R v Fox, 2024 SKCA 26
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[30] A trial judge’s obligation to raise a potential Charter breach on their own motion was discussed by Ryan-Froslie J.A. in R v Bialski, 2018 SKCA 71, 364 CCC (3d) 485:
[73] … I agree with the law as stated by Watt J.A. in Richards [2017 ONCA 424]. The test for whether a trial judge should intervene and on his or her own motion raise a Charter issue is whether there is admissible uncontradicted evidence of a Charter breach. …
[74] In my view, a judge who raises Charter issues on his or her own motion should do so when it first becomes clear the evidence of a breach will be uncontradicted. The trial judge should then, as stated by Oland J.A. in Travers [2001 NSCA 71], “invite submissions and, if appropriate … conduct an exclusionary hearing in order to protect the integrity of the judicial process” (at para 40).
[31] However, when a party is represented by counsel, a trial judge should be hesitant to raise new Charter issues that the accused themselves have not put forward: R v Anderson, 2014 SCC 41 at para 59, [2014] 2 SCR 167.
B. Prematurity of the s. 7 and s. 11(d) issues
[39] The impairment of an accused’s right to make full answer and defence to a criminal charge can cause an unfair trial, resulting in a violation of s. 7 and s. 11(d) Charter rights: R v J.J., 2022 SCC 28 at para 402, 415 CCC (3d) 285; Dersch v Canada (Attorney General), 1990 CanLII 3820 (SCC), [1990] 2 SCR 1505 at 1513–1514 [Dersch]; and R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326 at 336–337. The coexistence of these rights of an accused and the solicitor–client privilege of a third party were described in R v McClure, 2001 SCC 14, [2001] 1 SCR 445 [McClure], thus:
[41] Solicitor–client privilege and the right to make full answer and defence are principles of fundamental justice. The right of an accused to full answer and defence is personal to him or her and engages the right to life, liberty, security of the person and the right of the innocent not to be convicted. Solicitor–client privilege while also personal is broader and is important to the administration of justice as a whole.
[42] The analysis of this issue requires the examination of two questions:
(a) Was Ms. Fox required to wait until the completion of the Crown’s case at trial to make the application?
(b) Was Ms. Fox required to apply to pierce the privilege before seeking a remedy of the exclusion of the evidence?
The answer to these two queries necessitates an understanding of the nature of solicitor–client privilege and the types of situations where it can be set aside.
[43] Solicitor–client privilege is a fundamental part of the Canadian legal system. It has been described in the following terms by Côté J. in Alberta (Information and Privacy Commissioner) v University of Calgary, 2016 SCC 53, [2016] 2 SCR 555:
[34] It is indisputable that solicitor–client privilege is fundamental to the proper functioning of our legal system and a cornerstone of access to justice. Lawyers have the unique role of providing advice to clients within a complex legal system. Without the assurance of confidentiality, people cannot be expected to speak honestly and candidly with their lawyers, which compromises the quality of the legal advice they receive. It is therefore in the public interest to protect solicitor–client privilege. For this reason, “privilege is jealously guarded and should only be set aside in the most unusual circumstances” (Pritchard, [2004 SCC 31] at para. 17).
(Most citations omitted)
[44] Further, in Canada (Privacy Commissioner) v Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 SCR 574 [Blood Tribe], Binnie J. discussed the rationale for the privilege as follows:
[9] Solicitor–client privilege is fundamental to the proper functioning of our legal system. The complex of rules and procedures is such that, realistically speaking, it cannot be navigated without a lawyer’s expert advice. It is said that anyone who represents himself or herself has a fool for a client, yet a lawyer’s advice is only as good as the factual information the client provides. Experience shows that people who have a legal problem will often not make a clean breast of the facts to a lawyer without an assurance of confidentiality “as close to absolute as possible” … .
[45] In McClure, Major J. provided a discussion on the concept of solicitor–client privilege as a class privilege, in a case that is highly relevant to the matter at hand:
[1] This appeal revisits the reach of solicitor–client privilege. This privilege comes with a long history. Its value has been tested since early in the common law. Its importance has not diminished.
[2] Solicitor–client privilege describes the privilege that exists between a client and his or her lawyer. This privilege is fundamental to the justice system in Canada. The law is a complex web of interests, relationships and rules. The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system. At the heart of this privilege lies the concept that people must be able to speak candidly with their lawyers and so enable their interests to be fully represented.
…
[17] Solicitor–client privilege is part of and fundamental to the Canadian legal system. While its historical roots are a rule of evidence, it has evolved into a fundamental and substantive rule of law.
