A-828-76
William (Billy) Solosky (Appellant)
v.
The Queen (Respondent)
Court of Appeal, Heald and Urie JJ. and MacKay
D.J.—Toronto, March 23 and April 10, 1978.
Prerogative writs — Application for declaration claiming
solicitor and client privilege of correspondence — Correspond
ence between inmate and solicitor being opened and read by
prison authorities — Whether or not a declaration should
issue declaring all properly identified correspondence between
solicitor and client privileged, or at least declaring all properly
identified correspondence of a solicitor-client nature privi
leged.
Appellant appeals the Trial Division's dismissal of his action
seeking a declaration that properly identified items of corre
spondence directed to and received from his solicitor should be
regarded as privileged correspondence, and should be forward
ed unopened. In this Court, the request for a declaration was
amended so as to apply only to properly identified items of
solicitor-client correspondence. Respondent contends that
appellant, on the facts, is not entitled to the declaration as
originally expressed, or as amended, and submits that appellant
by committing a crime had brought on himself the restrictions
on rights ordinarily enjoyed by citizens.
Held, the appeal is dismissed. Such a declaration would
extend considerably the ambit of the solicitor-client privilege as
it is generally known and understood. The Trial Judge's reasons
are correct. Quite apart from the question as to whether the
appellant's right to claim the solicitor-client privilege has been
restricted or taken from him by his incarceration in a federal
penitentiary, to grant the declaration sought would give this
appellant an extension to the privilege afforded to the ordinary
citizen. It is not necessary to deal with respondent's second
submission.
R. v. Bencardino (1974) 2 O.R. (2d) 351, agreed with.
O'Shea v. Wood [1891] L.R. (P.D.) 286, followed.
APPEAL.
COUNSEL:
D. Cole and A. S. Manson for appellant.
E. A. Bowie and J. P. Malette for respondent.
SOLICITORS:
D. Cole, Toronto, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: The appellant is an inmate of Mill-
haven Penitentiary. Because it was his opinion that
the appellant's conduct, activities and attitude
were such that attention should be paid to his
incoming and outgoing correspondence, the Direc
tor of Millhaven ordered that the appellant's mail
be opened and read. This order has been applied to
mail from the appellant to his solicitor and from
the solicitor to him. Those letters which were and
are deemed to be significant with respect to the
security of the institution were and are being
brought to the attention of the Director of the
institution.
The appellant commenced an action in the Trial
Division of this Court for a declaration: "... that
properly identified items of correspondence direct
ed to and received from his solicitor shall hence
forth be regarded as privileged correspondence and
shall be forwarded to their respective destinations
unopened; ...". That action was dismissed by a
judgment in the Trial Division [[1977] 1 F.C.
663]. In this Court, in their oral arguments and in
their memorandum, appellant's counsel amended
their request for a declaration to: "... that hence
forth all properly identified items of solicitor-client
correspondence should be forwarded to their
respective destinations unopened."
In support of the decision of the learned Trial
Judge, counsel for the respondent made two basic.
submissions. The first submission was to the effect
that the appellant, on the facts of this case, was
not entitled to a declaration in the terms sought
either in the statement of claim or in the more
restricted terms set out in the memorandum filed
in this Court and referred to supra. The second
submission was that the appellant, by committing
a crime, had brought on himself, by his own deeds,
restrictions on the rights which citizens generally
in this country customarily enjoy except to the
extent that those rights are preserved to inmates of
penitentiaries by the Penitentiary Service Regula
tions and the Canadian Bill of Rights and that
neither the Penitentiary Service Regulations nor
the Canadian Bill of Rights operates so as to
entitle the appellant to the declaration sought.
Since, in my view, the first submission of the
respondent is well-founded, I would dismiss the
appeal on this basis. On that view of the matter, it
is not necessary to deal with the second basic
submission of the respondent.
