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✨🤫PRIVILEGE & SECRET PROFESSIONNEL🤫✨ (CML (🐶 [Privilege - Purpose]:…

- - - - 🐺 Solicitor-Client Privilege: A communication is protected by solicitor-client privilege where, but only where, the following conditions are satisfied:
        
        The communication was between a solicitor and a client;
        
        The communication entailed the seeking or the receiving of legal advice;
        
        The client intended the communication to be confidential.
        
        Solicitor-client privilege is permanent and continues to apply after the termination of the solicitor-client relationship, after the death of the client, and, in the case of an organization, after dissolution or bankruptcy. The privilege belongs to the client, not to the solicitor.
        📒 Evidence Stewart
        
        🤠 Alberta (Info and Privacy Commissioner) [Explicit Statutory Language for Abrogation - Substantive Right - Fundamental]:
        
        To give effect to solicitor-client privilege as a fundamental policy of the law, legislative language purporting to abrogate it, set it aside or infringe it must be interpreted restrictively and must demonstrate a clear and unambiguous legislative intent to do so. The privilege cannot be set aside by inference.
        
        Solicitor client privilege is no longer merely a privilege of the law of evidence, but a substantive right that is fundamental to the proper functioning of our legal system
      - 👨‍⚖️ Litigation Privilege [Application - Purpose - Self-Rep - Privacy Zone]: Litigation privilege applies to materials prepared by counsel and to communications between counsel and others, including the client and third parties, for the dominant purpose of litigation. Litigation privilege is also available to self-represented litigants and protects their work product in the same manner as if they had counsel (Lizotte). However, litigation privilege is temporary in the sense that the protection afforded by litigation privilege ends when the litigation in question, including any related proceedings that arise from the same juridical source, has concluded. The purpose of litigation privilege is to promote the efficiency of the litigation process by ensuring that parties and their counsel have a “zone of privacy” in which to prepare for litigation (Blank).
        📒 Evidence Stewart
        
        🐤 Blank [Litigation Privilege - Difference from Solicitor-Client - Broader Communications - Privacy Zone - Impermanent]:
        The litigation privilege and the solicitor‑client privilege are driven by different policy considerations and generate different legal consequences.
        
        Litigation privilege is not restricted to communications between solicitor and client. It contemplates, as well, communications between a solicitor and third parties or, in the case of an unrepresented litigant, between the litigant and third parties.
        
        The purpose of the litigation privilege is to create a zone of privacy in relation to pending or apprehended litigation.
        
        The common law litigation privilege comes to an end, absent closely related proceedings, upon the termination of the litigation that gave rise to the privilege. Unlike the solicitor‑client privilege, it is neither absolute in scope nor permanent in duration. The privilege may retain its purpose and its effect where the litigation that gave rise to the privilege has ended, but related litigation remains pending or may reasonably be apprehended.
        
        Also: if you're seeking redress in civl liability for abuse of process or malicious prosecution, the documents relating to the judicial process (once it's over) are not protected.
        
        🦎 Lizotte [Defined Exceptions - Third Parties - Explicit Statutory Language for Abrogation - Fundamental]:
        
        Litigation privilege is subject to clearly defined exceptions, not to a case‑by‑case balancing test, eg exceptions relating to public safety, to the innocence of the accused, to criminal communications, evidence of the claimant party’s abuse of process or similar blameworthy conduct.
        
        Litigation privilege can be asserted against third parties, including third party investigators who have a duty of confidentiality.
        
        Litigation privilege cannot therefore be abrogated by inference, and clear, explicit and unequivocal language is required in order to lift it;
        
        Like solicitor‑client privilege, litigation privilege is “fundamental to the proper functioning of our legal system.”
      - 💒 Matrimonial Communications Privilege:
        No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage (s. 4[3] Canada Evidence Act).
      - 🕵️‍♂️ Informer Privilege:
        
        An informer is anyone who provides information to the police about a criminal investigation or a matter of national security in return for an express or implied guarantee of confidentiality.
        
        There is only one exception to the informer privilege: if disclosure of the informer's identity is necessary to demonstrate the accused's innocence.
      - 💰 Privilege for Settlement Discussions:
        
        Communications between the parties to a dispute for the purpose of settling the dispute are not admissible in subsequent litigation if the attempt to settle fails.
        
        The parties must have intended that the communication not be disclosed in the event that negotiations failed, eg use of "without prejudice."
        
