R. v. Li, 2013 ONCA 81
[58] The classic formulation of the solicitor-client communication privilege is this:
Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to the purpose made in confidence by the client are at his instance permanently protected from disclosures by himself or by the legal adviser, except the protection be waived.
See, Wigmore on Evidence (McNaughton Rev., 1961), Vol. 8, § 2292 as cited in Canada v. Solosky, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, at p. 835.
[59] Traditionally, a privilege is a rule of evidence, an exclusionary rule of admissibility that forecloses from forensic scrutiny evidence that is relevant and material in service of some interest of greater importance. But, at least in the last three decades, solicitor-client privilege has become more than merely a rule of evidence that acts as a shield to prevent privileged documents from making their way into evidence in a courtroom: Solosky, at pp. 836-837.
[60] Decisions of the Supreme Court of Canada have consistently strengthened solicitor-client privilege, elevating it from an evidentiary or procedural rule to a general principle of substantive law: Maranda v. Richer, 2003 SCC 67, [2003] 3 S.C.R. 193, at para. 12. In the criminal law context, the only exceptions to the principle of confidentiality established by solicitor-client privilege are limited, clearly defined, and strictly controlled: Maranda, at para. 12.
[61] The reference to “communication” in the classic formulation of the rule acknowledges that not everything that happens in the solicitor-client relationship qualifies as privileged. Some decisions have drawn a distinction between “facts”, on the one hand, and “communications” on the other, to avoid excluding facts that have an independent existence under the privilege. The distinction is often a difficult one to draw in practice and risks eroding the privilege that is inherent in it: Maranda, at para. 31.
[62] Issues relating to the calculation and payment of fees are important elements in the solicitor-client relationship. This information is presumptively privileged, but the presumption may be rebutted by evidence that disclosure would not violate the confidentiality of the solicitor-client relationship: Maranda, at paras. 32-34.
[63] The existence of solicitor-client privilege does not affect the admissibility of the same evidence available from other sources: Maranda, at para. 34. Sometimes, for example, solicitor-client communications may end up in the hands of a third party as in R. v. Tompkins (1978), 67 Cr. App. R. 181 (C.A. (Crim. Div.)). Whether the opposite party may use or introduce this secondary evidence may depend on the manner in which the otherwise privileged documents or things have been obtained. The orthodox rule would admit the secondary evidence, provided it was relevant and material, unconcerned with how the evidence was obtained: see R. v. Kuruma, [1955] A.C. 197 (P.C.); Calcraft v. Guest, [1898] 1 Q.B. 759 (C.A.). More recently, however, courts have recognized a common law, and now constitutionalized, discretion to exclude evidence the admission of which would render the trial unfair: R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, at para. 23; and R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 23.
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