Background
Sharon Fox, a criminal defence lawyer in Regina, Saskatchewan, was caught up in an RCMP cocaine trafficking investigation targeting one of her clients. In October 2019, the RCMP obtained a wiretap authorization that included standard solicitor-client privilege protections, most critically a requirement that monitoring personnel stop listening immediately upon recognizing that a lawyer was a party to a call. During the investigation, a civilian monitor employed by the police listened live to a phone call between Fox and her client for several minutes before discontinuing — a clear violation of the authorization’s terms.
A reviewing judge later divided the recorded call into two segments: the first 2 minutes and 25 seconds were found not protected by solicitor-client privilege and accessible to the RCMP, while the remaining 4 minutes and 15 seconds were ruled privileged and inaccessible to everyone, including Fox herself, without further court order. Based solely on the non-privileged segment, Fox was charged with obstruction of justice, the Crown alleging she had warned her client about potential police searches and counselled him to destroy evidence of criminal conduct.
Fox applied to exclude the non-privileged portion of the call from evidence. She argued first that the civilian monitor’s breach of the wiretap authorization violated her s. 8 Charter right against unreasonable search and seizure, and second that admitting only the non-privileged segment — while she remained barred from accessing the privileged segment to mount her defence — violated her right to a fair trial under ss. 7 and 11(d) of the Charter. The trial judge excluded the evidence and acquitted Fox; the Saskatchewan Court of Appeal affirmed. The Crown appealed to the Supreme Court of Canada.
The Court’s Holding
The Supreme Court, 7–2, dismissed the Crown’s appeal and upheld exclusion of the evidence, though on different grounds than the courts below. Writing for the majority, Justice Jamal (joined by Wagner C.J. and Karakatsanis, Côté, Martin, Kasirer, and Moreau JJ.) held that the lower courts erred in concluding prematurely that Fox’s fair-trial rights were infringed. A lawyer charged with a criminal offence can invoke the “innocence at stake” exception to solicitor-client privilege — as established in R. v. McClure, 2001 SCC 14, and R. v. Brown, 2002 SCC 32 — to seek access to a client’s privileged communications for use in their own defence. The McClure procedure can be adapted for this purpose, with the court safeguarding privilege to the greatest degree possible, ensuring the client has a voice throughout, and accounting for the accused lawyer’s unique familiarity with the communications. Because Fox had never actually brought a McClure application, it was premature to rule her fair-trial rights were breached.
However, the majority agreed the evidence must still be excluded — but under s. 24(2) of the Charter, on the basis of the conceded s. 8 breach caused by the civilian monitor’s conduct. Applying the R. v. Grant, 2009 SCC 32, framework, the majority found the threshold requirement satisfied: the breach and the obtaining of the evidence were simultaneous and contextually linked. On the three-part balancing inquiry, the majority found the breach serious — the monitor negligently ignored clear authorization terms protecting solicitor-client privilege, the failure to take remedial action was troubling, and no reprimand was ever issued, raising systemic concerns. The impact on Fox’s privacy interests was moderate but significant given the high expectation of privacy in lawyer-client communications. Although society’s interest in adjudicating the obstruction charge on the merits pulled strongly toward admission, the cumulative weight of the first two factors outweighed that interest. Admitting the evidence would bring the administration of justice into disrepute.
Justices Rowe and O’Bonsawin dissented. They agreed a lawyer may invoke the innocence at stake exception and that it was premature to find a fair-trial breach. But they would have admitted the evidence under s. 24(2): in their view the breach was inadvertent and isolated, occurring against a backdrop of systemic protective measures, and without any causal link to the ultimate obtaining of the evidence. Given the seriousness of the obstruction charge against an officer of the court, they concluded society’s interest in adjudication on the merits outweighed the attenuated seriousness and impact of the breach.
Key Takeaways
- A lawyer accused of a crime may invoke the McClure “innocence at stake” exception to seek access to their own client’s privileged communications in their defence — ethical duties as a solicitor do not bar the application, and an absolutist contrary rule would unconstitutionally treat lawyer-accused differently from other accused persons.
- The McClure test must be adapted when the accused is the privilege-holder’s own lawyer: privilege must be minimally impaired, the client must have a voice in the process, and the court must account for the lawyer’s existing familiarity with the privileged communications.
- Under s. 24(2) of the Charter, inadvertent police violations of solicitor-client privilege protections built into a wiretap authorization can still be “serious” enough to warrant exclusion — particularly where no remedial action was taken and systemic concerns are raised — even when the breach had no causal connection to obtaining the evidence.
- The s. 24(2) balancing is qualitative; no single factor is determinative, and the cumulative weight of the seriousness and impact factors must be weighed against society’s interest in adjudication on the merits.
Why It Matters
This decision resolves a previously open question in Canadian criminal law: lawyers are not categorically barred from the innocence at stake exception when their own liberty is at stake. The ruling prevents a perverse outcome where a lawyer’s professional obligations would effectively grant the Crown an impenetrable evidentiary shield against any accused who happens to be a member of the bar. By adapting the McClure procedure, the Court charts a course that honours both the near-absolute status of solicitor-client privilege and the constitutional right of every accused — including lawyers — to make full answer and defence.
The exclusion of the wiretap evidence under s. 24(2) also sends a strong signal about police compliance with solicitor-client privilege protections embedded in wiretap authorizations. Even inadvertent breaches of such protections can carry serious consequences at the exclusion stage, especially when law enforcement fails to investigate, remediate, or sanction the misconduct. Investigative agencies conducting electronic surveillance must treat privilege-protection terms as strict operational requirements, not mere formalities.