The privilege, however, does not cover all the communications between the lawyer and the client. In the administration of justice, it is sometimes required that the matter of the communication need to be divulged. In determining whether the communication is privileged, it is necessary to determine the existence of the three important preconditions of the privilege. One, there should be communication between the client and the lawyer. Underlying this, however, the facts arising from the communication may not be considered as privileged. But the distinction between communication and facts is yet to be settled.
Generally, facts is considered as an element of the communication, but such fact cannot be claimed as privilege in case to case basis. For example, a documents containing necessary information may have been given to the lawyer during the client-lawyer relationship. The communication that has transpired may be considered as privileged but the fact that documents exists cannot be denied. Furthermore, the information containing in the said documents is protected by the privilege. The second pre-condition of the privilege is that the communication should entail the seeking or giving of the legal advice.
Basically, the role of the lawyers is to give legal advice and help the client defend his cause of action. Thus, the privilege applies to communication where the profession is applied. Communications other than the search for legal advice is not privileged. The third precondition is that the communication should be intended by the parties to be confidential. As a general rule, all communications made in the client-lawyer relationship is presumed as confidential. However, such presumption can be rebutted by the other parties by presenting justifiable reasons. Communications cannot be said to be privileged in several instances.
One is where client did not actually sought or the lawyer did not offer legal advice. Second, is when confidentiality is not intended by the parties. Lastly, privilege does not apply communication intended to commit illegal or unlawful acts. As has been earlier stated, information has a free flow in the society, especially on this technological era. But the freedom in sharing and obtaining the information shall not be abused. There is information that is deemed to be protected and as such can rightly be required by any person having interest to such. However, rights to possess the information can be conflicting.
For the purposes of balancing the rights, the PIPEDA has been enacted. Personal Information Protection and Electronic Documents Act (PIPEDA) have been enacted to protect the personal information that has been collected, used, or disclosed in communication or transactions. . At the same time, the act has also been enacted in support to the electronic flow of information in electronic commerce. In an overview, the act puts a “balance on the individual’s right to have personal information kept with an organization’s need to collect, use, and disclose personal information where necessary.
” In addition, the act is applicable to both provincial and federal organizations. While information may be given to employers, it follows that the employers should protect and respect the privacy of the information provided and obtained from their employees or an individual. At the same time, individual giving information has a right to claim back such information. In case of violation of privacy and resistance of the organization in providing the information, the aggrieved employee or individual may lodge his complaint before the office of the Privacy Commissioner of Canada.