Future Crimes Exception to Solicitor-Client Privilege
Lawyers are very cognizant of their duties and obligations owed to their clients. Among these is the obligation to keep privileged communications between the lawyer and their client. Any communications between a lawyer and a client for the purposes of obtaining legal advice are protected by solicitor-client privilege, which is a fundamental and substantive rule of law. This privilege may even apply to communications from non-clients, if the non-client reasonably believed that a lawyer-client relationship had been formed.
However, like any legal principle, solicitor-client privilege is not without exception. Specifically, if a client communicates with their lawyer for the purposes of obtaining legal advice to facilitate a criminal activity, or the communication is criminal in itself, then the communication will not be covered by solicitor-client privilege. This is known as the “Future Crimes Exception” to solicitor-client privilege.
This exception was first noted in Solosky v. The Queen, 1979 CanLII 9 (SCC), wherein the Court held that “a communication in furtherance of a criminal purpose does not ‘come in the ordinary scope of professional employment.’”
This principle was expounded In Descôteaux et al. v. Mierzwinski, 1982 CanLII 22 (SCC), which has become the leading case on this particular exception. In Descôteaux, the Court states:
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 attached to confidentiality. This confidentiality attaches to all communications made within the framework of the solicitor-client relationship, to the lawyer as well as to his employees. It arises even before the retainer is established, as soon as the client takes the first steps in approaching a law firm. It may be invoked in any circumstances where such communications are likely to be disclosed without the client’s consent. However, communications which are criminal in themselves or that are made with a view to obtaining legal advice to facilitate the commission of a crime will not be privileged.
The Court’s opinion in R. v. Campbell, 1999 CanLII 676 (SCC), further developed this exception, illustrating that for solicitor-client privilege to apply, there must be both professional confidence and professional employment. However, if the client has a criminal intent with respect to his communications with their lawyer, then one of these elements is necessarily absent. The client must either conspire with his solicitor or deceive him. The opinion states that if the client’s criminal objective is made known to the solicitor, then “the client does not consult his adviser professionally, because it cannot be the solicitor’s business to further any criminal object.” If the client does not make their criminal intent known to the solicitor, then the client places no confidence in their communications with the solicitor, and the foundation of the principles of confidentiality does not exist with respect to those communications because the solicitor’s advice was obtained by way of fraud.
The Supreme Court of British Columbia actually established elements for the use of the Future Crimes Exception in 2013, in McDermott v. McDermott, 2013 BCSC 534 (CanLII). The required elements are:
the challenged communications must pertain to proposed future conduct;
the client must be seeking to advance conduct which it knows or should know is unlawful; and
the wrongful conduct being contemplated must be clearly wrong.
The standard of proof for applying the Future Crimes Exception to solicitor-client privilege requires establishing a prima facie case for fraud. A mere allegation of fraud is insufficient. The Court in Canbook Distribution Corp. v. Borins, 1999 CanLII 14842 (ON SC) held that “in interlocutory proceedings to determine the privileged status of documents seized, it is sufficient for the Crown to show a prima facie case of fraud, that is, on evidence that takes the case beyond mere conjecture or a simple bald assertion in an affidavit.”
Thus, it is clear that solicitor-client privilege is not without exception, and certain communications may not be protected by this privilege if there is any view to criminal activity. Therefore, if any criminals or future criminals are hoping to use legal advice to further their criminal actions, they should not expect to be protected by solicitor-client privilege. Solicitor-client privilege is a tool to facilitate open communication between a client and their legal representative; it is not a shield to protect criminals who are seeking to engage in illegal activities.