As Justice Tyndale once stated in a decision rendered by the Quebec Court of Appeal (QCA), "It is common sense that a secret once revealed is a secret no longer." This adage has since been widely used in support of the principle according to which the disclosure of privileged information to a third party, who may in turn freely disclose such information, usually entails a waiver of such attorney-client privilege (professional secrecy) against any other third party. However, this principle has been modulated over time to take into account the context surrounding each case, regardless of whether the privileged information is disclosed implicitly or explicitly.

As a recent example, in Centre universitaire de santé McGill c. Lemay, the QCA further modulated the general principle according to which the disclosure of privileged information to a third party necessarily entails the waiver of attorney-client privilege with respect to third parties, this time in the context of a criminal investigation carried out by a police force.

In the QCA’s decision, Justice Mainville, supported by Justices Lavallée and Kalichman, found that the disclosure of privileged documents to a police force in this case, the Unité permanente anticorruption (UPAC) for the purposes of a criminal investigation does not result in the loss of attorney-client privilege with respect to other third parties.

In the case at hand, UPAC conducted a criminal investigation on allegations of collusion and corruption in the awarding of contracts. One of the organizations targeted by this investigation retained the services of a lawyer to advise with respect to these allegations. The lawyer then hired a firm specializing in investigative and forensic accounting services. Upon completion of a report by this firm, the organization decided to cooperate with UPAC in its ongoing investigation and provided it with a copy of the report, which was subsequently the subject of a request for access to information submitted to the organization by a journalist.

While the Quebec Superior Court had held that the transmission of the above-mentioned report to UPAC constituted a waiver of attorney-client privilege (thus reversing previous decisions of the Commission d’accès à l’information and the Court of Quebec), the QCA concluded instead that, based on the particular facts of this case, the organization had not waived privilege over the document.

The disclosure of privileged information to police authorities constitutes more a moral duty than a legal obligation. According to the QCA, such disclosure does not in itself demonstrate a clear and unequivocal intent to waive attorney-client privilege. In support of this interpretation, the QCA agreed to import into Quebec civil law the common law public interest test.

However, it is important that the disclosure of privileged information to a police force be done so for limited, and not general, purposes. In its analysis to determine whether the disclosure in this case was made for a limited purpose, the QCA considered the treatment of privileged information by the party claiming such attorney-client privilege, attorney-client privilege and confidentiality statements in the documents containing privileged information, as well as reservations expressed at the time of the disclosure.

Finally, the duty of confidentiality that applies to police forces in the course of their investigations also provided a basis to conclude that the disclosure of privileged information was for limited purposes, as police forces cannot freely disclose privileged information collected during a criminal investigation.