Descôteaux v. Mierzwinski

Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860 is a leading Supreme Court of Canada decision on solicitor-client privilege. The Court reaffirmed the opinion in R. v. Solosky that privilege was a substantive right that even existed outside of a proceeding.

Background

The police were investigating the legal aid bureau in Montreal in relation to a charge on Marcellein Ledoux for falsely stating his financial status in order to qualify for the services. The police had a search warrant seize the records from the legal aid interview with Ledoux and the legal aid application he filled out. The clinic appealed the seizure on the basis that the documents were protected by solitictor-client privilege.

Opinion of the Court

Justice Lamer, writing for a unanimous Court, held that the documents were wrongly seized as they were protected by privilege.

Lamer described the privilege as:

all information which a person must provide in order to obtain legal advice and which is given in confidence for that purpose enjoys the privileges attaching to confidentiality. This confidentiality attaches to all communications made within the framework of the solicitor-client relationship^[1]

He stated that were a law interferes with the right to privilege then the privilege must prevail except for where it is absolutely necessary in order to achieve the purpose of the enabling legislation.

Notes

1. ^ para. 618

External links

• full text of Supreme Court decision from canlii.org