…
[31] … This privilege, by itself, commands a unique status within the legal system. The important relationship between a client and his or her lawyer stretches beyond the parties and is integral to the workings of the legal system itself. The solicitor–client relationship is a part of that system, not ancillary to it. See Gruenke, [1991 CanLII 40 (SCC), [1991] 3 SCR 263], per Lamer C.J. at p. 289:
The prima facie protection for solicitor–client communications is based on the fact that the relationship and the communications between solicitor and client are essential to the effective operation of the legal system.
[46] The level to which solicitor–client privilege must be protected was succinctly encapsulated by Arbour J. in Lavallee, Rackel & Heintz v Canada (Attorney General), 2002 SCC 61, [2002] 3 SCR 209 [Lavallee], where she stated, “Indeed, solicitor–client privilege must remain as close to absolute as possible if it is to retain relevance” (at para 36).
[47] Not all communications between a solicitor and their client are privileged. In order for the privilege to arise, the communication between lawyer and client must occur in circumstances where the client is seeking lawful legal advice: McClure at para 36.
[48] The privilege belongs to the client: Blood Tribe at para 9. While it is close to absolute, the privilege can be pierced in a limited number of unusual circumstances, including but not limited to the following:
(a) waiver by the client;
(b) an imminent threat to public safety;
(c) criminal communications; and
(d) innocence at stake.
See McClure and Smith v Jones, 1999 CanLII 674 (SCC), [1999] 1 SCR 455 at paras 51–57.
[51] After examining the existing tests from analogous concepts, Major J. decided that an innocence at stake test should be used to determine which competing interest would prevail. The rationale and restrictions on the test were described as follows:
[46] … The appropriate test by which to determine whether to set aside solicitor–client privilege is the innocence at stake test, set out below. Solicitor–client privilege should be set aside only in the most unusual cases. Unless individuals can be certain that their communications with their solicitors will remain entirely confidential, their ability to speak freely will be undermined.
[47] In recognition of the central place of solicitor–client privilege within the administration of justice, the innocence at stake test should be stringent. The privilege should be infringed only where core issues going to the guilt of the accused are involved and there is a genuine risk of a wrongful conviction.
[48] Before the test is even considered, the accused must establish that the information he is seeking in the solicitor–client file is not available from any other source and he is otherwise unable to raise a reasonable doubt as to his guilt in any other way.
[49] By way of illustration, if the accused could raise a reasonable doubt at his trial on the question of mens rea by access to the solicitor–client file but could also raise a reasonable doubt with the defence of alibi and/or identification, then it would be unnecessary to use the solicitor–client file. The innocence of the accused would not be at stake but instead it is his wish to mount a more complete defence that would be affected. On the surface it may appear harsh to deny access as the particular privileged evidence might raise a reasonable doubt, nonetheless, the policy reasons favouring the protection of the confidentiality of solicitor–client communications must prevail unless there is a genuine danger of wrongful conviction.
[50] The innocence at stake test is applied in two stages in order to reflect the dual nature of the judge’s inquiry. At the first stage, the accused seeking production of a solicitor–client communication must provide some evidentiary basis upon which to conclude that there exists a communication that could raise a reasonable doubt as to his guilt. At this stage, the judge has to decide whether she will review the evidence.
[51] If the trial judge is satisfied that such an evidentiary basis exists, then she should proceed to stage two. At that stage, the trial judge must examine the solicitor–client file to determine whether, in fact, there is a communication that is likely to raise a reasonable doubt as to the guilt of the accused. It is evident that the test in the first stage (could raise a reasonable doubt) is different than that of the second stage (likely to raise a reasonable doubt). If the second stage of the test is met, then the trial judge should order the production but only of that portion of the solicitor–client file that is necessary to raise the defence claimed.
[52] The two stages of the innocence at stake test are expanded upon in significant further detail in the remainder of the judgment in McClure. It is a stringent test, which is difficult to meet. As a bottom line, there must be a genuine risk of a wrongful conviction. I note that the formulation of the test in McClure, unlike the circumstances at hand, relies on the fact that the accused is not certain what is contained in the privileged communication but is not constrained in divulging what they do know.
