L’APPORT DU JUGE LEBEL À L’ÉVOLUTION SUBSTANTIVE ET PROCÉDURALE DU SECRET PROFESSIONNEL DE L’AVOCAT

Abstract

Considered to be a rule of evidence until the early 1980s, solicitor-client privilege is now a principle of fundamental justice and a fundamental civil and legal right. Solicitor-client privilege is almost absolute and cannot be set aside except in specific and unusual circumstances: when the communications as such are criminal or are for the purpose of obtaining a legal opinion to facilitate the perpetration of a crime, where public security is in jeopardy, or where professional secrecy must be set aside to demonstrate that an accused is innocent. The transition from a rule of evidence to a substantive rule occurred in 1982, in Descôteaux et al. v Mierzwinski. Starting in the early 2000s, the Supreme Court revisited the question several times. Justice LeBel, who became a member of the Supreme Court on January 7, 2000, made a significant contribution to this process. Amongst other things, he drafted the Court’s reasons in Maranda v Richer and Foster Wheeler Power Co v Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc, and also participated in a number of other decisions on this topic.