Criminal Procedure: Analysis of Legal Privileges in Canada

This report provides an overview of key legal privileges within Canadian criminal procedure. It begins by defining solicitor-client privilege, emphasizing its constitutional protection and confidentiality under the law, referencing Justice Lamer's explanation of the privilege and the conditions for its disclosure. The report then discusses litigation privilege, outlining the 'dominant purpose' test established in the case of Physicians of British Columbia v. British Columbia (Information and Privacy Commissioner), 2002, and the significance of reasonable contemplation of litigation. The report further analyzes spousal privilege, including exceptions where spouses can be compelled to testify. Finally, the informer privilege is examined, highlighting its importance in law enforcement, its class privilege nature, and the legislations that govern the disclosure of information, including the exceptions to the privilege.

Running head: CRIMINAL PROCEDURE
Criminal Procedure
Name of the Student
Name of the University
Author Note

1CRIMINAL PROCEDURE
1. According to the facts the legal profession privileges has defines the protection of the
communication between the solicitor and their clients who make promised to never
disclosed any information regarding to the works. The privilege helps to protects the legal
principle for the individual person for their ability to access the justice system by
disclosing every information. In Canada Solicitor–client privilege define as a common
law evidentiary principle which always makes it recognizable as a substantive rule which
always get protected through the constitution (Garland, 2014).
According to Justice Lamer the solicitor–client privilege always explain the confidentiality of
communication under some circumstances where communication can be disclosed without the
client's consent. Without the permission of the law the legitimate exercise of a right make the
appearance through the interference of another person’s right where the communication with the
solicitor should be confidential and must not make any conflict with the confidentiality. The law
provides the authority under some condition and when it has been provided to someone it holds
the rights of interference with confidentiality. The decision which has been taken must make the
choice of means of exercising and the authority make the determination with the decision for not
interfering with confidentiality (Murphy, 2015).
2. According to the test on communication of privilege it defines a rule of evidence which
helps to protects from disclosure in court documents or communications made for the
dominant purpose of litigation: Two factual determinations must be made to assess
whether litigation privilege attaches to a document and it arises several queries like was
litigation in reasonable prospect at the time the document was produced or what was the
dominant purpose for its production? The test has been found in the case of Dos Santos
v. Sun Life Assurance Co. of Canada, 2005. In the case of Physicians of British

2CRIMINAL PROCEDURE
Columbia v. British Columbia (Information and Privacy Commissioner), 2002, the
BC Court of Appeal introduced the term “dominant purpose” which describe the
elements requires that litigation be in reasonable contemplation: If litigation was not “in
reasonable prospect,” then the Documents were not produced for the dominant purpose of
litigation. Thus, the reasonable contemplation of litigation requirement should likely be
considered first and, if satisfied, the dominant purpose requirement evaluated. When
evaluating a claim of privilege one must consider the circumstances and intent when the
document was created. The proper time to consider whether the test is met is when the
particular documents that are in issue, namely the reports that accompanied the witness
statements and photographs, were created like in the case of Sauvé v. ICBC, 2010
(Murphy, 2015).
3. a. A spouse could only be compelled to testify for the prosecution, as an exception to the
general rule, if the accused person was charged with certain offences like involving
danger or the threat of danger to the spouse, violence, cruelty or threats against the
spouse’s child or violent or sexual offences against any child less than 14 years of age.
The OLD sections 4(2) or 4(4) of the Canada Evidence Act define such legislations.
b. According to the common law spouses cannot assert spousal privilege. In the case of R
v Nguyen it has been testify that according to the common law spouses did not enjoy the
protections of the spousal incompetency rules. However in the case of R vs. Hall it has
been found that the rule has been again judged on spousal incompetency about their
privilege.
c. according to the fact of the case the Canada Evidence Act has been describe that
spouses can and will be compelled to testify against their marriage partners, and that they

3CRIMINAL PROCEDURE
will need to actively assert a right to spousal privilege if they wish to protect
conversations occurring during their marriage. It effectively gives the testifying spouse a
“choice” whether or not to disclose incriminating communications (Garland, 2014).
4. a. The informer privilege is important because it provided the protection for the
enforcement of the law. It is way of the duty of all citizens to apply in enforcing the law. The
discharge of this duty carries with it the risk of retribution from those involved in crime (King,
2014).
b. Informer privilege is a class privilege where the relevant relationship is established between
the confiding party and the party in whom the confidence is placed, privilege presumptively
cloaks in confidentiality matters properly within its scope without regard to the particulars of the
situation.
c. According to the Sections 37, 38 and 39 of the Canada Evidence Act legislates the regime for
objecting to the disclosure of information. Then an application should be made for further
disclosure from defense counsel, where a court might otherwise compel its production.
d. The duty on the part of the Crown to provide disclosure to an accused person. The Crown
counsel’s discretion with respect to both the timing of disclosure and the withholding of
information for valid purposes, including the protection of police informers, cabinet confidences
and national security, international relations and national defense information (King, 2014).
e. The only exception to informer privilege is innocence at stake.

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Reference
de Vries, J. (2014). Privilege and Limitations: The Impact of Raising the Discoverability of
Claims on Solicitor-Client Privilege.
Dos Santos v. Sun Life Assurance Co. of Canada, 2005 BCCA 4
Garland, N. (2014). Criminal evidence. McGraw-Hill Higher Education.
King, C. (2014). Belief evidence and informer privilege: revisited in Strasbourg. The
International Journal of Evidence & Proof, 18(4), 340-352.
Murphy, G. (2015). Solicitor–client privilege.
Physicians of British Columbia v. British Columbia (Information and Privacy
Commissioner), 2002 BCCA 665
Sauvé v. ICBC, 2010 BCSC 763