For Immediate Release

Ottawa, ON (unceded Anishinabe Algonquin Territory) – The BC Civil Liberties Association (BCCLA) is intervening at the Supreme Court of Canada today in R. v. Fox. This case presents a pivotal opportunity for the Court in maintaining and protecting the privileged communications between a client and their lawyer.  

Solicitor-client privilege is a foundational principle in Canada’s legal system, and a principle of fundamental justice under s. 7 of the Charter.  It is virtually absolute, meaning it can only be pierced in very limited and prescribed circumstances.

In this case, Ms. Fox, a criminal defence lawyer, was charged with obstruction of justice in relation to a telephone call she had with her client, which was recorded but sealed by the police pursuant to a wiretap authorization targeting that client. At trial, the judge found that Ms. Fox’s right to a fair trial was breached because she was not able to make use of the full audio recording, as a portion of it was protected by solicitor-client privilege. On appeal to the Supreme Court of Canada, the Crown argues that Ms. Fox could have used the “innocence at stake” exception to pierce her own client’s privilege, and that her right to a fair trial under sections 7 and 11(d) of the Charter was therefore not infringed.

BCCLA will argue that it would be deeply damaging to the solicitor-client relationship to require an accused lawyer to betray their client’s confidences and trust, in order to serve their own interests. Likewise, it may deeply damage public confidence in the legal profession and the justice system as a whole. BCCLA will further argue that where the innocence at stake exception does involve solicitor-client communications, the procedure must ensure that the client’s voice is not muted at any stage of the process. Should an impasse arise from these competing interests, a judicial stay of proceedings may be the only viable remedy.

 BCCLA is represented by Daniel J. Song, K.C. of Pringle Law and Saffiya Ahmad.

Read the BCCLA’s factum.