Solicitor-Client Privilege


  • Solicitor-client privilege (SCP) is an important legal concept that allows clients to trust their lawyers with private information. The Supreme Court of Canada has called it a principle of fundamental justice and civil right of supreme importance in Canadian law. Library and Archives Canada’s (LAC) archival collection contains SCP from Government of Canada (GC) and private sources. For the GC holdings, access is governed by Section 23 of the Access to Information Act (ATIA) and Section 27 of the Privacy Act. SCP applies when three conditions are met:
  • the information must be of a confidential nature;
  • the information must be between a client and a legal advisor; and
  • the communication must have been made for the purpose of requesting, formulating or giving legal advice or assistance.
  • While both Section 23 and Section 27 give the Librarian and Archivist of Canada the discretion to release SCP information in GC records, in the past, the Department of Justice (JUS) has recognized SCP as absolute and has not supported the opening of this information.
    • In the past, LAC only did a second consideration of opening SCP after receiving an official complaint through the Office of the Information Commissioner (OIC).
    • In the last three years, LAC has opened SCP in three separate Access to Information and Privacy (ATIP) cases after a complaint was issued through the OIC. Each case was handled differently, with the same result—the files were opened and SCP was released.


  • Canada’s ongoing commitment to Open Government is supported by increased public expectation. For LAC, this means we will consider the historical significance of the solicitor-client privileged information in archival records and will consider opening the records.
  • If a client is not satisfied with the release package provided by ATIP, they may lodge a formal complaint with the OIC. LAC currently has 33 active complaints, seven of these have exemptions under SCP (s.23).
  • In the past, the advice received from JUS ATIP confirmed the existence or not of SCP, but did not provide an assessment of potential risk to the Crown. Decisions were thus at the discretion of LAC.
  • In addition, the recent passage of the new ATIA (Bill C-58) gives the OIC power to compel the release of information (including SCP).
  • LAC worked in collaboration with JUS to create the Principled Framework on Providing Access to Archival Government Records Containing Solicitor-client Privileged Information. It was approved by LAC Management Board on June 3,, 2019 and is now in force. This process is being implemented, and will be re-evaluated after one year to determine effectiveness and refine the procedures.
  • SCP information is now being considered for release through the application of this mechanism and detailed internal procedures and workflow guidelines are being developed to reflect this new approach.
  • Private archival holdings may also contain SCP, where the ATIP Acts do not apply. While these are managed in accordance with donor agreements, any SCP currently encountered during access requests is kept closed, unless LAC can confirm the waiver of privilege. This can bring legal challenges and does potentially conflict with the donor’s intent.

Key Public Messages

  • Through the approval of the Principled Framework, LAC now has a clear and transparent process to analyze and determine if it can open SCP found within archival records.
  • The Principled Framework allows LAC to obtain timely information from other GC institutions, and JUS to inform its decision-making, and clarifies the process the Librarian and Archivist of Canada follows should they choose to exercise discretion and open SCP information.


Kristina Lillico, Director ATIP and Litigation Response Division
Tel: 613-867-3784

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