Supreme Court rules lawyers can breach solicitor-client privilege to defend themselves
CBC
The sacred line of solicitor-client privilege is not absolute. On Friday, Canada's highest court laid out an example of when it can be crossed.
The court put an end to a nearly five-year saga involving Regina lawyer Sharon Fox. The 7-2 decision upheld her acquittal on obstruction of justice charges, finding that police "negligently" eavesdropped on a phone call in which she gave confidential legal advice.
Writing for the majority, Justice Mahmud Jamal said that while solicitor-client privilege is a cornerstone of the justice system, lawyers are not "prodigal sons or daughters" of the law, and do not have to sacrifice their own freedom to protect a client's secrets.
Fox was charged in 2021 after a police wiretap two years earlier captured her speaking with a client. Police were investigating alleged drug trafficking, and Fox was representing more than one of the suspects.
"This is now the end of the road for her in a very stressful set of circumstances," her defence lawyer, Brian Pfefferle, told CBC News.
"Any time a lawyer is charged with anything, it's incredibly stressful. She continued to represent her clients with excellence, but this has been a distraction that should never have happened."
“It absolutely sets a precedent,” he said. “It expands the ability for defence counsel, or any lawyer for that matter, to potentially violate privilege where their innocence is at stake.”
Regina police were intercepting calls in a trafficking investigation in 2019 when an officer heard Fox pick up the phone and identify herself as a lawyer.
The officer hung up, but eight seconds later, a civilian monitor — part of the Saskatchewan Provincial Intercept Program — started listening. The monitor stayed on the line for three minutes and 49 seconds, while Fox warned a client that another associate had been arrested and search warrants were likely coming.
Justice Mahmud Jamal called the monitor’s actions "unacceptable negligence."
"The monitor negligently ignored the clear terms of the wiretap authorization, trespassed on solicitor-client privilege and eavesdropped … even though it should have been obvious to her that she should have stopped listening," Jamal wrote.
Beyond the wiretap, the top court was faced with the question of whether a lawyer charged with a crime can reveal a client’s confidential information to prove their own innocence.
Lower courts had previously ruled that a lawyer’s ethical duty to their client was "absolute"—meaning Fox could not use the "innocence at stake" exception to access privileged communications that might help her case.
However, Canada’s top court disagreed, ruling that an "absolutist" view would create an unfair trial.
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