[53] The narrow scope of the decision in McClure was described by Adam M. Dodek in Solicitor–Client Privilege (Markham, Ont: LexisNexis, 2014) at §2.7, footnote 20 [Dodek], as follows:
The Court held that the privilege should be infringed only where core issues going to the guilt of the accused are involved and a genuine risk of wrongful conviction exists. Moreover, the Court established a preliminary threshold inquiry that mandates that before the innocence at stake test is even considered, an accused must establish that the information sought in the solicitor–client file is not available from any other source and he or she is unable to raise a reasonable doubt as to his or her guilt in any other manner.
[54] The procedure set out in McClure was applied shortly thereafter by the Supreme Court in R v Brown, 2002 SCC 32, [2002] 2 SCR 185 [Brown]. In that case, Mr. Brown was charged with murder and became aware that another individual, Mr. Benson, had allegedly confessed to the crime to his girlfriend. She told this to the police and further stated that Mr. Benson had also told her that he had likewise confessed to his lawyers. Mr. Benson subsequently denied killing the victim. The police investigated Mr. Benson for several months, but they also concurrently investigated Mr. Brown as a suspect. Eventually, Mr. Brown was charged with the murder. Mr. Brown sought to have Mr. Benson’s solicitor–client privilege pierced in order to have access to the confession that he had allegedly made to his lawyers. Mr. Brown argued that, while he had Mr. Benson’s girlfriend’s hearsay statement regarding the confession, the alleged statement to Mr. Benson’s lawyers was more likely to be admitted into evidence because of its enhanced reliability. Justice Major applied his earlier ruling from McClure, confirmed that the same test should be used, and declined to set aside the solicitor–client privilege. In doing so, he noted that “McClure was intended to provide a last resort to accused individuals whose innocence is at stake, and who otherwise face the possibility of wrongful conviction” (at para 63). Justice Major also noted that when disclosure is ordered, it should be limited in scope and provided only to the defence. He reiterated that use immunity – protection against self‑incrimination for the privilege holder – attaches to any such material.
[55] Dodek describes the extremely high bar set in McClure and Brown as follows:
§8.43 The stringent nature of the McClure test cannot be understated. As of the writing of this book [2014], there has been no known successful McClure application. In McClure itself, the Court held that the first stage of the test was not met because there was no evidence that the information sought by McClure could raise a reasonable doubt as to his guilt. In Brown, the Court held that the second stage of the test was not met because the exculpatory evidence — a client’s confession to his lawyer — was available through another source, viz. the testimony of another witness.
§8.44 While the Supreme Court claims that the risk of a bona fide wrongful conviction must override the privilege, it is not clear that this is the case in practice. Indeed, just a year after recognizing the innocence at stake exception in McClure, the Supreme Court [in Brown] appeared quite comfortable with the prospect that it had set the bar for a successful McClure application so high that it might not be able to prevent a wrongful conviction.
[56] Neither party referred the Court to any case where a lawyer has been required to attempt to pierce the privilege of their own client using the McClure test in order to make full answer and defence in their own trial. I am likewise unaware of any such jurisprudence. The circumstances in R v Murray (2000), 2000 CanLII 22372 (ON SC), 144 CCC (3d) 322 (Ont Sup Ct), which predates McClure and Brown, involved a different, mainly consensual procedure where a lawyer charged with obstruction of justice obtained a ruling permitting him to adduce, in his own defence, solicitor–client privileged information relating to a former client’s instructions in a different criminal matter. The Crown in that case consented. Notably, the lawyer’s former client was given standing in the matter and only opposed the application in part. In granting the order sought by the lawyer, the court observed that the former client had lost his appeal from conviction and that any prejudice from piercing solicitor–client privilege was “largely theoretical” and depended on the Supreme Court granting leave to appeal and ultimately ordering a new trial and that the “chances of that happening [were] remote” (at para 14). In my view, that decision is of no assistance because of the pre-McClure test that the court applied and its significantly different factual circumstances.
[57] While it is important to have an understanding of the innocence at stake test, the issue at this stage of the analysis is not whether the test has been met, but whether the s. 7 and s. 11(d) application was premature. First, the Crown argues that the jurisprudence requires a McClure application to be made only after all of the Crown’s evidence has been adduced at trial. This argument accords with the following guidance as set out in Brown:
[52] In the usual case, it would be preferable to delay the McClure application until the end of the Crown’s case. This will better permit the trial judge to assess the strength of the Crown’s case against the accused, and to determine whether the accused’s innocence is, in fact, at stake. If the Crown has failed to prove its case beyond a reasonable doubt, then there will be no need to allow the McClure application and invade a third party’s solicitor–client privilege. This will prevent the privilege from being unnecessarily violated.
