Inadvertent disclosure seldom amounts to waiver of privilege

 R. v. Ward, 2016 ONCA 568:

[31]        Communications between a lawyer and his or her client are privileged where they involve the giving or seeking of legal advice and where the parties intend them to be confidential: Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 837. The client, not the lawyer, holds the privilege and only he or she can waive it: R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at para. 37.

[32]        Where solicitor-client privilege has not been waived, the court may also consider whether privilege should yield in order to allow an accused to make full answer and defence: R. v. Brown, 2002 SCC 32, [2002] 2 S.C.R. 185, at paras. 5, 28, 45. However, solicitor-client privilege is almost absolute, and may be set aside only in very rare circumstances: McClure, at paras. 5, 35. As the Supreme Court stated in McClure, at para. 35: “[S]olicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis.”  

[33]        Here, the content of the letter and the context make it clear that trial counsel sent the letter to his own counsel in the course of seeking advice about how to respond to appeal counsel’s requests and how to comply with this court’s Protocol. I infer from this same content and context that trial counsel intended the communication to be confidential. Trial counsel is no less entitled to the benefit of solicitor-client privilege because he was attempting to comply with the Protocol.

[34]        The appellant concedes that the disclosure to appeal counsel was inadvertent, and that trial counsel did not waive solicitor-client privilege. This was an appropriate concession.

[35]        Inadvertent disclosure does not necessarily mean that privilege has been waived. While waiver of solicitor-client privilege can be express or implied, whether privilege has been waived by inadvertent disclosure is a fact-specific inquiry, which may include consideration of the following factors:

·       The way in which the documents came to be released;

·       Whether there was a prompt attempt to retrieve the documents after the disclosure was discovered;

·       The timing of the discovery of the disclosure;

·       The timing of the application;

·       The number and nature of the third parties who have become aware of the documents;

·       Whether maintenance of the privilege will create an actual or perceived unfairness to the opposing party; and

·       The impact on the fairness, both actual or perceived, of the processes of the court.

See Airst v. Airst (1998), 37 O.R. (3d) 654 (C.J. (Gen. Div.)), at pp. 659-60; and Chapelstone Developments Inc. v. Canada, 2005 NBCA 96, 191 C.C.C. (3d) 152, at para. 55, leave to appeal to SCC refused, [2005] S.C.C.A. No. 38.

[36]        Having considered the above factors, I conclude that solicitor-client privilege was not waived in this case.

[37]        Nor should it be set aside. In McClure, the Supreme Court held that solicitor-client privilege may only be set aside very rarely, “where core issues going to the guilt of the accused are involved and there is a genuine risk of a wrongful conviction”: para. 47. Under the innocence at stake test, the accused must first establish that the information sought from the solicitor-client communication is not available from any other source and that he or she is unable to raise a reasonable doubt as to guilt in any other way. If that threshold question is satisfied, the court will then consider whether there is an evidentiary basis upon which to conclude that a communication exists that could raise a reasonable doubt as to the accused’s guilt, and if so, whether the communication is likely to raise a reasonable doubt. See McClure, at paras. 46-51; and Brown, at paras. 4, 29.

[38]        There is no basis to abrogate the solicitor-client privilege here. Innocence is not at stake. The contents of the Letter are marginally relevant to the ineffective assistance of counsel claim, if pursued. The panel ultimately hearing the appeal will be able to come to its own opinion as to possible inferences a jury could have drawn from the evidence led at trial.