Supreme court dismisses appeal over privileged call with Sask. lawyer caught on wiretap

Sharon Fox (Source: Nychuk and Company website)

Canada’s highest court has dismissed an appeal that would have seen a Regina lawyer go back to trial for obstruction based on a conversation with a client that was negligently recorded in a wiretap.

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 Friday, the top court said 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.

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“Although solicitor-client privilege is ‘near-absolute,’ it is subject to limited common law exceptions based on competing societal values,” Justice Mahmud Jamal wrote on behalf of the majority.

The decision came 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.

The surveillance authorization included a requirement that anyone monitoring an intercepted conversation should discontinue the interception if they reasonably believed a lawyer was on the call.

A civilian monitor employed by the police listened to the call between Fox and her client, as it was happening, for several minutes.

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.

A transcript of that part of the conversation can be read below:

Fox sought to have the non-privileged part of the call excluded from evidence, arguing the civilian monitor breached the wiretap authorization, infringing upon her Charter guarantee of freedom from unreasonable search and seizure.

Fox also argued that allowing the non-privileged part of the call into evidence infringed upon her Charter right to a fair trial, as she could not access the privileged part of the call for her defence.

The trial judge found no breach of the search and seizure provision but agreed there was a violation of Fox’s right to a fair trial.

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.

A majority of Saskatchewan’s Court of Appeal dismissed an appeal from the Crown, which then took its case to the Supreme Court.

The Supreme Court dismissed the Crown’s appeal.

In his reasons, Jamal noted solicitor-client privilege is meant to allow for full and frank communication between a lawyer and a client seeking legal advice. The client has sole discretion over whether to waive it.

However, Jamal said, solicitor-client privilege may in rare circumstances be required to yield to permit an accused to make full answer and a defence.

Jamal said an existing test can be adapted to a situation where a lawyer seeks access to their client’s privileged communications, and he set out guiding principles that courts should consider in such cases.

He said the Saskatchewan Court of King’s Bench and the majority of the province’s Court of Appeal erred in concluding that Fox could not invoke the innocence-at-stake exception to solicitor-client privilege.

Fox had the right to bring such an application to seek access to her client’s privileged communication for use in her defence, he wrote.

Both courts were also mistaken in ruling that Fox’s right to a fair trial was infringed upon before she had even brought such an application, he said. It was therefore also premature to exclude the evidence in question.

Jamal also noted the Crown now conceded that the monitor breached the search and seizure provision of the Charter by violating the terms of the wiretap authorization. He then turned to the question of whether the evidence should be excluded on that basis instead.

Jamal said the monitor “committed a serious breach of the Charter” by negligently ignoring the clear terms of the wiretap authorization and trespassing on the fundamental right to solicitor-client privilege.

“The monitor eavesdropped on a lawyer’s phone call with her client for several minutes, even though it should have been obvious to her that she should have stopped listening,” he wrote. “The seriousness of this breach was then exacerbated by the failure of the police or the civilian monitoring team to take appropriate remedial action.”

Jamal said Fox had a high expectation of privacy in the phone call with her client.

“Any intrusion into the lawyer-client relationship, as occurred here, also has a potential chilling effect on the provision of legal advice and access to justice,” he wrote.

He concluded that admitting the non-privileged part of the phone call into evidence would bring the administration of justice into disrepute. As a result, Jamal said, the evidence should be excluded.

In her dissenting opinion, Justice Michelle O’Bansawin seemed to concur with Jamal on the precepts, but drew a much different conclusion.

“Whenever lawyers are charged with obstructing the very same justice system they are duty‑bound to protect, the exclusion of evidence risks inviting the public perception that lawyers may compromise the truth‑seeking function of the criminal justice system in order to obtain an unjust advantage for their client, which undermines the public’s confidence in the administration of justice," she wrote.

“In the instant case, excluding the evidence would undermine the court’s truth‑seeking function, would effectively gut the prosecution, and would negatively impact the repute of the administration of justice."

O’Bansawin said she would have allowed the appeal and ordered a new trial.

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