Sharon Fox is a criminal defence lawyer in Saskatchewan who 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 concluded that Ms. Fox’s rights under s. 8 of the Charter were not breached with respect to the civilian employee listening to her phone conversation. However, 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. As a result, the entire audio recording was excluded under s. 24(1) of the Charter. Ms. Fox was acquitted.

A majority of the Court of Appeal affirmed the acquittal but also concluded that her rights under s. 8 had been breached, and it therefore would have excluded the audio recording under s. 24(2) instead of s. 24(1). 

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.

This case presents a pivotal opportunity for the Court in maintaining and protecting the privileged communications between a client and their lawyer. BCCLA is intervening to 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.

The 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.