The court said lawyers can ask for 'innocence at stake' exceptions when they are criminally accused
Lawyers can ask for an exception to solicitor-client privilege if they have been charged with a crime and need access to their clients’ privileged communications to defend themselves, the Supreme Court of Canada ruled in a 7-2 decision on Friday.
The lawyer in the case, a criminal defence lawyer who was charged with obstruction of justice after police monitored her phone calls and claimed she had advised a client to remove and destroy evidence, never asked the court for such an exception. A trial court had acquitted her after concluding that no portion of the phone call was admissible as evidence.
But a majority of the Supreme Court said the lawyer, Sharon Fox, could have asked for an “innocence at stake” exception had she wanted to. This specific exception to solicitor-client privilege gives an accused person access to a client’s privileged communications for defence purposes.
Brian Pfefferle of Brian Pfefferle Law, one of Fox’s lawyers, told Canadian Lawyer he was grateful that Fox had been relieved from the “frivolous charges.”
The high court “confirms that lawyers, like all accused persons, are entitled to make full answer and defence, and in rare ‘innocence at stake’ situations may seek carefully controlled access to privileged communications to avoid wrongful conviction,” Pfefferle said.
“These are important clarifications that will guide courts and counsel across Canada, and we hope will not erode the confidence clients have in seeking confidential legal advice.”
A spokesperson for Saskatchewan’s Ministry of Justice and Attorney General said the province’s public prosecutions office is reviewing the decision and declined to further comment.
Justice Mahmud Jamal wrote the opinion for the majority. Justices Michelle O’Bonsawin and Malcolm Rowe dissented.
The case can be traced back to 2019, when Fox called one of her clients without knowing that a Saskatchewan court had authorized police to intercept the client’s calls as part of a cocaine trafficking investigation. One condition of the wiretap authorization was that police had to stop listening if they believed a lawyer was on the call.
The call was automatically recorded and monitored in real time by RCMP officers, who hung up when they heard Fox identify herself. However, a civilian monitor began monitoring the call eight seconds later and listened in for nearly four minutes.
In 2020, the Crown asked a court to determine whether the call between Fox and her client was protected by solicitor-client privilege. The court found that the first part of the call was not privileged and could be accessed by the RCMP, but that the remainder was privileged and therefore could not be accessed without a further court order.
In the non-privileged part of the call, Fox had advised her client that one of the other individuals under investigation for cocaine trafficking had been arrested after being surveilled. She explained what police surveillance entailed, that police would likely be working on search warrants if they didn’t already have them, and that the arrested individual had been arrested because she went “to a place where there has been product located.”
Fox was charged with attempting to obstruct or defeat justice based on this part of the call. The Crown argued that the call served to warn her client about places the police would potentially search and that she had advised her client to remove or destroy evidence of criminal conduct.
But a trial court sided with Fox, who argued that she had been deprived of her right to a fair trial under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms because the Crown was able to use the non-privileged part of her phone call against her, while she was barred from using the privileged parts of the call to defend herself.
However, the court rejected Fox’s argument that admitting the non-privileged part of the call as evidence breached her s. 8 rights. She argued that the evidence had been obtained in a way that violated her right to be free from unreasonable search and seizure, because the civilian monitor listened to privileged portions of her call and breached the terms of the wiretap authorization.
The court disagreed but ultimately acquitted Fox. The Crown appealed, without success, to the Saskatchewan Court of Appeal.
In Friday’s decision, the majority also dismissed the appeal. Jamal agreed with Fox that the non-privileged part of the call was not admissible as evidence, because it had been obtained in a way that breached her s. 8 rights.
Jamal also clarified that in cases where lawyers have been accused of a crime, they can ask for an “innocence at stake” exception to solicitor-client privilege. Solicitor-client privilege is “near-absolute” and can generally only be waived by the client, the justice wrote. However, in rare circumstances, exceptions can be made, such as when an accused person needs access to privileged client communications to defend themselves.
To determine whether to apply an innocence at stake exception, courts can use the test outlined in the 2001 SCC decision, R. v. McClure. To pass the test, the accused must prove that the information sought from a solicitor-client communication is not available from any other source and that they have no other means of raising a reasonable doubt about their guilt.
If the accused meets those criteria, they must show that the communication could raise a reasonable doubt about their guilt. The judge then examines the communication to determine whether this is the case.
“Lawyers, like other individuals accused of committing a crime, have a constitutional right to make full answer and defence to a criminal charge,” Jamal wrote. “A lawyer charged with a criminal offence can invoke the innocence at stake exception to solicitor-client privilege to seek access to their client’s privileged communication for use in their own defence.
“The innocence at stake test can be modified as appropriate to allow the lawyer to make full answer and defence and to protect their right to a fair trial,” Jamal added.
In their dissent, O’Bonsawin and Rowe said they would have allowed the Crown’s appeal.
While the justices agreed with the majority that lawyers can invoke the innocence at stake exception to solicitor-client privilege when they need client communications to defend themselves against criminal charges, they said that the non-privileged part of Fox’s call was rightfully admitted as evidence.