[53] This decision will be easier for a judge sitting without a jury. However, a judge sitting with a jury need not be concerned, as was Dambrot J. [the trial judge in Brown], that his or her determination of whether the accused can raise a reasonable doubt will usurp the jury’s function. The judge’s decision at this stage requires an assessment of the case at that point, not a determination of it.
[58] In the usual case, it makes sense for such an application to be made after the entirety of the Crown’s case is in so that the court can fully appreciate the impact of the potential evidence in the context of the totality of the Crown’s evidence. It also informs the court about the issue of whether the evidence is available from any other source. However, I would hardly describe the matter at hand as the usual case. It would be an extremely rare circumstance where the communication itself formed the bulk of the evidence against an accused.
[65] At stage one of the McClure test, an accused is under an obligation to “provide some evidentiary basis upon which to conclude that there exists a communication that could raise a reasonable doubt as to his guilt” (McClure at para 50). If they fail to meet this burden, the inquiry is at an end, and the privilege will not be pierced. In order to meet this onus, the typical accused can freely provide all of the relevant information that they have obtained, and their counsel can make submissions regarding what might reasonably be contained in the privileged material that would assist in making full answer and defence. A person in Ms. Fox’s position can do no such thing because of their duty of loyalty and confidentiality and due to the existence of solicitor–client privilege. They are placed in the untenable position of being aware of exactly what is contained in the solicitor–client-protected material and knowing how it could assist them to make full answer and defence but being prohibited from referring to any of it. How is someone in Ms. Fox’s position to meet their evidentiary burden, when they are not entitled to say anything about the crucial facts? They cannot put any of the type of information before a court, as described in the following excerpt from Brown:
[31] … For an accused to believe that a document protected by solicitor–client privilege contains information pertaining to his innocence, he must necessarily have some basis to suspect that such privileged information exists. An accused cannot magically divine that a third party’s solicitor–client communications contain information that will prove his innocence. In almost every case, the accused’s belief will be based on some other fact that has come to his attention. Further, as noted by M. Proulx and D. Layton in Ethics and Canadian Criminal Law (2001), a lawyer cannot disclose privileged communications unless ordered to do so by a court, even though “[o]ften the lawyer will alone be aware of the exculpatory information, meaning that no other interested party has any reason or basis to invoke the court process in order to defeat the privilege” (p. 183).
[68] Moving on to stage two of the McClure test, assuming the unlikely (i.e., that stage one could be satisfied without evidence or a breach of solicitor–client privilege), once the trial judge had received the privileged material for review, she could have then attempted to determine if “there is a communication that is likely to raise a reasonable doubt as to the guilt of the accused” (McClure at para 51). Again, Ms. Fox would be placed in a position of untenable disadvantage in this exercise. Other than very generalized submissions, she would be hamstrung in making explicit arguments on this portion of the test because of a concern about violating her client’s privilege. This factor also points to the McClure test being a poor fit for the unusual circumstances of this matter.
[69] Underlying all of this analysis is the extremely difficult situation in which a lawyer would find themselves when having to decide whether to apply to have their own client’s solicitor–client privilege set aside, albeit for a limited purpose. This is not a case where a client is accusing their own lawyer of misconduct, such as in a civil action for professional negligence or an assertion of ineffective assistance of counsel in a criminal appeal. It is not a case where a lawyer is being accused of being party to a client’s crime. It is not a case of a third party seeking to have solicitor–client privilege set aside. It is a case where a lawyer would be forced to apply for a court order permitting them to breach their own duties of loyalty and confidentiality to assert their own Charter right to a fair trial. If Ms. Fox were required to bring an application to pierce the privilege, she would be faced with the terrible choice between her own interests and those of her client. This dilemma is discussed tangentially in Dodek:
§8.104 … there is a strong argument that lawyers should be subject to a more stringent framework for the protection of privilege than non-lawyers. Journalists sometimes risk going to jail rather than revealing their sources. Lawyers make strong claims about loyalty to their clients but courts appear much more sympathetic to lawyers’ predicaments than to those of other professionals. This is understandable. Lawyers should not have to be martyrs but neither should they be treated as the prodigal sons or daughters of the justice system.
[70] Taking all of this into account, it is my view that Ms. Fox was not required to apply to pierce the privilege attached to the second portion before she could seek exclusion of the first portion based upon an assertion that her s. 7 and s. 11(d) Charter rights had been violated. She is not obliged to choose between the duty to her client and her own right to a fair trial. She is not, in effect, compelled to apply to have her duty of loyalty to her client set aside in order to protect her own interests.