        ✈️ Bombardier [Mediation Confidentiality - Exception for Proving Settlement Unless Agreed Otherwise]: A confidentiality clause in a mediation contract will not restrict a party from producing evidence of communications made in the mediation context in order to prove the terms of the settlement, unless that is the clearly intended effect of the mediation contract. A communication that has led to a settlement will cease to be privileged if disclosure is necessary to prove the existence or scope of the settlement
      - 👑 Public Interest Immunity:
        
        The doctrine of public interest immunity, sometimes referred to as “Crown privilege”, protects information from disclosure in litigation on the ground that the public interest in keeping the information secret outweighs the public interest in revealing the information for the purpose of resolving the litigation.
        
        Three kinds of claims for public interest immunity: the most general claims based on the public interest in non-disclosure; claims based on national security and related grounds; and claims based on Cabinet confidences.
        
        Carey v Ontario 🍔 [Public Interest Immunity Non-Disclosure for Cabinet Docs]
        
        Case involves conflict between access to information relevant to prove a claim, and the public interest against disclosure of confidential communications of the government executive;
        
        The court weighs these values in the public interest immunity analysis, considering factors like the nature of the policy concerned and the particular contents of the documents, as well as the time when a document or information is to be revealed;
        
        Quote in favour of disclosure: "Divulgence is all the more important in our day when more open government is sought by the public. It serves to reinforce the faith of the citizen in his governmental institutions."
      - ⛓️ Privilege Against Self-incrimination:
        Section 5 of the Canada Evidence Act provides that a witness is required to answer questions that tend to establish his or her criminal or civil liability, but the answers given may not be used for any purpose in subsequent criminal or penal trials, except in a prosecution for perjury or for giving contradictory evidence
    - - 🌎 Globe & Mail [Wigmore Test - No Journalist-Source Class]:
        
        There is no basis for recognizing a class‑based constitutional or quasi‑constitutional journalist‑source privilege under either the Canadian Charter or the Quebec Charter;
        
        Wigmore factors:
        (1) the relationship must originate in a confidence that the source’s identity will not be disclosed;
        (2) anonymity must be essential to the relationship in which the communication arises;
        (3) the relationship must be one that should be sedulously fostered in the public interest; and
        (4) the public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth.
        At the crucial fourth Wigmore factor, the court must balance the importance of disclosure to the administration of justice, against the public interest in maintaining journalist‑source confidentiality.
      - 👩‍⚕️ M(A) v Ryan [Wigmore - No Patient-Psychiatrist Class]:
        
        Application of Wigmore Test:
        (1) The communication was made in confidence
        (2) Confidence must be essential to the maintenance of the relationship in which communication occurs
        (3) The relationship is one which plays a productive role in society such that it should be "sedulously fostered"
        (4) The public interest in maintaining the relationship is balanced against the truth-finding purpose of the trial.
        
        On point 4:
        (4.1) The nature of the public interest to be protected can be informed by a "Charter values" analysis.
        
        (4.2) The nature of the documents to be disclosed, their relevance to the case, and the limits imposed on the disclosure are all factors here.
        
        Patient-Psychiatrist not a class privilege — "It is open to a judge to conclude that psychiatrist‑patient records are privileged in appropriate circumstances."
        
        Privileges arise "where it can be shown that they are required by a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth."
        
        Where the doctrine of privilege applies, it displaces any residual discretion which might otherwise be thought to inhere in favour of the party claiming privilege.
        
        L'Heureux-Dubé dissenting: Apellant's "reasonable expectation of privacy must be balanced against the society’s need to ensure that such litigation be conducted fairly and effectively. The Charter-related value of a fair trial for all litigants, as a fundamental principle of justice...must be balanced with the privacy interests of the appellant. The value of equality must further guide the procedure of discovery in tort cases involving sexual assault."
      - 🚨 [Campbell - In-House Solicitor-Client Privilege - Criminal Communications]:
        
        The fact that a lawyer works for an “in-house” government legal service does not affect privilege.
        
        Whether or not solicitor-client privilege attaches in any of these situations depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered.
        
        Exceptions to solicitor-client privilege when communications are criminal or else made to obtain legal advice to facilitate the commission of a crime, or where adherence to that rule would have the effect of preventing the accused from making full answer and defence.
        
        Good faith consultations with lawyers by their clients who are uncertain about the legal implications of a proposed course of action are entitled to the protection of the privilege, even if that action should later be held to be improper.
        
        But if someone claims good-faith reliance on legal advice as the reason for their action, they can be required to disclose the advice in order to show that they were actually in good faith.