July 4, 2014

Susumu Murakoshi
President
Japan Federation of Bar Associations
1-3, Kasumigaseki 1-Chome, Chiyoda-Ku
Tokyo 100-0013
Japan
Re:

Request for Comments, Attorney-Client Privilege in Japan

Dear President Murakoshi,
I am writing in response to your recent letter regarding the study by the Japan Fair Trade
Commission of attorney-client privilege (known in Canada as solicitor-client privilege). I
invite you to forward our comments to the Commission on our behalf.
In Canada, solicitor-client privilege began as a rule of evidence that shielded confidential
communications between a client and a lawyer from disclosure during the course of legal
proceedings. The privilege has, however, evolved into a principle of fundamental justiceprotected under s. 7 of the Canadian Charter of Rights and Freedoms. 1 Far from seeing
the privilege as something that interferes with the proper administration of justice, in aseries of cases decided during the past two decades, the Supreme Court of Canada has
held that the privilege is essential to the proper functioning of Canada’s justice system.
The foundation for the Court’s treatment of solicitor-client privilege is the belief that it isessential that clients seeking advice be able to speak candidly to their lawyers knowing
that, subject to clearly defined exceptions, their communications may be disclosed onlywith their consent. This free and open communication is necessary for clients to obtain
the best legal advice possible.
The Supreme Court has held that solicitor-client privilege must remain as close toabsolute as possible “in the high public interest in maintaining the confidentiality of thesolicitor-client relationship”. 2 The Court has held the privilege is subject to two narrow
exceptions: public safety and the right to make full answer and defence. 3 There may also
be statutory exceptions to the privilege, but, as the Supreme Court held in the Blood
Tribe case, “express words are necessary to permit a regulator or other statutory official

1Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v.
Canada (Attorney General); R. v. Fink, 2002 SCC 61(CanLII).
2Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23 (CanLII) atpara 54. See also Lavallee, supra note 1, and Canada (Privacy Commissioner) v. Blood Tribe
Department of Health, 2008 SCC 44 (CanLII) at paras 10-11.
3
Criminal Lawyers’ Association, supra, note 2 at para 54.

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to ‘pierce’ the privilege ... Open-textured language governing production of documents
will be read not to include solicitor-client documents.” 4
In Canada, solicitor-client privilege can be used both as a shield, to protect informationfrom disclosure, and as a sword, for example to strike down legislation. 5 It is also worth
noting that it applies equally to communications between government lawyers and thegovernment departments or agencies that are their clients. 6
I hope that this brief overview of the treatment of solicitor-client privilege in Canada
provides the information you were seeking.
Sincerely,

Marié-Claude Bélanger-Richard, Q.C.
President

4Supra, note 2 at paras. 2 and 11.
See, for example, Lavallee, supra, note 1.
6
Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31(CanLII).
5