Supreme Court ruling sets out exception to confidentiality between lawyer and client

The Supreme Court of Canada is pictured in Ottawa on Wednesday, Dec. 13, 2023. THE CANADIAN PRESS/Sean Kilpatrick

OTTAWA — The Supreme Court of Canada says there can be an exception to a lawyer’s duty to keep conversations with a client confidential when the lawyer needs the information to defend themselves against a criminal charge.

In a 7-2 ruling today, the top court says a lawyer can invoke an “innocence at stake” exception when they seek access to their client’s privileged communications for use in their own defence.

The decision comes in the case of Regina criminal defence lawyer Sharon Fox, whose phone conversation with a client was recorded under a wiretap authorization in an RCMP investigation into cocaine trafficking.

A judge ruled the first portion of the call was not protected by solicitor-client privilege and could be accessed by the RCMP, but said a second portion of the call was privileged and could not be accessed by anyone — including the lawyer — without a further order from the court.

Based on the first portion of the call, Fox was charged with obstruction of justice over claims that she warned her client about possible police searches and that she advised the client to remove or destroy evidence.

The judge ruled Fox could not invoke the “innocence at stake” exception to access her client’s privileged communications for use in her own defence, but also excluded the non-privileged part of the call from evidence to prevent an unfair trial, leading to the lawyer’s acquittal.

This report by The Canadian Press was first published Feb. 6, 2026.

Jim Bronskill, The Canadian Press