Does solicitor-client privilege apply to communications brought into existence by a government department?

Alberta, Canada


The following excerpt is from Edmonton Police Service v Alberta (Information and Privacy Commissioner), 2020 ABQB 10 (CanLII):

The importance of legal advice and of solicitor-client privilege in the context of government was spoken of by Brennan J. in Waterford v. Australia (1987), 163 C.L.R. 54 (H.C.) at pp. 74-75: ... I should think that the public interest is truly served by according legal professional privilege to communications brought into existence by a government department for the purpose of seeking or giving legal advice as to the nature, extent and the manner in which the powers, functions and duties of government officers are required to be exercised or performed. If the repository of the power does not know the nature or extent of the power or if he does not appreciate the legal restraints on the manner in which he is required to exercise it, there is a significant risk that a purported exercise of the power will miscarry. The same may be said of the performance of functions and duties. The public interest in minimizing the risk by encouraging resort to legal advice is greater, perhaps, than the public interest in minimizing the risk that individuals may act without proper appreciation of their legal rights and obligations. In the case of governments no less than in the case of individuals, legal professional privilege tends to enhance the application of the law, and the public has a substantial interest in the maintenance of the rule of law over public administration. Provided the sole purpose for which the document is brought into existence is the seeking or giving of legal advice as to the performance of a statutory power or the performance of a statutory function or duty, there is no reason why it should not be the subject of legal professional privilege.

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