation and Research and Shell,
Osler J. acknowledged the existence of a solicitor-client privilege
overriding the search provisions of The Business Corporations Act.
However, without even referring to Southey J.’s decision in Re
Borden and Elliott which dismissed R. v. Colvin, Osler J. made a
surprising admission:
In Regina v. Colvin; Ex parte Merrick … I expressed the opinion in
an obiter dictum that the rule of privilege under discussion was a rule
of evidence to be applied only at the time material was tendered or
demanded for evidentiary use. I am persuaded … that such a view was
erroneous.35
By disapproving of his previous statement which had prevented
any extension of the privilege, Osler J. left the law in an interesting
state. He confirmed the subordination of legislative search pro-
visions to the common law solicitor-client privilege but by its
strict ratio, his judgment did not extend to a search warrant issued
under the Criminal Code. A search warrant issued under the
Criminal Code still awaited judicial consideration.
23Ibid.
34 R.S.O. 1970, c.53.
35 Supra, note 18, 325 (emphasis added).
1978]
COMMENTS – COMMENTAIRES
Re B.X. Development Incorporated and the Queen
Re Borden and Elliot was still before the courts in Ontario when
the same question regarding the solicitor-client privilege arose in
British Columbia. In Re B.X. Development Inc.,.3 an R.C.M.P. officer
swore an information before a justice of the peace to obtain search
warrants against several defendants. The information stated, inter
alia, that certain documents situated in the office of a firm of
solicitors would provide evidence of conspiracy, stock “churning”
and theft. The information contained a summarized list of the
evidence and, on the strength of this, warrants were issued by the
justice pursuant to the Criminal Code.3 A large quantity of doc-
uments was seized and removed from the solicitors’ offices. The
appellants attacked the validity of the warrants, alleging, inter alia,
that some of these documents were protected from seizure.
In the Supreme Court of British Columbia, Verchere J. refused
to quash the search warrants, relying on the language of Osler J. in
R. v. Colvin, and claiming that the privilege could be asserted only
at trial rather than at the time of seizure? 7a In the British Columbia
Court of Appeal, Bull J.A. acknowledged the increasing tendency of
the courts to extend the temporal boundaries of the privilege to in-
clude the seizure of documents. After calling attention to the two
combines investigation cases,3 8 and to Re Borden and Elliot (at the
time unreported), Bull J.A. continued:
I think it is fair to say that those cases … did not accept Osler, J.’s
view … . They are, in my view, authority for the proposition that …
a warrant can be quashed when it seizes documents which are plainly
subject to the solicitor-client privilege.39
A clearer rejection of the R. v. Colvin doctrine could not be sought.
However, on a closer examination of the facts, Mr Justice Bull
concluded that the documents in question were not within the scope
of the solicitor-client privilege4 0 His comments are thus confined to
obiter and their weight as authority is subsequently decreased.
Nevertheless, in making that statement Mr Justice Bull became
the first Canadian court of appeal judge to recognize that the
solicitor-client privilege overrides the search warrant provisions of
the Criminal Code.
36 Supra, note 1.
37R.S.C. 1970, c.C-34, sA43.
37a Unreported but see, supra, note 1, 17.
38 Re Director of Investigation and Shell, supra, note 13 and Re Director
of Investigation and Research and Canada Safeway, supra, note 15.
39 Supra, note 1, 17.
40 Ibid.
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Thus, Mr Justice Bull’s statement represents a decisive and
inevitable step. As this comment has shown, the solicitor-client
privilege has been gradually extended since its inception in the
sixteenth century. However, until recently, the privilege did not
extend to the quashing of a search warrant. This “defect”41 in the
state of the law has been gradually remedied. First, search warrant
provisions under other statutes were seen as subordinate to the
privilege. Next, a lower court acknowledged the defect, and a judge
disapproved of a statement of his own which was formerly relied
upon as authority. Finally, a court of appeal recognized the need to
extend the privilege beyond the mere bounds of trial and discovery.
After Re B.X. Development Inc., one may expect a search warrant
to be quashed where its proposed use conflicts with the solicitor-
client privilege.
Robert A. Kasting*
41 McWilliams, supra, note 2.
* LL.B. (McGill); articling student with Clark, Wilson & Co., Vancouver,
British Columbia (1977-78).
