Canadian Criminal Evidence/Privilege
Privilege protects certain information from being revealed by a witness on the stand.
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[edit] Solicitor Client Privilege
Solicitor-client privilege is a class privilege and are presumed inadmissible.[1]
The privilege exists where a written or oral communication is :[2]
- made in confidence or be of a confidential in nature;
- made to a professional legal advisor;
- for the purpose of giving and receiving legal advice.
This privilege applies not only between and a lawyer and their retained client,but can also apply between a Crown attorney and a police officer seeking legal advice.[3]
Only the client can waive solicitor-client privilege.[4] It must be waived intentionally.
The client cannot be compelled to waive privilege by answering questions in the course of litigation. [5]
There are three occasions when solicitor‑client privilege may be overruled, namely when innocence at stake is engaged, the client's communications are themselves criminal, or it is necessary to protect public safety.[6]
[edit] Litigation Privilege
[edit] Plea Negotiations
Communications regarding plea negotiations fall under the category of "public interest privilege" and so cannot be used in court. This includes negotiations regarding bail hearing[7] as well as sentencing hearings.[8]
This privilege exists to permit "frank and full discussions between counsel for the accused and counsel for the Crown." [9]
This kind of privilege cannot be waived by one party alone.[10]
[edit] References
- ↑ R v McClure, 2001 SCC 14 [2001] 1 SCR 445
- ↑ R v Campbell, 1999 CanLII 676, [1999] 1 SCR 565 at para 49 [also referred to as R v Shirose] Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821 at 835 [1]
- ↑ R. v. Caines, 2011 ABQB 660 [2]
- ↑ McClure at para 37
- ↑ R v Creswell, 2000 BCCA 583, 149 CCC (3d) 268[3]
- ↑ Smith v. Jones, 1999 CanLII 674 (SCC), [1999] 1 S.C.R. 45 [4]
- ↑ R. v. Bernard, [2002] A.J. No. 1007 (Alta. Q.B.)
- ↑ R. v. Roberts, [2001] A.J. No. 772 (Alta. Q.B.))
- ↑ R. v. Bernardo, [1994] O.J. No. 1718, (Ont. Gen. Div.) at para 16
R. v. Delorme, [2005] N.W.T.J. No. 51 (N.W.T. S.C.), at para 18
R. v. Roberts, supra, at para 60
R. v. Griffin, [2009] A.J. No. 1455, (Alta. Q.B.) at 65 - ↑ R. v. Bernard, supra, at para 39;
R. v. Griffin, supra, at para 54