Dealing with the first submission, the appellant
is asking for a declaration that all correspondence
between the appellant and his solicitor be declared
privileged and be delivered to the addressee uno
pened. In my view, such a declaration would
extend considerably the ambit of the solicitor-cli
ent privilege as it is generally known and under
stood. The learned Trial Judge dealt with this
matter effectively and accurately in his reasons at
pages 668-669 as follows:
In the case of the ordinary citizen, the privilege does not exist
merely because the communication is between a solicitor and
his client. The seeking or giving of legal advice must be the
object of the communication and it is privileged only to that
extent; see Regina v. Bencardino ((1974) 2 O.R. (2d) 351) at
page 358:
Not every communication by a client to his solicitor is
privileged. To be privileged the communication must be
made in the course of seeking legal advice and with the
intention of confidentiality. As stated by Wigmore on Evi
dence, 3rd ed. (1940), vol. 8, s. 2311:
No express request for secrecy, to be sure, is necessary.
But the mere relation of attorney and client does not raise
a presumption of confidentiality, and the circumstances
are to indicate whether by implication the communication
was of a sort intended to be confidential. These circum
stances will of course vary in individual cases, and the
ruling must therefore depend much on the case in hand.
In my opinion the new trial Judge should conduct a voir dire
as to what Quaranta said to Mr. Greenspan and if it appears
that Quaranta was not seeking legal advice but rather relief
from intimidation in prison or if it appears that he expressly
or impliedly authorized Mr. Greenspan to divulge his plight
to the authorities then I think Mr. Greenspan can be
required to testify before the jury as to what Quaranta said
to him in that connection.
See also O'Shea v. Wood ([1891] L.R. (P.D.) 286) at page 289:
Letters are not necessarily privileged because they pass be
tween solicitor and client; in order to be privileged, there
must be a professional element in the correspondence.
And also at page 290:
Letters containing mere statements of fact are not privileged;
they must be of a professional and confidential character.
The affidavit in the present case does not allege enough to
shew that the correspondence is privileged.
See also Clergue v. McKay ((1902) 3 O.L.R. 478) at page 480:
It appears to be necessary, therefore, that the affidavit on
production should not only state that the correspondence is
confidential and of a professional character, but the nature of
it must be set forth, without any ambiguity whatever, in
order that there may be no doubt as to its being privileged.
It seems evident that privilege can only be claimed document
by document and each document can be considered as privi
leged only to the extent that it meets the criterion which will
allow privilege to attach to it. In this regard it has also been
held quite frequently that, while part of a document might be
privileged, another part of the same document might not be
considered as privileged.
When a letter is addressed to a solicitor by the plaintiff or
received by him from his solicitor, it is clear that the question
of whether the letter does in fact contain a privileged communi
cation cannot be determined until it has been opened and read.
I agree with that reasoning. Quite apart from the
question as to whether the appellant's right to
claim the solicitor-client privilege has been
restricted or taken from him by his incarceration
in a federal penitentiary pursuant to a sentence
lawfully imposed on him, to grant the declaration
sought herein would be to give to this appellant, an
extension to the privilege afforded to the ordinary
citizen.
Furthermore, the appellant asks that the decla
ration be extended to include the application of the
principle of solicitor-client privilege to correspond
ence not yet written. The courts have stated that
they are without jurisdiction to make declarations
on purely hypothetical issues `. Likewise, the Court
will very rarely grant a declaration regarding the
future 2 . This is not, in my opinion, a case where,
even assuming jurisdiction, the Court should assert
that jurisdiction.
Compare: Landreville v. The Queen [1973] F.C. 1223 at p.
1228.
2 See: Mellstrom v. Garner [1970] 2 All E.R. 9 per Karmin-
ski L.J. at p. 12.
Accordingly, and for the foregoing reasons, I
would dismiss the appeal with costs both here and
in the Trial Division.
* * *
URIE J. concurred.
* * *
MACKAY D.J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.