By Stephanie Cousineau, lawyer.
How often in life do you feel like you’re having a conversation that’s really “in the vault”? Most of us have been burned by having our secrets leaked by friends and used against us, and maybe it’s too much to expect that our social connections will keep everything on the down-low. But you likely expect the exact opposite from your lawyer— it’s pretty commonly known that what’s discussed between the two of you is meant to stay between the two of you.
That’s pretty serious—but so are legal problems, so it’s completely understandable that clients sometimes want to include a friend, a loved one, a “second”, just someone for support when they talk to their lawyer. And that won’t change the lawyer’s obligation to maintain confidentiality, keeping the conversation between lawyer and client private… but what about “privileged”? Is your lawyer’s advice still protected by privilege when your conversation includes a plus one?
Privilege is more than the ethical duty to keep a client’s secrets safe—it’s a legal duty that protects the advice your lawyer gives you, so it can’t be used against you in a court of law. This, the Supreme Court of Canada has called a “fundamental civil and legal right” (in Solosky v The Queen at p 839). Generally speaking, this is so sacred that including any other person in the conversations between lawyer and client is said to “waive the privilege”, based on the legally-accepted idea that if another person is included, it was never meant to be privileged.
The Alberta Court of Queen’s Bench called this a “well-established rule” (in Pinder v Sproule at para 46], drawn from “Wigmore’s principles”, an old, but still relevant test devised by the American jurist, John Henry Wigmore in 1905. The Supreme Court of Canada still referred to Wigmore in its 1991 decision, R v Guelke, where it stated that the test for whether communications were privileged required that:
- the communication originated in confidence that they would not be disclosed;
- this element of confidentiality had to be essential to the full and satisfactory maintenance of the parties’ relation;
- the relation had to be one in which “the opinion of the community ought to be sedulously fostered”; and
- the injury that would “inure to the relation” by the disclosure had to be greater than the benefit gained by it, in terms of deciding the litigation question properly.
This has come to be seen as more of a series of guiding principles than a fixed test, using a principled approach to decide if and when privilege ought to be waived. But the big takeaway here is that rarely will information stay privileged if it’s disclosed to a third party. A significant exception is if the other person has a “common interest”—like having a similar legal issue of their own, for which the advice your lawyer has given you is also relevant for them. That said, the expectation is that that other person will keep the disclosure confidential.
There is also an exception when an individual with a disability needs a support person to be able to bring their claim forward. Here, it’s an issue of access to justice, but the condition is still that the support person, acting like the client’s agent, takes in the legal advice, and is meant to keep the confidence.
The question I’m often asked is: “What if it my plus-one is my spouse?” It may surprise you that, technically speaking, a spouse is not an exception. According to section 7 of the BC Evidence Act, spouses are competent and compellable witnesses. The same is true under the Canada Evidence Act. (It’s important to note that the law here is referring only to legally married spouses. A common law relationship is not enough to establish spousal privilege – and in fact, under the federal statute, spousal privilege extends only to married heterosexual couples).
That said, section 8 of the BC Evidence Act provides that a spouse can’t be compelled to disclose anything communicated between the couple during the marriage – which means that anything your spouse knew because you communicated it to them would likely be off-limits in court.
The 2019 Alberta case of Case v Canaccord Genuity Corp, explains this a little more, telling us that this “compellable but not-compellable” spousal privilege is about balancing policy considerations. The Courts don’t want to violate the harmony and sanctity of a marriage; however, it’s still vital that all relevant, non-privileged communication be disclosed, to satisfy some principles of justice.
So what does this mean for your friend, loved one, or “second”? It’s likely that the comfort of having a “plus one” in the discussion with your lawyer means you’re waiving your privilege, unless that plus-one is your legally married husband or wife. And you might miss that privilege when it’s gone… losing privilege might be worse than losing confidence. You can bounce back from a social faux-pas, when a “friend” betrays your secrets and it comes back to haunt you. But it could have far bigger and more lasting consequences when losing privilege means you also lose in court.