Solosky v. Can. (1979), 30 N.R. 380 (SCC)
MLB headnote and full text
Solosky v. Government of Canada
Indexed As: Solosky v. Canada
Supreme Court of Canada
Laskin, C.J.C., Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and McIntyre, JJ.
December 21, 1979.
Summary:
This case arose out of the action by an inmate of a penitentiary for a declaration that correspondence by mail to his lawyer be forwarded unopened. The Federal Court of Canada, Trial Division, dismissed the inmate’s action. The inmate appealed.
The Federal Court of Appeal in a judgment reported 22 N.R. 34 dismissed the appeal. The Federal Court of Appeal held that the inmate was not entitled to the declaratory judgment asked for, because the solicitor-client privilege extended only to communications for the purpose of advice and not to all communications for any purpose. The inmate appealed.
The Supreme Court of Canada dismissed the appeal. The Supreme Court of Canada held that the solicitor-client privilege respecting the inmate’s letters to and from his lawyer must be balanced against the penitentiary’s interest in security and set out guidelines for the screening of the inmate’s letters to and from his lawyer.
Evidence – Topic 4241
Witnesses – Privilege – Lawyer-client communications – Extent of privilege – General – The Supreme Court of Canada discussed the origin and development of the solicitor-client privilege and held that it extends only to communications for the purpose of advice and not to all communications for any purpose – The Supreme Court of Canada discussed the extent of and exceptions to the privilege – See paragraphs 21 to 30.
Practice – Topic 5652
Judgments – Declaratory judgments – When available – The Supreme Court of Canada discussed the jurisdiction of the courts in granting declaratory relief – The Supreme Court of Canada held that the court may grant a declaratory judgment in its discretion when it has been shown that the dispute between the parties is real and that a declaration is capable of settling the issues between the parties – See paragraphs 9 to 20.
Cases Noticed:
Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd., [1921] 2 A.C. 438, appld. [para. 12].
Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government, [1958] 1 Q.B. 554, rev’d [1960] A.C. 260, appld. [para. 13].
Dickson v. Pharmaceutical Society, [1970] A.C. 403 (H.L.), appld. [para. 14].
Mellstrom v. Garner, [1970] 1 W.L.R. 603, dist. [para. 15].
Director of Investigation and Research and Shell Canada Ltd., Re (1975), 22 C.C.C.(2d) 70, appld. [para. 21].
Berd v. Lovelace (1577), 21 E.R. 33, refd to. [para. 22].
Dennis v. Codrington (1580), 21 E.R. 53, refd to. [para. 22].
Greenough v. Gaskell (1833), 39 E.R. 618, appld. [para. 22].
Anderson v. Bank of British Columbia (1876), 2 Ch.D. 644, 649, appld. [para. 22].
O’Shea v. Woods, [1891] P. 286, appld. [para. 24].
R. v. Cox and Railton (1884), 14 Q.B.D. 153, consd. [para. 24].
Director of Investigation and Research and Canada Safeway Ltd., Re (1972), 26 D.L.R.(3d) 745 (B.C.S.C.), consd. [para. 25].
Presswood et al. and International Chemalloy Corp., Re (1976), 65 D.L.R. (3d) 228 (Ont. H.C.), consd. [para. 25].
Borden and Elliott and the Queen, Re (1976), 30 C.C.C.(2d) 337, affd. (1975), 30 C.C.C.(2d) 345 (Ont. C.A.), consd. [para. 25].
Re BX Development Inc. and the Queen (1976), 31 C.C.C.(2d) 14 (B.C.C.A.), consd. [para. 25].
Re B and the Queen (1977), 36 C.C.C.(2d) 235 (Ont. Prov. Ct.), consd. [para. 25].
Prata v. Minister of Manpower and Immigration (1975), 3 N.R. 484; [1976] 1 S.C.R. 376, appld. [para. 32].
Statutes Noticed:
Canadian Bill of Rights, R.S.C. 1970, App. III, sect. 1(b), sect. 1(d), sect. 2(c)(ii) [para. 3].
Penitentiary Act, R.S.C. 1970, c. P-6, sect. 29(1), sect. 29(3) [para. 2].
Penitentiary Service Regulations, S.O.R./62-90, sect. 1.12(1), sect. 2.17, sect. 2.18 [para. 3].
Supreme Court Act, R.S.C. 1970, c. S-19, sect. 50 [para. 20].
Authors and Works Noticed:
Chassé, The Solicitor-Client Privilege and Search Warrants (1977), 36 C.R.N.S. 349 [para. 26].
de Smith, Judicial Review of Administrative Action (3rd Ed. 1973), p. 431 [para. 20].
Hudson, Declaratory Judgments in Theoretical Cases: The Reality of the Dispute (1977), 3 Dal.L.J. 706 [para. 16].
Kasting, Recent Developments in the Law of Solicitor-Client Privilege (1978), 24 McGill L.J. 115 [para. 26].
Counsel:
Ronald Price, Q.C., and David P. Cole, for the appellant;
E. Bowie and J.-Paul Malette, for the respondent.
This case was heard on June 13, 1979, at Ottawa, Ontario, before LASKIN, C.J.C., MARTLAND, RITCHIE, PIGEON, DICKSON, BEETZ, ESTEY, PRATTE and McINTYRE, JJ., of the Supreme Court of Canada.
On December 21, 1979, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:
DICKSON, J. – See paragraphs 1 to 42;
ESTEY, J. – See paragraph 43.
LASKIN, C.J.C., MARTLAND, RITCHIE, PIGEON, BEETZ, PRATTE and McINTYRE, JJ., concurred with DICKSON, J.
