Lawyers as witness: when is a lawyer not a compellable witness

By Selwyn A. Pieters, B.A., LL.B.
Barrister, Solicitor & Notary Public

Lawyers face the prospect of being summons as witnesses for various reasons including:

1. By the Crown, when an accused is attempting to have a guilty plea struck
2. By a Client, when that client or his/her counsel feels the lawyer or former lawyer has relevant evidence to give on a point in dispute.

The test is always relevant and even if relevant, whether the evidence is necessary.

On the issue of necessity is the solicitor-client privilege that exist or existed between solicitor and client. Clearly without an explicit waiver, such privilege is almost absolute.

In Smith v. Peel Regional Police Services Board, 2011 HRTO 628, the Human Rights Tribunal of Ontario was confronted with that very issue, involving an unrepresented litigant:

[5]               The applicant delivered a summons to her former lawyer compelling him to attend the hearing.  The lawyer applied to the Tribunal to have the summons quashed on the basis that it was not properly served (no conduct money was delivered), that he had no relevant evidence to give, and that any evidence he could give would be protected by solicitor client privilege.  The respondent agreed that the lawyer was not a compellable witness.  The applicant did not respond to the lawyer’s Request to quash the summons.

 [6]               The complainant has not given any indication what evidence she believes her former lawyer could provide in respect of this Application.  She has not responded to the Request to quash the summons, nor indicated that she would waive solicitor client privilege.  In these circumstances, the summons is quashed and the proposed witness need not attend the hearing.