Waiver of Privilege

R. v. Nuttall, 2015 BCSC 2102:

[28]        It is because solicitor/client privilege is fundamental to our justice system that the court must be vigilant in its defence and preservation. As Major J. says in R. v. McClure, 2001 SCC 14 (CanLII) at para. 2:

Solicitor-client privilege describes the privilege that exists between a client and his or her lawyer.  This privilege is fundamental to the justice system in Canada.  The law is a complex web of interests, relationships and rules.  The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system.  At the heart of this privilege lies the concept that people must be able to speak candidly with their lawyers and so enable their interests to be fully represented.

[29]        This privilege extends to legal advice that the RCMP receives from the Crown: Campbell at para. 49.

[30]        Waiver of the privilege is governed by strictly applied criteria to prevent unnecessary erosion of the principle that there should be free and candid communication between a lawyer and his client. In S.& K. Processors, McLachlin J. (as she then was) formulated the test at para. 6 as follows:

Waiver of privilege is ordinarily established where it is shown that the possessor of the privilege (1) knows of the existence of the privilege, and (2) voluntarily evinces an intention to waive that privilege. However, waiver may also occur in the absence of an intention to waive, where fairness and consistency so require. Thus waiver of privilege as to part of a communication, will be held to be waiver as to the entire communication. Similarly, where a litigant relies on legal advice as an element of his claim or defence, the privilege which would otherwise attach to that advice is lost: Hunter v. Rogers, 1981 CanLII 710 (BC SC), [1982] 2 W.W.R. 189.

[31]        In Chapelstone, Robertson J.A. framed the issues in regard to inadvertent disclosure at para. 45:

My understanding of the law with respect to waiver of privileged communications and the legal consequences flowing from their inadvertent disclosure is as follows: (1) as a general proposition, privilege belongs to the client and, therefore, can be waived only through his or her informed consent; (2) however, there is room in the law for an implied waiver; and (3) the inadvertent disclosure of privileged communications does not automatically lead to an implied waiver, more is required.

[32]        Acknowledging that waiver can be express or implied, Robertson J.A. went on to describe what was necessary to show implied waiver in the case of inadvertent disclosure at para. 55 of Chapelstone:

In summary, the general rule is that the right to claim privilege may be waived, either expressly or by implication. However, inadvertent disclosure of privileged information does not automatically result in a loss of privilege. More is required before the privileged communication will be admissible on the ground of an implied waiver. For example, knowledge and silence on the part of the person claiming the privilege and reliance on the part of the person in receipt of the privileged information that was inadvertently disclosed may lead to the legal conclusion that there was an implied waiver. In the end, it is a matter of case-by-case judgment whether the claim of privilege was lost through inadvertent disclosure.

[33]        With regard to the question of whether partial disclosure of privileged information required disclosure of the entire contents of the privileged information, Robertson J.A. provided the following guidance at paras. 57-58:

I agree with the reasoning in Great Atlantic Insurance to the extent that the plaintiff's lawyer could not insist that the privileged information, inadvertently disclosed during the discovery, remain part of the record, while at the same time insisting that the other parts of the memorandum remain confidential. Otherwise, a party would disclose only those parts of a document which were to his advantage while resisting disclosure of the remainder. The law is not quick to allow one party to reap the best of both worlds. As was said in Great Atlantic Insurance at 492 "to allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood."

I am not prepared to promulgate a rule of law that waiver of part is a waiver of all. A party may be willing to waive the right to claim privilege with respect to information that was inadvertently disclosed for the simple reason that it is of no significance. But I cannot think of any valid policy reason why that person should also be deemed to have waived the right to claim privilege with respect to referenced information upon which the disclosed information was based. This is certainly true in cases where the waiving party insists on retaining privilege with respect to other referenced and privileged information. In my view, the better approach is the one adopted by the British Columbia Court of Appeal in Power Consol. (China) Pulp Inc. v. B.C. Resources Invt. Corp., 1988 CanLII 3214 (BC CA), [1989] 2 W.W.R. 679 at 682 (B.C.C.A.). In that case, the Court held that it is preferable to look at all the circumstances of the case and ask whether the conduct in disclosing part of a communication is likely to mislead the other party or the court, so as to require privilege to be lifted with respect to the whole of the communication.