Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Supreme Court of Canada Elevates Solicitor-Client Privilege to Quasi-Constitutional Right

In July 2008, Canada's Supreme Court of Canada issued a landmark decision (Privacy Commissioner of Canada v. Blood Tribe Department of Health) concerning solicitor-client privilege in Canada. It is a great decision – to highlight, the Supreme Court of Canada ruled that the role of determining the existence of solicitor-client privilege is reserved for the courts and express legislative language is necessary to permit a regulator (in this case the Privacy Commissioner) to pierce privilege. The Court elevated solicitor-client privilege to quasi-constitutional right, using language right out of the Canadian Charter of Rights and Freedoms  (Canada’s Bill of Rights, so to speak) and pasting it on to the protection of lawyer-client confidentiality. Gavin Mackenzie, former Treasurer of the Law Society of Upper Canada, remarked to the reporter “…great comfort from the result about the sanctity of solicitor-client privilege in Canada.  I doubt there’s another country that’s had its highest court repeatedly reaffirm the strength of privilege the way Canada has.”

On August 26, 2008, the Globe & Mail Newspaper ran an article "The armour strengthens around privilege" giving more details and commentary about the case.

Copy of the decision in Privacy Commissioner of Canada v. Blood Tribe Department of Health.

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