Supreme Court says solicitor-client privilege is not absolute

The Supreme Court of Canada has found that while solicitor-client privilege is near-absolute, it is not absolute.

In a 7-2 decision, the Court said lawyers facing charges can use the innocence at stake exception to access their client’s privileged communications for their own defence.

The lawyer at the centre of the case, Sharon Fox, is a criminal defence lawyer from Regina, Saskatchewan. In October 2019, she received a call from a potential client at a police station who had been arrested, asking her to pass along a message to one of her existing clients. That client was being monitored under a wiretap authorization that excluded any conversation that could possibly be covered under solicitor-client privilege. While the RCMP officers monitoring the call stopped listening after eight seconds, a civilian monitor listened in for nearly four minutes.

The Crown applied for a ruling on whether the call was covered by solicitor-client privilege. It was determined that the first part of the call was not privileged, while the second part was. Based on the non-privileged part of the call, Fox was charged with obstruction of justice, accused of counselling her client to remove or destroy evidence before a search warrant could be issued. Fox argued her section 8 rights were violated because the monitor breached the authorization by listening to the call. Because she could not access the privileged part of the conversation, she claimed she was also deprived of her section 7 and 11(d) rights to a fair trial.

The Court of King’s Bench ruled that the section 8 rights were not breached because the monitor’s breach was a “mere inadvertence.” However, it agreed her right to a fair trial was infringed, and she was acquitted. 

The Court of Appeal dismissed the appeal of her acquittal, but found the trial judge erred in dismissing the section 8 claim, as there was an “obvious breach.” The Supreme Court also dismissed the appeal and upheld Fox’s acquittal because the case relied on evidence obtained in a manner that breached her Charter rights. 

Near — but not — absolute

The Court also raised the issue of the innocence at stake exception and whether the non-privileged portions of the call should be excluded from evidence. 

Writing for the majority, Justice Mahmud Jamal said a lawyer can invoke the innocence at stake exception to solicitor-client privilege recognized in McClure and Brown to seek access to their client’s privileged communications for use in their own defence.

“The procedure outlined in McClure and Brown can readily be adapted for this purpose,” he wrote. 

“Moreover, I agree with the majority of the Court of Appeal for Saskatchewan that the evidence in this case was obtained in a manner that breached s. 8 of the Charter and should be excluded under s. 24(2).”

The majority held that while solicitor-client privilege is near-absolute, it is not absolute.

“In my respectful view, the Saskatchewan Court of King’s Bench and the majority of the Court of Appeal erred in holding that Ms. Fox could not invoke the innocence at stake exception to solicitor-client privilege,” Jamal wrote.

He said Fox had the right to bring a McClure application to seek access to her client’s privileged communication to use in her own defence. Both courts also erred in ruling that her right to a fair trial under sections 7 and 11(d) of the Charter was infringed before she had even brought an application.

“It was premature to conclude that Ms. Fox’s right to a fair trial was infringed and then to exclude the evidence under s. 24(1) of the Charter.”

The majority held that three guiding principles should guide every stage of the McClure test: solicitor-client privilege should be minimally impaired, the privilege-holder client should have a voice throughout the process, and the court should consider the extent to which the accused lawyer is already within the “circle of privilege” by being privy to the privileged communications.

The McClure test has two stages. First, the accused must demonstrate an evidentiary basis to conclude that a privileged communication exists, which could raise a reasonable doubt. Second, the trial judge should examine the privileged communication to determine whether it is likely to raise a reasonable doubt. 

Intervenors, including the Canadian Civil Liberties Association (CCLA) and the BC Civil Liberties Association, suggested a process to ensure trial fairness while minimizing the impact on solicitor-client privilege.

Shakir Rahim, the director of the CCLA’s criminal justice program, says the decision recognized the significance and importance of solicitor-client privilege, as well as the appropriate protections that can be put in place to permit the innocence at stake exemption when an accused lawyer may need to rely on the privileged communications.

“There’s a number of important procedural protections that are outlined that reflect our submission, such as the potential for an in camera review of any communications that are privileged, the role of amicus curiae in being able to make submissions in McClure application process, and the discretion that a court possesses to create any other procedures that may be appropriate,” he says.

By taking this approach, along with the existing protections in an innocence at stake application, the Court effectively responded to the issues in the case. Rahim says the decision is a thoughtful reflection on several duties and principles that are engaged, including the importance of confidentiality in solicitor-client relationships, while also holding that these cannot be absolutist conceptions.

“The judgment is laudable for that reason in particular, in that it’s not reducing the weight that any of these duties and principles have in our system, but is recognizing that a very robust and procedurally-safeguarded process is possible, notwithstanding the existence of those protections,” he says.

A good reminder of the difficulties lawyers face

Darren Kraushaar, a partner with McDougall Gauley LLP in Regina and a member of the Saskatchewan Trial Lawyers’ Association, says the Court arrived at the right decision, even if it doesn’t change much in practical terms.

“It’s a case that’s a good reminder of the difficulties that lawyers, and in particular defence lawyers, face in some of these circumstances, where you have to make moment-to-moment decisions in a conversation with someone and to be really aware of what your ethical obligations are.”

He says what stood out in the Charter analysis was the majority’s concern with the operation of the state and the monitor listening in on the call, and the fact there was no corrective or remedial action for the breach of the wiretap authorization.

“It does raise questions about how often this happens. I read a little bit into that,” Kraushaar adds, as the majority said this is serious, needs to be dealt with and can’t be allowed to go on. 

"It seems like it’s a major concern because privilege is so important that you need to be really careful about it being breached in wiretap cases, especially in this day and age where all kinds of surveillance and interceptions are occurring, and to ensure that the state isn’t violating that.”