Constitutional Hierarchy: Solicitor-Client Privilege as Super-Constitutional Right

Abstract

Between 1999 and 2002, the Supreme Court of Canada transformed solicitor-client privilege from a common law to a constitutional of the highest order. Over those three years, the Canadian Court rendered five decisions in cases directly involving solicitor-client privilege. At least two more decisions are on the way and others have been staved off as a result of the ascendance of solicitor-client privilege to the upper level of the constitutional pantheon. In effect, in just three short years, solicitor-client privilege has become a right. The idea of a right reflects the reality of the hierarchy of rights that exists under the Canadian Constitution. It also reflects the dynamic nature of the Canadian Constitution where the strength of various constitutional provisions ebb and flow over time. This paper explores the development of solicitor-client privilege into a super-constitutional” through an examination of the Quintology - the five solicitor-client cases at the Supreme Court of Canada between 1999 and 2002. It also analyzes the ramifications of the ascendance of solicitor-client privilege to super-constitutional status.