Solicitor-Client Privilege in Canada

The 1999 Smith v. Jones decision of the Supreme Court of Canada articulated why solicitor-client privilege is so highly regarded. The judgment notes that “the highest privilege recognized by our courts [and] is of fundamental importance to the administration of justice and, to the extent possible, it should be maintained.”

This privilege also helps build trust between you and your lawyer. When seeking legal advice, you must be able to communicate freely and frankly with your lawyer. If you withhold information for fear of being in further trouble with the law, your lawyer will not have a complete understanding of what led to the charge, which will impair the legal advice they can provide.

As soon as you step into a lawyer’s office, even for your initial consultationThe first meeting between a lawyer and client, whatever you say becomes privileged information. The lawyer cannot share that information with others, even if you decide not to retain them.

The Supreme Court has held that solicitor-client privilege must be as close to absolute as possible. The Federation of Law Societies’ Model Code of Professional Conduct provides that "A lawyer may disclose confidential information, but must not disclose more information than is required, when the lawyer believes on reasonable grounds that there is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm.”

In Smith v. Jones in 1999, the Court held that public safety concerns set aside solicitor-client privilege when a lawyer reasonably believes “there is a clear and imminent threat of serious bodily harm to an identifiable group, and if this threat is made in such a manner that a sense of urgency is created.”